PLJ1997AJK1 PLJ1997AJK1 [Labour Appellate Tribunal] Present: kh. muhammad saeed, actg. CJ/LAT. ZAHID HUSSAIN, PRESIDENT OFFICERS WELFARE ASSOCIATION MCB, ZONE RAWALAKOT and others-Appellants versus GENERAL MANAGER MUSLIM COMMERCIAL BANK & another- Respondents Labour Appeal No. 24 of 1996, decided on 28-12-1996 (i) Transfer-- Transfers and postings orders, can best be judged by authority concerned. [P. 4] B (ii) Industrial dispute- Unfair Labour Practice-Allegation of--Appellants failing to prove that respondents in order to curtail their Trade Union's activities, wanted totransfer them-Appellants not mentioning place of posting-More vague allegations levelled against respondents-Allegation of unfair labour practice, held, must be pleaded with particularity and it must be spelt out from petition itselfNo error, committed by Trial Court while dismissing application for stay order. [P. 4] A, C Sardar Rafique Mehmood Khan, Advocate for Appellants. M/s Kh. Shahad Ahmad and Sardar Mohd, Sadiq Khan, Advocates for Respondents. Date of decision : 28.12.1996 judgment Feeling aggrieved by the order passed on October 8, 1996 by the Labour Court Poonch (Rawalakote), the appellants have filed the present appeal before this Court. The facts, as claimed in the petition, briefly stated are that the appellants who claim to be the Officers of the Muslim Commercial Bank Limited Rawalakote moved an application before the Labour Court Poonch on August 19, 1996 stating therein that they have formed an Officers Welfare Association (hereinafter to be referred as Welfare Association). In support of their claim the appellants have placed on record the certificate of Registration issued by the Registrar of Trade Unions, Azad Government of the State of Jammu and Kashmir Muzaffarabad dated April 14, 1996. According to them, a meeting of the Officers of the above referred Welfare Association was convened on April 23, 1996 in which the manifesto of the officer's welfare was adopted. In support of this contention, the petitioners have filed an attested copy of the minutes of the meeting which reads as tinder: "Minutes of the meeting of Officers Association Muslim Commercial Bank Limited, held at MCB Main Branch Rawalakote AK on 23.4.1996: A meeting of M.C.B. Officers Welfare Association M'abad, Zone held on 23rd April, 1996, Rawalakote , AK at 2.00 P.M. Under the Presidentship of Sardar Zahid Hussain Khan, resident, MCB Officers Welfare Association M'abad, AK, Zone, Majority of the members participated. Many speakers highlighted the various issues and problems which they are acing. The determined to extend their full endeavours for the progress of the Muslim Commercial Bank Ltd. They also paid rich tributes to the services of the M.C.B. President r. ussan Lawai, rendered by him for the progress of Muslim Commercial Bank Limited and as well as for the Staff. At the end of the meeting, a resolution was passed by the vote of all articipants: 1. Separate recruitment quota should be kept and prescribed for the sons of the MCB Officers. Residential telephone call bills of AJK MCB Officers 3. Merit must he followed in. transfers/posting. 4. Staff in MCB M'abad AK Zone be increased." The petitioner showed their apprehension that the General Manager and the Regional Manager Muslim Commercial Bank Limited Muzaffarabad who were defendants In the original petition, intend to transfer them ia order to curtail their healthy Trade Union's activities. Alongwith the application, the petitioners moved an application for interim relief. On this application a notice was issued to the son-petitioners for October 2, 1996. Objections on behalf of the respondents were however filed oa September 12, 1.996. Ultimately the learned Labour Court after hearing the learned Counsel for the parties, vide judgment under appeal declined the relief prayed for; which order has been assailed in appeal before this Court. Sardar Rafique Mahmood Khan, learned Counsel for the appellants argued that the appellants are the Office bearers of the Welfare Association of the Muslim Commercial Bank Limited, In order to curtail their lawful activities the respondents intend to victimize them by way of their transfers. According to the learned Counsel, these transfers shall constitute unfair labour practice on the part of the respondents. The learned Labour Court , therefore, should have passed the order against the respondents restraining them from transferring the appellants front their place of posting. Opposing the application, Kh, Sliaiiad Ahmad, learned Counsel for the respondents argued that the appellants have formed a Welfare Association and not and Trade Union. They cannot, therefore, claim any protection under the provisions contained, in the Industrial Relations Ordinance, 1974. He further argued that in the application filed by the appellants under Section 30 of the Industrial Relations Ordinance before the Labour Court Rawalakote, no specific allegation has beer levelled against, the respondents. The application moved by them is vague, xinspecific and lack the details even about the present status of the appellants as well as their places of posting. They have not claimed to be the Members of any Trade Union. The application is also bereft of details that from where and why the respondents want to transfer the appellants and where the respondents intend their posting. The remedy of interim relief, therefore, was rightly declined to the appellants by the Labour Court Rawalakote. Alternatively the learned Counsel for the respondents argued that if the Welfare Association formed by the Officers of the Muslim Commercial Bank Limited, is assumed to be a Trade Union even then the allegation of unfair labour practice attributed to the respondents should have been pleaded specifically as it is a serious matter and if proved, the respondents could even be sent to jail. In the present case vague allegations without due care and conscious have been levelled against the respondents who are responsible for the management and better working of the Bank in Azad Kashmir. He relied on a case titled "United Labour Union fC.J3.Aj P.R.T.C. (Intercity) Multan v. Farasat Mand Khan Director Operation P.R.T.C. Lahore and others', 1993 P.L.C. 338 wherein the stay application moved by the United Labour Union was dismissed on the ground that the allegations levelled in it are vague, unspecific and bereft of details. I have considered the respective arguments of the learned Counsel for the parties and have gone through the record. Application moved by the appellants for the stay, was dismissed by the trial Court on the ground that the allegations were vague and of general nature. The main petition moved by the appellants before the Labour Court Rawalakote is still pending. It will, therefore, be too early for me to say anything whether the welfare Association of the appellants can be termed as Trade Union and whether the appellants who are the officers of the Bank, were legally competent to bring their petition before the Labour Court under Section 30 of the Ordinance, as still the trial Court has not resolved these points. I agree with the learned Counsel for the respondents that the allegation of unfair labour practice is a very serious matter because, if proved, the person facing this charge can be sent to the jail for committing the offence. The allegation of unfair labour practice, therefore, must be pleaded with particularity and it must be spelt out from the petition itself. In the present case, vague allegations have been levelled against the respondents. The appellants, as has rightly been pointed out by the trial Court, havr not mentioned even their places of posting. Under Service Law, the transfers and postings orders can best be judged by the authority concerned. Due to this reason, the transfer orders are normally not interfered nor any order of restrain is passed unless and uptill it is shown that it would be inconflict with the Statute or it shall be against the Statutory Rules or purpose laid down in the Statute. In the present case, the appellants have failed to prove that the respondents in order to curtail their Trade Union's activities, wanted to transfer them. No error was, therefore, committed by the trial Court while dismissing their application for stay order. (Aq. By.) Appeal dismissed.
PLJ 1997 AJK 4 PLJ 1997 AJK 4 Present: KHAWAJA muhammad saeed, J. NAWAB KHAN-Appellant versus MUHAMMAD SARWAR KHAN & 6 others-Respondents Civil Appeal No. 39 of 1994, decided on 16.11.95. (i) Right of Prior Purchase Act, 1993- -S. 18--Pre-emption--Suit for--Plaintiff--Appellant stating in lower courts that he had a dispute with vendee and on basis of that dispute, he filed suit for pre-emption-This statement, onsidered sufficient to attract principles of statutory waiver against plaintiff-appellant--This fact not put to plaintiff during cross-examination that he had given assurance to vendee that he would not object to heir purchasing land in question or that, defendant's were at liberty to make purchase of land in dispute- Notice u/s 18 of Right of Prior Purchase Act not given to plaintiffappellant prior to execution of sale deed-Act of plaintiff-appellant admitted by him, held, does not amount to waiver of his right of pre emption-Case, remanded by setting aside judgment and decrees of courts below. [Waiver] [P. 8, 9] B, C & D PLD1983S.C. 5ref&rel. (ii) Words and Phrases- Waiver-Meaning of--Waiver means to abandon or relinquish a known vested right by an express declaration or by contract. [P. 8 & 9] A PLD 1983 S.C. 5 ref. Sardar Muhammad Anwar Khan Tahir, Advocate for Appellant. Sardar Muhammad Ejaz Khan, Advocate for respondents. order This appeal is directed against the judgment and decree passed on 30 April, 1994 by District Judge Poonch Rawalakot, whereby while maintaining the findings arrived at on 28 September, 1993, by Sub Judge Rawalakot on issue No. 5, the suit of the plaintiff-appellant was dismissed. 2. The facts forming back-ground of the present controversy, briefly stated are that Muhammad Ashraf Khan Respondent No. 7, transferred suit land comprising survey No. 321-min, 641 and 26-min, situate in village Dethan, Tehsil Rawalakot District Poonch to respondent Nos. 1 to 6 through a sale deed executed on 2 November, 1986. The plaintiff-appellant brought a suit in the Court of Addl. Sub Judge Rawalakot on 15 July, 1990. 3. The defendant-respondents filed their written statement in the suit wherein they, while repudiating the averments made in the plaint, contended that plaintiff-appellant had no preferential right of purchase as compared to them. It was further pleaded that the vendor'had asked the plaintiff-appellant to buy the land. But he refused, thereafter, the vendees purchased the and with the consent of the plaintiff-appellant. The trial Court framed as lany as six issues, including the one for relief and after recording the evidence of the parties for and against their respective claims, ultimately dismissed the suit of the plaintiff-appellant mainly on the ground of waiver. This finding was assailed in appeal before the District Judge who dismissed the same vide impugned judgment and decree. Hence the present appeal. 4. Lengthy arguments have been addressed by the learned Counsel for the parties. 5. The learned Courts below applied the principle of waiver against the plaintiff-appellant on the ground that he had admitted in his Court testimony that he had a dispute with Abdul Aziz defendant on account of which reason, he exercised the right of prior purchase. If Abdul Aziz had taken no quarrel with him, then in that ease, he could have not filed the suit The learned Courts below observed that plaintiff-appellant had, in fact given Ms consent to the sale as pleaded by the defendant vendees. He has filed the suit just to take revenge from Abdul .Aziz, defendant. 6. The plaintiff-appellant, in his suit, has exercised Ms right of prior purchase on the ground of contiguity and has claimed that land was transferred at his back without his knowledge whereas the respondents have denied his right of prior purchase and have asserted that firstly he had no right of prior purchase and ultimately, if he had any right, he had waived the same by refusing to buy the suit land and by his consent in the bargain between the vendor and vendees. 7. The question for decision la this case is as to whether in the circumstances of this case, the statement made by the pre-emptor-appellant implies a promise by him, not to exercise his pre-emptive right, or prejudice that right in any way. 8. The learned Counsel for the plaint ff-appellant argued that respondents have denied the preferential right of the plaintiff-appellant, as such there was no occasion for them to seek his consent. According to the learned Counsel, the right can be waived only if it is proved that the preemptor, either by his words or action, prior to sale or at the time of sale, has given any consent in favour of the transfer of the land from the vendor to the vendees or has refused the offer of the vendor to purchase the land. He further emphasized that it is on admitted fact that the notice, as postulated under Section 18 of the Right of Prior Purchase Act, as enforced in Azad Jammu and Kashmir, was not given to him. Therefore, the statu ory requirements in this case were net fulfilled, on the basis of which it could be claimed that the land was offered to him by the vendor having authority to sell it, prior to the execution of the sale deed in question. According to him, therefore, principle of waiver as applied against his client by the Courts below without any legal justification. He relied on P.L.D, 1957 S.C, India 346, P.L.D. 1962 Peshawar 14, P.L.D. 1974 Note 96 page 146 and P.L.D. 1983 AJK 5. In all these authorities the principle of waiver and its application have been discussed in detail. 9. While repudiating the arguments of the learned Counsel for the appellant, the learned Counsel for the respondents argued that the suit based on pre-emption has been fiied to ask revenge from Abdul Aziz vendee, with when the plaintiff-appellant had a dispute ever another piece of land. In this view of the matter, the suit was rightly dismissed by-the Courts below in f the light of the statement of the plaintiff-appellant. 10. I have given my thought to the respective arguments submitted by the learned Counsel for the parties and gone through the record. The principle of waiver has attracted the attention of superior judiciary of Sub-Continent time and again. The right of pre-emption is provided by statute, therefore, even though no hard and fast rule has been laid down in respect of conduct of the plaintiff, on the basis of which the requisite decree can be refused to him. However, where it was proved through convincing evidence that plaintiff had under-taken not to exercise his superior right of purchase or had acted in a manner which was entirely :sr inconsistent with an intention to exercise the statutory right of pre-emption or where it was proved that he induced the vendees to enter upon the sale, the Courts have disentitled the plaintiff from the decree on the right of pre emption. 12. Before proceeding further it appears necessary to discuss the judgment of our own Supreme Court (P.L.D. 1983 S.C. 5), in which all other judgments relied by the Counsel for the appellant have been discussed. The learned Judges of the Supreme Court of Azad Kashmir have also examined the word "waiver" from all aspects. Reliance can be made on paras 7, 8, 9 and 10 from this judgment which run as under: "7. First we examine as to what waiver is? The dictionary _^ meaning of word "waiver" is "To abandon, relinquish, desert, forsakeTo relinquish (a right, claim, or contention) either by express declaration or by some intentional act which by law is equivalent to this." In Law Terms and phrases "waiver" is described "Forsaking the assertion of a right act, at the proper time. An intentional relinquishment of a right a man is entitled to." The word "waiver" means to "Forego; to waive a claim or right, or not to put forward the claim or right." 8. The definition of word "waiver" attracted the attention of the learned Judges in Manak Lai's case. The relevant part of the observation is reproduced : "Waiver or acquiescence, like election, presupposes X" that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. Waiver, therefore, cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party know about the relevant facts and was aware of his right to take the objection in question." 9. The proposition was raised in 'Mustaqim v. Sher Bahadur' where in a pre-emption case, the learned Judge, on examining the case law on the point, described "waiver" as under:- "Waiver, as commonly understood, is an intentional relinquishrnent of a known right. It may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right." 10. In Mohiballah's case while deliberating over the proposition relevant to the waiver the learned Judges applying the test laid down in A.I.R. 1915 All. 51, arrived at a onclusion :-- "Although no hard and fast rule can be laid down as to what constitutes waiver by conduct in relation to a pre-emptible sale and consequently every case has to be decided in the light of its reculiar facts, the test laid down in A.I.R. 1915 All. 51 that "the pre-emptor must have a fair opportunity of purchasing the property" seems to be the heart and soul of the legal problem. If the answer is in the affirmative, the pre-emptor must fail but if it is in the negative, he must obviously succeed." Waiver, precisely, mean "to abandon or relinquish a known vested right by an express declaration or by conduct. Any person who intended to take benefit of waiver, is under an obligation to prove waiver by conclusive proof." 13. Ultimately, the learned Judges have precisely concluded that waiver means to abandon or relinquish a known vested right by an express declaration or by conduct. 14. In the present case the vendees have not acknowledged that the plaintiff-appellant had a preferential right of purchase. They have pleaded that the plaintiff had refused to purchase the land and later as, the land was purchased by them with the consent of the plaintiff. The facts so pleaded were not proved as has been held by the trial Court. However, the trial Court as well as the first ppellant Court had relied upon the statement of the plaintiff in the Court, wherein he has stated that he had a dispute with Abdul Aziz vendee and on the basis of this dispute he filed the suit for preemption. This statement has been considered sufficient to attract the principle of statutory waiver against the plaintiff. This fact was not put to the plaintiff-appellant during his cross-examination that he had given assurance to the vendees that he would not object to their purchasing the land in question, or that the defendants were at liberty to make the purchase of the land in dispute. It is not the case of the vendees that the vendor having authority to sell the land ever offered the land to the plaintiff-appellant for purchase. It is admitted fact that notice under Section 18 of the right of prior purchase Act was not given to the plaintiff. Appellant prior to the execution pf the sale deed. In these circumstances, I am satisfied that the act of the plaintiff-appellant admitted by him does not amount to waiver of his right of pre-emption. 15. The learned District Judge has decided only issue No. 5 and has not recorded his findings on other issues. Therefore, in the circumstances, while accepting the appeal with costs and setting aside the judgment and decrees of the Courts below, I am constrained to remand the case to the learned District Judge Poonch-Rawalakot for his decision afresh on other" issues in accordance with law. (Aq.By.) Appeal accepted.
PLJ 1997 AJK 9 PLJ 1997 AJK 9 Present: khawaja muhammad saeed, actg. C.J. RAJA ALI GOHAR-Petitioner versus CUSTODIAN OF EVACUEE PROPERTY MUZAFFARABAD & 8 others-Respondents W.P. No. 119 of 1993, decided on 28.11.96 i) Azad Jammu & Kashmir Interim Constitution Act, 1974-- S. 44~Custodian of Evacuee Property-Order of-Challenge to~Custodian declaring disputed property as Evacuee property-Revenue record showing entries in record in name of non-muslims as owners of property- List filed by father of petitioner, decreed in his favour-Custodian not confirming fact-Objection that respondent No. 1 custodian cannot defend case unless ex-parte order recorded against respondents is set aside- Objection turned down and held that Civil Procedure Code is applicable in writ jurisdiction under which defendant can join proceedings onward at any gtage of proceedings without getting vacated previously passed ex parte order. [P. 10] A Syed Muhammad Siddique Shah, Advocate for the Petitioner. Mr. Farooq Hussain Kashmiri, Advocate for Respondent No. 1 & 2. Date of Decision: 28-11-1996 judgment Through this Constitutional petition addressed under Section 44 of the Azad Jamrnu and Kashmir Interim Constitution Act, 1974, the petitioners have sought the indulgence of this Court for declaring the Order dated September 20, 1993 of the learned Custodian of Evacuee Property Muzaffarabad as illegal arid of no legal effect, whereby he has declared the land under survey No. 728, measuring 16 kanals and 12 marlas, situated in village Danna, Tehsil Muzaffarabad as an evacuee property. Admitted facts are that the father of the petitioners through a suit filed in the Court of Custodian on May 20,1981 sought a declaration that he is owner of the land measuring 16 kanals and 12 marlas comprising survey No. 728, situate in village Danna, Tehsil Muzaffarabad. The entries recorded in the revenue record showing non-muslims as owners of the property, were against the true facts as such ineffective and inoperative against his right of ownership. The suit was entrusted for inquiry to the Deputy Custodian, Muzaffarabad who after necessary proceedings decreed the suit of the father of the petitioners vide his order and decree dated May 23,1992 and send the same for confirmation to/ respondent No. 1 in his capacity as Custodian. The learned Custodian declined to confirm the decree. Hence the present petition. This writ petition was admitted for regular hearing vide a detailed order passed by this Court on November 8, 1993. The respondents despite service failed to turn-up in the Court as such were proceeded exparte. Various adjournments, on request, for arguments were allowed to the learned Counsel for the petitioners. Mr. Farooq Hussain Kashmiri, learned counsel for the Custodian and the Rehabilitation Authorities, appeared before the Court. An objection was taken by the learned Counsel for the petitioners that without getting set : aside the exparte order recorded against the respondents, he cannot defend the impugned order. The objection was turned down by the Court on the ground that the Civil Procedure Code is applicable in the writ jurisdiction under which the defendant can join the proceedings onward at any stage of the proceedings without getting vacated the previously passed exparte order. Mr. Farooq Hussain Kashmiri, the learned counsel for the respondents Nos. 1 & 2 was allowed to argue the case on behalf of the respondents and defend the order under challenge. I have heard the learned Counsel for the parties and perused the relevant record. Syed Muhammad Siddique Shah, learned Counsel for the petitioners argued that the land in dispute has never been treated and declared as an evacuee property by the Custodian or the Rehabilitation Authorities. The mere entry in the revenue record of con-petitioner Nos, 3 to 7, against the true facts of the case was not se.ffieie.at to declare the landed property in dispute as an evacuee property. He further argued that in the light of the relevant record which was attached with the application filed under Section 22 of the Administration of Evacuee Property Act XII of 1957, (hereinafter to be referred as Act) specifically the claim of ownership was pleaded arid correctness of the entry incorporated In the revenue record of respondent Nos. 3 to 7, was challenged. The Rehabilitation Department filed evasive written statement whereby the plea raised in this behalf by the petitioners was not denied specifically nor any record in support of the entry was produced before the trial. Court la these circumstances, the learned Deputy Custodian, in his detailed order after proper appraisal of evidence, had rightly decreed the suit of the plaintiff. The learned Custodiau without any contrary proof has relied on the disputed entry recorded la the revenue record to pass the order impugned in this petition. The learned Counsel farther argued that the learned Custodian was not justified to ignore the bar contained ia Section 3 of the Act He relied on P.L.D. 1964 SC 74, lu this case the judgment of the High Court of West Pakistan KaracM Bench was assailed before the Supreme Court whereby while issuing a writ of certiorari the High Court had quashed the order of the learned Custodian dated September 17, 1960 and restored the order of the learned Deputy Custodian dated 10.10.1958. In this case the entries were recorded in,the revenue record in the names of three non-muslims brothers on the basis of a registered sale-deed dated 21.4.1947. While interpreting Section 3 of the Act in the light of the entries recorded in the revenue record, the learned Court at page-78 of the Judgment observed as under : "The property in dispute, it seems, was undeveloped land which was never brought under the plough. It is conceded that it was never allotted to any refugees or other person by N the Rehabilitation Department or by the Custodian. Mr. Sheikh contended before us that after the mutation in favour of the vendees had been cancelled in 1952, and the entry in the record of rights showed the property to be that of Gangaram Virumal, the repetition of that entry must be regarded as evidencing the "treatment" of the property as evacuee property. But, it must be observed that with the passing of the orders of confirmation in 1956, the effect of the entiy in question was wiped out, in law. Merely because the vendees were negligent in having the entiy corrected and the Revenue Officers themselves omitted to change the entiy so as to conform to the orders passed by the Deputy Custodian, it could not be said that the property was being "treated" as evacuee property within the meaning of the section," The learned Counsel for the Custodian, on the other hand, has argued that the entries of the evacuees were recorded for the first time in the Revenue Record in the year, 1950. As the non-muslims had migrated to India during the war of liberation of 1947, therefore, they are not in a position to defend the entiy recorded in their favour in the revenue record. According to the learned Counsel, the record, therefore, was rightly relied upon by the learned Custodian. I have heard the learned Counsel for the parties and have thoroughly examined the record attached with the petition. For the proper perception of the point involved and to determine as to whether section 3 of the Act in fact operates as a complete bar, it appears imperative to have a reference of the same in the language in which it is couched, Section 3 of the Act reads as follows :-- "Section 3. Property not to be treated as evacuee property on or after January 1957.-- Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the ase may be, as evacuee property, on or after the said date. (1) Nothing in subsection (1) shall apply: (a) o any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the ate mentioned therein for treating such persons as evacuee or such property as evacuee property; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1947, has not been accepted or approved by the Custodian." From the bare reading of this Section, it is clear that if any property was not treated as evacuee property upto December 31, 1956 by the Custodian or Rehabilitation Authorities, the same cannot be declared as evacuee property later on. Upto this time the petitioners have not been held as un-authorized occupant of the land nor any step is proved to have been taken by the Custodian or Rehabilitation Authorities for the recovery of any dues from them in respect of the land in dispute. For the first time in 1981 the father of the petitioners moved an application under Section 22 of the Act whereby he challenged the correctness of the entries on the ground that the same were recorded in the names of non-muslims Nos. 3 to 7 contrary to the true facts. This fact was not even specifically denied in the written statement by the Rehabilitation Authorities. As said earlier, under Section 3 of the Act, it is settled position of law that person or property not declared or treated as evacuee, person or property, as the case may be, before January 1, 1957 cannot be declared or treated as such afterwards. The learned Counsel for the petitioners in this behalf relied on P.L.D. 1964 Lahore 274. The question for consideration before the Full Bench of the Lahore High Court was about the scope and true import of section 3 of Act XII of 1957; that whether it has taken away the competence of the Custodian to declare any person or property as evacuee, who or which was not treated as evacuee immediately before the 1st of January 1957, it is still open to him to declare or treated any person or property as evacuee ignoring the bar contained in this Section. The learned Judges after survey of the case law observed as under:- "6. The history of the legislation further shows that in 1956 there was a departure in the policy of the State in respect of evacuee legislation. By Ordinance No. XX of 1956 the provisions of 'intending evacuees' contained in Chapter 6 were omitted from the statute. Under Section 3 of this Ordinance it was provided as under : "Notwithstanding anything contained in this Ordinance, no person or property not treated as evacuee or evacuee property immediately before the first day of January 1957, shall be treated as evacuee or as the case may be, evacuee property, on or after the said date." Thus, under this legislation the Custodian or the Rehabilitation Authorities were permitted or given time to treat a person or property as evacuee within a month and thirteen days of the commencement of this legislation. In effect after the 1st of January, 1957 this power, without any reservation, was taken away,..... Mr. Justice Wahiduddin, J., who wrote this judgment on behalf of the full bencli while relying on a case titled '"Perumal v. Central Government of Pakistan' P. L.D. 1963 SC 127, observe : "It seems to mo that there is a vast difference between the two notions, namely, the vesting of the property and the treatment of a property. ie the first case, by fiction of law the property generally vests in the Custodian, to enable him to take possession er to take other steps for the protection of specified properties. In. the other, some overt act in respect of a particular properly is Implied, The use of the words "aot treated" clearly suggests that mere vesting of the property generally in the Custodian under section 7 of Act XJI of 1957 is not treatment of a particular person or property as evacuee or evacuee property. I am, therefore, of the opinion that neither the vesting of the property in the Custodian nor the holding ,i of the Custodian has any maltis,) lsm . <, -U 1 nverpretation of this subsection," The learned Counsel also relied ob P.L.D, 195? SC (Pals.) 63 in a case titled 'Sahibrai v. The Cu^odiaJi cf Evacuee Property'. In this case too, it is held that no property caa be lie-Id or treated as evacuee property after January 1, 1957.In the light of the above, it becomes clear that the learned Custodian and Rehabilitation Authorities were permitted under law, the time upto January 1, 1957 to take necessary step to declare or treat, by their conduct any property or person, as the case may be, as evacuee property or person. After this date the powers In this regard were taken away. In the present case, admittedly no step was taken by the Custodian or any Rehabilitation Authority to declare or treat the properly in dispute as evacuee property. While accepting this writ petition with cost the order of the learned Custodian dated September 20, 1983 Is declared without lawful authority and as such of no legal consequence. The order of the Deputy Custodian passed on May 23,1992 is restored. (Aq. By.) Petition accepted.
PLJ 1997 AJK 15 PLJ 1997 AJK 15 Present: CH, MUHAMMAD TAJ, J. MUHAMMAD MALIK and 2others--Petitioners versus SHER BAZ & 8 others-Respondents W.P. No, 70 of 1995, decided on 17.10.96. Review- Review on ground of incorrectness of view-ValidityMember, Board of Revenue, while reviewing order earlier passed by Ms predecessor, practically re-hearing appeal and deciding points, already onsidered and decided-Impugned order, to be beyond scope of review-It was not within his jurisdiction to review on ground of incorrectness of view as he could not hear appeal against his own judgment or hat of his predecessor, particularly when no error was disclosed, case, could not be re-opened Order passed by Member Board of Revenue, held, to be illegal, of no legal effect and set aside, [P. 19, 21] , B & C PLJ 1983 S.C. (AJK) 60, 1969 S.C.M.R. 5, 1973 S.C.M.R. 143, 1978 S.C.M.R. 367 ref. & rel Raja Muhammad Siddique Khan, Advocate for the Petitioners. Rqja Hassan Akhtar, Advocate for the Respondents. Date of decision : 17-10-1996. okdeh This writ petition has been filed to challenge the order passed by respondent No. 8, in a review petition, on April 24,1995. 2. The facts as disclosed in the petition, are that the petitioners filed partition proceedings forKhewat No. 19/20 of village Sochani, Tehsil Dadyal, against respondents No. 1 to 7 and other proforma-respondents, before the Assistant Collector, Mirpur who passed an order on March 24, 1985. It was further disclosed that due to connivance of the lower revenue staff, the file in which the order was passed, was again placed before the Assistant Collector who passed an order on December 24, 1987 to the effect that the order for partition had already been passed, as such no further proceedings were required. The respondents filed an appeal before the Collector against the above referred order, which was dismissed and a revision petition before the Revenue Commissioner also met the same fate. A further revision before the Member, Board of Revenue was also dismissed. However, a review petition filed by the respondents, was accepted by respondent No. 8 on April 24, 1995 whereby the order passed by the Member Board of Revenue in revision and the other orders by the subordinate revenue officers, were set aside and the case was remanded to the Assistant Collector to initiate fresh partition proceedings. This order is the subject of challenge before this Court. 3. Raja Muhammad Siddique Khan, the learned Counsel for the petitioners raised the following points in support of the petition:-- (i) That the Assistant Collector, Mirpur passed a final order in the partition proceedings on 24-3-1985 against which no appeal was preferred. However, an appeal filed against the order dated December 24, 1987 before the Collector was dismissed and a revision petition before the Revenue Commissioner and a further revision before the Member, Board of Revenue also met the same fate. It was explained that all the revenue Courts held that the respondents did not file any appeal against the order passed in partition proceedings. However, the appeal filed by the respondents was held incompetent and time-barred. Therefore, the order attained finality after finally concluded by the order of Member, Board of Revenue; (ii) that the appeal filed before the Collector was tampered with, so to make it an appeal against the order dated 24-3-1985 which was noticed by all the revenue Courts; (iii) that respondent No. 8, set aside the orders passed by the Member, Board of Revenue and the other revenue Officers, by accepting the review petition. The order was attacked on the following further grounds : (a) That the order was passed without jurisdiction and lawful authority; (b) that respondent No. 8 failed to appreciate that the partition order dated 24-3-1985 attained finality as no appeal was filed against that order; and (c) that the scope of review is very limited, as such respondent No. 8 transgressed his jurisdiction while going beyond the limits provided for the review. The learned Counsel referred to 1983 P.L.J. S.C. AJ&K 61 in support of his assertions. 4. On the other hand, Raja Hassan Akhtar, the learned Counsel for the respondents argued in the following manner :-- (i) that the points raised before the Collector, Revenue Commissioner and Member, Board of Revenue, were not considered, as such, the review was rightly attracted; (ii) that without entering into detailed merits, it was apparent that some of the parties on record had died and a final order was passed without impleading their legal representatives. Therefore, the orders suffered from glaring illegality; (iii) that the scope of review in revenue proceedings is wider than the provisions maintained for the purpose in other laws; & (iv) that by acceptance of review petition, that case was remanded to the Assistant Collector for initiation of partition proceedings afresh where rights of the parties shall be considered and determined, as such no writ is attracted, as none of the rights of the petitioners is prejudiced by remand order. The learned Counsel referred to PLD 1992 S.C. AJ&K 45 in support of his assertions. 5. I have heard the learned Counsel for the parties and also gone through the record. It may be mentioned that the petitioners filed the partition proceedings on September 1, 1982 and a final order was passed on March 24, 1995. However, for unknown reasons, the file was again placed before the Assistant Collector who after hearing the concerned arties, passed an order on December 24, 1987, maintaining therein that the order for partition had already been passed, as such no further proceedings were required. An appeal by the respondents was preferred before the Collector who dismissed the same on the ground that no appeal against the order passed by the Assistant Collector on March 24, 1985, was filed but it was filed against the order dated December 24, 1987. Therefore, the order dated March 24, 1985 attained finality. Alternatively, it was held that even if the appeal was held to have been filed against that order, in that case too, the appeal was hopelessly time-barred. The Additional Commissioner in revision against the order passed by the Collector, ave the same reasons for dismissal of the revision petition. The order was upheld by the Member, Board of Revenue, on the same grounds. 6. In a review filed by the respondents, the orders by the Member, Board of Revenue and subordinate revenue Officers were set aside by accepting the same on the following rounds :-- (i) That it is essential to judge the legal validity of order dated March 24, 1985, passed by the Assistant Collector which does not satisfy the requirements of an order passed under the relevant provisions of law, as the same was passed without hearing the non-applicant-respondents, particularly without receiving any objections from them; and (ii) that the observations of the Revenue Officers with regard to non-filing of an appeal against the order dated March. 24,1985, are not based on facts. 7. Before adverting to the scrutiny of the impugned order, it would be appropriate to look for the provisions provided for the purpose, in the Azad Jammu and Kashmir Board of Revenue Act, 1993 which is reproduced as below : "8. Review of orders by the Board :--(!) Any person aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient cause desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require." An analysis of the above provisions reveals that the review is allowed almost on the similar grounds as provided in Order 47, Rule 1, CPC and Order XLVI, Rule 1, of the Supreme Courts Rules, which are usefully reproduced below : "Order 47, Rule 1, CPC. 1. Application for review of judgment.-(l) Any person considering himself aggrieved- (a) by a decree of order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of any appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when being respondent, he can present to the Appellate Court, the case on which he applies for the review." "Rule 1, Order XLVI of Azad J&K Supreme Court Rules. 1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code, and in a Criminal Proceeding on the ground of an error apparent on the face of the record." 8. The provisions providing for the review are an exception to the general rule of finality firmly embodded in judicial system. As the review provisions found in the Azad Jammu and Kashmir Board of Revenue Act, are almost similar to those provided in the Code of Civil Procedure and the Azad Jammu and Kashmir Supreme Court rules, therefore, it would be appropriate to seek guidance from the observations made by the Supreme Court of Azad Jammu and Kashmir on certain occasions. A review matter came under consideration before the Court in the case title Mst Sardar this Court in the order now sought to be reviewed, and this cannot be a ground for review." A similar view also prevailed in the case titled S. Sharif Ahmed Hashmi vs. Chairman Screening Committee, Lahore (1978 S.C.M.R. 367) in the following words : "But a judgment cannot be reviewed merely because a different view could have been taken. And further, even if we also assume that the petitioner's submission is correct, the contention that the impugned order was void and not voidable, cannot be established without elaborate arguments. But as pointed out by us a review can lie only when the alleged error in the judgment is an evident error which can be established without elaborate arguments." 9. Keeping in view the principle enunicated in he above quoted authorities, it can safely be concluded that the order passed by the Member, Board of Revenue, while reviewing the order earlier passed by his predecessor, is beyond the scope of review as provided in the above referred provisions of Azad Jammu and Kashmir Board of Revenue ct. The learned Member in his order has practically reheard the appeal and decided the points which were considered and decided as such. It was not within his jurisdiction to review on the ground of incorrectness of the view as he could not hear the appeai against his own judgment or the judgment of his predecessor, particularly when no error was disclosed, the case could not be re-opened as was done by him. In fact, all the elements of review were lacking in the case. The authority cited by the learned Counsel for the respondents with its distinct facts, is not applicable to the present case as the appeal by way of leave against the order passed by the High Court, was accepted, mainly on the ground of writ petition having been filed against a private party, was held to be not maintainable, as such it was held to be dismissed. Therefore, the above referred authority did not support the respondents' assertion. 10. In view of the above discussion, the order passed by the Member Board of Revenue, respondent No. 8, is held to be illegal and is of no legal effect which is hereby set aside and that of Board of Revenue dated November 28, 1993 by which order dated March 24, 1985 passed by the Assistant Collector was finally affirmed, is hereby restored by accepting the writ petition. (Aq. By.) Petition accepted.
PLJ 1997 (AJ & K) 22 PLJ 1997 (AJ & K) 22 Present : syed MANZOOR H. gilani and ch. muhammad taj, JJ. Rqja BASHm AHMAD KHAN, CHAIRMAN SERVICE TRIBUNAL, AJ&K, MUZAFFARABAD-Petitioner versus PRESIDENT AZAD JAMMU & KASHMIR & 3 others-Respondents Writ Petition No. 31 of 1996, dismissed in limine on 5.8.1996. (i) Azad Jammu & Kashmir Interim Constitution Act, 1974- Art 43 (2-A)-Appointment as Judge of High Court-Whether interruption in legal practice on account of being in service of court at time of appointment debars or disqualified person for appointment as Judge of High Court-Two categories of persons have been visualized by Constitution who are eligible to be considered for appointment as Judge in High Court; (i) Advocates; and (ii) Judicial Officers-Respondent was admittedly not in judicial service in manner prescribed by constitution as he has not served as District & Sessions Judge for three years anywhere, thus he stands ousted from category of judicial officersAs Advocate of High Court, respondent has been on roll of High Court for more than 18 years whereafter he was appointed in service of Government in different capacities and at time of appointment he was serving as Secretary Law to Government of Azad Jammu and Kashmir-Words used in Sub-section (3) of Section 43 of Constitution, are, prima facie, clear enough to state that aggregate period which should not be less than ten years as Advocate qualify person to be appointed as Judge in High Court, if he is otherwise eligible and considered for level by Chief Justice, President and Council- If person, as respondent in present case, after having undergone legal practice as Advocate for 18 years and pleader three years, is appointed as Judge in High Court on basis of qualification of Advocacy .earned before his appointment in other offices of Government, he does not stand disqualified simply for not being in actual legal practice at time of his appointment as Judge, if he is appointed on basis of aggregate legal practice, preceding his appointment in different Government offices-It is actual practice and experience at bar, not period of his enrollment only which is meant by provisions of Constitution-Held: Continuous practice of respondent as pleader from 24.1.1964 to 6.2.1.1967 and as Advocate of High Court from 7.2.1967 to 2.6.1985 qualified him to be appointed as Judge in High CourtHeld further : Interruption in legal practice on account of being in service of Government at time of his appointment does not debar or disqualify him for appointment as Judge in High Court. [Pp. 32, 33 & 35] A, B, C, E, F & G (ii) Azad Jammu & Kashmir Interim Constitution Act, 1974- Art 43-Term "Judge of High Courf-Connotation-Appointment of respondent as ad hoc Judge of Supreme Court for four months; and thereafter Chairman of Service Tribunal, Custodian and Secretary Law, being equal in status to Judge of High Court-It is not status which Govt. gives to a person, but knowledge of law, capability and integrity evaluated by Chief Justices on basis of their first hand knowledge dealing with Advocate or pleader with ten years actual practice which qualify person for appointment as Judge and when appointed with this background in accordance with provision of Constitution, one is said to be Judge of High Court-Judgeship in High Court starts from date when he is actually appointed as such in accordance with procedure of constitution and enters in office after oath of office is administered-Respondent being otherwise qualified to be appointed as Judge in view of his qualification of Advocacy, his alleged status equal to Judge of High Court as Chairman, Service Tribunal, Custodian of Evacuee Property and Secretary Law has no nexus with this present incumbency as these office neither fall in Judicial service nor in legal practice visualized by Constitution. [P. 35 & 36] H, I & J (ili) Azad Jammu & Kashmir Interim Constitution Act, 1974- Art 43-A--Appointment of Judge of High Court on recommendation of Acting Chief Justice-Whether this practice is not in accordance with provisions of Constitution-Question of-Time old executive practice of keeping on Acting Chief Justice in High Court and obtaining recommendations from them for appointment of Judges in Superior Courts did cast doubt and aspersions upon independence of judiciary and working of judicial system-But circumstances and relevant provisions of constitution under which respondent was appointed on recommendation of Acting Chief Justice are different from those under which Judges in Superior Courts in Pakistan, particularly in Punjab and Sindh were appointed and declared as unconstitutional~In Azad Kashmir, it is only most senior of other Judges of High Court who can be appointed as Acting Chief Justice-He is most senior of other Judges who infact is prospective Chief Justice and by any stretch of imagination and interpretation, he is only person who can be appointed as permanent Chief Justice, as even temporary arrangement excludes executive discretion of appointing any of other Judges of High Court, (except senior most) or Judge of Supreme Court, as permanent Chief Justice of High Court as under Pakistan Constitution-In case in hand, Acting Chief Justice of High Court, who recommended name of respondent was senior most of other Judges of High Court, who later on became permanent Chief Justice and he administered oath of office to respondent-There is no difference in recommendations of Acting Chief Justice of High Court and Chief Justice of Azad Jammu & Kashmir regarding fitness of respondents, name for being appointed Judge-Court is only to see whether respondent stood recommended by Chief Justice efore his appointment or not; it is immaterial who was Chief Justice or Acting Chief Justice in High Court or Supreme Court-Supreme Court being hereafter Chairman of Service Tribunal, Custodian and Secretary Law, being equal in status to Judge of High Court-It is not status which Govt gives to a person, but knowledge of law, capability and integrity evaluated by Chief Justices on basis of their first hand knowledge dealing with Advocate or pleader with ten years actual practice which qualify person for appointment as Judge and when appointed with this background in accordance with provision of Constitution, one is said to be Judge of High Court-Judgeship in High Court starts from date when he is actually appointed as such in accordance with procedure of constitution and enters in office after oath of office is administered-Respondent being otherwise qualified to be appointed as Judge in view of his qualification of Advocacy, his alleged status equal to Judge of High Court as Chairman, Service Tribunal, Custodian of Evacuee Property and Secretary Law has no nexus with this present incumbency as these office neither fall in Judicial service nor in legal practice visualized by Constitution. [P. 35 & 36] H, I & J (ill) Azad Jammu & Kashmir Interim Constitution Act, 1974- Art 43-A-Appointment of Judge of High Court on recommendation of Acting Chief JusticeWhether this practice is not in accordance with provisions of Constitution-Question of-Time old executive practice of keeping on Acting Chief Justice in High Court and obtaining recommendations from them for appointment of Judges in Superior Courts did cast doubt and aspersions upon independence of judiciary and working of judicial system--But circumstances and relevant provisions of constitution under which respondent was appointed on recommendation of Acting Chief Justice are different from those under which Judges in Superior Courts in Pakistan, particularly in Punjab and Sindh were appointed and declared as unconstitutional-In Azad Kashmir, it is only most senior of other Judges of High Court who can be appointed as Acting Chief Justice-He is most senior of other Judges who infact is prospective Chief Justice and by any stretch of imagination and interpretation, he is only person who can be appointed as permanent Chief Justice, as even temporary arrangement excludes executive discretion of appointing any of other Judges of High Court, (except senior most) or Judge of Supreme Court, as permanent Chief Justice of High Court as under Pakistan Constitution-In case in hand, Acting Chief Justice of High Court, who recommended name of respondent was senior most of other Judges of High Court, who later on became permanent Chief Justice and he administered oath of office to respondent-There is no difference in recommendations of Acting Chief Justice of High Court and Chief Justice of Azad Jammu & Kashmir regarding fitness of respondents, name for being appointed JudgeCourt is only to see whether respondent stood recommended y Chief Justice before bis appointment or not; it is immaterial who was Chief Justice or Acting Chief Justice in High Court or Supreme Court-Supreme Court being highest Court of State, appointment of Judge of High Court or Chief Justice there of in Supreme Court, is not violative of Constitution or malafide-Held : All three requirement visualized by constitution are fulfilled in case f ppointment of respondent-Petition dismissed in limine. [Pp. 37, 38, 39, 40,41 & 42] K, L, M, N, 0, Q & R PLD 1993 SC (AJ&K) 12. (iv) Azad Jammu & Kashmir Interim Constitution Act, 1974-- Art 43~Non appointment of Judicial Officer as Judge of High Court- Whether amounts to unequal treatment, discrimination and Judge if he is recommended by Chief Justice of High Court and Supreme Court aavis sjsasjl, [P. 41] P (v) Words and Pharases- The Oxford English Dictionary defines the word "aggregate" as follows : "Aggregate" Constituted by collection of many particles or units into one body, mass, or amount; collected, collective, whole, otal. A cause is the sum or aggregate of all such accidents .. as concur to the producing of the effect propounded. Every such belief represents the aggregate of all past experience-A multitude sidered as one aggregate-To gather into one whole or mass; to collect together, assemble; to mass." [P. 33] D Petitioner in person. Advocate General for Respondents Nos. 1 and 2. Date of hearing: 5.8.1996. order Syed Manzoor H. Gilani, J.-The petitioner through this writ petition under Sec. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 seeks the quashment of the appointment of respondent No. 4 as a Judge of the High Court and a direction to respondent No. 2 for a fresh advice for appointment of petitioner by revising tlje earlier advice sent in favour of respondent No. 4. 2. The brief facts which led the petitioner to file the present petition are that respondent No. 4 (to be referred hereinafter as respondent) was appointed as Judge of the High Court under Notification No. 3/19/95 A.D dated 29-11-1995. Respondent entered into his office on 7-12-1995 when he took the oath. The petitioner alleges that respondent was basically a practising lawyer at Rawalakot who acquired allotment of evacuee property in Hajira and Rawalakot areas and managed to get huge amount out of the property as compensation of the land left by the Hindus and invested the money in real estate in Islamabad. The petitioner further alleges that respondent on shifting his place of business to Muzaffarabad procured the assignment of Principal Prosecutor against the Politicians in the despotic ule of then President of Azad Jammu and Kashmir General Hayat Khan. The petitioner further alleges that respondent got first appointment as hairman Service Tribunal on 2-6-1985 on the wrongful recommendation of the Chief Justice of the High Court and was removed from the office of Chairman Service Tribunal vide otification No. Admin/S.II/ST(14)/89, dated 1-8-1989. According to the petitioner, respondent was again appointed as Custodian Evacuee Property vide Notification No. Admin/S.II/A-5/90, dated 30-9-1990 and thereafter transferred as Secretary Law vide Notification No. Admin/A-1(28)/S.V/90, dated 2-10-1990. The respondent, according to the petitioner, as performing the function of Secretary Law, ustice and Parliamentary Affairs at the time of his elevation as Judge of the High Court and, according to the petitioner, had ceased to be an dvocate after the appointment as Chairman, Service Tribunal and then as Custodian Evacuee Property and his subsequent transfer as Secretary Law. Accordingto the petitioner, respondent longwith him appeared in the test for the post of Sub Judge before the Public Service Commission, wherein the petitioner qualified the test, while respondent failed to qualify the test nd the petitioner while topping the list, was appointed as Sub Judge on 23-12-1969. The petitioner further alleges that the members of the Judicial Department have been completely denied he ight of appointment as Judges in the High Court and the last person who was appointed as Judge of the High Court from the cadre of Judicial Officers was Sardar Muhammad Ashraf Khan who has since retired as Judge of the Supreme Court. According to the petitioner, the denial of the right of appointment as a Judge in the High Court to the members of the Judicial service has aused worst kind of frustration and amounts discrimination and jeopardises the right of equality granted to the citizens of the State under the Constitution. According to him, the denial of these ights has adversely affected the career of the Judges of subordinate judiciary and has caused a lot of frustration as well as lack of initiative in the members of the Judicial Department..The etitioner further alleges that according to his information, respondent was placed at No. 2 in the service group next below his name in the panel sent to respondent No. 2 for advice. According to the petitioner, as respondent never enjoyed the status of a Judicial Officer, he could not be placed in the category of service group forhis appointment as a Judge f he High Court, nor could the Chairperson of the Council advise the appointment of respondent as Judge of the High Court. The petitioner also alleges that the appointment of respondent has been made on the recommendations of Acting Chief Justice of the High Court which is violative of the Constitution. 3. The respondents were ordered to file the para-wise comments upon he petition filed by the petitioner. All of them have filed the separate para wise comments upon the petition. It is admitted in the comments filed by all the respondents that respondent as an Advocate of the High Court qualified to be appointed as Judge of the High Court when he was appointed as Chairman of Service Tribunal and later on as Custodian and Secretary Law. It is also admitted in the comments that respondent has been appointed on the basis of recommendations of the Chief Justice of the High Court and Chief Justice of Azad Kashmir and on the advice of Kashmir Council. It is unanimously denied in all the comments that the appointment of respondent has been made out of the service group/Judicial Officers, however, respondent No. 2 in his comments has stated that respondent was rightly included in the service group because being eligible to be appointed as a Judge of the High Court in his capacity of Advocate and Pleader as provided by Sec. 43 (3) (a) of the Constitution. He also served as Chairman of the Service Tribunal, Custodian of Evacuee Properly, Ad hoc Judge of the Supreme Court and Secretary Law of Azad Kashmir. It is further stated that he was not considered for appointment as a Judge as Judicial Officer. It is further stated that it is not necessary that at the time of appointment as a Judge, one should be an Advocate, but it is the requirement of the Constitution that a person should have been an Advocate for a period or periods aggregating not less than ten years. It is also stated in the comments that no quota is fixed in the Constitution for judicial officers to be appointed as Judge of the High Court. The comments filed on behalf of the President Azad Jammu and Kashmir through its Secretary state that a panel was sent to the Council by the President on the basis of consultation with the Chief Justice of Azad Kashmir and Chief Justice of High Court without preferring any in the panel, over the other. Similar comments are furnished by the Secretary Law stating that the panel sent to the Council Secretariat was based on the consultation with the Chief Justice of Azad Kashmir and Chief Justice of High Court and it was infact a list of the eligible candidates qualified for being appointed as Judge of High Court without any distinction of service or Advocates class or any inter se preference. 4. Respondent No. 4, however, has filed detailed comments which besides including the above factual and legal position of the case, states that the remained Pleader from 24-1-1964 to 6-2-1967 and an Advocate of the High Court from 7-2-1967 to the date of joining the service as Chairman Service Tribunal i.e. 2-6-1985. It is further stated by respondent that he was enrolled as an Advocate on 7-11-1975 and remained as an Ad-hoc Judge of the Supreme Court from 6-3-1985 to 21-5-1985 and again from 16-11-1986 to 15-12-1986. It is further stated in the comments by respondent that the criteria for appointment as a Judge of the High Court is laid down in the Constitution and no service rules for such an appointment are framed afresh. The respondent being qualified for the appointment was rightly appointed on the advice of the Council, and High Court has no power, to substitute its wisdom for the discretion and the powers vested in the Council and the President. It is further stated in the comments that there is no quota fixed for any service group or Advocates for appointment as a Judge in the High Court, neither is the office meant for promotion of any service class. It is further stated by the respondent that he was granted the status equivalent to the status of a Judge of the High Court on 1-7-1988 when the (petitioner) was hardly in B-19. The respondent has further stated that he was twice appointed as ad hoc judge in the Supreme Court once before his appointment as the Chairman Service Tribunal and again in 1986. It is further stated that the status of the Chairman of Service Tribunal and Secretary Law is equal to that of the Judge of the High Court. Respondent has attacked upon the qualification, conduct and attitude of the petitioner as well, which is not relevant for the disposal of the petition, hence not to be reproduced. Respondent also filed the additional comments when the petitioner was allowed the amendment in the petition, whereby a plea was taken that the respondent was recommended by the Acting Chief Justice of the High Court and such a recommendation/consultation being violative of the Constitution, the appointment of respondent is without lawful authority. In the additional comments, respondent has stated that the Acting Chief Justice of the High Court who had recommended him for appointment as Judge of the High Court was senior most Judge of the High Court, who later on became permanent Chief Justice of the High Court, thus there is no infirmity in the recommendations made by the Acting Chief Justice. It is also stated in the additional comments that he was recommended twice earlier for Judgeship firstly by Sardar Muhammad Ashraf Khan as Acting Chief Justice in 1988 and then by Mr. Abdul Majeed Mallick the then Chief Justice in 1993. The respondent has further stated that as the appointment of a Judge in the High Court is made on the advice of the Azad Jammu and Kashmir Council which is very predominant factor in the appointment of the Judges and the respondent having been thrice recommended by the Chief Justice of Azad Jammu and Kashmir whose views get primacy, his appointment is lawful as a Judge of the High Court. 5. We have heard the petitioner in person as well. The petitioner during the course of arguments raised the following points: That the respondent at the time of his appointment as a Judge of the High Court was never a Judicial Officer nor an Advocate, thus was not qualified to be recommended nor eligible to be appointed as a Judge of the High Court; and That at the time of appointment of respondent as a Judge of the High Court, the office of the Chief Justice of High Court was manned by Acting Chief Justice who recommended respondent for appointment and as an Acting Chief Justice, he was not authorized to recommend him. The petitioner cited in this behalf the famous case decided by the Supreme Court of Pakistan reported as "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and 6 others v. Federation of Pakistan and 27 others" (PLJ 1996 SC 882) (Hereinafter to be called as Judges case). The alternate argument of the petitioner is that as no judicial officer has been appointed as a Judge of the High Court, the provisions of the Constitution are frustrated and the members of the subordinate judiciary are not equally treated as are discriminated. The petitioner further contended that the competent authority is bound to record reasons when a person out of the panel is picked for appointment, while no reason is recorded for the appointment of respondent out of the large panel. 6. We have considered the arguments advanced at bar, perused the para-wise comments filed by the respondents, the personal file of the respondent and have gone through the report of the Judges case referred above. Before discussing the points raised by the petitioner, the scheme of appointment of the Judges and the acting Chief Justice in the High Court as regulated by the Azad Jammu and Kashmir Interim Constitution Act, 1974 may be reproduced here: "43. High Court: (1) There shall be a High Court for Azad Jammu and Kashmir , hereinafter called the High Court, which shall consist of a Chief Justice and such members of other Judges as may be prescribed by an Act of the Assembly. (a) .................................................................................... (b) .................................................................................... (c) .................................................................................... (2) .................................................................................... (2-A) A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation: (a) With the Chief Justice of Azad Jammu and Kashmir, and (b) Except where the appointment is that of Chief Justice, with the Chief Justice of the High Court. (3) (A person shall not be appointed) as a Judge of the High Court or Advocate General unless:-- (a) He has for a period, or for periods aggregating, not less than then years, been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan. Provided that the term 'High Court' here in shall include a High Court or an equivalent Court that existed at any time before the 14th day of August, 1947; or .(b) He has for a period of not less than then years held a Judicial Office out of which not less than three years shall have been as District and Sessions Judge. (4) Before he enters upon his office, the Chief Justice of the High Court shall make before the President, and an other Judge of the High Court shall make before the Chief Justice, an oath in the form set out in the First Schedule. (5) (6) (7) (a) 00 (8) (9) "43-A Acting Chief Justice : At any time when :-- (a) The office of Chief Justice of High Court is vacant; or (b) The Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the senior most of the other Judges of the High Court to act as Chief Justice". 7. The scheme of the Constitution, stated above, visualizes that the order of appointment of a Judge in the High shall be issued after the approval of the President when he is so advised by the Council on the basis of consultation with the Chief Justice of Azad Kashmir and the Chief Justice of High Court (if it is not the appointment of Chief Justice himself). The common practice which has been in vogue is that when the appointment of a Judge in the High Court is required, the Chief Justice is requested by the Government/President to furnish the panel of the persons qualified and eligible to be appointed as a Judge of the High Court. The learned Chief Justices send the panel of the persons qualified and eligible for such appointments to the Government or to the President to process the case who send it to the Council for its approval. The Council out of the list furnished by the honourable Chief Justices and forwarded by the President, advice the appointment of the Judge or Judges as the case may be, on which the formal Government Notification is issued by the Law Secretariat of Azad Jammu and Kashmir Government after approval/order of the President. The eligibility, integrity, suitability, fitness and becomingness of a person to be appointed as a Judge of the High Court is and has to be assumed, when the learned Chief Justices include a qualified person in the list of the persons eligible and suitable for appointment as a Judge. The individual characteristics and qualities of a person recommended by the Chief Justices are rarely discussed and ordinarily a person concurrently included in the list by the Chief Justices is assumed to be possessing all the qualities for being appointed as a Judge and the competent authority has to act accordingly. It is opined in the Judges case by the learned Chief Justice of Pakistan, Justice Syed Sajjad Ali Shah as follows: "...The Chief Justice of the High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but must be given due weight. "Consultation" in the'scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive. If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word "Consultation" is used, which is different from 'consent', opinion of Chief Justice can be ignored. If the opinion of the Chief Justice is ignored, then the President/ Executive should give reasons which could be juxtaposed with reasons of the Chief Justices to find out as to which reasons are in public interest". 8. There may of course be an occasion where any of the dignatory concerned with the appointment of a Judge may have his own reservations regarding a nominee on the basis of his knowledge in view of bis field of functioning e.g. the opinion of Chief Justice regarding the professional competence, conduct, integrity, fitness, suitability, uprightness etc. of a person proposed by Government/President or the Council and alters information regarding the character, antecedents, loyality to the State etc. regarding the nominee of Chief Justices. Justice Manzoor Hussain Sial in the Judges case comprehending the situation has opined as follows : "...The Chief Justice of the High Court and the Chief Justice of Pakistan if give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that candidate cannot be appointed and in this way the opinion of the Chief Justice cannot be ignored and due weight is to be given to this opinion, the extended meaning given to the word "consultation" is mainly for the reason that it secures the independence of Judiciary. The due deference is to be attached to the opinion of the Chief Justice of Pakistan and the Chief Justice of High Court due to their exalted position as envisaged in Islam, so that the appointment of the Judges are made in a transparent manner on the basis of the merits alone. In Government of Sindh vs. SharafFaridi (PLD 1994 SC-105) this Court while dealing with the subject of independence of Judiciary held : "that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reasons; and "that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature". This object can only be achieved if Judges of integrity having
sound knowledge in law are appointed on the basis of the expert opinion given by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. The word "consultation" used in the relevant Article of the Constitution relating to Judiciary must be read in its context and being a mandatory requirement has to be effective, meaningful, purposive and consensus oriented, to have best persons appointed as Judges of the Superior Courts and to secure the independence of Judiciary". Under such circumstances the consensus has to be worked out amongst them, as the nominee after appointment is entrusted with the task of upholding the onstitution, rule of law and ideological frontiers of the State visualized by the Constitution and law; he becomes the justice of the nation and State; and his judgments become law and roperty of the nation and State. However, if in the equally placed nominees in the list/panel of the qualified persons, there is unanimity amongst all concerned in the process, any of he persons from the penal may be appointed. | 9. Two categories of the persons have been visualized by the Constitution who are eligible to be considered for appointment as a Judge in the High Court: (i) Advocates; and (ii) Judicial Officers. As for the Advocates are concerned, one who has been an Advocate or a Pleader of the High Court for a period or periods aggregating not less than ten years, is qualified to be appointed as a Judge in the High Court and a Judicial Officer with then years service, out of which he must have been a District and Sessions Judge for three years, is qualified to be appointed as a Judge in the High Court. 10. There is a marked and visible distinction in professional practice of Advocates and service of the Judicial Officers qualified to be appointed as a Judge in the High Court. As for the Judicial Service is concerned, a person must have been in the continuous service of ten years with the experience of a District and Session Judge provided in the Constitution, while in case of Advocate, the aggregate period of Advocacy or Pleadership amounting to then years qualifies one for the slot. The absence of word aggregate" in the case of Judicial service in the provision, suggests the continuous service of ten years for Judgeship, while the inclusion of word "aggregate" in case of Advocate does not exclude a person who has ten years actual practice as Advocate even though not continuous, but complete in aggregate. 11. Respondent was admittedly not in the Judicial service in the manner prescribed by the Constitution as he has not served as istrict and Sessions Judge for three years anywhere, thus he stands ousted from the category of Judicial Officers. 12. It is clear from the perusal of the personal file of the respondent maintained by the High Court (copy of his complete iodata duly attested by the Deputy Registrar a d verified by us is placed on record and marked'as Annex-CR) reveals that he was nrolled as a Pleader on 23-1-1964 and as an Advocate of the High Court on 7-2-1967 and as an Advocate of the Supreme Court on 7- 1-1975 and inducted in Government service as Chairman Service Tribunal on 2-6-1985. As an Advocate of the High Court, espondent has been on the roll of High Court for more than 18 years whereafter he was appointed in the service of Government in different apacities and at the time of his appointment he was serving as Secretary Law to the Government of Azad Jammu and Kashmir . 13. The question raised in the petition and agitated at bar by the petitioner is that the respondent is disqualified from being onsidered as an Advocate and not qualified to be appointed as a Judge of the High Court as he was not an Advocate when appointed as Judge. The words used in Sub Sec. (3) of Sec. 43 of the Constitution are, prima facie, clear enough to state that an aggregate period which should not be less than ten years as Advocate qualify a person to be appointed as a Judge in the High Court, if he is otherwise eligible and considered of the level by the Chief Justices, President and the Council. The word "aggregate" is defined in the Chambers 20th Century Dictionary as "to collect into a mass or whole: to amount to: to accumulate: formed of parts that combine to make a whole: a total: a collection of elements having a common property that identifies the collection". The Oxford English Dictionary defines the word "aggregate" as follows:"Aggregate" 'Constituted by the collection of many particles or units into one body, mass, or amount; collected, collective, whole, total. A cause is the sum or aggregate of all such accidents..as concur to the producing of the effect propounded. Every such belief represents the aggregate of all past-experience. A multitude considered as One Aggregate. To gather into one whole or mass; to collect together, assemble; to mass". To word "aggregate", thus includes in itself the interruption and discontinuance of practice and its resumption and following up continuously or by intervals. It is the collective and sum total of the total period which has to be counted. The interruption or discontinuance in the practice after the completion of ten years of period as an Advocate or Pleader does not disqualify or wash away the qualification already earned by an Advocate to be appointed as a Judge of the High Court. The word "has been" means the 'present perfect' not the 'present continuous' Advocacy. At the time of appointment, the person is required to have perfected the ten years practice as an Advocate. The words used in the Section visualize and convey the sense that ten years experience as an Advocate is a qualification earned in legal practice. If a person, as respondent in the present case, after having undergone the legal practice as Advocate for 18 years and Pleader as three years, is appointed as a Judge in the High Court on the basis of his qualification of Advocacy earned before his appointment in other offices of the Government, he does not stand disqualified simply for not being in actual legal practice at the time of his appointment as a Judge, if he is appointed on the basis of aggregated legal practice, preceding his appointment in different Government offices. 14. However, it does not mean that a person by virtue of his simple enrolment as an Advocate or Pleader of High Court for a period or periods aggregating more than ten years is also eligible for such an appointment. It is the actual practice and experience at bar, not the period of his enrolment only which is meant by the provisions of the Constitution. It is held in the Judges case by Justice Sajjad Ali Shah, the learned Chief Justice of Pakistan that: "Under Article 193, the qualifications are specified for appointment as Judge of a High Court. One requirement is that an Advocate is eligible to be elevated only when he has been advocate of the High Court for ten years, the question arose as to whether it is necessary that such advocate must have put in ten years of active practice in the High Court or mere enrolment is sufficient. We are of the view that for this requirement ten years' active practice in the High Court is necessary and mere enrolment as advocate of the High Court is not enough if the advocate concerned has not practised in the High Court but has been doing some other job or business and was not in active practice". 15. Justice Ajmal Mian has opined as follows in the Judges case in this behalf: "If we were to read carefully sub-clause (a) of clause (2) of Article 193 of the Constitution, it becomes evident that 10 years' period referred to in sub clause (a) thereof relates to experience and not the period of enrolment. Under clause (b) thereof not less than 10 years period is provided for civil servants for being eligible for consideration for appointment as a Judge of the High Court and out of the above 10 years, it has been provided that for a period of not less than three years, he must have served as or exercised the functions of a District Judge in Pakistan. The above sub clause (b) speaks of actual experience in service and, therefore, if it is to be read with sub clause (a), it becomes evident that sub clause (a) also refers to be experience. In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by sub clause (a) of clause (2) of Article 193, this issue will not be justicible before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not? It is a matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan." while Justice Manzoor Hussain Sial has opined as follows : "The eligibility of an advocate for appointment as Judge of the High Court, as envisaged under Article 193 of the Constitution is that he has for a period of, or for periods aggregating, not less than ten years, been an advocate of High Court. The question arises whether the period of ten years is to be construed from the date of his enrolment alone or that he is required to put in 10 years practice as an Advocate. Whereas sub clause 2 (b) of Article 193 prescribes a period not less than 10 years to be a Member of a civil service prescribed by law, and has, for a period of not less than three years served as or exercised the functions of a District Judge in Pakistan, to become eligible for a appointment as Judge of the High Court. It, therefore, necessary follows that this clause has to be read with clause (a) and experience of a particular period in the profession is necessary for the advocate to become eligible for the appointment of a High Court, the suitability of the advocate on the basis of the experience for appointment as Judge of the High Court shall, however, has to be determined by the Chief Justice of the High Court, who has to initiate the panel of the candidates for appointment as Judges of the High Court to the Chief Justice of Pakistan for ultimate recommendation for the appointment of suitable persons as Judges of the High Court. Mere enrolment of an advocate for a period of 10 years is therefore not sufficient to make him eligible for his appointment as Judge of the High Court." 16. The continuous practice of respondent as Pleader from 24-1-1964 to 6-2-1967 and as an Advocate of the High Court from 7-2-1967 to 2-6-1985 qualified him to be appointed as a Judge in the High Court and interruption in legal practice on account of being in the service of the Government at the time of his appointment does not debar or disqualify him for appointment as Judge in the High Court. The contention of the petitioner that the respondent not being in actual and continuous practice as Advocate when he was appointed as the Judge of the High Court, is devoid of substance. 17. However, the contention of the respondent as stated in the comments that he was appointed as ad hoc Judge of the Supreme Court for a few months; and thereafter as Chairman of the Service Tribunal, Custodian and Secretary Law, later three being equal in status to the Judge of the High Court do not confer any right to be treated him as a Judge of he High Court neither can so be deemed. A person appointed in accordance with the procedure laid down in the Constitution is a Judge of the High Court and he only can be so deemed, not a person irrespective of the fact what pay, terms and conditions he is showered with. The appointment by the Government of a person in different offices under the nomenclature or styled in the way to be said as equal to the status of the Judge of the High Court, is a misnomer, and against the spirit of the Constitution. No such appointment confers any right in a person to be considered or appointed as a Judge in the High Court. It is not the status which the Government gives to a person, but the knowledge of law, capability and integrity evaluated by the Chief Justices on the basis of their first hand knowledge dealing with an Advocate or Pleader with ten years actual practice which qualify a person for appointment as a Judge in the High Court and when appointed with this background in accordance with the provisions of the Constitution, one is said to be a Judge of the High Court. 18. Service in any Government office, however exalted it might be does not confer or create any right in anybody for being considered for appointment as a Judge in the High Court, neither has such high appointment anything to do with his office of Judgeship, as the Judgeship in t | the High Court starts from the date when he is actually appointed as such in accordance with the procedure of the Constitution and enters in the office after the oath of office is administered. 19. The word "has been or is qualified to be a Judge of the High Court" used in some sub-constitutional laws as a requirement for appointment against some office, does not mean that a person appointed to that office can be deemed or treated as a Judge of High Court or appointed as such without fulfilling the requirements of Constitution. hat it means is that in view of the nature of responsibilities visualized by the law, a person of the qualification, level, maturity and experience becoming of a Judge of . the High Court, should be appointed to that office. It will remain a service under the Government and to be governed by the service laws applicable to the Government servants. Any order designating a person equal in status or with the terms a conditions of a Judge of High Court, under a subonstitutional law, is a subversion of Constitution. Dealing with the similar proposition when Additional Judges of the High Court were authorized by a sub-constitutional legislation to be appointed under an amendment in the Courts and Laws Code 1949, the Supreme Court of Azad Jammu and Kashmir in the case reported as Ghulam Mustafa Mugal v. Azad Government and others (1993 SCR-131) held as follows: ...An additional Judge of High Court is a creation of the Constitution Act and a sub-constitutional provisions cannot create another category of Additional Judges as was attempted to be done by the Ordinance mentioned above. The Ordinance was an obvious attempt to amend the Constitution Act and it is unfortunate that it should have been promulgated at all. It is satisfying to note that it was withdrawn. The Ordinance being ultra vires of the Constitution shall be deemed to be nonexistent ab initio." 0. The outcome of the above discussion is that the respondent I being otherwise qualified to be appointed as a Judge in view of his i qualification of Advocacy, his alleged status equal to Judge of the High Court J :as Chairman Sewice Tribunal, Custodian of Evacuee Property and Secretary JLaw has no nexus with this present incumbency, as those offices neither fall i in the Judicial service nor in the legal practice visualized by the Constitution. 21. The second contention of the petitioner as argued at bar and raised in the pleadings through amendment is that the appointment of respondent is made on the basis of ecommendations of the Acting Chief Justice of the High Court which is held not to be in accordance with the provisions of Constitution in the Judges case referred above. There is no doubt that a golden rinciple of law has been laid down in the Judges case by the Supreme Court of Pakistan whereby independence, authority, dignity and integrity of the judiciary is ensured by the interpretation of he Constitutional provisions regarding the appointment of the Judges in the superior Courts under which the recommendations of the Chief Justices of the High Courts and Supreme Court, as the case may e, shall ordinarily have primacy over the executive discretion. The time old executive practice of keeping on Acting Chief Justices in the High Courts and Supreme Court and obtaining recommendations from hem for appointment of the Judges in the Superior Courts did cast doubt and aspersions upon the independence of judiciary and working of the judicial system. The permanency in the nature of the head of nstitution, a consultee of fundamental importance, in case of appointment of Judges is a sine qua non for the smooth sailing, uprightness and independent working of the institution. But the circumstances and he relevant provisions of Constitution under which the respondent was appointed on the recommendations of Acting Chief Justice are different from those under which the Judges in the uperior Courts in Pakistan, particularly in Punjab and Sindh were appointed and declared as unconstitutional. 22. The provisions of the Constitution in Azad Jammu and Kashmir governing the appointment of Acting Chief Justice are almost totally different from the corresponding provisions of the Pakistan Constitution except the eventualities under which the Acting Chief Justice can be appointed. Both are reproduced below: "43-A. Acting Chief Justice :-At any time when :- Azad Kashmir (a) The office of Chief Justice of High Court is vacant; or (b) The Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the Senior most of the other Judges f the High Court to act as Chief Justice." Article 196 of the Constitution of Pakistan, 1973 states : "196. Acting Chief Justice. At any time when:-- (a) the office of Chief Justice of a High Court is vacant, or (b) the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint one of the other Judges of the High Court, or may request one of the Judges of the Supreme Court, to act as Chief Justice". 23. A perusal of the report of the Judges case particularly note 16 and 17 of Justice Ajmal Mian's opinion shows that the Judges of the Supreme Court of Pakistan were appointed as Acting Chief Justices in the High Courts of Lahore and Karachi who recommended the names of different persons for appointment as the Judges in the High Courts and in some cases it is perceived from the perusal of the judgment that some appointments were made without the recommendations of Chief Justice of Pakistan which were held to be unconstitutional by the Supreme Court and it was rightly held so. In Azad Kashmir, as stated above, it is only the most senior of the other Judges of the High Court who can be appointed as Acting Chief Justice. Thus it is the most senior of the other Judges who infact is the prospective Chief Justice and by any streth of imagination and interpretation, he is the only person who can be appointed as permanent Chief Justice, as even the temporary arrangement excludes the executive discretion of appointment any of the other Judges of the High Court, (except the Senior Most) or a Judge of the Supreme Court, as the permanent Chief Justice of High Court, as under the Pakistan Constitution. In the case in hand, the Acting Chief Justice of the High Court who recommended the name of respondent was the senior most of the other Judges of the High Court, who later on became the permanent Chief Justice and he administered the oath of office to the respondent. There was no difference in the recommendations of the Acting Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir regarding the fitness of the respondent's name for being appointed as a Judge. The rule of law laid down in the Judges case, therefore, does not strictly apply in this case, as in that case, as said above, the offices of the Chief Justices of the High Courts in Karachi and Lahore were occupied by the Judges of the Supreme Court as the Acting Chief Justices of High Courts. 24. The working system of the appointment of Judges in Azad Kashmir has also to be kept in view under the circumstances. Here, the case is processed at the level of Chief Justices and Azad Kashmir Government, which also includes the President as well for this purpose, and then sent to the Council for advice which is headed by the Prime Minister of Pakistan as its Chairman/Chairperson. Due to the preoccupation of the Chairperson in the national and international affairs of Pakistan, it definitely takes time to attend the affairs of Azad Kashmir. We are in know of the fact that present Acting Chief Justice of the High Court being the most senior of the other Judges is still Acting as Chief Justice since the retirement of his predecessor in March this year, while under the rule of law laid down in the Judges case, the matter of his permanent appointment had to be completed within 30 days, which have since expired. The acting nature of appointments of Chief Justices in Pakistan is finalized by appointment of most senior of the other 1997 AJK39 Judges as Chief Justices within the period stipulated by the Supreme Court verdict, but as said above, perhaps due to preoccupation of the Chairperson of Azad Jammu & Kashmir Council, the spirit of rule of law still waits implementation here. Same happened with the retired Chief Justice, however, the Judges case ruling was not in filed then. In this background of the matter, the respondent cannot be punished for inaction of the executive agency, when the judicial and executive agencies of Azad Jammu and Kashmir had completed their task of concurrently recommending the respondent. 25. Besides above, the rule of law laid down in the Judges case is restricted by the Court itself, as it records "to the appointments made during the present Government and this exercise would not go beyond that". Moreover, the Judicial precedents apply prospectively not to the cases past and closed as held in the Judges case. However, the future appointments shall be governed by the Judges case ruling otwithstanding any exegency. 26. la the additional co ments filed by the respondent much stress is laid upon the fact that the respondent was recommended thrice: first by Sardar Muhammad Ashraf Khan Acting Chief Justice in 1988 when the Chief Justice of the High Court was appointed as ad hoc Judge in the Supreme Court; secondly by retired Chief Justice Abdul Majeed Mallick in 1993 when he as Chief Justice, and thirdly by Chief Justice retired Sherzaman Chaudhry in 1994 when he was Acting Chief Justice of the High Court. The Court is only to see whether respondent stood recommended by the Chief Justices before his appointment or not; it is immaterial who was the Chief Justice or the Acting Chief Justice in the High Court or Supreme Court. Transactions which are past and closed, cannot be reopened under the new circumstances. 27. The respond nt has through the additional comments recorded the following para :-- "The Supreme Court of Pakistan has declared the recommendation of Acting Chief Justice as invalid only in those cases where the permanent Chief Justices were temporarily sent to Supreme Court as ad hoc Judges or to the Shariat Court of Pakistan. It was unfair because there was a doubt that the permanent incumbents were shifted from the High Court with a purpose to get recommendations for the appointment of Judges in the High Court from the person appointed on the acting basis as Chief Justice of the High Court". The above para referring to Judges case is factually incorrect and constitutionally misperceived. None of the learned Judges who wrote the famous judgment in the Judges case has recorded recommendations of Acting Chief Justice as invalid on the ground where permanent Chief Justice was temporarily sent to the Supreme Court as ad hoc Judge. What is held in the judgment is that transfer or appointment of a sitting Chief Justice of High Court or a Judge thereof in Federal Shariat Court without his consent is violative of the Constitution. Supreme Court being the highest Court of the State, appointment of a Judge of High Court or Chief Justice thereof in O the Supreme Court, if qualified to be a Judge of Supreme Court, is not violative of the Constitution or malafide, as a Judge of High Court or Chief Justice so appointed is elevated in status, pay, powers and tenure etc, be it the ad hoc or permanent appointment in the Supreme Court. It would, however, be unfair and unconstitutional if most senior of the other Judges of the High Court is not appointed to act as Chief Justice of High Court if sitting Chief Justice of the High Court is appointed as Judge, whether permanent or adhoc, of the Supreme Court. The words of Sub-Section 8-A (h) of Sec. 42 of Azad Kashmir Constitution allow the appointment of sitting Chief Justice of High Court as ad hoc Judge in the Supreme Court while the provisions of Article 182 (b) of Pakistan Constitution, prima fade, do not allow so. The relevant provisions are reproduced below: Azad "42(8-A): If at any time it is not possible for want of Kashmir quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Azad Jammu and Kashmir may, in writing: (a) (b) With the approval of the President and except in the case of Chief Justice, with the consent of the Chief Justice of High Court, require a Judge of that Court who has held office as such Judge for a minimum period of three years" (to attend sitting of the Supreme Court as ad hoc Judge ) Article 182 (b) of Pakistan Constitution: "18. Appointment of ad hoc Judges : If at any time if is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reason it is necessaiy to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,-- (a) ................................................................................. (b) with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court, to attend sitting of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court". 28. The third contention of the petitioner that no judicial officer has been appointed as a Judge in the High Court since long, as such they are treated unequally which amounts to discrimination, is not justiciable. Being a judicial officer with the experience stipulated in the Constitution is a qualification for being considered for appointment as a Judge of the High Court, not a right to be so appointed and the same is equally good for the Advocates with the prescribed qualification. Appointment as a Judge in the High Court is not a promotion to be claimed as a matter of right by the senior Judicial officers or senior Advocates. It is the power of the competent authority to appoint any person as a Judge if he is recommended by the Chief Justice of High Court and Supreme Court and advised by the Council. However, if the competent authority appoints a person not qualified, or not recommended by the Chief Justices or if the Council advises the appointment of a person not recommended by the Chief Justices and not qualified, the matter is justiciable and appointment is liable to be quashed as held in the Judges case. 29. All the three requirements visualized by the Constitution are Q fulfilled in the case of appointment of respondent i.e. the concurrent recommendations of the Chief Justices, advice of the Council and the order of the President. What has to be probed into in a writ of quo-warranto is illustriously laid down in the case of Manzoor Hussain Gilani v. Sain Mullah and others (PLD 1993 SC AJ&K 12): "In a writ of quo warranto, the concerned office holder is called upon to show under what authority of law he was holding the office and he, in answer, has to show his appointment order, the law under which the same was made, the competency of authority which made the appointment and the same was made in accordance with law directly related to the appointment in question". "It may be stated that it is well settled principle of law that the superior Courts insist that in case of writ of quo warranto which is purely a discretionary matter, the Court should closely scrutinise the averments made in the writ petition before issuing notice and it should not be issued as a matter of routine. We find support in cases reported as Dr. Kamal Hussain v. Muhammad Siraul Islam PLD 1969 SC-42 and Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC AJ & K-41. In case titled Kh. Noorul Amin v. Sardar Muhammad Abdul Qayyum Khan PLA No. 90 of 1991, his Court had the occasion to examine the principles which should be kept in mind while issuing a rule in a writ . of quo warranto, it was observed that a rule nisi cannot be issued as a routine. The following observations are relevant: "If initially, he makes out hisprima facie case, the burden of proof would shift to the opposite side but if the aterial facts are not pleaded by the petitioner on which he bases his claim or the same are not sufficient enough to make aprima facie case in favour of the petitioner, it cannot e said that a rule nisi can be issued as a matter of routine. The nonetitioner would be called upon to show that he was holding the office under what authority of law would rise only if, in the first instance, the petitioner makes out aprima facie case that he was not so holding the office. The two cases from Indian Jurisdiction cited by Kh. Noorul min do not lay down any different rule " 30. The present case being filed by an aspirant for the office of Judgeship of High Court on account of his being qualified for the appointment and being recommended o by the Chief Justices, against the person, who is appointed as a Judge from the same panel, we thought it proper to call for the para-wise comments from the concerned authorities, besides the real respondent in the case, in view of the directions of the Supreme Court in the above referred case i.e. PLD 1993 SC AJ&K 12, wherein it is held that: "The view of the High Court might have been different if before admitting the writ petition for hearing, a notice under sub rule (3) of rule 33 of the High Court Rules would have been issued to the appellant and an opportunity had been afforded to the appellant as to why the writ petition should not be admitted for regular hearing. Keeping in view the nature of the functions of a Judge of a superior Court, it is all the more necessary to adhere to the spirit of the aforesaid rule in case of a writ of quo warranto. Needless to say, in our society if notices of quo warranto are issued against Judges of a superior Court as a matter of routine, it is likely to encourage the vexatious proceedings against the Judge so as to harass them rather than seeking redressal of genuine grievances. In light of the above conclusions, we are of the opinion that the High Court was not justified in issuing the notice in the case." 31. After perusal of the para-wise comments of the concerned respondents and compassionate consideration of the case, we feel advised not to admit the petition for regular earing for the above stated reasons. The petition is, therefore, dismissed in limine. (B.T.) Dismissed in limine
PLJ 1997 AJK 43 PLJ 1997 AJK 43 Present -. khawaja mohammad saeed, actg, C. J., syed manzoor hussain gilani, ch. muhammad taj, and muhammad siddique farooqi, JJ. Sahibzada MUHAMMAD ISHAQUE ZAFFAR-Petitioner versus SPEAKER, LEGISLATIVE ASSEMBLY AJK & 3 others-Respondents W.P. No. 96 of 1996, decided on 22.5.1996. (i) Azad Jammu Kashmir Interim Constitution Act, 1974 (VIII of 1974)-- S. 9--President-Resignation of-Reason-Non-assigning of-Privilege-- President (of AJK) u/s 9 of Constitution has privilege to resign from his office and it is not necessary for im to assign any reason for his resignation. [P. 50] A (ii) Azad Jammu Kashmir Interim Constitution Act, 1974 (VIII of 1974)-- -Ss. 9 & 5(2) and AJK President Election Rules, 1985-President-- Office of--Casual vacancy-Filling in-Process for-The Chief Election Commissioner is obliged to conduct election to office of President and rest of procedure has to be same as visualized for election to office of President by Sec. 5 and AJK President Election Rules, 1985-No distinction in provisions of Constitution regulating the holding of election to office of President, whether by way of general Election to office after expiry of term of President or where casual vacancy in office of President occurs. [P. 52&531E&F (Hi) Election dispute- -Whether ex-President of Azad Jammu and Kashmir is debarred or disqualified for being a candidate for office of President-Quetion of-A person who is holding or has held office of President immediately before commencement of new election to the office of President, held, not to be debarred or disqualified for being a candidate for office of President. [P. 50] B (iv) Election dispute-- -Ex-President of AJ&K-Candidature of President AJ&K-Challenge to- Motivated resignation and mata/Ide--Grounds of-If a person under law is qualified to be a candidate for any election and is not by any specific prohibition debarred, held, he cannot be deprived of such a right simply for the reason that a person does not want him to be candidate for office or to see him in office. Grounds, if treated as grounds, held further, are to be taken up before authority at time of scrutiny of nomination papers, and in case of his failure to decide matter lawfully, then same may be reviewed by High Court in its constitutional jurisdiction. [P. 50] C & D (v) Azad Jammu and Kashmir High Court Rules-- Rule 32(2)--Non-compliance of--Effect--Under Rule 32(2) certified copy of impugned order not accompanied with writ petition-Petition, held, not maintainable and liable to be dismissed. [P. 54] G Rqja Muhammad Anawr Khan, Advocate for the Petitions. M/s Muhammad YusufKhan, Advocate General, Muhammad Hanif Khan, G.M. Mughal, and Muhammad Ashfaq Kiyani, Advocates for the respondents. Date of decision : 22-5-1996. order Syed Manzoor Hussain Gilani, J.-Through this petition under Section 44 of the Interim Constitution Act, 1974, the petitioner has challenged the Notification issued by respondent No. 2, the Election Commissioner, on May 17, 1996 and holding of election on May 22, 1996 to the office of the President of Azad Jammu and Kashmir. A pre-admission notice was served upon the respondents on May 19, 1996 and the petition came up with the comments of the respondents on May 20,1996. On may 20, 1996, the learned Counsel for the petitioner in the mid of his arguments, moved an application for amendment in the writ petition on account of which the petition was adjourned to May 21, 1996. The learned Counsel for one respondents filed objections to the amendment application. The arguments on the amendment application were heard and amendment was allowed on which the learned Counsel for the petitioner placed on record the amended petition at about 1-30 P.M. 2. The facts alleged in the amended petition are that the Election to the Legislative Assembly of the Azad Jammu and Kashmir took place on June 29, 1991 and the Members of the present Assembly shall complete their period of five years on July 23, 1996. The Chief Election Commissioner, respondent No. 2, issued a Notification on May 15, 1996 whereby the electors of such constituency of Azad Jammu and Kashmir Legislative Assembly are called upon to elect a Member from each constituency. The elections are to take place on June 30,1996. 3. The Election to the office of the President of Azad Jammu and Kashmir was held in 1991 and Mr. Sikandar Hayat Khan respondent No. 4 being elected as President of Azad Jammu and Kashmir, took oath of his office as President on August 12, 1991. The tenure of his office was to expire in August 1996 but he resigned from his office on May 13, 1996. A Notification is issued by respondent No. 2 on May 16, 1996 (the date of Notification in the writ petition is mentioned as May 17, (1996) giving programme of election to the office of the President. Under the tification the nomination papers are to be filed on May 21, 1996 and after completing the formalities mentioned in the Notification, the Elections are to take place on May 22, 1996. espondent No. 2 is appointed as the Returning Officer for the election. 4. It is alleged that the former President has almost completed his term of office and only two and a half month were left when he resigned and provided a vacancy of the office. This resignation, according to the petitioner, is mala fide, motivated and against the spirit of the Constitution. The Notification whereby the election to the office of President is to be held on May 22, 1996 is alleged to be mala fide and a devise to fill the office of the President contraiy to the spirit of the Constitution. The Notification for the Presidential election, the holding of election and the candidature of respondent No. 4 is alleged to be without lawful authority for the following main reasons >- (1) That after declaration of the schedule for elections to the new Assembly which are to take place on June 30, 1996, the present Assembly cannot be allowed to give new lease of life for a period of five years to the new incumbent as the vacancy occurred due to resignation of the former President, is filled in by the peaker f the Assembly who is very much in existence and acting as President; (2) That the joint sitting will-only elect the President once for a period of give years and cannot re-elect another person for another period of five years. In case it is llowed, it would tantamount to so violence with the Constitutional provision; (3) That respondent No. 4 cannot be a candidate for the Presidential Election as his resignation was motivated and mala fide who wants himself to be elected for eriod of five years by frustrating the provision of Constitution ; (4) That the future election of the President of Azad Jammu and Kashmir can only be for the unexpired period of the former President. 5. The respondents filed parawise comments to the petition, as originally filed, on May 19, 1996 and objections to the application for amendment on May 21,1996. Some preliminary objections have been taken to the maintainability of the petition by the Court, beside parawise comments upon the petition. As the Court had ordered only pre-admission notice to the respondent, the objections to the maintainability of the writ petition, therefore, are not of such concern. However, in review of Rule 33(3) of the High Court Rules, 1984, the High Court has the power to ask from the party affected i.e. the respondents to show cause as to why the petition be not admitted. As the respondents on the pre-admission notice have filed objections stating the reasons, as to why the petition may not be admitted, the learned Counsel from both the sides were, therefore, heard at length till 3-45 P.M. 5. Raja Muhammad Anwar Khan, the learned Counsel for the petitioner arguing the case contended :-- (i) That the Legislative Assembly whose life is to expire on July 28, 1996, cannot elect the President for five years; (ii) That the resignation of respondent No. 4 is mala fide and motivated for the reason that be wants to get himself elected from the Assembly which consists of the majority of the Members belonging to his party and thus giving a lease of life to his future Presidentship for five years; (iii) That the intention of the Chief Election Commissioner by issuing Notification under section 5(2) of the Interim Constitution Act (hereinafter to be referred as Constitution) is clearly visualized that the future incumbent to the office of the President shall hold the office for five years while in fact the election to the office of President, if at all allowed, is to be held under section 9 of the Constitution for filling the casual vacancy which implies for the remaining period of the former President; (iv) That the Notification issued by the Speaker, respondent No. 1 on May 14, 1996, is without lawful authority as the President can only summon the joint sitting on the request of the Chief Election Commissioner under Rule 13 of Presidential Election Rules, 1985 (hereinafter referred to be as Rules). The summoning of the joint sitting by the Speaker (Acting President) was without a request for the Chief Election Commissioner under Rule 13, thus without lawful authority; It is lastly argued by the learned Counsel for the petitioner that evasive reply to para-6 of the petition is given in parawise comments which implies that new President is to hold the office for five years and not for the remaining period, thus the exercise of the election is motivated and malafide. ' 7. The learned Counsel for the respondents, Raja Muhammad Hanif Khan, contended that the entire edifice of the case in the argument is built-up on the order of the Speaker dated May 14, 1996 while the same has not been challenged at all on account of which the petition is not maintainable in view of Rule 32(2) of the High Court Rules. The learned Counsel further argued that under Section 9(b) of the Constitution, it is the duty/power of the Speaker to cause an election to the office of the President to be held within a period of 30 days from the date on which the office falls vacant. Basing his argument on the above referred provision of the Constitution, the learned Counsel contended that it is for the Speaker to fix he date for the election and all other concerned with the election to the office of the President have to follow the rest under the relevant laws and Rules regulating the process. The learned Counsel further contended that in election to the office of the President, the electoral college is the joint sitting under the Assembly and if the Schedule issued by the Chief Election Commissioner on May 16, 1996 is quashed, it would amount to depriving the Members of the joint sitting from the right of vote which is their constitutional right and it at the same time would amount to the violation of the Constitution. The learned Counsel relying on Section 34(1) of the Constitution contended that the election of the President is a proceeding of the joint sitting validity of which cannot be challenged. 8. The learned Counsel for the respondents placed reliance upon the following authorities :-- 1. N.L.R. 1991 Civil 646 and 709; 2. P.L.D. 1991 AJK 89; 3. A.I.R. 1957 SC 694; and 4. A.I.R. 1974 S.C. 682 9. We have considered the arguments advanced at bar and have gone through the authorities cited at bar. The fate of the entire case revolves around section 9 of the Constitution which reads as ollows : "9. CASUAL VACANCY IN THE OFFICE OF PRESIDENT:- Where the office of President falls vacant due to death, resignation or any other cause, the Speaker of the Assembly:- (a) Perform the functions of President till such time as a new President is elected; and (b) cause an election to the office of President to be held within a period of thirty days from the date on which the office falls vacant or, if the election cannot be held within that period ecause the Assembly is dissolved, within thirty days of the general elections to the Assembly." The office of the President of Azad Jammu and Kashmir fell vacant on May 13,1996 when Sardar Sikandar Hayat Khan respondent No. 4 resigned from his office. The Speaker of the Assembly, respondent No. 1, by operation of Clause (a) of Section 9 of the Constitution antered into the office of the President as Acting President, as visualized by the definition of the word "President" as given in section 2; which is as follows :-- "'President' means the President of Azad Jammu and Kashmir and includes a person for the time being acting as, or performing the functions of, the President of Azad Jammu and Kashmir." (iv) the polling on the 22nd May, 1996, from 11.30 a.m. to 2.00 p.m. to be followed immediately thereafter by the counting of votes by the Chief Election Commissioner. 2. For the holding of the aforesaid election, the Speaker, Azad Jammu and Kashmir Assembly has already summoned the members of the AJ&K Assembly and Members of the AJ&K Council for election to the office of the President to assemble in joint sitting on 22nd May, 1996 in the Administrative Block of the AJ&K Legislative Assembly, Muzaffarabad to record their votes. Sd/- Justice((R) Sardar Muhammad Ashraf Khan Chief Election Commissioner, AJ&K No. EC/40-43/96. 12. After reproducing above Section 9 of the Constitution relating to the casual vacancy in the office of the President, Notification of the Speaker performing the functions of the President and the Notification of the Election Commissioner declaring the Schedule of the Election to the office of the President, we revert back to the rgument of the learned Counsel for the petitioner that the Notification of the Speaker as well as the Election Commissioner are without lawful authority and malafide and that the resignation of the former President, respondent No. 4, is malafide and motivated. 13. The President under Stition 9 of the Constitution has the privilege to resign from his office and it is not necessary for him to assign any reason for his resignation. Thus the argument of the learned Counsel for the petitioner that the out going President who could remain in office for a further period of 2 months, resigned to get himself re-elected from the same Assembly for a further period of five years is malafide, is mis-conceived for the reasons; that the President, as said above, is not bound to assign any reason for his resignation; secondly there is nothing on record that he is a candidate to the election to the office of the President; and thirdly that he, if at all is candidate to the fresh election to the office of the President, is not disqualified under any provision of the Constitution to be a candidate for the office of the President afresh. A Full Bench of the igh Court has already held in the case of Sultan Mahmood v. Chief Election Commissioner and three others (P.L.D. 1991 AJ&K 9) that the sitting President is not excluded from the seeking re-election for the second consecutive term. Though in the case in hand, respondent No. 4 is not contesting the election while in office as in the case referred ereinbefore, but the principle of law is the same that' a person who is holding or has held the office of Pre ident immediately 'before the commencement of new election to the office f the President, is not in any way debarred or disqualified for being a candidate for the office of President. The question of malafide or motivated resignation is the question of fact which requires evidence and thorough inquiry. The instance and the grounds of malafides have to be specifically pleaded and pointed out. In the absence of specific instances of malafide, nothing can be attributed against the respondents simply on the assertion of the petitioner. If a person under law is qualified to be a candidate for any election and is not by any specific prohibition debarred he cannot be deprived of such a right simply for the reason that a person does not want him to be the candidate for the office or to see him in the office. Moreover, this ground if at all to be treated as a ground, it has to be taken up before the authority at the time of the scrutiny of the nomination papers and in case of his failure to decide the matter lawfully, the same may be reviewed by the High Court in its Constitutional jurisdiction. The argument is based on speculation and, therefore, not tenable. 14. The other argument of the learned Counsel which is connected with the above referred argument that in case of a casual vacancy to the office of the President under Section 9 of the Constitution, the incumbent to the office whether respondent No. 4 or any body else can hold the office for the unexpired period of the former President, is also a pre-mature assertion. If this proposition is at all of any substance or a weight, it can be resolved as and when the occasion arises. As the learned Counsel himself suggests that the future incumbent can held the offices for the remaining period, the petition is premature and does not merit admission for mere academic purpose at this stage. The learned Counsel for the petitioner, referring to section 5(3) of the Interim Constitution, contended that once the President is elected, his election cannot be called in question in any Court or before any Tribunal or other authority, hence it is the process of the election before the election is complete which can be called in question otherwise the petitioner would be deprived of his right. This proposition has already been settled otherwise holding the election to be open to challenge, in case of Ch. Sultan Mahmood v. Chief Election Commissioner and 3 others P.L.D. 1991 AJ&K 89 where after discussing the different sub-sections of Section 5 of the Constitution, it is held as follows :-- "From the bare reading of these constitutional provisions it becomes clear that section 5 of the Act not only provides for the ouster clause but also specifically makes provision as regards the qualification/disqualification relating to election of a person as President. Sub-section (3) clearly provides that election of the President under sub-section (2) shall not be called in question in any Court or before any Tribunal or other authority. We cannot be oblivious of the fact that the section which contains the ouster clause does also contain the qualification/disqualification provision. The argument that sub-section (3) provides a blanket immunity if acceptedwould simply render sub-section (4) as redundant. Since the qualifications/disqualifications are contained in the Act itself, any action violative to these express and specific Constitutional provisions would be violative of the Constitu tion and the High Court in exercise of its judicial review powers available to it would unhesitatingly declare it to be so. What sub-section (3) protects simply is the conduct and mode of election conducted under the supervision of the Chief Election Commissioner. The language employed in sub-section (3) clearly refers to the election of the President under sub-section (2) which is to be conducted under the control and supervision of the Chief Election Commissioner. What is provides for simply is that the procedure and method adopted in the conduct of elections, irregularities if any, committed therein and as regards the fair count of the votes cast etc. are given protection. It provides no immunity whatsoever to the pre-existing disqualification of a candidate. 15. The argument of the learned Counsel for the petitioner is that "the Election Commissioner having issued the Notification under Section 5(2) of the Constitution manifests that the future incumbent shall hold the office for five years. The learned Counsel elaborating his arguments contended that Sections 5 and 9 of the Constitution are two independent sections and casual vacancy to the office of the President has to be filled in under Section 9 and not under Section 5 of the Constitution. The argument does not fit in the scheme of the Constitution for the reason that section 9 deals with an eventuality for filling in the casual office till the President is regularly elected in accordance with law. Section 9 of the Constitution provides no other mode for election to the office of the President except that it obliges the Speaker performing function of the President to cause the election to the office of the President to be held within thirty days. The Speaker after having issued the Notification dated May 14, 1996, has done all that he was obliged to do, rest is to be followed by the Chief Election Commissioner under Section 5(2) of the Constitution which reads as follows :-- President-(l) There shall be a President of Azad Jammu and Kashmir , who shall be elected by the Members of the Joint sitting by the votes of majority of the total membership of the joint sitting in such manner as may be prescribed; (2) The election to the office of President shall be conducted under the supervision of the Chief Election Commissioner. (3) ................................................................................................................. 16. The Chief Election Commissioner is obliged under the above referred sub-section of the Constitution to conduct the election to the office of the President and do all that is needed in this behalf. The rest of the procedure after issuing of the Notification by the Speaker has to be the same as visualized for the election to the office of the President by Section 5 and Rules called as Azad Jammu and Kashmir President Election Rules, 1985. There is no distinction in the provisions of the Constitution regulating the holding of election to the office of the President whether by way of general Election to the office after the expiry of the term of the President or where the casual vacancy in the office of the President occurs. Thus the argument of the learned Counsel for the petitioner is misconceived. 17. The last argument of the learned Counsel for the petitioner that Notification dated May 14, 1996 is without lawful authority for the reason that the President only can summon the joint sitting on the request of the Chief Election Commissioner under Rule 13 of the Presidential Election Rules, while in the present case, the joint sitting is summoned to meet by the Speaker through the impugned Notification. There is no doubt that the Speaker has summoned the joint sitting to meet on May 22, 1996 and this Notification is not issued on the request of the Chief Election Commissioner. A true perception of Section 9(b) clearly visualized that it is the Speaker who has to cause the election to the office of the President when it falls vacant due to resignation or death. In that eventuality, the Speaker is to fix a date and the schedule for fulfilling the formalities visualized y Presidential Election Rules have to be fulfilled by the Chief Election Commissioner. There seems no violation of the Constitution or of the Rules because the Election Commissioner has followed the Notification of the speaker. 18. Viewed from another Constitutional angle, i.e. assuming casual vacancy not having occurred due to the resignation of Sardar Sikandar Hayat Khan, the elections to the office of the President were otherwise due to take place between June 11 to July 11, 1996, as the process had to be completed thirty days before the expiry of the term of former President Sardar Sikandar Hayat Khan under sub-Section (3) (a) of Section 5 of the Constitution and his term was due to expire on August 11, 1996. The electoral college in that case nd at that time would still have been the present Assembly unless earlier dissolved by the President on the advice of the Prime Minister under Section 28 of the Constitution. Its term s to expire on July 28, 1996 as visualized by Sub-Section (3) of Section 22 of the Constitution, with other components of the joint sitting whose membership is not disputed and cannot be disputed as their offices can never.be assumed to be vacant under the Constitution. The petition does not merit admission on this sole ground as well. 19. Apart from the above, the petition is liable to he dismissed for the non-compliance of the Rules of the High Court Under Rule 32(2), a certified copy of the impugned order had to be accompanied with the writ petition. The impugned order, as argued at bar, is the Notification of the Speaker dated May 14, 1996. The Schedule issued by the Chief Election Commissioner is challenged and a copy of the Schedule is also attached with the petition but that does not give a cause of action to the petitioner as the Schedule is based upon the Notification of the Speaker and unless the Notification itself is challenged and accompanied with the petition, the writ petition is not maintainable. The Supreme Court in the case 'Municipal Committee Dadyal v. Mistri Abdur Rehman and others', 1992 SCR 136, has held that if the Rules of the High Court relating to the writ petition are not followed, the order passed by the High Court would be without jurisdiction. So the writ petition not challenging the order of the Speaker and not being accompanied by the order, is not maintainable. 20. Another point on which the writ petition merits dismissal is that quashing the Schedule issued by the Chief Election Commissioner would amount to deprive the electoral college i.e. the joint sitting from the right of their vote. As none of the Members of the joint sitting i.e. the Members of the Legislative Assembly, the elected Members of the Council and the Minister Incharge of the Council Secretariat have been impleaded as party in the case, no relief can be granted to the petitioner depriving the Members of the joint sitting of their valuable rights of vote. 21. In view of what has been stated above, no ground is made out for admission of the writ petition for regular hearing. It is therefore dismissed in limine. (Aq.By.) Petition dismissed in limine.
PLJ 1997 AJK 54 PLJ 1997 AJK 54 Present: manzoor hussain gilani, J. MUHAMMAD BASHIR-Appellant versus Hqji MUHAMMAD SIDDIQUE & 5 others-Respondents Civil Appeal No. 60 of 1994, decided on 21.11.96. (i) Civil Procedure Code, 1908 (V of 1908)-- -Ord. XX, R. 5--Issues-Findings on-It is no doubt necessary for trial Court to give its finding supported by evidence on all issues, but if finding AJK55 on one issue is sufficient for the disposal of case, Trial Court, held, may not dilate upon other issues; and in not deciding other issues, held further, no prejudice is caused. [P. 62] F (ii) Instrument- Unstamped instrument-Evidentiary value of--Instrument chargeable with duty, held, cannot be admitted in evidence unless duty stamped. [P. 58] C (iii) Registration Act, 1908 (XVI of 1908)-- -S. 17 r/w S. 49--Registerable document--Non-registration of--Effect--A document compulsorily registerable, if not registered, held, cannot be read as evidence of any transaction, nor, held further, it affects any immovable property or confers any right upon transferee thereof. [P. 58] B (iv) Transfer of Property Act, 1882 (IV of 1882) S. 54-Sale -Immovable property-Transfer of-Sale deed-Registration of-Transfer of immovable property amounting to more than rupees one hundred held, can only be made by a registered sale deed under Section 54 of Transfer of Property Act, 1882 and document compulsorily registerable under section 17 of Registration Act 1908. [P. 58] A (v) Transfer of Property Act, 1882 (IV of 1882)-- ... -S. 54-Sale-Essential elements of-Primary and essential elements of sale are, the parties, subject-matter and price. (vi) Transfer of Property Act, 1882 (IV of 1882)-- S. 7-Person competent to transfer-Entitlement of--Held : A person who has ownership rights of property and is recorded as such in record of rights or other public document in hich record of ownership is entered or maintained, held, can be said to be entitled to property which is subject-matter of transfer-A person, authorised by owner of property legally o ransfer the same, held further, to be competent to transfer such property. [P- 59] E Mr. Abdul Mqjeed Mallick, Adv. for Appellant. Mr. Riaz Alain, Adv. for Respondent. Date of hearing: 7.12.1994. order This appeal is filed against the judgment and decree passed by District Judge Mirpur on 7th November 1994, whereby the suit filed by the appellant is dismissed. 2. The facts which transpire from the pleadings of the parties are that a plot No. 121, measuring one kanal situate in sub-sector F-l, Mirpur was allotted in the name of respondent No. 6 Mst. Fazeelat Rafique who transferred the same in favour of the appellant through an agreement executed on August 10, 1972. The appellant transferred half of the plot with the built up property thereon through an affidavit on June 28, 1978 in favour of respondent No. 1 in a consideration of an amount of rupees two hundred and ten thousand and handed over the possession to him. The remaining half of the plot alongwith built up property thereon was transferred through an affidavit dated 14th March, 1974 by the appellant in favour of Allah Ditta Khan who transferred the same in favour of Muhammad Aadil Kiyani and others through an affidavit dated October 31, 1978. This part of the property is un-disputed. Appellant filed a suit for declaration and possession against respondent No. 1 on June 1, 1986 in the Court of District Judge Mirpur alleging therein that the building and shops constructed over the plot were in fact rented out for eight years to respondent No. 1 and the amount of rupees one hundred and eighty thousand was taken in advance. The appellant alleges that the respondent fraudulently got the affidavit executed for sale instead of rent. 3. The learned District Judge after framing as many as nine issues on September 12, 1987, and recording the evidence of the parties, dismissed the suit as not proved, through the judgment mpugned through this a peal, on November 7,1994. 4. The learned Counsel for the appellant, Mr. Abdul Majeed Mallick, vehemently criticising the impugned judgment, inter alia, contended that; transfer of immovable property amounting to more than one hundred rupees, cannot be made without a registered sale deed and the alleged transfer through affidavit, is against the provisions of Section 54 of Transfer of Property Act, Section 49 of the Registration Act and Section 35 of Stamp Act; that the alleged affidavit was also not proved in accordance with law as the photostat copy of the same placed on record is not admissible in evidence and the contents of the same were not read over and confronted to the appellant; that the issues were not properly framed e.g. that whether the alleged affidavit amounts to agreement of sale and the respondent has obtained the ownership of the plot etc., ought to have been framed and proved; and that the finding supported by the evidence is not recorded on ll I sues as visualized under Order 22 Rule 5, CPS. The learned Counsel relied upon the following legal precedents:- 1. P.L.D. 1951 Lahore 177, 2. P.L.D. 1967 Dacca 591, 3. A.I.R. 1954 Bombay 305, 4. A.I.R. 1935 Madras 203, and 5. 1992 MLD 2515, 5. Choudhary Riaz Alam, the learned Counsel for respondent No. 1, defending the impugned judgment, inter alia, contended that; the appellant transferred the rights which he had in the property in the similar manner and terms in which he had the same from the allottee, Mst. Fazeelat Rafique hence the question of violation of provisions of law contained in Sections 54,49 and 35 of the Transfer of Property Act, Registration Act and Stamp Act, respectively, does not arise as the appellant did not have the ownership of the plot to be transferred through the registered sale deed; that the plot in dispute was in the ownership of the Mirpur Development Authority who alone is competent to transfer it by way of allotment and later on, by transfer of ownership under Section 39 of the Mirpur Development Ordinance and Rules 13 and 14 of M.D.A. Regulations 1977 (hereinafter shall be called as M.D.A. Ordinance and Regulations, 1974 and 1977, respectively) and allotment of the plot is competently and legally made in the name of the respondent after its cancellation from the name of its allottee, namely, Mst. Fazeelat Rafique and the appellant simply relinquished his rights, whatsoever, he had, through affidavit; that the title of the respondent has become perfect under Section 53-A of Transfer of Property Act, against the appellant on account of execution of the alleged affidavit, transfer of possession and then by transfer of allotment by M.D.A. in favour of the respondent; that the appellant has not called into question the legality of the other part of the plot and built up property transferred in the similar manner and terms in favour of Allah Ditta and his transfer in favour of Aadil Kiyani and others; and that finding on each and every issue is not necessary when the case can be decided by the decision on a single issue. He placed reliance on 1992 M.L.D. 2515. 6. After hearing the learned Advocates for the parties at length, I have gone through the record of the case, the file of M.D.A. from which the reference is made to different documents by the learned Counsel for the respondent and the law cited at bar with due care and compassionate consideration. 7. The perusal of the record reveals that the original allottee of the plot was Mst. Fazeelat Rafique respondent No. 6 who transferred the plot in favour of the appellant through an nregistered agreement of sale dated August 10, 1972 ( Ex. DC on the file of MDA). The appellant transferred half portion of the plot with the built up property through an unattestcd affidavit dated March 14, 1974 in favour of Allah Ditta son of Feroz Khan and the later, transferred the same in favour of Muhammad Aadil Kiyani and others on October 31, 1978 through an unattested affidavit. This part f the plot and the property is not disputed nor is the legality of its transfer challenged. The remaining half of the plot with the built up properly transferred in the similar manner in favour of respondent No. 1 is in dispute and the legality of its transfer challenged. 8. The transfer of immovable property amounting to more than rupees one hundred can only be made by a registered sale deed under Section 54 of the Transfer of Property Act and the document is compulsorily registerable under Section 17 of Registration Act. A document compulsorily registerable, if not Registered, cannot be read as evidence of any ransaction under Section 49 of the Registration Act nor does it affect any immovable property or confer any right upon the transferee thereof. Similarly, an instrument chargeable ith uty, cannot be admitted in evidence unless it is duty stamped. To this extent, there can be no difference with the argument canvassed by the learned Counsel for the appellant. 9. However, the question for resolution arises as to who can be a transferor in terms of Section 54 of the Transfer of Property Act, with respect to immovable property compulsorily registerable. Section 54 of the Transfer of Property Act is reproduced below:- 54. "Sale defined." "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid partpromised. "Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of property." The primary and essential elements of sale are the parties, subjectmatter and the price. The paries are buyer and seller. The seller must be a person competent to transfer i.e. he must have title to the property or aughority to transfer it if it is not his own. Section 7 of the Transfer of Property Act defines the person competent to transfer, which is reproduced as follows:- 7. "Person competent to transfer. Every person competent to contract and entitled to transferable property, or authorized to disputes of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force." 10. The perusal of the provisions of the aforesaid Section indicates that a transferor must be "entitled to transferable property." A person who has the ownership rights of the property and is recorded as such in the record of rights or other public document in which the record of the ownership is entered or maintained, can be said to be ntitled to the property which is the subject-matter of the transfer. However, a person, though not owner of the property but authorized by its owner legally to transfer the same, is competent transfer such property. 11. The appellant in the present case, was not the owner of the plot in dispute in terms of Section 7 of Transfer of Property Act, thus not competent to transfer the ownership of the same by sale deed visualized by Section 54 of the said Act to be compulsorily registerable. The appellant could only transfer such interests or right in the plot to the respondent which he had, at the time of execution of the affidavit in favour of respondent. Under Section 8 of the Transfer of Property Act, only such interests in the property are transferred to the transferee which the transferror had, at the time of transfer and that interests pass forth with. The relevant part of the Section is reproduced below:-8. "Operation of transfer. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferror is then capable of passing in the property, and in the legal incidents thereof." Thus short of ownership, every interest, that the appellant had in the plot in dispute alongwith the built up property, passed to the respondent; and as the appellant's interest in the property at the time of execution of the affidavit, was to the extent of terms and conditions stated in the agreement for sale obtained from respondent No. 6, respondent No. 1 entered into the shoes of the appellant for enforcing his rights and interests against the respondent No. 6 who was an allottee and transferror of the plot in favour of the appellant. The affidavit was/is not compulsorily registerable under Section 54 of the Transfer of Property Act or Section 17 of the Registration Act. It simply conveyed all the interests to the respondent which the appellant was capable of conveying. 12. If the affidavit is taken an agreement for sale, the same was also not compulsorily registerable, either under Section 54 of the Transfer of Property Act or Section 17 of the Registration Act. The Affidavit had to be executed on a stamp paper worth four rupees under item No. 4 of the Schedule I of the Stamp Act and it is duly stamped, hence dmissible under Section 35 of the Stamp Act. Thus the contention of the learned Counsel for the appellant supported by the case of "Mokeem Mandal and another v. Alt Mian Pradhan and others (P.L.D. 1967 Dacca 591) is of no help to him as the affidavit was neither compulsorily registerable nor is that under stamped and the contents of the same are proved by attesting witnesses and other evidence. The facts of the case and points raised at bar on the basis of that case i.e. A.I.R. 1935 Madras 203, are not relevant to the issue nvolved in the case in hand. 13. The respondent, on the basis of the affidavit obtained the allotment from the M.D.A. This was the right/interest which the appellant had obtained from the original allottee, namely, respondent No. 6 and then transferred to the respondent through affidavit. The M.D.A. after issuing a proclamation in the Newspaper dated February 24, 1984, nviting objections from EVERYONE regarding the transfer of the plot in question in the name of respondent and Aadil Kiyani and others allotted the same in their name on August 20, 1984, when nobody filed any objection to the transfer of the allotment. The objection of the learned Counsel for the appellant raised in his right of reply to the submissions of the learned Counsel for the respondents is, also repelled that no notice prior to the transfer of allotment was issued to him in view of general notice issued in the Newspaper. 14. There is a common practice at Mirpur, of which judicial notice is taken that allottees of the plots transfer their interests in the allotment by executing affidavits, greements or power of attorney in favour of the transferees for consideration and subsequently the M.D.A. after following the process of proclamations or advertisements etc., for ransfer of the allotments in the names of document-holders, the allotments are transferred in their names. The transfer of immovable property in an extra-legal manner is violation of law but through the practice in vourge, the allottees abandon their rights in allotments and transfer their rights and interests of allotments by agreements to sell or affidavits, both of which are not compulsorily registerable, the rest I left between the transferees and the Development Authority to be accomplished. This matter is left o be regulated by the authorities concerned. The resolution of this point in the manner suggested by the learned Advocate for the appellant, would cause more harm to the public at large, than advance the cause of law and justice in an individual case. 15. The allotment of the part of the plot in dispute is transferred in the similar way in favour of the respondent and the allotment of the remaining part of the plot is also made in the similar terms in the name of Aadil Kiyani and others. The transfer of allotment affidavit in favour of Aadil Kiyani is admitted by the appellant in his statement though with another version. However, the fact remains that the appellant has relinquished his rights and interest in the plot in favour of two parties through the documents executed on the similar pattern and got written from the same petition-writer. 16. The Mirpur Development Authority as discussed above, on the asis of the above documents (Ex. DA and DB on the file of MDA), ordered the allotment of the plot in avour of respondent and Aadil Kiyani and others. The M.D.A. is authorized under Section 34 of the Ordinance to sell, exchange, rent-out or otherwise transfer any land vested in it and imilarly under Rule 14 of the M.D.A. Regulations, 1977 which is as follows:- 14. "TRANSFER OF PLOTS/FARMS. Sub-division, sale, transfer or exchange of any plot/farm or any portion thereof will not be affected by the allottee, lessee or vendee except with the permission of the Authority and subject to the transfer being registered by the Authority, on payment of fees to be prescribed by the Authority from time to time." any plot can be transferred with the permission of the Authority. 17. The contention of the learned Counsel for the appellant that above Rules apply to the entire land falling in M.D.A. not to a specific plot only, needs simply to say that a plot or a part of the plot, is a part of the whole land falling in the M.D.A. and what applies to the whole, applies to its part, subject to the Rules. The submission of the learned Counsel for the appellant that affidavit placed on record being photo copy is inadmissible in evidence and that the same was not confronted to the appellant, is equally devoid of any substance for the reason that it is no doubt the photo copy of the affidavit on record of the Court file but the original being on the file of MDA was duly produced in the Court and exhibited in evidence i.e. Ex. DB. In view of the execution of the document being admitted by the appellant, however, the recitals therein lleged as having been written against the oral arrangement, the proper course for the proof of the document was the production of the document itself or its attesting witness or itnesses or its scribe or a person conversant with the hand-writing of the scribe. The petition-writer, namely, Abdullah, being dead, the document being in his hand-writing is proved by Ghulam Hussain a petition-writer produced in the Court on 14.10.1992. He has stated the document to be in the hand-writing of the dead petition-writerand has compared the same with his other writings i.e. affidavit executed in favour of Aadil Kiyani etc.,. Ex. DA Khadim Hussain an attesting witness of the affidavit Ex. DB in his statement before the Court on December 21, 1992 also admitted the execution of the affidavit as:- Respondent No. 1 in his statement before the Court has proved the entire case as incorporated in the affidavit. Besides above, the affidavit (Ex. DB), contains the signatures of the appellant at its foot note and at the back of the Stamp Paper. He has admitted the signatures in his statement before the Court. Besides above witnesses Muhammad Aadil Kiyani, one of the transferees of other part of the plot, has also appeared as a witness in the Court and stated that respondent and he had purchased the plot in equal shares through affidavits and had obtained the allotment of the plot jointly from the Mirpur Development Authority. 19. In view of above, the case titled "Madhlal Sindhu, v. Asian Assurance Co, Ltd., and others (A.I.R. 1954 Bombay 305), referred to by the learned Counsel for the appellant supports the case of the respondent, as the execution of the document being admitted by the appellant, its contents are proved by the other witnesses produced by the espondents. 20. In the aforesaid view of the matter, the execution of the affidavit having been proved beyond doubt, there remained nothing for the trail Court to explore or adjudicate pon. he main issue in the case was issue No. 1 on which a detailed finding is recorded by the trial Court which is supported by the evidence on record. The other related issue was issue No. which is also decided in favour of respondent. The finding on other issues was immaterial in view of decision on above issues. 21. Under Order 20 Rule 5 of the Code of Civil Procedure, it is no doubt necessary for the trial Court to give its finding supported by evidence on all issues, but if finding on e issue is sufficient for the disposal of the case, the trial Court may not dilate upon other issues; and in not deciding the other issues, no prejudice is caused to the appellant. All the issues in the case being inter se related, the consolidated decision by deciding the main issue is not violative of Order 20 Rule 5, CPC. Reference may be made to case titled "Major (Retd) Syed Baqar Hussain Shah v. Mst Rashida Begum" (1992 M.L.D. 2515), in this behalf. There could be no other form of issues as suggested by the learned Advocate for the ppellant, neither has be pointed out any pleadings which required framing of issues in the form he suggested. 22. The respondent, as stated in his statement before the Court, has reconstructed the house on the disputed plot and has got sanctioned a plan from the Committee (Ex. DH). All this having taken place in the city, where the appellant is residing who did not object to it. Had he agreed only for renting out the built up property, he would not have allowed the respondent reconstruct the house by demolishing his rented out construction. This suggests of an after thought device by the appellant to wriggle out from the bargain. The respondent, having obtained the interest and rights in the property through an affidavit from a person who had also obtained the same in the similar way i.e. by way of an unregistered agreement, having continued in possession of the same, secured its allotment alongwith other transferees from competent authority whose right is not challenged, reconstructed the building etc., are such acts which entitled the respondent to the protection of Section 53-A of the Transfer of Property Act. In the circumstances, I may advantageously place reliance on a case cited at bar by the learned Counsel for the appellant i.e. "Raja and others v. Karam All and others" (P.L.D. 1951 Lahore 177), where a land was obtained jointly by two persons contributing equal amount but the transfer effected in favour of one only in view of a prohibition under the law. On the death of the person in whose name the transfer was legally ordered, his descendants denied the arrangement made with the other person and sold the land to a third party. On a suit filed for possession by the third party, the person in possession , namely, co-transferree who was denied the property, resisted the suit by pleading the actual facts and arrangements between him and the deceasedtransferree, the High Court was pleased to order dismissal of the suit on appeal holding as follows:- "It seems to me however that the plaintiffs should have been non-suited in the present case on another ground. The facts have revealed that both Khuda Bakhash and Raja Khan were in pan delicto in respect of the transaction, which was in contravention of Section 19 of Punjab Act V of 1915. By an arrangement between them, they agreed to defeat the provisions of that law, and put their illegal agreement into effect, Raja Khan paid Rs. 11,000 to Khuda Bakhsh and the latter delivered possession of one square of land to the former. Now that the facts have come to light, neither Raja Khan nor Khuda Bakhsh or his successor-in-interest could seek the assistance of the Court in getting back their properties as the maxim, in part delicto prior est condition possidentis, (where each party is equally in fault the law favours him who is actually in possession) would apply in full force. For a discussion of this maxim reference may be made to Broom's Legal Maxims page 486 etc. seq. This maxim is established not for the benefit of plaintiffs or defendants but is founded on the principles of public policy, which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract to recover it back. The exceptions to the application of this maxim are provided by cases where the illegal contract has not yet been executed and locus poenitentiae still exists, or where one party is the oppressor and the other oppressed. This maxim was resorted to in a case by a Full Bench of this Court in Qadir Bakhash v. Hakam (A.I.R. 1932 Lah. 503). That was a case of a benamidar who brought a suit to recover possession of property from the beneficiary. It was held that the latter is not precluded from pleading that both parties were in part delicto and thus showing the real nature of the transaction. The same principle was affirmed in Vonkata Subbayya v. Attar Sheikh Mastan A.I.R. 1949 Mad. 252-D.B), where a plaintiff who sought to recover money paid under an illegal contract, was non-suited. Another authority taking a similar view is Sundrabai v. Manohar (A.I.R. 1933 Bom. 262-D.B.). There is no doubt that the general rule is that no one can set up his own fraud, but the maxim given above forms an exception to that general rule. No plea, it is true, was raised in the trial Court or in the grounds of appeal in this Court, based on this maxim but once the facts are established, it would be the duty of the Court to stay its hand and refuse any relief to a party that comes to the fountain of justice with sullied hands. A transferee from such a person could not acquire a better right than his transferor possessed." 23. As stated elsewhere, the appellant had no title, whatsoever, to the property in dispute, however, he had acquired an interest from the allottee. He transferred the same interest to the respondent, who perfected his title to the property by its transfer from the competent authority and by raising construction thereon. In between the two transferees with qual and similar interest one in better position is that who is in actual possession and that is the respondent No. 1. 24. In view of above, the appeal being devoid of any substance, is dismissed with costs. (Aq. By.) Appeal dismissed with costs.
PLJ 1997 AJK 65 PLJ 1997 AJK 65 Present: KH. MUHAMMAD SAEED, ACTG. C.J. COL. (RETD). MASOOD-UL-HASSAN-Petitioner versus AZAD GOVT. OF STATE OF AJK through its CHIEF SECRETARY and 2 others-Respondents W.P. No. 221 of 1996, decided on 16.1.1997. (i) Azad Jammu & Kashmir Interim Constitution Act, 1974- S. 44, and Azad Jammu & Kashmir Small Industries Corporation Act, 1993. Ss. 6, 8, 9,10 Appointment of Managing Director-Three years term of-Removal before expiry- hallenge to-Petitioner appointed as M.D in A.K. Small Industries Corporation on contract basis for four years- Petitioner, removed from service before expiry of tenuretitioner, appointed on terms and conditions as laid down in Section 6 of the Corporation-Government, held, was not legally competent to remove petitioner from post before expiry of hree years time limit-Appointment order not showing that he will work on this post for un-expired penod of his contract with the Govt-Therefore, impliedly, held, it shall be assumed that he was given terms and conditions as were laid down u/s 6 of AJK, Small Industries Corporation Act, 1993 Impugned order issued, eld further, to be without lawful thority and set aside-Petition accepted with costs. [Pp. 68 & 69] A & B Shahad Ahmad, Advocate Petitioner. Kh. Atta Ullah, Addle. A.G. Respondent. order Through this Constitutional petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner has impeached the order of the Government under No. Admin. A-K6)/ Jff ,^- /96 dated May 20, 1996. The facts necessary for the disposal of this petition briefly stated are that the petitioner was re-employed on June 30, 1992 by the respondent- Government, after his retirement from the Pakistan Army, on contract basis for a period of four years. He was given various assignments by the respondents before his appointment as Managing Director of the Azad Kashmir Small Industries Corporation vide Notification No. Admin. A- K6)/ f^-^-t-^ /94 dated July 16,1994. After taking over as the Managing Director of the Corporation, the petitioner conceived and piloted different projects of great economical and commercial importance for the creation of job opportunities in Azad Kashmir. The role played by the petitioner was appreciated by the Additional Chief Secretary Development and the Secretary Industries of the respondent-Government who recommended extension in the contract period of the petitioner. Kh. Shahad Ahmad, learned Counsel for the petitioner argued that admittedly the petitioner was re-employed by the respondents on contract basis for a period of four years on June 30, 1992. He was appointed and posted as Managing Director of the Corporation on July 16, 1994 The Government had no legal competence to remove him from this post before the expiry of the tenure of three years, because in a case of tenure post no charge in the terms and conditions of a service of a person holding such post can be made by any authority to the detriment of such person. In support of his contention, the learned Counsel relied on Section 6 of the Azad Kashmir Small Industries Corporation Act, 1993 and on two un-reported cases titled Sardar Mohy-ud-Din v. Government ofN.W.F.P. through its Chief Secretary and others decided on August 6, 1976 and Dr. Syed Nazir Hussain S/Ui/i v. Azad J & K Government and others decided on March 27, 1982. On the other hand, the learned Additional Advocate General argued that the petitioner was re-employed by the Government on contract basis for a period of four years. He had admitted this fact in the written statement. and also admitted during the course of his arguments that the extension in the contract period was allowed by the Prime Minister but, according to him, no Notification in this regard was issued in accordance with the relevant law. According to him, without proper Notification, the extension in the contract period of the petitioner cannot be presumed. According to him, the assumption of the charge of Chairman of the Corporation by the petitioner has not automatically extended his tenure of four years which was initially settled by him and the Government on June 30, 1992. I have heard the learned .counsel for the parties and have gone through the entire record made available with the writ petition by them. For proper perception of the point involved, it pears imperative to have a reference of the relevant provisions in the light of the language in which it is couched. Section 6 of the Azad Kashmir Small Industries Corporation Act 1993 reads as under : "6. Managing Director :--(!) Government shall appoint naging Director of the Corporation who shall be its Chief 1 Executive. (2) The Managing Director shall :-- (a) be a whole time officer of the C rporation ; (b) perform such duties as may be specified or as the Board may assign to him; (c) subject to the provisions of Sections 8, 9 and 10, hold office as Managing Director for a term of three years; and subject as aforesaid :-- (i) shall remain in office as Managing Director thereafter until his successor in that office is appointed; and (ii) May be appointed to hold that office for such further term as Government may, in appointing thereto. (d) receive such salary and allowance as Government may determine; and (e) divest himself of any directorship of, or other interest held by him in any other Corporation, Company or concern; Provided that nothing in this clause shall prevent the Managing Director from holding shares in any public company cquired by him before his appointment as Managing Director or cquiring during his term of office as Managing Director shares in any public company which is not a borrower; Provided further that Government, may, in exceptional circumstances, where it considers necessary to do so in the public interest, exempt by a special order, any person who has been appointed as Managing Director from the application of this clause." From the perusal of the above referred provision it becomes crystal clear that the post of the Managing Director of the Corporation is a statutory post having a fixed tenure of three years subject to the provisions of sections 8, 9, and 10 of the Act. It shows that the statutory period can be curtailed by the Government on account of the reasons specified in Section 8, and 9, or the Managing Director can tender his resignation under Section 10. In the present case no such occasion has arisen, therefore, Sections 8, 9 and 10 have got no application. For this reason the Government had no right to curtail the statutory period of posting of the petitioner as Managing Director of the Corporation. There is another aspect which can not be ignored; that at the time when the petitioner was appointed as Managing Director of the Corporation, it was not laid down in the posting order by the Government that he shall remain incharge of the post for his unexpired period of contract. Therefore, the only conclusion which can be drawn is that the petitioner was appointed as Managing Director of the Corporation on the terms and conditions as laid down in Section 6 of the Azad Kashmir Small Industries Corporation Act, 1993. The Government, therefore, was not legally competent to remove the petitioner from the post before expiry of three years time limit. This view find support from two authorities which were cited by the learned Counsel for the petitioner. The facts of the first authority in case titled Dr. Syed Nazir Hussain Shah v. Azad J & K Govt. and others, are that petitioner Dr. Nazir Hussain Shah was serving in the Gazetted cadre of the Education Department since long. He was appointed as Chairman of the Board of Intermediate and Secondary Education Mirpur on May 3, 1978. He worked as such up to January 16, 1977 when he was transferred and appointed as Director Public Instructions of Azad Jammu and Kashmir. Later on, on October 23, 1977, the petitioner was appointed as O.S.D. in the Civil Secretariat. The petitioner challenged his transfer from the Chairmanship of the Board of Intermediate and Secondary Education Mirpur on the ground that the said post was a tenure post for four years. The Government had no legal competence to remove him from the tenure post before the expiry of the period of four years. In this case the reliance was placed on another case reported as 1975 SCMR 457 and it was held that the petitioner was entitled to continue as the Chairman of the Board of Intermediate and Secondary Education Mirpur for a period of four years. In the like way in other unreported case titled Sardar Mohy-ud-Din V. Government of N.W.F.P. and others cited by the learned Counsel for the petitioner, the facts were that the petitioner in that case was holding the office of the Director of Education N.W.F.P. in the year 1973 when he was transferred and posted as the Chairman of the Board of Intermediate and Secondary Education, Peshawar. The petitioner assumed the charge of the post. The Government issued another Notification whereby the terms and conditions of the new assignment of the petitioner in that case were laid down. One of the condition related to the tenure of the office. It was laid down that the petitioner shall remain incharge of the post up to July 12, 1974, the date on which he was to attain the age of 58 years. The legality of this Notification was challenged in the High Court. The learned Court finally; resolved that the petitioner was entitled to remain as Chairman of the Board for a statutory period of four years and that his terms of office cannot be reduced. In this case, as said earlier, at the time when petitioner was transferred and appointed as Managing Director of the Corporation, it was not laid down that he will work on this post for the unexpired period of his contract with the Government. Therefore, impliedly it shall be assumed that he was given terms and conditions as were laid down under Section 6 of the Azad Jammu and Kashmir Small Industries Corporation Act, 1993. The petitioner in view of the above is entitled to retain the charge of the post till July 17,1997. In view of the above the impugned order issued under No. Admin.- A-l(6)/ Dept. 5th/96 dated May 20, 1996 is without lawful authority as such is set aside. The petition filed by the petitioner is accordingly accepted with costs. (Aq. By.) Petition accepted.
PLJ 1997 AJK 70 PLJ 1997 AJK 70 Present: kh. muhammad saeed, A.C.J., ch. muhammad taj and muhammad siddique farooqi, JJ. RAJA BASHIR AHMAD KHAN-Appellant versus AZAD J & K COUNCIL through its Secretary & 2 others-Respondents W.P. No. 350 of 1996, decided on 28.1.1997. (i) Quanoon-e-Shahadat Order 1984-- S. 114--Estoppel Plea-Taking of--Withdrawal of-Agitation of same at later stage-Effect-Petitioner availing right of appeal but withdrawing samePetitioner agitating same views/points at later stage etitioner, held, estopped by his conduct to build a case contrary to spirit of judgment given in his own case on points which he has agitated second time through present petition. [P 75] A (ii) Azad Jammu & Kashmir Courts & Laws Code, 1949- S. 5 (l-A)-Acting Chief Justice-Appointment f-Acts and functions performed by him--Validity of-Validity of act done by Acting Chief Justice including drawing of panel of eligible persons for their levation as Judge of High Courts, held, to be no longer upon to challenge- Petition dismissed. [P. 77] B & C Petitions in person. Date of decision : 28-1-1997 order Khawaja Muhammad Saeed, ACJ.--The petitioner has filed this Constitutional petition under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, on various grounds, seeking relief to issue a direction to respondent No. 3 to show under what authority of law he is holding a public office in his capacity as Judge of the High Court and, ultimately, to direct him to vacate the said office. The admitted facts are that respondent No. 3, a leading Advocate of this Court and an ex-Advocate General, was elevated as Judge of this Court on May 5, 1991 and since 7.5.1991, when he took oath of his office, is performing his functions as such. Previously, a member of the Central Bar Association, Muzaffarabad, challenged his elevation on 29.7.1992 on various grounds. However, his petition was finally dismissed by the Supreme Court on 13.1.1993. The present petitioner, a retired District and Sessions Judge of Azad Kashmir, previously challenged the elevation of Mr. Justice Muhammad Siddique Farooqi, a learned member of this Court, through a Constitutional petition on 4.2.1996. This petition was dismissed by a Division Bench of this Court vide its order dated 5.8.1996. Thereafter, according to the petitioner, he availed his right of appeal against this order before the Supreme Court but later on, with the permission of the Court he withdrew his appeal on 15.9.1996. The petitioner filed another Constitutional petition on 19.11.1996 for a writ of prohibition against the respondent-Government to restrain it from terminating his service as Chairman Service Tribunal, In this petition he alleged that at the time ol his appointment as Chairman Service Tribunal, it was ordered that his salary and other terms and conditions of service shall be equal to a Judge of the High Court. On account of his appointment order, he cannot be retired/ousted from service till 1998 when he shall attain the age of 62 years which is the age of superannuation of a Judge of the High Court. At the time of arguments in that petition, the petitioner moved an application before respondent No. 3, who was seized with the case, praying therein that, as the Government-respondent was intending to proceed against him in the light of the judgment of the High Court dated 5.8.1996, which was written by respondent No. 3 in his capacity as a member of the Bench, therefore, his petition be referred to the Chief Justice for the constitution of another Bench for its disposal. Later on, he moved another application whereby he sought permission to withdraw his petition. The permission was granted through a short order, which reads as under: "The petitioner seeks permission to withdraw this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. 2. In view of the chequered facts and different applications filed by the petitioner and the parawise comments and rejoinder filed by the respondents, the detailed order will follow. However, the petition stands consigned to record in view of the application, pending detailed order." Thereafter a detailed order was passed by respondent No. 3 on December 5. 1996, which, according to the petitioner, is sub judice before the Supreme Court. Para 6 of this order is relevant, which is reproduced for reference : "The petitioner before beginning the arguments filed an application for referring writ petition for constitution of another Bench on the ground that as the proposed act against him is being taken in the light of the judgment of the High Court dated 5.8.1996, while the petitioner had no opportunity to defend his position, reference for constitution of another Bench to the learned Chief Justice was therefore necessary. The petitioner was apprised that if this Court felt necessary after hearing the petitioner for constitution of another or larger Bench, the proper order shall be passed after hearing the arguments...." In the background of these facts, the petitioner has challenged the elevation of the respondent Judge through this petition. Prima facie, it appears that the present petition has not been filed to uphold the dignity of law. In a previous petition, when a local Advocate impeached the elevation of the respondent Judge after a period of one year and two months, through a writ of quo warranto, before this Court, the Supreme Court while accepting that the principle of laches was not strictly applicable to a case of quo warranto, opined that the bonafide of the petitioner is to be taken into consideration, In that case, the respondent Judge had moved the Chief Justice of this Court to initiate contempt of Court proceedings against the Advocate-petitioner. The apex Court of Azad Kashmir, in view of this fact, held that the petition was badly hit by the mischief of the principle of laches. In the present case, in the light of the histoiy of litigation started by the petitioner in the past without success, the principle of laches is attracted and the petition filed by the petitioner is liable to be dismissed on this ground summarily. However, we have decided to dispose it of even on merits. In the present case, the petitioner has challenged the appointment of respondent No. 3 on three grounds : (1) that the respondent was appointed a Judge of this Court on the advice of the Chairman, Azad Jammu and Kashmir Council, but without the consultation of the Chief Justices of the Supreme Court and the High Court of Azad Kashmir. He, in this behalf, has relied on Notification No, 3/19/91-C.A.D. dated 5.5.1991; (2) that the permanent Chief Justice of the High Court of the time was Mr. Justice Abdul Majeed Mallick who was appointed as ad hoc Judge of the Supreme Court on 29.9,1987, Under Section 5(l)(aJ of the Azad Jammu and Kashmir Ci-urts and Laws Code, 1949, Mr. Justice Sardar Muhammad Ashraf Khan was appointed acting Chief Justice. During the tenure of office of the acting Chief Justice, a panel was obtained by the President of Azad Jammu and Kashmir to till two vacancies then available in the High Court. On the basis of the recommendations made by him and the Chief Justice of the Supreme Court aird on the advice of the Chairman Azad Jammu and Kashmir Council, two Judges were appointed in the High Court. After these appointments were made, there was no vacancy left which could justify the appointment of arty other person including respondent No. 3 as Judge of this Court. His third point is that the panel obtained in 1989 was to fill two vacancies in the High Court. After the appointment of two Judges out of this panel, the High Court stood complete. If the Government wanted to increase the strength of the High Court, it should have amended the relevant law. Thereafter the President should have obtained a new panel of eligible persons from the sitting Chief Justices of the High Court and the Supreme Court. While elaborating his point, he argued that on 22.9.1989 the appointment of Mr. Justice Abdul Majeed Mallick Chief Justice of the High Court, who was performing his functions as ad hoc Judge of the Supreme Court, was terminated with immediate effect, resultantly he assumed his responsibilities as Chief Justice of the High Court. In the like way, on 14.3.1990, Raja Muhammad Khurshid Khan, the Chief Justice of the Supreme Court, on attaining the age of superannuation, had retired and in his place the present Chief Justice, Sardar Said Muhammad Khan assumed the charge of the office. These two persons were relevant so far as the provision of consultation with the Chief Justices is concerned for the appointment of any other Judge in the High Court. But both these persons were not consulted. The old panel obtained in 1989 for filling two vacancies in the High Court was wrongly utilized to accommodate respondent No. 3 as Judge of this Court. According to the petitioner, the case of appointment of respondent No. 3 as Judge of this Court was not processed as required by law. According to him, the President of the time obtained the advice from the Chairman Azad Jammu and Kashmir Council on his letter without even sending the panel of persons drawn by the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir in 1989. We have given due consideration to the arguments of the petitioner and have perused the record made available by him on the file. The first point raised by the petitioner can be conveniently answered by reference to the order of appointment of respondent No. 3 as Judge of this Court issued under No. 3/19/91-O.A.D. dated 5.5.1991, which is as under :- "No. 3/19/91-O.A.D. In exercise of the powers conferred bysub-section (2-A) of Section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the President, on the advice of the Azad Jammu and Kashmir Council, is pleased to appoint Mr, Manzoor Hussain Gilani, Advocate, as Judge, High "Court. 2. This Notification shall take effect on and from the date Mr. Manzoor Hussain Gilani enters upon his office as such Judge." There is no dispute that under law a Judge in the High Court can be appointed by the President on the advice of the Chairman Azad Jammu and Kashmir Council after consultation with the Chief Justices of the Supreme Court and the High Court. The practice is that the President obtains a panel of eligible persons from the Chief Justices of the Supreme Court and the High Court, on the basis of which he seeks advice from the Chairman AJ&K Council. We agree that in the impugned notification, words "consultation with the Chief Justices" are missing. But in our view, this omission is immaterial due to two reasons : Firstly, the impugned notification relating to the appointment of respondent. No. 3 as Judge of this Court especially contains the recital of sub-section (2-A) of Section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which provision being relevant, is reproduced as under : "A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation:-- (a) With the Chief Justice of Azad Jammu and Kashmir; and (b) Except where the appointment is that of Chief Justice, with the Chief Justice of the High Court." Secondly, the notification was issued in strict compliance with the provisions of the Rules of Business. The same shall, the efore, be presumed to have been issued legally in accordance with the legal requirements, because presumption of correctness is attached to all the official acts unless and until they are rebutted through some cogent evidence, which is totally missing in the present case. In the previous litigation, reference of which has been given in the earlier part of this order, the elevation of respondent No. 3 was assailed by an Advocate of the local Bar. The Supreme Court of Azad Kashmir held his elevation as legal and valid vide its judgment dated 13.1.1993. The second ground raised by the petitioner is self-contradictory. The petitioner, in his petition, has admitted that the respondent Judge was appointed on the basis of the panel which was obtained by the President in 1989. This shows that the name of respondent No. 3 was present in the panel which was drawn by the acting Chief Justice of the High Court as well as by the Chief Justice of the Supreme Court in 1989. However, his objection in this behalf is that the said panel was obtained to fill two vacancies of Judges in the High Court. According to the petitioner, after the appointment of Sheikh Basharat Ahmad and Khawaja Muhammad Saeed as Judges of the High Court, the High Court had become complete. There was no vacancy left in the High Court, as such no fresh panel was obtained by the President from the two Chief Justices of the superior Courts of Azad Kashmir. According to the petitioner, the budget for the respondent Judge and his staff was made available much after his appointment. We are not impressed even by his this submission. This point was previously pressed before the Supreme Court in the earlier litigation against the said Judge and was resolved by the apex Court by making following observation : "We have given due consideration to the arguments on the point and would like to note that no law has been cited that the President or the Government are empowered under the Courts and Laws Code or the Azad Jammu and Kashmir Interim Constitution Act to 'create' the post of a Judge in the High Court. Even otherwise, sometimes the budgetary provisions for a newly appointed Judge are made after theappointment and that is never interpreted to mean that the order of the Government making budgetary provisions for the Judge and his staff would imply that the post of the Judge was created by the said order...." The petitioner's another attack in this regard is that the Chief Justice of the High Court was illegally sent to the Supreme Court as ad hoc Judge and Sardar Muhammad Ashraf Khan was appointed as acting Chief Justice of the High Court under Section 5(l)(a) of the Azad Jammu and Kashmir Courts and Laws Code, 1949. According to him, the appointment of Mr. Justice Sardar Muhammad Ashraf Khan as acting Chief Justice of the High Court under the provisions contained in the Azad Jammu and Kashmir Courts and Laws Code, 1949, was bad in law. Any appointment in pursuance of his recommendations was a subversion of the Constitution, ae such void ab initio. We have given our thought to this submission also. Prior to the amendment of the Constitution carried through Act No. XX of 1993, there was no provision in the Azad Jammu and Kashmir Interim Constitution Act that if the office of Chief Justice of the High Court is vacant or the Chief Justice is absent or is unable to perform the functions of his office due to any other cause, how the Court could perform its functions. For this reason, the provision contained in the Azad Jammu and Kashmir Courts and Laws Code, 1949, were used to be invoked and the senior Judge among the other Judges used to act as acting Chief Justice. In the light of this practice, Sardar Muhammad Ashraf Khan, who was next in seniority to the Chief Justice of the time, Mr. Justice (retired) Abdul Majeed Mallick, was appointed as acting Chief Justice of this Court. Recently, on distinguishable facts, this practice was not approved by the apex Court of Pakistan in the famous 'Judges Case', "Al-Jehad Trust and others versus Federation of Pakistan and others", P.L.D. 1996 Supreme Court 324. In our view, no illegality can be presumed with the appointment of the Judges on the recommendation of the acting Chief Justice made prior to the above referred recent judgment of the Supreme Court of Pakistan. A Division Bench of this Court in the case filed by the present petitioner against another Judge of this Court, Mr. Justice Muhammad Siddique Farooqi, has expressed the same view, with reasons which need not be reproduced in this order, particularly when the petitioner who had availed right of appeal before the Supreme Court against that order, withdrew his appeal on 15.9.1996. The petitioner, therefore, was estopped by his conduct to build a case contrary to the spirit of the judgment given in his own case on the points which he has agitated second time through this petition. There was no illegality committed by respondents 1 and 2 in acting upon the recommendation of the acting Chief Justice of the High Court because the functions performed by him as acting Chief Justice shall remain valid and effective even if his own appointment is found illegal or invalid. There are number of authorities in support of this proposition. However, we will like to refer to only one authority of the Supreme Court of Azad Jammu and Kashmir, in a case titled "Azad Government of the State ofJ & K vs. Kh. Noor-ul-Amin and others" (1991 P.S.C.. 967). The facts of this case were that late Col. (Rtd.) Muhammad Naqi Khan was elected in 1985 as a member of the Azad Jammu and Kashmir Legislative Assembly as a nominee of Tehrik-e-Amal Party. In the Legislative Assembly, All Jammu and Kashmir Muslim Conference obtained majority, as such formed the Government which was headed by Sardar Sikandar Hayat Khan as Prime Minister. Tehrik-e-Amal Party was the main opposition party in the Assembly. On June 9, 1988, late Col. (Rtd.) Muhammad Naqi Khan was inducted in the Cabinet. Kh. Noorul-Amin, a member of the District Bar Association Mirpur, filed a petition in the High Court contending therein that late Col. (Rtd.) Muhammad Naqi Khan by taking oath in the Cabinet of All Jammu and Kashmir Muslim Conference, had ceased to be the member of the Legislative Assembly in view of the provisions contained under sub-section (3) of Section 5 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. This writ petition was allowed by this Court vide order dated April 21, 1990. This judgment was assailed in appeal before the Supreme Court of Azad Jammu and Kashmir. Our view is fortified by the observation recorded by the learned Supreme Court in para 14 of its judgment, which reads : "14. Before parting with the case, we may point out that 'de facto doctrine' which has been given due recognition by the Courts of law is not only applicable to a Judge but it also applies to certain officers. Under that doctrine the contravention of a constitutional provision may invalidate an appointment but the acts done and functions performed by a person who hejd that office acting under the colour of lawful authority continue to be valid and effective. This doctrine has recently been applied by this Court in Amjad Hussain and others v. Ghulam Rasool Mir (Criminal Appeal No. 6 of 1990)." Sardar Muhammad Ashraf Khan performed his duty as Acting Chief Justice from September 29, 1987 to September 22, 1989. All the acts performed by the High Court during this period of time were never questioned either in the High Court or in the Supreme Court. Later on, the Interim Constitution Act was amended in the light of the provisions contained in Section 5, sub-section (1-A) of the Azad Jammu and Kashmir Courts and Laws Code, 1949, which reads as under :-- "(1-A). At any time when :-- (a) the office of the Chief Justice of the High Court is vacant; or (b) the Chief Justice of the High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the High Court to act as Chief Justice." It is our considered opinion that in the light of the above referred facts, all the facts performed by Sardar Muhammad Ashraf Khan in his capacity as Acting Chief Justice had not only de facto validity but had acquired the de jure validity by reasons of the un-questioned recognition, extended to them by the Courts in Azad Kashmir and later on by the Constitution itself after it was amended strictly in accordance with the above quoted provisions contained in Section 5(1-A) of the Azad Jammu and Kashmir Courts and Laws Code, 1949. The validity of the act done by him including drawing of panel of eligible persons for their elevation as Judge of the High Court, is therefore, no longer open to challenge. In view of the above, there is no justification for us to issue notice to the respondent-Judge that under what authority of law he is holding the office of Judge of the High Court. In the light of the above reasoning, this writ petition is dismissed in limine. However, before parting with the case, we have noted with regret that certain indecent remarks have been given by the petitioner about respondent No. 3 without any proof. The petitioner has even attributed malice to the Bench which had dismissed his petition which he had filed against another member of this Court. The petitioner, who in the very beginning of his petition, has pleaded that he was conversant with law on account of his long association with the profession as an Advocate and a judicial officer, should have pleaded the facts in a concise form to enable the respondents and this Court to ascertain whether in fact and in law a cause of action did arise to him or not. He had no right to pass indecent remarks about the respondents to blame them. The indecent remarks given by him in para 10, starting from the words "While going through the judgment" upto the words "decision of the writ petition." occurring before the sentence "The judgment is attached herewith as Annexure I", in para 11, fourth line, starting from the words "The observation" upto the words "by any citizen", and sub-para (B) of para 13 of his writ petition may cause adverse effect on the dignity, impartiality and independence of the institution and may even lower down the prestige of the Judges in the mind of the general public. These remarks could be taken notice of for action, but keeping in view that he has been removed from service against his expectation that he would retire at the age of 62 years, we ignore this aspect of the matter. However, the remarks referred above are ordered to be struck off. (Aq.By.) Petition dismissed.
PLJ 1997 AJK 78 PLJ 1997 AJK 78 Present: CHAUDHARY MUHAMMAD TAJ, J. Mst. DANA BEGUM etc.-Appellants versus AZAD GOVT. OF STATE OF JAMMU AND KASHMIR etc.-Respondents Civil Appeal No. 7 of 1993 dismissed on 3-3-1997. Land Acquisition Act, 1894-- -S. 18 read with S. 5 of Uuutation Act 1908-Land--Acquisition of- Reference to District Judge-Dismissal of--Appeal against-Award was announced by Collector on November 25, 1987 in presence of attorney of petitioners/appellants, whereas eference was filed on March 16, 1988 which was clearly filed beyond limitation, (reference should be filed within 6 weeks from the date of Collectors Award without any ambiguity-Point raised by learned counsel with regard to validity of award, lso merits no consideration as point was neither raised in pleadings nor argued before trial Court.-In absence of any material in trial Court file this point which is a mixed question of law and facts cannot be resolved-It may also be observed that S. 5 of imitation Act does not apply to proceedings under Land Acquisition Act-Appeal dismissed. [Pp. 80 & 81] A & B PLD 1971 AJK 33 rel. Kh. Abdul Basit, Advocate Tor Appellants. Malik Muhammad YusufKhan, Advocate for Respondents. Date of hearing: 3-3-1997. order The above captioned two appeals raise an identical question of facts and law, as such, are disposed of by this common order. 2. Appeal No. 7/93 relates to land measuring 50 kanals 3 marlas comprising Survey Nos. 1223, 1225 £ 1222, situate in village Mandi, Tehsil Kotli, while appeal No. 8/93 relates to land measuring 50 kanals 3 marlas, comprising survey Nos. 122S-min and 1224, situate in village Mandi, Tehsil Kotli. The above two appeals have been filed against the judgment and order passed separately in two references submitted to the District Judge, Kotli, by the Collector Land Acquisition, on March 16, 1988, which were dismissed by separate orders, on January 30, 1993. 3. The facts necessary for the disposal of these appeals are that the petitioners-appellants filed two references before the Collector Land Acquisition, to the effect that land mentioned in the references, was owned by them which was acquired by the Government of Azad Jammu and Kashmir and an award was made by the Collector, Land Acquisition It was claimed that the petitioner-appellants were in possession of the and as tg. owners, as such, were entitled to receive its compensation amount. The f entry of respondents No. 2 to 10 to receive the compensation amount as its 1 owners, is illegal and inoperative against the rights of the petitionerappellants. The award was also challenged on the ground thai less compensation of the land was determined in view of its prevalent market value. The learned District Judge after framing necessary issues, receiving evidence from the respective parties and hearing them, dismissed these references, on the ground of same being filed after the expiry of period of limitation and on merits as well. Hence these appeals. 4. Kh. Abdul Basit, the learned Counsel for the appellants has raised the following points in support of his appeals :-- (i) That no legal award was made by the Collector, Land Acquisition. It was explained that the award was not signed by the concerned Collector Land Acquisition; (ii) that no point with regard to limitation was raised in the objections filed by the non-applicants, as such, no issue was framed, therefore, the observation of the District t Judge with regard to the references having been filed after I the limitation, was not maintainable; (iii) that the learned District Judge failed to take into consideration the evidence produced by the parties, i; particularly, the evidence of the petitioner-appellants, as j such, the order passed by the learned District Judge, is not maintainable; and ^ (iv) that the matter relates to apportionment of compensation amount, as such, no limitation is prescribed for filing a reference before the Collector Land Acquisition. 5. On the other hand, Malik Muhammad Yusuf Khan, the learned Counsel for the respondents, while controverting the points raised by the learned Counsel for the appellants, addressed the following arguments -- (i) That the points raised by the learned Counsel for the appellants, particularly, the one dealing with the validity of K the award, were nut tuken either in reference or duringjie appellants, particularly, the oiie Baling with the validity of'"
the award, were not taken either in reference or during the arguments before the trial Court; (ii) that the point raised with regard to non-framing of an issue on the point of limitation, merits no consideration, as the award was announced in presence of the attorney of the petitioner-appellants. Therefore, the limitation, in any case, would be six weeks from the date of announcement of the award; and (iii) that the petitioner-appellant's plea to have produced the evidence in support of issue of limitation provided the same was framed, has no validity in the eye of law as a copy of the award was not required for tiling of a reference and even in case the petitioner-appellants proved to have applied for its copy, which was not provided to them, does not extend the period of limitation prescribed for it. 6. I have heard the learned Counsel for the parties and also gone through the record. It is not disputed between the parties that the award was announced in presence of the attorney of the petitioner-appellants. The question as to what would be the limitation for filing a reference before the Collector Land Acquisition if any person interested has not accepted the award, or has objection to the measurement of the land, amount of compensation, the person to whom it is payable or apportionment of the compensation among the persons interested is also involved, has rimary import nce in the case. It would be proper to deal first with the point raised with regard to framing of an issue on the relevant subject. It is, no doubt, correct that the non-applicants failed to raise this point in the objections filed by them. The Court also omitted to frame an issue on the point. However, it may be stated that it is not necessary to frame an issue in the circumstances of the case. The petitioner-appellants claimed to have filed their applications for the certified copy of the award which was not provided to them, as such, they were constrained to file the reference after the prescribed eriod of limitation and in case an issue was framed, they would have produced the evidence in support of their said assertion, as such, the limitation be extended. I am afraid, I cannot agree with the contention of the learned Counsel for the appellants for the simple reason that the filing of the reference hardly requires a copy of the award which could have been filed without a copy of the same and thus, the plea for producing evidence in support of the issue for the purpose of extending the prescribed limitation, merits no consideration, apart from the fact that the etitioner-appellants have failed to bring any legal evidence in support of their assertion for filing Ian application for the copy of the award. It may also be observed that Section 5 of the Limitation Act does ot apply to the proceedings under the Land A Acquisition Act. The reliance in this regard may also be placed on PLD 1971 AJK 33. 7. Coming back to the point of prescribed limitation, it may be stated that any person interested who has not accepted the award or who has objection to the measurement of the land orapportionment of the compensation among the persons interested, has to file a reference under Section 18 of the Land Acquisition Act, which provides its filing within 6 weeks from the date of Collector's award in case the interested person was present or represented before the Collector at the time of making the award. In other cases, within 6 weeks of the receipt of the notice from the Collector under Section 12(2), Land Acquisition Act, or within 6 months from the date of the Collector's award, whichever period shall expire first. The relevant Section is reproduced below :-- "S. 18. Reference to Court. (1) Any person interested who has not accepted the award, may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken : Provided that every such application shall be rnade,-- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's ward; (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub section (2), or within six months from the date of the Collector's award, whichever period shall first expire." 8. In the instant case, the award was announced by the Collector on November 25, 1987, in presence of attorney of the petitioner-appellants, whereas the reference was filed on March 16, 1988 which was clearly filed beyond the limitation, without any ambiguity. It would not be out of place to mention that the point raised by the learned Counsel with egard to the validity of the award, also merits no consideration as the point was neither raised in the pleadings nor argued before the trial Court. In absence of any material in trial Court's file, this point which is a mixed question of facts and law, cannot be resolved. 9. In view of the aforesaid position, the appeals stand dismissed. As the appeals have been disposed of on preliminary point of limitation, therefore, the other points raised by he learned Counsel for the parties, are not required to be adverted to. (K.A.B.) Appeal dismissed.
PLJ 1997 AJK 82 PLJ 1997 AJK 82 Present: CHAUDHARY MUHAMMAD TAJ, J. TAJAIB KHAN-Petitioner versus LAL Khan etc.-Respondents Civil Revision No. 4 of 1997 accepted on 3-3-1997. (Right of Prior Purchase Act, 1993-- -S. 21--Pre-emption--Trial judge ordered petitioner-plaintiff to deposit one-fifth of pre-emption money, till next date of hearingAn application on behalf of plaintiff-petitioner to vary order for deposit, of cash to security, was moved which was disallowed by trial court-Challenge to in revision petitionIt can safely be resolved that the trial court has got power to vary its orders for deposit or security, as case may be, at its option before settlement of issues-It may be clarified that court, on exercise of fresh option, can replace its previous order requiring cash deposit to security or order security to cash deposit, but condition precedent is that this exercise has to be made before settlement of issues-Petition accepted. [P. 84] A Raja Javaid Akhtar, Advocate for Petitioner. Ch. Muhammad Nasim, Advocate for Respondents. Date of hearing: 3-3-1997. order This revision petition has been filed against the order of learned Additional Sub Judge, Kotli, passed on November 21, 1996. 2. The facts necessary for the disposal of this revision petition are that plaintiff-petitioner filed a pre-emption suit in the Court of Additional Sub Judge, Kotli. The learned trial Judge ordered the plaintiff to deposit one-fifth of the pre-emption money, till the next date of hearing. An application on behalf of the plaintiff-petitioner to vary the order for deposit of cash to security, was moved which was disallowed by the trial Court. Hence this revision petition. 3. Raja Javed Akhtar, the learned Counsel for the petitioner maintained that the learned trial Judge failed to apply his mind to the facts of the case. It was also argued that the trial Court held that the order for cash deposit had already been passed by it, therefore, the order could not be varied as the Court did not possess power to review its order. The observation made by the trial Court suffered from an illegality, argued the learned Counsel for the petitioner. The learned Counsel relied on PLD 1970 AJK 66 and PLD 1967 S.C. 418, in support of his assertions. On the other hand, Ch. Muhammad Nasim, the learned Counsel for the opposite side vehemently opposed the petition, on the grounds that e Court had already passed an order and there was no legal justification to vary its previous order and replace the same for security. There was no error in the order, as such, the trial Court rightly held that it had no power to review its earlier order. 4. I have heard the learned Counsel for the parties and also gone through the record. Under Section 21, of the Right of Prior Purchase Act, the Court shall at, or at any time before the settlement of issues, require the plaintiff to deposit in Court a sum as in the opinion of the Court, is equal to one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court, for the payment of a sum not exceeding such probable value within such time as the Court may fix in such order. It is for the Court to exercise its discretion either to equire the plaintiff to deposit cash or give security keeping in view the relevant circumstances, such as bonafide in filing the pre-emption suit etc. 5. In the instant case, the plaintiffs moved an application praying for varying the order requiring the cash deposit for giving security. The trial Court rejected the application on the ground that it did not possess power to review its order passed earlier. It may be stated that the learned trial Judge is empowered either to require the plaintiff to deposit the cash amount or give security and can vary its order if the circumstances of the case so require. Therefore, the observation made by the learned trial Judge that he does not possess the power to review his order, is not in consonance with law. Reliance in this regard may also be placed on a Full Bench judgment recorded by this Court in the case titled Mst. Resham Jan vs. Khan Nawab Khan (PLD 1970 AJK 66), wherein the following observation was made :-- "-It is open to the Court to vary its orders for deposit or security as the case may be, but this option can be exercised before the settlement of issues after which, the stage for exercise of option comes to an end. As issues had not been settled till then in this case, it was open to the Court to vary its previous order on exercise of fresh option and replace the same for security." A similar proposition came under consideration before the Supreme Court of Pakistan in another case titled 'Cft. Zulfiqar All vs. Mian Akhtar Islam & another' (PLD 1967 Supreme Court 418), where it was held as under: ~ "-The question was whether the trial Court was competent to vary its original order requiring security and to replace it by an order in the alternative form allowed by the law, viz., an order for deposit of one-fifth of the purchase price : Held, that such a power does exist, but it must be exercised before the settlement of issues, and it must be exercised expressly. That view is supportable upon a consideration of the wording of subsections (1) and (4) of Section 22, Punjab Pre-emption Act (I of 1913). There is nothing in subsection (1) to indicate that the choice can be made only once in a suit. It is well known that the requirement of a cash deposit or security contained in the subsection is intended to guard against vexatious and mala fide litigation, and thus to guarantee a vendee against frivolous proceedings on the part of possible pre-emptors. The deposits is a token of good faith, and equally the security for the full amount of the purchase price constitutes a guarantee that plaintiff will meet whatever demand is made for money in case his suit succeeds. The furnishing of a guarantee in one or the other form is made obligatory by subsection (1), but the subsection contains no words to indicate that the choice between the two forms of guarantee can only be made once, and so far as the safeguard of the interests of the vendee is concerned, the two guarantees are to be placed on a level. An indication that the law does not impose so strict a condition that a form of guarantee once chosen cannot be altered by the trial Court within the time permitted is to be found in the wording of subsection (4)." Relying upon the aforesaid authorities, it can safely be resolved that the trial Court has got the power to vary its orders for deposit or security, as the case may be, at its option before the settlement of the issues. It may be clarified that the Court, on exercise of fresh option, can replace its previous order requiring the cash deposit to security or order the security to cash deposit, but the condition precedent is that this exercise has to be made before the settlement of the issues. 4. In view of the above discussion, the revision petition is accepted and the order recorded by the learned Additional Sub Judge, Kotli is set aside. The trial Court shall consider the application of the plaintiffpetitioner afresh and decide it keeping in view the relevant law as discussed above. (K.A.B.) Petition accepted.
PLJ 1997 AJK 84 PLJ 1997 AJK 84 Present: chaudhary muhammad taj, J. BOSTAN KHAN-Petitioner versus ABDUL KHALIQ etc.»Respondents Civil Revision No. 31 of 1996 dismissed on 13-3-1997. (i) Civil Procedure Code, 1908 (V of 1908)-- 0. 41 R. 27~Additional evidence-Production of~Prayer for-Acceptance of--Challenge to--O. 41 R. 27 whether applies to trial court or not- Question of--Though rule is specifically for ppellate court, but it also recognises authority and power vested in trial court as envisaged in clause (a) of above ruleDocument sought to be produced is a public document and came in possession of respondents after recordings evidenceTherefore question of document being fabricated or sought to be produced to fill in lacuna in case, does not arise-Document appears to have a material bearing of suit and was, in fact, not in possession of respondent at time they had an opportunity to produce their evidence- Held :-It can safely be resolved that trial court exercised its proper jurisdiction in allowing production of additional evidence-Petition dismissed. [P. 90] A & B Raiz A/am, Advocate for Petitioner. Raja Hassan Akhtar, Advocate for Respondent. Date of hearing: 14-3-1997. order This revision petition is directed against the order of Additional Sub Judge, Mirpur, passed on April 24,1996, whereby additional evidence was allowed. 2. The facts giving rise to this revision petition are that a suit for declaration alongwith the prayer for permanent injunction, was filed by the plaintiff-petitioner, in the Court of Additional Sub Judge, Mirpur. After framing issues, the trial Court received evidence from both the par-ties. The defendant-respondents, after dose of their evidence, applied hrough an application for permission to produce additional evidence. The learned Additional Sub Judge, after receiving objections from the opposite side, proceeded to allow the oduction of additional evidence. The said order is the subject of challenge before this Court, through the instant revision petition. 3. Mr. Riaz Alam the learned Counsel for the petitioner raised the following points in support of the petition :-- (i) That the trial Court exercised illegal jurisdiction under Rule 27 of Order 41, C.P.C., whereby additional evidence was allowed. It was explained that the above Rule applies to the appellate Court and not the trial Court; (ii) that the defendant-respondents, after availing the opportunity of bringing their evidence on record, moved the application, to fill in the lacuna inn the case; and (iii) that the plaintiff-petitioner would be deprived of the right to rebut the evidence brought on record as additional evidence. The learned Counsel referred to 1986 SCR 22, in support of his assertions. 4. On the other hand, Raja Hassan Akhtar, the learned Counsel representing the opposite side, opposed the petition by addressing the following arguments : (i) That Rule 27 of Order 41, CPC applies to the trial Court as well as appellate Court. The appellate Court would exercise jurisdiction in case the trial Court illegally refused to take any evidence. Therefore, the argument that the Rule applies to the appellate Court only, is not a correct proposition of law, advanced by the Council for the petitioner; (ii) that the Jamabandi for the year 1991-92, sought to be produced through additional evidence, was not available at the time the defendant-respondents availed the opportunity of production of their evidence. Therefore, the same could not be brought on record. It was explained that the relevant Jamabandi which is a public document, was prepared in the Settlement Operation for which the respondents secured a copy, as such applied for the additional evidence. It was also argued that the defendantrespondents did not waste any time in moving the Court; and (iii) that the argument advanced by the learned Counsel for the petitioner that the plaintiff-petitioner would be deprived of the right to rebut the additional evidence, is not correct as he would be entitled to rebut the additional evidence if he so chooses. 5. It have heard the learned Counsel for the parties and also gone through the impugned order. To appreciate the proposition, it would be necessary to reproduce the relevant provision of Rule 27 of Order 41, CPC, which is reproduced as under :-- "O.41, R-27, CPC. Production of additional evidence in Appellate Court.--(l) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if :-- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." The analysis of the above provision reveals that the additional evidence can be allowed by the appellate Court where the trial Court has improperly refused to admit the evidence which ought to have been admitted or the appellate Court requires such documentary evidence or witness and cannot pronounce its judgment without such additional evidence, or if the appellate Court requires such evidence for any other substantial cause. This rule is an exception to the principle that the appellate Court cannot record fresh evidence. Therefore, it may be recorded under this Rule provided the provisions of Rule 27 are satisfied. The power to allow additional evidence is discretionary in nature which is circumscribed by the limitations specified under the rule and can be allowed in proper cases even in second appeal. Where the evidence is improperly rejected by the trial Court or where it has illegally refused to take it, the appellate Court may allow such evidence to be brought on record, or where the appellate Court requires the document to be produced in order to enable it to pronounce the judgment, it may allow such evidence to be produced at the appellate stage. The power under this Rule can be exercised suo tnoto or on the application of a party. A party to the appeal may move the Court itself. The test provided is whether the appellate Court can pronounce the judgment without taking into consideration the evidence sought to be produced. This shall be done in the interest of justice and not for the purpose of allowing the patching up of a weak case Therefore, any other substantial cause has different in the context that the exercise of discretion has to be made keeping in view the administration of justice. Where an important evidence having material bearing on the merits of the suit, is subsequently discovered, there are three courses open to such party: (i) It may apply for admission of fresh evidence before the judgment; (ii) it may apply for review of the judgment after it has been pronounced; or (iii) it may appeal from the judgment and apply for admission of additional evidence, before the appellate Court. The proposition of allowing additional evidence came under consideration before the Supreme Court of Pakistan in a case titled 'Secretary to the Govt. of Pakistan vs. Gulzar Muhammad' (PLD 1969 S.C. 60) wherein the following observation was made :-- "--Normally, where important evidence having a material bearing on the merits of a case is subsequently discovered, there are, of course, three courses open to a party to the litigation. He may (i) apply for admission of the fresh material as additional evidence before the judgment is pronounced, (ii) apply for a review of the judgment after it has been pronounced and (iii) appeal from that judgment. The ppellant resorting to the last course must disclose as to why he could not have applied for a review of the judgment on the ground of discovery of the fresh evidence. In an appeal it is now well settled that additional evidence should not be admitted in order merely to enable one of the parties to litigation to fill in gaps in the evidence." In another case titled 'Ameeruddin vs. Ahmad' (1981 CLC 610), Mr. Justice Muhammad Eyas, J. (as he ten was) while resolving the point of allowing additional evidence, after discussing number of authorities on the subject, gave the following verdict :-- "--Now I proceed to consider the contention of the learned Counsel for the petitioner that since the respondent had failed to place on record the documents in dispute at the stage of evidence, he could not be allowed to fill in the lacuna in his case by producing the said documents at the stage of appeal. The case of Allah Ditta, Nur Muhammad and another, State of U.P. Malik Fazal Din, Ghaus Bakhsh, Parsotim Thakur and others and Abdul Aziz cited by the learned Counsel for the petitioner are on the point that a party cannot produce additional evidence at the stage of appeal to fill in gaps in the evidence but, as ruled in the case of Malik Fazal Din, Ghaus Bakhsh, State of U.P. and Parsotim Thakur and others, relied upon by the learned Counsel for the petitioner, and in the case of Messrs Muhammad Siddique Muhammad Umar and another, cited by learned counsel for the respondent, the Appellate Court can allow the production of additional evidence if it feels that the recording of such evidence is necessary for the proper administration of justice. In the present case also, the learned Additional District Judge was of the view that since the documents in question go to the very root of the case, they "have great importance and impact upon the fate of the suit." In other words, he permitted the production of the said documents not with a view to allowing the respondent to improve upon his case but for the correct and just decision of the case. It was explained to the learned Additional District Judge that initially the respondent was not aware of the documents and as soon as he came to know of them, he sought permission of the trial Court to produce them in evidence.-therefore, no legitimate exception can be taken to the impugned order of the learned Additional District Judge." The Supreme Court of Azad Jammu and Kashmir while dealing with the point in a case titled 'Tqj Din vs. Jumma and others' (PLD 1978 S.C. (AJ&K) 131) made the following observation :-- "--A litigant, for permission to adduce additional evidence at the stage of appeal, has to establish that evidence available apart from being of an unimpeachable character is so material that its absence might result in miscarriage of justice and that in spite of reasonable care and due diligence it could not be produced at the time the question was being tried or it has come into existence after complaint (????). 6. The case reported as A.I.R. 1931 P.C. 143 is also a basic case on the subject. The observations recorded therein have been followed in number of cases subsequently oming before the different jurisdictions, as such it would be most relevant to quote the dictum which is reproduced as under :-- "--The provisions of S. 107 as elucidated by order 41, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R. 27, Cl. (1) (b), it is only where the appellate Court "requires" it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case, it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard, a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent." It may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure, it is bound by R. 27(2) to record its reasons for so doing, and under R. 29, must specify the points tb which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case." 7. The Supreme Court of Azad Jammu and Kashmir in a case titled Abdul Qayum vs. Bashir Ahmed Khan & others' (1996 S.C.R. 22), referred to by the learned Counsel for the petitioner, has resolved the proposition in the following manner :-- "0 .41, E.27-Additional evidence-The rule postulates that the appellate Court may allow the production of Additional evidence; (i) when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) the appellate Court require any document to be produced or any witness to be examined to enable it to pronounce the judgment or for (iii) any other substantial cause--The additional evidence cannot be allowed to a party in order to fill up the lacunas or omissions or to patch up the weaker parts of its case-A party to the appeal may move the Court for the additional evidence but it can be allowed if it is required by the appellate Court itself on the basis of its own appreciation of the evidence already on the record! The test is whether the appellate Court can pronounce judgment without taking into consideration the evidence sought to be produced. A party that had opportunity but elected not to produce evidence cannot be allowed to give evidence that could have been given in the Court below-Mere lapse or negligence either on the party of the appellant or his counsel cannot be recognised as a substantial cause." 8. Keeping in view the relevant law and observations made by the different jurisdictions discussed above, it follows that though the rule is specifically for the appellate Court, but it also recognises the authority and power vested in the trial Court as envisaged in clause (a) of above rule. Therefore, the point raised by the learned Counsel for the petitioner for the trial Court having no such power to xercise the jurisdiction under the above Rule, is without any substance. 9. Next, the question arises whether in the circumstances of the present case, the order allowing the defendant-respondents to produce additional evidence is in consonance with the provisions of law established by the superior Courts in this regard. The defendants claimed that the document, the copy of the Jamabandi for the year 1991-92, has a material bearing on the merits of the suits which was not available at the time the defendant-respondents availed the opportunity of bringing their evidence on record. The evidence of respondents was closed on March 3, 1992, hile the documents, according to the respondents, was prepared later on by the Settlement Authorities and came into possession of the respondents on April 25, 1993. It is not disputed that the document sought to be produced is a public document and came in possession of the respondents on the aforesaid date. Therefore, the question of the document being fabricated or sought to be produced to fill in the lacuna in the case, does not arise. The document appears to have a material bearing on the suit and was, in fact, not in possession of the respondents at the time they had an opportunity to produce their evidence. Therefore, it can safely be resolved that the trial Court exercised its proper jurisdiction in allowing the production of additional evidence. The point of the petitioner of depriving him of the opportunity to rebut the additional evidence, in view of the stand taken by the learned Counsel for the opposite side that he has a lawful right to do so, also merits no consideration. 10. In view of the above discussion, the revision petition is found to have no substance in it which is hereby dismissed. (K.A.B.) Petition dismissed.
PLJ 1997 AJK 91 PLJ 1997 AJK 91 Present: MUHAMMAD RlAZ AKHTAR, CHOUDHRY, J. Mst. GUL-NAZ ALAM-Appellant ersus MUHAMMAD SADIQ JOO & 3 others-Respondents Sh. Appeal No. 2 1995, decided on 27-1-1997. (i) Family Courts Act, 1964-- -S. 5. r/w. Schedule-Suit for jactitation of marriage-Court-JurisdicUon of-Family Court dismissing suit for jactitation of marriage on ground of having no jurisdiction-Challenge to-Family Court Act, enacted for disposal and settlement of matters relating to marriage and family affairs and other matters connected therewith-Suit for jactitation of marriage, also, being a connected matter with family affairs etc. therefore, held, it was cognizable by Family Court in view of subsequent amendment in it's Schedule: Impugned judgment of Family Court, set aside and case remanded by accepting appeal. [P. 93] B, C & D (ii) Interpretation of Law- .While interpreting statutes, Court has to see the intention and basic purpose of legislation, because legislative purpose is reason for which particular enactment is made-Basic purpose of legislation plays an important role in interpretation of statute s tated in the Crawford's book "Interpretation of Law", page 248. [P. 92] A Sardar Shamshed Khan, Advocate for Appellant. Khawqja Aziz-ud-Din, Advocate for the Respondent order Through this appeal, the appellant has called in question the validity of the Judgment and decree of the Family Court Rawalakot dated 30.11.1994, whereby the suit of the appellant was dismissed. 2. The precise facts forming the back-ground of the instant appeal are that the appellant brought a suit for jactitation of marriage against the respondent before Sub-Judge Abbas-pur. On he creation of the Family Court, this suit was transferred to the Family Court Rawalakot. The learned Family Court vide order dated 30.11.1994, dismissed the suit on the ground, that the Family Court as no jurisdiction. The instant appeal has been filed against this order of the trial Court. 3. Mr. Shamshad Ali Khan, the learned Counsel for the appellant argued that no doubt under Section 5 of the Family Courts Act, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule. Although the Schedule does not contain the suit for jactitation of marriage, but the basic object of the Family Courts Act was expeditious ettlement and disposal of the disputes relating to the Family affairs. The suit for jactitation of marriage comes within the ambit of Family affairs, therefore, this suit was cognizable by the Family Court. 4. hile controverting the arguments of the learned Counsel for the appellant, the learned Counsel for the respondents, Kh. Aziz-ud-Din, contended that the Judgment and decree of the amily Court is based on sound and cogent reasonings and warrants no interference. 5. I have heard the learned Counsel for the parties and perused the relevant record and given my utmost muse to the respective arguments advanced by the learned Counsel for the arties. 6. The question which required determination in the instant case is, whether the family Court was competent to take the cognizance of a suit for jactitation of marriage ?No doubt Section 5 of the Family Courts Act contains that the Family Court shall have the exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. The schedule of the Family Courts Act does not contain the suit for jactitation of marriage. Now the question emerges that when the Schedule of the Family Courts Act does not contain the suit for jactitation of marriage, then how the Family Court was competent to take the cognizance of a suit for jactitation of marriage ? While interpreting a statutes, the Court has to see the intention and basic purpose of the legislation, because the legislative purpose is the reason for which the particular enactment is made. The basic purpose of the legislation plays an important role in the interpretation of Statute as stated in the Crawford's book, Interpretation of Law page 248, which read as under:-- "The Legislative purpose:- Naturally, the legislative purpose is the reason why the particular enactment was passed by the Legislature. Perhaps the reason was to remedy some existing evil, or create a new i-ight or a new remedy. Consequently, in seeking to ascertain the legislative purpose, the court will resort, among other things, to the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment, and to the consequences of the construction urged". 7. The basic purpose of the Family Courts Act, was to establish the family Court for expeditious settlement, disposal of disputes relating to the marriages and family affairs and the matters connected therewith. The Family Courts Act was enacted only for expeditious disposal of the disputes relating to the marriages and other family affairs. This purpose of the legislation also transpires from the preamble of the Family Courts Act, which reads as under:-- "WHEREAS it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith". The preamble of a statute is simply a prefactory statement at its beginning, following the title and preceding the enacting clause, explaining or declaring the reasons and motive for, and the objects sought to be accomplished by the enactment of a statute and should be resorted to unlock the mind of its makers. 8. The preamble of the Family Courts Act, pretends that the Family Courts Act was enacted for expeditious settlement and disposal of matters relating to the marriage and family affairs and other matters connected importance by District Judge when he ordered that original plaint be given back to plaintiff for filing fresh suit-Impugned order passed on wrong assumption of fact which is not maintainable-Appeal treated ae revision petition-Impugned order set aside-Case remanded to first appellate court with direction that it shall invite objections from petitioners under Order 23 C.P.C., afresh in accordance with law. [P. 961 A & B Raja Muhammad Siddique Khan, Advocate for Appellants. Raja Hassan Akhtar, Advocate for Respondent. Date of hearing: 14.3.1997. order This litigation is the out come of the suit filed by respondent Abdur Rashid for perpetual injunction in the Court of Sub Judge Mirpur on August 22, 1993 contending therein that he was owner-in-possession of the land measuring 2 kanals and 7 marlas comprising old survey No. 1468 (new) 1222 of village Rathowa Muhammad Ali, Tehsil Mirpur. He prayed that defendant-petitioners may be restrained from interfering in his possession or raising any boundary wall or from constructing any house over the suit land. In this case written statement was filed by the defendant-petitioners on November 21, 1993 wherein it was contended by them that they have purchased land measuring 3 kanals 18 marlas and 5 Sersaies out of old survey No. 1467, total measuring 5 kanals and 6 marlas. It was further contended by them that they have constructed their houses and boundary wall in this land. It was further pleaded that after filing of the suit by the plaintiff-respondent, on the intervention of the notables of the locality, the defendant-petitioners have demolished their boundary wall. After sometime, an application was moved on behalf of the plaintiff for the appointment of the Commission. This application was placed on record by the trial without passing any order on it. The plaintiff-respondent produced his evidence whereas no evidence was produced on behalf of the defendant-petitioners. After conclusion of the trial, the suit of the plaintiff-respondent was dismissed by the Sub Judge on September 20, 1994 by holding that he was not in possession of the land in dispute. Abdur Rashid, plaintiff-respondent, in the meantime moved an application for the initiation of the proceedings under Section 145 Cr.P.C. before the Court of Sub Divisional Magistrate in respect of the suit land. The defendant-petitioners moved a petition before this Court under Section 561- A Cr.P.C. for the quashment of the proceedings initiated under Section 145 Cr.P.C. against them. On October 22, 1994, the learned Counsel appearing for the plaintiff-respondent made a statement at the bar before this Court that his client has decided not to continue the proceedings before the Sub Divisional Magistrate. He also submitted that his client has already moved an application before the trial Magistrate for the dismissal of his application under Section 145 Cr.P.C. On account of this statement, the petition moved by the defendant-petitioners before this Court, was dismissed. The plaintiff-respondent thereafter filed an appeal before the learned District Judge Mirpur, against the judgment and decree of the Sub Judge. During the pendency of the appeal, an application was moved on March, 28, 1995 for the amendment of the suit and alternatively in para-3 of the same, a request was made that the plaintiff be allowed to file fresh suit after returning him the previously filed suit. On this application, objections were invited which were accordingly filed on April 25, 1995. There is another application at page-16 of the file, whereby request incorporated in para-3 of the previous application, was repeated. On this application no date is mentioned. Even the stamp duty has not been paid. The learned Presiding Officer has filed this application but has not mentioned any date. With the help of the learned Counsel for the parties, I have gone through the interim orders. The presentation of this application is not mentioned in any interim order, neither it is proved that objections were invited but the same were not filed by the present petitioners. This is the ground which was given importance by the learned District Judge when he ordered that original plaint be given back to the plaintiff for filing fresh suit. The learned District Judge appears to have assumed a wrong fact which resulted in passing the order under challenge. The defendant-petitioners have filed appeal before this Court against the order passed by the learned District Judge Mirpur which is not maintainable. In view of the peculiar facts of this case and in order to meet the ends of justice, this appeal is treated as a revision petition. The order passed on wrong assumption of fact, is set aside. I am constrained to remand this case to the First Appellate Court with the direction that it shall invite objections from the defendant-petitioners and decide the application of the plaintiff-respondent under Order 23 C.P.C. afresh in accordance jwith law. (MYFK) Order accordingly.
PLJ 1997 AJK 97 PLJ 1997 AJK 97 Present: ki&waja muhammad saeed, C.J. MUHAMMAD NAZIR ABBASI-Petitioner versus AZAD J AND K COUNCIL etc.-Respondents Writ Petition No. 305 of 1996, accepted on 31.5.1997. gr A zad Jammu and Kashmir Interim Constitution Act, 1974- -S. 44 read with Notification Islamabad, the 2nd May, 1994-No. E-ll- 15/80--AJKC--Inspector Income Tax-Promotion through Departmental examination-Refual of--Challenge to-Mere reading of bove otification ; makes it clear that all incumbents in BPS-14 will be eligible for further promotion, if they have got five years service to their credit and passed departmental examination-Earlier conditions aid down by Azad :,, Kashmir Government under order No. 193/62 dated April 5, 1962 were "j not repeated in this Notification-Therefre, it would be safe to lay down ! that now it is not ondition precedent for further promotion for an i Inspector in BPS-14 to obtain at least 50% marks in Departmental I . Examination-This notification is formal pronouncement f will of competent authority i.e. council-Legal rights and obligations prescribed i under it must necessarily be observed in future till the time any change is teffected in it-Petition allowed. [P. 103] A Kh. Muhammad Aslam Habib, Advocate for Petitioner. Mr. Ashfaque Hussain Kaiani, Advocate for Respondents. Date of hearing: 31.5.1997. order The petitioner has invoked the constitutional jurisdiction of this Court under section 44 of the Azad .Jammu and Kashmir Interim Constitution Act, 1974 in the back-ground of the following facts. ' He was inducted in the Excise Department as Sub Inspector in the year, 1971. On the recommendation of the Departmental Selection « Committee, the petitioner was promoted as Inspector Income Tax on April 20, 1993. In this capacity, the petitioner appeared in the 22nd Departmental Examination held in December, 1995 under Roll No. 1/14 and secured 334 out of 0 marks. He secured the required percentage prescribed for each paper but as he had not obtained 50 percent or more marks, therefore, in the wisdom of the department the petitioner has not qualified the examination. The petitioner, in this petition has assailed th£ decision of the department on the round that the syllabus prescribed for the departmental examination has two parts. In order to qualify Part-A, the candidate is required to obtain 33% marks in each paper and 40% marks in aggregate whereas in Part B, the candidate must obtain 40% marks in aggregate whereas in Part-B, the candidate must obtain 40% marks in each paper and 50% marks in aggregate he case of the petitioner is that he had obtained 40% marks in each paper and 43.05% marks in aggregate in Part-A whereas 40% marks in each paper and 53.33% marks in aggregate of Part-B but errneously in fee result sheet prepared by the Department, it was held that he did not qualify the departmental examination. The respondents in their written statement dated 21.12.1996 have pleaded that the standard mentioned by the petitioner is already holding and not. for the purpose of further promotion. According to the respondents. Department, the petitioner was required to attain the minimum aggregate marks of 50% in Part-A which deals with the Income Tax Laws and also in Part-B which deals with the Excise Laws. The petitioner, therefore, was required to obtain 350 marks out of 700 to be declared as qualified. I have heard the learned Counsel for the parties and perused the entire record with care. The case of the department is that the petitioner is not fit for promotion as he has not passed the departmental examination by obtaining at least 50% marks. The learned Counsel for the petitioner has seriously controverted this proposition in the light of the different Government Orders. He has rightly pointed out that prior to the promulgation of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Income Tax Department was a part of the Azad Government of the State of Jammu and Kashmir . After the enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Income Tax Department was given in the legislative and executive control of the Azad Jammu and Kashmir Council. The Azad Government of the State of Jammu and Kashmir vide its order No. 193/62 dated April 5, 1962 had prescribed the syllabus for departmental examination of Inspectors; wherein it was laid down that percentage in each paper of the Said examination shall be 33% and 40% in aggregate. 6nly such an Inspector was held entitled for further promotion who had obtained 50% or more marks in the Departmental Examination. After 32 years in 1994, the Azad Jammu and Kashmir Council vide its Notification dated May 2. 1994 changed the terms and conditions for appointment to the post in the Taxation Group carrying PBS-16 and above. This Notification being relevant is reproduced below in extenso : PART-1 "Acts, Ordinance, Rules and Regulations Azad Jammu and Kashmir Council Secretariat (Azad Jammu and Kashmir Council, Board of Revenue) NOTIFICATION Islamabad, the 2nd May, 1994 No. E-11-15/80-AJKC. In pursuance of Sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, as adopted, the following method of appointment, qualifications, experience, age limits and other conditions are laid down for appointment to the under mentioned posts in PBS-16 and above in the Taxation Group (Income Tax-cum-Central Excise) Excise and Taxation Department, AJ&K under the Azad Jammu and Kashmir Council Secretariat :- Designation PBS Commissioner Income Tax-Cum-Collector Excise and Taxation. 20 Inspecting Additional Commissioner Income Tax (Range, Appellate Additional Commissioner Income Tax, Inspecting Additional Commissioner Income Tax (SYR)/Deputy Director Excise/Sales Tax, Deputy Director Excise and Taxation. 19 Deputy Commissioner Income-Tax-cwm-Assistant Collector Excise/Excise and Taxation Officer. 18 Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer. 17 Income Tax Officer-cum-Superintendent, Excise Assistant, Excise and Taxation Officer. 16 METHOD OF APPOINTMENT 2. The above posts shall be filled in as follows:- . S. Name and EPS of Method of appointment No. of the post By By initial, promotion appointment 1. Commissioner Income Taxcum-Collector Excise and Taxation (BPS-20) 100% 2. Inspecting Additional Commissioner Income Tax (Range), Appellate Additional Commissioner Income Tax, Inspecting Additional Commissioner Income Tax (SYR) Deputy Collector Central Excise/Sales Tax, Deputy Director Excise and Taxation. (BPS-19) 100% 3. Deputy Commissioner Income-Taxcum-Assistant Collector Excise/Excise and Taxation Officer (BPS-18) 100% 4. Assistant Commissioner Income Taxcum-Assistant Collector Excise/Excise and Taxation Officer (BPS-17). 25% 75% 5. Income Tax Officer-cum-Superintendnet Excise/Assistant Excise and Taxation Officer (BPS-16). 100% Provided that :- (a) Against 25% promotion quota the officers promoted to the posts of Assistant Commissioner Income Tax-cum- Assistant Collector Excise/Excise and Taxation Officer BPS 17 will e required to undergo the specialized training at the Directorate of Training (Income Tax), Lahore and (Customs and Central Excise) Karachi or such other departmental training he Azad Jammu and Kashmir Council Board of Revenue may prescribe. (b) 75% of the post of Assistant Commissioner Income Taxcum-Assistant Collector Excise/Excise and Taxation Officer BPS-17 reserved for initial appointment shall be filled on the basis of Competitive Examinatio conducted by the Azad Jammu and Kashmir Council Public Service Commission i.e. Federal Public Service Commission. (c) If no suitable person is available for promotion, the post or posts reserved for promotion shall be filled by initial appointment and, failing that, by transfer. condition: for promotion 3. Promotion to post in coftrmn 2 below shall be made by selection -" from amongst the persons who hold the posts specified in column 2 on a basis :- S. No. Name and EPS of post person eligible. Condition of eligibility 4. Commissioner Income taxcum-Collector Excise and Taxation (BPS-20) Inspecting Additional Commissioner Income Tax (Range)/Appellate Additional Commissioner Income Tax Inspecting Additional Commissioner Income Tax (S&R)/Deputy Collector Central Excise/Sales Tax/Deputy Director Excise and Taxation (BPS-19, Deputy Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-18) Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise & Taxation Officer (BPS-17) Inspecting Additional Commissioner Income Tax (Range/Appellate Additional Commissioner Income Tax/ Inspecting Additional Commissioner Income Tax (S&R) Deputy Collector Central Excise/Sales Tax/Deputy Director Excise and Taxation (BPS-19) Deputy Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-18) Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-17). Income Tax Officer-eum- Superintendent Excise/Assistant Excise and Taxation Officer (BPS- 16) 17 years service in BPS-17 and above. years in and 12 service BPS-17 above. 5 years service in BPS-17. 3 years service in BPS-16. be filled on the basis of Competitive Examination conducted by the Azad Jammu and Kashmir Council Public Service Commission i.e. Federal Public Service Commission. (c) If no suitable person is available for promotion, the post or posts reserved for promotion shall be filled by initial appointment and. failing that by transfer. CONDITION FOR PROMOTION 3. Promotion to post in coftrmn 2 below shall be made by selection from amongst the persons who hold the posts specified in column 2 on a basis:- S. Name and person Condition of No. EPS of post eligible. eligibility 1. Commissioner Income tax- Inspecting Additional cum-Cotlector Excise and Commissioner Income Tax 1 7 years service in . Taxation (BPS-20) (Range/Appellate Additional Commissioner Income Tax/ Inspecting Additional Commissioner Income Tax (S&R) BPS- 17 and above. Deputy Collector Central Excise/Sales Tax/Deputy Director Excise and Taxation (BPS- 19) Inspecting Additional Commissioner Income Tax <Range)/AppeHate Additional Commissioner Income Tax Inspecting Additional Commissioner Income Tax (S&R)/Deputy Collector Central Excise/Sales Tax/Deputy Director Excise and Taxation (BPS-19. Deputy Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-18) Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise & Taxation Officer (BPS-17) Deputy Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-18) Assistant Commissioner Income Tax-cum-Assistant Collector Excise/Excise and Taxation Officer (BPS-17). Income Tax Officer-cum- Superintendent Excise/Assistant Excise and Taxation Officer (BPS- 16) years in and 12 service BPS-17 above. 5 years service in BPS- 17. 3 years service in BPS-I S. Name and No. BPS of post person Condition of eligible. eligibility o. Income Tax Officer-cum- Inspector Income Tax-Officer- (i) 5 years Superintendent Excise/ Assistant Excise and Taxation Officer (BPS-l(i) cum-Excsie and Taxation/Deputy Superintendent Central Excise (BPS- ID service in BPS- II: and (ii) have passed the Departmental Examination. QUALIFICATIONS, EXPERIENCE AND AGE LIMITS AND OTHER CONDITIONS. A. For Appointment to the post by interview only. 4. A candidate must possess the educational qualifications and experience and must be within the age limits mentioned against the post concerned in the Schedule to this Notification, provided that; (i) the maximum age limit will be relaxed by 3 years in the case of candidates belonging to the Azad Jammu and Kashmir and State subjects settled in Pakistan in accordance with the instructions issued by the Government of Pakistan, (ii) For Government servants who have completed at least 2 years continuous permanent service, the maximum age limit will be relaxed by no more than 10 years upto the age of 55 years wherever applicable. (iii) the maximum age limit in the case of released or retired commissioned officers personal of the Armed Forces will be relaxed up to a maximum of ten years or by the number of years an officer/personnel has actually served in the Armed Forces, whichever is less. B. For appointment through competitive examination. 5. A candidate must possess the age. Educational and fulfil the other conditions prescribed in the rules for the Competitive Examination conducted by the FPSC. 6. A candidate must be of Azad Jammu and Kashmir and State subject settled in Pakistan. SYLLABI 7. Syllabi as prescribed for Examination conducted by the FPSC. Competitive TRAINING 8. The persons selected for appointment on the basis of the Competitive Examination and allocated Taxation Group would first undergo combined training at the Academy for Administrative Training and will pass FPO at the conclusion of specialized training at the Directorate of Training (Income Tax), Lahore and Directorate of Training (Customs and Central Excise) Karachi; followed by department and on the job training. PROBATION 9. Persons appointed by promotion or initial appointment shall be on probation for a period of one year. This period may be curtailed for good and sufficient reasons to be recorded or it considered necessaiy, it may be extended for a period not exceeding one year as may be prescribed at the time of appointment. Appointment on probation shall be subject to the provisions of Section 6 of the Civil Servants. Act, 1973 as adopted. 10. This Notification issued with the concurrence of the Azad Jammu and Kashmir Council Secretariat, and the Federal Public Service Commission as contained in the Council Secretariat .letter No. E.11-15/80-AJKC dated the 10th August 1992 and FPSC's communication No. F. 12- 12/92-S dated 28.3.1994, respectively. JALEES AHMAD SIDDIQUI, Joint Secretary The mere reading of the above Notification makes it clear that all incumbents in BPS-14 will be eligible for further promotion, if they have got five years service to their credit and passed the departmental examination. The earlier conditions laid down by the Azad Kashmir Government under order No. 193/62 dated April, 1962 were not repeated in this Notification. Therefore, it would be safe to lay down that now it is not condition percedent for further promotions for an Inspector in BPS-14 to obtain at least 50% marks in the Departmental Examination. This Notification is a formal pronouncement of will of competent authority, i.e. Council. The legal rights and obligations prescribed under it must necesisarily be observed in future till the time any change is effected in it. I fully agree with the learned Counsel for the petitioner that this Notification is to be followed as it has superseded the previous order of the Government issued in 1962. In view of the above, by allowing this writ petition, the remarks shown in the result-sheet of the petitioner 'did not qualify' being derogatory to the law of the subject, are held without lawful authority and of no legal effect so far as the petitioner is concerned. These remarks appearing in the result-sheet are, therefore, expunged to the extent of the present-petitioner from the result-sheet of 22nd Departmental Examination of the Income Tax and Excise and Taxation Department held in 1995. Consequently, the petitioner who appeared under Roll No. 1/14, is held qualified by the prescribed standard and eligible to be considered for further promotion. (K.A.B.)' Petition accepted.
PLJ 1997 AJK 104 PLJ 1997 AJK 104 Present: chaudhry muhammad taj, J. MUHAMMAD ASHRAF NIAZI-Appellant versus KARIMULLAH etc.--Respondents Civil Appeal No. 31 of 1996 dismissed on 9.5.1997. Civil Procedure Code, 1908 (V of 1908)- OVII, R. 11-Plaiht--Rejection of-Challenge to-A suit can be rejected under OVII R. II CPC if same does not disclose a cause of action for which plaintiff is not only to allege bundle of facts but is also equired to show that not only right has been infringed but a right to seek a relief was in existence-Provisions of Order 7 R. 11 are not exhaustive-Therefore, if at any stage, it appears to court that suit is ncompetent , parties to suit are at liberty to draw court's attention to the same by way of an application and court can decide matter under O. 7 R. 11 as policy of law is that . incompetent suits hould be laid at rest at the earliest moment so that no urther time is wasted over what his bound to collapse as not being permitted by law-Appeal dismissed. [P. 107] A Mr. Nazir Ahmed Qadri , Advocate for appellant. Mr. Ghulam Mustafa Mughal , Advocate for Respondents. Date of hearing: 23.12.1996. order This appeal is directed against the judgment and decree of the District Judge, Muzaffarabad passed on November 28, 1996, whereby an appeal filed against the judgment and decree of the Sub Judge, Muzaffarabad dated March, 31, 1996, was dismissed.
PLJ 1997 PLJ 1997 Cr.C ( Peshawr ) 98 [D.I. Khan Bench] Present: mian muhammad ajmal, J. LATIFULLAH and another-Petitioners versus THE STATE and another-Respondents Criminal Misc. Bail Application No. 95/1996, dismissed on 11.8.1996.B Bail-- -S. 497/498 Cr.P.C .-Pakistan Penal Code, 1860, S. 302/324/34-Bail- Grant of-Prayer for-Arguments in depth on merits, neither permissible nor advisable to deeply appreciate the prosecution or defence plea-Petitioner remaining in abscondence for noticeable period-Plea of alibi taken after three months of occurrence during which petitioners abstained from appearing before police/court-Bail refused. [P. 100 ] A & B Syed Zaffar Abbas Zaidi , Advocate, for Petitioners Mr. Abdul Qayum Sarwar , Assistant A.G. Date of hearing : 11.8.1996. judgment Latifullah and Shafiullah sons of Ayaz Khan residents of Gandi Khan Khel charged for offence under sections 302/324/34 PPC vide F.I.R. No. 340 dated 15.8.1995 Police Station, Naurang , were refused bail by the MIC/R.M. Naurang on 23.1.1996 and by the Additional Sessions Judge, Lakhi on 26.2.1996. Hence the present application for bail. 2. As per F.I.R. SHO Police Station Naurang , on receiving information in the police station that murder has been committed in the hotel Arsala Khan, he alongwith police party reached the spot where Niamatullah Khan complainant in the company of Daulat Khan reported the today i.e. 15.8.1995 at 14.00 hrs his brother Faizullah Khan and patched up the matter with the sons of Pir Adam and Moeen Khan residents of Gandi Khan Khel and bail before arrest was granted to the sons of Pir Adam from the Court of learned Sessions Judge, Lakki and for further proceedings they (sons of Pir Adam) were brought to the Police Station and then to the Court of Sessions for submitting the compromise papers. After doing the needful, they alongwith Sardar Khan went to the hotel Arsala Khan for lunch were Faizullah and Sardar Khan sat on one side while the complainant and Daulat Khan sat on the other side. In the meanwhile Latifullah armed with rifle Golidar while Shafiullah and Samiullah armed with ' Bandaiq ' came to the hotel and started firing at Faizullah and Sardar Khan with their respective weapons. Faizullah got hit and fell on the ground while Sardar Khan reshed to the mosque for protection, who was chased by the accused and fired at, who was also hit and fell on the ground. Both of them died on the spot. After the occurrence the accused decamped from the spot. With the firing of the accused a third person also got hit and sustained inquries . Motive for the occurrence as stated was that a year back accused's father was killed, for which Sardar Khan was suspected. 3. Learned counsel for the parties were heard at quite some length and record of the case perused. 4. Learned counsel for the petitioners argued the case in depth on merits touching almost every aspect of the case, which at this stage cannot be taken into consideration as it is neither permissible nor advisable to deeply appreciate the prosecution or the defence plea while dealing with the ancillary matter, as it would amount to pre-empting the function of the trial Court and likely to prejudice the mind of the Court. On tentative assessment of the record there is sufficient material to connect the petitioner the commission of double murder. The high handedness of the petitioners is evident from their pursuit to the mosque after Sardar Khan where he ran for prosecution but he was not spared even in the mosque and was done to death there. As far plea of alibi is concerned, it was taken after three months of the occurrence during which period, the petitioners abstained from appearing before the police/court as such they remained in abscondence for a noticeable period, hence evidentiary value of alibi would be determined at the trial by the trial Court after recording evidence. Consequently this bail petitioner is dismissed. The challan of the case is stated to be complete, which shall be submitted in court without any delay and the trial be concluded as early as possible. (M.A.A.) Bail refused
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 211 Present: muhammad aqil mirza, J. ALLAH DITTA alias GANA-Appellant versus THE STATE-Respondent Criminal Appeal No. 166/92, and Murder Reference No. 344/92 decided on 18.11.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- S. 302-Appreciation of evidence-Both P.Ws. closely related to complainant, their presence at site of occurence at 1.30 A.M. doubtful while they are not resident of locality-Motive not proved-Appellant arrested wearing blood stained clothes after two days of occurrence, un maginable-Recovery of weapon (knife) not free from doubt-Prosecution failed to prove its case beyond reasonable doubt-Giving benefit of doubt appellant acquitted. [Pp. 215, 216 & 217] A, B, C, D, E & F Pir Zafar Hussain Shah, Advocate for Appellant. Mehr Muhammad Saleem, Advocate for State. Date of hearing: 18.11.1996. judgment Learned Additional Sessions Judge, Multan vide judgment dated 20.6.92 convicted Allah Ditta alias Gana under Section 302 PPC for the murder of Mst. Noor Bibi. He has been awarded sentence of death with fine of Rs. 20,000/- and in default of payment thereof to further undergo 2 years R.I. Half of the fine, if recovered is to be paid to the legal heirs of the deceased. This judgment shall dispose of Murder Reference No. 344/92 and Criminal Appeal No. 166/92 filed by Allah Ditta against the conviction and sentence recorded against him. 2. Allah Ditta alias Gana resident of village Saumann, Police Station Shujabad is accused of murdering Mst Noor Bibi on 5.8.1989 at about 1.30 AM on account of her refusal to develop illicit relations with him. FIR Exh. PKwas lodged by Ghulam Yasin PW3, the husband of the deceased lady, on the same day at about 5.30 AM. It was alleged by him in the FIR that he was married with Mst. Noor Bibi about 22 years ago and out of this wedlock they had five sons and four daughters. Allah Ditta alias Gana allegedly lived in the nearby house of Mst. Bharawan who is a widow. At about midnight Shaikir Muhammad son of Allah Wasaya (brother of his wife) and Ghulam Sarwar son of Allah Wasaya (husband of his sister) were staying with the complainant in his house and the entire family and the aforesaid guests were sleeping, when at about 1.30 AM they heard the cries of Mst. Noor Bibi, which attracted the complainant, Shakir and Ghulam Sarwar. They saw that Allah Ditta was slaughtering Mst. Noor Bibi with a knife. Mst. Noor Bibi while trying to catch the knife was injured on the right hand. The accused was identified by the aforesaid three persons in the light of the torch which was carried by the complainant. They tried to catch hold of the accused but he ran away with the knife. Mst. Noor Bibi died on account of the injuries inflicted on her. The motive as stated in the FIR is that Allah Ditta invited Mst. Noor Bibi for adultery but he was rebuked with abuses, which was taken as insult and resultantly she was murdered by way of revenge by the accused person. 3,. The blood stained earth was obtained vide recovery memo Exh. PA which was thumb marked by Iqbal Hussain PW 1, The blood stained cot P. 1, blood stained pillow P. 2 and blood stained Chadar P. 3 were also secured from the place of occurrence through recovery memo Exh. P3 which was also thumb marked by PW. 1. The blood stained Chadar P. 4 and shirt P. 5 worn by the accused person at the time of his arrest were taken into possession on 7.8.1989 vide recoveiy memo Exh. PC. The blood stained knife P. 6 was also recovered from outside the Kotha of Mst. Bharawan vide memo .Exh. PD on the pointation of the accused person on 7.8.1989. These recovery memos are attested by Abdul Aziz. PW2. 4. PW3 Ghulam Yasin complainant and PW 4 Ghulam Sarwar appeared as eye witnesses of the occurrence. Ghulam Yasin stated that deceased Mst. Noor Bibi was his wife, Allah Ditta accused used to live in the nearby house of Mst. Bharawan. He tried to persuade Mst. Noor Bibi for adultery but in return he got abuses from her. He further stated that Shakir Muhammad and Ghulam Sarwar PWs were staying in the house as guests on the fateful night. At about 1.30 AM he woke up on hearing the shrieks of Mst. Noor Bibi and in the light of torch he saw that Allah Ditta was causing injuries on the neck of his wife. Shakir Muhammad and Ghulam Sarwar also saw this occurrence. They tried to go near the accused person but he threatened them with dire consequences and he succeeded in running away with the knife. The motive stated by him in his deposition is the same what is mentioned in the FIR. After the occurrence he went to the police station and lodged the FIR. It was admitted by him in the cross examination that Shakir Muhammad and Ghulam Sarwar were his brothers-in-law. He denied the suggestion that the accused has been falsely involved at the instance of Shaukat PW and he himself killed his wife. He admitted that he did not produce the torch to the police as the police did not ask for the same. 5. PW 4 Ghulam Sarwar reiterated the story told by Ghulam Yasin complainant. In his cross examination he admitted that his wife and wife of Shaikir Muhammad are real sisters. He also admitted that his house is situated at a distance of one square from the place of occurrence. He denied the suggestion that the accused has been involved at the instance of Shaukat Lumbardar and the complainant and the accused were at daggers drawn. He also denied that Mst. Noor Bibi in fact had been killed by her husband. 6. The postmortem examination conducted by Dr. Abdul Aziz Shah Bokhari (PW 5) disclosed following injuries sustained by Mst, Noor Bibi who - was about 40 years of age:- (i) An incised wound 11 cm x 3 cm x bone deep on front of neck. More upward on right side. (ii) An incised perforating wound 3 cm x 1 cm on left lateral side of neck, just in the middle of neck. (iii) An incised perforating wound 2 cm x 1 cm backward to injury No. 2. (iv) An incised wound 1.5 cm x 1/2 cm on the inner side or right thumb at middle phalanx. It was only skin deep. In the opinion of the doctor the death was caused by the cut-throat injury - No. 1. This injury was sufficient in the ordinary course of nature to cause the death. Injuries No. 2 to -1 were simple in nature and all he injuries had been caused with sharp-edged weapon. The probable time between the occurrence and the death was 15 minutes and between death and postmortem was 12 hours. Exh. PE is the carbon copy of the postmortem report. Injury statement Exh. PF and inquest report Exh. PG were also signed by him. 7. PW6 Muhammad Idrees F.C. took the blood stained articles to the office of the Chemical Examiner and delivered the same on 16.8.1989. The site plan Exh. PH, Ex. PH/1 and Exh. PH/2, were prepared by draftsman Shaukat Hayat PW 7 on 9.8.1989. He stated in the cross examination that there were only two outer boundaiy walls of the house where the occurrence took place. PW8 Manzoor All ASI was posted as Moharrar L The sealed parcel containing blood stained earth was kept by him in the Mall Khana on 5.8.1989. On 7.8.1989 he received parcel containing knife and the clothes. These aitides were sent by him on 15.8.1989 to the Chemical Examiner through PW6. The dead body was taken to the hospital for postmortem examination by PW9 Zafar Iqbal F.C. on 5.8.1989. The Kameez P. 7, Shalwar_P. 8 and Dopatta p. 9 which were worn by the deceased were taken into possession vide recovery memo Exh. PJ. 8. Malik Mehboob Ahmad Awan SI/SHO appeared as PW 10. He stated that statement Exh. PK made by the complainant before him. He proceeded on the spot and obtained blood stained earth vide recovery memo Exh. PA. The injury statement Exh. J>F and inquest report Exh. PJ were prepared by him. He also took into possession the cot, the pillow and Chadar vide recovery memo Exh. PC. He recorded the statements of PWs and arrested the accused person on 7.8.1989. The blood stained clothes of the accused (Chadar P. 4 and Kameez P. 5) were got removed from his person and taken into possession vide Exh. PC. The blood stained knife was also recovered by him on the pointation of the accused vide recovery memo Exh. PD. He stated that the PWs had told him that they had identified the accused in the torch light but he did not take the torch into possession. 9. The accused in his statement recorded under Section 842 Cr.P.C. denied that he murdered Mst. Noor Bibi. He also denied the recovery of the knife and blood stained clothes. He stated that he had been involved in the case on account of his enmity with Shaukat Lumbardar whose brother Liaqat had abducted one of his relative (Mst. Iqbal Mai). A writ petition was also filed against Liaqat and others in pursuance whereof case was registered against Liaqat etc. In defence DW 1 Muhammad Anwar SI was produced. He produced copy of the supplementary statement (Exh. DB) of Ghulam Yasin complainant recorded by him on 30.10.1989. DW 2 Muhammad Ayub and DW 3 Munir Hussain stated that at 10.30 PM when they were coming from Majlis Aza they saw that Yasin and Shaukat were looking for the tracks of the killer of Mst. Noor Bibi in the graveyard. 10. Learned trial court placing reliance on the occular evidence of Ghulam Yasin and Ghulam Sarwar and the recoveries of the blood stained articles including the knife and the blood stained clothes worn by the accused person convicted Allah Ditta under Section 302 PPC for having murdered Mst. Noor Bibi and sentenced him to death. 11. Learned counsel for the appellant has vehemently argued that the learned trial court has not properly appreciated the evidence on record. It is submitted that Ghulam Sarwar and Shakir Muhammad who have been cited as eye witnesses in the FIR are the planted witnesses. Both of them are brothers-in-law of the complainant. There was no reason, regarding to the learned counsel, that they should have been in the house of the complainant during the fateful night. It is further submitted by him that the motive as alleged, in the normal course of human conduct, cannot be the cause for the murder. It is argued that even if the accused had asked the lady for the sexual intercourse, her refusal and even abuses in return cannot possibly give affront to such a person to commit her murder. The motive even if correct, according to the learned counsel, is too trivial in nature to provoke a man to commit murder of married lady having 9 children. He has also argued that recovery of the blood stained clothes allegedly worn by the accused person at the time of his arrest on 7.8.1989 is patently fake. He has further argued that in totality of the circumstances the probability is that husband of the deceased was suspicious of carnal relationship between Mst. oor Bibi and the accused person ho is an unmarried person, and in pursuance thereof he committed the murder of his wife on the one hand and roped in the appellant as murderer on the other with the support of Shaukat Lumbardar who appears to have some sort of ill-will against him. 12. Learned State counsel has supported the conviction and sentence passed by the learned trial court. 13. We find lot of force in the submission made by the learned counsel for the appellant that there was no plausible reason of presence of Ghulam Sarwar PW 4 in the house of the complainant at the time of the occurrence. This is admitted position that he has 10 children and he lives with his family in his own house at distance of one square from the place of occurrence. He stated that he slept in his house but on the fateful night he c slept in the house of Mst. Noor Bibi. No convincing explanation is available on record to justify his presence in the house of his brother-in-law at 10' clock in the night. It is, therefore, highly doubtful that he witnessed the occurrence. This witness otherwise also does not appear to be truthful. He stated in the cross examination that there was no electricity in the village. -He emphatically denied the suggestion that electric light is available in the village. However, Ghulam Yasin complainant in his cross examination has admitted that there are electric poles in the village at a small distance from his house. Being brother-in-law of the complainant, he is not an independent witness either. We have, therefore, come to the conclusion that it will not be safe to rely on the testimony of this witness. 14. So far as Ghulam Yasin complainant is concerned, it is also doubtful that he saw the occurrence. He is a labourer but he was having a mango garden on lease at the relevant time. It is admitted by him that the mango crop was ripe. In all probability he should have been in the garden and not in his house at that time. Had he been present at the time of occurrence then it is not believable that he with his two brothers-in-law would have allowed the assailant to escape from the scene. His testimony to the extent that he saw the occurrence, is also excluded. 15. The most important pieces of evidence which could incriminated the appellant are the blood stained clothes which were found worn by him at the time of his arrest and the blood stained knife which was recovered on his pointation. He was arrested on 7.8.1989 i.e. 2 days after the occurrence. It is nimaginable that a murderer would keep on wearing the blood stained clothes for two days, as if he wanted to make a gift thereof to the police for using the same against him. The blood stained clothes have been obviously implanted to strengthen the prosecution case. Similarly the recovery of blood stained knife is not free from doubt. It has been recovered from outside the Kotha of Mst. Bharawan. According to the prosecution story, after the occurrence the appellant ran away with the weapon of offence. The house of Mst. Bharawan from where the recovery of knife has been effected is closeby and it is not expected that a murderer after escape would go to a nearby house and conceal the weapon of offence there. Apart from that, he had ample time to wash of the blood stained clothes and do away with the knife to some safer place. In this view of the matter, the recoveries aforesaid cannot be relied upon. 16. The complainant has admitted in the cross examination that Shaukat is Lambardar and he accompanied him to the police station. The Investigating Officer/SHO also stated that complainant was accompanied by Shaukat Lumbardar and that he remained associated in the investigation. The appellant was produced before him the Dera of Shaukat in the after noon. Therefore, Shaukat Lumbardar appears to be the wise man helping the complainant. It is admitted by Ghulam Sarwar PW that Liaqat is brother of Shaukat lumbardar. He denied the suggestion that Liaqat had kidnapped the wife of Shabbir, the relative of the accused. He, however, sated that in fact 20/25 days ago the wife of Shabbir was abducted by Liaqat and he did not know any thing else about the past. la the presence of this evidence on record, possibly there was enmity between Liaqat and his brother Shaukat Lumbardar on the one hand and the appellant whose relative had been abducted by Liaqat, on the other. 17. The complainant has nine children, five sons back. None of the children has been examined or produced in the witness box, though they were the natural witnesses. It can be safely assumed that some of children would be of sufficient age of understanding and they could have narrated the occurrence but they have not been produced. Similarly, Shaukat Muhammad eye witness has also been given up as having been won over. 18. The evidence with regard to motive may now be discussed. Apart from the hearsay evidence of PW3 and PW 4 there is nothing on the record to show that the appellant had invited the deceased for adultery and in return he was rebuked by her. it is stated in the FIR that she was persuaded for the adultery two days before the occurrence. In the supplementary statement of the complainant recorded on 30.10.1989 vide Exh. DB, an improvement was made that the lady had told them (complainant, Ghulam Sarwar PW and Shakir Muhammad) on the night of occurrence that the appellant had asked her for the adultery two days ago as they in turn told her that they would talk about it with the appellant in the following morning but she was murdered on the same night. It is stated in the FIR It appears that the appellant who is an unmarried youngman living in the neighbourhood had illicit relations with the deceased lady, which had brought bad name to the family. The possibility cannot be ruled out that she was killed by the husband and the appellant was involved for her murder with the help of the lumbardar aforesaid. 19. For what has been discussed above, we have come to the conclusion that the prosecution has failed to prove beyond all reasonable doubt that Allah Ditta appellant had committed the murder of Mst. Noor Bibi and the benefit of doubt has to be granted to him. Consequently, we allow Criminal Appeal No. 166 of 1992 and set aside the impugned conviction and sentence recorded against Allah Ditta alias Gana appellant. He is acquitted of the charge in question. He shall be released from the jail forthwith, if not required to be detained in any other case. 20. Murder Reference No. 344 of 1992 is answered in negative and the sentence of death sought to be confirmed is hereby set aside. Death sentence is not confirmed. (MAA) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 217 Present: SYED DEEDAR HUSSAIN SHAH, J. MATARO and another-Appellant Versus THE STATE-Respondent Criminal Appeal No. 274/92, and Confirmation Case 118/1992, decided on 7.11.1994. (i) Confession- After recording confession accused is not to be handed over to concerned Investigating Officer or police but accused is ought to be remanded to jail custody except through same police. [P. 227] D (ii) Medical Evidence- Medical evidence is only to show injuries sustained by victim or the weapon-with which the same were caused but injuries cannot speak about the identity of assailant. [P. 228] H (iii) Pakistan Penal Code, 1860 (XLV OF 1860)-- S. 302/34--Conviction-Challenge to-Appraisal of Evidence-Presence of complainant and witnesses not convincing-Eye-witnesses contradicting each other-According to complainant accused arrested on 1.9.90 but police papers showing arrest on 4.9.90 creating serious doubt on veracity f recovery and judicial confession-Both accused were present while recording confession and no question other than available on printed form were put to accused Tenderers confession un-reliableAccused handed over back to police after recording confession-Judicial Officer not appending a mandatoiy certificate as required under section 164 Cr.P.C.- Such improperly recorded confessions are not worth reliance-Appellants were acquitted. [Pp. 227, 229] C, E, F, & I PLJ 1974 Page 405-406, 1985 SCMR 11,1978 P Cr LJ 369-372, 1993 P Cr LJ 227, 228, 1981 SCMR 1232, 1979 P Cr LJ 747-751, 1992 SCMR 96-102, PLD 1990 Kar. 275, 1985 SCMR 458-463, 1982 SCMR 41 and 1981 P.Cr.LJ 169 ref. (iv) Recovery-- -S. 302-Recovery of blood stained hatchet attested by inter-related witnesses and related to deceased and not associating persons of locality not relied. . [P. 226] B (v) Witness- Inter-related witnesses-Evidence~No implicit reliance can be placed on such weak type of evidence which is furnished by inter-related witnesses and is not free from improbabilities and material contradictions. [P. 226] A Mr. A.G. Halepota, Advocate for the Appellants. Mr. M. Sarwar Khan, Additional A.G. Sindh for State. Date of hearing: 5.10.1994. judgment Learned Sessions Judge Tharparkar at Mirpurkhas, convicted the appellants under Section 302 read with Section 34 PPC and sentenced them to death and further sentenced them to pay fine of PvS. 10.000/- in default to suffer R.I. for one year and also to pay compensation of Rs. 25,000/- under Section 544 Cr.P.C. in default to suffer R.I. for six months vide judgment dated 31.10.1992. Being aggrieved, appellants preferred this appeal with a prayer to accept the same and acquit them. Learned Sessions Judge Mirpurkhas also submitted reference u/S. 374 Cr.P.C. for confirmation of death sentence. This judgment will dispose of the appeal as well as the reference. The brief facts of the matter are that complainant Muhammad Dyas lodged the FIR bearing No. 66/90 with Umerkot Police Station on 1.9.1990 at 12.30 noon, alleging therein that he alongwith his son deceased Ah' Asghar went to his cultivated land in the morning to lookafter his "Bajra and gawar crop where at about 10.30 a.m. accused Mataro and Arbab came being duly armed with hatchets, both of them challenged deceased Ah' Asghar telling him that they would not leave him and would kill him and abused him, whereupon complainant asked them not to do so, thereafter accused inflicted hatchet blows on the head of deceased Ali Asghar. On cries, PWs Gul Hassan and Soomar raising Hakals not to kill, came there and after causing blows the accused made good their escape. Ali Asghar died on the spot. Leaving those witnesses on the spot complainant approached the Umerkot P.S. and lodged his report. A.S.I. Nandlal of Umerkot Police Station recorded the FIR, started investigation, reached the place of incident, prepared mashirnama, danistanama, recorded statements of witnesses and referred dead body of Ali Asghar to Hospital for post mortem examination. On 4.9.90 ASI Nandlal arrested the accused recovered hatchets from their houses and on the same day produced them before the Mukhtiarkar & Magistrate First Class for recording their judicial confession, the same was recorded, and so also statement under section 164 Cr.P.C. of both the witnesses were recorded. The blood stained articles were referred to the Chemical Analyser for report which is in positive. After usual investigation police submitted charge sheet and finally case was fixed for trial before the learned Sessions Judge Tharparkar at Mirpurkhas who on 21.3.1991 framed the charge against the accused for an offence under section 302 read with section 34 P.P.C. to which accused pleaded not guilty and claimed to be tried. Prosecution examined complainant Muhammad Eyas Ex. 7 who has stated in his evidence that I have 50 acres of land which was being cultivated and managed by him and his son Ali Asghar. He knows P.Ws Muhammad Soomar and Gul Hassan. They are his co-villagers. Accused Mataro and Arbab are also known to him as they reside in the same area. Mataro and Arbab also own and possess some land and cattle. About a month before the incident the two accused had quarrelled with his son Ali Asghar due to damage caused to their crop by the cattle of the accused. They had requested the accused to keep away cattle from their land but they refused to listen. On the day of incident in the morning he and his son had gone to their land to look after "Guwar" and "Bajra" crops. They were standing there when they saw two accused persons namely Mataro and Arbab arriving armed with hatchets as soon as they reached near them while addressing his son Ali Asghar threaten him that they would kill him due to previous dispute. He entreated them not to attack his son but they did not listen and they gave hatchet blows on his head. He raised cries which attracted Gul Hassan and Soomar who came running and they too had seen the incident and they too had given Hakkals to the accused not to kill Ali Asghar. On seeing them coming near both the accused persons ran away alongwith their hatchets. Ali Asghar had fallen down on receiving the injuries and he died instantly. Leaving Gul Hassan and Soomar with the dead body he went to Police Station Umerkot and lodged F.I.R. Muhammad Soomar was examined as Ex. 8., Muhammad Soomar has stated that complainant Muhammad Ilyas is his uncle and father-in-law. Deceased Ali Asghar was his son. He also knows P.W. Gul Hassan. He also knows Mataro and Arbab. Ali Asghar used to work on his land alongwith his father. Accused also own and possess some land and cattle. Muhammad Soomar also owns goats. About a month before this incident there had been a hot altercation between the accused and deceased Ali Asghar over the trespass and damage done to the crop by the cattle of the two accused persons. That prior to this their relations were normal and after this incident their relations were not cordial and accused used to give threats that they would see in the matter. On 1.9.1990 at about 10.30 a.m. he and P.W. Gul Hassan were taking their goats for grazing and were passing by the side of the complainant, at that time they heard cries of complainant Ilyas and went running there and saw the two accused Mataro and Arbab causing hatchet blows to Ali Asghar. On seeing them accused ran away and Ali Asghar died instantly. He and gul Hassan remained with the dead body of deceased Ali Asghar and Muhammad Ilyas Went to the Police Station and lodged the FIR. Police visited the vardat and took away the dead body of Ali Asghar. Police recorded his statement and his statement under section 164 Cr.P.C. was recorded by Mukhtiarkar and FCM which is produced as Ex. 8-A. P.W. Gul Hassan was examined as Ex. 9 who stated that complainant Muhammad Ilyas is his father in law and deceased Ali Asghar was his son. P.W. Soomar is his relative. He knows both" the accused, they also own and possess cattle, Ali Asghar deceased used to lookafter the land of his father. On 1.9.1990 at about 10.30 he and Soomar were going to take care of their goasts and were passing by the side of the land of Ilyas complainant when they heard cries of Muhammad Ilyas. He and Muhammad Soomar went there and saw accused Mataro and Arbab causing hatchet blows to Ali Asghar and they challenged him not to kill Ali Asghar. On seeing them accused ran away alongwith their hatchets and Ali Asghar after receiving hatchet injuries fell down and died instantly. Complainant leaving him and Soomar with the dead body went to lodge the FIR. Police came thereafter about two hours. They took away the dead body of deceased Ali Asghar. Police examined him and statement under Section 164 Cr.P.C. was also recorded by Mukhtiarkar and FCM Umerkot on 4.9.1990, and produced the same as Ex. 9-A. Ahmed Din Dogar Mukhtiarkar and FCM was examined as prosecution witness No. 4 who has stated that accused Mataro and Arbab were produced by Umerkot police, for the purpose of recording of their judicial confessions. He produced copy of letter issued to him as Ex. 10-A. On the same day police had also issued another letter for recording 164 Cr.P.C. statement of P.Ws Gul Hassan and Soomar. He produced copy of letter issued to him as Ex. 10-A. On the same day police had also issued another letter for recording 164 Cr.P.C. statement of P.Ws Gul Hassan and Soomar. He produced such letter as Ex. 10-B. Accused were produced before him together with handcuffs. He called the police to remove the handcuffs and also removed the police from the Court room. Accused were given in the custody of office peon. He introduced himself to the accused that he was First class Magistrate and warned them that if they gave any confession it could be used against them at the trial and that they were informed that they were not bound to give confession. He gave them I \ hours time for the purpose of reflection and at the end of such time he repeated the same warnings and assurances to both the accused. Accused replied that they were giving the confessions with their own free will and then he recorded the statement each of them in verbatim in Sindhi language which they were speaking. At the conclusion of recording of their confession he obtained signature of accused Mataro and L.T.I of accused Arbab and produced the two sets of judicial confessions so recorded by him as Ex. 10-C and Ex. 10-D. P.W. 5 Dr. Omparkash Ex. 11 was examined who has stated that on 1.9.1990 he was sewing as Medical Officer at Taluka Hospital Umerkot. On the said date Umerkot Police referred the dead body of deceased li Asghar to him for conducting postmortem examination and report. Dead body was identified by All Akbar brother of the deceased and Abdul Ghani uncle of the deceased Ali Asghar. He started postmortem examination at 2 p.m and completed by 3.30 p.m. On external examination of the dead body, he found following four injuries on his person. "1. Incised wound 7.5 c.m x 2.5 c.m x bone deep on right parietal region. 2. Incised wound 7 c.m & 2.5 c.m x bone deep on left parietal region with fracture of left parietal bone. 3. Incised wound 16 c.m x 2.5 x bone deep transverse in direction on right occpital bone and left parietal bone, extending from back or right ear towards left parietal bone. 4. Abrasion 5 c.m x 0.2 c.m with swelling 3 c.m x 2 c.m on upper l/3rd on right fore-arm. On internal examination he found following damages: 1. There was fracture of right parietal, left parietal and right occipital bones. 2. Membrance of brain teared at site of right cereberal cartax. 3. Blood clots were found in subarachnoid space. 4. Stomash was healthy. It contained food particles. 5. Small intestines was healthy and it contained semi digested food material. 6. Bladdor was found healthy and empty. On external and internal examination of the dead body he was of the opinion that death of deceased Ali Asghar was due to haemorrhage, shock and disturbance of function of vital brain. External injuries No. 1 to 3 appeared to have caused by sharp cutting weapon such as hatchet while injury No. 4 appeared to have been caused by hard/blunt substance like lathi or back side of hatchet. All injuries'were antemortem in nature. Injuries No. 1, 2 and 3 were collectively sufficient in the ordinary course of nature to cause death. In cross examination he has stated that deceased might have taken his food about two hours before his death. He produced Post mortem report as Ex. II-A. Witness No. 6 Ex. 12 Ghulam Rasool was examined who produced sketch of wardat Ex. 12-A. P. W. 7 Abdul Ghani Ex. 13, stated that he was associated by police Umerkot on 1.9.90 to act as mashir in this case and on the same day police inspected the place of incident which was situated on the eastern side of the land of the complainant where the dead bod/ of Ali Asghar was found lying with hatchet injuries on his person. There was uncultivated land around the place of wardat. Blood stains were found around the dead body. Police secured blood stained earth and sealed the same and prepared mashirnama which he produced as Ex. 13-A which was same correct and bears his signature. Police also prepared the inquest report which he produced as Ex. 13-C. Accused Mataro was arrested on 4.9.1990 from near his house. Police repaired mashirnama which he produced as Ex. 13-D which bears his signature. On interrogation by police Matro produced one blood stained hatchet and police prepared mashirnama which he produced as Ex. 13-E. Accused Arbab was also arrested on the same date near from his house. Police prepared mashirnama. On interrogation Arbab also led the police and produced one blood stained hatchet which was produced As Ex. 13-G which bears his signature. In all such mashirnamas one Ali Ghulam acted as comashir. ASI Nandlal P.W. 8 stated that on 1.9.1990 he was ASI at P.S. Umarkot when Muhammad Hyas came there and lodged the report with regard to the murder of his son Ali Asghar. FIR was recorded, read over to the complainant which is Ex. 7-A. He visited place of incident which was located in uncultivated land in Deh Vehro. There were blood stained on the ground where the dead body of Ali Asghar was lying. He secured blood stained earth in presence of mashirs. Abdul Ghani and Ah' GHulam and prepared mashirnama as Ex. 13-A. He also prepared inquest report in presence of the mashirs as Ex. 13-B. He also referred the dead body of deceased Ali asghar to local medical officer taluka hospital Umerkot through police constable Roshan Ali for the purpose of conducting postmortem examination. After the postmortem examination dead body of Ali Asghar was handed over to complainant Ilyas, whereas clothes of the deceased were deposited before him he secured such clothes under mashirnama Ex. 13-D and on the same date he recorded statements of P.Ws Gul Hassan and Soomar and made search for the two accused who were named in the FIR. On 4.9.1990 he arrested accused Matro near the hedge of horse prepared such mashirnama Ex. 13-D which bears his signature. On interrogation Mataro voluntarily produced from his house one blood stained hatchet which was secured and sealed under the mashirnama Ex. 13-E. He also arrested co-accused Arbab from near his house and prepared mashirnama as Ex. 13-F which bears his signature. On interrogation Arbab voluntarily produced one blood stained hatchet from the hedge of his house which was secured and sealed under mashirnama Ex. 13-G and Abdul Ghani and Ali Ghulam had acted as mashirs. He had referred all the articles viz. blood stained clothes, blood stained earth and the two blood stained hatchets to the Chemical Examiner Karachi and produced report as Ex. 14-A. On 4.9.1990 he produced two accused and two eye witnesses Gul Hassan and Soomar for the purposes of recording of judicial confessions and 164 Cr.P.C. statements respectively. On conclusion of investigation he submitted the challan in the Court. On 26.5.1992 D.P.P. closed the side on behalf of the prosecution as Ex.15. Statement of Mataro was recorded as Ex. 16. He denied the prosecution allegations and stated that he and his relatives were subjected to maltreatment and humiliation by police for extorting confession from him. Statement of Arbab is Ex. 17 in which he denied the prosecution allegations and stated that he and his relatives were subjected to maltreatment and humiliation by police for extorting confession from him. Ex. 18 is the list of defence witnesses furnished on behalf of the learned counsel for the accused. Dadu son of Tharu examined as Ex. 19. He has stated that he knows the accused Mataro and Arbab. They are cousins inter se and are residing at the distance of three miles from his village. He also knows complainant Muhammad Dyas and his deceased son Ali Asghar. They are also residing at equal distance. Both the parties are on visiting terms with him. On 1.9.1990 he had left his house to graze his cattle. During the process he came across accused Mataro in the jungle who was also grazing his cattle. He and Mataro came to their village where they reached at 4/5 P.M. where he stayed over night with him at his village and in the morning they came to know that Ali Asghar has been murdered and they were not informed that who has killed Ali Asghar. At the request of Mataro to accompany him to the police station he accompanied him to P.S. Umerkot. Police Officer Incharge of the P.S. confirmed that the name of the accused Mataro was mentioned in the PER. so he was detained there thereafter he was allowed to go. D.W. 2 Shafique Shah has been examined as Ex. 20. He stated that he was serving as Serishtedar in the Court of Mukhtiarkar and FCM and has brought the monthly diary for the month of September 1990 from 1.9.1990 and produced the same as Ex. 20-A in two leaves. Jaffer Ali Ex. 21 D.W. 3 who was serving as Constable at P.S. Umerkot and he produced diary of P.S. Umarkot pertaining to the year 1990. Under the instructions of S.H.O. Ghulam Rasool Soomro, according to him at serial No. 6 it is mentioned that ASI Nandlal after getting the confession of the accused recorded returned to the P.S. and accused were got confined in the lock-up. At entry No. 7 it is mentioned that at 11.00 hours the report was prepared with regard to remand of the accused Mataro and Arbab for 14 days in jail custody. Ex. 22 the statement of defence Counsel gave up DWs Bhuro and Hussain Shah. At the conclusion of the trial, the learned trial Court convicted the appellants as mentioned hereinabove. Mr. A.Q. Halepota, learned counsel for the appellants has contended that the evidence laid down on behalf of the prosecution and evidence adduced on behalf of the appellants has not been properly considered. Evidence of complainant Muhammad Ilyas, P.Ws Soomar and Gul Hassan is not sufficient to base the conviction. Evidence of arrest and recovery does not furnish corroboration to the ocular testimony. Confessions are not to be considered the same were retracted and same suffer from infirmaties and illegalities in recording the same. Evidence of Abdul Ghani is also not trustworthy. Evidence of Mukhtiarkar regarding confession is also full of infirmaties and does not inspire confidence. The investigation carried on by A.S.I. Nandlal is not above board as according to entiy produced in defence shows that after recording of the alleged confessions accused were handed over to ASI Nandlal who has brought then at Police Station, who locked up them there. The ocular evidence of Muhammad Hyas, complainant that Soomar and Gul Hassan are son in law of Muhammad Ilyas and both are brother in law of deceased Ali Asghar. Evidence of close relatives requires strict scrutiny therefore it can hardly be accepted. Tapadar visited the wardat on 12.9.90 after eight days of the incident. That Muhammad Ilyas has no land in Deh Vehro. That wardat is situated in jungle. That admittedly Gul Hassan has a shop and at about 10.30 it is not a time when he should go to look after his goast. Three different versions have been furnished by the PWs for their presence at the wardat. Mr. A.Q. Halepota learned counsel for the appellants has referred PLJ 1974 page 405 and 406, P.Cr.L.J. 1993 page 227-228, S.C.M.R. 1985 page 11, S.C.M.R. 1981 page 1232, P.Cr.L.J. 1978 page 369-372, P.Cr.L.J. 1979 page 747-751. S.C.M.R. 1992 page 96-102, PLD 1990 Kar. 275, S.C.M.R. 1985 page 463-458, S.C.M.R. 1982 page 41, P.Cr.L.J. 1981 page 169. Mr. Muhammad Sarwar Khan, learned Assistant Advocate General has contended that ocular evidence so furnished is reliable and trustworthy, arrest is supported by recovery even if recovery is disregarded ocular evidence is enough to sustain conviction, medical evidence is inconfirmity with ocular evidence. He has supported the judgment. He has referred the following case P.Cr.L.J. 1991 page 419 (2) S.C.M.R. 1985 page 203 and (3) P.CrJLJ. 1991 page 980. We had considered the contentions of Mr. A.Q. Halepota learned counsel for the appellants, that the ocular evidence furnished by the complainant Muhammad Ilyas, P.W. Muhammad Soomar and P.W. Gul Hassan is of interested witnesses. No doubt complainant in his evidence has only stated that he knows P.W. Muhammad Soomar and Gul Hassan, they are his co-villagers. In his evidence no where he stated that both the PWs are his son in laws, whereas P.W. Muhammad Soomar in his evidence has stated that complainant Muhammad Ilyas is his uncle and father in law so also P.W. Gul Hassan has stated that complainant Muhammad Ilyas is his father-in-law and deceased Ali Asghar was his son that means deceased was his brother-in-law. Mere mention of PWs by the complainant as his co-villages is a clear attempt on his part to conceal their relationship with him which fact otherwise has been disclosed by the two witnesses even in their own examination-in-chief. Admittedly P.W. Gul Hassan was running a shop in the village and at the time of incident so suggested he should have been available at his shop dealing with his customers but explanation furnished by the complainant Muhammad Ilyas that the P.W. Gul Hassan has no regular shop and he keeps few articles in his house is hardly appealing or convincing one. P.W. Ali Ghulam mashir of this case is also son-in-law of the complainant which fact has been admitted by the complainant in cross examination which clearly shows that the evidence adduced by the prosecution consist persons having interest and interrelationship with each other that means or the P.Ws are their own kith and kin. The reasons furnished by the complainant that they had gone to the land to weed out the unnecessary grass. Grass is weeded out by small spade which was already lying in the land but the fact is that police has not secured any spade from the wardat, mashirnama on this point is silent. The reasons furnished by the eye witnesses that at that time they were taking their goasts for grazing is also not convincing because Muhammad Soomar in his cross-examination had admitted as follows:- "It is fact that my cattle and the cattle of Gul Hassan is grazed and looked after by our paid servant. I have forgotten his name just now. But he is Mangrio by caste. He has further stated in his cross examination that: "There are two paths for going to place Padhrio Tobho. But we had adopted this path as we intended to see the crop of complainant Ilyas. Muhammad Soomar has stated in examination in chief that: "At such time I and P.W. Gul Hassan were taking our goats for grazing. We were passing by the side of the land of the complainant. At such time we heard cries of complainant Eyas. This version of Muhammad Soomar is contradicted by P.W. Gul Hassan eye witness who in his evidence has stated that they were returning after seeing their cattle when this incident took place. They had gone to see their cattle by adopting another path and that their cattle is grazed by Bhaiyo Mehar and their grazier Bhaiyo Mehar was available at Padhrio Tobho. He is their joint grazier but this Bhaiyo Mehar has not been cited by the prosecution as an eye witness of the occurrence. Nandlal Investigating Officer has stated that accused were arrested on 4.9.1990 and blood stained hatchets were recovered at their instance and in all such events Abdul Ghani and Ali Ghulam had acted as mashirs. It is stranger enough to note that this version of I.O. and mashirs is belied by complainant Muhammad Ilyas, the father of deceased Ali Asghar who has stated in cross examination "both the accused were arrested by the police on the following night on the same day that means according to prosecution incident took place on 1.9.1990 and on the night of 1.9.1990 they were taken into custody, whereas according to I.O. both accused were arrested on 4.9.1990 and thereafter recoveries were effected on their pointation from the house of Mataro and have adjoining to the house of Arbab the accused. The complainant in his cross examination has stated that he was at the distance of about once acre from the place of incident and that he did not take the spade or any other weapon to attack the accused which otherwise is quite un-natural, spade is some time used in the rural areas for weeding out grass or for doing excavation of the land which has a sharp edged blade which can easily caused injury of incised nature. Had there been spade with the complainant while seeing attacking his own son he could have at least used the same against the accused assailants because apart from blade of about 4/5 inches, the same is fixed in the wooden handle of not less than 2/3 ft. which can easily be used at the time of emergency/necessity. The version of P.W. Soomar and Gul Hassan that they had taken their goats for grazing though they had their own paid grazier Byaiyo Mehar is also not appealing to common sense. In view of the above facts no implicit reliance can be placed on such weak type of evidence which is furnished by inter-related witnesses and is not free from improbabilities and material contradictions. The learned trial Court has taken into consideration and relied upon the judicial confessions of the accused recorded by the Mukhtiarkar namely Ahmed Din Dogar but the confessions were retracted by the accused during the trial. If the evidence of the Mukhtiarkar recorded by the learned trial Court is considered minutely the same is liable to be discarded and consequently confessions so recorded can not be relied upon. The evidence of Mukhtiarkar in cross examination, is as follows:- "Both the accused were present at one and same time while I recorded the confession of the other Both of them were sitting together during reflection time. I did not make any enquiiy to ascertain as to for how many days the accused had remained in police custody I had not put any other questions to any of the two accused persons besides those contained in the printed proformas Ex. 10-C. He has also stated that mandatoiy certificate as required under Section 164 (3) Cr.P.C. has not been signed or attached with the confessions for the sake of convenience. The actual words of the Magistrate to this effect are as unden- " ........................... It is fact that on the last page of each of confession there is printed form of the Certificate to be given by the Magistrate under S. 164(3) Cr.P.C. It is fact that I have not filled in such proforma, nor I have given any Certificate. It is not I had read over their contents to the accused and if they had accepted their contents as correct before putting their signature/LTI thereon. The learned Magistrate has denied the suggestion that two confessional statements as Ex. 10-C and Ex. 10-D were recorded by him under the influence of AH Muhammad Kumbhar a big influential person of that area. As pointed out hereinabove Abdul Ghani and Ali Ghulam mashirs are closely related to the complainant and deceased Ali Asghar and police arrested Mataro near his house and recovered blood stained hatchet from room of his house and also arrested accused Arbab from near his house on interrogation he produced blood stained hatchet from badge of his house. The I.O. in cross examination has admitted that there would be 10/15 houses in village Mion Jan Muhammad and he did not try to associate any person from that village for acting as Mashir. The I.O. in his cross examination has admitted that in the mashirnama Ex. 13/A there is no mention if there was any cultivation, whereas contention of Muhammad Ilyas was that they had left to look after their Gawar and Bajra cultivation. The I.O. has denied the suggestion that both accused persons were detained by police on the very first day which fact has been admitted by the complainant in his evidence recorded by the learned trial court. Accused had examined DWs and Jaffer Ali DW-3 Ex. 21, is necessaiy witness. The witness was serving as constable at Police Station Umerkot and had brought the diary of Umerkot pertaining to the year 1990 under the instructions of SHO Ghulam Rasool Soomro. The relevant portion of his evidence is as follows:- "At serial No. 6 it is mentioned that ASI Nandlal after getting the confession of the accused recorded returned to the P.S. and the accused were got confined in the look-up. The time is mentioned as 1045 hours. At entry No. 7 it is mentioned that at 1100 hours the report was prepared with regard to remand of the accused Mataro and Arbab for 14 days, in jail custody. This fact unequivocably establishes that after recording of the judicial confession both the accused were handed over to Nandlal ASI, the Investigating Officer of the crime who confined them in the lock up. Whereas it has been held so many times by the Superior Courts that after recording of the confession accused person is not to be handed over to the concerned Investigating Officer or police but accused is ought to be remanded to jail custody except through the same police. The contention of Mr. A.Q. Halepota Advocate that the evidence so furnished by the prosecution is interested and is not of such character and substance on which implicit reliance can be placed is forceful. The reason so furnished by the complainant and witnesses for their presence at the proper time and place is also not convincing. The witnesses namely Gul Hassan and Soomar have themselves contradicted each other which is pointed out hereinabove. The version of complainant that he and his son has left to look after the Gawar and Bajra cultivation is denied by the mashirnama of wardat. Nandlal I.O. has admitted that there was no cultivation. The arrest of the accused/appellants on the night of 1.9.1990 is admitted by the complainant but in police papers arrest of the accused is shown on 4.9.1990. This delay shown in the papers clearly put serious doubts on the veracity of the recovery and confessions so recorded by the learned Magistrate. The admission of the learned Magistrate that both the accused were present together when their confessions were recorded and that no other question except the questions which are available on the printed form were put to the accused persons renders the confessions unreliable. The non-availability of certificate or signature of Magistrate as required under Section 164(3) Cr.P.C. proves that the confessions were not properly recorded and due to this inherit lacuna the confessions are not worth reliance and learned trial Court has placed reliance on these confessions without considering and analysing the inherit defects in recording of the confessions. The case law relied upon by Mr. A.Q. Halepota Advocate is relevant and applicable to the facts of the present case. Whereas the contention of the learned Assistant Advocate General that ocular evidence so furnished is reliable and trustworthy is not convicting and that arrest is supported by recovery and that even if recovery is discorded ocular evidence is enough to sustain the conviction, is also not getting support as discussed above. According to the complainant accused were arrested on 1.9.1990 whereas according to the police papers and Nandlal 1.0. accused were arrested on 4.9.1994 and the recoveries so effected were in presence of Ali Ghulam and Abdul Ghani who are closely related to the complainant Muhammad Ilyas. The contention of learned Additional Advocate General that medical evidence is in confirmity with the ocular evidence is not sustainable in as such as medical evidence is only to show the injuries sustained by the deceased or the weapon with which the same were caused but injuries can not speak about the identity of the assailants. Learned A.A.G. has referred 1991 P.Cr.L.J. 419 (Aziz Masih alias Kuddi vs. The State). The facts of this case are that occurrence took place in playground situated in Ward No. 10 Kahror Pacca Town and FIR was recorded on statement of Muhammad Ramzan maternal uncle of the deceased. According to the prosecution case at the eventful time Muhammad Abbas deceased, Muhammad Nawaz P.W. 7, Muhammad Rafiq P.W. 8 were present in Hockey ground when Aziz Mashi alias Kuddi appellant armed with Churi, Kala, acquitted accused armed with Chhuri, Heera accused armed with Chhuri and Babu accused empty handed came there and raised Lalkara that they will teach leason to Muhammad Abbas deceased for insulting Aziz Masih alias Kuddi. Babu accused caught hold of the deceased. Aziz alias Kuddi appellant inflicted Churi blow on the chest of Muhammad Abbas who fell down on the ground. Kala, acquitted accused gave Chhuri blow on the chest of Muhammad Nawaz P.W. Heera accused also gave Churi blow on the chest and index finger of the left hand of Muhammad Nawaz P.W. Muhammad Rafiq P.W. 8 tried to intervene but Babu accused gave a brickbat blow on his face. The alarm raised by the P.Ws attracted Muhammad Ramzan P.W. 9, Fayyaz and Rasool Bakhsh (both not produced) to the spot. The accused decamped carrying their weapons with them. Muhammad Nawaz P.W. received three incised wounds, whereas Muhammad Rafiq P.W. 8 sustained one lacerated wound, two witnesses received injuries during the incident whereas in this case unfortunately none has received the injuries and their presence at the spot is not convincing and plausible. Therefore this authority in my humble view is not applicable to the facts of the present case. In the case of Riaz Ahmad and 8 others vs. The State (1991 P.Cr.L.J. 980). In this case occurrence took place in street No. 3 Mohalla Eidgah, Jaranwala, Town, District Faisalabad, at about 4.15 p.m. wherein Abdul Rahman aged 60 years was killed and Jamil and Mehenga P.Ws were injured. Khalil-ur-Rehman, complainant nephew of Abdul Rehman reported the incident through statement to S.I. Muhammad Salim at Tenkiwala Chowk, Jaranwala at the same day at 4.45 p.m. on the basis of which formal F.I.R, was subsequently drawn at Police Station Jaranwala by H.C. Abdul Ghafoor (P.W. 5). In my humble view this authority is also not relevant to the facts of the present case, incident has taken place in Jaranwala Town wherein apart from deceased Abdul Rahman, Jamil and Mehenga P.Ws. were injured, whereas in this case in my humble opinion none is injured except unfortunate Asghar All who was killed. In the case of Muhammad Alt vs. The State (1985 SCMR 203) the observations of the Hon'ble Supreme Court is as follows:- "The evidence on record leaves no manner of doubt that the occurrence had taken place in the Kotha of the deceased and as such the presence of least Mst, Zubeda, wife of the deceased, is not open to doubt. She could identify the culprits who were known persons. She had come out of the Kotha when the injuries were inflicted on the deceased and thus could see the assailants from a close distance. It is true that she had received no burns but she had explained that she had wrapped cloth around her and her children. This authority has no relevancy to the facts of the instance case. The up shot of the above discussion is that case against the accused/appellants is not free from reasonable doubt. Consequently the appeal of the appellant is accepted and reference of the learned Sessions Judge for confirmation of death sentence is rejected after hearing the learned counsel for the Parties by a short order appeal was allowed and reasons were to follow. Unfortunately in this matter judgment was to be dictated by my learned brother Muhammad Aslam Arain J, (as he then was) but due to is retirement the reasons were not recorded and the State preferred an appeal before the Hon'ble Supreme Court and the matter has been received for giving reasons in the light of decision in a case (Ghulam Hussain vs. The State) PLD 1981 Karachi 711 and these are the reasons for the same. (MAA) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 230 (DB) Present: falak sher and raja muhammad khurshid, JJ. NAWAZ ETC.--Appellants versus THE STATE-Respondent Criminal Appeal No. 750/92, and Murder Reference No. 343/92 decided on 4.8.1996. Pakistan Penal Code, 1860 (XLVof 1860)-- Ss. 302/307/148/149--Appreciation of evidence-Admittedly eye witnesses are related inter se and to deceased, yet their presence at site of occurrence is not improbable-Motive is not out of place nor ocular account untrustworthy-Recoveries made from jointly occupied Haveli was rightly believed by trial Court-Belated despatch of crime empties to expert without any explanation would not damage their evidentiary value-Trial Court sifting grain from chaff has acquitted co-accused and convicted appellant-Deceased died of single shot which caused two separate injuries due to dispersal of pellets, thus giving benefit of doubt Co-appellant is acquittedProsecution has succeeded to prove its case against Nawaz appellant beyond any shadow of doubt, so his sentence was upheld. [Pp. 234, 235, 236 & 237] A, B, C, D & E Rqja Muhammad Anwar, Advocate with Mrs. Mahreen Anwar and Mr. Shafqat Khan Abbasi, Advocates for Appellants. Ch. Muhammad Amir, Advocate for State. Sardar Muhammad Latif Khan Khosa, Advocate for Complainant. Date of hearing : 4.8.1996. judgment Raja M. Khurshid, J.--Appellants namely Noor and Nawaz alongwith 6 others i.e. Umar Daraz, Aslam, Nausher, Sohrab, Zulfiqar and Ahmad Ali were arraigned for the murder of Altaf Hussain on 20.6.1990 in the area of Thatha Musa Dakhli Mauza Bhowana, District Jhang for which a case under sections 302/307/148/149 PPC was registered vide FIR No. 278 of the even date at Police Station, Bhowana on the report of Khyzer Hayat (PW-1). 2. The brief facts are that on 19.6.1990 a quarrel took place between Zafar and Walayat son of Ahmad Ali. The aforesaid Zafar and Walayat were injured during the fight. An attempt was made for reconciliation through brotherhood but in vain. On the day of occurrence the complainant Khyzer Hayat, Zafar aforesaid, Altaf Hussain deceased and Ahmad Nawaz PW were proceeding to Civil Hospital, Bhowana for the medico-legal examination of Zafar as he had sustained injuries during the fight aforementioned. They reached while riding on mares at the Dhari of Roshan AH Syed and after tethering their mares, proceeded on foot to the Hospital. They were confronted by the aforenamed assailants after they had emerged from khola where they had hidden themselves. All the assailants were armed with rifles except Nawaz and Noor, appellants who were armed with 12 bore guns. They raised lalkara that they would teach a lesson for causing injuries to Walayat whereupon out of them Noor appellant fired from his 12 bore gun hitting the deceased Altaf Hussain on his left knee. Simultaneously Nawaz appellant also fired from his 12 bore gun at the deceased thereby causing fatal injury to him on his neck. The complainant party laid themselves on the ground in order to save their lives and also raised noise which attracted Nasir Ali to the spot apart from other persons, who had seen the occurrence. In the meanwhile the remaining assailants namely Umar Daraz, Aslam, Nausher, Sohrab, Zulfiqar and Ahmad Ali continued firing from their rifles at the complainant party but no body was injured. On seeing the people coming towards the spot all the accused managed to escape in the nearby garden towards east while performing 'Bhangra'. The deceased succumbed to the injuries at the spot. 3. Rao Hamid Mukhtar Khan, learned Additional Sessions Judge, Chiniot conducted the trial and vide his judgment dated 21.9.1992 acquitted Umar Daraz, Aslam, Nausher, Sohrab, Zulfiqar and Ahmad AH after giving benefit of doubt to them whereas convicted Nawaz and Noor appellants under sections 302/34 PPG and sentenced the former to death and the latter to imprisonment for life with a fine of Rs. 30,000/- to each or in default thereof to undergo R.I for two years. The amount of fine, if realised was directed to be paid to the legal heirs of the deceased as compensation under section 544-A Cr.P.C. 4. The convict/appellants filed the present appeal to challenge the aforesaid judgment whereas the learned Additional Sessions Judge made a reference under Section 374 Cr.P.C for the confirmation of the death sentence awarded to convict Nawaz appellant. 5. Since the instant appeal and the reference have arisen out of the same judgment, therefore, both the matters are being disposed of through this judgment. 6. The prosecution had relied upon the ocular account of occurrence consisting of the evidence given by Khyzer Hayat complainant i.e. PW-1, Zafar PW-2 and Ahmad Nawaz PW-3. The recoveries of weapons of offence i.e. 12 bore guns P-20 and 5 live cartridges P-21/1-5 recovered from Nawaz through memo Ex. PJ and a 12 bore gun P-18 alongwith 5 live cartridges P-l 9/1-5 recovered from Noor appellant vide memo Ex. P-I were relied upon to support the ocular account of occurrence. The aforesaid weapons were found wedded with the 2 crime empties P-l & P-2 recovered from the spot vide memo Ex. P-C. A report of the expert of the Technical Services, Crime Branch, Punjab, Lahore Ex. PT was produced to show the matching of the cri-.v,e empties with the guns recovered from the accused/appellants. The - iuod stained earth collected from the spot also showed that it was stained with the human blood as per report of the Chemical Examiner Ex. P-R and that of the Serologist Ex. PS. The Medical evidence consisting of Dr. Muzaffar Ahmad (PW-7) was relied upon to show that it supported the ocular account of occurrence regarding the seat of injuries on the person of the deceased and also weapons which were used to cause those injuries. In this respect post mortem report Ex. P.K and diagram of the injuries Ex: P.K/1 were relied upon to show that the medical evidence was in accord with evidence given by the eye witnesses. 7. The learned counsel for the appellants assailed the judgment on the ground that eye witnesses were set up by the prosecution to support the false implication of the appellants and other members of their families. In this respect it was submitted that all the three eye witnesses were chance witnesses and had no business to be present at the place of occurrence. They allegedly lived at a distance of 4 to 8 'Kos' from the place of murder and the explanation given by them about their presence was neither convincing nor credible. The motive set up by the prosecution was also allegedly without any substance because the occurrence in which Zafar and Walayat were injured took place's day earlier i.e. on 19.6.1990, but Zafar PW was being taken to the Hospital on 20.6.1990 i.e. on the day of occurrence when . Walayat had admittedly been hospitalized on the same day i.e. 19.6.1990. It was, thereic;e, alleged that motive was cooked up in order to show the presence of the eye witnesses at the time of unfortunate occurrence, which took place in the manner different than the prosecution had set up in its case. Th.:> impugned judgment was also attacked on the ground that the learned Additional Sessions Judge had dis-believed the eye witnesses qua the acquitted accused but wrongly relied on their testimony and recorded conviction against the appellant/accused. It was contended that the witnesses involving innocent persons cannot be relied upon to convict the co- accused of the same case. It was alleged that principle of consistency required that benefit of doubt should have been extended to the convict/appellants. The recovery of guns and their belated despatch allegedly made the report of the Expert untrustworthy because the empties were kept at the Police Station for a considerable long time without any explanation and were only sent for examination when the guns had been recovered from the convict/ appellants. This belated despatch of empties and the crime weapons created serious doubt about their corroborative evidence to the eye witnesses. The recovery of the guns from the convict/appellants was also assailed on the ground that the same was effected from a house which was in the joint possession by the appellants with their other members of family, who were living under joint, family system. 8. Is was further contended by the learned counsel for the appellants that medical evidence in this case contradicted the ocular evidence because two injuries of similar nature could be caused with one shot and as such an un-holy attempt was made to implicate the two persons for injuries, which were the consequence of a single shot. 9. Lastly it was contended that the medical evidence and the facts of this case would clearly support the defence version given by Nawaz accused when he was examined under section 342 Cr.P.C. In answer to question No. 9, he had explained in the following words as to why he was involved in this case : "The deceased alongwith Misri and his other companions who have not been produced in the court, sat ambush while being armed with fire arm weapons, launched murderous assault upon me and relatives of Walayat injured, near RHC Bhowana and starting firing. A stray fire of the deceased's companions, hit him and he met his death. I fired in my self defence and defence of my relatives, which were ineffective. The accused named in the FIR alongwith me are innocent. They have not participated in the occurrence. The complainant party is desperate. They have not only committed murders earlier, but after this occurrence, also murdered Jannat Bibi, Panah Bibi and injured Walayat aforesaid, who are my nieces and son of my brother respectively. The P.Ws have not seen the occurrence. The complainant has concocted a false story. I had committed no offence. Had I not acted in self defence, I and my relatives would have been murdered by the deceased, Misri and his unknown companions. Nothing was recovered at my instance. The police had planted the gun upon me, which has been provided by the complainant party. The whole family has been involved falsely by throwing the net too widened". 10. In the light of the aforesaid defence, the learned counsel for the appellants submitted that there was strong possibility that the occurrence probably would have taken in the manner stated by the aforesaid appellant. In that event appellants were also entitled to the benefit of doubt as was given to their co-accused by the learned trial court, particularly when all the eye witnesses were not only interested, but were also inimical as well as related inter se and also to the deceased. 11. The learned counsel for the State contended that mere fact that witnesses were related inter-se or that they had any relationship with the deceased would not be sufficient to discard their evidence particularly when their testimony was corroborated by the medical evidence regarding seats of injuries and the weapons used by the appellants to inflict those injuries. The further corroboration to link the appellants with the occurrence is provided by the scientific examination by an expert in Forensic Science to show that the empties recovered from the spot were wedded to the guns recovered from the appellants/accused. It was, therefore, urged that the prosecution had a fool-proof case against the appellants/convict to have committed the murder of Altaf Hussain and they had rightly been convicted. The mere fact that the co-accused were acquitted on the basis of doubt would not create any extenuating circumstance in favour of the appellants to earn their acquittal because as a matter of abundant caution the principle of sifting the grain out of chaff is recognized by the courts of this country in order to see that the guilty is brought to book and the innocent is exonerated. Applying the same principle the learned trial court had rightly acquitted the coaccused of the appellants, through a well reasoned judgment showing that the case against them was doubtful. It was, therefore, prayed that the appeal was meritless and that the sentences awarded to the appellants ought to be upheld. 12. We have considered the submissions made at the Bar and have also gone through the evidence brought on record with the able assistance of the learned counsel for the appellants. It is true that the eye witnesses are related to each other and have also relationship with the deceased. This fact by itself is not sufficient to dub them as interested witnesses in the case. On the contrary, it appears that one of the eye witness namely Zafar was injured in the preceding fight and he was being taken to the Hospital for treatment of his injuries. In such a situation, the presence of his kith and kin with him at such time would not be improbable, nor it will be un-usual according to the social set up of our country particularly in rural side. The presence of other eye witnesses with Zafar would, therefore, be not only probable but would be considered as usual phenomenon. 13. The motive though a double edged weapon but in this case it was more on the side of the appellants than to be with the complainant side. In this respect, it may be pointed out that it is in evidence that Walayat was more seriously injured than Zafar in the occurrence, which took place on a day before the murder. It is also in evidence and was brought on record through cross-examination of the eye witnesses that Walayat was got admitted in the Hospital on the day when he was injured. It was, therefore, not unusual that the accused party felt more aggrieved because their man was more seriously injured and hospitalized whereas Zafar was still at home and was being taken to the Hospital on a mare back, which by implication would show that he was not seriously injured as his rival namely Walayat. Keeping in view the rural tempo of life it becomes convincingly understandable why the accused party including appellants/convicts had laid themselves in ambush to confront the complainant party to settle the account by balancing the even squarely. The motive in this case is, therefore, not out of place nor is the ocular account of occurrence untrustworthy though the witnesses are related to each other, and also to the deceased. Even if some corroboration is required, the same is provided by the recovery of the crime empties from the spot and weapons of offence i.e. 12 bore guns each from the appellants from their respective houses. Those empties were found wedded with the weapons recovered from the appellants on the basis of their scientific examination by an expert in the Forensic Science. The mere fact that recoveries of weapons from the appellants/convicts were effected from a haveli/house which was in the joint possession of the appellants with their other family members would not be un-believable because the recovery was effected from the kotha in the possession of the appellants/convicts. There mere fact that the haveli having a number of kothas even though occupied by the other members of the family would not adversely effect the recoveiy particularly when this is a common phenomenon in the rural side of this countiy where the joint family system is not only in vogue but also fully recognized by our present society in the villages. The recoveries from the appellants have therefore, been rightly believed because the weapons recovered from them were wedded with the crime empties. The mere fact that the crime empties were kept at the police station for a number of days without any explanation would not damage their evidentiary value as those were kept in safe custody under sealed cover. There is nothing on recprd to show that there was any tampering either with the crime empties or with the weapons of offence before those were sent to the expert for examination. The delay in despatch of the empties may be attributed to the general slackness and apathy with which our police system suffers. It is high time that the police system should be tuned up to deal with such type of serious cases, involving heinous offences. However, the mere slackness on the part of the police in despatch of these empties would not adversely effect the case of the prosecution or lesson their corroborative value without being shown that those were tampered with. As already observed above, there is.no such tampering, therefore, it cannot be said that those empties would m£ carry any corroborative value even if those were wedded with the guns recovered from the appellants. 14. Now we come to the objection of the learned counsel for the appellants that since three co-accused were acquitted, therefore, the evidence of eye witnesses should be totally dis-believed and that the appellants should also be given benefit of doubt and acquitted. In this respect, we have noticed that it is a matter of common observation that the complainant party generally, particularly in rural side of countiy, has developed an un-canny and un-couth practice of involving as many number of persons in such like serious cases as they could afford in order to bring maximum harm to the opposite side. This situation is veiy unfortunate but since this practice has some how taken root in our social set up, therefore, it needs to be tested on the principle that grain should be sifted out of chaff. This touch-stone has been recognised by the courts of this countiy in order to eliminate the possibility of punishing innocent people or persons against whom there is any reasonable doubt about their participation in the offence alleged against them. Applying the same principle, the learned trial Judge had given the benefit of doubt to the co-accused of the appellants/convicts and had acquitted them accordingly. We also feel that the aforesaid golden principle should be fully recognised and applied further if possible to eliminate the possibility of doubtful involvement of any accused at any stage of the case. With that object in view, we would like to examine the facts of this case in a more depth in the light of the defence taken by Nawaz accused and medical evidence brought on record. 15. The plea taken by Nawaz appellant/convict in defence has been quoted in verbatim in the earlier portion of this judgment. He has tried to show that the deceased was hit by the firing of complainant side. He also contended that he too fired in self defence, but that remained ineffective. This story by itself is not convincing because if the complainant side had come with a preparation to attack the appellant side then it would not have been possible in the ordinary course of nature that they would act so recklessly that they own man will become a victim. It is particularly so when according to the statement of Nawaz appellant the complainant side was a band of desperate people in habit of killing others. In such a situation, it was not expected of them that they will kill one of their own man while trying to take the life of their opponents. It will also not be possible that Nawaz accused will simply make fire in the air when he knew that his opponent being desperate people were well equipped with firearms. The story of defence is, therefore, neither probable nor compatible to the situation that he had acted in self defence to save his own life and that the lives of his companions. It cannot be, therefore, accepted as advanced by Nawaz appellant or by his co-accused. There is, however a crucial point to be considered before finally parting with the judgment. The Medical Officer while performing post mortem examination on the dead body of deceased Altaf Hussain had found the following two injuries : (i) A rounded wound of 3/4 cm diameter with inverted contused, lacerated edges on the front of lower part of neck. (ii) An ovel wound of 1/2 cm diameter on the front of left knee, just below the patella. A hard rounded pallet was palpable 3 cm away from the wound. The ocular evidence showed that the deceased was at a distance of 8 to 10 karams from the accused at the time, when he was injured due to the firing. It, therefore, follows that the fire made from 12 bore gun from the aforesaid distance would lead to wide dispersal of pallets so as to cause two separate injuries on the person deceased by means of single shot and not necessarily by two shots by two different persons as alleged by the prosecution. Hence proceeding th abundant caution and following the principle of safer administration of criminal justice, the benefit of doubt is further extended to appellant Noor and he too is quitted on that account. The conviction and sentence recorded against him by the learned trial court is accordingly set aside and the appeal to his extent is accepted. e is stated to be in custody. He be released forthwith if not required to be detained in any other case. 16. The case against Nawaz appellant/convict is however, proved beyond any shadow of doubt as according to his own statement, he had been firing at the complainant side in self defence, but no evidence was adduced to prove this special plea nor circumstances of the case spell out an hypothesis compatible with his innocence. Hence the most logical and irresistible conclusion shall follow that the prosecution has been successful to prove its case against Nawaz appellant/accused in toto without any shadow of reason doubt. The appeal to the extent of aforesaid Nawaz is, therefore dismissed and his conviction under section 302 PPG and sentence of death and a fine of Rs. 30,000/- is upheld. The death sentence awarded to Nawaz appellant is accordingly confirmed. 17. Reference under section 374 Cr.P.C. made by the learned trial court is answered accordingly. (MAA) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 237 Present: MUHAMMAD ASIF JAN, J. MUHAMMAD HASHIM RAZA--Petitioner versus THE STATE-Respondent Criminal Misc. No. 126/T/1996, accepted on 20.10.96. (i) Administration of Justice- -Basic principle of justice should not only be done but manifestly be seen to have been done. [P. 240] C (ii) Criminal Procedure Code, 1898 (V of 1898)-- S. 526--Transfer of criminal case-Trial commenced without petitioner being represented by a counsel-Trial Court did not appoint counsel on state expenses to represent petitioner, and recorded statements of five PWs who remained un-cross examined-After that trial court appointed counsel at state expenses-Petitioner also engaged a counsel of his choice whose request, for resummoning of PWs already examined, and for reasonable time to inspect case file were declined-Held : Concept of fair trial necessarily includes right of an accused to be defended by a counsel of his choice, which is embodied in Article 10 (1) of Constitution of Pakistan-High Court Rules and Orders, volume III, Chapter 24, Rule 2 provides appointing of a State Counsel-Petition accepted in circumstances. IP- 241] D Miranda us. Orizona 384 U.S. 436 (1966), 1984 PCr. L.J. 30, PLD 1973 SC 327 ,1984 P.Cr.L.J. 1054 ref. (Hi) High Court Rules and Orders- -R. 2 Chapter 24 Volume II provides that : - If accused is unrepresented and cannot afford to engage counsel, sessions Judge shall make arrangements to employ counsel at Government expense, and he may also appoint counsel, if he thinks fit, even when committing magistrate has considered that accused has means enough to engage counsel himself-Counsel in such cases should be appointed in time to enable him to study necessary documents which should be supplied free of cost. [P. 239] A (iv) Miranda Rule--
In Miranda r. Orizona 384 U.S. 436 (1966) the Miranda Rule "was formulated as follows : -- (i) If a person is to be subjected to interrogation, officers must inform him in unequivocal terms that he has a right to remain silent. (ii) There must be a warning that anything that suspect says, can and will be used against him in a court of law. (iii) Suspect has a right of counsel even during investigation. (iv) If a person cannot afford a counsel, he must be provided one even during investigation, by state. Above formulation is known as "Miranda Warning". Syed Zafar Hussain, Advocate for Petitioners. Mr. Rizwan Ahmad Wasti, Advocate for State. Date of hearing: 20.10.96. judgment Muhammad Hashim Raza petitioner has brought this petition under section 526 Cr.P.C. seeking transfer of a case arising out of F.I.R. No. 243 dated the 18th of September, 1995, under section 302 P.P.C. registered at Police Station Alpa of District Multan and pending in the Court of Rao Shafay Ali Khan, an Additional Sessions Judge of Multan to any other Court of competent jurisdiction at Multan, on the grounds, inter alia, that serious prejudice has been caused to him on account of which he does not expect a fair trial. 2. The final report commonly known as a challan regarding the case registered vide F.I.R. No. 243 of the 18th of September, 1995, under section 302 P.P.C. pertaining to Police Station Alpa of Multan was submitted in the Court of a local Magistrate who passed an order on the 19th of February, 1996 that the final report (challan) be submitted in the Court of the Sessions Judge of Multan and directed the accused to appear before the said Court on the 4th of March, 1996. On the 4th of March, 1996 the learned Sessions Judge of Multan was pleased to send the case for trial to the Court of Rao Shafay Ali Khan, as Additional Sessions Judge of Multan and the petitioner was directed to appear before the said Court on the 12th of March, 1996. 3. On the 12th of March, 1996, copies of the statements of witnesses of the prosecution which were recorded during the investigation under section 161 Cr.P.C. were handed over to the petitioner who was brought from jail and the case was fixed for framing of the charge on the 20th of March, 1996. The petitioner was not represented by counsel and although this fact was in the judicial notice of the learned trial Court, a counsel was not provided to the petitioner at State expense. The charge was framed against the petitioner on the 20th of March, 1996 and the trial commenced without the petitioner being represented by counsel. On the next date of hearing i.e. on the 8th of May, 1996, the learned trial Court recorded the statement of five prosecution witnesses who were not subjected to crossexamination because the petitioner was not represented by counsel. On the next date of hearing i.e. the 4th of June, 1996 Mr. Arshad Azhar, Advocate was appointed as counsel for the petitioner at State expense. However, on the next date of hearing i.e. the 7th of October, 1996, the petitioner engaged a counsel of his choice who appeared in Court and made an application to resummon the witnesses already examined by the prosecution and requested for a reasonable time to inspect the record in order to assist the Court properly which request was declined, leading to an application by the petitioner under section 526 (8) Cr.P.C. intimating the trial Court that the petitioner is making a transfer application before this Court. 4. The concept of a fair trial necessarily includes the right of an accused person to be defended by a counsel of his choice, if he can afford one. Section 340(1) Cr.P.C. provides that : -- "Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader." The High Court Rules and Orders, Volume III, Chapter 24, Rule 2 provides that : -- "If the accused is unrepresented and cannot afford to engage counsel, the Sessions Judge shall make arrangements to employ counsel at Government expense, and he may also appoint counsel, if he thinks fit, even when the Committing Magistrate has considered that the accused has means enough to engage counsel himself. Counsel in such cases should be appointed in time to enable him to study necessary documents which should be supplied free of cost ................................ " In Miranda v. Orizona 384 U.S. 436 (1966) the "Miranda Rule" was formulated as follows : -- (i) If a person is to be subjected to interrogation, the officers must inform him in unequivocal terms that he has a right to remain silent, (ii) There must be a warning that anything that the suspect says, can and will be used against him in a Court of law. (iii) The suspect has a right of counsel even during the investigation. (iv) If a person cannot afford a counsel, he must be provided one even during investigation, by the State. The above formulation is known as the "Miranda Warning." Article 10 (1) of the Constitution of the Islamic Republic of Pakistan embodies the "Miranda Rule" and lays down that : -- "No person who is arrested shall be detained in custody without being informed, as soon as may be , of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice." In the case of Abdul Aziz and another v. The State reported in 1984 P.Cr.L.J. page 30 (Karachi) a Division Bench was pleased to hold that where a counsel had been appointed to represent two accused persons who pleaded not only different but diametrically opposed defenses, the appointment of two Advocates separately for each accused was necessary and that serious prejudice had been caused to the accused tentamounting to miscarriage of justice and, therefore, their conviction and sentence was set aside and the case was remanded to the trial Court for de novo proceedings. 7. In the case of Niaz Ahmad v. The State reported in 1984 P.Cr.L.J, 1054 (Lahore) it was held that the appointment of a counsel at State expense to defend the accused should be made well within time to enable such counsel to study the necessary documents and that a counsel of whatever high calibre he may cannot be expected to prepare defence in a murder case without sufficient time and the necessary material. It was, therefore, held that the apprehension of the accused that he might not get a fair trial was not altogether unfounded. It was, therefore, ordered that the case be made ver to any Additional Sessions Judge functioning in the District for trial. 8. In the matter of transfer of a criminal case from one Court to another under section 526 Cr.P.C. and the principles governing disposal of transfer applications in the High Court, my Lord Mr. Justice Hamoodur Rahman, the then Chief Justice of Pakistan has enunciated the same in the case of Muhammad Nawaz v. Ghulam Kadir and 3 others reported in P.L.D. 1973 Supreme Court page 327 as follows :-- "The transfer of a criminal case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter. It is of paramount importance that parties arraigned before Courts should have confidence in their impartiality. It is of the important duties of a High Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial be a Judge or Magistrate whom he reasonably regards as being prejudiced against him. What is a reasonable apprehension must be decided in circumstances; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regard as unfavourable by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must he satisfied, namely, that the apprehension must be such as a reasonable man might justifiably be expected to have." The basic principle is that justice should not only be done but manifestly be seen to have been done and where on account of any attending circumstances a suspicion or distrust has occurred resulting in a lose of confidence in the administration of justice which is so essential to social order and security, it is better that should be done by a Court whose impartiality cannot be doubted and is above suspicion. 6. Resultantly this petition is accepted. It is ordered that the case entitled The State v. Muhammad Hashim Raza, pending in the Court of Rao Shafay Ali Khan, Additional Sessions Judge, Multan be sent back to the Court of the learned Sessions Judge of Multan who may either tiy the same himself or send it to any other Court of competent jurisdiction who shall try the same de novo. (A.P.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 241 Present: muhammad naseem chaudhri, J. Mst. GULZAR BEGUM-Petitioner versus INCHARGE, POLICE CHOWKI, SHAHDRA TOWN ETC.-Respondent Criminal Misc. No. 1123-H/1996, accepted on 16.9.1996. Criminal Procedure Code, 1898 (V of 1898)-- -S. 491-Habeas Corpus Petition-Bailiff deputed by Court found alleged detenu fettered in a room which was not an approved Police Post, but was an old building of police station where some police officers were residing-Arrest of alleged detenu was recorded under Section 54 Cr.P.C. in a case registered under Section 392 P.P.C.--Alleged Detenu was not named in F.I.R.-No incriminating material except secret information with police-Held : Without credible evidence/material in matter, provisions of section 54 Cr.P.C. cannot be invoked for arrest of an accused-No criminal case of any type has ever been registered against alleged detenu-In circumstances, arrest of alleged detenu was unjustified and was declared detenu-Detenu was set at liberty, who has pardoned Police Officers-Police Officers were advised to maintain ignity of their office and not to wreck any vengeance. [P. 244] A, B & C Mr. Abdul LatifDole, Advocate for Petitioner. Mr. Tallat Mahmood, S.I./S.H.O. P.S. Shahdara. Date of hearing: 16.9.96. judgment Mst. Gulzar Begum petitioner filed this petition under section 491 Criminal Procedure Code on 15.9.1996 for the recovery of her brother Muhammad Akram from the alleged illegal and improper custody of the Incharge police post Shahdara Town, Lahore and the SHO Police Station Shahdara Town, Lahore. 2. A bailiff was deputed who reached Police Post Shahdara Town, Lahore on 15.9.1996 at 4.30 p.m. The SHO was present there who intimated him that the Roznamcha was in Police Station Shahdara Town, Lahore which was situated at a distance of 3 Kilo-metres. The SHO informed him that the place where they were present was not an approved Police Post which was the old building of Police Station Shahdara Town, Lahore wherein one ASI and some police officials were residing. The bailiff searched for Muhammad Akram alleged detenu who was found sitting in a room with leg-fetter. Alongwith Muhammad Akram he reached Police Station Shahdara Town and took into possession the Daily Diary. The Moharrir 'Thana' intimated him that Muhammad Akram was required by the Police in crime case No. 39/1996 registered under section 392 P.P.C. at Police Station Shahdara Town, Lahore and the arrest of Muhammad Akram was recorded under section 54 Criminal Procedure Code in the Daily Diary vide Report No. 24 dated 15.9.1996 by Muhammad Arshad ASI, although his name was not mentioned in the F.I.R. The bailiff directed the SHO to produce Muhammad Akram before this Court on 16.9.1996. 3. Today the SHO. has not brought Daily Diary of Police Station Shahdra Town Lahore for the reasons best known to him. He has taken up the stand that Muhammad Arshad ASI arrested Muhammad Akram on 15.9.1996 under Section 54 Criminal Procedure Code as he was required in a case of robbeiy registered at F.I.R. No. 39/1996 under section 392 P.P.C. at Police Station Shahdara Town, Lahore. On the query made by the Court he told that some secret information was received by Muhammad Arshad ASI that Muhammad Akram was the accused of the aforesaid crime case No. 39 of 1996 registered at Police Station Shahdara Town, Lahore under section 392 P.P.C. When asked in the matter he intimated that no incriminating material except the secret information was with the police to arrest Muhammad Akram as an accused under section 54 Criminal Procedure Code. Legally the police has the powers to arrest a person under section 54 Criminal Procedure Code. However, I am tempted to express that these days when the cases of robbeiy and dacoity are on the increase, different persons are arrested by the police as accused on the ground that some informant has given the secret information that a certain person is the accused of that case of dacoity or robbery. The persons arrested in the said manner are declared innocent and freed after some days and some time even complainants are made against the Police. This free hand cannot be given to the police keeping in view the respect and honour of the citizens of the country provided by the Constitution. In this regard it would be convenient to reproduce as under section 54 Criminal Procedure Code :-- "54-(l) Any police officer may, without an order from a Magistrate and without a warrant, arrest :-- firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; thirdly, any person who has been proclaimed as an offend r either under this Code or by order of the Provincial Government; fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen pro perty and who may reasonably be suspected of having committed an offence with reference to such thing; fifthly, any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody; sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan seventhly, any person who has been concerned, in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan, which, if committed in Pakistan would have been punishable as an offence, and for which he is, under any law relating to extradition. or otherwise, liable to be apprehended or detained in custody in Pakistan eighthly, any released convict committing a breach of any rule made under section 565, subsection (3); ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition." 4. It is a matter of common knowledge for the last one decade that even if the influential persons including the Police Officers/officials are named as the accused in the F.I.Rs. including murder cases, they are not arrested on the ground that the complainant has not produced the material/incriminating evidence justifying their arrest. If it is so then how on the basis of the secret information a poor person can be arrested under section 54 Criminal Procedure Code in a case. It shall not be out of place to express that in cases of dacoity and robbery, repetition of which is also to be restrained and stopped by the police, the poor and un-influential persons are arrested under section 54 Criminal Procedure Code on the ground of receipt of some secret information. My view is that without credible evidence/material in the matter the provisions of section 54 Cr.P.C. cannot be invoked for the arrest of an accused especially when in the said section 54 A the circumstances leading to the relevant powers of police in the matter have been specifically incorporated. Such type of attitude is also adopted by some ,I of the Police officials to project their authority in the area. It is the duty of every functionary to 'provide equitable treatment to all the citizens as the justice is to be administered by all the functionaries of the Government to the citizens. It was admitted by the SHO that no criminal case of any type has even been registered against Muhammad Akram who claimed to be innocent and has expressed that he earned his livelihood by the dint of his hard labour. In the circumstances I hold that the arrest of Muhammad g Akram alleged detenu is unjustified who is declared a detenu. At my direction he has been let off by the police who is allowed to leave to a place of his own choice. 5. I was about to pass the order directing both the Police Officers to pay compensation to the petitioner, but they have apologized from her. The Police Officers have been directed to be careful towards the petitioner, the released detenu and their family members. They shall not wreck any venge ance. They have been advise J to maintain the dignity of the office being held by both of them and should not bring bad name to the Police Department. (MAA) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 245 (DB) [ Rawalpindi Bench] Present: sheikh ijaz nisar and raja muhammad sabir, JJ. MUHAMMAD ASHRAF-Petitioner versus THE STATE-Respondent Criminal Misc. 609/B-1996, rejected on 30.9.1996. Bail- S. 497--Prohibition (Enforcement of Hadd ) Ordinance, 1979, Article ¾ read with Control of Narcotic Substances Ordinance, 1979, S. 9Recovery of 500 grams of c/ zaras -Contention, falsely implication of accused in a crime witnessed only by Police Officials-Held : No doubt, rule of propriety demands association of public witnesses in recovery pro ceedings , but not a universal application-In exceptional cases, may not be possible to procure attendance of public witnesses due to general apathy of public to appear as prosecution witnesses against accused charged with serious offences-Petitioner involved in 25 cases of similar nature-Peti tioner is not entitled to concession of bail-Bail declined. [P. 245] A & B Mr. Muhammad Aslam Unas , Advocate for Petitioner. Mr. Amjad Hameed Ghauri , Advocate for State. Date of hearing : 30.9.1996. order Muhammad Ashraf -petitioner seeks bail in a case FIR No. 170 dated 13-5-1996, under Articles 3/4 of the Prohibition (Enforcement of Hadd ) Ordinance, 1979, and section 9 of Control of Narcotics Substance Ordinance, 1979, Police Station Dina, District Jhelum . 2. The relevant facts are that on the receipt of a secret information , S.I . Umar Hayat apprehended the petitioner on 13-5-1996 and recovered 500 grams of charas concealed by him in a shopping bag. 3. Bail is sought on the grounds that the case is based on false allegations and that except for police officials, there is no public witness to the alleged recoveiy and further that the offence does not fall within the prohibitory clause of section 497 sub-section (1) Cr.P.C . 4. No doubt, the rule of propriety demands that the public witnesses should be associated in the recovery proceedings, but it is not of universal application and there may be exceptional circumstances where it may not be possible to procure their attendance because of the general apathy of the public to appear as prosecution witnesses against accused charged with serious offences. We have been informed by the learned counsel appearing on behalf of the State that the petitioner is involved in more than twenty-five cases similar nature. 5. In the circumstances discussed above, we do not consider him entitled to the concession of bail at this stage and accordingly dismiss his application. 6. The trial Court is, however, directed to expedite the trial and conclude the same before this year goes out. (MAA) Bail declined.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 246 Present: muhammad naseem chaudhri, J. ZAFAR AHMAD-Petitioner versus STATE and 4 others-Respondents Criminal Misc. No. 242-Q-96, decided on 14.10.96. (i) Criminal Procedure Code, 1898 (V of 1898)-- -S. 561-A-Pakistan Penal Code, 1860, S. 302/34--Quashment of proceedingsCase sent up to Sessions Judge by Magistrate after roceeding, against one of bsconding accused, under Section 87/88 Cr.P.C., and trial Court examined some prosecution witnesses- Petitioner's counsel contended that trial court should have proceeded under Section 87/88 Cr.P.C. afresh in case of legal necessity-Held : If a person becomes fugitive of law it is obligatory on trial court to initiate proceedings, under section 87/88 Cr.P.C., against him without that trial Court cannot commence trial even to extent of accused who are willing to defend same by appearing before court-Further held : That trial court shall proceed according to law, and after collecting material qua absconding accused, proceedings shall be conducted afresh to extent of remaining accused, charge shall be framed afresh and prosecution witnesses be examined afresh-Impugned orders stand quashed-Petition accepted. [P. 248] B & C (ii) Criminal Procedure Code, 1898 (V of 1898)-- S. 87/88-Proceedings under this section before sending up case to Sessions Court, conducted at end of area Magistrate is not an illegal act. [P. 248] A Mr. Lai Khan Baiuch, Advocate for Petitioner. Mr. S.A. Waheed Bokhari, A.A.G. for Respondent No. 1. Mr. M. Aslam Malik, Advocate for Respondents No. 2 and 3 Date of hearing: 14.10.1996. judgment Bashir Ahmad, Zafar and Anwar respondents No. 2 to 4 are the accused of crime case No. 147 registered on 22.2.1996 at Police Station Jarranwala under sections 302/34 PPC. Bashir Ahmad and Zafar respondents No. 2 and 3 have been arrested while Muhammad Anwar respondent No. 4 has become a fugitive of law. The Area Magistrate at the petition of the police, proceeded under sections 87/88 Criminal Procedure Code against Muhammad Anwar accused and thereafter sent up the case to the Court to Session. At present the case is on the file of Mr. Pervez Ali Chawla, Additional Sessions Judge, Faisalabad. He charged both Bashir Ahmad and Zafar accused/respondents No. 2 and 3 on 9.7.1996 under sections 302 (a)/34 Pakistan Penal Code. Thereafter some prosecution witnesses have been examined on 25.7.1996 and 1.9.1996. 2. Through the filing of this petition under section 561-A Criminal Procedure Code Zafar Ahmad petitioner-complainant is desirous for the quashment of the proceedings conducted on 9.7.1996, 25.7.1996 and 1.9.1996 on the ground that it was incumbent upon the learned trial Court to procure the attendance of Muhammad Anwar Absconder accused/respondent No. 4 and in case of legal necessity to proceed under sections 87/88 Criminal Pro cedure Code. According to the petitioner thereafter the trial could be started. 3. I have heard the learned counsel for the parties as well as learned Assistant Advocate General. Learned counsel for the petitioner argued that the Area Magistrate could not proceed against Muhammad Anwar respondent No. 4 under sections 87/88 Criminal Procedure Code and that fter the case was sent up in terms of section 190 (3) Criminal Procedure Code by him it was necessary on the part of the learned Addl. Sessions Judge to proceed afresh to procure the attendance of Muhammad Anwar respondent No. 4. On the contrary it has been argued on behalf of the State and the accused persons that before the case exclusively triable by the Court of Session is sent up to the Court of Session, all the ancillary proceedings are to be conducted at the end of the Ilaqa Magistrate and that there was no need to proceed afresh before the start of the trial by the trial Court to procure the attendance of Muhammad Anwar accused and to proceed under sections 87/88 Criminal Procedure Code. P. 2 I would express that it seems hat Zafar Ahmad petitioner-complainant has not moved the learned trial Court to proceed under sections 87/88 Criminal Procedure Code to the extent of Muhammad Anwar absconder accused/respondent No. 4 before the start of the trial. This direction can be passed even today by this Court and the trial Court can give its verdict either way. However, I am tempted to express that would be nothing but wastage of time especially when the learned trial Court is proceeding with the trial and is recording the prosecution evidence. I, therefore, proceed to dispose of this matter on merits. 4. Learned counsel for the petitioner-complainant has rightly canvassed that without the presence of Muhammad Anwar respondent No. 4 the trial cannot be processed with and conducted and even at the end of the trial Court all the efforts should be made to procure the presence of Muhammad Anwar absconder-accused through ordinary manner of coercive methods. Even if the proceedings in the matter have been conducted at the 4 end of the learned Area Magistrate that is not an illegal act. However, it was also incumbent upon the trial Court to proceed in accordance with law to procure the attendance of Muhammad Anwar absconder-accused/ respondent No. 4. To exemplify if an accused is admitted to bail before the challan is sent up to the Court of Session, his attendance has also to be procured by the trial Court i.e. the Court of Session. If an accused on bail becomes a fugitive of law the proceedings under section 514 Criminal Procedure Code are also to be conducted in addition to the proceedings to be taken under sections 87/88 Criminal Procedure Code. The wisdom behind this aspect of the matter is that after the conclusion of the trial if the absconding accused is arrested and the trial is conducted the previous material can be used against him if any of the prosecution witnesses has expired. In case of failure on the part of the trial Court to proceed in this regard, in the aforesaid state of affairs, the arrested accused can take exception thereto during the trial. In short it is expressed and held that the appearance of an accused who is under arrest (in the judicial look up), is on bail or is a fugitive of law is necessary before the trial Court when the trial commences. In this regard the bailable or non-bailable warrant of the absconding accused can be issued by the trial Court and the normal procedure can be followed or the coercive method can be adopted to procure his attendance. If the person becomes the fugitive of law it is obligatory on the Trial Court to initiate the proceedings under sections 87/88 Criminal Procedure Code. Without that the trial cannot be commenced even to the extent of the accused who are willing to defend the same by appearing before the Court. 5. Consequently I accept this petition and quash the aforesaid orders. The result is that the trial Court shall proceed in accordance with law ,to procure the attendance of Muhammad Anwar accused/respondent No. 3 'and shall adopt all the methods thereof. After collecting all the material qua him, the proceedings shall be conducted afresh to the extent of the remaining accused persons who want to defend the suit. It means that the charge shall have to be framed afresh and the PWs shall be examined afresh thereafter. It follows that the de novo trial shall have to be conducted by the trial Court. In case Muhammad Anwar accused appears, the trial shall proceed as expressed above. (MAA) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Quetta) 249 (DB) Present: MUNAWAR AHMED MlRZA C.J. AND mir muhammad nawaz marri, J. YAR MUHAMMAD-Applicant versus THE STATE-Respondent Criminal Bail Application No. 260/1996, decided on 9.9.1996. (i) Bail- S. 497/498-Arms Ordinance, 1965, S. 13-A-Bail-Allegations that on raid of house of accused, Arms and ammunition was recoveredRaid was supervised by a Magistrate whose name appear in calender of witnesses- Admissibihty of testimony of Police Officials with obvious restriction still hold field and Superior Courts has not excluded from consideration- Name of accused/Petitioner transpires in murasila immediately recorded at spot, so press briefing appearing in newspaper, by itself will not have any legal impact of disproving material on record-Being not a fit case for bail. [Pp. 253 & 254] B, D, E & F (ii) Criminal Procedure Code, 1898 (V of 1898)-- -S. 103-Search-Observations made by Superior Courts do not indicate that failure to comply with requirements contained in Section 103 Cr.P.C. ipso-facto render search/raid as devoid of lawful authority. [P. 253] A (iii) Criminal Trial-- Press clipping-Press clipping though not admissible without formal proof yet can be referred while tentatively examining various factors connected with commission of offence. [P- 253] C Mr. Abdul Aziz Khan Khilji, Advocate for Applicant. Ch. Ejaz Yousuf, Additional A.G. Date of hearing : 5.9.1996. order Munawar Ahmad Mirza, C.J.-Relevant facts briefly mentioned are that on 25th September, 1996, based upon credible information regarding involvement of certain persons in "Arm Trafficking", CIA Staff, police officers with employees of Range Reserve and a lady constable under the supervision of E.A.C. IV and Magistrate First Class (Mr. Zulfiqar Durrani) raided the house of applicant Yar Muhammad situated in village "Choi" Chashma Achozai, Tehsil Quetta. It is the case of prosecution that during search of applicant's house a white coloured bag containing following arm and ammunition was recovered from residential room placed at No. 1 of said premises :-- (i) 12 pistols of 30 bore. (ii) 23 (twenty three) magazines of TT Pistols. (iii) 3 (three) SMG and its 120 rounds. Thus raiding party apprehended the accused/applicant, seized above articles and prepared Mashirnama on the spot. Murasila was forwarded to Police Station Air-Port Quetta; where FIR No. 121/95 was registered against accused/applicant under section 13-A Arms Ordinance. After completion of investigation concerned police submitted challan before Special Judge Suppression of Terrorist Activities, Balochistan, Quetta, during November, 1995. It is alleged that so far trial court has framed the charge and case is now fixed on 18th September, 1996 for prosecution evidence. 2. Applicant moved the trial court, praying for his release on bail, but same was eventually declined vide order dated 1st August, 1996. Feeling aggrieved the accused has approached this court praying for granting him bail. 3. Mr. Abdul Aziz Khan Khilji learned counsel for accused/applicant emphatically argued the case and raised following contentions :-- (a) The basic requirements for conducting search as contemplated under section 103 Cr.P.C. have been disregarded while conducting the raid. Alleged recovery being extremely defective stands vitiated in its entirety. To supplement this submissions reliance was placed on the following reported judgments :-- (i) 1996 P.Cr.L.J. 101 (Gulshan vs. The State) (ii) 1996 P.Cr. L.J. 179 (Miss Shahida Parveen v. State). (iii) 1996 (F.S.C) (S.D) 305 (Bashir Ahmad & others v. State). (iv) 1996 PLJ (Cr.C) 967 (Dr. Shah v. The State). (v) 1996 PLJ (Cr. C) {Lahore) 857 (Muhammad Akbar v. State). (vi) 1996 PLJ (Cr.C) Karachi-1226 (Akhtar Hussain v. State). (vii) 1996 PLJ (Cr.C) (Lahore 1299 (Sajjad Hussain v. State). (viii)1996 SCMR 167 (Altaf Hussain v. State). (ix) 1996 PLD 574 (Mushtaq Ahmad v. State). (x) 1995 P.Cr.L.J. 448 (Muhammad Hussain v. State). (xi) 1995 P.Cr.LJ. 1178 (Siddique v. The State). (xii) 1995 P.Cr.L.J. 1654 (ZulfiqarAli Shah v. The State). (b) Press briefing appeared in newspaper on the day following applicant's arrest and exonerated him from involvement in the offence. Thus at least a doubt suggesting further inquiry was created, entitling the petitioner to grant of bail. Following judgments were relied :-- (i) 1996 P.L. J. (Cr.C.) 1126 Akhtar Hussain v. State. (ii) PLD 1996 S.C. 574 (Mushtaq Ahmad v. State). (c) Without prejudice according to petitioner house allegedly raided has not been proved under exclusive control or possession of accused. Besides, applicant having been attracted on the cries and commotions of female inhabitants of raided house was unjustifiably apprehended. Responsibility for commission of offence therefore cannot be placed upon accused. (d) The accused is deemed innocent till found guilty. The prosecution witnesses are apparently interested in supporting accusations against applicant. Besides there is no compensation regarding detention of accused if eventually found innocent. (i) 1995 P.Cr.L.J. 488 (Muhammad Hussain v. State). (ii) 1996 P.L.J. Karachi (Cr.C.) 1293 (Shah Dad v. The State). 4. Learned Additional Advocate General vehemently opposing the bail application made following submissions :-- (a) Each case required examination according to its own peculiar circumstances. Mere non-examination of witness from locality does not vitiate the raid/search. Legal requirements merely provide caution for preventing grossly unfair and arbitrary action by investigating Agency. Police officials are equally competent witnesses if no malafides exists. Reference has been made to following decided cases :- (i) PLD 1975 S.C. 607 (Muhammad Khan v. Dost Muhammad). (ii) 1976 SCMR 72 Rehan v. State. (iii) PLD 1978 S.C. 114 Mumtazuddin vs. State. (iv) PLD 1981 SC 635 Mumtaz Ahmad v. State. (v) PLD 1984 SC (Shariat Appellate Bench) 278 & 283 (Muhammad Shah v. State). (vi) PLD 1985 (FSC) 410 Abdul Hamid v. State. (vii) 1986 SCMR (Shariat Appellate Court) Malik Khan v, State (viii)PLD 1978 S.C. 46 (Safdar Abbas & 2 others v. The State). (ix) PLD 1990 S.C. 1088 (Taslim Khan v. State.) (x) 1991 S.C.M.R. 458 Zardar v. State. (xi) 1991 SCMR 461 Khudai Rahim v. State. (xii) PLD 1992 S.C. 1475 Mirza Shah v. State. (xiii)1995 S.C.M.R. 1973 ZakirHussain v. State. (xiv)PLD 1996 57 '4 Muhammad Azam v. Stats. (h) The raid was conducted under the supervision of Magistrate First Class. Name of applicant transpires in the Murasla, which was immediately recorded; at the spot and forwarded to Airport Police Station for registering the case. Undisputedly Magistrate is also mentioned in the calendar of witnesses, therefore, objection regarding validity of raid or absence of independent witnesses during search is totally misconceived. (c) The court while granting bail has to satisfy itself whether reasonable ground exists against accused for believing that he is connected with offence alleged against him. Without such finding case cannot be termed as fit for further inquiry. (i) 1989 SCMR 99 Najibul v. Sadat Khan. (d) The material available with the prosecution discloses exclusive control of accused/applicant, over the house located in village "Choi" Chashma chozai which was raided on 29.9.1995. It would be pre-mature to consider vague defence plea without formal proof. Accordingly requests for bail lacks merit. We have gone through above quoted reports and considered the arguments advanced by learned counsel for parties. Firstly main thrust of argument was directed towards illegalities and improprieties of raid/search without associating person from locality. Respectfully considering ratio deddendi of reports relied by learned counsel for applicant which elucidate requirements of section 103 Cr.P.C. and impending obligation regarding procurement of independent respectable inhabitants from locality at the time of planned search to eliminate possibility of false involvement or arbitrary administrative action, against affected person. The observations primarily suggest compliance with essentials contemplated by section 103 Cr.P.C. and manner of conducting search of house; but no where it is indicated that failure to comply with such requirements ipso-facto renders the search/raid as devoid of lawful authority. The principle enunciated by the superior Courts relied upon by the State counsel manifests that testimony of witnesses cannot be outrightly descredited or excluded from consideration merely because they are police officials. Therefore various factors such as : (i) causes regarding non-association of local inhabitants; (ii) genuineness of action for public interest or general benefits; (iii) non-attribution of malafides against police officials or other witnesses of search; (iv) leakage of information or evidence if search is delayed; probability of destroying (v) urgency of matter or State interest must be kept in view while examining special circumstances of each case. We may mention that a manner of search and adherence to section 103 Cr.P.C. has been discussed by Honourable Supreme Court in case P.L.D. 1996 Supreme Court 574. However, principle concerning admissibility of testimony given by police officials with obvious restrictions still hold the field and has not been excluded from consideration. Therefore, examining factual aspects available on record and raid having been conducted within the presence of Magistrate who prima facie cannot be deemed interested. In our opinion apparently prosecution accusations cannot be straight away rejected. Each case has its distinctive features, and requires independent evaluation. It would be for trial Court to assess real evidenciary value of prosecution witnesses at appropriate stage. The press clipping though not admissible without formal proof yet can be referred while tantatively examining various factors connected with commission of offence. Undisputedly in this case express mention of applicant's name was made in the Murasila immediately recorded at the spot therefore, said press report will not by itself have any legal impact of disproving material on record. Accordingly without making positive comments and purely on tenative appraisal of available material, we fell that reasonable grounds cannecting the petitioner with commission of offence exist Therefore, contentions suggesting further inquiry are not helpful to the petitioner. In this behalf reliance can be placed on the observations in case 1989 SCMR 899. For the above reasons we do not find it a fit case for grant of bail at this stage. Trial Court is however, directed to expedite disposal of the case by fixing short dates. Prosecution should ensure production of witnesses before trial court on next hearing. Subject to above observations petition is dismissed. (MAA) Bail not allowed/Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 254 Present: MUHAMMAD AQIL MlRZA , J. GULZAR AHMAD-Petitioner versus STATE-Respondent Criminal Misc. No. 2805/B/96, dismissed on 2.7.1996. ( i ) Bail-Cancellation of-- S. 497(5)--Offence of Zina (Enforcement of Hadood ) Ordinance, 1979 read with Section 420/468/471 P.P.C.-Cancellation of Bail-Circumstances showing that second marriage was contracted with consent of father of lady-Couple residing as husband and wife having a suckling child-Unimaginable that a father will many his daughter during subsistence of earlier marriage-F.I.R. lodged after one year and seven months without cogent reasons-Whether petitioner divorced lady or not is a question of further inquiry which shall be established at trial-Cancellation of bail declined in circumstancesPetition dismissed in limine . [Pp. 255 to 257] A, B & D ( ii ) Bail-Cancellation of- -S. 497(5)-Cancellation of bail-Once bail is granted by a competent court , then discretion so exercised cannot be interfered by High Court unless bail is found to have been granted arbitrarily or fancifully by ignoring material considerations for grant or refusal of bail-Bail cannot be cancelled as a matter of course nor there is any legal compulsion to cancel bail in cases which are punishable with death, life imprisonment or imprisonment for ten years. [P. 256] C Ch. Naseer Ahmad Sandhu , Advocate for the Petitioner. Date of hearing: 2.7.1996. order Gulzar Ahmad complainant has filed this application for cancellation of bail granted to (1) Gulzar Ahmad by the learned Additional Sessions Judge vide order dated 15.5.1996 and (2) Abdul Ghafoor and Mst . Gudi vide subsequent order dated 20.6.1996. 2. FIR No. 494 was registered at the instance of the petitioner on 24.9.1996 on the allegations that he was married to Mst . Gudi , he went to Karachi and in his absence Gulzar Ahmad son of Muhammad Din (respondent No. 1) developed illicit relations with his wife and later on abducted her with the connivance of her father. On these allegations the case was registered against the alleged abductor, Mst . Gudi and her father Abdul Ghafoor , under Sections 16/10 of the Offence of Zina (Enforcement of Hudood ) Ordinance, 1979 and Sections 420, 468 and 471 PPC at police station Chak Jhumra on 24.9.1995. 3. It was contended before the learned Additional Sessions Judge on behalf of the new husband that the complainant divorced Mst . Gudi and thereafter she contracted marriage and out of this wedlock they have a suckling child. It was also contended that the FIR was lodged after one year and seven months. After considering these arguments, the learned Additional Sessions Judge granted bail to the new husband in the following words :-- "Keeping in view the arguments advanced by both the parties and perusing the record. I am of the considered view that there is a registered Nikah Nama in favour of the petitioner which has been duly verified by the Investigating Officer. Mst . Gudi the alleged abductee of this case had been living with the petitioner as his legally wedlock. The delay of more than 1-1/2 years in lodging the FIR has not been explained in the FIR. The matter therefore, requires further inquiry. I accept this bail application. The petitioner is allowed bail subject to furnishing bail bonds in the sum of Rs . 50,000/- with two sureties in the like amount to the satisfaction of this Court." 4. Subsequently pre-arrest bail was granted to Mst . Gudi and her father Abdul Ghafoor mainly on the ground that Mst . Gudi contracted marriage after Talaq and she already has a child from the second wedlock. 5. Learned counsel has vehemently argued that the bail granted to Mst . Gudi , her father and her new husband should be cancelled because the first marriage still subsists. He has further submitted that the Nikah Nama pressed into service by the accused persons has been found to be a fabricated document. 6. After hearing the learned counsel at quite some length, I have not been persuaded to issue notice for cancellation of bail granted to the respondents. Whether the petitioner divorced his wife Mst . Gudi or not is a uestion of further inquiiy which shall be established at the trial. Even if the Nikah Nama pressed into service by the respondents is ignored for arguments sake, the presumption in the attending circumstances would be that Mst . Gudi and Gulzar Ahmad son of Muhammad Din were living as husband and wife for more than a year and they already have a suckling child. This second marriage has been contracted with the consent of the father of the lady who for that reason has also been arrayed as an accused person. Prima facie, it is not imaginable that a father will give his daughter in marriage during the subsistence of her earlier marriage. It is not understandable nor it has been explained to my satisfaction during the arguments by the learned counsel, as to why the petitioner went from Faisalabad to Karachi to work as labourer leaving his wife behind and why the FIR was lodged after the delay of one year and seven months. Copy of the first Nikah Nama shows that the marriage with Mst . Gudi took place on 22.9.1988 by way of " Badal Ka Rishta ". Learned counsel has, however, not been able to state whether it was a Watta Satta marriage. 7. In addition to what has been said above, there being a child already from the second wedlock every effort should be made to protect the legitimacy of the child. It will have to be established at the trial by the prosecution, whether the petitioner had not divorced his wife and whether respondents No. 1 and 3 were not duly married. 8. It may be emphasized that applications for grant of bail and applications for cancellation of bail under Subsection (5) of Section 497 Cr.P.C . have to proceed on different considerations. Once bail is granted by a competent court, then the discretion so exercised cannot be interfered by the higher court unless the bail is found to have been granted arbitrarily or fancifully by ignoring material considerations for grant or refusal of bail. The bail cannot be cancelled as a matter of course nor there is any legal compulsion to cancel the bail in cases which are punishable with death, life mprisonment or imprisonment for then years. The Hon'ble Supreme Court in this behalf has held as under in the case of Aman Ullah Shah vs. The State and another (PLJ 1996 SC 414) = (PLD 1996 S.C. 241) :-- "Once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of Section 497 (5), Cr.P.C . are not punitive. There is no legal compulsion for cancelling bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused." The learned Additional Sessions Judge has granted bail to the respondents on cogent grounds. I am, therefore , not inclined to cancel their bail. D Resultantly this application is dismissed in limine . (MAA) fPetition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 257 Present: MUHAMMAD NASEEM CHAUDHRI, J. RIAZ AHMAD-Petitioner Versus S.H.O. POLICE STATION, BUDYANA, SIALKOT-Respondent Criminal Misc. No. 1054/H-96, disposed of on 10.9.1996. Criminal Procedure Code, 1898 (V of 1898)-- S. 491-Habeas Corpus petition-S.H.O. appearing under direction of High Court stated that since 5 months a case under section 11 of Offence ofZina (Enforcement of Hudood) Ordinance, 1979, stood registeredOn her recovery, during investigation, alleged detenu made statement that present petitioner alongwith 6 others abducted her and petitioner committed zina-bil-jabr with her, resultantly she became pregnant and gave birth to a daughter-Held : Petitioner has coined this design to get back the ladies-Petition is based on mala fides and simply a futile attempt to get the lady back through High Court-Petitioner was burdened with compensation of Rs. 20QO/- to be paid to S.H.O.-Petition dismissed. [P. 258] A, B Mr. Shahid Zaheer Syed, Advocate for Petitioner. Mr. Muhammad Bashir, S.I./S.H.O. alongwith Police file. Date of hearing: 4.9.1996. judgment This is a petition filed by Riaz Ahmad petitioner for the recovery of his wife Mst. Ruqia Bibi and minor daughter Mst. Zainib from the alleged illegal and improper custody of the SHO Police Station Budiana, District Sialkot. 2. As desired by the petitioner through a special messenger at his expense the SHO Police Station Budiana was directed to appear before this Court and to produce Mst. Ruqia Bibi alongwith her minor girl Mst. Zainab if they were with him. 3. In compliance of the said order the SHO has appeared. 4. The stand of the SHO is that about the abduction of Mst. Ruqia Bibi crime case No. 65 dated 23.5.1995 was registered at Police Station Budiana, District Sialkot under Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, that investigation was conducted, that Mst. Bibi was recovered and that her statement was recorded on 2.5.1996 when she took up the plea that Riaz Ahmad son of Muhammad Shafi abducted her alongwith six others who committed Zina Bibi Jabar with her whereupon she became pregnant and afterwards gave birth to a daughter. She expressed her desire to accompany her father and she was allowed to accompany her father. 5. In view of the aforesaid aspect of the matter I have to express that the petitioner has coined this design to get back Mst. Ruqia Bibi. The SHO has intimated that after the departure of Mst. Ruqia Bibi with her father he has no contact with her and her father. There is no reason to disbelieve him A in the circumstances of the matter. In this view of the matter this petition ! filed under section 491 Criminal Procedure Code is held to be based on malafides and simply a futile attempt to get back Mst. Ruqia Bibi through this Constitutional Court. 6. I dismiss this petition and burden Riaz Ahmad petitioner with I compensation in the sum of Rs. 2,000/- to be paid to the SHO. The amount shall be brought by Riaz Ahmad on 10.9.1996 on which date the SHO shall appear to collect the same. If Riaz Ahmad shall not comply with this order I strict legal action shall be taken. (MUHAMMAD NASEEM CHAUDHRI) JUDGE Riaz Ahmad petitioner in person. Muhammad Bashir Sub-Inspector/SHO Police Station Budyana District Sialkot. Riaz Ahmad petitioner was urdened with an amount of Rs. 2.000/-as compensation to be paid to Muhammad Bashir S.I/SHO for bringing false and frivolous Habeas petition and the amount of Rs. 2.000/- has been paid by Riaz Ahmad petitioner to Muhammad Bashir Sub-Inspector. 2. This petition stands disposed of. (MAA) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 259 Present: syed zahid hussain bokhari, J. ZULIFQARALI-Petitioner versus THE STATE-Respondent Criminal Misc. No. 396/96, accepted on 18.1.1996. (i) Bail- -S. 497 Cr. P.C.--Pakistan Penal Code, 1860, S. 302/34--Bail--FIR Lodged after unexplained delay of 12 hours-Medical evidence was not in conformity with ocular account-Injuries on person of accused were suppressed by prosecution-During successive investigations though accused was found at the place of occurrence but did not cause fire arm injury to deceased-No reasonable ground to believe that accused has committed non-bailable offence-Bail allowed. [P. 261] A & C (ii) Ipse dixit of police- Opinion of police-Opinion of police is not binding on courts, but being adverse to the prosecution create doubt about veracity of prosecution case. [P. 261] B Mr. Muhammad Kazim Khan, Advocate for Petitioner. Mr. Zufrullah Khan, S.I. with Police Record. Date of hearing: 18.2.1996. order Zulifqar Ali petitioner has sought bail after arrest in a case FIR No. 267/95 dated 14.8.95 under sections 302/34 PPC P.S Base'erpur District Okara, registered on the complaint of Muhammad Hussain for an occurrence which took place on 13.8.1995 at Shaatn Wela in the area of Kot Sher Khan, 8 K.M from police station Baseer Pur. 2. On 13.8.1995 in the evening time a Kabaddi match was being played in fair of Kot Sher Khan; Complainant, Ghulam Ahmad, Zulfiqar and Iftikhar Ahmad were amongst the participants. Ghulam Ahmad raised Lalkara that Baffey Khan be caught and murdered. There-upon Iftikhar alias Majhoo co-accused armed with 32 bore revolver fired which hit on the left shoulder of Baffey Khan. He repeated the fire and caused injury on the right side of his buttock. Zulfiqar Ali petitioner allegedly fired with his .30 bore pistol and caused injury on the front of his abdomen and on the right flank. The occurrence was witnessed by Barash Ali, Muhammad Naoshad and the complainant. 3. Learned petitioner's counsel argued that the FIR was lodged after an un-explained delay of 12 hours and that petitioner and his co-accused Iftikhar Ahmad received injuries during the occurrence and the prosecution has suppressed their injuries and that no weapon of offence was recovered from or at the instance of the petitioner during the investigation inspite of physical remand and that Inspector, DSP Dipalpur and DSP Okara opined that petitioner though present at the time of occurrence did not cause injury to anyone; that he was not armed at the time of occurrence; that the accused filed complainant against complainant party of this case and preliminary evidence has been recorded in the complaint, and that the case of the petitioner falls u/S. 497 (2) Cr.P.C. 4. Learned State counsel argued that petitioner is named in the FIR with specific role and that the offence alleged against the petitioner falls within the prohibitory clause of Sec. 497 Cr.P.C. 5. I have heard learned counsel for the parties and gone through the record carefully. 6. According to the contents of the FIR, three shots were effectively fired at Baffey Khan, deceased; two were fired by Iftikhar Ahmad co-accused and petitioner fired a single fire which allegedly hit on the stomach and right flank of the deceased. Post-mortem report shows that Baffey Khan deceased received a lacerated wound \ c.m. x \ c.m. into deep going, margins inverted with slight blackening at frontal, outer and upper part of the left chest. This entry wound made an exit wound 1 cm x \ cm margin everted at back and upper part of right chest 5 cm below the shoulder line. Similarly a lacerated wound \ cm x \ cm deep going, margins inverted at front and lower chest slightly on right side 1.5 cm from mid-line. This injury also made its exit at posto lateral position of lower part of right chest 12 cm from mid line of back. This would show that deceased received two fire shots and not three, as mentioned in the FIR. The medical evidence is not in conformity with the ocular account. 7. Medicolegal report No. 43 shows that the petitioner received 13 injuries with blunt weapon, Iftikhar Ahmad co-accused received 20 injuries with blunt weapon. Both were medically examined on 14.8.1995 at 5.30 a.m. The prosecution has suppressed the injuries received by the petitioner and his co-accused Iftikhar Ahmad, which are 33 in number. 8. That Inspector-SHO vide zimnis dated 23.9.1995; DSP/SDPO Dipalpur dated 27.9.1995 and DSP City Okara dated 8.1.1996 unanimously found that petitioner though present at the time of occurrence was not armed with any fire arm weapon and did not cause injury to the deceased. He tried to save Iftikhar Ahmad co-accused who was given beating by the complainant party. The motive as set up by the complainant was also not found correct and the Investigating Officers held that the occurrence took place at the spur of the moment during Kabaddi match without any pre meditation. On 27.9.1995 similar opinion was mentioned in the report prepared u/S. 173 Cr.P.C. 9. The upshot of the discussion is that the FIR was lodged after an un-explained delay of 12 hours. The medical evidence was not in conformity with the ocular account; the injuries on the person of accused were suppressed by the prosecution. During the successive investigations, though, the petitioner was found present at the place of occurrence but did not cause fire arm injury to the deceased as claimed by the prosecution. The opinion of the police is not binding upon the Courts, but being adverse to the prosecution, created doubt about the veracity of the prosecution case, which was resolved in favour of the petitioner even at the stage of bail. Reliance placed on 1984 SCMR 429 and 1984 SCMR 521. 10. For what has been stated above, it appears that there exist no reasonable ground for believing that petitioner has committed non-bailable offence but there are sufficient grounds for further inquiiy into the guilt of the petitioner which brings the case of the petitioner within the ambit of Sec. 497(2) Cr.P.C. which entitles him for the grant of bail. The bail petition is accepted and the petitioner Zulfiqar is directed to be released on bail provided the furnishes bail-bond in the sum of Rs. one lac with two sureties each in the like amount to the satisfaction of A.C/Duty Magistrate Depalpur. (MAA) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 261 (DB) Present: dr. ghous muhammad and hamd ali mirza, JJ. MEER HASSAN and 2 others-Appellants versus THE STATE-Respondent Criminal Appeal No. 166/1995, accepted on 3.9.1996. Pakistan Penal Code, 1860 (XLV of I860)- S. 392--Appreciation of evidence-Complainant was declared hostile as he failed to identify the accused/appellant in Court-One P.W. supported Mashirnama of warrdat only to the extent that appellants were the same who were available at the time of identification parade-Testimony of other two witnesses is not material as they reached the site of occurrence when the culprit had already fled away-Identification parade was held after 8 days and there is no explanation for such delay-Magistrate who supervised identification parade was not examined--Mas/z/r of identification admitted that appellants were shown to him at Police Station-There is absolutely no evidence indicating their involvement in commission of alleged offence-Appeal accepted. [P. 263, 264 & 265] A, B, C & D Mr. S. MadadAli Shah, Advocate for Appellants. Mr. A. Sattar Kazi, Advocate for State. Date of hearing: 3.9.1996. judgment Dr. Ghous Muhammad, J.--This appeal is directed against the judgment dated 24.9.1995 passed by the Special Judge (S.T.A.) Court Dadu (Haji Ghulam Muhammad Khan. H. Durrani) whereby the appellants were convicted and sentenced for the offence under section 392 PPC to undergo R.I for 8 years and to pay fine of Rs. 15,QOO/- each or in default of payment of fine to undergo R.I for 2 years more. 2. The prosecution story in brief is that on 17.11.1993 at about 10.00 a.m when complainant Haji Pir Bux entered his house he saw four persons duly armed with deadly weapons and they committed theft in his house by depriving him of gold ornaments, house-hold articles, revolver, Motor Cycle and one licenced gun. The incident was witnessed by Muhammad Urs, All Akbar and Zaheeruddin. After the departure of the culprits the complainant lodged FIR No. 79 of 1993 on the same day for the offence under section 392 PPC read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance which was recorded by ASI Ghulam Nabi and then he investigated the matter. After completion of the investigation the SHO submitted the challan for further proceedings. 3. The charge was framed by the trial Court on 10.1.1994 and it was read out to the appellants but they pleaded not guilty. During the trial prosecution examined the following witnesses:- 1. PW. 1 Haji Pir Bux is complainant, he produced FIR (Ex. 6-A). 2. PW. 2 Muhammad Urs is mashir of wardat and identification test. He produced the relevant mashirnamas (Ex. 7-A and 7-B). 3. PW. 3 ASI Ghulam Nabi is Investigating Officer. He had also arrested the appellants (vide mashirnama Ex. 8-A). 4. PW. 4 SIP Ahmed Khan had arranged identification test before the Assistant Mukhtiarkar and TCM Kotri. 5. PW. 5 and 6 AH Akbar and Zaheer Ahmed also visited the place of incident on the same day after the commission of the alleged offence. 4. The appellants in their statements recorded under section 342 Cr.P.C. denied all the allegations and further stated that they were not arrested from Loni Kot. They did not examine themselves on oath and also led no evidence in their defence. The learned trial Court formulated the following points:- "1. Whether the present accused after preparation made for causing death, hurt or restrained in order to commit theft? 2. Whether the present accused have committed theft from the house of the complainant and apprehended by police? 3. What offence accused have committed?" 5. All the above points were answered in affirmative and the appellants were sentenced and convicted as mentioned above. After considering the evidence and submissions of the learned counsel for the arties the learned trial Court concluded as follows:- "I am fully satisfied that the above named accused have committed the above offence and the defence counsel have failed to prove any contradiction from the PWs at the time of evidence or at the time of arguments, therefore, in my humble view the present accused have rendered themselves liable for punishment under the above section of PPC, as the prosecution have proved its case against accused beyond any shadow of reasonable doubt, so in my view that all the three points are in affirmative. As discussed above, the circumstances of this case, compelled me in awarding sentence to the present accused as now a days the Government is veiy anxious to protect the life and property of innocent citizens from the hands of lawlessness activities, the present accused on the pointation of deadly weapons entered in the house of the complainant and committed the robbery of house hold articles of the complainant, as the present accused are implicated in the above crime and the prosecution have fully established the case against them, so such type of persons would not entitle any concession, that they should commit the offence from law abiding persons." 6. We have heard Mr. S. Madad AH Shah learned counsel for the appellants and Mr. A. Sattar Kazi learned A.A.G. and have also perused the record. 7. The learned counsel for appellants mainly contended that there is not an iota of evidence to connect the appellants with the commission of the alleged offences and the prosecution has miserably failed to prove the charge against them. Learned Additional Advocate General also frankly conceded to this position. After going through the evidence we find considerable force in the submissions of the learned counsel for the appellants. The most important prosecution witness is P.W. 1. Haji Pir Bux who is the complainant in his statement he gave the details of the incident which took place in his house but he also deposed as follows:- "I identified accused but I do not remember their names. But I see the present accused and according to my opinion they might be the same persons who had committed the offence. ut I am not sure whether they are same or not. I have also mentioned in the FIR that firstly they have spoken Sindhi and after that they used to speak Urdu." Afterward he was declared hostile, the learned S.P.P cross-examined him and he reiterated as follows:- "At this stage I cannot say whether the present accused are same according to their features or their faces etc. as mentioned in the FIR." 8. PW. Muhammad Urs has supported the mashirnama of wardat but he also deposed only to the extent that the appellants were the same persons who were available at the time of identification test. 9. The testimony of PW. 5 Ali Akbar and PW. 6 Zaheer Ahmed is not material as they reached the wardat when they came to know later on about the incident and by that time, the culprits had already fled from the house of the complainant. The remaining two witnesses are the Investigating Officers. , 10. It would also be relevant to observe that the appellants were (arrested on 14.12.1993, but their identification test was held on 23.12.1993 and there is no explanation of such delay in holding the identification parade. Furthermore, the Magistrate who had supervised the identification parade, was not examined by the prosecution, while the mashir of identifi cation test in his testimony admitted that the appellants were shown to him at the police station and then he went alongwith the police for the identification test. From this discussion, it is evident that there is absolutely no evidence against the appellants to indicate their involvement in the commission of the alleged offence, but surprisingly, the trial court has chosen to observe, without application of independent mind that, "the prosecution has proved the case against the accused beyond any shadow of doubt." We are, therefore, constrained to observe that this kind of judgment is a sheer mockery of justice. It is quite apparent that with a pre-determined mind, in his zeal to award conviction at any cost, the Special Judge lost sight of the fact that the Courts are guardian of the liberty and honour of the citizens. It was therefore all the more important for the Special Judge to have exercised his powers with greater caution and after consideration of the entire evidence. A Full Bench, in the judgment reported as Muhammad Din vs. Zabardast Khan, PLD 1972 Azad J & K 7, which was authored by Muhammad Yousuf Saraf, J. (as he then was), has observed:- "It goes without emphasis that the ability of the Courts to administer justice is the foundation of the modern State. It is the duty of a Judge to ensure not only that he dispenses justice but what is equally of vital importance, the justice also seems to have been done. The characteristic of a good judgment is that it must be self-evident and selfexplanatory; in other words, it must contain the reasons that justify the conclusions arrived at and these reasons should be such that a disinterested reader can find convincing or at least reasonable. The reasoning should not be left to the imagination of the reader for such an order is apt to be termed as arbitrary. "(At page 13). 11. In view of the above, we have come to the conclusion that the conviction and sentence awarded to the appellants is not sustainable in law. By a short order today this appeal was allowed by us and it was ordered that the appellants should be released forthwith if not required in any other case. The above are the reasons for the same. (MAA) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 265 Present: raja muhammad sabir, J. RASHID KHAN and another-Petitioners versus STATE-Respondent Criminal Misc. No. 538/B-1996, decided on 10.10.1996. Bail- S. 497 (1) Third Proviso Cr. P.C.--Pakistan Penal Code, 1860, S. 302/324/148/ 149--Bail--Statutory ground-F.I.Rs. registered against petitioner indicate that they are desperate and hardened criminals who are involved in various offences of murderous assaults-There is ikelihood of tampering with prosecution evidence-Case has lready been fixed for trial--At this stage grant of bail will not be in the interest of justice-Bail refused. [Pp. 267 & 269] A, B & C PLD 1995 SC 49, 1996 P.Cr.L.J. 783 distinguished. 1980 SCMR 203, 1982 SCMR 424 and 1992 P.Cr.L.J. 1490 ref. Malik Rab Nawaz Khan, Advocate for Petitioners. Mr. Z. Muhammad BabarAwan, Advocate for Complainant. Date of hearing: 10.10.1996. order This is a petition for the grant of bail filed by Rashid Khan and Abid Tanveer Khan petitioners in a case FIR No. 135 dated 24.5.1994 registered under sections 302/324/148 read with section 149 PPC at Police Station Pir Wadahi, Rawalpindi. 2. Brief facts of this case as gleaned from the FIR are that on 24.5.1994, Ghulam Ismail and Ghulam Hameed, who are relatives of the complainant, had an altercation with Khalid and Taimoor, co-accused of the petitioners, on striking a cricket ball in which they belaboured each other. Soon thereafter, Abid Khan-petitioner met the complainant and invited him to come to his Dera so that the matter could be patched up. On the same day, at 8.15 p.m. the complainant, his son Ishtiaq Hussain alias Allah Ditta in the company of Ghulam Sarwar, Zulfiqar Ahmad and Ghulam Safdar PWs went to the Dera of Abid Khan. When they reached near his Dera, the accused party variously armed with weapons came in front of them. Abid Khan and Rashid Khan-petitioners, Khalid, Aamir sons of Muhammad Yaqoob and Majeed son of AH Haider were having Chhuris whereas Taimoor accused was empty handed. The role of Lalkara is also attributed to Abid Khanpetitioner. The petitioners and their co-accused attacked the complainant party and killed Ishtiaq Hussain by inflicting successive Chhuri blows on various parts of his body. When the complainant proceeded towards his son, he was also given a Chhuri blow by Aamir accused on the right side of his abdomen. On the omplainant's side, Muhammad Nawaz and Riaz Khan were also injured. So on the statement of the complainant, the aforesaid case as registered at Police Station Pir Wadhai. 3. This petition has not been argued on merits by the learned counsel for the petitioners. But the bail is sought on the ground of statutory delay in conclusion of the trial. In support of his contention, learned counsel has referred to two cases reported as Zahid Hussain Shah. vs. The State (PLD 1995 SC 49) and Shamon Jatoi vs. The State PLJ 1996 Cr. C. Karachi 53 DB = (1996 P.Cr.L.J. 783). 4. On the other hand, learned State counsel assisted by learned counsel for the complainant has opposed the grant of bail to the petitioners on the ground that the delay in conclusion of the trial has been caused by the accused themselves and the petitioners being desperate and hardened criminals are not entitled to the grant of bail. They belong to a group of Chhuri inflictors. Learned counsel for the complainant has placed on record four copies of the FIRs namely (1) FIR No. 265 dated 16.11.1988 under sections 307/34 PPG, (2) FIR No. 171 dated 8.6.1991 under section 13 of Arms Ordinance, 1965 (3) FIR No. 158 dated 28.5.1991 under section 324/34 PPG registered at Police Station Banni, whereas (4) FIR No. 322 dated 30.10.1991 under sections 452, 337/F-6, 324, 148 and 149 PPG registered at Police Station Pir Wadhai. (subsequently, the petitioners have been acquitted in FIR Nos. 158 and 322 on the basis of compromise). Learned counsel has drawn my attention towards the proceedings of the trial Court and, according to him, the case was adjourned on numerous dates on the request of learned defence counsel. He further submits that since the trial of the case has commenced so bail cannot be granted to the petitioners at this stage, and relied upon Muhammad Sadiq and others versus The State (1980 SCMR 203), Akhtar Abbas vs. The State (PLD 1982 SC 424), Muhammad Ismail vs. Muhammad Rafique and another (PLJ 1989 Cr.C. 455) and Sheroo vs. The State (1992 P.Cr.L.J. 1490). Learned counsel further contends that the accused had themselves delayed the trial of the case, so they can not reap the benefit of such delay in trial and their claim for the grant of bail on the basis of statutory period cannot be accepted. 5. I have heard the learned counsel for the parties and have gone through the record with their assistance. Since the bail is sought on the ground of statutory delay in conclusion of the trial, therefore, merits of the case are not touched. Vide order dated 2.7.1996, the petitioners were declined bail by the learned Additional Sessions Judge, Rawalpindi, on the ground of being hardened criminals. In such a situation, it will be appropriate to refer to the relevant provisions of section 497 Cr.P.C. which reads as unden- "S. 497 4th proviso. --Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal." In the present case, the petitioners/accused have not denied their involvement in the cases referred supra. However, learned counsel for the petitioners submits that they were acquitted of the charge in the case FIRs No. 158 and 322 registered at Police Stations Pirwadhai and Banni respectively. He has placed on record copies of orders of acquittal which were not recorded on merits but on account of compromise having been effected by the petitioners with the complainant. It clearly shows that they are so desperate and dangerous criminals that the witnesses had not shown the courage to depose against them in Court and ultimately they compromised the offence with the accused as a result whereof they were acquitted because of compromise. So far as the case FIRs No. 171 and 265 of Police Station Banni are concerned, suffice it to say hat the learned counsel for the petitioners has not been able to establish that the petitioners were ever acquitted or they were found innocent in the said cases. It is manifestly clear from the perusal of the aforesaid FIRs that the petitioners are desperate and hardened criminals involved in various offences of murderous assault and in case they are released on bail, there is every likelihood that they will obstruct the trial against them by exercising high handedness against the PWs so that they may not be able to depose against them in Court out of fear. 6. Learned counsel for the petitioners has referred to Zahid Hussain Shah vs. The State (PLD 1995 SC 49) wherein the petitioners were not having the history of hardened and desperate criminals. But in the instant case, proviso 4th to section 497(1) Cr.P.C. clearly attracts to the facts of the present case and the judgment referred to by him has also given a passing reference wherein it has been held that the accused could be denied the concession of bail under third proviso to section 497(1) Cr.P.C. if his case was covered by 4th proviso to section 497(1) Cr.P.C. The judgment referred o above was rendered in a case where 3rd proviso was considered and 4th proviso to section 497 (1) Cr.P.C. was neither dealt with nor gone into depth. In reply to the arguments advanced by the learned counsel for the complainant, it was observed that the trial Court did not refuse the bail under 4th proviso to section 497(1) Cr.P.C. Therefore, the said provision was not found attracted in that case. In the present case, the learned trial Judge has refused bail under proviso 4th of the above said provision of Criminal Procedure Code. In my view, the facts of the aforesaid case do not support the contention of the learned counsel for the petitioners as it does not deal with the proposition in hand. Similarly, the judgment relied upon by the learned counsel for the petitioners in a case reported as 1996 P.Cr.L.J. 783, is not applicable to the facts of the present case for the reason that too is based on 3rd proviso and not 4th proviso to section 497(1) Cr.P.C. as the accused in that case remained in Jail for six years whereas in the case in hand, only a few months have passed and that too where the delay was caused by taking adjournments on one pretext or the other at the instance of the accused. 7. The order-sheets placed on record reveal that the Challan of the case was submitted on 27.9.1994. On 16.3.1995, the accused requested that the case be kept pending till the Magistrate foz-warded their complaint to the trial Court for a joint trial with the State case. On 21.11.995, the said complaint was received by the trial Court. Thereafter, on 18.2.1996, Aamir, one of the accused, absented himself. On 8.4.1996, copies of the statements recorded under section 161 Cr.P.C. were delivered to the accured on 25.4.1996, Taimoor accused, and on 9.5.1996 and 3.6.1996, Aamir Yaqoob were not present. On 11.7.1996, the accused were charge-sheeted. From 15.7.1996 to 28.7.1996, learned counsel for the complainant got adjournment on the ground that he had to go abroad. On 8.9.1996 and 14.9.1996, the case was adjourned on the request of learned defence counsel, although all the material witnesses were present on 14.9.96 the case was adjourned to 21.9.1996. So in the circumstances, the contention of the learned counsel for the petitioners that the delay in conclusion of the trial was not caused by the petitioners oes not appeal to reason. In my opinion, the prosecution was not responsible for the delay of the trial, as is clear from the facts stated above. 8. The petitioners were arrested on 28.5.1994. After the accused were charge-sheeted, they sought numerous adjournments on one pretext or the other. In such a situation, it has been held in 1980 SCMR 203 that when the case is already fixed for trial, it is not appropriate to grant bail to the accused in the peculiar circumstances of the case. Regarding adjournments sought by the accused, it has been observed in 1982 S.C.M.R. 424 that the adjournment sought by the defence for one reason or the other and the delay partly attributed to the accused, bail could not be granted on the ground of delay and the petitioner was dismissed. Be that as it may, the petitioners have been dealing the conclusion of he trial in a malafide manner so as to get bail on the ground of statutory delay. The conduct of the accused is also to be considered at the time of grant of bail or otherwise. In such a situation, reference is made to Sheroo vs. The State (1992 P.Cr.L.J. 1490), wherein it has been observed as unden- "An accused is to be released on bail if trial is not concluded within the statutory period but an aggrieved person/citizen has the fundamental right under the Constitution that if any crime is committed against him/her, the trial must be held in accordance with law. If the holding of the trial is defeated malafide, dishonesty and fraudxilently, then the fundamental right must be protected. It seems that in the present case, fraud is being played upon the administration of criminal justice." 9. In view of the above discussion, I do not feel inclined to admit the petitioners to bail as they are hardened, desperate criminals and have been involved in numerous cases of murderous assault and violence. Therefore, grant of bail at this stage will not be in the interest of justice especially for the reason when the case is already fixed for trial. However, expeditious and speedy trial is the right of the accused. Therefore, the learned trial Judge is directed to accelerate the trial and conclude it within a period of three months from today. The petition for the grant of bail stands dismissed. (MAA) Bail declined.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 269 Present: NAZIM HUSSAIN SIDDIQUI, J. SHEKIL-Applicant versus STATE-Respondent Criminal Bail Application No. 1073/1995, granted on 31.3.1996. Criminal Procedure Code, 1898 (V of 1898)- -Ss. 498 and 561-A, Arms Ordinance, 1965 (W.P. Ord. XX of 1965) S. 13-D read with Suppression of Terrorist Activities (Special Courts) Act, 1975 (XX of 1975) Ss. 5-A(8) and 8--Bail-It is an admitted position that in the S.T.A. Act, there is no section relating to grant of bail--STA Court is to follow procedure laid down in Criminal Procedure Code, subject to restrictions imposed by STA Act-Except in case which comes under prohibitory clause of S. 497 Cr.P.C., Court in its discretion can grant bail as trend is "Bail not Jail"--S. 5-A(8) of STA Act does not completely take away power of STA Court or High Court for grant of bail, however, it has placed all scheduled offences under Prohibitory clause-Held: Bail may be granted to an accused even he is involved in scheduled offence, if there are reasonable grounds to believe that he has not committed said offence- -Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds-Bail granted accordingly. [Pp. 275 & 276] A to C Mr. Gul Zaman Khan, Advocate for Petitioner. Mr. Sarwar Khan, AAG for State. Date of hearing: 17.3.1996. judgment This bail application was heard by a learned Division Bench of this Court consisting of Amanullah Abbasi, J. and Dr. Ghous Muhammad, J. and their lordships have taken different views regarding grant of bail to the applicant Hon'ble Chief Justice, by Order dated 15.2.1996, had directed the office to place this matter before me as a "Third Judge" for its decision. The facts necessary for decision of this application and the relevant provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to as STA Act, have been mentioned and quoted by their lordships in their respective order. I will not repeat the same unless absolutely necessary. Amanullah Abbasi, J. while rejecting the bail application of the applicant reached the conclusion that Section 5-A(8) of the STA Act, though not complete code but provides fetters on the powers of Special Court to grant bail. He also held that the principles enunicated in Section 497 Cr.P.C. can be pressed into service for grant of bail, and that provisions of Section 5-A(8) are to be read alongwith Section 8 of said Act. He observed that "a part of provision of Section 497 being inconflict with the provisions 5-A(8) of STA, Act, the bail could only be granted under provisions of Section 5-A(8) ibid." He also observed that in view of Section 8 of STA, Act, the applicant was to be presumed to have committed the offence. Accordingly, he rejected the bail application which was pressed on the ground of statutory delay only. Dr. Ghous Muhammad, J. referred to three cases of the Supreme Court namely (1) Allied Bank of Pakistan Ltd. vs. Khalid Farooq 1991 SCMR 599 (2) State vs. Qaim All Shah 1992 SCMR 2192 and (3) Chaudhry Shiujat Hussain vs. The State 1995 SCMR 1249. Having taken into consideration the principles of law enunicated in these cases his lordship reached the conclusion that the case of the applicant was clearly covered by the proviso No. 3 Sub-section (1) of Section 497 Cr.P.C., as such, he granted bail to the applicant in the sum of Rs. 50,000/- (Rupees fifty Thousand) and P.R. Bond in the like amount to the satisfaction of the Trial Court. In Allied Bank of Pakistan Ltd's. case, Respondent Khalid Farooq was allowed bail by a learned Division Bench of Lahore High Court pending his trial by the Special Court, (Offences in respect of Banks (Special Courts) Ordinance, IX of 1984, hereinafter to be referred to as "the Ordinance, 1984" under Sections 409, 420, 468 and 477-A PPC read with Section 5(2) of Prevention of Corruption Act, 1947. Said order of the Division Bench was challenged before the Hon'ble Supreme Court, which was heard by a Bench consisting of three Judges including Rustam S. Sidhwa, J. who is the author of this Judgment. It was held in this case that Section 5(6) of the Ordinance, 1984 does not completely oust the applicability of Section 497 Cr.P.C. in respect of bails and though the rule of Sub-section (1) of Section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same sub-sections have been introduced in sub-section (6) of section 5 of the Ordinance, 1984, which is couched in negative language. Further, his lordship while dealing Section 5(6) of the Ordinance with reference to Section 497 Cr.P.C. observed as follows:- "Section 5(6) of the Ordinance clearly states that an accused shall not be released if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. The provisions of this section have effect, notwithstanding anything contained in he Code. The first and third provisos to subsection (1) of section 497 of the Code, which create exceptions to the rule contained in that subsection, cannot be read into subsection (6) of section 5 of the Ordinance. Where the law-maker wanted to provide an exception or departure to the rule contained in section 5(6) of the Ordinance, he did so by adding such words akin to the second proviso to subsection (1) of section 497 of the Code. Where the law-maker did not desire to provide further exceptions to the rule, such as those akin to the first and the third provisos to the same subsection, he did not add specific words similar to those provisos in subsection (6) of section 5. The provisions of the first proviso to subsection (1) of section 497 of the Code would therefore be deemed to be clearly not available to the Special Court or the High Court when dealing with the bail of a person accused of a scheduled offence under the Ordinance. The position of the third proviso to subsection (1) of section 497 of the Code is somewhat nebulous. Though its provisions provide an exception to the rule contained in subsection (1) of section 497, it is founded in public policy, namely, that an accused shall not be made to suffer for the long delay arising out of the commencement of his trial, unless the same has been occasioned by his own conduct, and assuming that the same is also not available, the possibility of its application through section 561-A of the Code to prevent an abuse of the process of the Court or otherwise to secure the ends of justice, cannot be totally excluded." (At Page Nos. 620 and 621). In the case of Qaim All Shah and Shahnawaz Khan Junyo, the State had filed an appeal before the hon'ble Supreme Court against the orders granting bail to them by a Division Bench of this Court, in the case pending before the STA, Court. This matter was heard by a Full Bench consisting of five Judges, including Rustam S. Sidhwa, J. who, as stated earlier, was the author of the Judgment of the case of Allied Bank. In this case main judgement was delivered by his lordships Ajmal Mian, J. and Sajjad Ali Shah, J. (as he then was) now the Hon'ble Chief Justice of Supreme Court, had agreed with him. Shaifur Rahman, J. had written his Judgment separately and Nasim Hasan Shah, J. had concurred with him. Rustam S. Sidhwa, J. had written his Judgment separately. It was observed that Section 497(1) Cr.P.C. with its provisos 1 and 3 can be pressed into service by the High Court and the Special Court during the pendency of trial of an accused before the Special Court under STA, Act, and that the provisions of Section 5-A (8) of STA, Act does not completely oust the applicability of Section 497 Cr.P.C. in respect of bails at trial stage. Also it was observed that Section 5-A(8) of the Act is not a provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail. Ajmal Mian, J.-In this Judgment observed as follows:- "The position which emerges from the above discourse is that the High Court during the pendency of trial of an accused person under the Act by the Special Court before any conviction is recorded, can press into service Section 497 Cr.P.C. with its provisos 1 and 3. But since Section 498 Cr.P.C. has been expressly excluded in subsection (1) of section 7 of the Act, the same cannot be invoked in aid. Gul Muhammad, J. (as he then was) speaking on behalf of a Division Bench of the Lahore High Court in the case otAltaf Hussain vs. State (supra) has brought out a fine distinction by holding that the High Court's power under section 498 Cr.P.C. at the trial stage has not been excluded and that the exclusion relates to the appellate stage. In my view, the above fine distinction cannot be spelt out from the language of subsection (1) of section 7 of the Act, though the above section 7 is a composite section, which not only deals with the appellate power of the High Court, but also touches upon its revisions! power, power to transfer case from one Court to another and the power to issue a writ in the nature of Habeas Corpus." (At page Nos. 2217 to 2218). Shafiur Rahman, J.-Observed none of the remedial powers enjoyed by the High Courts under the Criminal Procedure Code are curtailed or superseded by the STA, Act. Giving reasons in support of his above conclusion, he observed as follows:- "Firstly, all the statutory provisions have to be interpreted harmoniously and consistently with the Constitutional provisions, the paramount law, already occupying the field. The Constitution by its Article 203 entrusts to the High Court the power of superintendence and control over all Courts subordinate to it. If in Section 7 of the Act in the expression "no Court" we include the High Court then it can't have any jurisdiction of any kind in respect of any proceedings of a Special Court" except that appeals against sentence and acquittal will be lodged with it. Such a subversive interpretation cannot be countenanced, not even on express language of the statute as pointed out in Mst. Ameer Khatoon vs. Faiz Muhammad PLD 1991 SC 787 at page 797." (At page No. 2223) Referring to the Allied Bank of Pakistan's Case, Rustam S. Sidhwa, J. In this matter observed as follows:- 9. "However, the question whether the provisions of the first and third provisos to subsection (1) of Section 497 of the Code can be held to be available to the Special Court or the High Court, requires reappraisal. Basically the matter revolves around subsections (8) and (9) of section 5, subsection (1) of section 7 and section 10. The resolution of the matter depends upon a proper interpretation of these and other provisions of the Act and not on interpretation aliened to be drawn from other enactments which are not in pan' materia. Having given deep thought to the matter, I have come to the conclusion that the view I took in the Allied Bank's case requires review for reasons which I propose to set out below, but which are totally different from that advanced by the learned counsel before us. 10. The first matter to be seen is which provision of the Act permits the Special Court or the High Court to release or admit a person to bail. There is no section in the Act relating to the grant of bail. There are a series of sections in Chapter XXIX of the Code dealing with bail, which include sections 496 to 498 dealing with the grant of bail. What is contained in section 5-A(8) of the Act is not a provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail. 11. Section 7 of the Act does not exclude section 497 of the Code. On the basis of the rule laid down in the Allied Bank's case (supra), section 497 of the Code is therefore, applicable to the Act. If this be so, section 5-A(8) of the Act can only act as a partial limitation to the rule laid down in section 497 of the Code." (At Page Nos. 2229 to 2230 in Paras 9,10 and 11) It is significant to note that neither party appearing in Chaudhry Shujat Hussain's case cited the case of Qaim Ali Shah referred to above. The case of Allied Bank was cited and relied upon. In Chaudhry Shujat Hussain's case at Page No. 1260 the following was observed:- "A comparison with section 497 Cr.P.C. will show that there is departure from the said provision. In his regard reference can be made to section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect : notwithstanding anything contained in the Code or in any other law for the time being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the Code, the Ordinance will prevail. In Allied Bank's case, it was observed that "the Ordinance being a special law conferring special power and jurisdiction on the Special Court and providing a special forum and procedure relating to the trial of scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure". It may also be noted that section 5(6) is couched in a negative language. It is well-settled principle of interpretation of statute that where any provision couched in negative language requires as act to be done in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal. In this regard the observations in the Allied Bank's case are relevant and further the learned Deputy Attorney- General has referred to certain passages from Maxwell's, Interpretation of Statute and Craies leading to the same conclusion." Mr. Gul Zaman Khan, learned counsel for the applicant contended that the applicant is in continuous detention since 30.8.1994 and is entitled to the concession of bail on the ground of statutory delay. He also submitted that the delay in the trial of the applicant has not occasioned by an act or omission of the applicant or any other person acting on his behalf, and that the offence not being punishable for 10 years the embargo contained in en, Section 497 Cr.P.C. is not attracted. As against this Mr. Sarwar Khan, learned counsel for the State repeated the observations of my learned brother Amanullah Abbasi, J. That the provisions of section 5-A(8) of the Act are to be read alongwith Section 8 of said Act and argued that since the applicant was found in possession of a S.M.G. Rifle, it shall be presumed that he has committed the offence. As regards the plea of Mr. Sarwar Khan, learned counsel for the State, it is noted that above observation of my learned brother Amanullah Abbasi, J. is based on the decision of Allied Bank case and the author of said judgment himself in Qaim All Shah's case reached the conclusion that the view taken by him in the Allied Bank's case required review for the reasons he gave in the later judgment. This being the position, it cannot be argued that Section 5-A(8) completely oust the applicability of Section 497 Cr.P.C. Besides, Section 8 of the STA Act, speaks about "Burden of Proof, which is a rule of evidence. Bail is to be granted or refused on the grounds mentioned in Section 497 Cr.P.C. read with Section 5-A(8) of the Act and not on the principles of evidence. Having taken into consideration the dictum of law laid down in the aforesaid cases it becomes clear that Section 497 Cr.P.C. with its provisos 1 and 3 can be pressed before this Comt and the Trial Court. According to Provisos 1 of Sub-section (1) of Section 497 any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence may be released on bail and Proviso 3 says that on the ground of delay an accused can be released on bail, as stated therein. This case is governed by 3rd proviso of Sub-section (1) of Section 497 Cr.P.C. Learned counsel for the State did not question, the merits of the case, but challenged the legality for the grant of bail on the basis of Section 5-A(8) of the STA, Act. It is an admitted position that in the STA, Act there is no Section relating to the grant of bail. The STA Court is to follow the procedures as laid down in Criminal Procedure Code, subject of the restrictions imposed by the STA, Act Chapter XXXIX of Criminal procedure Code deals with the provisions relating to the grant of bail. Sub-section (1) of Section 497 divides non-bailable offences into two categories i.e. (1) in which bail may be granted (2) those in which bail is not to be granted (generally referred to as the Prohibitory Clause). The Phrase "Reasonable Grounds for Believing" in this Section appears at three places. The words "Reasons to Believe" have been defined in Section 26 of PPC as follows:- "A person is said to have "reason to believe" a thing if he has sufficient cause to believe that thing, but not otherwise." Sub-section (1) of Section 497 says that when any person accused of any non-bailable offence is arrested, he may be released on bail. The later part of this Sub-section puts an embargo on the power of the Court regarding grant of bail. In case there are reasonable grounds for believing that accused is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, the bail is not to be granted. It is noted that except as above, the Court in its discretion can grant bail as the trend is "Bail No Jail". Under Sub-section (2) of Section 497 bail can be granted in respect of aforesaid offences if "there are not reasonable grounds for believing" that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiiy into his guilt. Sub-section (4) of Section 497 Cr.P.C. says at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused on execution of a bond without sureties for his appearance to hear judgment. All scheduled offences, under the Act, are not punishable with death or imprisonment for life or imprisonment for ten years. By virtue of Section 5-A(8) of the Act, the accused involved in scheduled offences have been _ equated, for the purpose of bail, with the accused who are guilty of offences punishable with death or imprisonment for life or imprisonment for 10 years. Section 5-A(8) does not completely take away the power of the STA Court or the High Court for the grant of bail. Normally in all cases, except punishable with death or imprisonment for life or imprisonment for 10 years, bail is granted as a matter of rule and refusal is an exception. Section 5-A(8), however, has placed all the scheduled offences under the Prohibitory Clause irrespective of the fact that they are covered by said Clause or not and an accused cannot be released on bail unless the prosecution has been given notice to show cause why he should not be released on bail. In case of Scheduled Offences if there are reasonable grounds to believe that the accused is guilty of a scheduled offence, he shall not be released on bail. Conversely, if there are reasonable grounds to believe that he is not guilty of the scheduled offence, he may be released on bail. The conclusion, therefore, would be that even on merits bail may be granted to an accused involve in scheduled offence, if there are reasonable grounds to believe that he has not committed said offence. Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds. In view of above discussion, I agree with the conclusion drawn by my learned brother Dr. Ghous Muhammad, J. and hold that, under the ircumstances, the applicant is entitled to bail. Accordingly, bail is granted to the applicant in the sum of rupees fixed by my said learned brother in his order mentioned earlier. (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 277 Present: dr. ghous muhammad, J. ROYCE DEAN WELLMAN-Appellant versus THE STATE through COLLECTOR OP CUSTOMS (PREVENTIVE)-Respondent Special Criminal Appeal No. 17 of 1994, decided on 17.7.1996. (i) Criminal Trial-- -Benefit of doubtIt is a preferable situation when 10 guilty men go unconvicted than one innocent man getting punished. [P. 291] G Ryan's Medical Jurisprudence, 1836, PLD 1963 SC 17, PLD 1970 SC 10, PLJ 1982 Pesh. 74 ref. (ii) Customs Act, 1969 (IV of 1969)-- S. 156(l)(8)--Appreciation of evidence-Appellant was intercepted and arrested by customs staff at air-port on charge of attempting to smuggle 5 KG Heroin allegedly recovered from his suit case-Entire prosecution case based on assumption that suit case in dispute belonged to appellant- Held: Requirement of independent mashirs of seizure of suit case could not be dispensed with-Seizing officer, only signed notice issued under section 171 of the Act, ascriber of said notice not examinedProsecution failed to comply with prescribed procedure, laid down in Customs General Order No. 12 of 1986, for storage/sampling of Heroin which is grave infirmity-In the circumstances appellant is entitled to benefit of doubt-Appeal accepted. [Pp. 281, 287, 288] A, C, D, E, F & H (iii) Customs Act, 1969-- -S. 187- Burdon of proof-Point that in matters pertaining to customs the principle of burden of proof is different from other criminal cases not involving Customs and in former entire burden is upon accused is not applicable where very possession is in dispute-There can be no presumption or assumption regarding possession which has to be established by prosecution beyond all reasonable doubts. [P. 282] B (iv) Precedent-- Precedent-It is settled preposition of criminal jurisprudence that precedents do not carry the same binding force as it would be in civil law- -In criminal cases the facts of case have to be seen in their clear perspective. [P- 281] AA Rana M. Shamim, Advocate for Appellant. Mr. Muhammad Roshan All Essani, D.A.G. for State. Date of hearing: 17.7.1996. judgment On 17.7.1996 this appeal was allowed by a short order. Hereafter appear the detailed reasons. The instant appeal under section 185-F of the. Customs Act, 1969 (hereafter "the Act 1969") arises out of conviction of the appellant through judgment passed by the Special Judge (Customs and Taxation) Karachi dated 30.3.1994 in Case No. 69/1993 whereby the appellant was convicted under section 156(1)(8) of the Act 1969 and sentenced to undergo rigorous imprisonment for 10 years plus fine of Rs. 5 lacs, and in default of the latter to undergo a further rigorous imprisonment for 2 years, while allowing deduction of the time spent in jail by the appellant as an under trial prisoner. 2. The facts necessaiy for disposal of the present appeal are that the appellant, Royce Dean Wellman, an American national holding American Passport No. Z-6963651, while on his exit from Pakistan was intercepted and arrested at the Quaid-e-Azam International Airport on 02.03.1993 on charges of attempting to smuggle 5 kg. of heroin powder. Noor Ahmed Panhwar, the complainant and seizing officer lodged FIR on 902.03. 1993 at 10.00 p.m. Since the basis of allegations by the prosecution are contained in the F.I.R. the contents whereof are being reproduced as under:- "On 02.03.1993, while I was performing my duties at the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi, where baggage examination of the out-going passengers of the Gulf Air's Flight No. GF-733 for Muscat was in progress, I suspected and intercepted a passenger, later on identified as Royce Dean Wellman holding US Passport No. Z-6963651, who was leaving for Frankfurt viz Muscat by the aforesaid flight. The passenger was asked to declare whether he was carrying any contraband goods i.e. narcotics etc., in his baggage or on his person to which he denied. Being dis satisfied with the passenger's declaration his baggage comprising a blue colour "Corallite" suit case was subjected to examination in presence of two independent witnesses M/s. Mazhar Abbas and Muhammad Shahbaz. The suitcase which apparently, contained personal belongings of the passenger upon minute examination was felt somewhat heavy in weight. As such the top and bottom of the said suitcase was broken which led to the recovery of 4 polythene bags each cleverly concealed in the false top and bottom of the suitcase. Further examination of these 8 polythene bags yielded the recoveiy of brown colour heroin powder. The brown colour heroin powder, so recovered, on weighment was found to be 05 kgs. (gross) and was seized alongwith containers and travelling documents of the passenger under the cover of a musheernama prepared on the spot. Representative samples of the seized herein were also drawn which were sealed and signed by both the witnesses. Passenger/accused namely Royce Dean Wellman was arrested and a notice under section 171 of the Customs Act, 1969 was served upon him." The investigation was carried out by SPO Javed Akhtar Mughal and the seized heroin powder was deposited in the state ware-house. After due investigation the final challan was submitted on 14.06.1993, wherein one of the alleged culprits Muhammad Aziz was shown as an untraceable accused against whom proceedings under section 512 Cr.P.C. were initiated, while he was declared as absconder. Formal charge under section 156(1)(8) of the Act 1969 was read out to the appellant to which he pleaded "no guilty". The prosecution then examined 4 witnesses namely, P.W. 1 being the complainant/seizing officer i.e. Noor Muhammad Panhwar (Ex. 4) P.W. 2 i.e. Muhammad Iqbal Malik the Deputy Assistant Medical Examiner Customs Laboratory (Ex. 5) P.W. 3 i.e. Muhammad Shahbaz, who acted as a mashir of seizure of heroin powder (Ex. 6 and P.W. 4 i.e. Javed Akhter Mughal, who had investigated this matter (Ex. 7) P.W. 1 Noor Muhammad Panhwar, in his testimony supported the contents of the FIR as he deposed that while on 02.03.1993 when he was posted in the International Departure Hall of Jinnah Terminal, Quaid-e-Azam Airport at about 6.15 p.m. the appellant proceeded at the customs clearance counter. Upon suspecting the appellant he inquired from him whether he was carrying any contraband item which was denied by the appellant. Being dis-satisfied he called two mashirs namely Mazhar Abbas and Muhammad Shahbaz and in their presence he examined the appellant's baggage which comprised one blue coloured corolite suitcase, on breaking the upper and other parts of the suit case polythene bags containing brown coloured powder were obtained. The brown coloured powder when tested was found to contain hereoin powder. It has been alleged by P.W. 1 that the total weight of the polythene bags were 5 kg. and the heroin powder was seized under the mashirnama (Ex. 4A) which was prepared on the spot in the presence of mashirs Mazhar Abbas and Shahbaz whereafter the travel documents of the appellants alongwith his passport and air ticket were also seized (vide mashirnama Ex. 4B and 4C). It has further been stated by P.W. 1 that the appellant was arrested on the spot and a notice under section 171 (1)(8) of the Act 1969. (Ex. 4D) was served on him. Thereafter three samples from the heroin powder were prepared while the remaining heroin was sealed and kept in a white cloth bag which was also sealed on the spot. The appellant and the seized property were taken to the Customs House and handed over to I & P Branch. P.W. 4 i.e. Javed Akhter Mughal, the Investigating Officer, submitted an interim challan on 16.3.1993 followed by a final challan on 14.06.1993. In his statement recorded under section 342 Cr.P.C. the appellant pleaded innocence and alleged false implication. He also stated that the suit case in dispute did not belong to him and was only lying on the customs counter already before he entered the Departure hall. 3. The learned trial Judge formulated the following points for determination:- "1. Whether five kgs. of Heroin Powder was recovered from the suitcase which was being carried by accused while he was intercepted in the International Departure Hall and was to travel by Gulf Air-line flight No. GF-733? 2. What offence, if any, the accused is guilty of? 3. What should the sentence be?" On point No. 1 the learned Judge found the appellant guilty while convicting him convicted and sentenced him as stated above. 4. I have heard Mr. Rana M. Shamim learned counsel for the appellant and Mr. R.A. Essani the learned D.A.G., for the State and also perused the record as well as the cited case law. 5. The learned counsel for the appellant vehemently urged:- (a) that the impugned judgment is based on mis-appreciation and non-appreciation of the evidence led by the prosecution; (b) that no independent witness as mashir of recovery was taken by the prosecution; (c) that there is delay of 3 hours 45 minutes in lodging the FIR for which the prosecution has not offered any plausible explanation; (d) that the trial court has failed to take into consideration that the time of preparation of mashirnama is 1815 hours and the time of registration of FIR is also 1815 hours, which clearly suggest that the prosecution story is a fabricated one; (e) that there is no evidence to establish that the appellant was carrying the disputed suitcase; (f) that the learned trial court did not appreciate the procedure regarding sampling, test, storage etc. of the seized/confiscated narcotics which was not done in accordance with the Customs General Order No. 12/86 dated 31st July, 1986 (reported as PTCL 1986 St. 951(ii); (g) that the learned trial court also totally ignored the material contradictions in the evidence of the prosecution witnesses. 6. On the other hand, the learned D.A.G. while supporting the impugned verdict of conviction submitted that the mashirs, though were officials of the Customs, were equally good witnesses and therefore there was no reason to dis-believe them particularly when no enmity or bias was alleged against them. In support of his submission he cited Karim v. Nazir Ahmed (PLJ 1980 SC 446), Muhammad v. State (PLJ 1982 SO 79), Muhammad Hanif and another v. The State 1979 P.Cr..L.J. 1078), Mir Khans and others v. The State (PLD 1968 Karachi 903), Qabool and another v. The State (PLD 1976 Karachi 1205), Mushtaq Ahmed v. The State (1995 SCMR 510), Saeed v. The State (1995 P.Cr.L.J. 1203), Arbab All v. The State (1995 P.Cr.L.J. 1272 (FSC), AH Hassan and others v. Mukhtar and others (1983 SCMR 806), Hizbullah v. The State and another (PLD 1984 Quetta 1). Regarding contradictions in the statement of witnesses the learned D.A.G. has submitted that those are of trivial nature and minor discrepancies or omissions are of no importance which can exist due to lapse of time. In support of his submissions he cited Aurangzeb v. The State (1978 SCMR 255), Roshan and 4 others v. The State (PLD 1977 SC 557), Bachal v. The State (PLD 1963 (W.P.) Karachi 1062), Mokha v. Zulfiqar and 9 others (PLD 1978 SC 10), Sher Muhammad and others v. The State (PLD 1959 (W.P.) Lahore 124), Allah Yar v. State (PLJ 1976 B.J. 39) and Zakir Khan and others v. The State (1995 SCMR 1793). He has further submitted that the appellant being carrier of narcotics is not entitled to a lienient treatment. He relied upon Nadir Khan and another v. The State (1988 SCMR 1899), Bonifacio A Buraayag v. The State (PLD 1991 SC 988), Alam Masood v. The State (1988 SCMR 64), The State through DAD v. Muhammad Siddique (1996 SCMR 246). He further submitted that section 103 Cr.P.C. is analogous to section 165 of the Act 1969 but in the instant case no personal search of the appellant was taken and during search of the baggage, the intoxicants were accrued particularly in cases of narcotics a strict compliance of section 103 Cr.P.C. is not necessaiy. He cited Muhammad Akbar v. The State (1995 SCMR 693) and Muhammad Jameel v. The State (PLD 1996 Lahore 190). Regarding the FIR he submitted that in the absence of any enmity the alleged delay in making of the FIR is not fatal to the prosecution but even otherwise the FIR is not expected to be a detailed document. It is also not a substantive piece of evidence. It can be used only to contradict its maker. In support of this submission he cited Zar Bahadar v. The State (1978 SCMR 136), Arbab Shah and 3 others v. The State (1976 P.Cr.L.J. 40), Fazalur Rehman and 2 others v. The State (PLD 1971 Lahore 883), Khushi Muhammad v. The State (PLD 1983 SC 393), Mazharul Haq v. Ishaque Sardar and 15 others (PLD 1962 SC 480), Siraj Din v. Kala and another (PLD 1964 SC 26), Fateh Muhammad v. State (1974 P.Cr.L.J. Note 84), Mst. Chanan Bibi and 4 others v. Muhammad Shaft and 3 others (PLD 1977 SC 28) and Nasir Ahmad v. The State (1971 SCMR 398). 7. The principles of law enunciated in the decisions relied upon by the learned D.A.G. carry no cavil, however, the same are not applicable to the present facts of the case. It is again a settled proposition of criminal jurisprudence that precedents do not cany the same binding force as would be in civil law. In criminal cases the facts of the case have to be seen in their clear perspective. (See Nazar Muhammad (PLD 1978 SC 236), Gulab Khan (D.B.) PLD 1971 Kar. 299) and Mushtaque Ahmed v. The State (PLD 1973 SC 418), Rabnawaz v. State (PLD 1974 SC 87) and Ghulam Muhammad v Allah Yar (PLJ 1976 SC 208). 8. The very basis of the entire prosecution's case is the assumption that the suitcase in dispute belonged to the appellant. There can be no doubt that the burden of proof to establish recovery of the suitcase and connect the same with the appellant accused rested entirely upon the prosecution which it had to prove beyond all reasonable doubt. The point that in matters pertaining to Customs the principle of burden of proof is different from other criminal cases not involving Customs and in the former the entire burden is upon the accused is not applicable where the veiy possessions is in dispute. There can be no presumption or assumption regarding possessions which has to be established by the prosecution beyond all reasonable doubt, (see s. 187 of the Act 1969 and QamarAli v. The State 1975 P.Cr.L.J. 797. Also in the context of how the principle of burden of proof is to work in Customs cases even where possession is not in dispute I would venture to reproduce an excerpt from a decision authored by me while sitting in a Division Bench i.e. Kamran Industries v. Collector of Customs, (PLD 1996 Karachi 68), which reads as unden- "23. The next objection raised by the learned counsel for the respondents is that under section 187 of the Customs Act, the burden of proof was on the petitioner rather than upon the Customs Authorities to categorically disprove the allegations of misdeclaration and under-declaration levelled by the Customs Authorities. In this respect Mr. S. Tariq Ali has contended that the rulings relied upon by the petitioner counsel become inapplicable as the law has itself clearly cast the burden upon the petitioner. In order to appreciate this objection it is pertinent to scrutinize the provisions of section 187 which reads as follows:- "187. Burden of proof as to lawful authority, efc.--When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit, licence or other document shall lie on him." It appears to us that section 187 covers two situations which we state as follows: (a) when a person is charged with an offence under the Customs Act, the burden of proof is cast upon him to show that he had the lawful authority to commit that act; (b) when a person is found in possession of any goods the burden of proof is cast upon him to show that he was holding such goods under some lawful authority, permission or licence, etc. Situation (b) is not in issue in the present case, however, we feel that it provides for an eventuality where a person is found to be in possession of certain goods which fall under a prohibited category or which in an unlawful manner find place in the possession or custody of the accused. In such case the burden is upon the accused to show that he falls under some exemption or exception to hold such goods. This type of eventuality as envisaged and stated in situation (b) above is essentially a statement of the general principle of the law of evidence contained in Article 121 of the Qanun-e- Shahadat that whosever claims to all under a preferential or exempt or excepted category must show that he fulfils that conditions to fall within that category. This obviously should not be confused with the factum of possessions for which no presumption or burden of proof has been spelt out, in view whereof the possession itself has to be proved independently by the prosecution beyond all reasonable doubt. 24. It is situation (a) as stated above in para. 23 which is directly in issue in this case i.e. whether the burden of proof solely lies upon the petitioner to disprove allegations of misdeclaration and misdescription levelled by the Customs Authorities and whether the Customs Authorities are under no obligation to lead evidence and discharge any onus of proof. This part of section 187 of the Customs Act perhaps appears to be contrary to the general principle of the law of evidence contained in Article 117 of the Qanun-e-Shahadat that whosoever alleges existence of a particular fact must prove the same. There is little doubt that a special law or a particular statute can provide for a distinct regime of rules of evidence than contained in general law. In fact the law goes on as far as providing that the laws of evidence can be altered even by mutual consent and contract, See S.M. Anwar Sethi v. South British Insurance Company Ltd., PLD 1975 Karachi 458. However, on a closer scrutiny of the provisions of section 187 and the case-law settled by our Courts on the subject it appears that in such a situation it is only the evidential and tactical burden of proof which is cast upon the accused while the legal burden to bring home the allegations remains with the prosecution. Before we dilate upon the concept of the two types of burdens of proof and explain the terms "tactical", "evidential" and "legal" burdens of proof we shall first discuss the case decided by the High Court of Sindh in BarkatAli v. The State PLD 1973 Karachi 659. In this case the controversy revolved round section 177A of the erstwhile Sea Customs Act, 1878 which catered for a similar situation as has arisen in the present case i.e. the same provided the burden of proof upon the accused to disprove the case not to defraud the exchequer or evade any prohibition or restriction under the Act Writing for Court Tufail Ali Abdul Rehman, CJ was of the opinion that the said presumption of burden of proof could not be drawn until the explanation of the accused was first taken into consideration. According to the learned Judge the "normal principle" was applicable i.e, that he accused was entitled to a benefit of doubt where he offered a reasonable explanation which was either acceptable or raised a doubt. In such cases the burden then shifted upon the prosecution to establish the case. In this regard the pertinent observations are reproduced hereunder: " ... despite S. 177A of the Sea Customs Act if upon the end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted." (At p. 671). 25. Both classical and contemporary treatises on the law of evidence (Cross on "Evidence" 1967 3rd Edition, London, Butterworth, "A Practical Approach to Evidence" by Peter Murphy, 1988, 3rd Edition, London, Blacksons Press Ltd., and "The Modern Law of Evidence" by Adrian Keane 1985, 1st Edition, Oxford, Professional Books Ltd. talk in terms of two burdens of proof i.e., the "legal" or "persuasive" burden and the "evidential" or "tactical" burden. The legal burden is defined as "the burden of proof or the probative burden and the ultimate burden" (see Keane at p. 46). The same has also been defined as "the burden of persuading the tribunal or fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue". (See Murphy at p. 78). On the other hand the "evidential" or "tactical" burden whereas the evidential burden requires only establishment of a prima facie case. According to the learned authors in every case there is a distinction between these two burdens has been defined as "the quantus of evidence which would "establish a prima facie case". (See Murphy at p. 79). The legal burden is accordingly in our view the ultimate and final burden. On a general principle both these burdens are East upon the asserter of a proposition whereas in some cases the incidence of these two types of burdens may not coincide. According to Keane the determination of where the burden falls would depend upon substantive law as well as common sense (See pp. 49 and 50). The mode of operation of the rules of evidence would be that the party upon whom the evidential burden is cast shall have to establish through prima facie evidence that he has an arguable case. In such an event it would then be obligatory upon the person bearing the legal burden to bring on record such material which would ultimately bring home his case. In circumstances where both the evidential and legal burdens are cast upon the same party the entire burden of proof shall be on that particular party and the distinction between legal and evidential burdens would not serve a fructuous purpose. However, it is in such cases where the incidence of the legal and evidential burdens are distinct i.e. the legal burden is placed on one party whereas the evidential burden lies on another, that the party on whom the evidential burden is placed has to satisfy the same by establishing a prima facie case. In such an eventuality the burden would shift to the other party who shall have to bring forth the ultimate evidence to make out a case i.e. he would have to satisfy or discharge the legal burden. The concept of shifting of burdens of proof is not alien to even our jurisprudence. The shifting of burdens of proof have been discussed and approved in Mst. Sofia Begum v. Mst. Malkani and another, (PLD 1965 Lahore 576), Akber All v. Ehsan Elahi (PLD 1980 Lahore 145) Government of Pakistan v. Moulvi Ahmed Saeed (1983 CLC 414, Muhammad Sarwar v. Fazal Rehman (1982 CLC 1286) and Sardar Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir (1984 CLC 325). In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has been acknowledged, however, the reason as to why such a legal fiction takes place has not been discussed. We feel that it is due to operation of the principles of incidence of burdens of proof vis-a-vis "legal" and "evidential" burdens as discussed above that the process of shifting of burdens become possible. We have already cited the opinion of Adrian Keane and we hold that in order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, the case-law on the subject as also common sense and equity. In this case we are of the view that in the situation in issue i.e. (a) as discussed in para. 23 above, section 187 casts upon the petitioner-accused only the obligation to make out a prima facie case as it is only the evidential burden which is borne upon it. Once the petitioners were to satisfy this evidential burden, the legal burden to bring home the ultimate cases lifted upon the customs authorities. The question is now essentially to determine as to whether the petitioner was able to discharge the evidential burden. Evidential burden essentially requires making out aprima facie case which is arguable and at least raises a doubt in the mind of the Court. The very fact that this petition has been admitted to regular hearing confirms that the petitioners had made out aprima facie case in view whereof we hold that it has discharged the evidential burden. In any event the facts and circumstances of the case are such and the explanation offered by the petitioner are of such a quality which at least raises a doubt in favour of the petitioner. The contention of the learned Standing Counsel that no duty was cast upon the Customs Authorities to bring home any evidence in support of its case is incorrect. We are of the view that heavy onus, being the ultimate legal burden, shifted upon the Customs Authorities to come upon with independent and cogent evidence against the petitioner which they have failed to discharge. In fact, even in the cases relied upon by Mr. Farogh Naseem i.e. Eastern Rice Syndicate u. C.B.R. (PLD 1959 SC (Pak. 364). The Collector, Central Excise and Land Customs, Chittagong v. Imdad All (1969 SCMR 708) and M/s. Latif Bros. v. Deputy Collector Customs, Lahore (1992 SCMR 1083), the Supreme Court has clearly held that the ultimate burden of proof lay upon the Customs Authorities which cannot be said to have been discharged merely on account of weakness in the evidence of the importer. The first two cases i.e. eastern Syndicate and Imdad Ali were adjudications upon section 39 of the earstwhile Sea Customs Act (which is comparable to the present section 32 of the Customs Act, 1969). In both those cases we cannot hold that the Courts were oblivious to the provisions of section 193G of the Sea Customs Act which is almost identically worded to the present section 187 of the Customs Act. The said section 193G of the Sea Customs Act, 1878, is being produced for convenience:- "193G. Burden of proof in certain cases.--Where any person is tried for an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him." Even in the recent decision of Latif Brothers which touched upon section 32 of the Customs Act, 1969, the Court followed the earlier decision of Eastern Rice Syndicate. For that case also we do not feel that the honourable Supreme Court closed its eyes to the provisions of section 187 of the Customs Act. We accordingly held that the contention of Mr. S. Tariq Ali inviting us to hold these Supreme Court judgments as per incuriam is misplaced. These decisions are respectfully veiy sound and accordingly bind us under Article 189 of the Constitution. Before parting with the discussion on section 187 of the Customs Act we are of the view that in case the interpretation on the lines invited by the learned Standing Counsel were to be adopted Le. that for every offence for which the accused is charged under the Customs Act he shall have to disprove the allegations of the Customs Authorities in entirely without any obligation upon the Customs Department to adduce evidence, it would amount to affording unfettered, naked and arbitrary discretion to the authorities who may at their sweet will make out false cases against importers without the need of proving the sanctity of their actions. Such cannot be the intention of Parliament while the Courts are under an obligation to place such construction on statutes which would be beneficial to the widest extent and which would make the legislation operate fairly, justly and equitably and not unreasonably (see Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051). This Court is also of the view that a construction is to be placed upon statutes which would minimize the discretion vested upon the Executive Authorities. As absolute power corrupts an interpretation fettering the discretion of the executive authority would be more in line with the principles of equity and justice. The issue regarding the applicability of section 187 is to be looked from another angle i.e. in case we were to hold that due to section 187 the entire burden to disprove the entire case rest upon the accused alone, the Executive Authorities would be let loose and given a wide, naked and arbitrary discretion to operate without any guidlines which would then leave section 187 susceptible to a Constitutional challenge upon its vires on this score alone. By the interpretation as proposed above any redundancy or illegality would also be avoided." 9. The matter pertaining to possession of the suitcase in the present case was held in dispute as all along the appellant had challenged the same. The requirement in the present circumstances of having independent mashirs of seizure of the suitcase could not be dispensed with as the very identity of the suitcase was crucial and subject matter of challenge by the appellant Apart from a notice under section 171 of the 1969 Act there existed no other document which could connect the appellant with the suit 1 case. As regards the notice under section 171 the same itself was challenged ! by the appellant especially when the seizing officer admitted that he had not JpM written the notice himself (and only signed it) nor the prosecution brought forth the testimony of the person having written the said notice in his handwriting. The grave infirmity obvious in the conduct of the prosecution being its default to comply with Customs General Order No. 12 of 1986 dated 31.7.1986 prescribing procedure for storage/sampling of seized heroin and other narcotics which I reproduce for the sake of convenience:- "Subject: STORAGE/SAMPLING OF SEIZED HEROIN AND OTHER NARCOTICS. The Central Board of Revenue is pleased to lay down the following procedure regarding sampling, testing and storage etc. of seized/confiscated heroin and other narcotics:- (i) The seizing officer/officials shall conduct and on the spot test with field kits to satisfy themselves that the seized substance is heroin. The officer performing the test with field kit shall prepare a written memo to the effect that he performed the test and it showed positive result about the presence of heroin etc. and other officers/staff accompanying him shall sign the written memo as witnesses to the said test. The fact about the test with field kit and the positive result shall invariably be mentioned in the FIR and AIR. (ii) After seizure of heroin and other narcotics three samples shall be drawn. Each sample will be carefully placed in a polyester/polythene bag 8 x 10 cm avoiding contact with moisture and heat. The bag should be sealed electrically (with a domestic hand sealer), with due care not to allow the sample to come in contact with the hot part. The sealed polyester polythene bags shall be further sealed in a cloth bags 12 x 15 cm with he conventional lac seals. The seizures should be sampled for laboratory examination according to the following minimum quantities:- 1. Heroin 5 gm Approximately 2. Charas/Cannabis/ 10 gm Approximately Hashish 3. Hashish oil 10 gm Approximately 4. Opium 10 gm Approximately 5. Drags in the form 10 tablets/Capsules of tablets or capsules. (iii) Each sample will be sealed by the seizing officer who shall affix his signatures both on the polyester/polythene and cotton bags alongwith his name and designation. Another officer/staff present on the spot will also sign likewise as a witness. All the signatures will be put in such a manner that the same cannot be obliterated/destroyed without tearing or damaging the bags. (iv) Out of the three samples drawn, one shall be sent to a customs laboratory and the second to an independent Government Laboratory e.g. Forensic Drug Laboratory, National Institute of Health Islamabad and PFSDIR etc. for test in order to determine the percentage content of heroin alongwith the nature and percentage of residuary substances/nature of the seized narcotics. Seizing Agencies other than Customs will likewise send samples to two different laboratories. Samples will be invariably sent/handed over to the Head of the laboratory or an officer designated by him. Proforma annexed to this order shall accompany the samples for laboratory tests. The third sample shall be deposited in the State Ware house alongwith the seized consignment for future reference. On receipt of thest reports, copies thereof shall be forwarded to the adjudicating officer and the Court before whom the accused are under trial. (v) Narcotics and psychotropic substances will be stored separately from other goods in safe/strong room which should be provided in the premises of State Warehouse. Heroin has already been declared as "Valuable" vide Customs General Order No. 27 of 1983, dated 14th December, 1983 (Reported as PTCL 1984 St. 129(ii) and the provisions of Customs General Order No. 66 of 1973, dated 19th November, 1973 are applicable to its storage etc. The heroin sealed in ployester/polythene and cotton bags shall be kept in steel almirahs/steel trunks under doubt lock in the State Warehouse and one of the keys of the lock shall be with a BPS-17 officer. The safe strong room should be electronically guarded and for the safe custody of such substances close circuit TV system/burglar alarm system should be provided to guard against theft and pilferage. Where the seized consignment is heavy, the sealed polythene/plastic and cotton bags may be placed in steel trunks which shall be padlocks All the padlocks will also be sealed and the seizing officer/depositing the seized heroin in State Warehouse will put his signatures on each padlock. The seized narcotics, particularly heroin, will be deposited in the State Warehouse not later than forty eight hours after the seizure. (vi) Each Director-General/Director/Collector/Head of the other seizing Agency shall constitute a Committee consisting of officers not below the rank of an Assistant Collector/Assistant Director or an officer of equal rank and Collector/Assistant Director or an officer of equal rank and a representative of the Pakistan Narcotics Control Board (PNCB) to supervise destruction of heroin and other narcotics by burning. The confiscated narcotics will be destroyed only after the final completion of the case both in the Court of law and the departmental adjudication or after the completion of adjudication proceedings with the permission of the Court, in which case at least 3 samples will be retained in the manner as the Court directs. A written memo shall be prepared in quadruplicate at the time of destruction indicating the particulars of the case and the quantity destroyed. The officer putting the narcotics to fire shall sign the memo indicating his name and designation alongwith the place, date and time of destruction. The officer supervising destruction not below the rank of an Assistant Collector/Assistant Director or an officer of equal rank, of an Assistant Collector/Assistant Director or an officer of equal rank, shall countersign the same while representative of PNCB and the concerned officer of State Whorehouse shall sign as witnesses. One copy each of the memo so prepared shall be placed on the record of State Warehouse, adjudication file, seizure file and the case file of the Court concerned with the trial of the case involving the narcotics in question. 2. The concerned Directors General/Directors/Collectors/ Heads of the other seizing Agencies are required to make all necessary arrangements so as to enforce the provisions of sub-paras (i) to (iv) above within a maximum period of three months from the date of issue of this General Order. The provisions of sub-para (v) above concerning installation of close circuit T.V. system or burglar alarm system and storage in steel almirahs/steel trunks etc. will be enforced within six months of the issuance of this General Order subject to the availability of necessary funds to procure the required equipment etc. The provisions regarding deposit of seized narcotics in the respective State Warehouses not later than forty eight hours after seizure and the procedure regarding destruction of confiscated narcotics (para VI above refers), will come into force with effect from 1st September, 1986." 10. In view of the facts as pointed out above it is not safe to maintain the conviction of the appellant who is entitled to a benefit of doubt In relation to the principle of benefit of doubt it would not be out of place to state its ethos which has been very aptly propounded in Ryan's Medical Jurisprudence, 1836 which is as under:- "It is a preferable situation when 10 guilty men no unconvicted than one innocent man getting punished, "(for further references on this golden rule of benefit of doubt extending to the accused). See Sail Sheikh and another v. Emperor AIR 1931 Calcutta 752, Zaab Din and another v. The State PLD 1986 Peshawar 188, Sikandar v. The State PLD 1963 SC 17, Muhammad Luqman v. The State PLD 1970 SC 10 and Syed Rahim Shah v. Govt. ofN.W.F.P. and others PLJ 1982 (Peshawar 74)." 11. This golden rule of benefit of doubt emanates from the principle hat in criminal cases the prosecution is to establish guilt regarding all elements of the crime beyond all reasonable doubts. In all civilized legal ystems such is the position. It would not be out of context here to cite the American Jurisprudence (AJ) in this regard:- (a) "In a criminal prosecution, in order to warrant a conviction, the State is required, in the discharge of the burden imposed upon it of establishing by proof all the essential elements of the crime with which the defendant is charged in the indictment, to establish beyond a reasonable doubt that the accused is guilty of that crime; and in the absence of such a degree of proof of the defendant's guilt, he is entitled to an acquittal, regardless of whether his character is good or bad. It is not sufficient that the preponderance or the weight of the evidence point to the suit of the accused. The rule obviously is based upon broad principles of humanity, which forbid the infliction of punishment until the commission of the crime is to a reasonable certainty established. It has received the sanction of the most enlightened jurists in all civilized communities, and in all ages; and with the increasing regard for human life and individual security, it is quite apparent that the energy of the rule is in no degree impaired. The rule requiring proof beyond a reasonable doubt applies to all crimes, regardless of their character or the degree of the crime. However, well founded the contention that more evidence should be required to convict of a serious crime than of a trivial one may be in morals or philosophy, it has no place in the law. The rule in all criminal prosecutions is that proof beyond a reasonable doubt is required. To sustain a criminal conviction for the violation of a penal statute, it is not enough for the state to show that the prisoner indicated has violated the spirit of the statute, the evidence must show beyond a reasonable doubt that he has offended against the letter of the law. (Vol. 20 A.J. p. 1108-1109). (b) The law imposes upon the state in a criminal prosecution the burden of proving the case set forth in the indictment or information, in all its material parts, beyond a reasonable doubt, and the jury in their analysis of the evidence must find, in order to convict, that all the elements of the crime charged have been established by such a degree of proof; otherwise, it is their duty to acquit the defendant. Each and eveiy material and necessaiy fact upon which a conviction depends must be proved beyond a reasonable doubt." (Vol.20A.J.p.ini). In view of the above the appeal is allowed and the appellant ff acquitted. (MAA) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 293 Present: ali muhammad baloch, J. ALI NAWAZ & 8 others-Applicants versus THE STATE--Respondent Cr. Rev. Application No. 92 of 1996, heard on 10-11-1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- -S. 540 and Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Ss. 11,16-Witnesses-Calling of as Court Witnesses-Order of~Challenge to- Trial nearing its end it will prejudice defenceObjection-Witnesses, held, could be called at any stage of trial and no stage is fixed for calling anybody as a court witness. [P. 294] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- -S. 540 and Offence of Zina (Enforcement of Hudood) Ord. 1979 Ss. 11 & 16Calling as court witnesses--M£a/i--Counter claims regarding- Complainant and one accused claiming abductee to be their legally wedded wife-In view of such position, Court, has to decide as to which of claims of parties is true, and it depends on examination of necessary witnesses like Nikah Khawan etc.-Therefor, calling of these witnesses for evidence, not to be illegal or capricious in any manner-Petition dismissed in limine. [P. 294] B, C Mr. Arbab Abdul Sattar G. Memon, Advocate for Petitioner. Date of hearing: 10-11-1996. order This is a Cr. Revision under the provisions of Section 439 Cr.P.C. moved on behalf of the accused persons, who are facing trial under Sections 11, 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the Court of II Addl. Sessions Judge, Thatta. The prosecution as.well as the defence side had completed their evidence and the matter was fixed for final arguments when the prosecution moved an application under Section 540 Cr.P.C. for summoning 4 witnesses for recording their evidence. The notice of that application was given to the defence and after hearing both the parties the trial Court passed the impugned order, whereby two of the witnesses mentioned in the application have been ordered to be summoned as court witnesses while the request in respect of two others was turned down as they were already shown as prosecution witnesses and were examined in Court. The two witnesses in respect of whom the application under Section 540 Cr.P.C. was allowed were Moulvi Mohammad Hashim and Ahmed, whom the Court proposed to examine as court witnesses. The learned counsel for the applicant has challenged this order on several grounds. The first ground of the learned counsel for the applicant is that the trial has nearly come to an end and at this fag end summoning of more witnesses as court witnesses is not warranted by law and it will prejudice the defence. The second argument of the learned counsel is that the defence will be deprived of copies of the statements of these court witnesses as provided under Section 265-C Cr.P.C. and, therefore, the defence will again be prejudice by their examination. I have considered these arguments. As far as the first ground is concerned, the witnesses could be called at any stage of the trial and no stage is fixed for calling anybody as a court witness. The perusal of the impugned order shows that these two witnesses have been found to be necessary for examination as court witnesses as their names transpired during the examination of other witnesses. Admittedly, there are counter-claims as regards the Nikah with the abductee. The complainant claims that the abductee married to him while one of the accused also claimed that she was married to him. In view of such position, the Court has to decide as to which of the claims of the parties is true. Therefore, the point of proving the existence of Nikah depends on examination of necessary witnesses like Nikah-Khawan etc. The Court, therefore, summoned the said two persons as court witnesses. Therefore, I do not find that the calling of these witnesses for their evidence is illegal or capricious in any manner. At the same time the accused are not likely to be prejudiced as these witnesses are being summoned as Court witnesses, and the accused will have opportunity to cross-examine them. The second argument of the learned counsel that he will be deprived of the copies of their previous statements and thereby the accused will be prejudiced is also equally fallacious, as these witnesses do not appear to have been examined earlier and no previous statements are in existence. They will be examined for the first time as court witnesses, and there are no previous statements in existence, therefore, the learned counsel for the applicant could not claim the copies of the statements under Section 265-C Cr.P.C. Therefore, the second argument of the learned counsel is also not sound. At the most, it can be observed that the trial Court will give enough time to the counsel for the accused for cross-examination of these two court witnesses, after their examinations-in-chief have been recorded in Court and the defence could obtain the copies of their statements and could cross-examine them on next date, if the advocate so desired. Under these circumstances, I do not find any force in this Cr. Revision, and do not consider it fit for admission. However, it is directed that the two court witnesses when examined in Court, the defence may be given chance to cross-examine them on next date if the defence so wanted. With these observations, this Cr. Revision is dismissed in limine. 2. In view of the dismissal of the main Revision application, this application is also dismissed. (Aq.By.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 295 [Multan Bench] Present: raja muhammad khurshid, J. SAEED AHMAD-Petitioner versus THE STATE-Respondent Criminal Revision No. 115/96, decided on 19.9.1996. (i) Administration of Justice-- Principle of natural justice requires that before surely bonds are forfeited surety should be given an opportunity of being heard before any order of forfeiture or penalty is to be made. [P. 296] B (ii) Criminal Procedure Code, 1898 (V of 1898)-- -S. 514--Forefeiture of surety-Petitioner stood surety of accused who failed to appear in the Court-Contention, that trial court issued notice in first instance calling upon petitioner to show cause as to why bonds be not forfeited, procedure adopted by trial court was not warranted by law- Confiscation of surety bond is only to be made and penalty is to be inflicted after court concerned is satisfied-Satisfaction should be objective and after hearing surely before imposing penalty-Held: Trial Court has rightly issued show cause notice and after being satisfied that sureties had failed to produce accused, forfeited bonds-Order of trial court does not suffer from any illegality or irregularity which may call for interference-Criminal revision is dismissed in limine. [Pp. 296 & 297] A, C Ch. Muhammad Saleem Akhtar, Advocate for petitioner. Date of hearing: 19.9.1996. order This order will dispose of this petition as well as connected Criminal Revision No. 116/96 as both of them involve similar points. 2. Petitioners in both the petitions stood surety in the sum of Rs. 40,000/- each in pre-arrest bail petitions moved by Abdul Sattar Khan and Muhammad Iqbal Khan respectively. The petitioners in both the bail petitions absented whereupon their bail petitions were dismissed by the learned Sessions Judge, Layyah vide his order dated 11.3.1996. Notices were issued to the.sureties who are petitioners in both these petitions before this court. Sureties were served with notices as to why bail bond should not be confiscated and an amount of Rs. 40,OOQ/- be recovered each from them and deposited in Government Treasury. 3. The petitioners appeared in pursuance of notices before the learned Sessions Judge, Layyah and took up the plea that they had stood surety for each of the petitioner in the bail petitions on humanitarian grounds and that since they have no means to live except the bonded property therefore, the notices be discharged. It was also submitted that they should be given time to produce the accused petitioners after searching them. 4. The learned Sessions Judge, Layyah passed the impugned order, whereby the bail bonds were confiscated under section 514 Cr.P.C. and the sureties were directed to deposit Rs. 10,000/- out of total amount of surety i.e. Rs. 40,000/- in the Treasury failing which the forfeited amount was to be recovered through legal process. 5. Feeling aggrieved of the impugned order, the petitioners have submitted that the impugned order was not liable to stand as the surety bonds were not forfeited immediately after the accused/petitioners absented themselves. In this connection, it was contended that the learned Sessions Judge had issued notices in the first instance calling upon the sureties to show cause as to why the surety bonds be not forfeited. Reliance was placed on 1994 P.Cr.L.J. 834 Lahore to show that the procedure adopted by the learn Sessions Judge, Layyah before passing the impugned order was not warranted in law. 6. I have considered the above submissions and have also gone through the authority cited at the Bar. The facts of the present case are distinguishable than those narrated in the authority cited above in that in the reported case the liability of the surety existed upto a specific date whereas in the instant case the liability of the surety existed till the bail petitions were finally determined and that the accused were to appear on each date of hearing. 7. Adverting now to the facts of the case, in hand, it may be pointed out that the confiscation of the surety bond is only to be made and the penalty is to be inflicted after the court concerned is satisfied that the bonds stand forfeited. The satisfaction should be objective and after hearing the person i.e. the surety before the penalty is inflicted. Section 514 Cr.P.C and the principle of natural justice also requires that before the surety bonds are forfeited the surety should be given an opportunity of being heard before any order of forfeiture or penalty was to be made. The learned Sessions Judge had therefore, rightly issued show cause notices and after being satisfied that the sureties had failed to produce the accused as per surety bonds, the same were forfeited. The penalty of Rs. 10,000/- i.e. l/4th of original amount of surety was inflicted after hearing the sureties and as such the impugned order does not suffer from any patent illegality or irregularity which may call for interference on the revisional jurisdiction of this court. limine. (MAA) 8. Resultantly both the criminal revision petitions are dismissed in | I Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 297 Present : SH. MUHAMMAD ZUBAIH J. MUHAMMAD SALEEM alias SEEMA and 4 others-Petitioners versus THE STATE-Respondent Criminal Misc. No. 3384-B-96, decided on 1.10.1996. (i) Bail- -S. 497(2) Cr.P.C.-Pakistan Penal Code, I860, S, 302/148/149-Bail--Admittedly petitioners are not named in FIR-Complainant, father of deceased, an eye-witness in sworn affidavit exonerated petitioners-Investigating Officer conducting investigation in mosque which is not warranted by law-Investigating Officer's version is highly improbable, fantastic and beyond scope of investigation-Bail allowed. [Pp. 299 & 300] C, D & E PLJ 1996 Cr. C. (Lah.) 1394 rel. (ii) Islamic Jurisprudence- Under Islamic Society, mosque cannot be used by police to procure evidence during investigation on basis of oath on Holy Book-It has been rightly hold in ^p" #( tf.1 (/" that Holy Prophet (peace be upon him) has forbidden that mosque be not used for temporal purpose rather it impairs sanctity of mosque. [P. 299] A, B Sardar Muhammad LatifKhosa, Advocate for Petitioners. Mian Muhamamad Bashir, A.A.G. with Miss. Tasnim Amin, Advocate for State. Date of hearing: 1.10.1996. order The petitioners who are accused in case FIR No. 209 of 1994 dated 20.5.1994 under sections 302/148 and 149 PPC registered at Police Station Theekriwala District Faisalabad seek to be admitted to bail. 2. According to FIR, Qamar uz Zaman armed with rifle, Sarfraz alias Kakku equipped with 12 bore gun, Intisar, Shafique, Mohsin, Azhar, Fayyaz Ahmed, Badar and Zulfiqar armed with sotas in prosecution of their common object caused the death of Muhammad Akram, son of the Haji Allah Bukhsh, complainant. 3. Learned counsel for the petitioners contended that the petitioners are not nominated accused in the FIR; relied upon the affidavit sworn by Haji Allah Bukhsh, complainant, father of the deceased wherein he has deposed that the petitioners did not commit the murder of his son; petitioners are kith and kins of the deceased; they were made accused for the first time during the investigation carried out by Haji Muhammad Idrees, Inspector Range Crimes, Faisalabad in a mosque who vide his zimni No. 69 dated 19.2.1995 came to the conclusion that there was some fight between the Rajput party and the Jot party who is complainant in this case and in that fight the deceased died due to firing of Salim alias Seema and his associates who are petitioners in this case; according to the learned counsel, under the Islamic Society, mosque cannot be used for mundane affairs and as such investigation carried out in the mosque has no legal sanctity; further contended that medical evidence too supports the initial version given by the complainant; in fact, Inspector Haji Muhammad Idrees under the garb of investigation destroyed and deliberately twisted the evidence of the case already on record on the basis of which the challan was submitted in the ourt on 10.10.1994, with malaflde to give undue advantage to the accused persons. Even during the investigation, he recorded the statements of accused persons which are not permissible under the law. It was further argued that Inspector Haji Muhammad Idrees who started the investigation after lapse of few months intentionally gave new dimension to the prosecution version and introduced a story of fight between two groups, that is, Jot and Rajput. According to his investigation, the Jot group who is complainant and the Rajput group who was accused had fight over children dispute and as a result of cross-firing, unfortunately Muhammad Akram died at the hands of his own partymen. According to the learned counsel, there is no evidence whatsoever available on record to justify these findings and it appears that the introduction of new version is nothing but figment of the mind of the Investigating Officer who was bent upon to destroy the prosecution case initially set which was getting ample support from the evidence on record. Learned counsel in support of his submissions relied on It was further submitted that under the Islamic Society, mosque enjoys highest respect and are meant for spiritual attainment and prayer and cannot be used by the Police to procure evidence during the investigation on the basis of oath on Holy Book. Learned counsel argued that this is against the provisions of Article 163 of the Qanun-e-Shahadat. 4. Learned law officer assisted by the police officer as well as learned counsel for the State have conceded that under the scheme of Cr.P.C. as well as under the Islamic Society, mosque cannot be used for worldly affairs what to say of making investigation. They have also conceded that it has been rightly held in that the Holy Prophet (peace be upon him) had forbidden that mosque be not used for temporal purposes rather it impairs the sanctity of the mosque. With respect to merits of the case, learned law officer submitted that in the presence of latest investigation carried out by the Inspector Range Crimes, there exists reasonable grounds to believe that Saleem alias Seema and other petitioners are involved in a case which falls within the prohibitory clause and they are not entitled to the grant of bail 5. I have heard learned counsel for the parties at length and have perused the record. 6. It is an admitted fact that initially in the FIR, the petitioners are not nominated accused; the FIR was lodged by Allah Bukhsh father of the lideceased who is an eye-witness too; he FIR was recorded on the same day "which gets corroboration from the medical evidence. It is for the first time by a belated Zimni No. 69 dated 9.2.1995 by an Inspector of Range Crimes, iFaisalabad, the present petitioners were arraigned as accused with the sole object of destroying the case initially set up by the father of the deceased, Allah Bukhsh. Even the complainant has also sworn an affidavit to the effect that the petitioners are not involved in the case. No recovery has been D affected from them. The version given by the Inspector Range Crimes in highly improbable, fantastic and beyond the scope of investigation as the purpose of investigation is to collect evidence in support of the prosecution case or to find out the truth. In the present case, it appears that the Inspector Range -Crimes in order to oblige Qamar uz Zaman and Sarfraz who are accused according to FIR and are behind the bar, based his opinion on the evidence of strangers. In view of above discussion, I find the case against the petitioners falls within the ambit of sub section (2) to section 497 Cr.P.C. and they are entitled to the grant of bail in a case which falls within the prohibitory clause. I direct that the petitioners shall be released on bail provided they furnish bail bond in the sum of Rs. 50,000/- (fifty thousand only) with one surety each in the like amount to the satisfaction of trial Court/Judicial Magistrate Police Station Thikriwala, District Faisalabad. (MAA) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 300 Present: KAMAL MANSUR ALAM, J. Dr. MUHAMMAD SHOAIB SUDDLE-Applicant versus THE STATE-Respondent Criminal Bail Application No. 1890/96 decided on 2.12.1996. (i) Bail- Bail pre-arrest and after arrest-Difference of--Rule for grant of bail before arrest was quite different from that governing grant of bail after arrest- Presence of ulterior motive particularly on part of police to harass and humiliate by means of un-justified arrest is one of conditions for grant of bail before arrest. [P. 304] B PLJ 1974 Lah. 256, PLD 1993 SC 52, 1985 PCr.L.J. 3007 and PLD 1994 SC 133 ref. (ii) BailPre-arrest" -S. 498 Cr.P.C.--Pre-arrest bail--Whether in case of concurrent jurisdiction applicant should move first Sessions Court before approaching High Court for pre-arrest bail-Question of-Superior courts in string of decisions has held that in matters of pre-arrest bail where lower court has concurrent jurisdiction with High Court, ordinarily accused should not be allowed to by-pass Sessions Court and approach High Court directly-General rule is that where two courts enjoyed concurrent jurisdiction, court comparatively lower in hierarchy should be moved first and only in compelling or exceptional circumstances an accused may be allowed to approach High Court without first approaching Sessions Court. [P. 302] A 1991 SCMR 322 and PLD 1974 Lah 256 ref. Mr. K.M.A. Samdani, Advocate for Applicant. Mr. LA. Hashmi, Advocate for Complainant. Mr. M.L. Shahani, Advocate General, Sindh. Mr. Arshad, Advocatefor Complainant. Date of hearing: 2.12.1996. order The applicant in this case who was D.I.G. Karachi at the relevant time seeks bail before arrest in FIR No. 433/96 registered at Clifton Police Station on 9.11.96 as a result of direction given by a Division Bench of this Court in C.P. No. D-1720/06. The applicant was granted interim pre-arrest bail by me in this case. The allegation in the FIR is that on 20.9.96 a police party consisting of several officers and other ranks numbering about 80-100 stopped Mir Murtaza Bhutto, Chairman, Pakistan Peoples Party (SB) and his companions travelling in four vehicles near his house at 70-Clifton, Karachi, at about 8.35 p.m. in the evening. As soon as Mir Murtaza Bhutto lowered the window glass of his vehicle the police personnel who had already taken positions in the area started firing on Mir Murtaza Bhutto's party which resulted in death of eight persons and injuries to several others. Applicant is not shown as one of those present at the place of incident but his name is mentioned in the FIR as one of those who conspired to eliminate Mir Murtaza Bhutto alongwith certain others in the Federal Government and the Provincial Government of Sindh as also those named in the FIR. The first point that needs consideration in the matter is as to whether in this case of concurrent jurisdiction it was not necessary for the applicant to have moved the Sessions Court first before approaching this Court for pre-arrest bail. It is well settled by string of decisions of superior Courts on the point that in matters of pre-arrest bail where the lower Court has concurrent jurisdiction with the High Court, ordinarily the accused should not be allowed to by-pass the Sessions Court and approach the High Court directly. The general rule is that where two courts enjoyed concurrent jurisdiction, the Court comparatively lower in the hierarchy should be moved first and only under compelling and exceptional circumstances an accused may be allowed to move the High Court without first approaching the Sessions Court. Reference may be made to the cases of Zulfiqar and others v. The State and 10 others (1991 SCMR 322) and Sh, Zahoor Ahmad v. The State (PLD 1974 Lah. 256). Mr. K.M.A. Samdani, the learned counsel for the applicant submitted that as the complainant had connections with persons holding high offices and the incident had been widely reported and commented upon the newspapers, the applicant genuinely apprehends that in the charged political atmosphere presently prevailing in the city the Sessions Court may be embarrassed and unable to give relief to the applicant. It was further submitted that the third FIR having been registered on the direction of this Court, the lower Court may also feel restrained to take independent view of the matter. In these circumstances, it was argued, that this was a fit case where this Court should exercise its concurrent jurisdiction without insisting on the applicant first moving the Sessions Court. The argument is not without force. There is little doubt that the complainant, if not directly at least indirectly, has connection with important personalities of the country. It cannot be denied that the incident received wide publicity in the media and there would hardly be a political leader, worth the name, who has not commented upon the incident giving it a political stinge. In these circumstances, it would not be unreasonable to treat this an exceptional case for the exercise of the concurrent jurisdiction of this Court. Reference in this regard may also be made to the case of Wall Muhammad v. The State (1973 P.Cr.L.J. 873) where it has been held that, "The first question that agitated my mind was, whether in a case of a concurrent jurisdiction, which the present one undoubtedly is, the applicant should be allowed to come to this Court without approaching the Sessions Court and I have no doubt in my mind that, unless there are very serious reasons why such a course should be preferred, the ordinary principle, that the lower Court should be approached first, should be invariably followed. Mr. Hayat Junejo, however, relied upon a Full Bench case reported in Shah Zillur Rahman Mutawali v. The State which was a case of concurrent jurisdiction on the revisional side. It was held that although the Sessions Judge must ordinarily be moved the revision application, having been entertained direct by the High Court, should be disposed of on its own merits. There are many other cases to the same effect. I, therefore, think it is not open to a Judge hearing the case fixed for final disposal, or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction." This would be another reason for insisting on first moving the Sessions Court in the present case which has been heard by me on merits too. On merits, the learned counsel for the applicant seeks pre-arrest bail for the applicant on the plea that admittedly the applicant was not present at the place of incident; that he has not been assigned any overt act in the FIR and all that has been mentioned against him in the FIR is that he wanted to arrest Mir Murtaza Bhutto. Reference in this regard was made to para 14 of the judgment in the aforesaid C.P.D-1720/96 to emphasize that the learned Judges comprising the Division Bench had not permitted to inclusion of the name of the applicant in the FIR as would appear from the following passage in that para: "However, some other police officers have been named as suspects but no definite role has been attributed to them by the petitioners. Thereby, the petitioners have failed to satisfy the conscience of the court so far as the said police officers are concerned." If was argued that the inclusion of the name of the applicant in the FIR was with ulterior motive and malafides and for the reason that the applicant had ordered the arrest of one Ali Muhammad Sonara, a very close associate of Mir Murtaza Bhutto and an activist of his party, and also as the applicant had directed registration of FIR against Mir Murtaza Bhutto and his guards for their raids as CIA Centres on 17.9.96. The submission was that the applicant had nothing to do with the incident and the purpose of the operation was only to arrest some of the persons accompanying the late Mir Murtaza Bhutto. It was submitted that the fact that the applicant was not involved in the crime is apparent from the interim challan submitted in the Sessions Court Karachi (South) wherein the name of the applicant does not find mention, as, obviously no incriminating evidence has been found against the applicant as a result of investigation. Mr. M.L. Shahani, the learned Advocate General, Sindh, and Mr. LA. Hashmi, the learned counsel appearing for the Complainant, Noor Muhammad, vehemently opposed the application. On the factual plane, they contended that it was a case of pre-planned murder of Mir Murtaza Bhutto in consequence of a conspiracy hatched by some important personalities in collusion with the police officers named in the FIR and this was apparent from the facts, that while 8 persons were killed and several injured on the side of Mir Murtaza Bhutoo, only two police officers received minor injuries which could not have been the case in the real encounter, that the injury sustained by SHO Haq Nawaz Sial was considered to be self-suffered by one of the medical boards constituted by the Provincial Government to examine him and that Haq Nawaz Sial was murdered in mysterious circumstances just a few days after medical board's findings about his injury. FIR No. 278 of 1996 is said to have been registered in the Garden Police Station about the murder of Sial. It was contended that as the DIG Karachi the applicant was overall incharge of Karachi Police and it is inconceivable that incident of such magnitude could occur without his participation in the planning. In the above circumstances, it was submitted that the applicant had no case for grant of bail less pre-arrest bail. Main thrust of their arguments, however, was that the rule for the grant of bail before arrest was quite different from that governing grant of bail after arrest. Presence of ulterior motive, particularly on the part of the police, to harass and humiliate by means of unjustified arrest, is one of the conditions for the grant of pre-arrest bail. In the instant case it was submitted that none of the conditions required for the grant of pre-arrest bail existed. There is no doubt that the conditions required for the grant of prearrest bail are materially different from those for bail after arrest. It has been observed in the case of Sarwar Sultan v. The State and another (PLD 1994 S.C. 133) that, "From legal angle, it can be said that there is material difference between bail after arrest as contemplated under Section 497 Cr.P.C. and bail before arrest under Section 498 Cr.P.C. and that, "Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime." The question of grant of anticipatory bail was examined in the case of Sh. Zahoor Ahmad. The State (PLD 1974 Lah. 256) and after reviewing he precedent law on the point the learned Judge laid down the conditions considered necessary for the grant of pre-arrest bail. The relevant portion of the judgment is as follows : "10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498 Cr.P.C., are :-- (a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner, (b) that the petitioner should physically surrender the Court; (c) that on account of ulterior motives, particularly on the part of police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest; (d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C. would have to be kept in mind; (e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C." In the case of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 S.C. 82) the aforesaid five conditions for the grant of pre-arrest bail noted in Sh. Zahoor's case were approved. It has been observed that, "....In para. 10 of the judgment in the case of Sh. Zahoor Ahmad, five conditions were noted as deducible from the precedent law. One of the conditions was that "on account of ulterior motives particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest." Reference may also be made to following observations in the case of Muhammad Parwaz v. Badi-uz-Zaman and others (1985 P.Cr.L.J. 3007): "7. Without dilating upon the merits of the case, lest the prosecution or accused may be prejudiced, this Court will deem it proper to point out to the learned Sessions Judge that there is to be drawn line of distinction between a prearrest bail and after arrest bail. In case of a pre-arrest bail it is the duty of the Court to examine the question whether such an action would not frustrate the investigation. The Court is to be conscious of the fact that grant of pre-arrest bail is not a rule but, an exception, rarely to be used and only in case of mala fides. In fact this Court has no power to grant bail before arrest unless all the col ditions laid down by the superior Courts are fulfilled, the most essential being that the intended arrest is motivated with mala fides which have to be specifically stated. Further the accused has also to show that irreparable loss is likely to be caused to him by the intending arrest. The accused have to make believe the Court that he is in no way involved in the commission of the offence charged with." Having thus examined the case Law, I now turn to the merits of the applicant's application for pre-arrest bail. With regard to applicant's counsel's contention that the learned Judges had not granted permission for the registration of FIR against the applicant, suffice to say that there is no such specific direction in the judgment. Since the name of the applicant transpires in the FIR his case too will have to be dealt with under the rules applicable to anticipatory bail. It is true that the applicant is not shown in the FIR as having remained present at the place of incident but there can be no denial that as the DIG and head of the Karachi Police he cannot escape the responsibility for police actions. The contention that his name was included in the FIR as he had directed the arrest of Ali Sonara and registration of FIR against the late Mir Murtaza Bhutto is rather far fetched. Ordinarily, such directions do not come in the knowledge of general public and there is nothing to show that the complainant had any knowledge about this. In my view, therefore, there is no reliable material available to suggest ulterior motive on the part of the police or the complainant. There seems no dispute that as a result of police firing 8 persons including Mir Murtaza Bhutto and Ashique Jatoi were killed and several others injured. The controversy about Haq Nawaz SiaTs injury being selfsuffered and his subsequent death are matters which too cannot be overlooked. The fact that the applicant's name has not been mentioned in the interim challan would dispel any allegation of mala fides against the police. Incidentally, the omission of applicant's name in the interim challan would perhaps suggest that there is also no 'genuine proved apprehension of imminent arrest' of the applicant. On the facts of this case, there appears no reasonable ground to suspect that the naming of the applicant in the FIR was mala fide or with ulterior motive. For the foregoing reasons, I am of the view that this is not a fit case for the grant of pre-arrest bail to the applicant, as such, his application for pre-arrest bail is rejected. The earlier order granting interim pre-arrest bail to the applicant is recalled. (MAA) Bail declined.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 307 Present: MUHAMMAD baloch, J. MUHAMMAD AFZAL BHATTI-Applicant versus THE STATE--Respondent Criminal Bail Application No. 1152/96, 1330/96 and 1397/96, accepted on 18.8.1996. Bail-Pre-arrest- S. 498 Cr.P.C. read with Section 6 of Pakistan Criminal Law Amendment Act, 1958-Pre-arrest bail-Names of applicants are not mentioned in challan-Applicants are public servants-Previous sanction of Government for their prosecution as laid down in sub-section (5) of Section 6 of Criminal Law Amendment Act, 1958 not obtained-Held: Unless there is clear sanction of prosecution of case against accused/applicants they cannot be tried-Bail allowed. [P. 308] A Mr. Ilyas Khan, Advocate in Criminal Bail Application No. 1152/96 and 1330/96. ! Mr. Mir Muhammad Sheikh, in Criminal Bail Application No. 1397/96. Mr. Raushan Alt Essani, DAG. Date of hearing : 18.8.96. order By this single order the above mentioned three bail applications are being disposed of. All the applicants in these cases were granted interim pre-arrest bail and today the matter is fixed for confirmation or otherwise of that order. Learned DAG has very frankly conceded that the applicants are entitled to pre-arrest bail and therefore he does not oppose the confirmation of the order granting interim pre-arrest bail to them. The procedure for trial of cases before the Special Judge is laid down in section 6 of Pakistan Criminal Law Amendment Act, 1958. Subsection (5) of section 6 of Pakistan Criminal Law Amendment Act has provided that previous sanction of the appropriate Government shall be required for the « prosecution of a public servant for an offence under this Act. In case there was no previous sanction received by the Investigating Officer before the challan, there is provision that the Special Judge shall immediately on receipt of the report write a letter to the Government requiring such sanction and in case the sanction is neither received nor refused within sixty days of the receipt of that letter, such sanction shall he deemed to have been duly accorded. In this case learned counsel have invited my attention to the report under section 173 Cr.P.C. In the report, commonly known as "charge sheet", or "challan" names of any of the applicants, are not mentioned in columns No. 2 or 3. Thus prima facie it appears that the applicants do not stand "reported" under section 173 Cr.P.C., and therefore the question whether any prosecution sanction is required against them as provided under the provisions of section 6, subsection (5) of the Pakistan Criminal Law Amendment Act, 1958 does not arise. Apart from that the necessary sanction, could not be said to have been granted in this case as the pre-requisite for a sanction of persecution is that, a person must stand reported or challaned, in the court of law under provisions of section 173 Cr.P.C. for whom sanction of persecution is needed for trial. Another aspect of the case is that even if the trial court was of the view that these applicants stand challaned, the court had to write a letter to the Government under provision of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act and thereafter if no reply was received from the Government within a period of sixty days, the Court could presume the sanction. In this case, the letter in respect of the applicants requiring sanction from the Government has not been written by the trial Judge and the learned DAG has conceded to this position. He has further stated that he had ascertained through the Investigating Officer that no such letter seeking sanction against the present applicants was ever written by the Trial Judge. Mr. Eyas Khan, learned counsel for the applicants placed before me a certified true copy of a letter written by Special Judge Central-I, Karachi (Syed Hassan Shah Bukhari) which shows that sanction was requested for prosecution of the co-accused who were actually shown in the report under section 173 Cr.P.C. The names of the present applicants are not included in that letter. It appears that learned Presiding Officer, who took over from Syed Hassan Shah Bukhari, has considered the first letter to be sufficient for seeking the sanction of the prosecution against the present applicants. Learned DAG has conceded that, that letter does not fulfil the requirements of the provision of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, as against the present applicants, as their names do not appear in this letter. Therefore it cannot be said that there exists sanction against the present applicants for their trial by the Special Judge. Be that as it may, unless there is clear sanction of prosecution of the case against the applicants, they cannot be tried in this case. If the prosecution wants to include the names of the applicants in the charge-sheet under section 173 Cr.P.C., it can make such clear move. Thereafter, the question of sanction has to be resolved under the tez'ms as provided by section 6(5) of Pakistan Criminal Law Amendment Act, 1958. Till such time that these matters are resolved, the applicants who are public servants, are entitled to freedom and therefore entitled to pre-arrest bail. Consequently, they are allowed to remain on bail. The earlier order of granting them interim pre-arrest bail is hereby confirmed, on the same terms and conditions. The observations made in this order, should not influence the mind of the trial court, as the same were considered tentatively for deciding these bail applications. (MAA) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 309 [Multan Bench] Present : MUHAMMAD NASEEM CHAUDHRI, J. ZAFAR AHMAD-Petitioner versus THE STATE ETC.-Respondents Criminal Misc. No. 242-Q/1996 decided on 14.10.1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- -S. 87/88-Proceedings against absconder-If a person becomes fugitive of law trial court should initiate proceedings under this section without that trial cannot commence, even to the extent of accused who are willing to defend same by appearing before court. [P. 311] C (ii) Trial- -Appearance of accused-Appearance by accused who is under arrest (in Judicial Lock-up) or is on bail or is a fugitive of law is necessary before trial court when trial commences. [P. 311] A, B & D Mr. Lai Khan Baluch, Advocate for Petitioner. Mr. S.A Waheed Bokhari, A.A.G. for Respondent No. 1. Mr. As/am Malik, Advocate for Respondents No. 2 & 3. Nemo for Respondent No. 4 (Absconder) Date of hearing : 14.10.1996. judgment Bashir Ahmad, Zafar and Anwar respondents No. 2 to 4 are the accused of Crime Case No. 147 registered on 22.2.1996 at Police Station Jarranwala under sections 302/34 PPC. Bashir Ahmad and Zafar respondents No. 2 and 3 have been arrested while Muhammad Anwar respondent No. 4 has become a fugitive of law. The Area Magistrate at the petition of the police, proceeded under sections 87/88 Criminal Procedure Code against Muhammad Anwar accused and therefore sent up the case to the Court of Session. At present the case is on the file of Mr. Pervez Ali Chawla, Additional Sessions Judge, Faisaiabad. He charged both Bashir Ahmad and Zafar accused/respondents No. 2 and 3 on 9.7.1996 under sections 302(.a)/34 Pakistan Penal Code. Thereafter some prosecution witnesses have been examined on 25.7.1996 and 1.9.1996. 2. Through the filing of this petition under section 561-A Criminal Procedure Code Zafar Ahmad petitioner-complainant is desirous for the quaslmient of the proceedings conducted on 9.7.1996, 25.7.1996 and 1.9.1996 on the ground that it was incumbent upon the learned trial Court to procure the attendance of Muhammad Anwar absconder accused/respondent No. 4 and in case of legal necessity to proceed under sections 87/88 Criminal Procedure Code. According to the petitioner thereafter the trial could be started. 3. I have heard the learned counsel for the parties as well as learned Assistant Advocate General. Learned counsel for the petitioner argued that the Area Magistrate could not proceed against Muhammad Anwar respondent No. 4 under sections 87/88 Criminal Procedure Code and that after the case was sent up in terms of section 190(3) Criminal Procedure Code by him it was necessaiy on the part of the learned Addl. Sessions Judge to proceed afresh to procure the attendance of Muhammad Anwar respondent No. 4. On the contrary it has been argued on behalf of the State and the accused ersons that before the case exclusively triable by the Court of Session is sent up to the Court of Session, all the ancillary proceedings are to be conducted the end of the Ilaqa Magistrate and that there was no need proceed afresh before the start of the trial by the trial Court to procure the attendance of Muhammad Anwar accused to proceed under sections 87/88 Criminal Procedure Code. At this stage I would express that it seems that Zafar Ahmad petitioner-complainant has not moved the learned trial Court to proceed under sections 87/88 Criminal Procedure Code to the extent of Muhammad Anwar absconder accused/respondent No. 4 before the start of the trial. This direction can be passed even today by this Court and the trial Court can give its verdict either way. However, I am tempted to express that would be nothing but wastage of time especially when the learned trial Court is proceeding with the trial and is recording the prosecution evidence. I, therefore, proceed to dispose of this matter on merits. 4. Learned counsel for the petitioner-complainant has rightly canvassed that without the presence of Muhammad Anwar respondent No. 4 the trial cannot be processed with and conducted and even at the end of the trial Court all the efforts should be made to procure the presence of Muhammad Anwar absconder-accused through ordinary manner or coercive methods. Even if the proceedings in the matter have been conducted at the end of the learned Area Magistrate that is not an illegal act. However, it was also incumbent upon the trial Court to proceed in accordance with law to procure the attendance of Muhammad Anwar absconder-accused/ respondent No. 4. To exemplify if an accused is admitted to bail before the challan is sent up to the Court of Session, his attendance has also to be procured by the trial Court i.e. the Court of Session. If an accused on bail becomes a fugitive of law the proceedings under section 514 Criminal Procedure Code are also to be conducted in addition to the proceedings to be taken under sections 87/88 Criminal Procedure Code. The wisdom behind this aspect of the matter is that after the conclusion of the trial if the absconding accused is arrested and the tria} is conducted the previous material can be used against him, if any of the prosecution witnesses has expired. In case of failure on the part of the trial Court to proceed in this regard, in the aforesaid state of affairs, the arrested accused can take exception thereto during the trial. In short it is expressed and held that the appearance of an accused who is under arrest (in the judicial lock up), is on bail or is a fugitive of law is necessary before the trial Court when the trial commences. In this regard the bailable or non-bailable warrant of the asbconding accused can be issued by the trial Court and the normal procedure can be followed or the coercive method can be adopted to procure his attendance. If the person becomes the fugitive of law it is obligatory on the Trial Court to initiate the proceedings under sections 87/88 Criminal Procedure Code. Without that the trial cannot be commenced even to the extent of the accused who are willing to defend the same by appearing before the Court. 5. Consequently I accept this petition and quash the aforesaid orders. The result is that the trial Court shall proceed in accordance with law to procure the attendance of Muhammad Anwar accused/respondent No. 3 and shall adopt all the methods thereof. After collecting all the material qua him, the proceedings shall be conducted afresh to the extent of the remaining accused persons who want to defend the suit It means that the charge shall have to be framed afresh and the PWs shall be examined afresh thereafter. It follows that the de novo trial shall have to be conducted by the trial Court. In case Muhammad Anwar accused appear, the trial shall proceed as expressed above. (MAA) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 312 Present: raja muhammad khurshid, J. MUHAMMAD ILYAS and another-Petitioners versus THE STATE-Respondent Criminal Misc. No. 206/Q/1996, dismissed on 21.7.1996. Criminal Procedure Code, 1898 (V of 1898)- -S. 561-A-Pakistan Penal Code, 1860, S. 406/468/471/420-Quashment of proceedings-Writ petition and I.C.A. relating thereto, for quashment of registration of present case already dismissed-Petitioner's application under Section 249-A Cr.P.C. for acquittal in the case dismissed by trial court-Investigation connecting petitioners with offence-Challan has been submitted before trial Court-Charge is yet to be framed-Plea taken by the petitioner's regarding applicability of provisions contained in Section 222 Cr.P.C. read with S. 234 of the Code cannot be discussed at this stage-However, any objection, if charge is not framed correctly or is violative of rovisions of law, can be taken at proper time-Petition being misconceived dismissed in limine. [P. 314] A, B & C Haflz Khan Muhammad Mai, Advocate for Petitioner. Date of hearing: 21.7.1996. order A case under sections 406, 408, 468, 471 and 420 PPG was registered against the petitioners at Police Station, Naushera Tehsil and District Khushab vide FIR No. 54 dated 2.6.1994 upon the report lodged by one Muhammad Amir. 2. The petitioner No. 1 worked as Manager, Habib Bank Limited, Mardwal Branch District Khushab and also performed part time duty as cashier with the complainant at his Wagon Addah. Petitioner No. 2 namely Muhammad Iqbal is real nephew of complainant Muhammad Amir and also managed the transport business of the complainant which consisted of 19 Coaches plying between Sargodha to Khushab and vice versa under the name and Style "Nisal Awan Coach Service". 3. The petitioners during their engagement with the complainant ^allegedly committed fraud and also mis-appropriated huge amount of approximately 29 lacs. The dispute was taken to the civil court for settlement through arbitration. The Arbitrator rendered Award for a part of amount and left the parties to settle dispute regarding rest of the amount i.e. approximately 18 lacs. 4. The petitioners challenged the registration of the case and applied for quashment of FIR through W.P. No. 10792/94, which was dismissed by my learned brother Ahmad Saeed Awan, J. on 7.11.1994. The petitioners feeling aggrieved agitated the matter in Intra Court Appeal, which was also dismissed on 13.11.1994 by a Division Bench consisting of my learned brothers Ch. Mushtaq Ahmad Khan and Sharif Hussain Bokhari, JJ. 5. The investigation connected both the petitioners with the offences levelled against them in the FIR. As such a report under section 173 Cr.P.C. was submitted to the court concerned. Thereafter the petitioners challenged he proceedings in the trial court by moving an application for their acquittal under section 249-A Cr.P.C., but the same was dismissed. Still feeling ggrieved the present petition for quashment is moved under section 561-A Cr.P.C. on the ground that continuation of proceedings in the trial court would amount to abuse of process of law. In this regard, it is contended that mis-appropriation of money spread over a period of more than 3 years starting from 1989 to 1993 and as such all the amounts allegedly mis appropriated during that period could not be clubbed together to frame a charge for trial of the petitioners. In that respect reference was made to sections 222 and 234 Cr.P.C., which required that no such transactions could be joined in a charge if the pails of series relate to a period beyond one year. It was, therefore, contended that the charge before the learned trial court would be violative of law and as such proceedings or trial following the charge would tantamount to the abuse of court procedure. Reliance was placed on Muhammad Ayub Qurcshi vs. The State reported as PLD 1987 Azad J & K 131 and Malik Murid Sadiq vs. The State reported as 1968 P.Cr.L.J. 657 (Lahore). As such it was contended that no conviction or entence could be passed on account of mis-joinder of charge for the mis appropriated amount spread over three years. 6. Lastly it was contended that documents connecting the petitioners with the occurrence and collected by the police have not been sent to the Finger/Hand Writing Expert for expert opinion so as to find out that the same was prepared by the petitioners. It was, therefore, urged that there was no material on record to show that there was any breach of trust leading to the offence of mis-appropriation of money or embezzlement. 7. I have taken into account the foregoing facts and the material placed on record. It is clear that the petitioners instead of facing the investigation and the trial have put up every resistance to the matter in issue by invoking Extraordinary jurisdiction of this court under the Constitution by filing un-successful writ petition and ICA as pointed out above. It was found earlier in those proceedings that mere fact that the matter was taken to the civil court would not ipso facto exclude the criminal remedy which existed side by side under the criminal law. The petitioners also made an attempt in vain by moving a petition under section 249-A Cr.P.C. for their acquittal on the ground that no case was made out and that the charge framed would be violative of sections 222 and 234 Cr.P.C. That petition was also dismissed for the reasons that there was enough evidence to proceed with the trial. 8. The learned counsel for the petitioners has not been able to convince me that the view taken by the learned trial court while deciding the petition under section 249-A Cr.P.C. was not sustainable in the eye of law. The prosecution has already collected enough evidence against the petitioner, which has been cited in the report submitted to the court under section 173 Cr.P.C. The series of transactions though stalling from 1989 and ending in 1993, were also taken into account during arbitration by the Arbitrator, who had also given the finding regarding outstanding amount and the parties were directed to settle the matter. The applicability of the provisions contained in section 222 Cr.P.C read with section 234 Cr.P.C. cannot be discussed at this stage without prejudice to the merits of the case. The charge is yet to be framed in the learned trial court and it shall be open for the petitioners to take an objection if the charge is not correctly framed or is violative of any provision of law, by referring to the evidence, which has already been collected and placed on record. As such no conclusive finding an be given at this stage, when the charge is yet to be framed but it is enough to say that it is a fit case for judicial test. 9. This petition for quashment is mis-conceived at this stage. It is accordingly dismissed in limine. (MAA) Petition dismissed in limine.
PLJ 1997 Cr PLJ 1997 Cr. C. (Quetta) 314 (DB) Present: amir ul mulk mengal and javed iqbal, JJ. Captain Dr. MUNIR AHMAD KHAN-Petitioner versus THE STATE-Respondent Criminal Bail Application No. 254/96, decided on 3.9.1996. (i) Bail-- -S. 497 Cr.P.C.-West Pakistan Arms Ordinance, 1965, S. 13-A--Recovery of huge quantity of Arms and ammunition-Bail-Contention-Petitioner involved with mala fide intention and due to enmity-Place of recoveiy elonging to another person who has not been made co-accused-- Recovery not affected from exclusive possession of petitioner-No private person associated in recovery proceedings-Petitioner's admission before Magistrate regarding ownership of boxes containing huge quantity of Arms and Ammunition-Sufficient incriminating material has been collected by accused-Regarding sickness of petitioner, he is not suffering from incurable disease, he is hospitalised and there is no complaint about shortage or non-availability of medicines-Held: Violation of S. 103 Cr.P.C. cannot be taken into consideration at bail stage-Held Further: Matter does not fall within ambit of further inquiry-Bail refused. [Pp. 317, 318, & 319] C, F, G, I & J PLD 1991 SC 412 and PLD 1988 SC 621 relied, \ ii) Bail- Ailment as ground of grant of bailIt is not essential that ailment should be of an alarming nature which may endanger life of patient but initial requirement is satisfaction of the court. [P. 319] I (iii) Bail- -Innocence or guilt at bail stage-Question of innocence or guilt cannot be decided at bail stage and no verdict of innocence be given without recording of evidence. [P. 317] A (iv) Criminal Procedure Code, 1898 (V of 1898)- S. 154-FIR-It is not necessary that each and eveiy detail must be incorporated in FIR which is a simple device to set law in motion. [P. 317] B (v) Words and Pharases-- Possession-Meaning of-Possession does not mean "Physical Possession"- It must be interpreted in its broader sense, and apart from physical possession must also mean ownership of and control over, movable property concerned-Possession also means constructive possession and simultaneously possession can be physical or actual as well as interpretive. [P. 318] D (vi) Words-Explanation of-- Possession-Visible and invisible-Explanation of--Possession is invisible when possessor stands far away from object which be possesses but is able to prevent encroachment on it if on which they are made, it is similarly invisible when possessor reserves an object for a particular use allows it to remain unutilised till purpose of reservation: It can be said with certainty that possession in its primary sense is visible possibility of exercising control over a thing coupled with intention of doing so. [P. 318] E M/s Qamar Zaman Qureshi and Muhammad Aslam Chisti, Advocates for Petitioner. Mr. Ejaz Yousaf, Additional A.G. for State. Date of hearing : 26.8.1996. judgment Javed Iqbal, J.--This is an application for bail moved on behalf of Captain Dr. Munir Ahmed Khan against whom a case has been registered under Section 13-A of Arms Ordinance, 1965 on the alleged recoveiy of huge quantity of Arms and Ammunition from his possession as a result of raid conducted in pursuant to a secrete information of some agency. Learned Special Judge, Suppression of Terrorist Activities, Balochistan, Quetta, has rejected bail application on 1.8.96. 2. It is mainly contended by Mr. Muhammad Aslam Chishti Advocate that F.I.R. was got lodged with malafide intention and on the ba^is of enmity and the petitioner who is having an unblemished record of his services is not involved in the alleged offences. It is next contended that the alleged recovery of boxes containing Arms and Ammunition were effected from a house situated at 10-B Model Town, Quetta, belonging to one Khawaja Ajmal Ahsan and the same were not in possession of the accused/applicant, hence he cannot be held responsible for the items contained in the boxes. It is further contended that the matter falls within the ambit of further enquiry as a Cheque Book of National Bank of Pakistan, Civil Secretariat Branch, Quetta pertaining to Account No. 3068 was also allegedly recovered from the boxes but on the contrary a Cheque was got encashed on 23/24-6-1996 from the Bank, meaning thereby that Cheque Book was in possession of the accused/applicant and it further clarifies the false involvement of the accused/applicant in a concocted case. It is also urged that Khawaja Ajmal Ahsan from whose house the alleged recoveiy was effected should have been made co-accused instead of prosecution witness. It is argued that no case is made out under Section 13-E of Arms Ordinance, and on this score alone, the accused/applicant deserves concession of bail, and moreso, Section 13-A of Pakistan Arms Ordinance, 1965 is not applicable as recoveiy was not effect from exclusive possession of the accused/applicant. It is further argued that no private witness could be associated and search was conducted in violation of the Provisions as contained in Section 103 Cr.P.C. The ground of ailment was also taken. In order to substantiate his contentions refLrer.ce was made to 1992 P.L.J. 1748 -t N.L.R. 1987 Crl. C. 743 f P.L.I). 19G7 Peshawar 53 + P.L.D. 1995 S.C. 34. 3. Chaudhary Ejaz Yousaf, Addl. Advocate General appeared on behalf of State and strenuously controverted the position as canvassed by Mr. Muhammad Aslam Chishti Advocate, and contended that sufficient incriminating material is available connecting.the accused/applicant with the commission of alleged offences. It is next contended that raid was conducted in presence as Magistrate and hence the question of violation of provisions as contained in Section 103 Cr.P.C. does not arise. It is further contended that accused/applicant has admitted in presence of Magistrate regarding ownership of boxes from where personal belongings were also recovered and the said admission can be treated as extra judicial confession. He has relied on the statements of Khawaja Ajmal Ahsan and Mr. Zulfiqar Durrani Magistrate First Class, Quetta, by whom the accused/applicant has been implicated fully. 4. We have carefully examined the respective contentions as adduced on behalf of the accused/applicant and for State in the light of relevant Provisions of law and available record. We have thoroughly perused the order dated 1.8.96 passed by learned Special Judge, Suppression of Terrorist Activities, Balochistan, Quetta, rejecting the bail application of accused/applicant. Let we make it clear at the out set that question of guilt or innocence cannot be decided at bail stage and no verdict of innocence be given without recording of evidence, which is yet to be recorded. We have not been able to persuade ourselves to agree with the main contention of Mr. Muhammad Aslam Chishti Advocate that case was got lodged with malafide intention as this plea could be taken during trial and may be considered by the trial Court as may be deemed fit and proper in the light of evidence. It is an admitted feature of the case that no mention was made about the keys of the boxes in F.I.R. but it cannot be concluded that it was so done with malafide intentions as it is well settled by now that it is not essential that each and every detail must be incorporated in FIR which is a simple device to set the law in motion. Let we make it clear at this juncture that while considering this bail application we are not required to assess the entire prosecution evidence in depth and only a tentative assessment is required to be made. The fine technicalities such as violation of Provisions as contained in Section 103 Cr.P.C., association of Khawaja Ajmal Ahsan as prosecution witness and non-mentioning of the keys in F.I.R., cannot be discussed at this stage as it would be too pre-mature to decide such matters. In our view it is for the trial Court to examine all the above mentioned pleas in light of evidence which would be recorded in due course of time. It transpires from scrutiny of record hat sufficient incriminating material has come on record to connect the accused/applicant with the commission of alleged offences. In this regard the statements of Khawaja Ajmal Ahsan and Zulfiqar Durrani Magistrate First Class Quetta, can be referred by whom the accused/applicant has been implicated in a categoric manner and it can be inferred safely that reasonable grounds exists to believe that aprima facie case is made out against the accused/applicant. Mr. Muhammad Aslam Chishti Advocate has urged with vehemence that recovery could not be effected from possession of accused/applicant as such, he deserves bail on this score alone, but the said contention being devoid of merit cannot be considered for the reasons that possession does not mean "physical possession". "It must be interpreted in its broadest sense, and apart from physical possession must also mean the ownership of and control over, the movable property concerned." (P.L.D. 1954 Bal. 70). It hardly needs any [elaboration that possession also means constructive possession and simultaneously "possession can be physical or actual as well interprative, because it can be visible as well as invisible. It is invisible when the possessor stands far away from the object which he possesses but is able to prevent encroachment on it, if an when they are made, it is similarly invisible when the possessor reserves an object for a particular use and allows it to remain unutilised till the purpose of the reservation." (P.L.D, 1969 Karachi 622). It can be said with certainty that the possession in its primary sense is the visible possibility of exercising control over a thing coupled with the intention of doing so. It is pertinent to mention here that besides the admission of accused before the Magistrate regarding the ownership of the boxes from where huge quantity of Arms and Ammunitions were recovered, personal belongings such as introduction cards, personal diaries, file-cover containing personal papers and cloths were also recovered hence the interpretation of possession as made by Mr. Muhammad Aslam Chishti Advocate would not render any assistance to the case of accused/applicant. 5. There is no cavil to the proposition that the Court does not have to embark on a detailed factual enquiry but only to see if reasonable grounds exist to connect the accused/applicant with the commission of alleged offences. At bail stage Court has not to give any finding regarding merits of the case and have to take prosecution case on its face value. (1985 P.Cr.L.J. 1315 + N.L.R. 1981 Crl. C. 116 + 1974 P.Cr.L.J. Note-85 (Karachi) + 1986 P.Cr.L.J. 2871 + P.L.D. 1968 S.C. 349). In so far as the concept of further enquiry is concerned that can be invoked in eveiy case and as such, this element itself is not sufficient for granting bail under Section 497 (2) Cr.P.C. Even otherwise the matter does not fall within the ambit of further enquiry in view of sufficient incriminating material which has been collected against the accused/applicant of the including F.I.R., which was got lodged with promptitude and a specific role has been assigned to accused/applicant. P.L.D. 1991 S.C. 142 + P.L.D. 1988 S.C. 621 can be referred in this regard. 6. We have also focused our attention on the point of ailment. It is well settled by now that for grant of bail in pursuance of Provisions as contained in second Proviso of Section 497 Cr.P.C. it is not essential that the ailment should be an alarming nature which may endanger the life of patient, but the initial requirement is the satisfaction of Court. Moreover, 'the circumstances of the case and their cumulative effect together with the seriousness of the offences, the severity of punishment, the likelihood of the accused absconding or tampering with the witnesses has to be considered alongwith the nature and seriousness of the sickness together with the desirability of detention in jail by reason of availability or otherwise of necessary medical treatment and amenities have to be borne in mind before a person is granted bail when he is facing capital charge. It is not every kind of sickness or ailment which considered in isolation would entitle an accused to bail." (1979 P.Cr.LJ. Karachi 908). The accused/applicant is not suffering from uncurable disease subject to the availability of relevant medicines and pre-cautionary measures. The accused presently is in Civil Hospital Quetta, and there is no complaint about the shortage or non-availability of 1 medicines. In our view all that the accused/applicant needs is proper \ treatment irrespective of the fact whether he is in jail or at bail. In such view of the matter when special care is being taken as accused was shifted immediately from jail to Civil Hospital and proper care is being taken, we are, not inclined to accept this application as sufficient incriminating matter has come on record involving the accused/applicant in the commission of alleged offences. We are deliberately with holding our comments on the merits of the case, lest it may prejudice the case of any of the parties. 7. We have also focused our attention that Section 13-A of Arms Ordinance, 1965, is not applicable and it should be read as 13-E of Arms Ordinance, 1965. As mentioned earlier the factum of possession is not only confined to physical possession as it would be too pre-mature to substitute Section 13-A with that of 13-E of Arms Ordinance, 1965 which otherwise is not possible. Let this aspect of the matter be decided by learned trial Court. The encashment of Cheque is no ground to discard the rest of the incriminating material which has been collected against the accused/applicant. 8. Viewed in the perspective of the foregoing discourse, we have no hesitation in holding that a prima facie a case is made but against the a cused/applicant, and therefore, we are, not inclined to accept the pplication which is rejected accordingly. All the observations made hereinabove are tentative in nature and as such it should not influence the trial court while deciding the case. (MAA) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 320 Present: raja muhammad khurshid, J. ATTAUR REHMAN-Petitioner versus THE STATE etc.-Respondents Criminal Misc. No, 180/Q/96, dismissed on 13.6.1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- S. 561-Pakistan Penal Code, 1860 (XLV of 1860) S. 406/468/471/420- Invocation of inherent powers of High Court for quashment of proceedings-Contention, Petitioner was signatory to document as witness thereof and not a beneficiary of alleged fraudulent transaction- Matter was of civil nature and both courts below has erroneously dismissed petition under section 249-A and revision arising thereof respectivelyHeld: Record showing dismissal of a writ petition which fact has been suppressed in present petition-Evidence collected by Investigating Agency is yet to examined-It cannot readily be said that matter was of civil natureDeeper appreciation about merits of civil litigation cannot be gone into less relevant material comes on record- Dismissal of application under section 249-A Cr. P.C. by trial court, being pre-nature, would lead to a strong impression that prosecution has a good case-Petition dismissed in limine. [P. 322] A,C,D & E (ii) Criminal Procedure Code, 1898 (V of 1898)- -S. 561-A-Pakistan Penal Code, 1860 Ss. 406/468/471/420-Mere fact that certain civil suits are pending qua documents about which forgery and cheating is allegedly committed would not by itself create a ground for quashment of criminal proceedings until and unless it is shown through some evidence that charge against petitioner was groundless or that procedure in courts below would result in miscarriage of justice. [P. 322]B Ch. Muhammadan Sarwar, Advocate for Petitioner. Date of hearing: 13.6.1996. order The petitioner has invoked the inherent power of this court under section 561-A of the Code of Criminal Procedure for the quashment of proceedings in a case pending in the court of learned Magistrate, 1st Class, Model Town, Sub Division, Lahore. 2. The brief facts are that a case under sections 471/406, 468/420 PPC was registered against the petitioner and others for cheating the complainant i.e. respondent No. 2 and his wife Mst. Salma Sultana to deprive them of a Quarter situated in Town Ship. In this respect it is contended that one Muhammadan Yasin i.e. the allottee of the Quarter ntered into an agreement for sale of aforesaid Quarter with Mst. Salma Sultana and further executed a power of attorney in favour of her husband i.e. complainant on 16.9.1975. The allottee had handed over the receipts for the payment of instalments by him from 1969 to 1975 and it was agreed that the rest of the instalments were to be deposited by Mst. Salma Sultana i.e. the proposed vendee. In pursuance of the aforesaid agreement the rest of the instalments were paid by Mst. Salma Sultana and after payment of the last instalment, the vendee applied to the Deputy Director, H & M, Town Ship, Lahore for the transfer of Quarter in her name. A notice was issued in the news paper inviting objections against this transfer whereupon Mst. Rifiat Sultana widow of Riaz Ahmad filed an objection that the documents in favour of Mst. Salma Sultana and the complainant were cancelled vide another document dated 12.4.1984 in favour of Rafia Sultana and her husband Riaz ahmad. The documents were alleged to be forged with the help of the petitioner, who was shown to be the marginal witness in the aforesaid documents. 3. The learned counsel for the petitioner has submitted that the latter was a signatory to the documents as a witness and as such he was neither a beneficiary of the alleged fraudulent transaction nor he had any mens rea to commit the offences of cheating and forgery. In this regard, it was further contended that the effected parties have already gone into civil litigation and some of the cases are pending in respect of the disputed documents, whereas one of the case has already been decided. It was, therefore, urged that the matter was primarily of civil nature and as such the rosecution of the petitioner in the courts below would tantamount to misuse of the process of court of law. Reliance was placed on 1987 SCMR 795. 4. In the above context, it was contended that a petition under section 249-A Cr. P.C. was moved in the court of learned Magistrate, but the same was dismissed as p re-mature vide order dated 5.3.1994. A Revision Petition against, the aforesaid order dated 5.3.1994 came up before Rao Hamid Mukhtar Khan, the learned Additional Sessions Judge, Lahore , who also dismissed the same on 16.5.1996. In this respect it was contended that the order passed by both the courts below was erroneous and therefore, the petitioner has invoked the inherent jurisdiction of this court to undo injustice being done to him. 5. 5. I have considered the foregoing submissions at the Bar. The order of the learned Additional Sessions Judge referred to above shows that a Writ Petition No. 8407/90 was earlier filed in this court for the quashment of FIR No. 108/90 i.e. out of which the present case had arisen. That writ petition was dismissed by my learned brother Falk Sher, J vide his lordships order (dated 20.3.91. However, this fact was not disclosed in the present writ i petition. The learned counsel for the petitioner however, submitted that the dismissal of the previous writ petition was not mentioned because it related to his co-accused and that the petitioner was not a party to it. This is hardly a good ground to suppress the facts which related to the FIR in dispute out of which the present proceedings are continuing. Like-wise the mere fact that certain civil suits are pending qua the documents about which forgery and cheating is allegedly committed would not by itself create a ground for the quashment of criminal proceedings until and unless it is shown through some evidence that the charge against the petitioner was groundless or that the procedure in the courts below would result into mis-carriage of justice. In this context, it may be observed that the writ petition dismissed by my learned brother Falk Sher, J related to the quashment of the present FIR and the investigation conducted in that case led to the prosecution of the present petitioner alongwith his co-accused for which the investigating agency had collected evidence which is yet to be examined at the trial. It cannot be readily said that the matter was purely of civil nature and that there was not mens rea on the pail of the petitioner to commit the offences for which he stands charged in the trial court. The dismissal of the application under section 249-A Cr. P.C would lead to a strong impression that the prosecution has a good case worth of judicial test In such a situation, deeper appreciation about the merits of the civil litigation cannot be gone into until and unless the relevant material is placed on record in the courts below during trial. As such it will be mis-conceived to say that the petitioner will be victimized due to the abuse of the process of court or that it will lead to mis-carriage of justice if the trial is allowed to be proceeded under the normal procedure of criminal law in the courts below. 6. The petition being meritless is dismissed in limine. Crl. Misc. No. 1/96 Crl. Misc. No. 2/96 Since the main petition has been dismissed in limine, these applications are also disposed of. (M.A.A.) Petition dismissed in limine.
PLJ 1997 Cr PLJ 1997 Cr. C. (Kar.) 323 Present: syed deedar hussain shah, J, MUHAMMAD AYUB--Petitioner versus THE STATE-Respondent Special Criminal Bail Application No. 5/1996, decided on 8.10.1996. Bail- S. 497 Cr.P.C.-Customs Act, 1969, Section 2(S) read with Sections 158(l)(8)/178-Allegations that applicant an Employee of Airport Security Force, played an instrumental role in getting clear at customs counter a foreign lady passenger from whom 7 K.G. Heroin was allegedly recovered-Held: Name of applicant is entioned in F.I.R.During investigation his involvement is conspicuously transpired-Pn'/na facia applicant has acted in furtherance of common intention-Plea that applicant acted under orders of his superiors is not tenable as he was supposed to carry out legal ordersInterim challan has been submitted in court-Evidence is yet to be recorded-Possibility of tempering with prosecution evidence, after getting bail, cannot be ruled out-Bail declined. [Pp. 327 & 328] A,B,C & D M/s. Sohail Muzaffar, Ilamdin Khattak and Raja Ali Asghar, Advocates for Applicants. Mr. Muhammad Roshan Essani, D.A.G. for State. Date of hearing: 8.10.1996. order 1. I intend to dispose of these bail applications by this common order as the facts and case law involved are same and common. 2. Brief facts of the case are that on 2-6-1996 S.H. Mohtarim, Preventive Officer, Custom House, Karachi, lodged FIR No. P-224/96-JTC, stating therein that while performing his duty at the International Departure Hall, Jinnah Terminal Complex, Karachi, on the intervening night of lst/2nd June, 1996 and attending to the outgoing passengers of PIA Flight No. PK-743 scheduled for Nairobi, a lady passenger of Kenyan nationality identified as Mrs. Fatima Khan Muhammad, accompanied by a ASF Guard namely Abdul Qayyum, appeared at the counter. Abdul Qayyum asked the complainant that the lady passenger is a recommendee of ASF Sub-Inspector Khalid and that she be facilitated as desired. The complainant suspected the lady passenger and summoned two witnesses namely Mr. Hamid Hussain and Abdul Hafeez. The baggage of the lady passenger was comprising of two suitcases of "Eminent" brand. Before examination of the baggage she was asked whether she had any contraband in her baggage, to which she denied. Consequently the suit-cases were examined in presence of the above-mentioned mashirs and apparently they were found to contain PWA and border laces. The ASF Guard Abdul Qayyum intervened and stated that the suit-cases contained only the articles found therein, but the complainant was not satisfied. Consequently he wrapped open the upper and bottom portion of the suitcases, which yeilded the recovery of 7 k.g. of heroin of Off-white colour stuffed in polythene packets. The heroin, suit-cases and packing material including the travelling and miscellaneous documents were seized under the mashirnama prepared on the wardat. After lodging of the FIR, investigation was carried out and it was found that ASF Guard Abdul Qayyum was assigned the job of getting the lady passenger cleared from Customs by two ASF officials namely Muhammad Ayub and Khalid Sub-Inspector. Mst. Fatima Khan Muhammad and ASF Guard' Abdul Qayyum were arrested and were also served with notice under Section 171 of the Customs Act, 1969. 3. During the investigation Mst. Fatima Khan Muhammad and Abdul Qayyum, ASF Guard were extensively examined and it was found that the lady passenger had arrived at Karachi Airport accompanied by a person who would be identified by the lady if shown. ASF Guard Abdul Qayyum has re-interated that he had been detailed for clearance of the lady passenger from Customs by Muhammad Ayub at the behest of Khalid Hayat Sumbal. During investigations involvement of ASF staff had conspicuously transpired. Under the circumstances ASF staff namely Muhammad Ayub Inspector, Khalid Hayat Sumbal Sub-Inspector, Hafeez, Assistant Security Officer and Javed Guard were summoned in I&P Branch for investigation, in which it was revealed that in fact one Shafmllah Khan Niazi, Inspector, ASF, had phoned Muhammad Ayub, Inspector, ASF, Duty Officer Control Room on 1st June, 1996, and asked Ayub that the lady passenger Fatima Khan Muhammad had to be cleared from Customs. Shafmllah Khan Niazi and also passed on a visiting card to Khalid Hayat Sumbal, which was delivered to Muhammad Ayub. According to the investigations it was further revealed that the modus operandi as contrived had been resorted to and as per pre meditated programme Khalid Hayat Sumbal contacted Muhammad Ayub in his control room and passed on the visiting card of Shaflullah Khan Niazi with the message inscribed thereon "INSP. AYUB SAHIB-PLEASE HELP HIM THANKS". On receipt of the visiting card Muhammad Ayub detailed ASF Guard Abdul Qayyum, who eventually went to the Customs counter to seek clearance of lady passenger Fatima Khan Muhammad. According to the investigation, prior to approaching ASF Inspector Muhammad Ayub, Khalid Hayat Sumbal met the lady accused outside the International Departure and then re-appeared at the scene and informed the lady passenger that Abdul Qayyum ASF Guard would do the needful with regard to her clearance been assigned to the applicant; that the applicant is innocent and victim of circumstances; that provisions of Section 2(s) of the Customs Act, 1969 read with Section 178 of the said Act, are not applicable as there is no allegation of abetment; and that the case of the applicant requires further enquiry. contended that name of Shafiullah Khan Niazi does not transpire in the FIR; that no specific role has been assigned to the accused/applicant; that the alleged visiting card was issued to Muhammad Ayub, not to Shafiullah Khan Niazij that no evidence is available with the prosecution to prove the case against the applicant. 8. Mr. Raja All Asghar for applicant Abdul Qayyum has contended, passenger under the orders of his superiors; that no overt act has been assigned to him; that challan has been submitted by the prosecution and the applicant is no more required for further enquiiy; and that the case of the applicant requires further enquiiy. 9. I have also heard Mr. Muhammad Roshan Essani, learned D.A.G., who has opposed these bail applications and has contended that names of accused/applicants Muhammad Ayub and Abdul Qayyum are mentioned in the FIR; that Mst. Fatima (Fatima Khan Muhammad), a Keynian national, was to be get cleared by accused Abdul Qayyum from the customs counter, which he did, but the Customs Authorities on suspicion searched the suit-cases belonging to lady passenger Mst. Fatima Khan Muhammad in presence of mashirs and recovered 7 k.g. heroin powder; that during the investigation the prosecution has collected sufficient evidence against the accused/applicants was appear to be members of drug trafficking mafia and that they had helped Mst. Fatima Khan Muhammad for smuggling the heroin under their shelter; that act of the accused/applicants to support a foreign national, having no relation or concern with her, prima facie, supports the case of the prosecution about their involvement in the commission of the crime; that the prosecution has also recovered the visiting card of accused/applicant Shafiullah Khan Niazi, with the message inscribed thereon "Insp. Ayub Sahib-Please help him-Thanks"; that all the accused had played vital role in the commission of the crime; that the accused/applicants may temper with the prosecution evidence if they are released on bail. The learned D.A.G. has referred the following authorities :-- 1. SCMR 1995 , 1249-Case of Ch. Shujat Hussain vs. The State. His Lordship Mr. Saleem Akhtar, J. of the Hon'ble Supreme Court in this case has laid down as follows : "In case of bail the Court is not required to probs into the matter but has to make a tentative assessment of the material produced to ascertain whether there are reasonable grounds to believe that the accused has committed the crime." 2. SCMR 1996, 555-Case of Abdul Hayee Vs. The State His Lordship Mr. Justice Raja Afrasaib Khan of the Hon'ble Supreme Court in this case has observed as follows :- "Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion one way or the other on merits of the case". 9. I have gone through the material placed with the case and have also perused the case law, referred by the learned D.A.G. All the accused/applicants are employees of Airport Security Force, whose primary duly is to maintain security of the airports, to provide security to the crews and staff of the airport, but the role prayed by the accused/applicant, as revealed during the investigation, is quite different and, prima facie, supports the case of the prosecution. Contention of the learned counsel for the applicants that no specific role has been assigned to any of the applicants, is devoid of any substance. A person can speak lie but circumstances can never speak lie. Here in this case the Customs Authorities on suspicion subjected two suit-cases belonging to Mst. Fatima Khan Muhammad to close scrutiny/checking, which resulted in the recovery of 8 k.g. heroin powder. The accused/applicant Abdul Qayyum had accompanied Mst. Fatima Khan Muhammad to the counter of customs at the behest of Muhammad Ayub, who was asked by accused Shafiullah Khan Niazi on phone that the lady passenger had to be cleared from Customs. Detailed analysis of the prosecution case at the stage of bail is not permissible, as held by the superior Courts. Tentative assessment of the evidence at the time of bail is legally to be done. Names of accused/applicants Muhammad Ayub and Abdul Qayyum are mentioned in the FIR; whereas the role prayed by accused Shafiullah Khan Niazi, has been highlighted during the investigation, on which he had been arrested and charge sheeted by the prosecution in the interim charge sheet. Mst. Fatima Khan Muhammad is s Kenyan national and apparently the accused/applicants have no relationship or concern with her. In these circumstances the role played by the accused, supports the version of the prosecution that the accused have acted in furtherance of their common intention of all to get the heroin powder smuggled out of country through Mst. Fatima Khan Muhammad. Apparently accused Shafiullah Khan Niazi is neither relative of lady accused nor he had concern with her, even then he passed on a visiting card to accused Khalid Hayat which had to be delivered to Muhammad Ayub and Khalid Hayat passed on the visiting card to Muhammad Ayub with the message inscribed thereon "Insp. Ayub Sahib-Please help him - Thanks". In these circumstances what kind of help was desired by Shafiullah from Muhammad Ayub through Abdul Qayyum, is not understandable, except to presume that the help so sought for was for clearance of Fatima Khan Muhammad under the shelter of A.S.F. The contention of the learned counsel for the applicants that no overt act has been assigned to any of the applicants or that accused Muhammad Ayub and Abdul Qayyum have acted IB) on the direction/compliance of their superior officers, is not tenable because subordinate officers are supposed to carry out legal orders of their officers. The case has been registered in June, 1996 and interim charge sheet has already been submitted in the Court of law; evidence is yet to be recorded by the trial Court and possibility of tempering with the prosecution evidence, at the hands of the accused/applicants, after getting bail cannot be ruled out. The modus operandi adopted by the accused shows that they are a managed group of smugglers and they had been indulging in this heinous crime for a long time but as the luck would have, this time they could not escape. Drug trafficking now-e-days has taken the shape of dirty business in which young generation of our country is involved in this menace i.e. drug trafficking, has created various social problems for our nation so also given very bad reputation for Pakistan in all around the would. 10. The case law cited by the learned D.A.G. under the circumstances is relevant and helpful to the prosecution. I have given may anxious consideration to the facts and material placed with the case and I most respectfully follow the rule laid down by their Lordships of the Supreme Court, referred hereinabove, and under the circumstances there is no hesitation in my mind to hold that there are reasonable grounds to believe that the accused/applicants are guilty of the offences for which they stood charge sheeted. Resultantly their bail applications are rejected. 11. After hearing the bail applications, by short order I have rejected the same on 3.10.1996. These are the reasons for the same. (M.A.A.) Bail declined.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 329 Present: faqir muhammad khokhar, J. GHAZI KHAN--Petitioner versus THE STATE-Respondent Criminal Misc. No. 6041-B/96, heard on 29-12-1996. Bail-Pre-arrest- -S. 498 Cr.P.C-Penal Code, 1860 (XLV of 1860) Ss. 302/324/109/148 and 149--Pre-arrest bail-Grant of--Grounds: No active role attributed to petitioner except his presence on spot-Petitioner, a Govt. servant-Coaccused assigned positive role but released on bail-Petitioner declared innocent by two investigating agencies-Rule of consistency, held, to be followed in such like cases-Case, one of further inquiry-Petitioner, a Government servant and, it will bring humiliation to him if he is sent to jail and then enlarged on bail following rule of consistency-Petitioner admitted to bail. [P. 330] A,B & C 1986 S.C.M.R. 1380 ref. Ch. Faryad A/i, Advocate for the Petitioner. Mr. Jaued Iqbal Awan, AAG, Muhammad Tariq, A.S.I. Date of hearing: 29.12.1996. order The petitioner seeks pre-arrest bail in a case F.I.R. No. 131/94 dated 12.2.1994 under Section 302/324/109/148 and 149 PPC registered at police station Tandalianwala, District Faisalabad against the petitioner and other 25 co-accused on the complaint of one Ghulam Murtaza. The earlier bail petitions of the petitioner before the learned Sessions Court were dismissed for non-prosecution. 2. It is stated by the learned counsel for petitioner that no active role has been assigned to the petition in the F.I.R. except that of his presence at the place of occurrence. It is further argued that the petitioner is government servant and shall suffer irreparable loss and humiliation if the pre-arrest bail is refused inspite of malicious prosecution by the complainant party. It is further submitted that all the other co-accused who had been assigned a positive role have already been enlarged on bail and no useful purpose would be served in sending the petitioner behind the bars in the circumstances of the case. It is further asserted that the petitioner had been declared innocent by the local police as well as the Range Crime Police. The learned counsel has relied on a judgment reported in 1986 S.C.M.R. 1380 to show that if the petitioner was entitled to bail after arrest on the ground of his co-accused already on bail, there was no reason to deny him pre-arrest bail, if there was no special circumstance for such refusal. 3. The learned Assistant Advocate General and the Investigating Officer present in the Court with record have not been able to controvert the position taken by the learned counsel for petitioner. I find that the coaccused of petitioner, who had been assigned an active role have already been released on bail and no useful purpose would be served at this stage by isending the petitioner to Jail. The rule of consistency is to be followed in . I such like cases. The petitioner has been found innocent by the two J Investigating Officers. In my prima facie view there are no reasonable grounds that the petitioner is guilty of the offence alleged against him and that there are sufficient grounds for further inquiiy in the matter. The petitioner is a government servant serving in the police department and it will bring humiliation to him if he is sent to Jail and then enlarged on bail following the rule of consistency. I, therefore, admit the petitioner to bail in the sum of Rs. 30,000/- with one surety in the like amount to the satisfaction of the trial court. (Aq.By.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 330 Present: Miss. tallatyaqub, J. SHARIFAN BIBI-Applicant versus MUHAMMAD LATIF A.S.I.-Respondent Criminal Misc. No. 51-H/96, decided on 10.4.1996. Criminal Procedure Code, 1898 (V of 1898)- S. 491--Recov'ery of detenu-D.S.P. of area and A.S.I. informing court that a case under Articles 3/4 of Prohibition (Enforcement of Hadd) Order IV, 1979 stand registered against alleged detenu who is not available-- Another D.S.P. deputed by High Court after investigation informed Court that a false case has been registered against detenu-Interim bail granted to detenu was confirmed-f urther held, A.S.I. instituting false case is stigma to police force and deserve severe punishment-S.P. concerned was directed to register a case under law against A.S.I, and get investigation by an honest gazetted police officer-Police official attesting false recover memo was also held liable for departmental action. [P. 332] A,B,C,D & E Kh. Abdul Sami, Advocate for Petitioner. Mr. Umar Farooq, D.S.P. C.I.A. with Police File. Date of hearing : 10.4.1996. order The facts relevant for the disposal of this petition are that Mst. Sharifan Bibi filed Crl. M. 8-H/96, for the recovery of Mansha, Inayat Bibi, Habib, Muhammad Khalil and Aslara from the illegal detention of Muhammad Latif ASI of Police Station Sadar. A bailiff of this Court recovery Muhammad Aslam, Muhammad Khalil and Muhammad Mansha whereas Mst. Inayat Bibi and Habib appeared in this Court of their own. The S.H.O. made statement that the detenus are not required in any case. Resultantly, the petition was disposed of. Later on Mst. Sharifan Bibi also filed the present petition for the recovery of Amjad from the illegal detention of said ASI Muhammad Latif. On 21.1.1996 the ASI stated that the detenu was required in connection with F.I.R. No. 22/96 under Article 3/4 of Prohibition (Enforcement of Hadd) Order 4 of 1979 and that his whereabouts were not known. However, the D.P.S. City Sheikhupura was directed to produce the alleged detenu. The D.S.P. also stated that the said detenu is required in the aforesaid case but he is not available. 2. After going through the facts as contained in F.I.R. No. 22/96 I was not satisfied that the ASI had prepared a genuine document, hence it was directed that a gazetted officer other than Muhammad Sharif D.S.P. should investigate the case and submit a detailed report. Meanwhile the detenu was admitted to ad-interim bail. To day the DSP has appeared and he has stated that after through inquiry he has come to the conclusion that the ASI raised the house of Mst. Inayat Bibi and recovered three kilo heroin from there but Amjad detenu was not there. However, the ASI negotiated with Mst. Inayat Bibi and agreed to register a case against the detenu instead of the lady and as the alleged dentenu was not produced before him as agreed to, therefore the ASI falsely registered the case against Amjad. He stated that Amjad is not in any way involved in this case and that the recovery of twenty-six grams of heroin shown from his person is also planted on him. The F.I.R. is stated to be a cock and bull story on the part of the ASI. 3. Learned counsel for the petitioner submitted that a false case has been registered against Amjad detenu so the said F.I.R. may be quashed as the facts contained therein are false and frivolous and has been involved malafidely by the ASI. The D.S.P. frankly conceded that the case is a false one registered by the ASI with ulterior motive, against Amjad. 4. After hearing the learned counsel for the petitioner and the D.S.P, I have come to the conclusion that ASI Muhammad Latif has registered a false case against Amjad who is not in any way connected with it. Even the recovery of twenty-six purls from his possession is a plantation on the detenu. On account of the filing of earlier habeas-corpus petition there was hostility between the petitioner and the police officer Mirza Latif Baig, hence he was not required to conduct the alleged raid and instead should have informed the D.S.P. of the Circle to depute some other officer for the said purpose of raid. Even if it is assumed that there was necessity to do so by him., even then he should not have investigated the case and requested his immediate officer to transfer the investigation to some other officer. 5. In view of the above position, I convert this petition into a bail petition and confirm the ad-interim bail granted to Amjad detenu. However, the request of the learned counsel for quashment of F.I.R. is misconceived as this relief cannot be granted in these summary proceedings. Anyhow, the DSP, in view of his finding, is directed to prepare a discharge report with respect to Amjad detenu. 6. At this juncture I cannot lose sight of the fact that the ASI belongs to law and order enforcing agency. It is his duty to protect the life, liberty and honour of a citizen of Pakistan but instead he is involved in a patchy transaction to sqeeze the money from the poor citizens of Pakistan. The retention of such police officer in the police department is a stigma to the police force and he is deserved to be dealt with severely. 7. The DSP stated that one year approved service of the ASI has been forefeited. This punishment on the face of gravity of the offence committed by the ASI is nothing but a farce to the law. The Seni r Superintendent of Police Sheikhupura is directed to register a case against the ASI and get the same investigation by an honest gazetted police officer. Even, Muhammad Saddique Head-Constable who attested a false and fake recover is also liable to department action. The Senior Superintendent of Police Sheikhupura would also consider the desirability of taking department action against him. 8. The action taken in the matter and result of case registered against the ASI should be intimated to the Deputy Registrar (J) of this Court within three months positively. 9. With this observation, the petition stands disposed of. (M.A.A.) Petition stands dispose of.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 333 [Multan Bench] Present: syed zahid hussain bokhari, J. MUHAMMAD RAFIQUE-Petitioner versus THE STATE-Respondent Criminal Misc. No. 1726/B/1995, decided on 16.11.1995. (i) Bail- -S. 497(2) Cr.P.C.-Offence of Zina (Enforcement of Hadood) Ordinance, 1979, Section 12 read with Section 377 Pakistan Penal Code, 1860-Bail-- Being found innocent during investigation, was got discharged by police- On fresh investigation was found guilty and was arrested-Held: Investigating Officers are not unanimous about guilt of petitioner and principle of divergence of opinion is applicable-After discharge of accused/petitioner by competent authority police has not collected fresh material whatsoever-Both parties have grievances against doctors and they are not unanimous-Anal Swabs were not found stained with semen--No history of passing of stool-Petitioner is aged man-Mere delivery of copies of statements under section 161 Cr. P.C. would not be sufficient to reject bail-Reasonable grounds do not exist to believe that petitioner has committed non-bailable offence-Case falls within purview of section 497(2) Cr. P.C.-Bail allowed in circumstances. [Pp. 335 & 336] A,B,C & G (iii) Ipse dixit of police-- Opinion of Police-Opinion of Police declaring accused as innocent being against prosecution creates a doubt which should go in favour of accused at bail stage. [P. 336] D 1984 SCMR 429 and 521 rel. (ii) Bail- -Once court comes to conclusion that it is a case of further inquiry, accused has a right to be released on bail irrespective of fact that trial is in sight [P. 336] E (iv) Practice and procedure-- Practice of Court would not be preferred against enforcement of a right. [P. 336] F Mian Abdul Rashid and Chaudhry Muhammad Shaflq, Advocates for Petitioner. Mr. Abdul Ghaffar, Advocate for Complaint. Mr. Ayaz Ahmad Ch., Advocate for State. Date of hearing : 16.11.1995. order Allowed and disposed of. Petitioner Muhammad Rafiq 50, through this petition has sought after arrest bail in a case registered against him vide FIR No. 197/95 dated 21-6-1995 under section 12, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 read with section 377 at P.S. Farid Town, Sahiwal. 2. Complainant Muhammad Qaisar 9/10, a student of 6th Class, has alleged in the FIR that he was sleeping in the house of his maternal uncle situated in Chak No. 85/6-R, during the night of 21-6-1995 at about 1.30 a.m., awoke up by a knock at the door. He opened the door and saw that Muhammad Rafiq petitioner a neighbourer, who was known to the complainant, enquired about his maternal uncle Abdur Rehman and the complainant replied that he was sleeping in the house of Maser Muhammad Ashraf. The complainant was about to close the door when all of a student Muhammad Rafiq petitioner brought out a pistol and threatened him to kill him in case he makes noise who forcible took away the complaintant in Suzuki Car No. 7258-SLG and was taken to a vacant house of the petitioner situated at Noor Shah Road. It is alleged that the petitioner forcibly committed sodomy with the complainant. He felt severed pain. Muhammad Arshad and Muhammad Ramzan maternal uncle of the complaintant reached at the spot and saw the occurrence and tried to apprehended the petitioner, but they could not succeed on account of threat of the petitioner. The matter was reported to the police on the same day at 5.50 a.m. 3. The petitioner was arrested on 22-6-1995. After thorough investigation the petitioner was found innocent and his discharge report was prepared which was accepted by the learned Magistrate who passed the discharge order on 23-7-1995. Consequently he was released from the jail. On 3-10-1995, the petitioner was arrested by the police and fresh investigation was conducted. He was found guilty by Mr. Pirzada Shah Muhammad DSP, Chichawatni. The learned Addl. Sessions Judge had rejected after arrest bail application of the petitioner vide his order dated 16- 7-1995. Hence this petition was moved by the petitioner. 4. Learned counsel for the petitioner contends that primarily the investigation was conducted by Arshad All ASI and thereafter by Muhammad Ashraf SI who found the case against the petitioner as doubtful. Then Muhammad Ghani Khatak, Inspector SHO investigated the case and found the petitioner guilty. Thereafter the investigation was conducted by DSP City, Ali Ahmad Dogar who declared the petitioner innocent and found the case false. Again DSP CIA investigated the case by the orders of DIG, Multan. He also declared the petitioner as innocent. Then as a result of the investigation, discharge report was prepared and the petitioner was ischarged by a learned Magistrate vide his order dated 23-7-1995. The last investigation was conducted by Mr. Pirzada Shah Muhammad, DSP, Chichawatni who found the petitioner guilty and arrested the petitioner and submitted the challan against the petitioner to the court. According to the learned counsel there are different opinions of different police officers for and against the petitioner. It is also argued that medical report does not show that at the time of examination there was any bleeding on the person of victim and the report of anal swab is negative. The clothes of the victim were also not taken into possession by the Medical Officer or the investigating officer. The swabs were not found stained with semens, according to the Chemical Examiner report. It is vehemently argued that petitioner is an aged married man having no such previous record. He has been made a victim of political rivalry. He has contested number of elections and the complainant and his family have relations with his political opponents, it is further contended that the facts of the case require some amount of further enquiry to connect the petitioner with the commission of offence. 5. Learned counsel appearing on behalf of the State and the complainant vehemently opposed the grant of bail to the petitioner had have contended that the petitioner was found guilty by two investigating officers and the result of final investigation is that he has been challaned and copies f the statements recorded under section 161 Cr. P.C. have been delivered to the petitioner to face trial; that none would like to ruin his future and suffer agony and shame in the society by levelling such a accusation. It is further contended that the absence of semens in the anal swab do not make a case doubtful because the victim might have passed the stools before the examination and that the police was competent to investigate the case after passing of the discharge order by the Magistrate. Warrants of arrest of the petitioner were obtained by the investigating officer on 2-10-1995 and the petitioner was arrested by the police on 3-10-1995. It is further contended that ipsit dexit of the police is not binding upon the court and the petitioner is not entitled to the grant of bail in these circumstances of the case. 6. I have heard the learned counsel for the parties at length and have gone through the record carefully. It is an admitted fact that the petitioner was got discharged by the police. The complainant filed a revision against the discharge order passed by the learned Magistrate but withdrew the same on 4-10-1995, hence the discharge order is in the field. The petitioner was found innocent by a number of investigating officers and few of them had also found him guilty. The investigating officers are not unanimous about the guilt of the petitioner and principle of divergence of opinion is applicable in this case. After passing of discharge order by the competent authority, the police has not collected any fresh material whatsoever. According to the police record the victim and admitted in the hospital who was operated upon for the complications created by the act of sodomy. The learned counsel for the complainant has strong criticism about the conduct of the Medical Officer, DHQ Hospital , Sahiwal who initially examined Muhammad Qaiser victim and on the other hand the petitioner's counsel has stated a long tale about the conduct of the doctor who has operated upon the victim. Learned counsel for the petitioner contends that Dr. Nasir Mahmood has found the victim habitual and in the opinion of the doctor act of sodomy in the present case was doubtful. Dr. Sohail who operated upon the victim is alleged to be inimical towards the petitioner and according to the learned counsel for the petitioner his reports are fake. So both the parties have their own grievances against the doctors. The fact remains that the two doctors are not unanimous. Chemical Examiner has found the anal swab were not stained with semens and there is no evidence available on record that the complainant had passed stools prior to his medical examination. The petitioner is an agecl man, is in the lock up and no more required for further investigation. ?. The Hon'ble Supreme Court has held in 1984 SCMR 429 and 521 that the opinion of the police declaring the petitioner as innocent being against prosecution creates a doubt which should go in favour of the petitioner at the stage of bail. Mere delivery of the copies under sec. 161 Cr. P.C. to the petitioner would not be sufficient to reject the bail application because, once the court comes to the conclusion that it is a case of further inquiry, the petitioner has a right to be released on bail irrespective of the fact that the trial is in sight. The practice of the Court would not be preferred against the enforcement of a right. 8. For what has been stated above, I hold that there do not exists reasonable ground to believe that the petitioner has committed a nonbailable offence. His case falls within the purview of section 497(2) Cr.P.C. and Consequently he is allowed bail provided the furnishes bail bond in the sum of Rs. 1,00,GOQ/- with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Sahiwal. 9. All these observations- are tentative in nature and would not have any affect at the stage of trial. 10. Learned counsel for the complainant submits that the trial court be directed to expedite the trial to which the learned counsel for the petitioner has no objection. Therefore, 1 direct that the trial court shall onclude the trial within tnree months from the receipt of this order by him. (A.P) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 337 Present: S.M. ZUBAIR, J. ABDUL JABBAR-Appellant/Petitioner versus THE STATE--Respondent Cr. Misc. No. 5714-B/96, heard on 23.12.96. (i) Criminal Procedure Code, 1898 (V of 1898)- -S. 426 (1-A) and Law Reforms Ordinance, 1972-Suspension of sentence- Petitioner, convicted on 29.10.96 and lower Appellate Court declined to suspend his sentence on 4.11.96, case, is therefore, not covered by subsec. (1-A) to Sec. 426 Cr.P.C. as amended--In case, appeal is not decided within stipulated period, then, petitioner is to acquire right of suspension of sentence-In view of amendment in law, petitioner, being not remediless, he can refile his bail application on ground of statutory delay in decision of appeal-Petition, being misconceived and incompetent, in view of amendment-Petition dismissed. [P. 338] A Ch. Muzammal Khan, Advocate for Petitioner. Mr. Walayat Umer, Adv. for Respondent. Mohd. Akram S.I. with Record. Date of hearing: 23.12.1996. judgment The petitioner was convicted by a learned Magistrate Section-30, Jaranwala District Faisalabad vide judgment dated 29.10.1996 in a case registered vide FIR No. 215 of 1990 dated 10.4.1990 under sections 307/34 PPC registered at Police Station Jaranwala. He was awarded 2^ years RI with a fine of Rs. 10.000/- as compensation under section 544-A, Cr.P.C. with a direction that it should be given to the injured PW and the benefit of section 832-B, Cr.P.C. was also given. Against his conviction, the petitioner filed an appeal in the Sessions Court and prayed for suspension of his sentence under section 426 Cr.P.C. The learned Additional Sessions Judge, Faisalabad vide his order dated 4.11.1996 declined to suspend his sentence; hence this petition. 2. This petition has been filed under section 426(2) Cr.P.C. on the ground that this Court has the power to suspend the sentence even in a case which is not before this Court in appeal and the appeal is pending in the lower court. 3. Learned counsel for the State assisted by the police officer has opposed this petition and submitted that as the appeal of the petitioner is pending before the learned Additional Sessions Judge who has refused to suspend his sentence, this Court would not exercise its powers under sub section^) to section 426 Cr.P.C. in view of the amendment introduced in sub-section (1-A) of section 426 Cr.P.C. vide Law Reforms Ordinance, 1972 which prescribes the time limit for the suspension of the sentence, if his appeal is not decided within six months. 4. I have heard learned counsel for the parties and have critically examined their respective submissions. Before embarking upon the discussion, it would be advantageous to reproduce sub-section (2) to section 426 Cr.P.C. :- "(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.". 5. A perusal of the above section, no doubt, gives powers to this Court to suspend the sentence in a case in which appeal is pending before the lower appellate Court in suitable cases where there is unconscionable delay in the decision of the appeal, but in view of the amendment mentioned above, this provision has become redundant as the petitioner has acquired a right for the suspension of his sentence, pending decision of the appeal, if his appeal is not decided within the stipulated time, so the petitioner cannot invoke the jurisdiction of this Court under section 426 sub-section(2) Cr.P.C. in view of the amendment mentioned above. 6. In the present case, the petitioner was convicted on 29.10.1996 whereas the lower Appellate Court declined to suspend his sentence on 4.11.1996, the case is, therefore, not covered by sub-section(l-A) to section 426 Cr.P.C. if the appeal of the petitioner is not decided within the stipulated period, then, of course, the petiyoner would acquire right of suspension of his sentence. In view of the amendment in law, the petitioner is not remediless, he can refile his bail application on the ground of statutory delay in the decision of his appeal. This petition being mis-conceived and not competent in view of the amendment, referred above, is dismissed accordingly. (Aq.By.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 339 Present: sharif HUSSAIN BoKHARY, J. HAMID ULLAH KHAN--Petitioner versus THE STATE and another-Respondente Cr. Rev. No. 288/96, heard on 8.12.1996. (i) Criminal Procedure Code, 1898 (V of 1898)- -S. 265-K and Pakistan Penal Code (XLV of 1860) Ss. 302/34/109-- Petition for discharge of accused-Petitioner, recommended to be discharged, no charge could be framed against them and they could not be made to stand trialArgumentNo order of discharge, passed by fllaqa Magistrate on basis of report of police u/s 173 Cr.P.C. Petitioner and his son, found innocent by two different investigating Officers and they were recommended for their discharge~ASJ, concerned, while rejecting applications of petitioner U/S 265-K, Cr.P.C. through impugned orders, held, has not committed any illegality-Petition dismissed. [P. 341] B (ii) Criminal Procedure Code, 1898 (V of 1898)-- S. 161~Statements recorded by police-Evidentiary value of-Statements recorded by police, being not legal and substantive evidence, conviction, cannot be based on same-Such statements, can furnish basis for trial of accused, and for that purpose alone can be utilized by prosecution. [P. 341] A Pir S.A Rashid, Advocate for Petitioner. Mr. Mohd. Aslam Niazi, Advocate for Respondent No. 2. Date of hearing: 8.12.1996. order In this criminal revision petition the order dated 10.9.1996 passed by the learned Additional Sessions Judge, Sargodha, whereby he rejected the application of the petitioner under section 265-K Cr.P.C. and framed the charge against him, has been challenged. 2. Brief facts are that F.I.R. No. 105/93, dated 20.4.1993, under sections 302/34/109 PPG was registered at Police Station City Mianwali against the petitioner and his two sons, namely, Farman Ullah and Mata Ullah on the allegation of murdering Umar Hayat. In the first investigation conducted by the local police, Hamid Ullah, accused/petitioner and his son Mata Ullah were found innocent and their discharge was recommended. However, before the discharge order from the Illaqa Magistrate was obtained the case was reinvestigated by Shaukat Ali, Inspector, who declared all the three accused persons including the petitioner guilty in the case. Accordingly incomplete challan was submitted to the learned Sessions Court. On the application of the petitioner the Inspector General of Police ordered reinvestigation under the supervision of D.I.G. , Sargodha, who in turn got the case reinvestigated under the supervision of S.P. Range Crimes, Sargodha. The petitioner and his son Mata Ullah were again declared innocent. But in another investigation carried by D.S.P. , C.I.A. Mianwali, the three accused were again found guilty. 3. The petitioner filed W.P. No. 15104 of 1994 to challenge the submission of challan against the petitioner and his son Mata Ullah on the plea that they were found innocent during two investigations and were recommended to be discharged. This writ petition was disposed of my me on 15.1.1995 with the following direction:- "Let both the reports of investigations be also placed before the learned trial Court, which shall thereafter, frame the charge and proceed in the case in accordance with law". 4. The trial was transferred to the Court of Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Sargodha, to whom application under section 265-K Cr.P.C. was submitted by the Present petitioner on 9.4.1996 for his own discharge and that of his son, Mata Ullah. This application was resisted by the complainant and the State. The learned trial Court rejected the same vide the impugned order dated 10.9.1996, observing as follows: - "In the present case the accused-petitioner was challaned to Court by the local police. Statements of two witnesses, namely, Ahmad Khan and Muhammad Hayat were recorded by police u/s 161 Cr.P.C. wherein the above mentioned witnesses have levelled the allegations against the accusedpetitioner for abetment. In my considered opinion if the statements of the abovesaid two witnesses are presumed to be true then it cannot be said that prosecution has no evidence against Hamid Ullah accused-petitioner. Resultantly the present petition u/s 265-K Cr.P.C. is being dismissed being devoid of any force". 5. Learned counsel for the petitioner raised two main contentions; one that the petitioner and his son, Mata Ullah, having been exonerated from the charge by two different Investigating Officers and their discharge recommended by them, they could to be made to stand trial; and the second that the statements recorded under section 161 Cr.P.C. being not legal evidence could not form basis for the conviction, therefore, charge could also not be framed on the same evidence. 6. It is the admitted position that the charge was framed on 10.9.1996 by the learned trial Court without having recorded any evidence itself. However, the learned trial Court has referred to the statements of two witnesses, Ahmad Khan and Muhammad Hayat, recorded u/s 161 Cr.P.C. by the police during investigation and concluded that the prosecution could not be said to have no evidence against the applicants. 7. On the point that the statement recorded u/s 161 Cr.P.C. is not substantive evidence and could not be made basis for the conviction, learned counsel for the petitioner relied on the reported judgments in the cases of "Haji Muhammad Versus The State" (P.L.D. 1966 (W.P.) Lahore 344), "Nusratullah Versus The State" (1995 M.L.D. 1635) and "Amir Bux Versus The State"U990 P.Cr. L.J.1765). 8. There is no cavil with the proposition that the statements recorded u/s 161 Cr.P C. by the police is not legal and substantive evidence and conviction cannot be based on the same, yet such statements can furnish basis for trial of the accused and for that purpose alone can be utilized by the prosecution. 9. In support of the contention that the petitioner and his son,' Mata Ullah, having been recommended to be discharged, no charge could not be framed against them and they could not be made to stand trial, learned counsel relied on "Bashir Ahmad Versus Illaqa Magistrate" (P.L.D. 1980 Lahore 81 ), "Syed Hamid Muqeem Bokhary Versus The State" (P.L.D. 1985 Lahore 71 ) and "Abdul Waheed Versus The State" (P.L.D. 1986 Lahore 81). In these three precedent cases the emphasis was on the proposition that once an order of discharge is passed by the Magistrate on the basis of the discharge report of the investigating agency, he or the trial Court lias no urisdiction to summon such persons as accused, unless fresh evidence is brought on record. 10. In the present case no order of discharge was passed by the Illaqa Magistrate on the basis of the report of police under Section 173 Cr.P.C. therefore, the rule laid down in these precedent cases, is not applicable to the present case. However, it is not disputed that by two different Investigating Officers, the petitioner and his son, Mata Ullah, were found innocent and their discharge from the case was recommended. This facts is also recorded in the impugned order in the following words:- "Application for getting Hamid Ullah present petitioner and Mata Ullah accused discharged from the case submitted by SHO Police Station City Mianwali on 4.12.1993. It was forwarded by SDPO on 5.12.1993 at which DSP Legal opined that as the challan against Hamid Ullah accused petitioner and Mata Ullah accused had already been submitted in Court, hence the discharge application was not to be placed before any Court". 11. On the contrary the learned counsel for respondent No. 2 (complainant) has relied on "Rqja Khushbakhtur Rehman Versus The State" (1985 S.C.M.R. 1314) and "Waqarul Haq alias Mithoo Versus The State" (P.L.D. 1988 Lahore 336) in support of the contention that the accused even if discharged by the Magistrate could still be summoned by the learned trial Court to stand the trial. In the case of Raja Khushbakhtur Rehman the Hon'ble Supreme Court held as follows: - "As regards the power of the trial Court to summon the petitioners who had been placed in column No. 2 learned counsel does not deny that the trial Court is possessed of such power. He contends that the trial Court had not taken proper note of the fact that the petitioners had been found guilty neither by the police nor by the Hlaqa Magistrate to whom the case had been referred under Section 202 Cr.P.C. The learned Judge in hes order, dated 3.10.1978 has given reasons for summoning the petitioners. He had perused the record before him. His order summoning the petitioners thus suffers from no legal infirmity". In the case of Waqarul Haq this Court held that:- "Raja Khushbakhtur Rehman's case is, in my opinion, also authority for the view that for summoning an accused person whose name appears in column No. 2 of the challan, it is not necessary for the learned trial Judge to record some evidence". 12. Respectfully following the dictum of the Hon'ble Supreme Court in Raja Khushbakhtur Rehman's case, in my opinion the learned Additional Sessions Judge, Sargodha, while rejecting the application of the petitioner under Section 265-K Cr.P.C. through the impugned order dated 10.9.1996 and framing the charge, had not committed any illegality. However, it is very clear that the learned trial Judge shall have to decide the case on the basis of legal evidence which is produced before him. This petition has thus no force and is accordingly dismissed. Needless to say that any observation made by me in this order order made by the learned trial Judge in the impugned order shall not affect the trial in any manner. (Aq.By.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 342 (DB) Present: ijaz nisar and raja muhammad khurshid, JJ. ZULFIQAR-Appellant versus STATE-Respondent Cr. Appeal No. 39/1993, heard on 28.10.1996. Witness-Related- -Witness-related with deceased-Testimony of-Mere relationship of PW. with deceased, not to be sufficient to discard testimony, in toto. [P. 345] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302--Murder--Offence of--Appellant deprived of control over his passions on seeing his real sister engaged in sexual act with her paramour in his house-Conviction, altered from S. 302 to Sec. 304 Part-I PPC--Held further: Ends of justice to be met if sentence reduced to already undergone by him (appellant)--Appellant released. [P. 346] B Mr. Ijaz Hussain Batalvi, Advocate for Appellant. Mr. S.D, Qureshi, Advocate for State. Date of hearing: 28.10.1996. judgment Ijaz Nisar, J.-Zulfiqar son of Shamir Khan ( 22 ) was tried for the murders his sister Mst. Shamshad Bibi deceased and her paramour Shaukat Ali deceased. By judgment dated 17.1.1993, learned Additional Sessions Judge, Chinniot convicted him under section 302 PPC and awarded him death penalty as Qisas on two counts. 2. Challenging his conviction, he has filed this appeal while the learned trial Court has made a reference for the confirmation of his death sentence. Both the matter are being disposed of together by this judgment. 3. The prosecution case, in brief, is that on the night between 16 th and 17th May, 1991 , Hoat Khan P.W.2 and Manzoor Hussain P.W.3 were asleep in front of the house of the former. At about 2.00 A.M. they woke up and on an alarm, coming from the house of Shamir Khan father of the appellant and rushed towards that place and saw Zulfiqar appellant giving brick blows to Mst. Shamshad Bibi deceased and Shaukat Ali deceased who were lying on a cot in a semi-naked condition. Declaring that he could not tolerate immoral act of the two deceased he left the spot Mst. Shamshad Bibi and Shaukat Ali died instantaneously on the spot. 4. The motive for the occurrence was that Shaukat Ali and Mst. Shamshad Bibi deceased were cousins inter se. They had developed illicit relations with each other and were lying together in a semi-naked condition on the fateful night when they were surprised by Zulfiqar appellant who killed both of them with a brick. 5. Manzoor Hussain P.W.3 proceeded to Police Station Bhowana, District Jhang and lodged the FIR Exh. PK on 17.5.1991 at about 5.00 A.M. The distance between the spot and the Police Station, being 12 miles. After recording the FIR, Nazir Ahmad P.W.7 proceeded to the place of occurrence and prepared the injuries and inquest reports of the two deceased and sent their dead bodies to the mortuary for autopsy. He took into possession shirt P.4, Chaddar P.5 of Mst. Shamshad Bibi deceased which were lying under hir pillow. He arrested the appellant on 25.5.1991 and secured brick P.6, bunyan P.7 and chaddar P.8 at his instance. He got prepared the site plans Exh.PA and Exh.PA/1 from the Draftsman and after completing the investigation, challaned the appellant. 6. Dr. Muzaffar Ahmad P.W.4 conducted an autopsy on the dead body of Mst. Shamshad Bibi ( 25 ) on 17.5.1991 and found the following injuries thereon:- (i) A lacerated wound 10 cm x 4 cm on the top of skull. Skull bone was fractured and brain matter was coming out of the wound. (ii) A lacerated wound 4 cm x 4 cm on the right of forehead. Brain matter had come out of this wound, as well. (iii) A contused wound 5 cm x 8 cm on the right cheek, right misilla was depressed and fractured. (iv) A lacerated wound 2cm x 1/2 cm on the upper lip and nose. Nosal bone was fractured. Face was covered with lot of blood. Skull was fractured and hymen had old tears. Vagina admitted three fingers. He took her vaginal swabs and sent them to the Chemical Examiner who found them stained with semen vide report Exh.PQ. 7. The same Doctor also conducted post-mortem examination on the deadbody of Shaukat Ali deceased ( 28 ) and found the following injuries:- (i) A lacerated wound of 3 cm x 1/2 cm x bone deep on right side of skull. Skull bone was fractured, (ii) A lacerated wound 2% cm x 1/2 cm x bone deep on the top of skull, (iii A lacerated wound of 9 cm x 1 bone deep of the top of skull behind injury No 2. (iv) A lacerated wound 2 cm x 2 cm x bone deep on the back of skull. (v) A lacerated wound 2 cm x 1/2 cm on the lower lip and chin mendable was fractured at the chin. (vi) Nose was depressed and nosal bone was fractured, (vii) A contusion 3 cm x 2 cm on the top of right shoulder. (viii)A lacerated wound 2 cm x 1/2 cm x bone deep on the right eye brow. (xi) A contusion 8 cm x 3 cm on the right cheek. Skull bone was practured on the top and front. Brain was injured on the front. . Cause of death of the two deceased was shock haemorrhage and injuries to the vital organs. All the injuries were caused by blunt edged weapon and were anti-mortem. 9. To prove its case, the prosecution examined seven witnesses. Hoat Khan P.W.2 and Manzoor Hussain P.W.3 were examined as eyewitnesses. Hoat Khan is father of Shaukat Ali deceased and uncle of Mst. Shamshad Bibi deceased. According to him, he was asleep alongwith Haq Nawaz ( not produced ) and Manzoor Hussain P.W.3 outside his Ahata and on hearing an alarm, rushed to the Ahata of Shamir Khan, the father of Zulfiqar appellant and saw the appellant giving brick blows to the two deceased. When he alongwith his companions tried to intervene the appellant threat-ned them vith dire c ^sequences. According to him, Mkt. Shamshad Bibi deceased was mtu r .>d U his son Shaukat Ali deceased since about two years before the occurrence and it was an exchange marriage. Manzoor Hussain P.W.3 complainant in the case did not support the prosecution and was declared hostile. According to him, he simply informed the police that Shaukat Ali and Mst. Shamshad Bibi were lying dead. He denied the marriage between Mst. Shamshad Bibi deceased and Shaukat Ali deceased. In the cross-examination, he stated that Hoat Khan P.W.2 was not present at the spot on the night of occurrence. The other witnesses examined by the prosecution were of formal nature. Haq Nawaz P.W. mentioned as an eye-witness in the FIR was given up as having been won over. 10. The appellant denied the prosecution allegations as also the marriage between his sister Mst. Shamshad Bibi deceased and Shaukat Ali deceased. He attributed the case to enmity but did not adduce any evidence in defence, nor did he himself appear under Section 342 (2) Cr.P.C. as witness. 11. Relying the evidence of Hoat Khan P.W.2, the learned trial court convicted and sentenced the appellant, as described above but, however, admitted the story of the motive as set up in the FIR to be correct and observed that from the material on record, it appeared that the appellant had lost control over himself on seeing his unmarried sister sleeping with Shaukat Ali deceased. 12. Challenging the conviction and sentence of the appellant, learned counsel appearing on his behalf contends that solitary statement of Hoat Khan P.W.2, father of Shaukat Ali deceased in the absence of any corroboration was not sufficient to bring home guilt to the appellant, particularly in the wake of the statement of Manzoor Hussain complainant denying his presence at the spot. 13. Learned counsel appearing on behalf of the State submits that the prosecution case stands established from the circumstances of the case. The presence of the two dead bodies in the house of the appellant coupled with the motive set up in the FIR proves the prosecution version. 14 After hearing the learned counsel for the parties and perusal of the record, our observations are that the mere relationship of Hoat Khan with Shaukat Ali deceased will not be sufficient to discard his testimony, in toto. According to him, his son had been married to Mst. Shamshad Bibi about two years prior to the occurrence by this fact does'nt stand established from any material on record. Had it been so, there would have been no reason for the appellant to have killed his own sister. On the other hand, the vidence on record establishes that she was unmarried and the presence of semen on her vaginal swabs goes a long way to establish the prosecution version. Although the appellant has denied to have killed the two deceased under grave and sudden provocation, the circumstances show otherwise. We are reminded of the saying that men may lie but the circumstances do not. 15. From the material on record, it is fully established that the two deceased were maintaining illicit intimacy and were done to death by the appellant under grave and sudden provocation while engaged in the sexual act. 16. The events, referred to above, fully bring home guilt to the appellant. So far as the question of the offence committed by him is concerned, we are of the view that instead of section 302 PPC it would more appropriately fall under section 304 Part-I PPC as the appellant was deprived of control over his passions on seeing his real sister engaged in the sexual act with her paramour right in his house. We, therefore, alter his conviction from section 302 PPC to section 304 Part-I PPC and think that the ends of justice would be met if he is sentenced to the period of imprisonment already undergone by him because he is stated to be behind the bars since May, 1991. We order accordingly and dispose of the appeal in the above terms. He shall be released from the jail, provided he is not required in any other case. 17. The Murder Reference is answered in the negative. (Aq.By.) Orders accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 346 [Multan Bench] Present: raja muhamamd khurhsid, J. ABDUL JABBAR and another-Petitioners versus STATE-Rcspondent Criminal Misc. No. 720-B/96, decided on 21.10.1996. (i) Bail- S. 497(l)(b) Cr.P.C.-Pakistan Penal Code, 1860, S. 302/34-Bail- Statutory ground-Petitioners are in judicial lock-up and trial has not concluded-Held: Delay in trial occurred due to death of Presiding officer and since then no successor has been appointed in his place-Petitioners are principal accused therefore, instead of releasing them on bail on statutory ground, Sessions Judge of area was directed to try case himself or make it over to any other Additional Sessions Judge and to conclude trial within three months. [P. 347] A & B Mian Arshad Latif, Advocate for Petitioners. Mr. Abdul Hameed Khokhar, Advocate for State. Date of hearing: 21.10.1995. order The complainant Muhammad Zarif alongwith his wiefs brother Iftikhar Ahmad deceased went to the house of Muhammad Ramzan one of the co-accused with the petitioner on 23-9-1994 at about evening time in the area of Kachi Mandi Liaquatpura, P.S. City Vehari. 2. The brief facts are that Mst. Mumtaz Mai daughter of afore-said Muhammad Ramzan was married with the deceased 17/18 years back and had come to her father's house after picking up a row with her husband i.e. deceased about a month back brior to the occurrence. The deceased had gone to the house of accused persons in order to bring back his wife Mst. Mumtaz Mai. However, during the course of negotiations hot words were exchanged between the parties whereupon both the petitioners gave Sota blows on the head and legs of the deceased which proved fatal. 3. The bail is prayed on the ground that there is a delay of 3 days in filing the FIR, that no incriminating article was recovered from the petitioners, and that the prosecution story was highly imporbable and was cooked up due to enmity. It was also emphasized that the petitioners were entitled to bail on statutory ground in view of the provisions contained in section 497 (1) (b) Cr.P.C. as two years have elapsed and the trial has not yet concluded. 4. The learned counsel for the State opposed the bail application on the ground that deeper appreciation of the merits of the case cannot be undertaken at this stage. It was further contended that the delay in disposal of the case occurred because of the unfortunate death of the Presiding Officer whose successor in office has not yet been appointed. 5. I have considered the above submissions and find that the deeper appreciation about the merits of the case cannot be made last it may prejudice the case of any of the parties. The delay in the disposal of the case has occurred because the then learned Presiding Officer unfortunately expired as would be clear from the order dated 25-1-1996 and since then no successor has been appointed in his place. This fact is clear from the order sheet produced by the learned counsel for the petitioners. 6. In view of the above facts and since the petitioners are the principal accused according to the prosecution case therefore instead of releasing them on bail on statutory ground it would be just and fair if a time limit is prescribed for the disposal of the case on its merits keeping in view the peculiar circumstance which caused the delay in disposal of the case. 7. In view of my above iscussion the petition is'dismissed with the direction that the learned Sessions Judge Vehari shall try the case himself or make it over to one of the Additional Sessions Judges in the district to tiy B the same and conclude the trial within three months failing which the petitioners may renew their request for bail. (M.A.A.) Order accordingly Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 348 Present: muhammad aqil mirza, J. LIAQAT ALI--Petitioner versus THE STATE-Respondent Criminal Misc. 4030/B/96, accepted on 28.10.1996. (i) Bail-- S. 497(1) Third proviso Cr.P.C.-Pakistan Penal Code, 1860, S. 302/324/34--Bail~Statutory ground-Petitioner in continuous detention for two yearly-Delay in conclusion of trial not attributable to petitioner- Petitioner not a hardened, desperate or dangerous criminal-No allegation against petitioner about involvement in terrorismBail allowed. [P. 352] B, D & E (ii) Bail- - S. 497(1) Third proviso Cr.P.C.-Statutory ground-Bail-Bail cannot be refused on account of delay in trial which occurred after expiry of statutory period-Similary, delay occurring due to adjournments granted by court on account of professional engagement of defence counsel, cannot be attributed to the accused. [P. 352] A, Ms. Farzana Shahzad Khan, Advocate for Petitioner. Mr. Inayat Ullah Cheema, Advocate for State. Date of hearing: 28.10.1996. order Liaqat AH seeks bail in a case registered at P.S. Qila Deedar Singh on 3.4.1994 for offences punishable under Section 302/34/34 PPC. According to the FIR, Liaqat All and Muhammad Arif armed with 12-bore guns and their co-accused Ashfaq empty handed are accused of causing death of complainant's brother Sajjad Ahmad, Liaqat Ali petitioner fired with his gun which hit the deceased on his back as a result whereof he fell down and later on died. Muhammad Arif is accused of ineffective firing. The occurrence took place in consequence of a dispute regarding dogs. 2. Ashfaq Ali and Arif Ali co-accused were enlarged on bail by this court vide orders passed in Crl. Misc. No. 3329/B/94 and Crl. Misc. No. 4279/B/94. 3. Learned counsel for the petitioner submits that she does not press for bail to Liaqat Ali on merits. The bail is sought on the statutory ground that the petitioner is in jail for more than two years without the conclusion of the trial. She has stated that the petitioner was arrested on 13.4.1994 and since then he is in the lock-up and the trial has not yet concluded. Learned counsel has argued that her client is entitled to be enlarged on bail as of right under the third Proviso to Subsection (1) of Section 497 Cr.P.C. According to her, the petitioner became entitled to be enlarged on bail on 12.4.1996 because delay in conclusion of he trial is not attributable to him, nor is he a hardened criminal with previous histoiy. She has further submitted that the charge was framed by the learned trial court on 10.4.1996 when the 2 years statutory period had almost expired. In support of her case for grant of bail to the petitioner, the learned counsel has placed reliance on the following case law:- (i) Zahid Hussain Shah vs. The State (PLD 1995 SC 49). (ii) Muhammad Ashiq vs. The State (1996 P.Cr.L.J. 1269). (iii) Muhammad Sadiq and others vs. The State (1996 P.Cr.L.J. 1440). 4. Mr. Inayatullah Cheema, learned counsel for the complainant has vehemently opposed the bail application. He has submitted that despite the fact that the petitioner has remained continuously in detention for more than 2 years without the trial having been concluded, he is not entitled to be enlarged on bail because the delay in the conclusion of the trial is attributable to the petitioner's co-accused and hence, he is also vicariously liable for the conduct of his co-accused. Referring to the order sheet, he has submitted that the learned trial court had summoned the accused persons on 17.1.1996 for 24.1.1996. On the adjourned dated Liaqat Ali petitioner was present in the police custody while Muhammad Arif accused was reported to have been murdered and Shafaqat co-accused was ordered to be served through warrants. On 6.2.1994 the petitioner duly appeared but no report was received with regard to Muhammad Arif. On 18.2.1996 Liaqat Ali and his co-accused Shafaqat were present but the case was again adjourned for want of authentic report with regard to the murder of Arif co-accused. On 6.3.1996 Liaqat and Shafaqat were present. However, the case was adjourned to 19.3.1996. On this date the learned trial court was on leave. On 31.3.1996 the copies were supplied to Liaqat Ali and Shafaqat who were present in court. On 10.4.1996 the charge was framed for the first time and the case was adjourned to 6.5.1996. On the adjourned date four prosecution witnesses were in attendance but the case was adjourned because the defence counsel had gone to Lahore. Subsequently, the case was adjourned for next two does on account of the non-availability of the defence counsel who had gone to Lahore to appear in this court in other matters. On 30.6.1996 the case had to be adjourned because the petitioner could not be produced from jail on account of the non-availability of police-guard due to the elections of the AJK Assembly. Similarly, the case could not be taken up on the next three dates for one reason or the other. The learned counsel has contended that co-accused Shafaqat did not appear on 24.1.1996 on account whereof the case had to be adjourned. Subsequently the defence counsel sought adjournments for his professional engagements in other courts. Thus, according to him, the delay in the conclusion of the trial is attributable to the petitioner as well and hence he is not entitled to the concession of bail under the third Proviso to Subsection (1) 497 Cr.P.C. 5. The admitted factual position is that the petitioner was arrested on 13.4.1994 and the charge was framed for the first time on 10.4.1996. It is further clear from the order sheet that the petitioner has been appearing in police custody before the learned trial court on all dates of hearing except on 30.6.1996 when he was not produced by the police on account of the non availability of proper guard. 6. The provisions relating to the grant of bail to an accused person on the ground of delay in the conclusion of the trial, which is usually called the statutory ground, are provided under the third Proviso to Subsection (1) of Section 497 Cr.P.C. This is reproduced below:- " ..... Provided further that the court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail:- (a) who, being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year; and (b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the court, is a hardened desperate or dangerous criminal or involved in terrorism." The Honourable Supreme Court in Nazir Hussain vs. Zia-ul-Haq and others (1983 SCMR 772) after considering the effects of the third proviso aforesaid held that grant of bail on the ground of delay in the cases covered by the third proviso to Section 497(1) Cr.P.C. no longer remained within the discretion of court. In the case of Zahid Hussain (PLD 1995 SC 49) the honourable Supreme Court has held that the bail is to be granted as of right to an accused person under the third proviso (ibid) on the ground of delay in the conclusion of the trial, where he is not found responsible for the delay. The relevant finding of the Supreme Court is reproduced below: - "The right of an accused to be enlarged on bail under the third proviso to Section 497(1) Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the third proviso of Section 497(1) Cr.P.C. is not left to the discretion of the court but is controlled by that provision. The bail under the third proviso (ibid) can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the third proviso (ibid) can also be refused by the Court if the case of the accused fell under the 4th proviso to Section 497 (1) Cr.P.C. This court in Muhammad Ishaq's case (1996 P.Cr.L.J. 1269) allowed the bail to the accused person on the ground of delay in the conclusion of the trial, following the dictum laid down in Zahid Hussain Shah's case 7. The argument of the learned counsel for the complainant hat the petitioner is responsible for the delay in the conclusion of the trial on account of the fact that his co-accused on bail did not appear in court on one date and the defence counsel has been obtaining adjournments, has been ably countered by Ms. Farzana Shahzad Khan, Advocate by submitting that the petitioner is not responsible for the conduct of the co-accused on bail nor can the adjournments granted by the trial court to the defence counsel on account of his professional engagements be considered to be a factor for delay in the conclusion of the trial attributable to the petitioner. In support of her submission she has relied on the case of Muhammad Sadiq and others decided by Justice Sheikh Ijaz Nisar. His lordship has held in the precedent case that an accused person who remains continuously in jail for more than 2 years in a murder case without his trial being concluded becomes entitled to the grant of bail as of right. It was further held that conduct of the co-accused or grant of adjournments to the defence counsel do not disentitle such an accused for grant of bail on the statutory ground. The relevant discussion is reproduced below: - "The right of the accused to be released on bail under the 3rd proviso to Section 497 (1) Cr.P.C. is a statutory right which cannot be denied to him under the discretionary powers of the court. And the use of word "shall" therein has to be read in its ordinary sense. Learned counsel for the complainant and the State have not been able to show that delay in the conclusion of the trial was caused by the conduct of the present petitioners. As already stated above they cannot be held responsible for the conduct of their co-accused, who are stated to be on bail, nor for the adjournments sought by their counsel on account of his professional engagements." 8. The case of Muhammad Sadiq relied upon by the learned counse for the petitioner provides a complete answer to the arguments submitted by the learned counsel for the complainant. So far as Liaqat All petitioner is concerned he has been in jail since 13.4.1994. If his co-accused who were on bail did not appear in court in pursuance of notices issued, then the petitioner cannot be held responsible for their conduct. Similarly, if the defence counsel on account of his engagements in the professional work has been granted adjournments by the learned trial court the same cannot be termed as the delay attributable to the petitioner. The bail can be refused to an accused person despite of the fact that he remained in continuous detention for the period mentioned in the 3rd proviso, if the delay in the conclusion of the trial has occasioned by an act or omission of such an accused or any other person acting on his behalf. The bail can also be refused to an accused person if he is a previously convicted offender for an offence punishable with death or life or if in the opinion of the court he is & hardened, desperate and dangerous criminal or involved in terrorism. In all other circumstances the bail has to be granted as of right to an accused person on the ground of delay in the conclusion of the trial. 9. Applying the aforesaid criteria to the facts and circumstances of the present case, the delay in the conclusion of trial cannot be said to be attributable to the petitioner. In fact the continuous period of the petitioner's detention of 2 years expired on 12.4.1996. He became entitled to be released on bail on the aforesaid date. The bail cannot be refused to him on account of the delay in the trial which occurred after that date. However, the delay even after that date is not attributable to the petitioner as already observed. There is nothing on the record to suggest that the petitioner is a previous convict or he is otherwise a hardened, desperate and dangerous criminal. Nor there are allegations against him for involvement in acts of terrorism. Resultantiy, the petitioner is entitled to be enlarged on bail under the third Proviso to Subsection (1) of Section 497 Cr.P.C. For what has been stated above, the petitioner is allowed bail in the sum of Rs. 1,00,000/- (Rs. one lac) with two sureties, each in the like amount r? to the satisfaction of the learned trial court. It is directed that the learned trial court shall conclude the trial as expeditiously as possible. If any of the accused persons on bail causes undue hindrance in the conclusion of the trial, the complainant may move the learned trial court to take action in the matter, in accordance with law. (MAA) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 353 [Multan Bench] Present: raja muhammad khurshid, J. GHULAM SHABBIR-Petitioner versus THE STATE and 6 others-Respondents Criminal Revision No. 113/96, decided on 7.10.1996. Criminal Procedure Code, 1898 (V of 1898)-- S. 435/439-Murder case-Compromise by legal heirs-Held: Real brother of deceased is not a legal heir as deceased has left behind his children as such his brothers are excluded from inheritanceInterest of minor children left by deceased shall be watched in accordance with provisions contained in Sub-section (2) of Section 310 P.P.C.-Share of minor children shall be deposited in their names in some lucrative and profit bearing schemes-Further held: Trial Court shall first ascertain about all legal heirs of deceased and then shall further proceed with compromise if anyTrial Court is directed to re-decide case in light of provisions contained in Section 309/310 P.P.C. read with section 338-E P.P.C. and section 345 Cr.P.C.-Petition disposed of accordingly. [P. 354] A to D Mr. Muhammad Ramzan Khalid, Advocate for Petitioner. Syed Tahir Haider Wasty, Advocate for Respondents. Date of hearing: 7.10.1996. order In this revision petition order dated 8.8.1996 passed by Mr. Mumtaz Munawar Khan Niazi, learned Additional Sessions Judge, Khanewal is called in question, whereby he allowed the petition for compromise moved by Hakim Bibi alongwith her minor son Javed Iqbal aged about 2 years in the murder case of her husband namely Muhammad Younas, The trial of the case is at final stages. 2. It is contended by the learned counsel for the petitioner that complainant of the murder case of Muhammad Younas was Ghulam Shabbir who is present petitioner. He has challenged the impugned order on the ground that since he was the complainant and a brother of the deceased Muhammad Younas, therefore, he should have been associated with the compromise before giving permission to decide the case on its basis. 3. Secondly it was contended by the learned counsel for the petitioner that conduct of Mst. Hakim Bibi was not fair because she did not disclose all the legal heirs of the deceased Muhammad Younas. In this respect, it was alleged that Muhammad Younas had taken Mst. Shahnaz as second wife and from her he also has one daughter, who are also legal heirs of aforesaid deceased. Since they have not been associated in the compromise, therefore, at best Mst. Hakim Bibi can enter into a compromise by waiving her right of Qasas and to forgive the assailants i.e. the murderers of the deceased in the name of Allah or otherwise. However, if she enters into a compromise on behalf of her minor son Javed Iqbal, the same will be possible only if the murderers deposit the value of Diyat according to his share in some account, which is encashable on his majority. 4. The learned counsel for the respondents has been fair to contend that Mst. Hakim Bibi can only enter into compromise and forgive the killers of Muhammad Younas deceased for herself or on behalf of her minor son provided the amount of Diyat as stated above is deposited in his name. So far as the other legal heirs such as Mst. Shahnaz and her daughter are concerned, they can also be ascertained before the compromise in question finally decided by the learned trial Court. 5. I have considered the submissions made at the Bar from both sides. It is clear that right to compound is given to the legal heirs of deceased person under the existing law. The complainant though a brother of the deceased is not a legal heir as the deceased had left behind his children and . as such his brothers are excluded from inheritance. On that ground the complainant cannot resist the compromise if that is to be entered into genuinely by the legal heirs of the deceased. Since the learned trial Judge has not discussed in the impugned order as to how the case of the minor will be dealt with, therefore, it does not fall squarely in the ambit of law which prescribes procedure for dealing with the right of a minor, heir. The impugned order is accordingly set aside. The revision petition is accepted to the extent that the learned trial court shall first ascertain about all the legal heirs of the deceased and then shall proceed further to record the compromise if any. The interest of the minor children left by the deceased shall also be carefully watched in view of the provisions contained in proviso to sub-section (2) of section 310 PPC. Needless to say that amount of Diyat falling to the share minors shall be deposited in their names in some lucrative and profit bearing scheme such as purchase of defence saving certificates encashable after the minors attain majority. With such safeguard and after satisfying that the compromise is genuine and does not defeat any provision of law, the learned trial court shall re-decide the matter in the light of provisions contained in section 309/310 PPC read with section 338-E PPC and Section 345 Cr.P.C. 1997 manzoor ahmad khan alias nadeem khan v. state Cr.C. 355 (Raja Muhammad Khurshid, J.) 6. The revision petition is disposed of accordingly. Parties are directed to appear before the trial court on 23.10.1996, the date already fixed in that court for further proceedings. (MAA) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 355 [Multan Bench] Present: RAJA MUHAMMAD KHURSHID, J. MANZOOR AHMAD KHAN alias NADEEM KHAN-Petitioner versus THE STATE-Respondent Criminal Misc. No. 1540-B/1996, decided on 22.10.1996. Bail- S. 497(1) Third proviso Cr.P.C.-Prohibition (Enforcement of Hadd) Order, 1979, Article 3/4 read with section 14 of Dangerous Drugs Act, 1976--Bail--Statutory ground-Trial started, one prosecution witness examined-Conclusion of trial within sight-Held: No proper comment on merits to release petitioner on bail-Trial court directed to conclude case within one month-Petition dismissed. [P. 356] A Ch. Faqir Muhammad, Advocate for Petitioner. Sh. Muhammad Raheem, Advocate for State. Date of hearing: 22.10.1996. order A case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, read with section 14 of the Dangerous Drugs Act was registered against the petitioner for an occurrence which took place at about 5.30 P.M. on 19.4.1995 as one kilogram of heroin was recovered from his possession. The FIR was registered on the same day at 5.45 P.M. at the report of Muhammad Aslam Field Investigating Officer P.S. P.N.C.B. Multan. 2. The learned counsel for the petitioner has submitted that the provisions of the Dangerous Drugs Act were not attracted to the facts of this case. The main emphasis was however laid by the learned counsel for the petitioner on the delay which has occurred in concluding the trial. In this respect it was contended that the petitioner had earned statutory right under third proviso to section 497(1) Cr.P.C. In this connection it was contended that the petitioner was arrested on 19.4.1995 and since then he was behind the bars and that the delay in the trial court not in any way be attributed to the petitioner. Reliance was placed on Saleh Muhammad versus The State and another (1983 S.C.M.R. 341), to show that the petitioner earned a valuable right to be released on bail if one year had elapsed after his arrest and trial could not be concluded. In this regard it was further submitted that the bail to an accused could not be denied under the discretionary power of the Court if he had earned statutory right to be enlarged on bail. 3. The bail was opposed on the ground that the trial has started and its conclusion is within sight because one prosecution witness has already been examined and the rest of the evidence is to be examined on 24.10.1996 which has been fixed as a date of hearing in the trial court. It was therefore contended that the petitioner cannot insist for bail even on statutory ground. Reliance was placed on Muhammad Ismail versus Muhammad Rafique and another (P.L.D. 1989 Supreme Court 585) and Haji Muhammad Siddique and others versus The State (P.L.D. 1994 Supreme Court 93). 4. I have considered the arguments addressed at the Bar from both sides. I have also gone through the record of the learned trial court which shows that one prosecution witness was examined on 3.4.1996 whereas the remaining witnesses have been summoned for 24.10.1996 after issuing the show cause notice to the process server for not effecting service upon the witnesses, ft therefore followed that the trial has not only commenced but it is likely to be concluded in the near future. In such a situation it will no be proper to comment on the merits of the case to release the petitioner on bail. The petition is therefore dismissed with the direction that the trial in this ase shall be concluded within one month from today failing which the petitioner may renew his request for bail to the court below. It is further directed that the learned trial Magistrate shall intimate the Deputy Registrar (Judicial) of this Court after he decides the case within one month as observed above. 5. The file of the trial court is given back to Muhammad Aslam Field Investigating Officer so that he may produce the same immediately before the trial court to avoid adjournment of the case on the next date of hearing i.e. 24.10.1996. (MAA) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 357 [Multan Bench] Present: KARAMAT nazir BHANDARI, J. MUREED HUSSAIN-Petitioner versus THE STATE-Respondent Criminal Misc. No. 591-B/1995 accepted on 17.5.1995. Bail-- S. 497/498-Pakistan Penal Code, I860, S. 302/201/379/148/149--Bail-- I.O. finding petitioner and co-accused not directly involved in killing but provided help in concealing dead body-S.P. Crime Branch agreed with 1.0. and another Sub-inspector--Co-accused already granted bail by High CourtFollowing rule of consistency bail allowed to petitioner. [P. 358] A Malik Muntazir Mehdi, Advocate for Petitioner. Mr. Shahid Aleem, Advocate, for State. Date of hearing: 17.5.1995. order Petitioner seeks bail in Case No. 212/94, registered at Police Station Rohallianwali, District Muzaffargarh under Sections 302/201/379/148/149 PPC on the statement of Muhammad Bakhsh, brother of Muhammad Hashim allegedly killed by the petitioner and his accomplices. As narrated in the FIR the facts are that the petitioner alongwith number of co-accused hired taxi car No. MNL-8198 driven by Muhammad Hashim, deceased, and took into Mouza Pirwala. It is stated that when the deceased did not return, search was made and ultimately the petitioner alongwith his accomplices admitted to have killed the deceased in order to misappropriate the taxi car. It is further stated that on the pointing out of the petitioner, the dead body was recovered. It is also claimed by the complainant that the accused promised to deliver the car but did not do so. 2. In support of the bail plea the learned counsel has referred to the order dated 14.5.1995, passed in Crl. Misc. No. 651-B/95 by which Muhammad Arshad co-accused was released on bail. It is submitted that the case the petitioner is not different from that of the released co-accused. The submission seems to be correct. It also transpires that the case was initially investigated by Abdul Sattar, SHO, who found that the petitioner and the released co-accused Muhammad Arshad were not directly involved in the killing but they have helped in concealing the deadbody. This finding was agreed to by Ghulam Qadir, SI, Range Circle Dera Ghazi Khan, and by the S.P. Crime Branch, who supervised the investigation. It may be noted that the case was transferred from the local police on application of the complainant. In view of this tentative conclusion arrived at by at least three police officers, the only case against the petitioner is the one which falls under section 201 PPG punishable upto seven years. In this view of the matter and keeping in view the release of the co-accused, this application is allowed and the petitioner is directed to be released on bail on his furnishing bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Muzaffargarh. (MAA) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Kar .) 358 (DB) Present: KAMAL MANSUR ALAM, J. SHAHID HAYAT KHAN and another-Applicants versus THE STATE etc .» Respondents Criminal Bail No. 1881/1996, decided on 2.12.1996. ( i ) Bail--Pre-arrest-- -S. 498 Cr.P.C .-Murder Case-Bail before arrest-Whether in case of concurrent jurisdiction was it not necessary for that applicant to move Sessions Court first before approaching High Court for pre-arrest bail- Question of--Held: It is well settled by string of decisions of superior Courts, that in matter of pre-arrest bail where lower court has concurrent jurisdiction with High Court, ordinarily accused should not be allowed to by pass Sessions Court and approach High Court irectly - General rule is that where two Courts enjoyed concurrent jurisdiction court comparatively lower in hierarchy should be moved first and only in compelling and exceptional circumstances accused may be allowed to move High Court directly. [P. 360] A 1991 SCMR 322 and PLD 1974 Lah . 256 ref. 1973 P Cr. J 873 ref. (ii) Criminal Procedure Code, 1898 (V of 1898)-- S. 498--Pre-arrest bail-Murder case-Contention-Three F.I.Rs . of case- Name of applicants not mentioned in first two F.I.Rs .--Mentioning of name of applicant in third F.I.R, was due to ulterior motive-No overt act is assigned to applicants-Interim challan submitted before court applicants names are not mentioned therein-No evidence of involvement in crime was on record-Held: No reliable material available suggesting lterior motive on part of police or complainant-Non-mentioning of names of applicants in Interim challan would dispel any allegation of mala fides against police rather would suggest no genuine proved apprehension of imminent arrest-No reason to suspect that nomination of applicants in FIR was mala fide or with ulterior motive-Not a fit case to grant bail before arrest. [P. 364] D, E (iii) Bail-Pre-arrest- Bail before arrest-Rule-Presence of ulterior motive, particularly on part of police, to harass or humiliate by means of unjustified arrest is one of conditions for grant of bail before arrest. [P. 362] C Mr. K.M.A. Samdani , Advocate for Applicants. Mr. LA. Hashmi , Advocate for Complainant. Mr. M.L Shahani , A.G. Sindh . Mr. Arshad Lodhl , ocate for Complainant. Date of hearing: 2.12.1996. order This application for pre-arrest bail has been filed by the applicants who are named in FIR No. 443/96 registered at Clifton Police Station, Karachi , on 9.11.1996, as a result of the direction of this Court in C.P. No. D- 1720/96. The applicants were earlier granted interim pre-arrest bail by me in this case. The FIR alleges that on 20.9.96 at about 8.35 p.m. while Mir Murtaza Bhutto, Chairman,, Pakistan Peoples Party (SB) was returning to his residence at 70 Clifton, Karachi, alongwith other office bearers and workers of his party in four vehicles, the applicants who at that time held the post of Assistant Superintendent of Police, and other police officers, namely, Wajid Durrani , SP (South), Haq Nawaz Sial , SHO Clifton Police Station, Zeeshan Kazmi , SHO Khokhrapar Police Station, stopped the said vehicles at a distance of about 100 meters from his residence. About 80-100 police personnel armed with automatic weapons were in position at the place. As soon as Mir Murtaza Bhutto lowered the window glass of his vehicle, the police personnel, on the orders of the above police officers started firing at Mir Murtaza Bhutto party as a result of which eight persons were killed including Mir Murtaza Bhutto and several others injured. The incident is alleged to be the outcome of conspiracy involving political opponents of Mir Murtaza Bhutto in the Federal Government and the Provincial Government of Sindh as well the officers accused in the FIR. The first point that needs consideration in the matter is as to whether in this case of concurrent jurisdiction it was not necessary for the applicants to have moved the Sessions Court first before approaching this Court for pre-arrest bail. It is well settled by string of decisions of superior courts on the point that in matters of pre-arrest bail where the lower Court was concurrent jurisdiction with the High Court, ordinarily the accused should not be allowed to by-pass the Sessions Court and approach the High I Court directly. The general rule is that where two courts enjoyed concurrent I jurisdiction, the Court comparatively lower in the hierarchy should be moved first and only under compelling and exceptional circumstances and accused may be allowed to move the High Court without first approaching the Sessions Court. Reference may be made to the cases of Zulfiqar and others v. The State and 10 others (1991 SCMR 322) and Sh . Zahoor Ahmad v. The State (PLD 1974 Lah . 256). Mr. K.M.A Samdani , the learned counsel for the applicants submitted that as the complainant had conceptions with persons holding high office and the incident had been widely reported and commented upon in the news-papers, the applicants genuinely apprehend that in the charged political atmosphere prevailing in the city the Sessions Court may be embrassed and unable to give relief to the applicants. It was further submitted that the third FIR having been registered on the direction of this Court, the lower Court may also feel restrained to take independent view of tne matter. In these circumstances, it was argued, that this was a fit case where this Court should exercise its concurrent jurisdiction without insisting on the applicants first moving the Sessions Court. The argument is not without force. There is little doubt that the complainant, if not directly at least indirectly, has connection with important personalities of the country. It cannot also be denied that the incident received wide publicity in the media and there would hardly be a political leader, worth the name, who has not commented upon the incident giving it a political tinge. In these circumstances, it would not be unreasonable to treat this as an exceptional case for the exercise of the concurrent jurisdiction of this Court. Reference in this regard may also be made to the case of Wall Muhammad v. The State (1973 P.Cr.L.J . 873) where it has been held that, "The first question that agitated my mind was, whether in a case of a concurrent jurisdiction, which the present one undoubtedly is, the applicant should be allowed to come to this Court without approaching the Sessions Court and I have no doubt in my mind that, unless there are very serious reasons why such a course should be preferred, the ordinary principle, that the lower Court should be approached first, should be invariably followed. Mr. Hayat Junejo , however, relied upon a Full Bench case reported in Shah Zillur Rehman Mutawali v. The State which was a case of concurrent jurisdiction on the revisional side. It was held that although the Sessions Judge must ordinarily be moved the revision application, having been entertained direct by the High Court, should be disposed of on its own merits. There are many other cases to the same effect. I, therefore, think it is not open to a Judge hearing the case fixed for final disposal, or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction." This would be another reason for not insisting on first moving the Sessions Court in the present case which has been heard by me on merits too. On merits, the contention of the learned counsel for the applicants was that three FIRs of the incident had been registered at the Clifton Police Station, the first (No. 386 of 1996) at the instance of Haq Nawaz Sial , the then SHO Clifton Police Station, registered shortly after the incident at 10.00 p.m. in the night of 20.9.96, the second (No. 399 of 1996) registered on 24.9.96 after midnight at the instance of one Asghar All a personal servant of Mir Murtaza Bhutto, and, the last registered on 9.11.96 at 12.45 p.m. on the direction of this Court and at the instance of Noor Muhammad, as such, there were more than one versions of the incident and as bail has already been granted to all the accused named in the first FIR the applicants too are entitled to the concession of bail. It was contended that according to the first FIR the police resorted to firing in selfdefence after Mir Murtaza Bhutto's party had started firing on the police whereby applicant No. 1 and SHO Haq Nawaz Sial sustained injuries. It was argued that none of the applicants were present at the actual place of incident and though they were called to take part in the operation which was intended to arrest certain persons accompanying late Mir Murtaza Bhutto, they were posted at some distance from the place of incident, on the road leading to Old Clifton in order to block the escape route. It was stated that in the interim challan too submitted in the Sessions Court a few days back, applicant's named have not been mentioned, confirming that no evidence of their involvement in the crime was found and for this reason also that are entitled to bail. Mention of applicant's names in the third FIR was claimed to be with ulterior motive so as to avenge the death of Mir Murtaza Bhutto and others. Mr. M.L. Shahani , the learned Advocate General, Sindh and Mr. LA. Hashmi , the learned counsel appearing for the Complainant, Noor Muhammad, vehemently opposed the application. On the factual plane, they contended that it was a case of pre-planned murder of Mir Murtaza Bhutto in consequence of a conspiracy hatched by some important personalities in collusion with the police officers named in the FIR and this was apparent from the facts, that while 8 persons were killed and several injured on the side of Mir Murtaza Bhutto, only two police officers received minor injuries which could not have been the case in real encounter, that the injury sustained by SHO Haq Nawaz Sial was considered to be self suffered by one of the medical boards constituted by the Provincial Government to examine him and that Haq Nawaz Sial was murdered in mysterious circumstances just a few days after medical board's findings about his injury. FIR No. 278 of 1996 is said to have been registered in the Garden Police Station about the murder of Sial . In the above circumstances, it was submitted that the applicants had no case for grant of bail much less pre-arrest bail. Main thrust of their arguments, however, was that the rule for the grant of bail before arrest was quite different from the governing grant of bail after arrest. Presence of ulterior motive, particularly on the part of the police, to harass and humiliate by means of unjustified arrest, is one of the conditions for the grant of pre-arrest bail. In the instant case it was submitted that none of the conditions required for the grant of pre-arrest bail existed. There is no doubt that the conditions required for the grant of prearrest bail are materially different from those for bail after arrest. It has been observed in the case of Sarwar Sultan u. The State and another (PLD 1994 S.C. 133) that, "From legal angle, it can be said that there is material difference between bail after arrest as contemplated under Section 497 Cr. P.C. and bail before arrest under Section 498 Cr. P.C." and that, "Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime." The question of grant of anticipatory bail was examined in the case of Sh . Zahoor Ahmad v. The State (PLD 1974 Lah . 256) and after reviewing the precedent law on the point the learned Judge laid down the conditions considered necessary for the grant of pre-arrest bail. The relevant portion of the judgment is as follows : - "10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under Section 498 Cr. P.C., are- (a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restrain on the petitioner; (b) that the petitioner should physically surrender to the Court; (c) that on account of ulterior motive, particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest; (d) that it should be otherwise a first case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provision contained in section 497, Cr. P.C. would have to be kept in mind; (e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr. P.C. In the case of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 S.C. 82) the aforesaid five conditions for the grant of pre-arrest bail noted in Sh . Zahoor's case were approved. It has been observed that, "....In para . 10 of the judgment in the case of Sh . Zahoor Ahmed, five conditions were noted as deducible from the precedent law. One of the conditions were that "on account of ulterior motives particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest." Reference may also be made to following observations in the case of Muhammad Parwez v. Badi-uz-Zaman Khan and others (1985 P.Cr.L.J . 3007): "7. Without dilating upon the merits of the case, lest the prosecution or accused my be prejudiced, this Court will deem it proper to point out to the learned Sessions Judge that there is to be drawn a line of distinction between a pre-arrest bail and after arrest bail. In case of a pre-arrest bail it is the duty of the Court to examine the question whether such an action would not frustrate the investigation. The Court is to be conscious of the fact that grant of pre-arrest bail is not a rule but an exception, rarely to be used and only in case of mala fides. In fact this Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts are ful-fllled , the most essential being that the intended arrest is motivated with mala fides which have to be specifically stated. Further the accused has also to show that irreparable loss is likely to be caused to him by the intending arrest. The accused have to make believe the Court that he is in no way involved in the commission of the offence charged with." Having thus examined the case law, I now come to the merits of applicants' application for pre-arrest bail. There is no dispute that the incident occurred in which eight persons including Mir Murtaza Bhutto were killed and some others received injuries as a result of firing by the police. It is not denied that about 80-100 police personnel armed with sophisticated weapons had been deployed at the place. It is also admitted that the applicants were present at the place of occurrence. Their contention th'at they had no part to play in the operation as it was being supervised by the Senior Superintendent of Police, Karachi (South) does not find support from the first FIR registered at the instance of the then SHO Haq Nawaz Sial , according to which the applicants were supervising the operation. The controversy about Haq Nawaz Sial's injury being self-suffered and his subsequent death are matters which too cannot be over-looked. It may be mentioned that except for the words of the learned counsel for the applicants there is no reliable material available to suggest ulterior motive, on the part of the police or the complainant. The fact that the applicants' names have not been mentioned in the interim challan would dispel any allegation of mala fides against the police. Incidentally, the omission to name the applicants in the interim challan would perhaps suggest that there is also no "genuine proved apprehension of imminent arrest" of the applicants. If allegation of ulterior motive and mala fides were to be accepted on bare words, the plea for pre-arrest bail would succeed in every case howsoever serious the offence. On the facts of this case, there appears no reasonable ground to suspect that the naming of the applicants in the FIR was mala fide or with ulterior motive. For the foregoing reasons, I am of the view that this is not a fit case for the grant of pre-arrest bail to the two applicants, as such, their application for pre-arrest bail is rejected. The earlier order of granting interim pre-arrest bail to the applicants is recalled. (M.A.A.) Pre-arrest bail refused.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 365 Present: KHAN RlAZ-UD-DlN AHMAD, J. Mst. MUSSARAT ELAHI alias BIBI-Petitioner versus THE STATE-Respondent Criminal Misc. No. 1972/B-1996, decided on 22.1.1997. (i) Bail-- S. 497 Cr.P.C.-Zina (Enforcement of Hudood Ordinance, 1979, Section 10/16 read with Section 380/411 of Pakistan Penal Code, 1860-Bail-- During investigation D.S.P. found petitioner innocent and recommended case for cancellationAlleged abductee/petitioner in statement recorded under Section 164 Cr. P.C. absolved petitioner of case-Complainant has sworn affidavit that case was registered due to misunderstanding caused by P.Ws. who were inimical with accused/petitioner--Case falling under sub-section (2) of S. 497 Cr. P.C. entitling concession of bail-Bail granted. [P. 366] A Syed Murtaza Al Zaidi, Advocate for the Petitioner. Mr. Muhammad Aslam, Advocate for State. Date of hearing: 22.1.1997. order Through Crl. Misc. No. 1972-B of 1996 and Crl. Misc. No. 1997-B of 1996 Mussarat Ellahi and Abdul Malik petitioners respectively seek their bail after arrest in a case F.I.R. No. 148/96 dated 15.7.1996 under Sections 10 and 16 of Offence ofZina (Enforcement of Hudood) Ordinance, 1979 read with Sections 380/411 P.P.C. registered at Police Station Sadar Muzaffargarh at the instance of Muhammad Ismail, brother of Mst. Mussarat Ellahi petitioner. 2. As the above said two petitions arise out of the same F.I.R. therefore, both are being disposed of by this single order. 3. Briefly the facts of the case are that Mst. Mussrat Ellahi petitioner wife of Abdul Aziz had come to visit the house of her brother, the complainant, and stayed there for a few days. It was there from that she was abducted by Abdul Malik, co-accused, as both of them were seen by the P.Ws. going on a Motorcycle. 4. The case was registered and the investigation was resumed. On 25.7.1996 Mst. Mussarat Ellahi was produced before the learned niaqa Magistrate where her statement under Section 164 Cr. P.C. was recorded in which she had categorically stated that she was not abducted by any person and had, of her own, left the house of her hushand, against whom she had filed a suit for dissolution of marriage. 5. Mst. Mussarat Ellahi petitioner had applied for bail before the learned Additional Sessions Judge-I Muzaffargarh but the same was refused on 15.10.1996 while the request of the bail after arrest of Abdul Malik petitioner was earlier turned down by the said learned Court on 14.9.1996. Hence these two petitions. 6. Learned counsel for the petitioners has vehemently argued that as per statement of Mst. Mussarat Ellahi petitioner recorded under Section 164 Cr. P.C. she was neither abducted by any person nor she was subjected to zina by any one; that the investigation of this case was conducted by Mr. Pervaiz Tareen, DSP Muzaffargarh who after a thorugh probe into the matter had declared the case to be false and frivolous and had recommended for the cancellation of the same that the complainant Muhammad Ismail has already sworn an affidavit that the case was registered against the petitioners due mis-understanding caused by the PWs who were inimical with the accused/petitioners. Lastly it was submitted that there was no evidence whatsoever to connect the petitioners with the crime. 7. Learned counsel for the State has not been able to controvert the contentions raised by the learned counsel for the petitioners. He rather concedes that the said D.S.P. had recommended for the cancellation of this ase. 8. I have heard the learned counsel for the parties and have perused the record. 9. Admittedly the petitioners were found innocent during the investigation conducted by the DSP City Muzaffargarh who had also recommended for the cancellation of the case, the statement of the alleged bductee/petitioner recorded under Section 164 Cr. P.C. absolve the petitioners of the offences alleged against them, the complainant Muhammad Ismail has also sworn the affidavit that the case was registered due to mis-understanding caused by the P.Ws. who were inimical with the accused/petitioners, the guilty or innocence of the petitioners being subject to further inquiry, their case would attract the provisions of sub-section (2) of Section 497 Cr. P.C. entitling the petitioners to the concession of bail. 10. Under the above circumstances and without going deep into the merits of the case, the petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs. 35,000/- (Rupees thirty five thousand) with two sureties each in the like amount to the satisfaction of the learned Illaq/Judicial Magistrate Muzaffargarh. (M.A.A.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Kar.) 367 (DB) Present: kamal mansur alam, J. AGHA MUHAMMAD JAMIL and another-Applicants versus THE STATE-Respondent Criminal Bail Application No. 1815/1996, rejected on 2.12.1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- S. 498~Murder case-Bail before arrest-Whether in case of concurrent jurisdiction, was it not necessary for applicant to move Sessions Court first before approaching High Court for pre-arrest bail-Question of~ Held: It is well settled by string of decisions of superior courts that in matter of pre-arrest bail where lower court has concurrent jurisdiction with High Court, ordinarily accused should not be allowed to by pass Sessions Court and approach High Court directly-General rule is that where two Courts enjoyed concurrent jurisdiction court comparatively ower in hierarchy should be moved first and only in compelling and exceptional circumstances accused may be allowed to move High Court directly. [P. 368] A Khawaja Naveed Ahmad, Advocate for Applicants. Mr. I.A. Hashmi, Advocate for Complainant. Mr. M.L Shahani, A.G. Sindh. Date of hearing: 2.12.1996. order This application for pre-arrest bail has been filed by the applicants named in FIR No. 443/96 registered at Clifton Police Station, Karachi, on 9.11.1996, as a result of the direction of this Court in C.P. No. D-1720/96. The applicants were earlier granted interim pre-arrest bail by me in this case. The FIR alleged that on 20.9.96 at about 8.35 p.m. while Mir Murtaza Bhutto, Chairman,, Pakistan Peoples Party (SB) was returning to his residence at 70 Clifton, Karachi, alongwith other office bearers and workers of his party in four vehicles, the applicants who at that time held the post of SHO Napier Police Station and SHO Garden Police Station and other Police Officers, namely, Wajid Durrani, SSP (South), Haq Nawaz Sial, SHO Clifton Police Station, Zeeshan Kazini, SHO Khokhrapar Police Station, stopped the said vehicles at a distance of about 100 meters from his residence. About 80-100 police personnel armed with automatic weapons were in position at the place. As soon as Mir Murtaza Bhutto lowered the window glass of his vehicle, the police personnel, on the orders of the above police officers started firing at Mir Murtaza Bhutto party as a result of which eight persons were killed including Mir Murtaza Bhutto and several others injured. The incident is alleged to be the outcome of conspiracy involving political opponents of Mir Murtaza Bhutto in the Federal Government and the Provincial Government of Sindh as well the officers accused in the FIR. The first point that needs consideration in the matter is as to whether in this case of concurrent jurisdiction it was not necessary for the applicants to have moved the Sessions Court first before approaching this Court for pre-arrest bail. It is well settled by string of decisions of superior courts on the point that in matters of pre-arrest bail where the lower Court has concurrent jurisdiction with the High Court, ordinarily the accused should not be allowed to by-pass the Sessions Court and approach the High A Court directly. The general rule is that where two courts enjoyed concurrent jurisdiction, the Court comparatively lower in the hierarchy should be moved first and only under compelling and exceptional circumstances an accused may be allowed to move the High Court without first approaching the Sessions Court. Reference may be made to the cases of Zulfiqar and others v. The State and 10 others (1991 SCMR 322) and Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256). Mr. Khawaja Naveed Ahmed, the learned counsel for the applicants submitted that as the complainant had conceptions with persons holding high office and the incident had been widely reported and commented upon in the news-papers, the applicants genuinely apprehend that in the charged political atmosphere prevailing in the city the Sessions Court may be embarassed and unable to give relief to the applicants. It was further submitted that the third FIR having been registered on the direction of this Court, the lower Court may also feel restrained to take independent view of the matter. In these circumstances, it was argued, that this was a fit case where this Court should exercise its concurrent jurisdiction without insisting on the applicants first moving the Sessions Court. The argument is not without force. There is little doubt that the complainant, if not directly at least indirectly, has connection with important personalities of the country. It. cannot also be denied that the incident received wide publicity in the media and there would hardly be a political leader, worth the name, who has not commented upon the incident giving it a political tinge. In these circumstances, it would not be unreasonable to treat this as an exceptional case for the exercise of the concurrent jurisdiction of this Court. Reference in this regard may also be made to the case of Wali Muhammad v. The State (1973 P.Cr.L.J. 873) where it has been held that, "The first question that agitated my mind was, whether in a case of a concurrent jurisdiction, which the present one undoubtedly is, the applicant should be allowed to come to this Court without approaching the Sessions Court and I have no doubt in my mind that, unless there are very serious reasons why such a course should be preferred, the ordinary principle, that the lower Court should be approached first, should be invariably followed. Mr. Hayat Junejo, however, relied upon a Full Bench case reported in Shah Zillur Rehman Mutawali v. The State which was a case of concurrent jurisdiction on the revisional side. It was held that although the Sessions Judge must ordinarily be moved the revision application, having been entertained direct by the High Court, should be disposed of on its own merits. There are many other cases to the same effect. I, therefore, think it is not open to a Judge hearing the case fixed for final disposal, or at least not proper for him, to dismiss the application under the sole ground that it should have been moved before a Court of inferior jurisdiction." This would be another reason for not insisting on first moving the Sessions Court in the present case which has been heard by me on merits too. On merits, the contention of the learned counsel for the applicants was that three FIRS of the incident has been registered at the Clifton Police Station, the first (No. 386 of 1996) at the instance of Haq Nawaz Sial, the then SHO Clifton Police Station, registered shortly after the incident at 10.00 p.m. in the night of 20.9.96, the second (No. 399 of 1996) registered on 24.9.96 after midnight at the instance of one Asghar Ali, a personal servant of Mir Murtaza Bhutto, and, the last registered on 9.11. 96 at 12.45 p.m. on the direction of this Court and at the instance of Noor Muhammad, as such, there were more than one versions of the incident and as bail has already been granted to all the accused named in the first FIR the applicants too are entitled to the concession of bail. It was contended that according to the first FIR the police resorted to firing in self-defence after Mir Murtaza Bhutto's party had started firing on the police whereby applicant No; 1 and SHO Haq Nawaz Sial sustained injuries. It was argued that none of the applicants were present at the actual place of incident and though they were called to take part in the operation which was intended to arrest certain persons accompanying late Mir Murtaza Bhutto, they were posted at some distance from the place of incident, on the road leading to Old Clifton in order to hlock the escape route. It was stated that in the interim challan too submitted in the Sessions Court a few days back, applicant's named have not been mentioned, confirming that no evidence of their involvement in the crime was found and for this reason also that are entitled to bail. Mention of applicant's names in the third FIR was claimed to he with ulterior motive so as to avenge the death of Mir Murtaza Bhutto and others as the complainant party was greatly annoyed with applicant No. 1 for the registration of FIR against Mir Murtaza Bhutto in Napier Police Station on 18.9.1996 for his raids on CIA Centres the previous day. Mr. M.L. Shahani, the learned Advocate General, Sindh and Mr. LA. Hashmi, the learned counsel appearing for the Complainant, Noor Muhammad, vehemently opposed the application. On the factual plane, they contended that it was a case of pre-planned murder of Mir Murtaza Bhutto in consequence of a conspiracy hatched by some important personalities in collusion with the police officers named in the FIR and this was apparent from the facts, that while 8 persons were killed and several injured on the side of Mir Murtaza Bhutto, only two police officers received minor injuries which could not have been the case in real encounter, that the injury sustained by SHO Haq Nawaz Sial was considered to be self suffered by one of the medical boards constituted by the Provincial Government to examine him and that Haq Nawaz Sial was murdered in mysterious circumstances just a few days after medical board's findings about his injury. FIR No. 278 of 1996 is said to have been registered in the Garden Police Station about the murder of Sial. In the above circumstances, it was submitted that the applicants had no case for grant of bail must less pre-arrest bail. Main thrust of their arguments, however, was that the rule for the grant of bail before arrest was quite different from the governing grant of bail after arrest. Presence of ulterior motive, particularly on the part of the police, to harass and humiliate by means of unjustified arrest, is one of the conditions for the grant of pre-arrest bail. In the instant case it was submitted that none of the conditions required for the grant of pre-arrest bail existed. There is no doubt that the conditions required for the grant of prearrest bail are materially different from those for bail after arrest It has been observed in the case of Sarwar Sultan v. The State and another (PLD 1994 S.C. 133) that, "From legal angle, it can be said that there is material difference between after arrest as contemplated under Section 497 Cr. P.O. and bail before arrest under Section 498 Cr.P.C." and that,"Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime." The question of grant of anticipatory bail was examined in the case of Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256) and after reviewing the precedent law on the point the learned Judge laid down the conditions considered necessary for the grant of pre-arrest bail. The relevant portion of the judgment is as follows :- "10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under Section 498 Cr. P.C., are- (a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restrain on the petitioner; (b) that the petitioner should physically surrender to the Court; (c) that on account of ulterior motive, particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest; (d) that it should be otherwise a first case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr. P.C. would have to be kept in mind; (e) that unless there is reasonable explanation,, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr. P.C. In the case of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 S.C. 82) the aforesaid five conditions for the grant of pre-arrest bail noted in Sh. Zahoor's case were approved. It has been observed that, "....In para. 10 of the judgment in the case of Sh. Zahoor Ahmed, five conditions were noted as deducible from the precedent law. One of the conditions were that "on account of ulterior motives particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest" Reference may also be made to following observations in the case of Muhammad Parwez v. Badi-uz-Zaman Khan and others, "7. Without dilating upon the merits of the case, lest the prosecution or accused my be prejudiced, this Court will deem it proper to point out to the learned Sessions Judge that there is to be drawn a line of distinction between a pre-arrest bail and after arrest bail. In case of a pre-arrest bail it is the duty of the Court to examine the question whether such an action would not frustrate the investigation. The Court is to be conscious of the fact that grant of pre-arrest bail is not a rule but an exception, rarely to be used and only in case of mala fides. In fact this Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts are fulfilled, the most essential being that the intended arrest is motivated with mala fides which have to be specifically stated. Further the accused has also to show that irreparable loss is likely to be caused to him by the intending arrest. The accused have to make believe the Court that he is in no way involved in the commission of the offence charged with." Having thus examined the case law, I now come to the merits of applicants' application for pre-arrest bail. There is no dispute that the incident occurred in which eight persons including Mir Murtaza Bhutto were killed and some others received injuries as a result of firing by the police. It is not denied that about 80-100 police personnel armed with sophisticated weapons had heen deployed at the place. The contention that the applicants were not present at the place of actual plea of incident having been posted further down the road is belied from the first FIR registered at the instance of the then SHO Haq Nawaz Sial, according to which the applicants were present at the place of incident. The controversy about Haq Nawaz Sial's injury being self suffered and his subsequent death are matters which too cannot be overlooked. It may be mentioned that except for the words of the learned counsel for the applicants there is no reliable material available to suggest ulterior motive, on the part of the police or the complainant. The fact that the applicants' names have not been mentioned in the interim challan would dispel any allegation of mala fides against the police. Incidentally, the omission to name the applicants in the interim challan would perhaps suggest that there is also no 'genuine proved apprehension of imminent arrest' of the applicants. If allegation of ulterior motive and mala fides were to be accepted on bare words, the plea for prearrest bail would succeed in every case howsoever serious the offence. On the facts of this case, there appears no reasonable ground to suspect that the naming of the applicants in the FIR was mala fide or with ulterior motive. For the foregoing reasons, I am of the view that this is not a fit case for the grant of pre-arrest bail to the two applicants, as such, their application for pre-arrest bail is rejected. The earlier order of granting interim pre-arrest bail to the applicants is recalled. (M.A.A.) Pre-arrest bail refused.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 373 (DB) Present: CH. KHURSHID AHMAD AND RASHID AZIZ KHAN, JJ. MUHAMMAD RAMZAN-Appellant versus STATE-Respondent Criminal Appeal No. 224 of 1992 dismissed on 26.3.1996. Pakistan Penal Code, 1860 (Act XLV of 1860)-- Ss. 302, 337-A (ii) 337-F(v), 336--Murder-Offence of-Conviction for-Challenge to--PW4 was father of Muhammad Ramzan accused and Mst. Sakina deceased-He supported prosecution story in all details and was a witness whose presence at time of occurrence cannot be doubted-Story of prosecution supported by ocular account is corroborated by recovery of hatchet and knife were found stained with human blood-Star witness of prosecution PW4 had received as many as seven injuries and had lost his thumb and finger of his left hand-There is no reason to disbelieve his evidenceProsecution has proved its case beyond all reasonable doubt through most natural and independent witnessesIt does not appeal to reason that deceased could be in compromising position while she was wearing Burga and Dcpatta-Version of appellant, when put in juxta position to story of prosecution has no probability of truth-Appeal dismissed. [Pp. 382 & 383] A, B, C & D Mr. Altaf Ibrahim, Advocate for Appellant. Shaikh Muhammad Rahim, Advocate for State. Date of hearing: 26.5.1996. judgment Muhammad Ramzan son of Allah Wasaya, appellant, was arrested in case FIR No. 28/91 registered at Police Station Mahmood Kot, District Muzaffargrah, on 17-4-1991 under section 302 P.P.C. He was sent up to stand his trial and was convicted by the Sesssions Judge Muzaffargrah on 11-8-1992 and sentenced as under :- (1) Convicted under section 302 P.P.C. for Qatl-i-Amd ofMst. Sakina and sentenced to death by hanging through neck till death (subejct to confirmation by the High Court). Under section 544-A, Cr. P.C. he shall have to pay compensation of Rs. 15,000/- to the heirs of deceased Mst. Sakina. In case of default to make payment, he shall have to undergo S.I. for two years. (2) Convicted under section 337(i) P.P.C. and sentenced to pay Daman of Rs. 2.000/- per injury totalling at Rs. 8,000/- and is punished with imprisonemnt for a term of two years R.I. as Tazir. In case of non payment of Daman to the njured, the accused shall have to undergo S.I. for \ years. (3) Convicted under section 337-A (ii) P.P.C. and sentneced to Qisas in consultation with the authorised Meidcal Officer, if the Qisas is not executable keeping in view the principles of equality as ordained by injunction of Islam, the accused was to be laibel to Arsh of Rs. 3.000/- and was also to undergo imprisonment for a period of 5 years R.I. In case of nonpayment of amount of Arsh, the accused was to under S.I. for one year. (4) Convicted under section 337-F (v) P.P.C. and sentneced to Daman of Rs. 4,000/ and to undergo R.I. for five years. In case of non payment of Daman to the injured, he was to undergo S.I. for l\ years. (5) Convicted udner section 336 P.P.C. and was sentenced to Qisas, in consultation with the authorised Medical Officer. In case the Qisas be not executable, in view of the principles of equality as ordined by injucntion of Islam, he was to pay Arsh of Rs. 5.000/- to be paid to the injured and to undrego R.I. for tne years. In case of non payment of amount of Arsh he was to undergo S.I. for I h years. It was further directed that in case sentence of death be altered into life imprisonment, other substantive sentences awarded to the accused were to run concurrently; whereas, sentences to be undergone by the accused in case of failure of payment of amount of Daman and Arsft, were to run consecuture. Amount of Arsh and Damna was to be paid to the injured. The trial court has made the reference for confirmation of death sentence being M.R. No. 369-92. The convict filed the appeal against the judgment of conviction and sentence. This judgment will dispose of both the matters. 2. The occurrence tool palce at 2 P.M. on 17-4-1991 and the matter was reported by Haikim Khan son of Allah Diwaya to Muhammad Sadiq ASI who recorded the same and sent to the police station for recording of the formal FIR. 3. The occurrnece as narrated by Hakim Khan was that he was esident of Mauza Haji Shah and was married to Mst. Sakina daughter of Allah Wasaya resident of Mauza Massaram Sandila and his sister Mst. Razia in Watta was married to Muhammad Ramzan son of Allah Wasaya. His sister Mst. Razia filed a suit for dissolution of marriage and obtained decree of dissolution whereas Mst. Sakina, his wife, was living happily with him. On the day of occurrence at 2 P.M. he alognwith Mst. Sakina, his wife, went to his father-in-law's hosue to greet him Bid. Allah Wasaya PW and Muhammad Ramzan appellant were present at thier House. When they ere to return and came out of the Haveli, Muhammad Ramzan said that as his wife had taken divorce from him he would not allow his sister Mst. Sakina to live with her husband and she will stay back in the house of parents. Allah Wasaya and Mst. Sakina protested. Muhammad Ramzan all of a sudden brought a knife out of his Dub and started giving blows to Mst. Sakina on her chest and belly; the knife fell from his hand, when his fatherin-law tried to intervene. Muhammad Ramzan brought out a Kulhari from the Chapper and gave injuries to Allah Wasaya hitting him on bis left hand, ear and back,. He also tied to intervene but was threatened. On his raising alarm Mahi Khan son of Karim Bakhsh and Hcy'i Fida Russian son of Ranjha Khan came to the sport and witnessed the occurrence. Muhammad Ramzan fled from the sport alongwith the Kulhari. Mst. Sakina, his wife died on the sport as a result of the injuries. Allah Wasaya was taken to Civil Hospital Kot Addu. Dead body of Mst. Sakina was left under the guard of Mahi Khan and Ghulam Sarwar PWs and he had proceeded to lodge the report. 4. After recording the statement of Hakim Khan the ASI read out the same (Ex-PB) to the maker thereof who thumb marked the same in token of its correctness. Terd Biyan" was sent to the police station for formal registration of FIR through Mureed Hussain H.C. and he proceeded to the spot alongwith the complainant. He examined the dead body of Mst. Sakina, prepared the Injury Statement ex-PH and Inquest Report ex-Pi and despatched the dead body of Mst. Sakina through Ashiq Hussain Constable to the Tehsil Headquarter Hospital Kot Addu for post-mortem examination. He inspected the place of occurrence, collected blood-stained earth from the spot and sealed the same into a parcel and secured vide memo Ex-PC. 5. Allah Wasaya PW was admitted in the hospital. Muhammad Sadiq ASI made an application Ex-PK to the Medical Officer seeking his opinion if Allah Wasaya injured was fit to make a Statement. The reply was in the negative. Ashiq Hussain Constable (PW-8) produced before I.O., after post-mortem examination of Mst. Sakina, her last-worn clothes given to him by the Medical Officer being shirt P. 1, Shalwar P. 2 Burqa P. 3, Dopatta P. 4, two ear rings P. 5 and P 6, two nose pins P. 7 and P. 8, amulet P. 9, a key P. 10, necklace P. 11, two Chalks P. 12 and P. 13, one ring P. 16 two silvery rings P. 17 and P. 18 which were secured by the Investigating Officer vide memo Ex-PD. He deposited the parcels containing blood-stained earth, the last-worn clothes and ornaments of the deceased with Muhammad Akbar HC for safe custody. Injured Allah Wasaya was not fit to make statement even on 20-4-1991. 6. The accused was arrested by Muhammad Sadiq ASI (PW-9) on 20-4-1991. On 22-4-1991 while in police custody Muhammad Ramzan accused led the police and the PWs to his house and produced knife P. 15 which was lying in the closure of reeds. The knife was blood-stained. The same was sealed into a parcel and secured under memo Ex-PF. Rough site plan of the place of recovery of the knife was prepared by him which was Ex- PL. The accused also led the police party to the recovery of hatchet P. 14 which was blood-stained, was made into a sealed parcel and secured vide memo Ex-PE. He prepared site plan of the place of recovery of hatchet Ex- PM. Both the parcels were handed over to the Moharrier Ghulam Akbar PW. 7. He got the site plan prepared by Abdul Hameed Patwari (PW -1) and gave his notes in red ink. He recorded the statement of Allah Wasaya PW on 27-4-1991 when the Medical Officer gave him clearance on his application Ex-PN. He recorded the statements under section 161 Cr.P.C. of all the PWs and got the report under section 173 Cr.P.C. prepared and submitted in Court. 7. At trial prosecution produced Abdul Hameed PW-1, a Patwari, who prepared site plan of the place of occurrence Ex-PA, PA/1 and PA/2 at the pointation of the witnesses in the scale of 16 Karmas to an inch. PW-2 akim Khan, PW-3 Mahi Khan and PW-4 Allah Wasaya gave the eye witnesses account. Dr. Muhammad Rasheed PW-5 had conducted the post mortem examination on the dead body of Mst. Sakina and Dr. Abdul Jabbar PW-10 had medically examined Allah Wasaya PW. Muhammad Hussain PW-6 had registered the formal FIR EX-PB/1 on the basis of Ferd Biyan Ex- PB. PW-7 Ghulam Akbar HC was posted as Moharrir at the police station and he was handed over two sealed arceles of blood-stained earth and last- worn clothes and ornaments of the deceased for safe custody on 18-4-1991 sent by Muhammad Sadiq ASI. He was also handed over two sealed parcels of knife and hatchet respectively for safe custody. All the sealed parcels except the one containing last-wrong clothes and ornaments of the deceased, were handed over to Ashiq Hussain Constable PW-8 who took the parcels to he Chemical Analyst Lahore. The parcels so long as they remained in his possession were not tampered with by any body. Ashiq Hussain PW-8 had taken three sealed parcels from PW. 7 on 23.4.1991 and handed over those parcels at Lahore on 24.4.1991 intact. 8. Muhammad Sadiq ASI, the Investigating Officer appeared as PW 9. PW. 9 stated that he recorded the statement of Hakim Khan Ex. PB, read over the same to Hakim Khan and obtained his thumb impression on his admitting the same as correct and sent the complaint for formal registration through Murid Hussain Constable to the Police Station and proceeded to the spot. He narrated all the steps that were taken in the progress of the investigation of the case and during cross examination stated :- "... this fact was not brought on the record that Ahmad Bukhsh son of Illahi Bakhsh and Mst. Sakina, deceased, were found in objectionable condition in the Chapper and the accused caused murder of Mst. Sakina due to grave and sudden provocation." 9. Hakim Khan PW. 2 in his statement before the Court stated that he was married to Mst. Sakina some 7/8 years earlier in Watta/Exchange of his sister Mst. Razia who was marred to Muhammad Ramzan accused. He and the deceased were living harmoneously whereas the accused did not extend proper treatment to his sister and she got a decree for dissolution of marriage from the court. On the day of occurrence he alongwith the deceased went to the house of his in-laws at about non time to see them and offer Eid greetings. His father-in-law Allah Wasaya and Muhammad Ramzan accused were present in the house. They met each other. At about 2 P.M. they left their house. When they had convered a distance of about 10 Karams the accused came and caught hold of the deceased saying that he would not allow her to go away because he wanted divorce for Mst. Sakina for the reasons that his wife had obtained a decree for divorce. Allah Wasaya PW and Mst. Sakina rebuked the accused as to why he wanted divorce for Mst. Sakina who had small children. Then the accused took out a knife from the fold of his Chadder and stabbed Mst. Sakina causing injuries on abdomen, chest and left side of the shoulder. He cried for help and tried to intervene. Allah Wasaya intervened who received threats of murder. Mahi Khan and Haji Fida Hussain also came to the spot and witnessed the incident. His father-in-law had physically intervened hence the knife which was in the hand of the accuced fell down and the accused then picked up hatchet lying under the Chapper and gave blows to Allah Wasaya causing injuries on the left hand, arm and left side of the head. The accused went away from the spot alongwith the weapons. Mst. Sakina died at the spot. His father-in-law survived, was shifted to hospital for treatment. Ghulam Sarwar arrived and leaving him and Mahi Khan at the spot with the dead body be went to lodge the report. Thandeder met him at Jhakri Minor Canal. He made Statement Ex-PB which was read over to him and he in token of its correctness thumb marked the same. He also stated the motive which was the decree of divorce obtained by his sister against the accused. 10. Mahi Khan PW-3 stated that on the fateful day he was going to give gifts to the children of Allah Wasaya. At about 2 P.M. he heard the cries from near the house of Allah Wasaya. Mst. Sakina was raising the cries. He rushed to the spot. Accused Muhammad Ramzan was giving knife blows to Mst. Sakina-Haji Fida Hussain also arrived in the meantime. Hakim Khan and Allah Wasaya had also witnessed the incident. The accused had given knife blows to Mst. Sakina on the left side of abdomen and shoulder. He could not intervene physically because the accused was armed. Allah Wasaya physically intervened by catching hold of the accused. Knife fell down from the hand of the accused who immediately took up hatchat lying under the Chapper and gave blows to Allah Wasaya on left hand and head. Mst. Sakina died at the spot whereas Allah Wasaya survived. The accused ran away with hatchet and knife. He also stated motive for the occurrence. He had joined the investigation and in his presence blood-stained earth was collected from the spot, sealed into a parcel and secured vide memo Ex-PC which the thumb marked as marginal witness. The blood-stained clothes and the ornaments of the deceased were produced in his presence before the Investigating Officer which were secured vide memo Ex-PD which he thumb marked as marginal witness. In his presence accused Muhammad Ramzan produced blood-stained hatchet P. 14 which was laying in the north western corner of his house. The same was secured vide memo Ex-PE witnessed by him. The same day accused produced knife P. 15 before the Investigating Officer in his presence which was blood-stained and was lying underneath the enclosure of reads in his house which was secured vide memo Ex-PF. Articles P. 14 and P. 15 were identified by the witness in the Court. 11. Allah Wasaya PW-4 was the father of Muhammad Ramzan accused and Mst. Sakina deceased. He stated that his daughter Mst. Sakina was married to Hakim Khan PW in Watta of the hand of Mst. Razia Bibi. She was married to Muhammad Ramzan accused who lived together for some time and then Mst. Razia got divorce. On the day of occurrence Mst. Sakina deceased and her husband Hakim Khan PW-2 visited his house, being the next day of Eid, to exchange Bid greetings. They reached his house at 12 O'Clock and Muhammad Ramzan accused was also present in the house. They started back at 2 P.M. Muhammad Ramzan caught hold Mst. Sakina by her arm saying that he would not allow her to go away. Mst. Sakina told that she had small daughter and she would go with her husband whereupon the accused gave knife blows to Mst. Sakina. He, Hakim Khan, Mahi Khan and Fida Hussain witnessed the occurrence. When he tried to intervene to save Mst. Sakina, knife fell down from the hand of the accused who picked up hatchet from the Chappar and give him blows on left hand and left side of head near the ear and also on his back as a result of which a ringer and thumb of left hand were cut off. Mst. Sakina died on the spot. He became unconscious and was removed to the Hospital. He also stated that Muhammad Ramzan committed the murder of Mst. Sakina only for the reason that his wife had got divorce and he wanted that his sister should also seek divorce from her husband which she refused. 12. Dr. Muhammad Rashsed, Medical Officer. Tehsil Headquarter Hospital, Kot Addu, PW-5 conducted the post-mortem examination on the dead body of Mst. Sakina who was identified by Hakim Khan and Ghulam Fareed PWs and he found the following injuries on the dead body :- (1) Incised wound 3 cm x 2 cm on front of left lower chest close to epigastrium. (2) Incised wound 3 cm x 2 cm in upper quadrant on left breast. (3) Incised wound 2^ cm x 1 cm on front of left shoulder joint. (4) Incised wound 3 cm x \ cm on lateral aspect of left side of chest. (5) Incised wound 2 cm x 1 cm on laternal aspect of upper l/4thofleftarm. (6) Incised wound 4 cm x 1 \ cm on laterl aspect of middle of left arm. (7) Incised wound 1 \ cm x 1/2 cm on back of upper half of left arm. (8) Incised wound 4 cm x 1 cm on back of left head. (9) Incised wound 5 cm x 1 \ cm on back of left shoulder. (10) Incised wound 1 cm x 1/2 cm on left side of head closed of forehead. AH the injuries were, in his opinion, ante-mortem and were caused with sharp-edged weapon. Injuries No. 1, 2, 4 and 10 were individually sufficient to cause death in ordinary course of nature. Probable time between injuries and death was immediate while time between death and post-mortem examination was 18 to 20 hours. Copy of the post-mortem examination report was Ex-PG and diagram of injuries was Ex-PG/1. He had handed over the dead body and the articles found on the dead body of Sakina at the time of post-mortem examination as also the police papers to Ashiq Hussain Constable. 13. Dr. Abdul Jabbar, Medical Officer. T.H.Q. Hospital Kot Addu PW-10 had examined Allah Wasaya at 6 P.M. on 17-4-1991 and found following injuries :- (1) Incised transverse wound 4 cm x 1.5 cm present on the upper l/3rd of the left pinna of ear. Upper l/3rd of the pinna was cut through and through transversely and was attached to the body. Wound was bleading. (2) Incised slipped wound 5 cm x 2 cm, bone exposed. It was on the left side of head on occipital region on its post aurical site. Wound was bleading. (3) There was obvious fracture of left fore-arm on its lower l/3rd with the bony crepts and in abnormal movement of the limb present. (4) Left thumb and index finger of the hand were cut and absent from the hand at their basis because of injury with sharp-edged weapon. (5) Alacerated wound 3 cm x 1.4 cm in subcutaneously 1.5 cm behind posterior border of left axilla. (6) An incised wound 9 cm x 2.5 into muscle deep on the posterior aspect of cervical region. (7) An ahrasion 5 cm X 0.25 cm present on the shoulder about 5 cm lateral to injury No. 6. Injuries No. 3 and 4 were declared as grievous and the rest of the injuries were declared as simple. Injuries No. 1, 2, 4 and 6 were caused with sharpedged weapon and the remaining injuries with blunt weapon and the duration between injuries and medical examination was 6 hours. He had prepared medico-legal report Ex-PO. Regarding injuries kept under observation his final report was Ex. PQ. 13. Ex. PS was the report of the Chemical Examiner relating to the blood stained earth, knife recovered from Muhammad Ramzan (accused) and exhibited during the evidence as P. 15, and hatchet recovered from Muhammad Ramzan accused and exhibited in evidence during the trial as P. 14. All the three articles were found to be stained with blood. Pieces and scrappings were sent by the Chemical Examiner to the Serologist for determination of the origin of blood and its grouping. The report of the Serologist, exhibited as PT supra, reltes to the items aforementioned and the result of the analysis was that the earth, knife P. 15, and hatchet P. 14 were stained with human blood and as a result of blood grouping, blood stained earth, knife P. 15, and hatchet P. 14 were found to be stained with blood of group 'O' which proves that the earth collected from the spot, knife P. 15 and hatchet P. 14 were stained with human blood of group '0'. At the close of the case of the prosecution, Muhammad Ramzan was examined under Section 342 of the Cr. P.C. and he took up the following plea:- "Mst. Sakina, deceased, my sister, was residing in the house of my father Allah Wasaya after the dissolution of marriage of Mst. Razia against me. She was not living in the house of her husband. During this period, she developed illicit relationship with Ahmad Bakhsh son of IHahi Bakhsh, my cousin. On the day of occurrence, I was present near the chappar. I had no slaughter cock which was sick. When I drew near the Chappar, I heard whispering. When I entered into the Chapper, I saw Mst. Sakina in compromising physical position with said Ahmad Bakhsh. On seeing me, Ahmad Bakhsh escaped from the crime spot by scaling over small wall of the Chappar. Mst. Sakina rushed out of the Chapper. In the meanwhile, I chase her an gave fatal knife blows under grave and sudden provocation. She cried for help which attracted Allah Wasaya, my father. He intervened. Since I had lost self-control due to grave and sudden provocation, therefore, I might have given blows to Allah Wasaya. Mst. Sakina had collapsed on the ground. I threw knife on the spot and ran away." 15. We have heard the learned counsel for the appellant and the learned counsel appearing on behalf of the State. Learned counsel for the appellant has contended that Hakim Khan PW-2 and Mahi Khan PW-3 were the interested witnesses and were not present at the spot and they had not seen the occurrence. Regarding Allah Wasaya PW-4 he had submitted that injuries on his person were given by the appellant when he had lost control over his senses due to the grave and sudden provocation and when the PW was intervening him in giving injuries to Mst. Sakina. The contention raised on behalf of the appellants were opposed by the learned counsel appearing on behalf of the State. He submitted that the appellant had taken a plea and it was his duty to prove the exception claimed by him as he had admitted the occurrence and the presence of Allah Wasaya PW-4 on the spot defence version was not probable and not borne out from the cross examination. 16. We have given our anxious consideration to the facts of the case and the evidence produced by the prosecution. The story relating to the occurrence has been narrated by Hakim Khan PW. 3, Mahi Khan PW. 3 and Allah Wasaya PW. 4 Allah Wasaya PW. 4 was the real father of the appellant Muhammad Ramzan and an independent witnessAfsf. Sakina deceased was his daughter too. He supported the prosecution story in all details and was a witness whose presence at the time of occurrence ca not be doubted. He was injured at the spot at the hands of the appellant. The place of occurrence was a few feet away from the house of Allah Wasaya PW and it could not be humanly believeable or even imagined that Mst. Sakina was in a compromising position with Ahmad Bakhsh in the chappar which was situated between the houses of the appellant and Allah Wasaya PW 4. Yet another piece of evidence which negates the plea taken by the appellant was the articles found on the dead body by the Medical Officer. It is in the evidence of Dr. Muhammad Rashid P.W. 5 that the deceased was wearing printed shalwar and shirt (coloured jamni), braiser, black burqa and dopatta. There were cut marks on shirt, braiser and dopatta. She was wearing golden ear rings, a necklace and two nose-pins. Besides, she was wearing two amulets, one golden and one silvery. She was also wearing one ring and two challas. There were two silver challs in the left hand of the examinee. The wearing of golden/silver ornaments proved that she was a guest ready to leave. Presence of Burqa and Dopatta on the dead body even at the table of the Medical Officer conducting post-mortem proves that she was given injuries when she was ready to depart. It does not appeal to reason that the deceased could be in a compromising position with Ahmad Bakhsh while she was wearing Burqa and Dopatta. The version of the appellant, when put in juxtaposion to the story of the prosecution has no probability of truth in it. 17. Story of the prosecution supported by ocular account is corroborated by the recovery of hatchet P. 14 and knife P. 15 which were found stained with human blood. None of the PWs produced by the prosecution could be termed as interested witness. The star witness of the prosecution was Allah Wasaya PW-4 who was the real father of the deceased and the appellant and had received as many as seven injuries and had lost the thumb and finger of his left hand. There is no reason for us to disbelieve his evidence. The presence of Hakim Khan PW-2 can also not be doubted as he was to accompany the deceased back to his house after they had offered Eid greetings to the family. Nothing has come out in the cross-examination of Mahi Khan PW-3 which could suggest that he was not present at the time of occurrence. 18. In view of what has been stated above, we are of the view that the prosecution has proved its case beyond all reasonable doubt through the most natural and independent witnesses. There is no mitigating circumstance in favour of the appellant in the case. 19. The convictions of the appellant and sentence as recorded by the Sessions Judge Muzaffargarh on 11.8.1992 are upheld. The sentence of death awarded to the appellant is confirmed and the reference is answered in the affirmative. 20. The appeal has no merit. The same is consequently ismissed. (K.K.F.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 383 Present : hamid ali mirza, J. RAFIQ AHMAD-Petitioner Versus POLICE CONSTABLE SAEED SHAH and another-Respondents Criminal Revision No. 78/1996, accepted on 6.1.1997. (i) Charge-- -Criminal Revision-Challenging framing of charge for second time-- Except copies of statements recorded under Section 164 Cr.P.C. all copies of statements of P.Ws were supplied to accused before framing of charge- After framing of charge on request of defence copies of statements recorded under section 164 Cr.P.C. were supplied to accused-Court examined five P.Ws and defence counsel made use of these statements as required under Qanoon-e-Shahadat without raising any objection-At time of examination of 1.0. Court thought that charge should have framed afresh after delivery of copies of statements recorded under Section 164 Cr.P.C., framing the charge second time-Held: First charge framed before supply of copies of statements recorded under Section 164 Cr.P.C. was exactly the same as was subsequently framedAccused has made use of said copies without taking any objection realising fact that all documents including statements recorded under Section 164 Cr.P.C. were long before with him before recording of prosecution evidence- Impugned order for retrial after framing charge afresh and resummoning of prosecution evidence was set-aside in circumstances. [P. 386 & 387] B, D & F (ii) Criminal Procedure Code, 1898 (V of 1898)-- -S. 537-Whether supply of copies of statements recorded under section 164 Cr.P.C. after framing of charge and before recording of prosecution evidence has vitiated trial proceedings and has caused prejudice to accused-Question of~Held: Neither cause prejudice to accused nor occasion failure of Justice nor proceedings can be termed illegal-It is at most irregularity curable under section 537 Cr.P.C.fPp. 385 & 386] A & E (iii) Criminal Procedure Code, 1898 (V of 1898)-- S. 265-C-Supply of copies of statements-Object of-There is no cavil about fact that provisions of section are mandatory in nature but object behind is that accused should be given copies of documents not later than seven days prior to commencement of trial so that accused may not be prejudiced and may able to put up his case in cross-examination. [P. 386] C Mr. Shahadat Awan, Advocate for Applicants. Mr. M.K. Kazi, Advocate for Respondent No. 1. Miss. Sakha Naeem, Advocate for State. Date of hearing: 6.1.1997. order This is a Criminal Revision Application filed under sections 435/439 Cr.P.C. directed against an order dated 28.9.1996, passed by learned V Additional Sessions Judge, Karachi South, in Sessions Case No. 146 of 1995 (State v. Saeed Shah) registered under sections 302/324 PPG, as amended by Qisas 8 Diyat Ordinance, as per F.I.R. No. 11 of 1995, P.S. City Courts, Karachi, whereby the learned trial Judge at the stage when the P.W. No. 6 Investigating Officer Aurangzeb Khan was being examined, ordered for retrial and framed fresh charge and resummoned all the P.Ws. Brief facts of the case are that the incident of this case took place on 18.2.1995 at 1610 hours at City Courts Police Station, F.I.R. was lodged and during the investigation, statements of PWs were recorded under section 164 Cr.P.C. The case was challaned, the copies as required under section 265 Cr.P.C. were supplied to the accused on 22.3.1995; The charge was framed on 30.5.1995 to which respondent/accused pleaded not guilty. P.Ws were summoned. On 2.7.1995, the learned counsel for respondent/accused moved an application under section 265(c) Cr.P.C. for supply of 164 Cr.P.C. statement. On 17.7.1995 trial Court supplied copies of 164 Cr.P.C. statements to the defence counsel. Thereafter, evidence of prosecution P.Ws was recorded. On 28.9.1996 when P.W. No. 6 Investigating Officer was being examined, the trial Court ordered for retrial and framed fresh charge and resummoned all P.Ws for evidence on the sole ground that the statements under section 164 Cr.P.C. were supplied to the respondent/accused counsel subsequent to the framing of charge. I have heard the learned counsel for the parties and perused the impugned order and annexures filed with the Revision Application. The main point for consideration in this case is, whether supply of copies of statements recorded under section 164 Cr.P.C. after the framing of charge and hefore the recording of evidence of the prosecution witness has vitiated the trial proceedings and has caused prejudice to the respondent/accused in the circumstances of the case. In the instant case, F.I.R. was lodged on 18.2.1995, copies as required under section 265 (c) Cr.P.C. were supplied on 22.3.1995 to the respondent accused, formal charge was framed on 30.5.1995. The counsel for respondent accused moved an application under section 265 (c) Cr.P.C. on 2.7.1995 for supply of copies of statements recorded under section 164 Cr.P.C. which were supplied on 17.7.1995. First prosecution witness Rafique Ahmed was examined on 7.8.1995 while cross-examination was made on 14.9.1995, P.W. 2 Muhammad Farooq was also examined and crossexamined on 14.9.1995, P.W. 3 Ghulam Mukhtiar was examined and crossexamined on 10.10.1995, P.W. 4 Muhammad Gulistan was examined and cross-examined on 10.10.1995 P.W. 5 Javed Akhtar was examined and crossexamined on 28.9.1996, when P.W. 6 Aurangzeb Khan was being examined on the same day, the trial Court noticed that 164 Cr.P.C. statements were supplied on 17.7.1995 to the counsel for respondent/accused whereas charge was framed on 30th May, 1995, and the defence counsel also objected to place reliance on the statements already recorded on which APP stated that fresh charge be framed and matter be retried, on which time was sought by counsel for applicant to argue the matter as to the effect on the trial proceedings for not supplying the statements recorded under section 164 Cr.P.C. before the charge was framed. It is admitted position that none of the prosecution witnesses was examined before the statement recorded under section 164 Cr.P.C. were supplied to the respondent/accused. Deposition of P.W. 1 Muhammad Rafique Ahmed would show that he had produced 164 Cr.P.C. statement as Ex. 6 and he was cross-examined by learned counsel for the respondent/accused and during the cross-examination his 164 Cr.P.C. statement was confronted to the witness. During the examination-in-chief of P.Ws 3 and 4 Ghulam Mukhtiar and Muhammad Gulistan respectively, 164 Cr.P.C. statements were produced as Exhs. 14 and 16. It is true that framing of a charge is not an automatic process but is to be framed after all the documents and the statements filed by the prosecution are considered by the Court and if the Court is of the opinion that there is a reasonable grounds for proceeding with the trial of the accused, it shall frame the charge. In the instant case, charge was framed after perusal of all necessary documents except 164 Cr.P.C. statements of prosecution witnesses. The object behind is that the Court should apply mind to the material collected by the police to find out if the case for proceedings has been made out against the accused. In the instant case, the first charge Ex. 2 which was framed before the supply of 164 Cr.P.C. statement is exactly in same terms as was subsequently framed as per Ex. 5. This would show that late supply of copies of 164 Cr.P.C. statements did not change the application of mind of the Presiding Officer considering also the fact that the said 164 Cr.P.C. statements were made available to the learned counsel for respondent/accused prior to the recording prosecution evidence who was in a position to make use of the same as provided under Qanoon-e-Shahadat. It be also pointed out that respondent/accused learned counsel has cross-examined the prosecution witnesses at length who was armed with all required copies and documents so also 164 Cr.P.C. statements of the witnesses at the time of conducting cross-examination of the prosecution witnesses therefore, no prejudice or failure of justice could be inferred and presumed to have occasioned to the respondent/accused. It is not the case where without supply of copies, as required by section 265(c) Cr.P.C., depositions of P.Ws have been recorded. Recording of evidence of prosecution witnesses commenced after the supply of all copies and documents including 164 Cr.P.C. statements of prosecution witnesses. There is no cavil about the fact that the provisions of section 265 (c) Cr.P.C. are mandatory in nature but object behind is that the accused should be given copies of the said documents not later than seven days before the commencement of trial so that the accused may not be prejudiced and may be able to put up his case in the cross-examination as provided under Qanoon-e-Shahadat. The learned counsel for respondent/accused has placed reliance upon Ghulam Muhammad v. The State (1985 SCMR 1442), The State v. Fazal Muhammad and others (1971 Pak. Cr. Law Journal 264); ZulfiqarAli Bhutto v. The State (P.L.D. 1979 SC 53) and Umubeyi Christine and another v. The State (NLR 1993 Cr. 696), but the facts of all these cited case are different and distinguishable to the facts of the instant case. The impugned order has been passed when the last prosecution witness viz I.O's examination-in-chief was being conducted, no objection to the examination of five P.Ws was taken earlier by learned counsel for the respondent/accused considering also the fact that all documents including 164 Cr.P.C. statements were already supplied to the respondent/accused long before the recording of prosecution evidence. Neither prejudice was caused nor failure of justice occasioned nor proceedings of the trial could be said to have been conducted illegality in the circumstances of the case. At the most, in the circumstances of the case, it could be termed to be irregularity curable under section 537 Cr.P.C. The impugned order passed is not legal, has occasioned failure of justice, therefore, same is set aside, consequently, Revision Application is allowed. (MAA) Revision accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 387 Present: DR. GHOUS MUHAMMAD, J. SHAMSUR REHMAN-Applicant versus MUHAMMAD RAFIQ and another-Respondents Criminal Misc. Application No. 268/96, dismissed on 28.11.96. Bail-Cancellation of- -S. 497 (5) Cr.P.C.--Pakistan Penal Code, 1860 (XLV of 1860) S. 380/457 read with Offences of Property (Enforcement of Hudood) Ordinance, 1979, S. 14-Cancellation of Bail-Contention, accused are named in F.I.R.-Bail is rarely granted in theft cases particularly at investigation stageOffences are punishable upto 7 years and moreHeld: Inordinate delay of one month and 18 days in loading FIR not properly explained- No direct evidence connecting accused applicant with alleged offences- Back ground of previous enmity in between parties-Not a single ingredient as enunciated by superior courts for cancellation of bail attracted to facts of case-No allegation of non-cooperation of accused with Investigating Agency on record-There is no hard and fast rule that bail before arrest cannot be granted in theft cases-Each case is to be decided on its own merits-Application being meritless dismissed. [P. 390 & 391] A, B, C & D Mr. Umar Farooq Khan, Advocate for Applicant. Mr. Gul Zaman Khan, Advocate for Respondents No. 1, 2. Mr. M. Ismail Memon, Advocate for State. Date of hearing: 26.11.1996. judgment Respondent No. 1 and 2 are involved in Crime No. 61/1996 registered at P.S. Baldia Town, Karachi for the offence under section 14 Enforcement of Hudood Ordinance, 1979. They were granted interim pre-arrest bail by the learned Sessions Judge, Karachi West on 2.5.1996 which was confirmed after notice to the parties concerned on 2.6.1996. Therefore aggrieved by this order the applicant who is also the complainant has sought cancellation of bail through this Criminal Misc. Application. As per FIR the complainant is a car dealer and is resident of House No. 1125, Guldad Shah Road, Baldia Town, Karachi West On the night between 10th and llth April, 1996 he alongwith his family shifted to the house of his cousin situate in the neighbourhood after lacking his own house for repairs. At 8.00 a.m. his son Farhan got up and went to his house. There he found the lock broken and the goods were lying scattered in the almirah. He also found that the gold ornaments and cash were missing. Initially the police refused to register the case but subsequently the FIR was registered against both the respondents on 21.4.1996. I have heard Mr. Umar Farooq Khan learned counsel for the applicant and Mr. Gul Zaman Khan learned counsel for the respondents No. 1 and 2 and Mr. Muhammad Ismail Memon learned counsel for the State and have perused the record. Learned counsel for the applicant/complainant submitted that the learned trial court erred in law by granting bail before arrest to the respondent Nos. 1 & 2 who were named in the FIR. With the result the police could not recover the gold ornaments, cash and other robbed articles from the said respondents/accused. He further submitted that the respondents No. 1 and 2 are involved in theft cases. Therefore in such cases bail before arrest is rarely granted particularly at the investigation stage. He also contended that co-accused Muhammad Tariq is habitual criminal against whom cases are still pending. Lastly he submitted that the two respondents have committed the offence under section 380 and 457 PPC which are punishable with 7 years and 14 years R.I. respectively. Therefore the concession of pre-arrest bail should not have been extended to the respondents No. 1 and 2. In support of his above submissions the learned counsel for the applicant cited the following case law : (a) Abdul Aziz v. The State and another PLD 1991 Peshawar 51. In this judgment a learned single Judge cancelled bail of the petitioner who was granted bail by the learned Sessions Judge and observed that while dealing with the pre-arrest bail application the learned trial court did not keep in mind the principles enunciated by superior Courts for deciding bail applications and was impressed by extraneous circumstances such as delay in lodging the report and also the failure of the petitioner to produce receipt evidencing the purchase of stolen ornaments. (b) Murad Khan v. Fazal Dad and another PLD 1983 SC 82. This is a leading judgment in which the Hon'ble Supreme Court noted the trend of the entire relevant case law since 1947 and it was held that the following conditions are to be fulfilled in order to make out a case of prearrest bail: (i) Arrest being for ulterior motives such as humiliation and unjustified harassment. (ii) Prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, and (iii) Motivation of police on political consideration. (c) Zulfiqar v. Muhammad Ilyas PLD 1986 Lah. 16. In this judgment a learned single Judge found the order granting pre-arrest bail to the accused as perverse having been passed in disregard of the principles governing grant of pre-arrest bail. (d) Muhammad Azam v. The State 1996 SCMR DC 72. In this order the Hon'ble Supreme Court held that right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fide/enmity or where no offence has been shown to have been committed on the bare reading of FIR. Learned counsel for the respondents have supported the impugned order. However learned counsel for the respondents No. 1 and 2 cited : (a) Syed Amanullah Shah v. The State and another PLD 1996 SC 241. In this judgment the petition was filed against the order of the Lahore High Court whereby bail granted to the petitioner by the trial court was cancelled but a full bench of Supreme Court did not upheld the impugned order and granted bail to the petitioner and it was observed (at page 245) that "once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C. are not punitive. There is no legal compulsion for cancelling bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the trust/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused." The learned counsel also referred to (b) Muhammad Ismail v. Muhammad Rafiq and another PUD 1989 SC 585 wherein it was held by a full bench of the Hon'ble Supreme Court that when the court finds that the two essential conditions contained in section 497 (2) Cr.P.C. are satisfied the accused shall become entitled as of right to bail. It is alleged that the incident took place on 24.9.1996 but it was reported to the police on 10.11.1996. Thus there is inordinate delay in lodging the FIR which has not been properly explained. There is also no direct evidence to connect the two respondents/accused with the alleged A offence. However it was pointed out by the learned State counsel that P.W. Shamsur Rehman has stated that only the foot print marks on the under repair floor of the house appeared to be of the respondents No. 1 and 2. , There is also back ground of enmity between the parties. Keeping in view the facts and circumstances of the case and on a tentative assessment of the entire evidence I find no force in the submission of the learned counsel for the applicant. Although it was rightly submitted by the learned counsel for the applicant that Murad Khan's judgment (supra) is a leading judgment on the point of pre-arrest bail yet the scope of bail before arrest was further enlarged in the case ofJamal uddin v. The State 1985 SCMR 1949 wherein it was held as under :-- "It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. The Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Ziaul Hassan's case. In our opinion, therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Session Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo moto powers for the purpose of cancelling the order of bail." It would be relevant to note that in Miran Box v. The State and another PLD 1989 SC 347 the merits of the case were also made basis for making out a case of pre-arrest bail. In the case of Jam Sadiq All v. The State 1989 P.Cr.L.J. 1910 it was held by Ajmal Mian, J (as he then was) that merits of the case can also be touched while granting pre-arrest bail. Thus there is no doubt that the scope of the rule laid down in Murad Khan's case has been widened. Respectfully following these judgments as well as the principle laid down in Syed Amanullah Shah v. The State PLD 1996 SC 241 (at page 245) I am not inclined to allow this application. It is settled law that bail once granted by the competent court cannot be cancelled by the superior Courts unless the impugned order is arbitrary, capricious and against the evidence available with the prosecution. None of these ingredients are attracted to the facts of this case I also find no force in the submission of the learned counsel for the applicant that merely because anticipatory bail was granted therefore no recovery could be made. There is no allegation against the respondents No. 1 and 2 that they did not cooperate with the investigating agency during investigation. There is no hard and fast rule that in a theft case the accused is not entitled to the grant of pre-arrest bail. Each case is to be decided on its own merits in the light of principles governing the grant or refusal of anticipatory bail. The upshot of the above discussion is that finding no merit in this application it is dismissed. (MAA) Application dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 391 (DB) Present: khalil-ur-rehman ramday and raja muhammad khurshid, JJ. MUHAMMAD ANWAR-Appellant versus THE STATE-Respondent Criminal Appeal No. 63/1993, Murder Reference No. 55/93, decided on 2.12.1996. (i) Evidence Medical- Medical Evidence-Doctor who conducted Post Mortem proceeded abroad, his repatriation in near future not possible-Post Mortem report brought on record through Dispenser who used to work with him and proved Doctor's handwriting-Such type of evidence is sufficient to meet legal requirement. [P. 396] F (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302-Murder-Offence of-Conviction for-Challenge to-Motive stand provedCrime empty matched with gun which was recovered at the instance of accused-Eye-witnesses related inter se but not inimical nor interested to implicate accused falsely-Ocular account trustworthy and unimpeachable corroborated by medical evidence-Prosecution has proved its case beyond reasonable doubt-Appeal dismissed. [Pp. 394, 395 & 396] A, B, C, D, E & G Mr. Tariq Zulfiqar Ahmad Choudry, Advocate for Appellant. Sh, Muhammad Rahim, Advocate for State. Date of hearing : 2.12.1 996. judgment Raja Muhammad Khurshid, J.--The appellant was convicted under section 302 PPG and sentenced to death by Qisas for the murder of Muhammad Sharif and Malik Muhammad on each count vide judgment dated 10.2.1993 passed by Mian Subah Sadiq, the then learned Additional Sessions Judge, Sahiwal. 2. The brief facts are that on 2.7.1991 Muhammad Hafeez complainant lodged a report at about 10.30 PM for an occurrence, which took place on the same day at 8.45 PM in the area of Chak No. 155/EB, Police Station, Sadar Arifwala District Sahiwal in which two persons namely Muhammad Sharif and Malik Muhammad were murdered by Muhammad Anwar appellant by firing at them with his 12 bore gun P.6 from the top of his house while they were sitting alongwith other PWs in a punchayat convened for the purpose of appearing the appellant, who got offended from a decision given earlier by the deceased persons in a meeting of the punchayat held about 15 days prior to the murder. 3. The motive was that the appellant while abroad had remitted some money, a TV and a Refrigerator to his father in Pakistan. After his return from abroad, he demanded for the money and the aforesaid articles, which led to a dispute between them for which apunchayat was convened to settle the controversy on the subject. The punchayat had decided to issue against the appellant. The verdict was pronounced by the deceased persons whereafter the appellant turned against them and held out many threats to finish them. 4. On the day of occurrence, the appellant was invited to attend punchayat meeting, which was being held in front of the house of his father Habib at about 8.45 PM. At that time the complainant Muhammad Hafeez, his father Muhammad Sharif (deceased), Malik Muhammad (deceased), Kanwar Muhammad Ayyub, Advocate, Muhammad Siddique, Fayyaz, Qayyum and Habib i.e. father of the appellant were present in that meeting. The appellant however, declined to come to the meeting on the ground" that he would not join any such proceedings in the presence of the deceased persons and Kanwar Muhammad Ayyub as all of them were "Beghairat". Whereafter the appellant went upto the top of his house with a 12 bore gun and fired at Malik Muhammad hitting him at his abdomen, right chest and hand. Simultaneously the fire made by the appellant also injured Muhammad Sharif deceased on his forehead, left eye and the face. Both of them were taken to the Civil Hospital, Arifwala but Malik Muhammad succumbed to the injuries on way whereas Muhammad Sharif was advised by the Doctors to be shifted to the District Headquarters Hospital, Sahiwal. He was being shifted that he also died on way. 5. The police recovered crime, 0mpty P. 1 from the roof of the house of the appellant on 2.7.1991 and took tne same into possession vide recovery memo Ex. PE attested by Manzoor Hussain, Rao Muhammad Aslam (PW-4) and Rao Shafqat All given up PW. 6. The accused was arrested on 15.8.1991 and he led to the recovery of his licenced 12 bore gun P. 6 from within the stack of chaff lying n the kotha of his residential house. The gun aforesaid was taken into possession vide memo Ex. PK attested by the witnesses, who had attested the recovery memo Ex. PE relating to crime empty. The gun and the crime empty were sent to the Technical Services, Crime Branch, Punjab, Lahore for expert opinion. It was examined by the Experts, who came to the conclusion that the crime empty was wedded to the shot gun of 12 bore recovered from the appellant. The report of the Expert was brought on record as Ex. PW. 7. The medical evidence was brought on record by examining Abdul Jabbar Dispenser, Civil Hospital, Arifwala as PW-5. The postmortem on the dead bodies of Muhammad Sharif and Malik Muhammad was conducted by Dr. Tanweer Ahmad, who was working as Medical Officer on 3.7.1991 at the Civil Hospital, Arifwala. The aforesaid Doctor had gone to London on long leave and there was no likelihood of his repatriation to Pakistan in the near future, therefore, Abdul Jabbar Dispenser was called to give evidence as he had been working under the aforesaid Doctor and used to see him writing and as such was in a position to identity his hand writing. The aforesaid Dispenser stated that had seen the postmortem reports of Muhammad . . Sharif and Malik Muhammad which were in the hand writing of Dr. Tanweer Ahmad aforesaid. The postmortem report relating to Muhammad Sharif deceased was brought on record as Ex: PL whereas the diagram of injuries was proved as Ex: PL/1. The postmortem report Ex: PM was also stated to be in the hand of aforesaid Doctor and related to Malik Muhammad deceased whereas pictorial diagram of injuries was proved as Ex. PM/1. 8. The learned counsel for the appellant has contended that it was an unseen occurrence, but a false case was set up against the appellant t the instance of Kanwar Muhammad Ayyub PW-2, who had allegedly demanded Rs. 50,000/- from the appellant to clear the debt of th Agricultural Development Bank. In this context, it was contended that the aforesaid Kanwar Muhammad Ayyub was involved in litigation with the aforesaid Bank and since the appellant had refused to help him by giving a loan to him, therefore, he turned against him i.e. the appellant. The motive was also allegedly invented in order to involve the appellant falsely in this case; that the witnesses were related inter se and inimical to the appellant though related to the deceased; that recovery of gun P.6 was false and the crime empty was fabricated to create circumstantial evidence in order to corroborate the inimical and interested witnesses; that the Medical Officer, who had performed the autopsy on the dead bodies of the deceased persons was never put in the witness box nor his evidence was brought on record in accordance with law, and that the deceased were killed as they had illicit liaison with the sisters of Akbar son M.Amanat who was working as tenant under Muhammad Hafeez complainant and that they had gone to their house at mid night and were killed by some unknown persons. 9. The learned counsel for the appellant further contended that the appellant had given a reasonable defence in his favour by producing his father namely Habib to whom the motive related. The aforesaid witness while appearing as DW-1 totally denied the story of motive as set up by the prosecution and as such the case against the appellant had become doubtful from its very start. Similarly the aforesaid witness denied that any punchayat was ever held in front of his house to settle the controversy regarding return of money or other articles as detailed in the FIR. It was, therefore, urged that the story given in defence was more convincing than revealed in the FIR and as such the case against the appellant had become sufficiently doubtful. 10. The learned State counsel contended that all the eye witnesses were truthful as well as natural to support the occurrence alleged in the FIR; that though all of them were related inter-se but were also closely related to the appellant and since they had no enmity with him, therefore there was no occasion to implicate him falsely in this case; that no corroboration of such witnesses was required, but if any was needed it was provided by the recovery of the weapon of offence i.e. 12 bore gun P.6, which matched with the crime empty picked up from the roof of the house of the appellant from where he had made fire at the deceased persons. The medical evidence was also stated to be in accord with the ocular account of occurrence regarding the seats of injuries found on the persons of the deceased and that those injuries were caused by the firearm. The defence story was alleged to be most improbable and contradictory. In this regard it was pointed out that according to the appellant, the deceased were killed, when they had gone to the house of Amanat in pursuance of illicit relations with the daughters of Amanat and were killed by the paramour of those girls. The father of the appellant while appearing as DW-1 stated that the deceased persons were like sons to him and that they were of good character. It was, therefore, urged that the prosecution case was fool proof and as such did not admit any doubt regarding its veracity and truthfulness. 11. We have considered the arguments addressed from both sides. There is a clear cut motive for the occurrence. The appellant had been sending money to his father and had also sent some articles while he was living abroad. He demanded for the return of the money and the articles from his father after coming to Pakistan. However, his father refused to repay money or the articles whereupon a dispute arose between them. It necessitated the convening of a meeting of the punchayat about 15 days prior to the occurrence in which a decision was given by the deceased persons and Kanwar Muhammad Ayyub against the appellant. This offended the appellant and he held out threats on several occasions to the deceased persons for finishing them. It is an admitted fact that all the members of the punchayat were closely related inter se and also to both the sides. It is thus obvious that in case of a dispute of this nature, the members of the family or brotherhood would normally pool their heads together to settle the matter within the family. The participation of the deceased and other members of punchayat to settle such a controversy was therefore, quite probable under the situation. Since a decision had gone against the appellant, therefore, he got annoyed with the deceased persons, who were related to him in a close degree besides being his brothers-in-law (Hum Zulf). It was also natural on the part of the deceased persons and other members of the punchayat to reassemble to appease the appellant to avoid any untoward incident. However, the appellant did not participate in the punchayat proceedings by saying that he would not join any such meeting where "Beghairat" like Muhammad Sharif and Malik Muhammad (deceased) were present. After uttering these words, he went to the top of his house and made fire upon the deceased persons while they were sitting in a meeting of the punchayat in front of the house of his father. The injuries caused by these fires proved fatal and were sufficient to cause death in the ordinary course of nature according to the respective postmortem reports. The crime empty was recovered from the place of firing which matched with the licenced gun P. 6 recovered at the instance of the appellant/accused. These factors are sufficient to prove the prosecution case against the appellant. The mere fact that witnesses were related to each other could not be sufficient to discard their testimony because admittedly they were not inimical, as there was no enmity between the parties in the past nor there could be any other cause for the murder of the deceased except the motive which stood proved through the evidence of the prosecution brought on record. In this regard, the evidence of Muhammad Hafeez PW-3 and that of Kanwar Muhammad Ayyub PW-2 are very important. Both of them are related in close degree with the appellant and they have no end or design to falsely implicate the appellant in this case. 12. An attempt has been made to invent a story that Kanwar Muhammad Ayyub had demanded Rs. 50,000/- or atleast Us. 25,000/- from the appellant to clear his debt of Agricultural Development Bank with whom he had litigation. Similarly an unfounded story has been cooked up for the first time during the trial that the deceased persons were of bad character and due to their illicit relation with the daughters of one Amanat, had visited the house of said Amanat at mid night and were killed by some unknown persons. The hollowness of this defence version becomes apparent even from the statement of DW-1 i.e. the father of the appellant who clearly said that both the deceased persons enjoyed good reputation and were of good character. Though he stated that they were killed while they were guarding the girls of Amanat but there appears to be no truth in this version and this statement was made by the DW only to save the skin of the appellant, who was his real son. Likewise the story about the demand of Rs. 50,000/- or Rs. 25,000/- by Kanwar Muhammad Ayyub (PW-2) to clear off his debt appears to be meritless because it was never taken up as first plea when the appellant was arrested by the police. Had there been any truth in any of the two versions, the same should have been impleaded forthwith at the earliest occasion by the appellant. These stories were introduced at the time of the trial which are nothing but an invention of some fertile mind. The eye witnesses or the recovery witnesses do not require any sort of corroboration because they are neither inimical nor interested so as to implicate the accused in this case falsely. Any how if any corroboration is required, the same is provided by the scientific analysis of the Ballistic Expert, who found the crime empty wedded with the gun P. 6 recovered from the appellant. This type of corroboration makes the ocular account of occurrence very trust worthy and unimpeachable. The same is the position with the medical evidence, which supports the version of the eye witnesses regarding the seats of injuries on the dead bodies of the deceased persons during the postmortem examination. Through the Medical Officer was not available as he had left for England and his repatriation was not possible in the near future, therefore, the postmortem reports prepared by him were brought on record through Dispenser who used to work with him and saw him writing and as such was well conversant with the hand writing of the Doctor. Such type of evidence is sufficient to meet the legal requirements that in case a witness is not available in the near future, his evidence may be brought on record in the manner stated above. 13. In view of our above discussion, it is found that the prosecution has been successful to prove its case beyond any reasonable doubt. The defence version advanced by the appellant is meritless and is highly improbable so as to create any doubt in the prosecution case. 14. The appeal is accordingly dismissed and the conviction and sentence of death of the appellant under section 302 PPG on each count for the murder of Muhammad Sharif and Malik Muhammad is upheld. Murder Reference No. 55/93 is answered in affirmative. Death Sentence of Appellant on each count is confirmed. (MAA) Appeal dismissed/Death Sentence Confirmed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 397 [Multan Bench] Present: mrs. fakhar-un-nisa khokhar, J. MUHAMMAD IQBAL SALEEM-Appellant versus THE STATE-Respondent Criminal Appeal No. 214/1996, decided on 26.11.1996. Pakistan Penal Code, 1860 (XLV of I860)-- -Ss. 405 & 409 read with Section 5(2), Prevention of Corruption Act, 1947- -Appreciation of evidence-Conviction on charge of misappropriation of wheat 272.825 M. Ton-Prosecution evidence proving damage of wheat not its misappropriation-Even question put to accused/appellant under section 342 Cr.P.C. was about damage and not misappropriation of wheat-No Evidence on record to show how much quantity of wheat was misappropriated by accused/appellant and converted same to his own use-Impugned judgment suffering from infirmity of law was set aside. [Pp. 403 & 404] A & B Sh. Dilawar Hussain and Malik Qasim Awan, Advocates for Appellant. Mr. Muhammad Rafiq, Advocate for State. Date of hearing : 26.11.1996. judgment The learned Special Judge, Anti Corruption, Multan vide impugned judgment dated 3.7.1996 convicted and sentenced Muhammad Iqbal Saleem appellant under section 409 PPC read with Section 5(2) 1947 P.C.A. to R.I. for seven years and fine of Rs. 30.000/-, in default of which he was to further undergo R.I. for one year. The appellant was also granted concession under section 382 Cr.P.C. 2. The brief facts of the case are that on the basis of FIR Ex. PW 7/A based on an application Ex. PW 4/A, submitted by the District Food Controller to the Additional Director, ACE alleging therein that during scheme year 1987-88, the accused/appellant was a Food Grain Supervisor and was the custodian of the stocks at P.R. Centre Basti Malook and the total quantity of 11725.640 M. Ton of wheat was purchased out of which a quantity of 1327.590 M. Tons of wheat was stored by Zubair Ahmad Bhatti Food Grains Inspector on whose retirement the appellant took over the charge of his stocks from him with his entire satisfaction. It was reported that the appellant did not take any interest in the disposal of the stored stocks, despite written and verbal instructions. The pace of clearance was veiy slow which gave rise to an apprehension that the stocks was being misappropriated. A team was therefore constituted consisting of Malik Hussain Bux AFC, Sajjad Hussain Shah Food Grains Inspector, Zawar Hussain Shah and Nasir Hussain Food grains supervisors to get the stocks cleared expeditiously and unearth the misappropriation committed by the accused who has finally declared a damaged stock of 272.825 M. Tons of wheat. The complainant further reported that since the appellant has been found absent most of the time it was not possible for the team to verify the quantity shown as damaged. It was reported that about 2800 bags which are half filled and that too partly filled with dust/husk/sugarcane crush are lying in the godown and misappropriation was suspected. 3. Learned counsel for the appellant submitted that the impugned judgment suffered from legal infirmity as it is passed contrary to prosecution evidence on record which has miserably failed to bring the guilt to the accused as no where the ingredients of the offence under section 409 PPC read with section 5(11) 47 PGA have been made out against the present appellant and that the prosecution evidence was interested, discrepant, unreliable and the conviction can never be passed on such type of evidence. The learned Special Judge, Anti Corruption has not applied his mind judiciously on the commulative effect of the prosecution evidence which failed to prove the ingredients of mis-appropriation of the wheat stock against the present appellant as there was not an iota of evidence in this regard. On such a weak and infirm evidence the defence has put forward a reliable and confidence inspiring evidence and the sentence was harsh in the eye of law as at any rate there was nothing on record to establish guilt of the appellant beyond reasonable doubts. He further submitted that the prosecution witnesses have miserably failed to establish any misappropriation done by the appellant. He drew attention of this Court to the statement of the appellant under section 342 Cr.P.C. and specifically on the questions No. 8,10 and 14 which are as follows :-- Q.8. Is it correct that a wheat stock of 272.825 M. Ton was declared as damaged by you, Ans. It is correct. Q.10. Is it correct that it was not possible for the team to verify the quantity shown as damaged ? Ans. It is incorrect. Q.14. Do you want to say anything else ? Ans. I am. innocent. I am not responsible for any loss of wheat. I strongly protested at the time of taking over the charge of the wheat at PR Centre Basti Malook. The whole lot of wheat was purchased by official Zubair Ahmad Bhatti. I held the charge under compulsion and with reluctance. I have variously reported the matter i.e. fortnight to the Department with regard to deteriorating condition of the wheat stock i.e. S.I. I have also been writing to the DFC, to depute a proper contractor for transportation and handling and for clearance of the stock but no proper arrangement for the same was made by the Department that a false case was registered against me on the wrong premises. As in the end a quantity of 272.825 M. Ton of wheat was auctioned by the Department and in this way no shortage of wheat stock was proved against me. It is further submitted that no samples of damages wheat or any wheat and so called mixing in dust, husk sugar cane crush were taken. The bidder namely Shaukat Ali son of Qutab Din lifted the whole stock without referring any loss or shortage of wheat. Learned counsel also argued that Munawar Ahmad (DW.l) who was a Senior Clerk in the Office of D.F.C. Multan, admitted that Ex. DW1/ to Ex. DW1/24 are the office copies of the letters sent by the appellant which were correct according to his register. Ex. DW. 1/25 was a copy of the challan sheet for the sum of Rs. 15,000/- which was pertaining to the auction of 272.825 tons of wheat. From 1.8.1988 to 31.7.1989 tenders were called for transportation of the wheat but nobody offered any bid for that purpose and that the storing capacity of the godown of Basti Malook of 1000 M. Ton is equal to 10,000 bags and at the relevant time 1327.590 M. Ton of wheat was stored in that godown. 4. Learned State counsel has submitted that the prosecution case stands fully proved and the appellant was rightly convicted by the learned trial Court. 5. I have carefully perused the record as well as the impugned judgment. 6. Both the parties produced oral and documentary evidence on record. FIR is Ex. PW7/A, the recovery memo is Ex. PW1/A. The report bout the stock is Ex. P/l and in the column ( (Jf ) in Urdu the quantity of wheat is shown as 279.825 M. Ton and in Column (D) " is written as 272.825 and in column ( ^f), it is written as :-- Ex. P/2 and Ex. P/3 are documents showing the quantity of wheat. Ex. P/4 is the statement of showing S. F. 26 for the scheme 1987-88, Ex. P/5 is the sanction order to prosecute the appellant from the Commissioner, Multan Division, Multan. The appellant also produced documents Ex. DW1/1 to Ex. DW1/24 is support of his case. 7. Munawar Ahmad Sheikh (PW.l), Senior Clerk DFC Office, Multan joined the investigation. He produced GP. V (Ex. P/l) dated 31.3.1989. It bears the signatures of Salim Iqbal appellant. He also produced SF. 26 No. 23/799 (Ex. P/2), with its carbon copy Ex. P/3 and consolidated statement (Ex. P/4). All these documents bear the signatures of the accused, which were taken into possession vide Memo Ex. PW1/A and according to him Rao Rounaq All also signed the same. PW. 2 Sajjad Hussain Shah Retired Food Inspector also joined police investigation. He constituted a supervisory Committee in January 1989 for the despatch of the wheat from Basti Malook Center for the scheme 1987-88. He was a member of that Committee. Iqbal Salim appellant, according to his statement, was Incharge of that center. The accused himself got the work of filling done and despatched the wheat after the office hours, therefore, he could not supervise the field work of the wheat although it was necessary for the accused to get the work of filling done in their presence. Malik Hussain Bakhsh was the Head of Supervisory Committee. He inspected the Center and in his presence and that of DFC Bashir Ali weightment was done and the average of ten bags of wheat was found 35 K.G. per bag. The weight of one hag should have been 101.051 including the weight of gunni bag which is 8.050. The shortage was found 272.00 M. Ton and the appellant has shown this wheat as damaged without justification and wrongly. This witness was cross-examined at length. He admitted that he did not remember on what date he was appointed member of the Supervisory Committee and that it was necessary that the despatch of the wheat was to be done under the supervision of the supervisory committee. He also admitted that he could not tell number of bags out of which the samples were taken, and that he did not know whether the DFC prepared any inspection note after visiting the spot or not. He also did not know whether damage had been properly done or not before placing wheat in the godown, and that he also did not know whether the appellant had made reports occasionally to the department that the proper dunnage had not been done and for that reason damage had been caused to the wheat. He also admitted that he did not know whether the appellant had been reporting to the higher authorities that no regular contractor for carriage had been appointed. He also admitted that it was Chowkidar who told us that the appellant had been despatching the wheat after working hours. However, he denied that there was no shortage, mixing of dust, husk, sugar-cane crush or any shortage of wheat and that the wheat was damaged due to moisture. PW. 3 Zubair Ahmad Bhatti Retired Food Inspector deposed that he remained at the godown uptill 6.10.1987 and the appellant after his retirement physically took over the charge. In cross-examination he admitted that he did not remember how much wheat was given by him to the appellant when he handed over the charge. He also admitted that the wheat was being purchased even during his tenure and he had stored the wheat in the godown under the orders of the competent authority and that the no dunnage was done at the time of sorting the wheat in the godown because the Government did not provide the same. According to him if the godowns are old the dunnage is not needed; in case of new godowns the dunnage is must. Accordingly to him the instant godown was new it was for the first time the wheat was stored there. He also admitted that he put some chuff underneath the wheat out of his own pocket but that was not effective, and that he could not say that the damage to the wheat was caused due to the absence of the dunnage. He deposed that he also stored the stocks while giving pad walls in the godown and the wheat was stored in the centre in bulk, the godowns are constructed east-west with dividing walls. He said that he cannot say that there was likelihood of damage caused to the wheat lying in such like godowns, when he handed over the charge to the appellant the stock was quite good. 7000 bags of wheat were lying in open because he did not rely on the position of the godown to store the whole of the wheat there and the capacity of the godowns did not admit the same. However, he denied that he took retirement due to damage caused to the wheat. PW. 4 Ch. Bashir Ali, DFC, Sahiwal deposed that on 17.7.1988, he was posted as D.F.C. Multan and thereafter on 15.4.1989 he wrote a letter No. 3750 to the Additional Director, ACE, Multan (Ex. PW4/A) for the registration of a case against the accused who was Food Grain Supervisor and Incharge of P.R. Center Basti Malook. He took charge of 1327.590 M. Ton of wheat from Zubaid Ahmad Bhatti, Inspector and thereafter the appellant did not despatch/locally consumed any of the stock and on his suspicion that the stock and not been despatched properly, he directed the appellant to despatch the stock and to dispose of the same. Despite his direction the stock was not f ally learned and the appellant was found usually absent from the Centre, therefore, a team was constituted for the clearance of the stock in presence of the appellant. It was found that 272.825 M. Tons of Wheat as damage but actually the damaged wheat was not to this extent and the appellant had adulterated dust, husk and sugar-cane crush into the stock shown as damaged and actually some wheat stock was mis appropriated by the accused. The husk and sugar-cane crush was adulterated in the wheat in order to make up the quantity and to fulfill the number of bags for camouflaging the mis-appropriation done by the appellant. In this way the appellant caused loss of Rs. 7,31,258/- to the Government by mis-appropriating the wheat stock mentioned above. In cross-examination he submitted that he had prepared an inspection report. He reported the matter after investigation and inspection by himself. The matter was reported firstly to the Deputy Director and on his direction he wrote for the registration of the case. He took the weightment of 8/10 bags when he inspected the Centre after the report of Supervisory Team. These bags were of 30/40 K.g in weight. All these bags had been adulterated and only 8/10 bags were got weighed. For the despatch of wheat stock from Basti Malook Centre he had engaged a contractor. He had also arranged and contracted Mill owners to take as local sale stock from Basti Malook Centre. The Mill owners were from Multan and they used to take stock of wheat from the Centers of Duniapur, Basti Malook and other P.R. Centres of Multan District. He do not know whether the damaged stock 272.825 M. Tons was disposed of by the DFC, Multan. PW. 5 is Nasir Khan, Inspector Food Grains. He submitted that in the year 1989 he was Member of the Supervisory Committee and Iqbal Salim appellant was Incharge of the Center and in his presence weightment was done and wheat was found short in the godown. In cross-examination he admitted that he refused to iake over the charge for the reason that it was a new godown and no medicine was used fur preservation of wheat and therefore, he took leave from the Department on medical ground. He also showed his ignorance whether say contract was done between the Food Department and contractor for carrying the wheat. The Inspection team ordered the appellant for shifting of wheat from godown to Multan, arid they used to visit the centre quite often, He also held it correct that time and again the appellant requested the Inspection Team that the contract was not sanctioned one as such he 'was unable to shift wheat to Multan, and that the Jricharge of the Supervisory Committee did not pass on the request of the appellant to the higher authorities, and'Hussain Bux AFC oftenly requested DFC for this purpose. The then. DFC and Inspection team weighed about 6 bags of wheat. When the bags were opened it could not be detected that the wheat was damaged and the missing could be certified by sending samples for analyses. There were about 2700 bags of wheat stored at P.R. Center Basti Malook but those were short of correct weight. After damage the weight of wheat decreases. The DFC prepared the inspection report. He admitted that the signatures of the incharge of the P.R. Center are obtained by the Authorised Officer on the inspection report. PW. 6 Plussain Bakhsh A.F.C. Shujabad supported the statement given by other P.Ws, However, in the cross-examination he admitted that he never inspected P.R. Center Basil Malook. He had not seen the appellant mixing dust with the wheat. He do not remember the exact number of the bags of wheat damaged. He had net sent any sample of damaged wheat to the analyst. The DFC had checked from 7 to 10 damaged bags of wheat. There had been dispute over 1080 bags of wheat between him and the appellant However, he denied that the said bags had been, received by him because they were damaged. PW. 7 Malik Dur Muhammad was posted as ADI on 19.4.1989. On the basis of complaint Ex, PW4/A. he drafted FIR vide Ex. PW.7/A. On 1.7.1989 he took into possession documents Ex. P/l to Ex. P/4 vide recovery memo Ex. PW1/A. He recorded statement of P.Ws and joined the appellant in the investigation after obtaining sanction order Ex. P/5 and submitted the challan. He also admitted that he had never visited the Center Basti Malook and has not sent any sample to analyst. PW. 8 is Malik Muhamrnac! Shafi, DFC. In examination-in-chief he submitted that he had been checking P.R. Center Basti Malook and he had found stock ia bulk. There was no infestation in the stock and found that there was no loss in the stock of wheat. He had not observed any other technical fault which might have caused loss to the stock. In crossexamination he deposed that lie did rot know that during the period of his posting, the date on which he had visited the center and that there had been arrangement of carriage contractor at, the said center. He had not tampered with the record maintained at the Center nor committed any theft of wheat 7. Aiticle 117 of the Qanun-e-Shahadat Order,, 1984 places the burden about the existence of any fact on the person who under duty of law has 10 prove the xistence of that fact and who asserts the same must prove that those facts existed. The appellant faced trial under section 409 PPG and the efinition of the offence of mis-appropriation and the ingredients of the offence under section 405 PPG"'when any person who in any manner is entrusted ith the property, or with any dominion over property, dishonestly misappropriates or converts 10 his own use that property, or dishonestly uses or isposes of that property, in violation of any direction of aw prescribing the mode in which such trust is to be discharged, or of any legal ontract, express or implied which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal reach of trust". The appellant, produced Munawar Ahmad Senior Clerk as DW.l. He fully supported the version of the appellant. Ex. DW1/19 is the _ tatement showing condition of wheat stock scheme 1987-88 P.R. Center Basti Malook from 1.6.1988 to 15.8.1988. The remarks column of the same is reproduced as under:-- Learned counsel also referred to Ex. DWl/20 which is statement showing condition of wheat stock scheme 1987-88 P.R. Center Basti Malook from 16.6.1988 to 30.6.1988 showing quantity of stores 718.790 + 305.630 = 1024.420 as on 30.6.1988. The remarks column of it reads as under :-- "It has been reported several time that the condition of wheat stocks scheme 1987-88 at tins centre is in very adverse condition., The wheat stocks are loosing weight day by day due to heavy attack of susre and khapra. Who will be responsible for the shortage of stocks. Not a single tablet of fumiganto has yet been provided during the period of one year arid 2 months. 8. Same is the position of Ex. DW1/21 to Ex. DW..1/24. 9. After reading the whole evidence! have found that at no stage thej 1 prosecution was able to attract the provisions of 8s, 405 and 409 PPG to enable the trial Court to sentence the appellant. The Court has to look into several pieces of incriminating evidence and also has to keep in view the commulative effect of the evidence produced by the prosecution and has to see whether the prosecution has proved the guilt of the accused beyond reasonable doubt or not. The impression which is gathered from the total prosecution evidence is about the damage of wheat and even the question which was put forward to the accused under section 342 is also about the damage of wheat and not mis-appropriation of wheat. How much quantity was mis-appropriated by the appellant and converted to his own use, there is no prosecution evidence on this point. The allegation levelled against the appellant is about the mis-appropriation of wheat weighing 272.825 which stands auctioned and that auction was admitted by the prosecution witnesses. Therefore, the instant judgment suffers from infirmity of law and is hereby set aside. The appeal is accepted, conviction and sentence as well as the fine are hereby set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case. (MAA) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 404 [Multan Bench] Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ASLAM-Petitioner versus KAZIM HUSSAIN and 2 others-Respondents Criminal Misc. No. 125/T/96, decided on 15.12.96. Criminal Procedure Code, 1898 (V of 1898)- S. 526-Pakistan Penal Code, 1860, S. 324/34-Transfer of case- Contention that accused/respondents have publicly declared about establishing contact with Additional Sessions Judge who has agreed to grant bail, further learned Sessions Judge had given his mind in open court for accepting bail-Held: Declaration of establishing of contacts with Additional Sessions Judge appears to be a concocted story- Additional Sessions Judge has denied allegations in his comments- Judicial matters should not be transferred on passing whims of litigants- There appears no genuine apprehension regarding miscarriage of justice or injustice to any of parties-Petition dismissed. [P. 405] A Mr. Akhtar Rehman Khan, Advocate for Petitioner. Ch. Ayyaz Muhammad Khan, Advocate for Respondents. Date of hearing: 15.12.96. order This petition is moved under Section 526 Cr.P.C. for the transfer of two bail petitions i.e., Kazim Hussain vs. State and Muhammad Zafar Hussain vs. State pending in the court of Mr. Mumtaz Munawar Khan Niazi, learned Addl. Sessions Judge, Khanewal on the ground that the accused/respondents had publicly declared that they had established contacts with the learned Addl. Sessions Judge and their bails will be allowed; that they have lost confidence in the aforesaid Court because they will not get justice; and that the learned Addl. Sessions Judge has given his mind in open Court regarding the acceptance of bails. 2. Learned counsel for the respondents/accused has opposed the transfer application on the ground that the reason given for the transfer of the petitions are illogical and devoid of merits. It was allegedly a device to delay the disposal of the bail petitions so that the respondents/accused may remain behind the bars for indefinite period. 3. I have considered the foregoing submission and have also gone through the parawise comments of the learned Addl. Sessions Judge who has denied all the allegations levelled in the petition for transfer. He has assured that justice will be done to the parties in accordance with law. 4. The brief facts are that a case under Sections 324/34 PPC was registered against the respondents for causing injuries to one Muhammad Ajmal, a brother of the petitioner/complainant. It is submitted that the injuries of the victim were so grievous that a blood vessel of right thigh had to be replaced through surgical procedure. The victim remained in hospital for 22 days but the injuries had not yet healed and another operation was t expected for which a Professor of Surgery at Multan had advised to remove the injured person to Lahore for second operation. It was, therefore, submitted that there was a good ground for the transfer of the case particularly when the learned Judge was allegedly under influence of the respondents/accused and had also openly expressed his mind regarding the merits of the case. 5. It is a matter of common sense that any accused, after establishing connections with the Judge would not make it a public affair. Rather such type of contracts are kept as a hidden secret. As such, the allegation made by the complainant/petitioner that the respondents/accused were publicly declaring that they had established contracts and have also earned assurance from the learned Addl. Sessions Judge that he would allow them bail, appears to be a cooked up story on its face. The other ground that the learned Addl. Sessions Judge had given his mind in open Court regarding the merits of the case is denied by him. Rather his comments show that he had been trying to get the medicolegal report on record through the Investigating Officer who was with-holding such record. The learned Judge had, thereupon, issued a show cause notice and ultimately bailable warrants were issued against the Investigating Officer as he failed to produce the aforesaid medical record as summoned by the learned Judge to satisfy himself about the natura of the injuries suffered by the victim and also to decide the matter oa its merits. In such a situation, it cannot be said that the learned Add!, Sessions Judge had acted in adverse manner towards the complainant's side or that he, in any way, stands prejudiced. I am conscious of the fact that the justice should not only be done but it should be seen to have been done. However, at the same time, it should be kept in mind that the judicial matters should not be transferred on the passing whims of the litigants. In the instant case, there appears to be no genuine apprehension regarding the mis-carriage of justice or injustice to any of the parties for which the learned Judge has also assured that the matter will be dealt with in accordance with law, 6. In view of the above facts, the petition is dismissed. (MAA) Petition dismissed.
PLJ PLJ Cr. C. (Lahore) 406 [Multan Bench] Present: MUHAMMAD NASEEM CHAUDHRY, J. MUHAMMAD SADIQ-Petitioner versus THE STATE-Respondent Criminal Misc. 1162/B-96, accepted on 20.10.1996. Bail- -Ss. 497/498 Cr.P.C.-Offences Against Property (Enforcement of Hadood) Ordinance, 1979, S. 17~-Bail--Prayer tor-Description of petitioner not in consonance with F.I.R. as to age-Nothing has been recovered at the instance of petitionerNon-apprehension of co-accused no ground to deprive petitioner of legal discretion of court-Prime facie case of further inquiry entitling petitioner to be admitted to bail-Bail allowed. [P. 407] A, B & C Mr. Shakeel Akhtar Haskrni, Advocate for Petitioner. Mehr Muhammad Sakcrn, Advocate for State. Date of hearing : 20.10.1998. judgment On the night falling between 29/30,10.1995 four persons having the fire arms are alleged to have entered the house of Ghulam Muhammad, brother of Muhammad Akram complainant in Mauza Malikpura. Those persons are stated to be aged between 20 years to 30 years. They are said to have injured Ghulam Muhammad and his wife Mst. Zainib Bibi. Those persons forcibly took away the gold ornaments and cash amount in the sum of Rs. 29.000/- and made good their escape. About the occurrence crime case No. 193 dated 30.10.1995 stands registered at Police Station Galaywal, District Lcdhran undfr Article 17 of the Offences Against Properly (Enforcement of Kudoods Ordinance, 1979. Muhammad Sadiq petitioner was arrested as the accused on 7.12.1995. An identification parade was conducted on 13.12.1995 wherein the complainant and the injured PW Ghulam Muhammad are stated to have identified him. The bail plea of this petitioner has been dismissed by the learned Sessions Judge, Lodhran on the grounds that the co-accused have not been arrested and that this petitioner was identified in the identification parade by the PWs, Hence this petition with the same desire. 2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. The contentions of the learned counsel for the petitioner are that according to the ecitals of the FIR the respective age of the accused persons was between 20 years to 30 years while in the instant matter the age of Muhammad Sadiq petitioner is mentioned by the police 38 years and that nothing has been recovered at the instance of Muhammad Sadiq petitioner-accused. He added that the involvement of this petitioner is that of further inquiry. On the contrary learned Counsel for the State canvassed that Muhammad Sadiq was identified by the PWs in the identification parade and that the injuries on the person of Ghulam Muhammad and his wife Mst Zainib Bibi are enough to corroborate the aforesaid ingredient of the prosecution evidence. According to him it is not a vase for the admission of Muhammad Sadiq petitioner to bail. My view is that it is a case of admission of Muhammad Sadiq petitioner-accused to bail. According to the police record the age of Muhammad Sadiq is 38 years while in the FIR the respective age of the accused persons was between 20 years to 30 years. It is a matter of common knowledge that the police officers show the age of the accused less when he is a person of advanced age and show the age of an accused person more when he is aged about 15/16 years. Keeping in view this aspect of the matter the description of Muhammad Sadiq petitioner is not ia consonance with the FIR as to the age of the accused persons. The identification parade without corroboration cannot be held to be sacrosanct. Nothing has been recovered at the instance of this petitioner who remained on physical remand. If some of the accused have not been arrested that is no ground for depriving Muhammad Sadiq petitioner the legal discretion of this Court. In the circumstances it is held that the case of the prosecution against Muhammad Sadiq petitioner-accused is that of further inquiry who is entitled to be admitted to bail. 3. !, therefore, accept this application and admit Muhammad Sadiq petitioner-accused to bail in the sum of Rs. 25.000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge, Lodhran with the direction to appear before the learned trial Court on each date of hearing failing which the trial Court may cancel his bail. 4. Copy dosti subject to payment of usual charges. (MAA) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 408 (DB) [Multan Bench] Present: sh. RiAZ ahmad and muhammad asif jan, JJ, MUHAMMAD AKRAM and another-Appellants versus THE STATE-Respondent Criminal Appeal No. 193-91 Murder Reference No. 315/91, accepted on 8.7,1996. Pakistan Penal Code, I860 (XLV of I860)-- S. 302/201~Conviction/Sentence~Challenge to--Un-seen occurrence- Recoveries of weapons of offence, i.e. Knife, hatchet not only highly doubtful but also discrepant and not confidence inspiring-Confession seriously doubt-Conviction cannot be based on such confession- Prosecution has failed to prove its case beyond reasonable doubt-Appeal accepted. [P. 412] A, B & C Mr. Muhammad Azam Javed, Advocate for Petitioner. Mr. Akhtar Masood Ahmad, Advocate for State. Mr, PervaizAftab, Advocate for Complainant. Dates of hearing : 2.7,98, 3.7.96, 7.7.96, 8.7.96. judgment Muhammad Aslf Jan, J.-Muhammad Akram appellant aged about 20 years, was convicted under Section 302 of the Pakistan Penal Code and sentenced to death. Besides, a fine of Rs. 10,000/- was imposed upon Muhammad Akram appellant, which was to be paid as compensation to the legal heirs of the deceased. In case of default in the payment of fine, a further period of 6 months simple imprisonment was awarded, vide judgment/order of Mr. Muhammad Aslam Sumra, Additional Sessions Judge, Layyah, dated the 29th of June, 1991. Co-accused Qaiser Abbas was convicted under Section 201 of the Pakistan Penal Code and sentenced to 6 month R.I, for assisting Muhammad Akram appellant in causing the evidence to disappear by throwing the dead body of Fazal Hussain deceased in a deserted well. 2. The trial Court has referred this matter to this Court for confirmation of the sentence of death awarded to Muhammad Akram appellant by way of Murder Reference No. 315/1991. Muhammad Akram appellant has appealed against his conviction and sentence by way of Criminal Appeal No. 193 of 1991. By this judgment/order we propose to decide these matters together. 3. The occurrence took place on the 2nd February 1989 at about 8 a.m. in village Marhanwali, which is about 12 miles from Police Station Karor of District Layyah. 4. The matter was reported on the 9th of February 1989 at 4.30 p.m. near Samtia More by complainant Muhammad All Shah (PW 6), a brother of Fazal Hussain Shah deceased and his statement Ex. PA was recorded by S.I. Manzoor Ahmad (PW 10). 5. The formal FIR (Ex. PA/1) was drawn on the same day at 5.30 p.m. by ASI Niaz Muhammad (PW 1) at Police Station Karor Pakka under Sections 302/201/34 PPG. 6. There are no eye witness of the occurrence which is admittedly un-witnessed. 7. According to the prosecution, Fazal Hussain Shah deceased, brother of complainant Muhammad Ali Shah (PW 6) left home on the 2nd of February 1989 at about 7.30 p.m. in order to purchase a cow from Muhammad Akram appellant and was carrying Rs. 5,100/-. Thereafter, Fazal Hussain Shah deceased did not return home. The complainant kept looking for the deceased for a few days, but in vain. Then a meeting of elders ( ) was held and Muhammad Akram appellant was summoned and he was asked to explain because Fazal Hussain Shah deceased was last seen with him on the 2nd of Februaiy 1989 at his tubewell which he had taken on lease. After considerable hesitation, Muhammad Akram appellant admitted that Fazal Hussain Shah deceased came to him on the fateful day to purchase a cow and was carrying cash and that in lust for money, he murdered Fazal Hussain Shah deceased by inflicting a hatchet blow on his head and also slit open his neck. Thereafter, he disposed of the dead body with the help of co-accused Qaisar Abbas by throwing it in a deserted well. Co-accused Qaisar Abbas was summoned who confirmed the narration of events given by Muhammad Akram appellant, admitted his guilt and said that they should both be handed over to the police. Accordingly, they were handed over to SI Manzoor Ahmad (PW 10), who was asked to register a case and proceed with the investigation. 8. Dr. Habib Ullah (PW 7) was posted at the D.H.Q. Hospital of Layyah on the 10th of Februaiy 1989, where he performed the postmortem examination on the dead body of Fazal Hussain Shah and found the following injuries on his person : 1. An incised wound with clean cut edges 23 cm X \ CM X shull deep also brain matter deep. Cut fracture of skull wounds visible, brain matter comming out from the side of fracture also corresponding fracture of other wounds along the line of injuries visible; said injury starting from the left side of route of nose going upward first vertically then obliquely to right side of top of head. An incised wound edges clean cut 20 cm X 3 CM X going deep on front of neck as well as lateral side of neck more on right side transfers in direction. Slooping upward with excessive cutting and damage of under lying structures. 2. An incised wound with clean cut edges 3 cm X 1 cm X going deep on left side of base of neck 4 cm away from injury No. 2 on left side. 3. Multiple abrasions on left side of upper margin of shoulder left and left clavicle area. 4. An incised wound 2 cm X \ cm x skull deep on the front of head 4 cm above hair margin of head on front side. In the opinion of the Doctor, all injuries were anti-mortem caused by sharp edged weapon. Injuries No. 1 and 2 were dangerous and fatal for life. Injuries No. 3, 4 and 5 were simple in nature. Injuries No. 1 and 2 were sufficient to cause death individually and collectively in ordinary course of nature. Probable time that elapsed between injuries and death was within few minutes and between death and postmortem 48 hours to 10 days. 9. The last worn clothes of Fazal Hussain Shah deceased were taken into possession by the Investigating Officer on the 10th of February, 1989 vide recovery memorandum Ex. P. B. which was witnessed by Mulazam Hussain (not produced), Ghulam Shabbir (not produced) and Muhammad Ali Shah (P.W.6). The currency notes worth Rs. 5,1 GO/-- were taken into possession by the Investigating Officer on the llth of February, 1989 from the shop of the appellant vide recovery memorandum Ex, P.p. which was witnessed by Manzoor Hussain Shah (not produced) and Ghulam Sarwar Shah (P.W.4). The National Identity Card of Fazal Hussain Shah deceased was also recovered by the Investigating Officer from the shop of the appellant vide recovery memorandum Ex. P.E. on the llth of February, 1989. The recovery memorandum was signed by Manzoor Hussain Shah (not produced) and Ghulam Sarwar Shah (P.W.4), The dead body of Fazal Hussain Shah deceased was retrieved from a deserted well by the Investigating Officer on the 9th of February, 1989 and taken into possession vide recovery memorandum Ex. P.H. in the presence of Ghulam Sher Shah (not produced), Bahawal alias Ballay (not produced), Muhammad Ali Shah (P.W.6) and Ghulam Qasim (P.W.8). One large piece of cloth known in common parlances as a "lokar" was recovered by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Ex. P.I in the presence of Ghulam Qasim (P.W.8), Ghulam Shabbir Shah (not produced) and Rab Nawaz (P.W.9). Some bricks were also taken into possession by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Ex. P.K in the presence of Ghulam Shabbir Shah (not produced), Ghulam Qasim (P.W.8) and Mulazam Hussain Shah (Not produced). Blood stained earth was taken into possession by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Ex. P.L. from the place of occurrence in the presence of Ghulam Shabbir Shah (not produced) and Ghulam Qasim (P.W.8). Yet another piece of cloth, presumably the cover of bicycle saddle was taken into possession by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Ex. P.M in the presence of Ghulam Qasim (P.W.8) and Ghulam Shabbir Shah (not produced). One blood stained rubber tube was taken into possession by the Investigating Officer on the 9th of February, 1989 vide recovery memorandum Ex. P. N. in the presence of the same witnesses. One knife was taken into possession by the Investigating Officer on the llth of February, 1989 vide recovery memorandum Ex. P.). From the shop of the appellant in the presence of Ghulam Qasim (P.W.8) and Rab Nawaz (P.W.9). On hatchet ( ) was taken into possession by the Investigating Officer on the llth of February, 1989 vide recovery memorandum Ex. P.P. in the presence of Manzoor Hussain Shah (not produced) and Rab Nawaz (P.W.9). The clothes of the appellant were also taken into possession by the Investigating Officer on the llth of February, 1989 vide recovery memorandum Ex. P.U. in the presence of the same witnesses. The clothes of co-accused Qaisar Abbas which he was still wearing on the llth of February, 1989, were taken off from the person of co-accused Qaisar Abbas by the Investigating Officer on the llth of February, 1989 and were taken into possession vide recovery memorandum Ex. P.V in the presence of Manzoor Hussain (not produced) and Rab Nawaz (P.W.9). 10. The accused persons pleaded total denial and false implication due to enmity. Conviction in this case is based essentially and primarily upon the so-called confession said to have been made by the accused persons, corroborated by the various items that were recovered and taken into possession. 11. The appellant as well as the co-accused denied having made any confession whatsoever and claimed that the occurrence was an unwitnessed occurrence. 12. The prosecution would have us believe that Muhammad Akram appellant as well as co-accused Qaisar Abbas were both cold blooded murderers devoid of any human feelings or emotions. It is the case of the prosecution that Fazal Hussain Shah deceased went to purchase a cow from Muhammad Akram appellant and was, therefore, carrying Rs. 5,100/- in cash. But Muhammad Akram appellant instead of selling a cow chose to murder Fazal Hussain Shah deceased by inflicting hatchet blows upon his head and also by cutting his throat with a knife. Surprisingly and suddenly this cold blooded murder alongwith his accomplice walked into a meeting of elders ( u^S.l^v ) and made a clean breast of it all the confessing their guilt. Not only that The prosecution would further have us believe that Muhammad Akram appellant as also co-accused Qaisar Abbas suddenly decided to become the main architects of their own conviction and sentence, as if they were not only keen but actually eager to pick up the noose of the prosecution and put it round their own necks. No normal, sane person would do this unless of course he wants to commit suicide. The case of the prosecution sounds like fiction rather than facts and we find it difficult to maintain a conviction involving capital punishment on such fiction. 13. The so-called confession which is essentially the basis of the conviction is totally denied by the appellant as also co-accused Qaisar Abbas. As held by their Lordships of the Supreme Court in the case of The State v. Minhun alias Gul Hassan reported in P.L.D. 1964 Supreme Court page 813, a confession retracted or unretracted, judicial or extra judicial can legally be taken into consideration against the maker thereof. However, the weight and evidentiary value of a confession is a different matter altogether from admissibility. In order to be made the basis of a conviction, the confession must not only be voluntary but must be true. In the instant case we have serious doubts about the truthfulness of the so-called confession and are not prepared to base a conviction upon such a confession which at any rate was never made by either the appellant or his co-accused. The same view was again taken by their Lordships of the Supreme Court in the case of Rehmat alias Rhaman v. The State reported in P.L.D. 1977 Supreme Court page 515 and the principle was again reiterated by the Supreme Court of Pakistan in the case of The State v, Muhammad Naseer reported in 1993 S.C.M.R. 1822. 14. The recoveries of the weapons of offence, i.e. the knife and the hatchet are not only highly doubtful but also totally discrepant and do not inspire confidence and, therefore, does not corroborated the so-called confession. 15. We are inclined to believe that this was indeed an unwitnessed occurrence. At any rate, the prosecution has not been able to prove its case again Muhammad Akram appellant and co-accused Qaisar Abbas beyond reasonable doubt. Therefore, according to the age old established principle of the administration of criminal justice, we grant the benefit of doubt to Muhammad Akram appellant as well as co-accused Qaisar Abbas and acquit them. Their conviction and sentence is hereby set aside. Criminal Appeal No. 193 of 1991 is accepted and the Murder Reference No. 315 of 1991 is answered accordingly. The death sentence is not confirmed. (MAA) Appeals accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 413 Present: SHAFI MUHAMMADI, J. Races KHAN MUHAMMAD-Applicant Versus THE STATE and 2 others-Respondents Criminal Misc. Application Nos. 395/94, 589/94, 81/94, 86/96, decided on 18.2.1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- S. 561-A-Sindh Crimes Control Act, (VI of 1975)-S. 3(l)/4-District Magistrate/Additional District Magistrate/Sub-Divisional Magistrate or a Magistrate of 1st Class, especially empowered by Government in this behalf under sub-section (2) of section 3 of Sindh Crimes Control Act shall deal with cases under Sindh Crimes Control Act, 1975--Act only in capacity of a Tribunal, if any such authority does not sign order in capacity of Tribunal then such an order may be striken down by the High Court for purpose of quashing these proceedings. [P. 417] B (ii) Sindh Crimes Control Act, 1975 (IV of 1975)- S. 5--Issuance of non-bailable warrant in the first instance, if there is no apprehension of commission of an offence, would be without jurisdiction. [P. 416 & 417] A (iii) Sindh Crimes Control Act, 1975 (VI of 1975)- S. 6-Mere statement of any police official about allegations of bad reputation against any person without any support of evidence of independent witnesses of locality where accused resides or where alleged anti-social activities are carried out, would not be sufficient to meet requirements of S. 6(iii) of Act--If any requirement of S. 6 is missing, proceeding started by Tribunal would be liable to be quashed. Proceedings quashed. [P. 418 & 419] C, D & E (iv) Sindh Crimes Control Act, 1975 (VI of 1975)-- S. 8--Interpretation of-Sub-Sections (1) and (2) of Section contain words "shall" and sub-section (3) contains word "may" yet none of these sub sections can be read in isolation of otherUnder sub-section (1) Tribunal shall proceed to inquire into truth of report and take evidence as may appear necessary, if no enquiry has been done then any action taken by Tribunal, would be void. [P. 419] F (v) Sindh Crimes Control Act, 1975 (VI of 1975)- -S. 14--Registration of large number of cases against any person may be not a ground to start proceeding against him under this section unless those cases attract any of 35 clauses of this section, particularly on general and vague allegations, such as having no means of livelihood, thief, involved in gambling, desperate, dangerous, without any evidence- If there is no nexus with allegations in report to attract this section then all steps taken by the Tribunal would be without any lawful authority, [P. ?] G Mr. Noor-ud-Din Sarki, Syed Muhammad Wiqar, Ghulam Mohiuddin Baloch, Advocates, for Petitioner. Mr. Muhammad Zaheer Qureshi, Mr. Ashiq Raza, Mr. Dani Bux Bayo, Mr. Muhammad Ashraf Leghari, Advocates for State. Dates of hearing: 5.12.94, 21.7.94, 16.6.94 and 29.6.94. judgment If someone wants to know the art of arguing matters in classical manners, it would be proper for such person to learn it from Mr. Nooruddin Sarki, one of the most respectable and learned member of the Bar at Karachi. His arguments left no choice for me but to write the following detailed judgment which would govern the disposal of following 4 Criminal Misc. Applications for quashment in the proceedings started against the petitioners under the Sindh Crimes Act 1975 (hereinafter referred to as the Act) already disposed of by this Court by passing 4 short orders:- (i) Ghulam Hussain v. The State (Cr. Misc. Application No. 395/1994). (ii) Syed Muhammad Kazifti vs. The State (Cr. Misc. Application No. 589/1994) (iii) Races Khan Muhammad Rind vs. The State (Cr. Misc. Application No. 81/91). (iv) Faqir Muhammad Rind vs. The State (Cr. Misc. Application No. 86/94). 2. Mr. Nooruddin Sarki, the learned counsel for the petitioner has referred the cases reported as Hqji Amir Ali Magsi vs. The State (1984 P.Cr.L.J. 1259) and Sohail Shahzad vs. The AC. and S.D.M. Karachi (1994 MLD 1100) in which the petitioners had been represented by me when I was serving as advocate. The classical arguments advanced by the learned counsel were that his arguments for quashing the proceedings were the same as were done in those referred case. As the proceedings in those cases were quashed therefore there could be no justification not to quash the proceedings in these cases too. Hence all the four petitions were allowed and the proceedings were quashed as prayed. I have however no hesitation to hold that the conduct of the learned S.D.Ms/Tribunals in Sindh, as observed by me in the past in the case under the Act amounts to make mouths at the decisions of the High Courts of Sindh on account of the reasons that although different benches of this Court always quashed the proceedings by now and then yet the learned SDMs/Tribunals (with no exception) always ignored these judgments. In support of this reality I would like to refer the following cases: (i) In Sohail Shahzad's case (1994 MLD 1100) proceedings were initiated by SDM/Tribunal Jamshad Quarters Karachi. (ii) In Aftab Alam alias Matoo's case (PLD 1979 Karachi 645) (D.B) proceedings were initiated by SDM/Tribunal (Central) Karachi. (ii-A) In Krishan case (1980 P.Cr.L.J. 1198) proceedings were initiated by Tribunal & S.D.M. City Hyderabad. (iii) In Hqji Amir All Magsi's case (1984 P.Cr.L.J. 1259) proceedings were initiated by SDM Shahdadpur. (iv) In Amir All & 22 others (1986 P.Cr.L.J. 30) 22 Criminal Misc. Applications belonging to different Districts of Sindh were disposed of by a common judgment. (v) In Shah Nazar Khan's case (PLD 1977 Karachi 582) (D.B) proceedings were initiated by Tribunal/D.M. of District East Karachi. Cvi) In Shew alias Sher Muhammad's case (PLD 1978 Kar. 368) proceedings were initiated by SDM/Tribunal, Kotri. (vii) In Gulzar's case (1993 P.Cr.LJ. 100) proceedings were initiated by SDM Rohri. (viii) In Tariq Aziz's case (1993 P.Cr.L.J. 2499) proceedings were initiated by SDM/Tribunal S.I.T.E. Karachi. (ix) In Muhammad Aslam Gujar's case (1993 P.Cr.L.J. 1389) proceedings were initiated by SDM/Tribunal Jamshado Quarters Karachi, (x) In Muhammad Alam's case (1993 P.Cr.L.J. 489 proceedings had been started by S.D.M. Liaquatabad Karachi, (xi) In Abdul Waheed Bajwa's case (1993 P.Cr. L.J. 1382) proceedings were started by SDM/Tribunal, Airport Karachi. (xii) In Sikar's case (1993 P.Cr.L.J. 2292) proceedings were started by SDM/Tribunal Rohri). (xiii) InAfzal Khan's case (1993 P.Cr.L.J. 455) proceedings had been initiated by S.D.M./Tribunal S.I.T.E. Karachi. (xiv) In Muhammad Yousufs case (1993 P.Cr.L.J. 1374) proceedings were started ty S.D.M./Tribunal Nazimabad Karachi. In the cases is hand proceedings were started by S.D.M./Tribunal Dokri, SDM/Tribunal Landhi, and by SDM/Tribunal Tando Muhammad Khan respectively. I have referred all these cases only to show that no area of Sindh (The urban or Rural) is safe from the illegal proceedings taken by the well-educated and responsible Tribunals of SDMs inspite of this known reality to them that such proceedings were always quashed by the High Court. It cannot be believed that such learned responsible officers were unaware of the judgments and the observations made therein against their illegalities committed in these proceedings, but inspite of that, they never stopped from doing the same illegalities again and again. In other words they have no respect for the judgments delivered by this Court. It, therefore, requires some serious steps to be taken against the concerned persons to bring this practice of violating the observations, made by this Court, intentionally and deliberately. This bitter and painful reality has forced this Court to discuss the Act and its different provisions in detail to some extent, particularly those, which are usually violated and become a cause for quashing the proceeding in all such cases. 3. The Sindh Crimes Control Act was introduced in the province of Sindh on 27th March 1975 with laudable purposes to control anti-socia elements by reventing them from repeating their anti-social activities which could affect the society at large. This Act could provide a sigh of relief to the law abiding citizens of this province but most of the police officers sed it as a weapon of torture under the protection of Tribunals established under section 3 of the Act in violation of the Human Rights for the last 20 years in the shape of stereotype reports submitted by police officials and the same type of procedure adopted by the Tribunals. It has become a routine that police submits a report that Mr. so and so supports offenders and his past shows that he was challaned in so many cases. Due to his fear no private person is daring to give evidence against him and his remaining at large will be dangerous for the general public. Hence the report is submitted under Section 14(4) of Sindh Crimes Control with a request to issue his warrant of arrest. In this report no information is provided regarding the fate of those cases which are referred in the report. 4. Now on the bases of the report if it is not defective the Tribunal is bound to issue a summons requiring the person complained against to appear if he is not in custody. In case the person is in custody or if there is pprehension of commission of an offence which cannot be prevented otherwise except by the immediate arrest of the said arrest then warrants for his production or arrest, as the case may be, can be issued by tribunal instead of issuing a summon. In other words, issuance of non-bailable arrants in the first instance, if there is no apprehension of commission of an offence, would be without jurisdiction. Reliance in this regard can be placed on the case of Wahid Bux vs. The State reported in 1977 P.Cr.L.J. 2577 and on the case of Hqji Amir All Magsi (1984 P.Cr.L.J. 1259). However it has been observed by this Court that mostly a warrant of arrest is issued at the request of the concerned police official in violation of section 5 of the Sindh Crimes Control Act 1975 even though nothing is shown in the report, that there is an apprehension of the commission of an offence. It becomes one of the main grounds to quash proceedings started by any S.D.M. It is necessary to point out that an authority taking cognizance of a case under section 3 of the Act, may he/she be District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or a Magistrate of first class called especially empowered by the Government in this behalf, but he/she shall take cognizance in capacity of a Tribunal because section 4 of the Act starts with the words "A Tribunal shall take cognizance "The word "shall" used with the word "Tribunal" is of great importance. At present, mostly the S.D.Ms in Sindh are acting as Tribunals. But, it has been observed in most of the cases that the police officers submit their reports to the S.D.Ms and not to the Tribunals. Similarly the S.D.Ms also put the seal of S.D.Ms on their orders instead of putting the seal of Tribunal. Although such technicality may not be treated a sufficient ground to strike down all proceedings taken by the police officials or the S.D.Ms only on this ground yet such as objection, if taken by the learned counsel for the petitioner cannot be ignored. This point can be explained with the help of an example. Most of the First Class Senior Civil Judges in Sindh act as Assistant Sessions Judges as well as Rent Controllers. It would become a matter of laughing stock if any Rent Application is filed before any such Court with a title Before the Hon'ble Assistant Sessions Judge "and the Court also puts a seal of ASJ while passing an order of ejectment or dismissing the said application. Such type of technical mistakes cannot be ignored by the appellate Court by this Court. On the strength of this explanation I am of the view that an authority taking action in the proceedings under section 4 of the B said Act, may she/he be a District Magistrate, Additional District Magistrate, Sub. Divisional Magistrate or a Magistrate of the first class, specially empowered by Government in this behalf under sub-section (2) of Section 3 to act as Tribunal within local limits of his/her jurisdiction, the said authority shall deal with the cases of the Sindh Crimes Control Act only in capacity of a Tribunal as is clear from section 3(1) of the Act. If any such authority does not sign the order in capacity of a Tribunal then such an order may be strike down by the High Court of Sindh for the purpose of quashing these proceedings. The summary of the above discussion is that sections 4, 5 and 6 are connected with one another in such manners that none can be separated from the other. These sections require the following steps for stalling any proceeding under the Sindh Crime Control Act. 1st Step : A police officer, not below the rank of S.I., has to make a report under section 4(h) of the Act against a person who is alleged to be involved in un-social activities. This report must be completed in all respect as discussed earlier. 2nd Step : When the report is submitted before the Tribunal is whose jurisdiction the person complained against resides or the act complained against is alleged to have been committed (section 4(a) of the Act), the Tribunal must see that the report of the police officer is complete in all respect After this satisfaction the Tribunal shall proceed further 3rd step : On receipt of the report and satisfaction, the Tribunal shall issue summon and not warrant. If there is need of issuing warrants, then reasons must be brought on record in writing. Violations of any of the above step would justify the High Court to quash the proceedings. 5. Besides the illegalities or irregularities committed in respect of sections 3, 4 and 5 of the Act as pointed out in the preceding paragraph, section 6 of the Act is also usually violated in all such proceedings. This section contains the words "shall" thrice in it. A bare perusal of this section makes it mandatory that: (a) Every summon or warrants issued under section 5 shall be accompanied by a copy of the report and ; (b) Such copy shall be delivered by the officer serving or executing such summons or warrants to the person sewed with or arrested under the same. Provided that the report shall briefly state. (i) the acts with which the person complained against is charged; (ii) the details of the time and place of such acts; (iii) the general repute of person complained or such other allegations made against him. It has been mostly observed that neither the police officer who submits the report nor the Tribunals take pain to satisfy themselves regarding the requirements of the above-mentioned proviso to section 6 of the Act. It has become a routine of police officers to submit such report before the tribunal which contains vague and general allegations and lacks material particulars such as the time and the place of acts with which the alleged persons are charged with as per requirements of section 6(l)(ii) of the Act. Moreover such reports have no mention of general repute of the person charged with as required under section 6(iii) of the Act. In case of allegations of bad reputation levelled against any person, it is necessaiy that such allegations be substantiated by evidence of independent witnesses of the locality where the said person resides or where the alleged anti-social activities are carried on by the said person. Mere statement of any police official in this regard without any support of evidence would not be sufficient to meet the requirements of section 6(iii) of the Act. I am, therefore, of the view that if any requirement of section 6 is missing, as has been discussed above, the proceedings started by any Tribunal would be liable to be quashed by the High Court. These defects were common in all the four petitions in hand and this was one of the grounds that I had quashed proceedings in these petitions by passing short orders on the dates when they were put for regular hearing before me. 6. Next comes the requirements of section 8 of the Act. Before touching section 8 of the Act, it is necessary to point out that a Tribunal constituted under section 3 of the Act shall be deemed to a Court and the proceedings before the Tribunal shall be deemed to be judicial proceedings (section 12 of the Act). It is also necessary to point out that although a Magistrate of First Class who is much less in powers as compared to a District Magistrate yet, in capacity of a Tribunal, such Magistrate shall have all powers of a District Magistrate for the purpose of (i) issuing summons and warrants (ii) compelling attendance of witnesses (iii) production of documents (iv) examination of witnesses or issuing commissions for examination of witnesses (v) inspection of sites and (vi) such other matters not provided for in this Act but may be necessary for completion of the inquiry (section 10 of the Act). For the purpose of collecting evidence to reach any conclusion the tribunal has certain powers under section 13 of the Act which power are not possessed by other courts. While construing section 8 of the Act, I am of the view that the Tribunal must keep before its eyes the requirements of 10, 12 and 13 of the Act which leave no doubt that enquiry to be conducted under section 8 of the Act must reflect judicial proceedings and not administrative measures. If the enquiry conducted by the Tribunal is devoid of the spirt possessed by judicial proceedings then the High Courts cannot put a seal of legalization on such enquiry except to quash the proceeding pending before that Tribunal. In the light of this dictum, section 8 of the Act can be full understood with reference to its requirements. Although sub-sections (1) and (2) of Section 8 of the Act contain the words "shall" and sub-section (3) certains the word "say" yet none of these sub-sections can be read in isolation of the other. Under Section 8(1) of the Act, the Tribunal shall proceed to inquire into the truth of the report upon which action has been taken and to take evidence as may appear necessary. This enquiry cannot be made in the air without any evidence. The enquiry has to be done to find out the falsehood or truth of contents of the report. Therefore it would be totally illegal to accept the report as to be based on truth without holding an enquiry. On account of this reason if no enquiry has been done then any action taken by the Tribunal, in absence of any enquiry as required under section 8(1) of the Act, would be void. Sub-section (2) of section 8 of the Act further confirms then above proposition by the use of word "shall" that inquiry shall be made as may be practicable, in the manner for conducting trials and recording evidence in summons cases under the Code of Criminal Procedure 1898. 7. It is only the result of inquiry under section 8 of the Act which warrants a Tribunal to pass an order under section 14 or section 15 of the Act. If on inquiry the Tribunal is satisfied that it is not necessary to require the person to execute a bond of good behaviour, it shall make an entry on the record to that effect and shall discharge the person and if he is in custody then the Tribunal shall release him as required under section 15 of the Act. Contrary to the above, if on inquiry the Tribunal is satisfied that case of the person complained against is attracted by any of the 35 clauses, then the Tribunal shall require him to furnish a bond with one or more sureties for such period not exceeding three years and for such amount as may be specified to be of good behaviour as required under section 14 of the Act. It is most necessary to point out that section 14 of the Act contains 35 clauses most of which contain the words "frequently, in the habit of or habitually etc. The word habit attracts a customary conduct of a person which arises from frequent repetition or indulgence on such acts connoting depravity of character. Such character needs evidence and not mere allegation. In order to keep a check on habitually addicted offenders, the provision for opening the history sheet and entering the names of such persons in surveillance register are provided for. It is therefore evident that mention of few cases in the report countable on finger tips would not justify any Tribunal to exercise its powers under section 14 of the Act. Similarly registration of large number of cases against any person may also be not a ground to start proceeding against him under the Sindh Crimes Control Act unless these cases attract any of the 35 clauses of section 14 of the Act and particularly when such cases are registered on the bases of general and vague allegations such as having no means of livelihood, thief, involved in gambling, desperate, dangerous etc. but without any evidence. Similarly if there is no nexus with the allegations made in the report to attract section 14 of the Act then all the steps taken by the Tribunal would be without any lawful authority. Reference in this regard can be placed on the cases reported in PLD 1979 Karachi 51 and PLD 1978 Karachi 368. 8. I have avoided to discuss other sections of the Act but it is necessaiy to point out that most of the sections of the Act contain the word "shall" and the implications of this word must not be ignored by any of the Tribunal. For the sake of brevity the following few lines are referred hereinbelow from the Act. (i) A Tribunal shall take cognizance Section 4. (ii) On receipt of report, the Tribunal shall issue summon. Section 5. (iii) The Tribunal shall proceed to inquire into the truth of the report Section 8(i). (iv) Such inquiiy shall be made Section 8(2). (v) It shall require Section 14 (vi) It shall make an entiy Section 15. (vii) Shall be committed to prison Section 16. (viii) Shall bind him Section 18(1). (is.) Shall be punished Section 18(2). If the Tribunals ignore the implications of word "shall" while exercising their powers, the High Court would be bound to strike down all their acts. 9. On the bases of this discussion made hereinabove I perused the record and proceeding of the petitions in hand which unfolded that: (i) In the case of Ghulam Hussain (Cr. Misc. 395/94), the report of S.H.O. Bakrani (Syed Amjad Shah) contains mention of several cases out of which, more or less, 15 cases were registered one after the others without any break from F.I.Rs. No. 2/94 to 23/94 in a serial but without any detail of time and places of the offences to be mentioned there or the fate of the pending cases. (ii) In the case of Syed Muhammad Kazmi (Cr. Misc. No. 589/94) the report of S.H.O. contains mention of 7 cases without any other detail as required by different provisions of the Sindh Crimes Control Act. (iii) In the case of Races Khan Muhammad Rind (Cr. Misc. No. 81/1994) the report of S.H.O. Muhammad Younus Jat of P.S. Shah Karim contains mention of 5 cases. Proceedings in two cases were quashed. One case resulted in acquittal. One case is still pending while the fate of fifth case is not known to anyone. This situation does not attract the Sindh Crimes Control Act to be brought in operation against the petitioners, and (iv) In the case of Faqir Muhammad (Cr. Misc. No. 84/94) the S.H.O. P.S. Tando Muhammad Khan submitted a report which contains mention of only two cases without any information about their fate. In view of what I have stated above I hold that proceedings taken against these petitions under the Sindh Crimes Control Act were without jurisdiction and consequently of no legal effect. Resultantly the proceedings against the petitioners stood quashed as prayed. 10. By my short orders I had allowed the petitions by quashing the proceedings on different dates and these are the reasons for passing those orders. (MAA) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 422 Present: sajjad ahmad sipra, J. AHMAD YAR and another-Appellants versus THE STATE-Respondent Criminal Appeal No. 914 of 1992, heard on 3-11-1993. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- -Ss. 303(a) & 299(g)-Qatl committed under "Ikrah-i-Tam"-Essentials- Perusal of S. 303(a), P.P.C. with S. 299(g), P.P.C. highlights three requirements, (i) putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death; or (ii) instant permanent impairing of any organ of the body; or (Hi) instant fear of being subjected to sodomy or Zina-bil-Jabr. [P. 429] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- Ss. 303(a), 302/149, 302/109 & 148-Appreciation of evidence-Motive on account of established enmity between parties had failed to ad% - ance prosecution case-Recovery of licensed gun from accused was of no avail to prosecution-Medical evidence having raised serious possibility of eceased having died by a single shot had prevented Court from coming to a definite conclusion to ascribe said shot specifically to either of accused-Presence of one eye-witness on the scene of occurrence was highly doubtful-Complainant's testimony could not be relied upon without independent corroboration which was lacking-Statements of accused recorded under S. 342, Cr.P.C. which were left in field, ther fore, were to be accepted in their entirety which showed that at the time of occurrence one accused had only fired in self-defence which right could not be weighed in golden scales to determine their liability-Said statements of accused were also supported by conclusion arrived at by police pursuant to its investigation-Accused were acquitted in circumstances. [Pp. 430, 431, 432 & 434] B, C, D, E, F & G Ijaz Batalui and M.A. Zafar for Appellants. J.V. Gardner, for the State. Abdus Sattar Chughtai, for the Complainant. judgment This criminal appeal calls into question the legality and propriety of the impugned judgment dated 26-10-1992 passed by the Additional Sessions Judge, Bhalwal, District Sargodha, whereby he convicted Ahmad Yar and Manzoor appellants under section 303(a), P.P.C. and sentenced them to 25 years' R.I. each. Benefit of the provisions of section 382-B, Cr.P.C. was also awarded to them, while rest of their co-accused were acquitted of the charges. Nazira complainant has filed Criminal Revision No. 725 of 1992 and Criminal Revision No. 96 of 1992 for enhancement of the sentence of the appellants and against the acquittal of their co-accused, respectively. The criminal appeal as well as the criminal revision petitions, are being disposed of by this single judgment. 2. The brief facts of the prosecution stoiy as disclosed in the F.I.R. Exh. PA are that on 6-7-1991 at 1-00 p.m Nazira complainant and Muhammad Azam deceased drove their cattle to Kirana canal with the area f village Mateela to take water to them. They both were present at the bank of canal when a blue coloured car stopped on the eastern bank of the canal opposite to the complainant and the deceased. Ahmad Yar accused armed with a double-barrel gun, Manzoor accused armed with a single-barrel gun, Muhammad Afzal acquitted accused carrying a rifle, Nawaz and Bashir acquitted accused armed with Sotas alighted from the car. Ahmad Yar accused shouted 'Lalkara 1 that Muhammad Azam deceased would be given the taste for insulting him and then fired hitting Muhammad Azam deceased on his neck and face. Manzoor accused fired at the deceased hitting him on the left side of the ribs. On receipt of these injuries the deceased fell down. Muhammad Afzal acquitted accused fired ineffective shots with his rifle. Subsequently to this, Ahmad Yar, Manzoor and Muhammad Afzal accused made indiscriminate firing but no one was hit. In defence of person, the complainant fired at the accused with his licensed gun but no one was hit. On hue and cry P.Ws. Manzoor and Muhammad who were present nearby attracted to the spot and witnessed the occurrence. On seeing the P.Ws. and other people, the accused left away in their car towards their own Dera. The complainant and the P.Ws went near the deceased and found him dead. 3. Motive for the occurrence was stated to be that Muhammad Afzal acquitted accused intended to many with Mst. Asmat Bibi sister's daughter of the complainant but due to hostile attitude of the complainant the acquitted accused could not many Mst. Asmat Bibi. Due to the abovesaid ispute, Muhammad Afzal and Ahmad Yar accused had beaten up the complainant about 1-1/2 months prior to the occurrence in question and to avenge that beating Muhammad Azam deceased slapped Ahmad Yar accused 20 days before the occurrence. 4. Two days before the occurrence in the evening Shera and Iqbal P.Ws came to the Dera of the complainant and the deceased and told them that on the same day in the morning Allah Yar, Ata Muhammad and Dosa accused persons instigated their co-accused to kill the deceased. 5. At the start of the trial, Ahmad Yar, Manzoor Ahmad, Bashir, Muhammad Nawaz and Muhammad Afzal accused persons were charged under section 148, P.P.C. for having framed an unlawful assembly resulting in violence, under section 302/149, P.P.C. for having murdered Muhammad Azam deceased in prosecution of the common object of that unlawful assembly and under section 324/149, P.P.C. for having made murderous assault on Nazira complainant in prosecution of the common object of that unlawful assembly. Allah Yar, Ata Muhammad and Dosa acquitted accused were charged under section 302, P.P.C. read with section 109, P.P.C. for having abetted and instigated their co-accused to kill Muhammad Azam deceased. The accused persons denied the charge and claimed to be tried. 6. At the trial the prosecution examined as many as 11 witnesses. Manzoor Ahmad, Shera, Khawaja, Allah Yar and Shamsher Ali, Constable P.Ws. were given up as unnecessary. Nazir, P.W.I and the complainant and Muhammad P.W.2 furnished the ocular account of the occurrence. They reiterated what the complainant had stated in the F.I.R. and also deposed about the motive. Iqbal P.W.3, supported the charge of abetment. Muhammad Nawaz P.W. 4, identified the dead body before the doctor. Muhammad Yousaf P.W.5 witnessed the recovery of gun P. 1 of Manzoor accused. The remaining recoveries were attested by Muhammad Inayat P.W.6 Doctor Amjad Iqbal P.W. 7 made autopsy on the dead body. Muhammad Ashraf, Revenue Patawri P.W. 8, prepared the site plans Exhs. PH and PH/1. Constable Sikandar Zulqarnain P.W.9, got post-mortemed the dead body and attested the recovery memo. Exh. PI in respect of last worn clothes of the deceased. He also transmitted a sealed parcel of earth from the police station to the office of the Chemical Examiner, Lahore. Muhammad Mumtaz Head Constable P.W.IO, kept the said sealed parcel in his custody for some time. Faiz Muhammad, Inspector P.W. 11, investigated the case. On 6-7-1991 at 4-30 p.m. Doctor Amjad Iqbal P.W.7, conducted post mortem examination on the dead body of Muhammad Azam deceased and found the following injuries :-- (i) A wound of entry with inverted margins 1-1/4 x 3/4 c.m., going in, on the right side of nose 1 c.m. below the inner angle of right eye. The margins of the wounds were showing darkening. (ii) A wound of entry with inverted margins 1-1/4 x 3/4 c.m. going in on front and base of left side of neck 1-1/2 cm above the medical end of left clavical. Darkening was present on the margins of the wound. (iii) A wound of entiy with inverted margins 1-1/4 c.m. x 3/4 c.m. going in, on the front to lateral aspect of the left lower chest. (iv) Buldged area 2 c.m. on the posterio lateral aspect of right chest in lower limit of middle l/3rd of right chest. (v) Buldged area 1-1/2 c.m. x 1-3/4 c.m. on the lumber region of the back 3-1/2 c.m. x on the left side of midline at the level of 4th lumber vertabrae. On dissection under injury No. 1 the pellet entered through this injury and penetrated through skin, maxillary bone of right side, ethomoid bone and base of skull and stopped in the lateral side of foreman magnum. The pellet entered through injury No. 2, passed from skin to muscles and soft tissues of neck with the angle from left to right and backward and the,n crossed oesophagus obliquely from above no downwards and entered the right lung from the lower portion of abqve lobe and left it from the lateral and lower portion of middle lobe and then passed through the 8th inter costal space and stopped under injury No. 4 from where the pellet was recovered. The pellet entered through skin from injury No. 3 and damaged 10th rib without fracturing it and crossed the colon from above downwards and backwards and then stopped under the skin near injury No. 5 from where the pellet was recovered. The doctor found ten ounces of semi-digested food in the stomach. Small intestines were healthy while large intestines had been damaged. Bladder was empty. In the opinion of the doctor death was occurred due to accumulative effect of all the three injuries, which was sufficient to cause death in the ordinary course of nature. These were ante-mortem and were caused with a gun. Probable time that elapsed between the injuries and death was immediate while that between death and post-mortem examination was within five hours. The doctor certified under his report Exh. PG that the deceased suffered death by violence. 8. Faiz Muhammad Inspector P.W. 11, drafted the F.I.R. Exh. PA on the statement of Nazira complainant P.W. 1 at 2-30 p.m. on 6-7-1991 and then reached the spot. He prepared injury statement Exh. PJ and inquest report Exh. PK about the deceased and dispatched the dead body to the mortuary through Constable Zulqarnain. Thereafter, he collected bloodstained earth from the spot and made it into a sealed parcel under memo. Exh. PB. He had examined the P.W. under section 161, Cr.P.C. and also took into possession last worn clothes of the deceased after post-mortem examination vide memo. Exh. PI. Ahmad Yar, Manzoor Ahmad and Bashir accused were arrested in this case on 25-7-1991. Muhammad Nawaz accused was apprehended on 1-8-1991. While in police custody, Ahmad Yar accused got recovered blue coloured car No. 204/MIA from his Dera which was taken into possession under memo. Exh. PD. He also led to the recoveiy of his licensed gun P. 3 which was secured vide memo. Exh. PF, Manzoor Ahmed accused got recovered gun .12 bore P. 1 from his Dera which was taken into possession through memo. Exh. PC. Bashir accused produced Sota P. 2 and the same secured under memo. Exh. PE. After completion of the investigation, all the accused were challaned to Court. 9. When exa ined under section 342, Cr.P.C. all the accused persons denied the charge once again and rebutted each piece of prosecution put to them. In an answer to a question as to why this case against him, Ahmad Yar accused replied as follows : "On the day of occurrence, I alongwith Manzoor and Bashir accused was going to Qazi Hakim of village Miana Chah to get medicines and when we reached near village Mateela the tyre of our car was punctured and we went to village Mateela to get the tyre repaired, that after getting the tyre repaired, we proceeded to village Miana Chah, obtained medicines from the said Hakirn and returned, that when we reached near bridge Piranwala in the area of village Mateela on the eastern bank of Kirana Rajbah, a fireshot hit the car from the western side breaking the year left side glass, that we alighted from the car arid fired in defence of person and that in the cross-firing Muhammad Azam deceased was hit." No witness was examined in defence nor the accused made statement on oath in disproof of the allegation. 10. The learned trial Court had convicted and sentenced Ahmad Yar and Manzoor appellants, while acquitting the rest of the accused, vide the impugned judgment, as stated above. 11. The learned counsel for the appellants, the State and the complainant were heard at length and record of the case perused with their assistance. The learned counsel for the State has supported the impugned judgment and contended for maintaining the conviction and sentences awarded to the appellants. 12. On the other hand, the learned counsel for the appellants argued for allowing the present appeal and setting aside the impugned judgment and submitted as follows : (a) That the case against the appellants, as charged, was not proved, as the prosecution had failed to prove their guilt beyond reasonable doubt. (b) That the conviction and sentences awarded to the appellants under the provisions of section 303(a), P.P.C. is not sustainable, as there is no definitive finding to the effect that the complainant party was put in fear of instant death or instant permanent impairing of any organ of body etc. as the learned trial Court had, on the contrary, come to the firm conclusion that the parties had fired in self- defence at each other, pursuant to chance meeting, as stated in para. 14/page 19 of the impugned judgment. (c) That as the said section 303(a), P.P.C. had been made part of the Pakistan Penal Code recently, therefore, there being no case-law, as yet, dealing with the interpretation and enforcement of the said provisions, reliance had to be placed on the established principles of law in interpreting and enforcement of the requirements of proof for the provisions of the said section. (d) And finally argued, in the alternative, that if the finding of the learned trial Court was to be accepted, i.e. that both the parties had opened fire at each other, as they apprehended danger to life from each other, then the complainant party, being equally guilty of the provisions of the said section, should have been charged and sentenced accordingly in accordance with the principles of parity and consistency. 13. The Court has given its anxious consideration to the contentions raised by the learned counsel for the appellants. To deal with the said contentions, it shall be appropriate to reproduce the charge preferred against the appellants and their acquitted co-accused by the learned trial Court, which is as follows :-- "Firstly: That on 6-7-1991 at about 1-00 p.m. within the area of village Mateela, Tehsil Bhalwal you Ahmed Yar and Manzoor accused armed with guns, Muhammad Afzal accused armed with rifle, Nawaz and Bashir accused armed with Sotas formed an unlawful assembly which resulted in violence and thereby committed an offence punishable under section 148, P.P.C. with the cognizance of this Court. Secondly: That on the said date, time and place you the aforementioned accused persons armed as above, in prosecution of the common object of that unlawful assembly murdered Muhammad Azam deceased by firing at him and thereby committed an offence punishable under section 302, P.P.C. read with section 149 of the same Code within the cognizance of this Court. Thirdly: That on the said date, time and place in prosecution of the common object of that unlawful assembly one of your assailants Muhammad Afzal made murderous assault on Nazir Ahmed complainant by firing at him with such intention or knowledge if he had been killed as a result of firing, you all would have been guilty for his murder and thereby committed an offence punishable under section 324, P.P.C. read with section 149, P.P.C. within the cognizance of this Court. Fourthly. That on 6-7-1991 in the morning at the Dera of Paluana \ ithin the area of village Mateela you Allah Yar, Ata Muhammad and Dosa instigated and abetted your above-named co-accused to kill Muhammad Azam deceased and that with your abetment the co-accused killed him on the same day at about 1-00 p.m. and thereby committed an offence punishable under section 302, P.P.C. read with section 109, P.P.C. within the cognizance of this Court." It shall be further appropriate to reproduce the provisions of section 303(a), P.P.C. under which provisions, the appellants were finally convicted and sentenced by the learned trial Court, vide the impugned judgment. The said provisions are as follows :-- "303. Whoever commits Qatl,-- (a) under Ikrah-i-Tam shall be punished with imprisonment for a term which may extend to twenty-five years but shall not less than ten years and the person causing 'Ikrah-i- Tam' shall be punished for the kind of Qatl committed as a consequence of his Ikrah-i-Tam." The definition at Ikrah-i-Tam as stated in subsection(g) of section 299, P.P.C. is as follows :-- "(g) 'Ikrah-i-Tam' means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or Zina-bil- Jabr." 14. As is evident from the wording of the charge reproduced above, the prosecution had embarked upon trial of the appellants and their acquitted co-accused specifically alleging that the accused had been guilty of Qatl-e-Ajnd under the provisions of section 302, P.P.C. Section 302, P.P.C. is as follows :-- "302. Whoever, commits Qatl-i-Amd shall, subject to the provisions of this Chapter be (a) punished with death as Qisas : (b) punished with death, or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case. If the proof in either of the forms specified in section 304 is not available, or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable." Qatl as defined in subsection (j) of section 299, P.P.C. means causing death of a person. 15. The case of the prosecution against the appellants and their acquitted co-accused was to the effect that they had caused the death of the deceased Muhammad Azam. It has been further taken notice of that the crux of the entire prosecution evidence produced at the trial was also to the same effect, but the learned trial Court had not accepted the case of the prosecution thus set up against the accused and had come to the conclusion that the death of the deceased Azam had taken place under the circumstances that only proved the case against the present two appellants under the provisions of section 303(a), P.P.C. and not under the provisions of section 302, P.P.C. as stated in the impugned judgment. Therefore, the Court is of the view, that the vital ingredients of the provisions-of the said section 303(a), P.P.C. were to be proved beyond reasonable doubt for their conviction to be sustained under the said provision of law. Therefore, it shall be relevant to discuss as to what ingredients are essential to establish the offence covered by subsection (a) of section 303, P.P.C. A reading of section 299(g), P.P.C. duly highlights the following requirements:-- "(i) Putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death, or (ii) Instant permanent impairing of any organ of the body, or (iii) Instant fear of being subjected to sodomy or Zina-bil-Jabr." 16. The relevant ingredient of the said section 303(a), P.P.C. in the instant case is, whether or not, the deceased, in the first instance, or any other member of the complainant party, having hlood relations within the prohibitory degree of marriage to the said deceased, had been put in fear of instant death or instant permanent impairing of any organ of the body, at the time of the fateful occurrence in question. 17. In this respect, a perusal of the prosecution evidence highlights that the testimony of both the eye-witnesses namely, P.W.I Nazir and P.W.2 Muhammad is to the effect that both the parties had a chance meeting on the canal in question while being on the opposite banks of the said canal and that it further stands admitted by the said to eye-witnesses during their cross-examination that they had also fired at the accused party, through claiming to have done so in self-defence, whereas the two appellants herein namely, Ahmad Yar and Manzoor had taken up the same plea of having fired in self-defence while recording their statements under the provisions of section 342, Cr.P.C., thus negating the conclusion arrived at by the learned trial Court vide the impugned judgment to the effect that the appellants had put the deceased and his companions in fear of instant death or instant permanent impair of any organ of the body or instant fear of being subjected to sodomy or Zina-bil-Jabr. In this respect, it may be further elaborated that a chance meeting between two inimical groups, both being armed with deadly weapons at the relevant time, cannot be interpreted to hold only one party had been put in fear of instant death etc. Specially in the present situation, wherein both the parties had admittedly fired at each other with their respective weapons. Further circumstance that needs to be highlighted in that respect is that both the parties were on different banks of the canal and thus were separated from each other by the width of the canal, as is evident from the site plan Exh. PH/1 and the testimony of P.W.8 Muhammad Ashraf, Revenue Patwari, and that, therefore, the only conclusion that can be drawn under such facts and circumstances is to the effect that both the parties had stood their ground to open fire at each other with their respective fire-arms. Therefore, pursuant to the above discussion, it is hereby held that the instant case was not covered under the provisions of section 303(a), P.P.C. and as such the conviction and sentence imposed on the appellants vide the impugned judgment under the said provisions is not sustainable in law. 18. Therefore, the Court is constrained to examine the case against the appellants as charged in the first instance i.e. under the provisions of section 302, P.P.C. read with section 148/149/109, P.P.C. The Court taking up the case of the acquitted co-accused of the present appellants as urged on behalf of the complainant/revision petitioner, deems it sufficient to observe that the learned trial Court's reasons stated for their acquittal are fully supported by the evidence on the record and the learned counsel for the revision petitioner failed to make out a case for interference with the order of their acquittal recorded vide the impugned judgment. This brings the Court to the case of the prosecution against the appellants as charged. The Court is constrained to observe that the prosecution had failed to prove the said charge against the appellants beyond reasonable doubt. In this respect, it is emphasised that whereas the motive custs both ways, which, because of the established enmity between the parties, by itself fails to advance the case of the prosecution against the appellants in any manner and that the recovery of the licensed gun of appellant No. 1 Ahmad Yar is of no avail to the prosecution to support the said charge against the appellants. Similarly, the recovery of the car in question vide Exh. PD, damaged by the fire shots admittedly fired by the complainant Nazir P.W.I, also goes in favour of the appellants, as it strengthens their case of having come under direct fire by the complainant and further strengthens their defence version regarding having fired in self-defence. Whereas the post-mortem examination report Exh. PG supported by the testimony of P.W.7 Dr. Amjad Iqbal raises serious possibility of the deceased having died by a single shot, which further weakens the case of the prosecution and prevents the Court from coming to a definitive conclusion to ascribe the said shot specifically to either of the appellants. Furthermore, the testimony of P.W.2 Muhammad is of very weak nature, as the reasons stated for his being present at the time and place of the occurrence, cannot be relied upon, as he himself admitted in his crossexamination that he had neither stated the said reason before the police nor has any other material been brought on the record to prove that the reason stated by him regarding the purchase of buffalo etc. can be relied upon. In addition thereto the said eye-witness P.W. 2 Muhammad categorically denied that the complainant P.W.I Nazir had fired on the accused party, whereas the said P.W.I had himself admitted to have done so during his E testimony before the Court and that, therefore, for the aforestated reasons, it is hereby held that the possibility of the said P.W. 2 not being present on the spot cannot be ruled out in positive terms and that consequently the benefit thereof has to go to the appellants. 19. Resultantly, the Court is left with the sole testimony of complainant P.W.I Nazir, which cannot be relied upon to either prove the charge or to uphold the conviction and sentences awarded to the appellants as discussed earlier, without independent corroboration which, tinder the circumstances stated above, is not forthcoming. Therefore, it is hereby concluded by holding that under such facts and circumstances, the only piece of evidence that can be taken into consideration is the statements of the appellants themselves under the provisions of section 342, Cr.P.C. which are to the effect that the appellant No. 1 Muhammad Yar, had only fired in retaliation to defend their persons, which was their legal right, but merely the said statements cannot be made basis of convicting them under the provisions of section 302, P.P.C., as taking their statements in their entirety the right of self-defence cannot be weighed in golden scales to determine their liability for the injury or death that they may have thus caused to any one including the deceased. Further notice has been taken of the fact that the said statements of the appellants duly find support from the conclusion arrived at pursuant to the investigation conducted by the police in the nstant case, as is borne out by the testimony of P.W.ll Faiz Muhammad, Inspector. 20. The aforestated conclusions are fully supported by placing reliance upon the following precedents :-- Palvinder Kaur v. The State (AIR 1952 SC 354), wherein it has been held that confession and admission must either be accepted as a whole or rejected as a whole and the Court is not competent to accept only the inculpatory part while rejecting the inculpatory part as inherently incredible. Muhammad v. haus and 4 others (1972 SCMR 264), wherein has been held that where each side claims the other to be aggressor, the mere fact that the complainant party suffered greater number of injuries, would not relieve it of he initial act of aggression. Arif'Nawaz alias Goldy and 2 others v. The State (PLD 1983 ah. 94), wherein it has been held that the eye-witnesses being not on better footing than the complainant and not acting independently and they having different case before the police and at trial, cannot be relied upon... Ghulam Murtaza v. The State (PLD 1989 Kar. 293) wherein it has been held that no implicit reliance can e placed on the statements of interested eye-witness in absence of corroboration. Sultan Khan v. Sher Khan and others (PLD 1991 Supreme Court 520), wherein it has been held that the statement of the accused recorded under section 342, Cr.P.C. must be accepted or rejected as a whole nd he Court cannot select out of it the passage which goes against the accused. Wajid Umar alias Gogi u. The State (1992 PCr.LJ 1536), wherein it has been held that the accused has the inalienable right to impeach the character, integrity and credibility of the witness by confronting him with any material that may establish that the said witness was not & just (Adil) witness, and that it is the essential requirement that there should be two such Adil witnesses to prove a case of Qisas against the accused, The State v. Muhammad Hanif and 5 others (1992 SCMR 2047), wherein it has been held that where the prosecution evidence stands rejected in its totality, the statements of the accused has to be accepted in its totality and without scrutiny and that amplitude of right of self-defence under Injunctions of Islam is far wider than is available under Pakistan Penal Code. All Muhammad v. The State (1993 PCr. LJ 557), wherein it has been held that the statement of the accused being quite in accordance with the medical evidence, had to be accepted in totality and without scrutiny, especially when the prosecution story is contradicted by the medical evidence. la this respect, further strength is drawn by placing reliance upon the publication titled 'Qisas-wa-Diyat' published by 'Idarah Tehqiqat-e- Islam': wherein at page 141 it is held as follows :-- Muhammad Idrees v. The State (PLD 1965 (W.P.) Lah. 553). In this Division Bench Judgment it was held that the burden of establishing right of self-defence cannot be as heavy as burden resting on the prosecution as the context of circumstances of the case did not enable the Court to fix the stage or point of time at which accused ought to have ceased causing further harm to the deceased, therefore, excess, if any, committed by accused was condoned and his conviction under section 302, P.P.C. was set aside. Jamal Din v. The State (1972 SCMR 800), wherein it was held that the accused could not measure his right of selfdefence in golden scales or to modulate his defence step by step and was acquitted of the charge of murder by further holding that he was entitled to complete right of selfdefence. Mahmoad Akhtar v. The State (1987 PCr. LJ 1641), wherein it was held that the right of private defence cannot be weighed in golden scales, further holding that the Court to view with indulgence to acts of person who in heat of moment under strong feeling of self-preservation peruses his defence a little further than is absolutely necessary. Ghulam Murtaza and another v. The State (1993 PCr. LJ 1646), wherein it was held that the right of private defence cannot be weighed in golden scales and that the accused is the judge of his own danger and law permits him to repel the attack even to the taking of life and that the accused's version is to be accepted if the same appears to be reasonable/possible in the circumstances of the case. 21. Therefore, pursuant to the above discussion, it is hereby held that the prosecution had failed to prove its case as charge against the appellants and it is further held that the conviction and sentences awarded to them by the learned trial Court under the provisions of section 303(a), P.P.C. was not sustainable in law, as stated above. Resultantly, the present criminal appeal is allowed, the impugned judgment is set aside and the ppellants are acquitted of all the offences charged. hey shall be released orthwith, if not required to be detained in any other matter. 22. For the aforestated reasons, Criminal Revisions Nos. 96 of 1992 and 725 of 1992, directed to be heard alongwith the present criminal appeal, are hereby dismissed. (A.P.) Appeal allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 435 Present: MUHAMMAD AQIL MffiZA, J. Hafiz MUHAMMAD SIDDIQUE ANWAR-Petitioner versus STATE-Respondent Crl. Misc. No. 486-Q/95, accepted on 27.10.1997. Pakistan Penal Code, 1860 (XLV of I860) -S. 500 read with Sections 173 and 198 of Criminal Procedure Code, 1898-- Offence u/s 500 PPC, Whether report U/S. 173 Cr. P.C. lawful-Question ofOffence u/s 500 PPC may be investigated by police on direction of a magistrate but trial magistrate cannot competently take cognizance of the offence in pursuance of report submitted under Section 173 Cr. P.C.- Provisions of Section 198 Cr. P.C. specifically bar taking of cognizance of offence except on a complaint made by an aggrieved person-Trial Magistrate cannot competently proceed in matter in pursuance of police challanHe has jurisdiction to take cognizance of offence punishable u/S. 500 PPC if a complaint is directly filed before him by an aggrieved person, and not on police reportHeld : Learned trial Magistrate has no jurisdiction to hold trial on police challan-Petition accepted. [P. 440] A Mr. Shazib Masood, Advocate for Petitioner. Mr. Masood Akhtar Sheikh, Advocate for Respondent. Date of hearing: 27.10.1997. judgment FIR No. 418 dated 3.11.1994 was registered at Police Station Jhang Bazar Faisalabad at the instance of Maulana Saeed-ur-Rehman Anwari against Hafiz Muhammad Siddique Anwr, petitioner herein and some others under Section 500 PPC, on the allegation that the petitioner on account of personal animus had published a false pamphlet against the complainant in August 1994 with a view to defame him and that another pamphlet containing baseless and fail allegations against the complainant was ready to be published. The police found Hafiz Muhammad Siddique Anwar and Sadiq Ali guilty of the allegations levelled by the complainant and submitted report under Section 173 Cr. P.C, whereupon cognizance was taken by the Magistrate 1st Class, Faisalabad. The accused persons moved application under Section 249-A Cr. P.C. for acquittal, inter alia, on the ground that the offence under Section 500 PPC was non-cognizable and therefore, the Magistrate had no jurisdiction to proceed in pursuance of a police challan. The learned Magistrate vide order dated 12.9.1995, however, dismissed this application after holding that the police challan would be treated as complaint of the aggrieved person. Hafiz Muhammad Siddique Anwar and Sadiq All then filed revision petition which too has been dismissed by the learned Additional Sessions Judge Faisalabad vide order dated 30.11.1995. This quashment petition has been filed by Hafiz Muhammad Siddique Anwar to challenge the aforementioned orders passed by the learned Additional Sessions Judge and the Magistrate and for quashment of the F.I.R. 2. Mr. Shah Zeb, Masood, learned counsel for the petitioner has made two fold submissions. First, the offence punishable under Section 500 PPG is a non-cognizable offence and there being no permission by the Magistrate to investigation the case, the very investigation and proceedings taken by the police are without jurisdiction. In this view of the matter, he has contended that the challan submitted by the police under Section 173 Cr. P.C. is total nullity in the eye of law with the result that the learned Magistrate could not initiate proceedings in pursuance thereof. The second submission made by him in that by express provisions of Section 198 Cr. P.C. a criminal court can take cognizance of the offence covered by Section 500 PPG if the complaint is made by the aggrieved person. According to the learned counsel, it necessarily means that a criminal court can take cognizance of the offence punishable under Section 500 PPC if a complaint was directly made by the aggrieved person himself and not through a challan submitted by the police. In support of these submissions Mr. Shah Zeb Masood, Advocate has paled reliance on the following case law : (i) Haider and 13 others vs. The State (1969 P.Cr. L. J. 598). (ii) Mst. Mumtaz Begum and 4 others vs. The State (1968 P.Cr. L.J. 97). (iii) Saeed Ahmad Siddiqui vs. The State (1983 P.Cr. L.J. 1619). (iv) Muhammad Asiam vs. The State (1993 P.Cr. L.J. 205). (v) Hussain Bakhsh vs. The State (PLD 1963 Lahore 46). (vi) Maijuddin Laskar and 13 others vs. Maulana Nurunnabi (PLD 1965 Dacca 421). 3. Mr. Masood Akhtar Sheikh, Advocate appearing on behalf on the respondent-complainant has submitted that the learned trial court after the submission of the challan by the police had taken cognizance of the offence, in that, copies of the statements recorded under Section 161 Cr. P.C. have been supplied to the petitioner and in these circumstances the report of the police submitted under Section 173 Cr. P.C. will be treated to be a complaint made by the aggrieved person. At any rate, he has submitted that taking cognizance on the police challan is a mere irregularity which does not vitiate the proceedings. He has placed reliance on the following case law :- (i) The Crown vs. NurAlam (PLD 1955 Lahore 667). (ii) Muhammad Aslam vs. The State and another (1980 P.Cr. L.J. 742). 4. In order to appreciate the respective contentions raised by the learned counsel for the parties the relevant provisions of law may be taken note of. The offence of defamation covered by Section 500 PPG was initially non-cognizable under the provisions of Schedule II of the Cr. P.C. In 1964 this offence was made cognizable but by virtue of the provisions of Act 4 of 1986 this offence was against made non-cognizable. The admitted position, therefore, is that at the time when the alleged occurrence took place in 1994 the offence covered by Section 500 PPG was not cognizable. 5. The relevant provisions which require examination are Sections 4 (1) (h), 190 and 198 of the Criminal Procedure Code. Section 198 of the Code enjoins that no court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under Sections 493 to 496 of the same Code, except upon a complaint made by some person aggrieved by such offence. The offence punishable under Section 500 PPG is included in Chapter XXI of the P.P.C. Section 190 prescribes the conditions and circumstances in which a Magistrate can take cognizance of an offence. he word 'complaint' has been defined in Section 4(l)(h) of the Code. These provisions are reproduced below :- 4(l)(h). "complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer." S. 190-- "Cognizance of Offences by Magistrates. --(1) Except as hereinafter provided any Judicial Magistrate specially empowered in this behalf by the Provincial Government on the recommendation of High Court may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed " S. 198- "Prosecution for breach of contract, defamation and offences against marriage. No. Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence; " 7. The precise question involved in the present case is whether the Magistrate can take cognizance of the offence under Section 500 PPG on a police challan submitted under Section 173 Cr. P.C. In other words, can the challan submitted by the police be treated as a complaint within the meaning of Section 198 Cr. P.C. 8. This very question came up for discussion in Saeed Ahmed Siddiqui vs. The State (1983 P.Cr. L.J. 1619). In the precedent case the allegations of defamation were first complained of before the District agistrate who sent the case to the SHO for investigation. The police registered the F.I.R. and thereafter report under Section 173 Cr. P.C. was iled in the court of the Magistrate who in pursuance thereof summoned the accused person, petition for quashment of the proceedings before the trial magistrate was filed in this Court. Muhammad Munir Khan, J. held :-- "It is now well-settled that the word "complaint" used in Section 198 Cr. P.C. should not have a different meaning from one given in Section 4(l)(h) Cr. P.C." It was further held that in view of the provisions of Section 198 Cr. P.C. the Magistrate could not have taken cognizance on the report submitted by the police. The relevant discussion is reproduced below : " .............................. For all these reasons, I hereby hold that as far the registration of case on the complaint sent by the learned District Magistrate, registration of the FIR investigation and the submission of the challan to the Magistrate on 20 th February, 1983, no exception can be taken. Be that as it may the fact remains that, as long as Section 198 Cr. P.C. is there, the Magistrate cannot take the cognizance and proceed further on such challan. In short, although he police was competent to register case on the complaint sent to it by the learned District Magistrate, investigate the case and submit its report, nevertheless, Mr. Farrukh Ahmed Khan, Magistrate 1st Class, could not take cognizance of the case on the challan submitted before him on 20th February, 1983, as, he, under the law was specifically restrained from taking cognizance and proceeding further except on a complaint. So far as his contention at No. 3 is concerned, I shall deal with it while discussing the point No. 1 raised by the learned counsel for the complainant. As far the last contention, this also appears to be devoid of force. The language of Section 198, Cr. P.C. that no Court shall take cognizance except on a complaint" indicates that these are mandatory provisions affecting the very jurisdiction and the authority of the Court to proceed in the matter and as such its violation would be an illegality ot curable by Section 537, Cr. P.C. The case-law relied on by the learned Assistant Advocate General is quite distinguishable. It is now well settled that no Court can take cognizance of offence under Section 500 PPG except on a complaint by aggrieved person filed before it, therefore, the failure to file complaint is not an omission, irregularity or error which can be cured by Section 537, Cr. P.C. The wording of section makes it crystal clear that the Court cannot take cognizance of a case falling under Chapter XXI, P.P.C. until and unless there is a complaint before it made by a specified person. If no complaint is made to the Magistrate, no jurisdiction is conferred on him to take cognizance of offence under particular section. It is, therefore, a case of complete absence of jurisdiction." In Afsar Khan etc. Vs. The State etc. (NLR 1985 Criminal 440), it was held that cognizance of offence under Section 500 PPG can be taken only on private complaint and cognizance on police report is an illegality which is not curable under Section 537 Cr. P.C. and accordingly the proceedings pending before the Magistrate were quashed. In Muhammad Aslam vs. The State (1993 P.Cr. L.J. 205), it was found that a non-cognizable offence cannot be investigated by the police without the order of a magistrate. Taking this view it was held as follows :-- " ....... that the arrest of the accused persons, the investigation conducted by the police and submission of report/challan in the trial court are wholly without jurisdiction and the proceedings initiated in routine before the court on such investigation and police report are clearly and abuse of the process of court." 9. The case of The Crown vs. Nur Alam (PLD 1995 Lahore 667) which has been relied upon by the learned counsel for respondent No. 1 (complaint of the FIR) is clearly distinguishable. It was an anti-corruption case in which some of the evidence had been collected at a stage when the Investigating Officer was not dully armed with authority as required by law. It was in these peculiar circumstances that it was held that the police report fell within the purview of Section 190(l)(b) or (a) Cr. P.C. It was not a case covered by Section 198 Cr. P.C. which bars the jurisdiction of a court to take cognizance of the case on a police report under Section 173 Cr. P.C. Similarly the case of Muhammad Aslam (supra) also does not deal with the effect of Section 198 Cr. P.C. 10. The upshot of the whole discussion is that while a case in respect of an offence under Section 500 PPC may be investigated by the police on the direction of a magistrate but the trial magistrate cannot competently take cognizance of the offence in pursuance of the report submitted under Section 173 Cr. P.C. Provisions of Section 198 Cr. P.C. specifically bar the taking of the cognizance of the offence except on a complaint made by an aggrieved person. The trial Magistrate cannot competently proceed in the matter in pursuance of the police challan. He has the jurisdiction to take cognizance of the offence punishable under Section 500 PPC if a complaint is directly filed before him by an aggrieved person, and not on police report. In so holding I have respectfully followed the view taken in the case of Saeed Ahmad Siddiqui (supra). The result is that the learned trial Magistrate has no jurisdiction to hold the trial on the police challan. 11. For what has been discussed above, this petition is accepted. The impugned order of the learned Magistrate and the learned Additional Sessions Judge are set aside and the proceedings pending before the learned Magistrate are quashed. (A.A.J.S.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Kar.) 441 Present: SYED DEEDAR HUSSAIN SHAH, J. IDDRIS and others-Appellants versus STATE-Respondent Criminal Appeal No. 9 of 1994, accepted on 5.8.1996. Pakistan Penal Code, 1860 (XLV of I860)- -Ss. 307/148 & 149 read with S. 11 of Zina (Enforcement of Hadood) Ordinance, 1979-Glaring inconsistency in between ocular evidence and medical evidence is not to be taken lightly^-Any benefit of doubt arising out of ocular evidence and medical evidence is to be awarded to accused and not to prosecution-Alleged identification of appellants on torch light during odd hours of night is not free from doubt-Evidence of prosecution does not inspire confidence to be truthful-Prosecution story is not consistent; variations and improvements in story introduced by P.Ws. does not appear to be plausible-Appeal allowed. [Pp. 453 & 454] A & B Mr. ArifAH Soomro, Advocate for Appellant. Mr. Abdul Fatah Mughal, Advocate for State. Date of hearing: 5.8.1996. judgment Learned IVth Additional Sessions Judge, Larkana while deciding the Sessions Case No. 156/1981 was pleased to award conviction to the appellants under section 148, 307 r/w S: 149 PPG and section 11 of Zina (Enforcement of Hadood) Ordinance 1979 and sentenced them to undergo R.I. for one year, under section 148 PPG and further R.I. for three years and fine of Rs. 1000/- or in default to undergo R.I. for 9 months more, u/s 307 PPG r/w S: 149 PPG, and also sentenced them R.I. for three years and fine of Rs. 1000/- or in default to undergo R.I. for 9 months more and whipping numbering 5 strips under section 11 of Zina (Enforcement of Hadood Ordinance 1979). 2, The case of the prosecution is that on 1.4.1981 at about 10.00 a.m. complainant Photo alongwith his son Gulab and Muhammad Nawaz, brother Ghulam Hyder and father Khan Muhammad, were residing in the same house, his caste-fellows Muhammad, Dhani Bux, Saleh Khlhora by caste also used to reside in the same village. About one year back Muhammad Kalhora suspected his daughter Mst. Najma to be on illicit terms with Muhammad Nawaz the son of complainant. Complainant took "Holy Quran" to satisfy him that it was a false allegation, but they paid no heed and on the contrary left the village. On that account Muhammad and his relatives had a grudge and were not on visiting terms. On the night of the incident, complainant alongwith his brother Ghulam Hyder, sons Gulab and Muhammad Nawaz and his father Khan Muhammad after taking their night meals went to sleep alongwith their family members. Gulab was married with Mst. Amiran and was sleeping in the Courtyard of the house alongwith his wife. When at about 0030 hours, he woke up on the barking of dogs and flashed the torch on which he found Ghulam Hussain S/o Muhammad Kalhoro, Ismail, and Nooro armed with hatchets, Haji armed with lathi while Saleh, Sadoro and Idrees armed with guns standing there and dragging Mst. Amiraa Complainant, his sons, brother and father challenged the accused, on that accused gave hatchet and lathi blows. He (complainant) received the lathi blows on his right hand and back. Accused Sadoro, Saleh and Idrees directly fired from their guns which hit his father Khan Muhammad and Gulab. Due to fear they did not go near the accused who forcibly took away Mst. Amiran. On cries and gun reports Mehrab Sarwar and other villagers came running and they also followed the accused. Accused on seeing them coming nearer, left Mst. Amiran at the call distance from complainant's house and went away firing in the air. Complainant went and narrated the incident to Nek Marad Meeral Khan Kalhoro. Due to odd hours of the night and non availability of conveyance complainant in the morning came to the police station alongwith injured Khan Muhammad, Ghulam Hyder, Gulab and Muhammad Nawaz where he lodged the report. The motive as alleged by the prosecution was that accused was suspecting complainant's son Muhammad Nawaz to be on illicit terms with Mst. Najma daughter of Muhammad and in order to take revenge they had caused them the injuries and abducted Ms?. Amiraa 3. S.H.O. Muhammad Mithal after recording the F.I.R. recorded the statement of Khan Muhammad, Ghulam Hyder, Gulab, Muhammad and prepared mashirnama of injuries in presence ofmashir H.C. Qurban All and Shah Nawaz. The injured were referred to the Hospital for their examination, treatment and certificate. S.H.O. in the company of complainant Photo visited the Wardat and prepared mashirnama in presence of Muhammad Khan and Muhammad Aslam. SHO secured three empty cartridges from the place of wardat and also torch produced by complainant and prepared such masirnama. S.H.O. then recorded the statement of PW Meeral, Mst. Amiran, Mehrab, Ghulam Sarwar , Allah Bux and Shafi Muhammad. S.H.O. also prepared mashirnama where Mst. Amiran was stated to have been left by the accused. On 2.4.1981 SHO arrested Muhammad Idrees, Saleh, Haji, Ghulam Hussain and prepared mashirnama in presence of same mashirs and on the same day accused Haji produced lathi, he secured the same and prepared the mashirnama. Accused Ghulam Hussain produced hatchet in presence of same mashirs, S.H.O. secured the same and prepared mashirnama. Accused Idrees produced his licensed gun and license book, he secured the same and prepared the mashirnama in presence of same mashirs. He also arrested accused Ismail and Noor and prepared mashirmana in presence of mashir Lai Khan and Juman, he also secured hatchet from accused Ismail and prepared ma.shirna.Tna in presence of same mzshirs. He also secured hatchet from accused Noor in presence of same mashirs. After completion of formal investigation accused were challenge in the Court. The learned trail Court framed the charge for offence punishable u/s 148, 307 r/w S: 149 PPC and u/s 11 of Zina (Enforcement of Hadood Ordinance 1979), to which accused pleaded not guilty. 4. The prosecution in support of the case examined complainant Photo Ex; 12, who produced FIR at Ex. 13, P.W. Ghulam Hyder Ex; 14, Gulab Ex. 15, Muhammad Nawaz Ex. 16, Mehrab Ex. 17, Meeral Ex. 19 who produced mashirnama ofwardat Ex. 20, mashirnama of securing torch from complainant Ex. 21, mashirnama from where Mst. Amiran was left by the accused Ex: 22, mashirnama of arrest of accused Idrees, Saleh, Haji Ghulam Ex. 23, mashirnama of recoveiy of lathi from accused Haji Ex. 24, mashirnama of recoveiy of hatchet from accused Ghulam Hussain Ex. 25, mashirnama of recoveiy of gun & license from accused Idrees Ex. 26, mashirnama of arrest of accused Ismail and Nooro Ex. 27, mashirnama of recovery of hatchet from accused Ismail Ex. 28, mashirnama of hatchet from accused Nooro Ex. 29, Medical Officer Ex. 32, Mst. Amiran Ex. 33, S.H.O. Muhammad Mithal Ex. 34, PWs Ghulam Sarwar and Khan Muhammad more given up by learned APP and side of the prosecution was closed vide statement of APP Ex. 36. Statements of the accused under section 342 Cr. P.O. were recorded in which they denied the prosecution allegation and pleaded that they were innocent. Accused Idrees stated that on the date and time of incident he was present at Post Office at Radhan and produced certificate issued by Post Master Radhan Ex: 41-A. After hearing the learned counsel for the State and the accused trial Court was pleased to convict the appellants as mentioned hereinabove. 5. I have heard Mr. Asif All Soomro learned Counsel for appellants who contended that the ocular evidence is not in confirmity with the medical evidence, that learned trial Court has wrongly discarded the evidence of Medical Officer Dr. Rafeeq Ahmed Memon. That the learned trial Court has failed to appreciate that the X-Ray reports, per se were not admissible in evidence and could have been used only as corroborative evidence. That learned trial Court has wrongly placed reliance on the evidence of prosecution witnesses complainant Photo, PWs Gulab, Ghulam Hyder, Muhammad Nawaz Mst. Amiran, Mehrab, Meeral and S.H.O. Muhammad Mithal, which is vitiated by the material contradictions, inter se basic improbabilities and that medical evidence is in conflict with the ocular version given by P.Ws. That the learned trail Court has erroneously failed to appreciate that the prosecution has not produced any tangible circumstantial evidence to corroborate the ocular testimony of the P.Ws. That there is in consistency in the evidence of P.Ws. as some of them had deposed that they indentified the accused on torch light whereas others have stated that they identified them on the light of hurricane lamp. That the learned trial Court in its judgment has disbelieved the recovery whatsoever against the appellants. The benefit of which should have been given to the accused rather the learned trial Court has simply discarded the circumstantial evidence and convicted the appellants. 6. Mr. Abdul Fatah Mughal learned Counsel for Addl. A.G. has supported the judgment and contended that motive is mentioned in the FIR lodged by Photo that accused appellants have been named in the FIR. That accused/appellants have been assigned specific role by the prosecution witnesses and the evidence of the P.Ws is natural and inspire confidence. That Mst. Amiran was kidnapped from the house and she has supported the case of prosecution. 7. Mr. Asif Ali Soomro has referred 1983 S.C.M.R-1292 (Bagh Alt v. Muhammad Anwar & others). Muhammad Anwar respondent was tried for the murder of Ghulam Muhammad and was sentenced to death, besides being directed to pay fine of Rs. 5000/- or in default to suffer rigorous imprisonment for two years by the learned Sessions Judge, Khairpur. This Court by its order dated 10.3.1983 allowed the appeal of Muhammad Anwar respondent setting aside his conviction awarded by the Sessions Judge Khairpur. Bagh Ali Petitioner approached the Supreme Court. The facts of this preferred case are that Bagh Ali brother of deceased Ghulam Muhammad lodged FIR at P.S. Baberloi, Taluka Khairpur on 16.10.1978 at 9:30 a.m stating therein that he was residing alongwith his brother Ghulam Nabi in a separate house, where his brother Ghulam Muhammad deceased and his younger brother were living with their father at a short distance from his house. Nikah of deceased with one Mst. Alman daughter of Muhammad Mithal Meflo was performed about 12 months before and the marriage ceremony was to take placed on the following day of occurrence. After performance of Nikah they had come to know that Muhammad Anwar was on terms of illicit intimacy with Mst. Alma. On the fateful day when Bagh Ali was sitting in his house at sun rise time, Ghulam Muhammad deceased and Ghulam Nabi went to their Juwar cultivation for cutting grass. After some time Ghulam Nabi came running and informed Bagh Ali that Ghulam Muhammad had been given hatchet blows by Muhammad Anwar accused in Juwar cultivation and he had fallen down with his head severed from the trunk of his body as a result of injuries. Ghulam Nabi informed Bagh Ali that he had placed the bundle of grass on his head when Muhammad Anwar accused appeared at spot armed with hatchet. Ghulam Muhammad asked accused Muhammad Anwar to help the bundle of grass on his head. The latter did so and while deceased was holding the bundle with both his hands Muhammad Anwar gave hatchet blow on his neck whereupon deceased fell down and then two more blows were given by Muhammad Anwar to the deceased on his neck as a result of which his head was severed from his body. In this back ground FIR was lodged, Muhammad Anwar was convicted by the learned Sessions Judge, Khairpur, and this Court allowed the appeal as referred hereinabove. The Honorable Supreme Court after considering the prosecution case judgment of the trial Court and appeal decided by this Court observed as follows :- "Evidence of the physical circumstances produced by the prosecution byway of corroboration apparently would not by itself be sufficient for conviction. In this case we find that the High Court on a proper assessment of the circumstances on record, came to the conclusion that evidence of Ghulam Nabi PW was unreliable and not truthful. In this connection learned Judges have discarded the evidence of motive as unnatural and improbable. The version of Ghulam Nabi (PW) that the accused struck three blows with a hatchet on the neck of the deceased, on while he was in standing position and second when he was knocked down, appears to be in conflict with the medical evidence. The arguments of the learned Counsel that it was for the accused to have clarified in his cross examination from the doctor whether the injury found on the neck of the deceased could be result of a single blow is not tenable. There was an apparent contradiction in the doctor's saying that he found only one injury and the ocular testimony stating three injuries, which it was the obligation of the prosecution to clarify and not of the accused." (ii) 1983 P.Cr. L.J. -1227 (Thargai @ Rifle @ Abdul Ghafoor v. The State). Facts in brief are that appellant suspected deceased Hqji to be having illicit intimacy with Mst, Morzadi the wife of appellant on 17.10.1979 at 1- a.m, P.Ws Mst. Zahra Mst. Sharma, and Allah Bakhsh, who are sister, mother in law and brother in law of Hqji respectively, woke up on the cries and saw in the light of lamp, Thangai sitting on the chest of Hqji and inflicting injuries with knife on his throat. Witnesses raised cries and attempted to catch him hut he made his escape good leaving Hqji in injured condition. Noor Muhammad Bugti and others were attracted on the cries and reached the spot after the departure of Thangai and were given facts of the incident by the eye witnesses. Mst. Zahra carried the injured Hqji in tractor with trolly arranged by Noor Muhammad to Police Station Baberloi and lodged the FIR. Injured Hqji was then alive but was unconscious and could not speak. Such report was lodged by his sister Mst. Zahra After lodging of the FIR injured was referred to Hospital for examination, treatment and certificate. On the way to the Hospital Hqji died. After lodging of the FIR Thangai accused produced blood stained knife which he took out from the box lying in his house and finally he was challaned in the Court. Where case proceeded and accused Thangoi was convicted by the learned 1st Additional Sessions Judge, Khairpur for an offence u/s: 302 PPC and sentenced with death and fine of Rs: 50QO/- in default of payment of fine R.I for two years." The Division Bench of this Court consisting their Lordship Sajjad Ali Shah and Ali Nawaz Budhani-JJ in appeal after considering/analysing ocular evidence and medical evidence observed as follows :- "In the judgment in the reported case references have been made to the text-books on the point of identification in the light of moon, the concluding finding is that when the witnesses had admittedly awakened from sleep, they could have only a momentary glimpse of their assailants and such evidence is unsafe for recording a conviction in a murder case. In the instant case we hold that the claim of the eyewitnesses to have seen and identified the appellant on the spot in the circumstances and for the stated above on this point is not free from doubt". (iii) 1982 P.Cr. L. J. 1325 (Gitl Hassan and other v. The State) Decision of Division Bench of this Court consisting his Lordship Nasir Aslam Zahid (as he then was) and Ali Madad Shah-J, The prosecution story briefly is that deceased Laiq and his brother Ghazi were easing themselves apart from each other, in jungle near their village and on the eventful day in the morning hours. All of sudden there were cries by the Laiq S/o Saindad Mashori. Ghazi his brother rushed to the spot and saw that all the four appellants were be-labouring laiq with hatchet blows. Two other persons Sikandar and Ahmed Mashories r/o the same village, who two were in the same jungle for easing themselves, were attracted by cries raised by Liaq (deceased) and they rushed to that place and witnessed the actual incident of assault on the deceased by the appellants. The appellant left wardat declaring that they done deceased to death as he had married the daughter of one Khamiso, whose hand they were interested to have. Ghazi lodged the report at Dokri Police Station and police started investigation, Gul Hassan, Abdul Latif and Ahmed Ali appellants were arrested on 22.6.1982 and police also recovered from each of them a Wood stained hatchet. After final decision of investigation appellants were put on trial before the Court and learned 1st Additional Sessions Judge, Larkana convicted the appellants for an offence punishable under section 302 r/w S: 34 PPG and sentenced each of them to life imprisonment and fine of Rs: 10.000/- in default of payment of fine R.I for six months more. While hearing the appeal, and considering the evidence the learned D.B was pleased to observe as: "It is the settled principle of law that evidence of witnesses is to be examined in the context of the facts and the circumstances of each case has its peculiar features. In the instant case the ocular evidence consists of three witnesses Ghazi complainant, Sikandar and Ahmed who are admittedly related to the deceased as indicated above. Their presence near the wardat and eventful time for the purpose of seeing themselves in the jungle does not seems to be natural coincidence. They had been living in the big village and call of nature attending on only them and none also was like a dramatic event. Of course, they have not been attributed any malice for falsely implicating the appellants and the number of the injuries found on the deceased as disclosed in the medical evidence gives impression that the deceased was done to death by more than one persons yet the version of their presence near the wardat as to have been able to witnesses the incident is such that their evidence needs to be corroborated as to confirm its credibility". On recovery the observation of the learned Division Bench is as follows : "Mere recovery of hatchet without blood stained does not constitute corroborative evidence". (3) P.L.D. 1988 Karachi 521 (Yousafv. The State). In this matter two FIRs were lodged, First FIR was lodged in Crime No: 148/1981 filed on 23.12.1981 at Police Station Mehar by complainant Haji Jumo S/o Haji Teveno for offences U/s: 302, 307, 397, 394 PPC and 17/3 Hadood Ordinance. According to FIR complainant Haji Jumo and his friend Bashir on 23.12.1981 at 10-00 p.m on the top of the Saleh Shakh near village Allah Aando and Allah Dino Teveno met four persons who were sitting in hiding and were armed. They came out and surrendered the complainant and his complainant, on the light of torch identified from them as Shafoo s/o Arab Khoso armed with Trooh S/o Arab Khoso armed with hatchet but did not indentify the remaining two who were also armed with gun, and hatchet respectively. Accused Trooh and another persons asked complainant Haji Jumo and his companian Bashir to hand over cash and watches otherwise they will be murdered, Trooh robbed complainant of Rs: 150/- and citizen watch and his friend Rs: 70/- and his Camy Watch who handed over those articles to his brother Shafoo. Accused persons ordered complainant and his friend to remove the cloths upon which they raised cries which attracted to the spot persons from nearby village. On seeing witnesses coining near Shafoo and one other, persons who were armed with gun fired witch accidently hit Trooh and one other unidentified accused who was armed with hatchet and both of them fell down injured on the top. After that Shafoo and unidentified accused ran away. Witnesses Bachal, Allah Dino, Hqji Qasim, Muhammad Yousaf and Ma2ar reached the spot who were appraised of the facts of the incident, went and saw Trooh having sustained gun shot injuries on the shoulder and was unconscious. The other injured was unidentified accused with hatchet, who had sustained gun shot injuries but was able to speak and gave his name as Ghulam Muhammad S/o Muhammad by caste Gachal. Yousaf and Hqji Qasim went to village Khondi and brought a Jeep in which both the injured were taken to police station but on the way Trooh expired. Report of Hqji Jumo complainant as stated above was registered by SHO Abdul Razaq of P.S Mehar. Robbed property in the shape of two wrist watches, one of Westend Company and Camy Company valued at Rs: 300/- and Rs: 200/- respectively and cash of Rs: 150/- and Rs: 70/- was recovered. This FIR is Ex: 9 on the record. SHO after visiting the wardat and after recording the statements of number of the witnesses and carrying progress of investigation further came to the conclusion that FIR bearing No: 148/1981 was false and took steps for cancellation of that FIR. SHO himself became the complainant and filed second FIR being Crime No: 1/1982 on 3.1.1982 for offence u/S. 302, 307, 34 PPC. On the record Yousuf, and Hqji Jumo were shown as accused persons. The version in this FIR is that on 23.12.1981 in the morning Hqji Jurno, his brother Yousuf and their friend Bashir went to the fair at Khairpur Nathan Shah. Jumo and Yousuf returned by Bus and at about 7-30 p.m got down at Burdo bridge. Trooh S/o Arbab Khoso and Ghulam Muhammad Gachal were present there and all the four started going towards village Khondi by the Saleh Shakh. On the way there was exchange of harsh words and abuses between them after which trooh and Ghulam Muhammad went to village Khondi while Hqji Jumo and Yousuf went to their village. Yousuf took his licensed gun and Haji took his hatchet and concealed themselves in Saleh Shakh at 2-00 p.m Trooh and Ghulam Muhammad have reached there and were challenged by Hqji Jumo and Yousuf. Yousuf fired from his gun at Trooh, who became injured and Ghulam Muhammad also sustained injuries from fire arm. On the cries which attracted to the spot Hqji Qasim, Bachal and Allah Dino who were appraised about the facts by Yousuf and Ghulam Muhammad, Trooh expired. In this back ground Yousuf appellant and coaccused Jumo were put on trial for an offence u/s: 302, 307 r/w S: 34 PPC for the murder of Trooh and causing injuries of PW Ghulam Muhammad. Learned 1st Additional Sessions Judge, Dadu convicted Yousuf and sentenced him to death and a fine of Rs: 5000/- or in default to R.I for six c;r.:hs. He was further convicted and sentenced to suffer R.I for 7 years and fins of Rs: 5 jOO/- or in default R.I for six months for causing injuries to P.W Ghulam Muhammad. While co-accused Jumo was acquitted. In this back ground of the matter the rule laid down by the Division Bench consisting his Lordship Sajjad Ali Shah and Saleem Akhtar (as they then were) is as follows : "It is held in the case of Sardar Bazg v. State W&VSt. L.5. 690 , that if injured eye-witnesses stands clearly 'Deleft 'uy medical evidence, then in those circumstances medical evidence is to be preferred and further it would be highly dangerous to rely upon evidence of 'such witness for the purpose of conviction. Injured eye witness Ghulam Muhammad stated in his evidence that after the incident accused persons confessed to the witnesses that they had fought with deceased Trooh and him and there was no mentioned of extra judicial confession by accused in the second FIR or statement of this witnesses recorded on 23.12.1981. 1.O. has confirmed this omission." P.W Ghulam Muhammad also lied in his deposition when he stated on oath that after the incident deceased Trooh was semi conscious and witnesses talked with him. This is contrary to the prosecution case, which is to the effect that after the incident Trooh remained unconscious and died on the way in the Jeep." On the recovery of empties the observation of learned Division Bench is as under : "On this subject legal requirement is that if crime empty is recovered before recovery of weapon, then same should be sealed at once and sent to Ballistic expert even without waiting for weapon because this would be best precaution to minimize chance of manipulation". 8. I would like to discuss the evidence and the conclusion arrived at by the learned trial Court. Admittedly this incident took place during night time at about mid night when P.Ws were sleeping, and woke up on the barking of dogs. No doubt in FIR Photo complainant has stated that appellant were identified on the torch light, whereas in evidence recorded by trial Court he stated, "we identified these persons on the light of hurricane lamp". Complainant was confronted in cross examination by the learned Counsel for accused and complainant replied," I had stated in my FIR that I identified the accused on the light of hurricane lamp". In order to introduce the hurricane lamp for the identification of appellants, complainant in his examination in chief stated, "Police did not immediately register my FIR but they took notes of my statement which were not read over to me", My FIR was registered after the police visited the wardat. I produce the torch before police. Police received the hurricane lamp but was not secured". This version of the complainant is belied by Muhammad MithaJ I.O who stated," I recorded the F.I.R of complainant Photo in 154 Cr.P.C book, read over the same to him and obtained his LTI. I see the FIR Ex: 13 which is same, correct the bears my signature." In cross examination Muhammad Mithal 1.0 has stated, "None of the P.Ws had stated before me that they identified the accused on the light of hurricane lamp and hurricane lamp was not secured by me". The introduction of hurricane lamp at the time of recording of evidence of P.Ws and the improvement whatsoever done by the P.Ws was with the intention to strengthen their claim of identifying the appellants during the odd hours of the night when all of them were sleeping. According to prosecution case appellant Idrees, Saleh and Sadoro were armed with guns and Gulab received fire arm injuries and some pallets hit on the wrist of Gulab and that Khan Muhammad also received fire arm injuries. It is, however, pertinent to refer the evidence of Doctor Rafique Ahmed, Medical Officer examined on behalf of prosecution, a witness No: 7 Ex: 32, who deposed that: Injured Photo. Injured Photo was having three injuries such as : 1. Defused swelling over back of right hand wrist. 2. Contusion 8cm x 2 \ cm over uppr part of left side of back. 3. Contusion 6cm in diameter over right buttock. According to Medical Officer Injury No: 3 was simple in nature, while opinion regarding injury No: 1 and 2 was reserved for X-Ray examination. He has opined that all the injuries appeared to have been caused by hard and blunt substance, such as Lathi or back side of the hatchet. He has deposed that he received X-Ray report from Chandka Medical College Hospital, Larkana, according to which injury No: 2 was simple in nature, while injury No. 1 was grievous in nature due to the fracture of right fifth metacarpal bone. He has produced the certificate as Exh: 32-A and Exh: 32-B. Injured Muhammad Nawaz. (1) Contused wound 3cm x hem x scalp deep over left side of back of scalp. (2) Two contusion each 6cm x 3cm and 12cm x 3^ cm over back of left shoulder joint in the lower part. (3) Contusion 6cm x 3cm over upper part of back of left shoulder joint. (4) Contusion 14cm x 2 \ cm upper part of left side of back. 15) Contusion 6cm 8cm x 6cm over left side of back blow the scapula. (6) Contusion 8cm x 2^ over right side of back below the scapula. (7) Contusion 10cm x 3cm over lower part of right side of back. (8) Abbrasion 3^ cm x ^cm over upper part of left fore-arm. (9) Contusion 4cm in diameter over lower part of right side of back. (101 Abbrasion 1cm x ^cm over left side of fore-arm. (11) Abbrasion 3cm x \ cm over bridge of nose. He has opined that all injuries were simple in nature and appear to have been caused by hard and blunt substance, such as lathi or back side of the hatchet He has oduced the certificate as Ex: 32-C. Ir/ure-JC-hvJ.amHvder. (.1) Incised wound 1-1/4 x l/3cm into skin deep over right side of Middle of back of chest, with a tampering linear scatch 10cm long. (2) Incised wound 2 cm x 3/4 cm into skin deep over inner and upper border of left buttock, with a tampering linear scratch 12cm long. (3) Incised wound 3 cm x 1 cm x skin deep over outer aspect of left buttock. (4) Linear incised wound 12 cm x 3 mis x skin deep over left side of lower part of back. (5) Incised wound 2\ cm x \ cm into skin deep over inner and upper border of left palm. (6) Contused wound 6cm x \ cm into scalp deep in the centre of the scalp behind the fore-hand. (7) Contusion 10 cm x 3 cm over right side of upper part of back. (8) Abraded contusion 8 cm x 3/4 cm over left side of front of chest in the middle. (9) Two contusions each 8 cm x \ cm and 12cm x 3cm over upper part of the back of chest. (10) Contusion 4 cm x 1\ over upper part of left upper arm. (11) Contusion 3 cm x arm. cm over the middle of the left upper He has opined that injury No: 1 to 5 appeared to have been caused by sharp cutting weapons such as hatchet, while rest of injuries appeared to have been caused by the hard and blunt substance, such as lathi or back side of the hatchet. According to him all injuries were simple in nature except injury No: 8 which was grievous in nature, as there was fracture of fifth, sixth and seventh rib as per X-Ray report. He has produced the certificate as Exh: 32-D and Exh: 32-E. Injured Khan Muhammad. 1. Circular wound \ cm in diameter into 1/4 cm over inner border of left-arm. According to him, the opinion regarding the nature of injury, as well as weapon -used were reserved for X-Ray Examination. After the X-Ray examination, he has opined that injury was grievous in nature due to fracture of the left fore arm (Ulna bone) while the weapon appeared to have been used was hard and blunt substance, such as lathi or back side of the hatchet, because no gun pallets were detected in the injury on the X-Ray examination. He has produced the certificate Ex: 32-F and Ex: 32-G. Injured Gulab. (1) Circular wound h cm in diameter into skin deep over back of right fore arm at the inner border. (2) Circular wound h cm in diameter into skin deep over front of right fore arm near the inner border. (3) Circular wound 2 mm x 1mm into skin deep with a liner scratch at one end over outer border of right fore arm. (4) Circular wound \ cm in diameter into skin deep over front of right leg in upper part. (5) Incised wound \ cm x 1/4 cm into skin deep with a tampering linear scratch at both ends. (6) Contusion 8 cm x 2 k cm over upper part of left side of back. (7) Two contusion each 10 cm x 2^ cm over lower part of right of back. (8) Three contusions 6cm x 4 cm, 10 cm x 2% cm, 3 cm x 2^ cm over right scapular region of the back. According to him all the injuries were simple in nature. Injury No: 5 appeared to have been caused by sharp cutting weapon while rest of the injuries appeared to have been caused by hard and blunt substance, such as lathi or back side of the hatchet. He has further deposed that since no pallets were recovered from injuries No: 1 to 4 on X-Ray Examination, so the same appeared to have been caused by hard and blunt substance, such as lathi or back side of the hatchet. He has produced the certificate as Exh: 32-H to Exh: 32-1. 9. The Medical Officer has based his findings after receipt of the X- Ray reports from Chandka Medical College, Larkana and furnished his opinion as referred hereinabove. Whereas the expert opinion of the Doctor was not accepted by the learned trial Court and was brushed aside with the following observations: "But he opined that same was caused by hard and blunt substance, such as Lathi or back side of hatchet". He has based his opinion regarding the nature of weapon on X-Ray report, as according to him no pallets were detected. According to me this can hardly be a ground to determine the nature of weapon to be hard and blunt substance, because no pallets were recovered. It is not always necessaiy that in case of gun shot injury pallets must be detected from the injuries else the injury would be opined to have been caused by hard and blunt substance. No cogent reason is assigned by the Medical Officer to show that circular wound could be caused by any hard and blunt substance such as Lathi or back side of the Hatchet except fire arm". 10. At the time of recording of evidence it was incumbent upon the prosecution to have put question to the Doctor for clarifying such contradictory version given by the Doctor examined by the prosecution in support of the case. Neither trial Court was pleased to put any question to the Doctor in order to ascertain true facts. The defence was not supposed to put question, the answer of which may favour the case of prosecution. It was the duty of the prosecutor only to have put question regarding the weapon with which P.Ws had received the injuries. The glaring inconsistency in between the ocular evidence and medical evidence is not to be taken lightly. ny benefit of doubt arising out of ocular evidence and medical evidence is to be awarded to the accused and not to the prosecution. 11. The evidence of Gulab, Muhammad Nawaz, Mehrab also does not inspire confidence, PW Ghulam Sarwar was given up. P.W Khan was not examined in the Court and was given up by the APP. Legal presumption would be that had he been examined, he would not have supported the case of prosecution. PW Mehrab has not implicated accused Haji, Ghulam Hussain, Nooral and Ismail in his evidence. Meeral the mashir of wardat stated that police did not secure anything from the wardat. Mst. Amir'an was examined and she alleged that accused/appellant Idrees gave her blow with the butt of the gun. This story is not stated by her before police and admittedly there was no injury on the person of Mst: Amiran to have been caused by the butt of the gun. The prosecution has alleged to have recovered Lathi from Haji, Hatchet from Ghulam Hussain, licensed gun from Idrees, police also secured hatchet from accused Ismail and Nooro. None of the weapon so secured were stained with human blood. According to prosecution story three empty cartridges lying at the wardat were secured by police, but those three empties were not sealed and despatched to the Ballistic expert by the police. It was incumbent on the 1.0 to have sealed the empties even though police secured the licensed gun from accused Idrees, afterwards in order to minimize the chances of manipulation whatsoever in getting report from the Ballistic expert. I have given thoughtful consideration to the arguments advanced by both sides and perused the record carefully with the able assistance of the learned Counsel for the both the parties. Neither gun nor empties were despatched to the Ballistic expert for his opinion. The learned trial Court after considering all the facts of recovery observed : "The perusal of these mashirnama clearly shows that neither the lathi for the hatches were stained with blood. In that case no reliance can be placed on these recoveries. So the same cannot be treated as corroborative piece of evidence. Admittedly the gun secured from accused Idrees is his licensed gun and there is not evidence on record that the said gun was actually used by the accused in the commission of crime. In that case the gun secured from accused Idrees also cannot be treated as substantive piece of evidence against the accused. In that case the recoveries in no way can be treated as corroborative piece of evidence". The learned trial Court rightly disbelieved the evidence of recoveries adduced by the prosecution against the appellants. The learned trial Court based the conviction solely on the basis of the interested ocular evidence which stands contradicted by the medical evidence as referred hereinabove. Moreover the alleged identification of the appellants on the torch light during odd hours of night is not free from doubt. The evidence of the prosecution does not inspire confidence to be truthful, Prosecution story is liOt consistent, variations and improvement in the story introduced by the P.Ws. does not appear to be plausible. 12. I have perused the authorities referred by Mr. Asif Ali Soomro, which are relevant and application to the facts of the case. Upshot of the above discussion is that case against the applicants is not free from reasonable doubt. I allow the appeal, set aside the conviction and sentences awarded by learned trial Court. Accused/appellants are on bail, their bail bonds are discharged. After hearing the counsel for the parties I have allowed the appeal by short order. These are the reasons for the same. (K.K.F.) Appeal allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Kar.) 455 Present : SYED DEEDAR HUSSAIN SHAH, J. KHAMISO NAREJO-Appellants versus STATE and others-Respondents Criminal Misc. No. 17 of 1996, allowed on 17.8.1996. Sindh Crimes Control Act, 1975 (VI of 1975)-- -Ss. 5, 6 & 14 read with S. 561-A Cr.P.C.--Quashment--Prayer for~Mere mention that applicant had a reputation of notorious and hazardous criminal, without specifying instances of his being involved in any incident or breach of peace or acting in a desperate and dangerous manner and mere citation of some cases without indicating result, was not sufficient to bring case of applicant within purview of section 14 of Sindh Crimes Control Act. [P. 456] A Syed Ajaz All Shah, Advocate for Applicant. Mr. Issardas, Advocate for State and another. Date of hearing : 13.8.1996. judgment Application under section 561-A Cr.P.C. has been filed on behalf of applicant for quashment of proceedings pending against him before learned SDM/Tribunal, Garhi Yasin. Allegations levelled against the applicant are that he commits thefts, harbour thieves, returns stolen property on payment of Bhung money, carries dangerous weapon without licence and is so dangerous and hazardous that none is prepared to depose against him and his remaining at large is detrimental to the public peace and tranquillity. The Learned SDM/ Tribunal on receipt of police report issued N.B.Ws against the petitioner on 14.4.1994. The witnesses shown in the police report are police personnels. 2. Mr. Syed Aijaz Ali Shah has contended that learned SDM/Tribunal issued N.B.Ws. against the petitioner on receipt of police report without holding enquiry as contemplated under section 5-6 of Sindh Crimes Control Act. The NBWs against the petitioner were issued without assigning any sound reason, not a single private person has been cited as witness in the report, in police report crime No. 29/91 u/S. 302 P.P.C. is cited pending against the petitioner in the court, and in Crime No. 4/93 u/S. 382 P.P.C. Petitioner is shown as suspected during investigation. Mr. Syed Aijaz Ali Shah has further contended that allegations levelled against the applicant are of vague and general nature and two cases have been shown, which are pending against the applicant whereas the conviction is not alleged by the prosecution and adverse inference of pending cases is not to be drawn against the applicant. Learned Counsel has referred P.Cr.L.J-1989- 756, P.Cr.L.J-1992-979, P.Cr.L.J-1987-55. 3. I have gone through the metrial placed with the case and order of the learned SDM/Tribunal and have also perused the authorities referred be Mr. Syed Aijaz Ali Shah, Advocate. 4. Learned counsel for petitioner submitted that the proceedings against the applicant have been initiated by the police on vague report without mentioning particulars whatsoever of the acts allegedly committed by the applicant. The report also does not give the date, time and place of the alleged acts, nor copies of the report or complaints have been filed. 5. It is consistently held that essential requirements of the Act are that the report should briefly state (i) the acts with which the person complained against is charged, (ii) the details of time and place of said acts and (iii) general reputation of a person complained or such other allegation made against him. In this case, these provisions have not been complied with. 6. It has also been observed in various judgments of this Court that mere fact that a person is suspected in some offence or offences or even that he was challaned in respect of such an offence could not be sufficient to bring his case within the purview of section 14 of the Act. 7. Mere mention that the applicant had a reputation of notorious and hazardous criminal, without specifying the instances of his being involved in any incident or breach of peace or acting in a desperate and dangerous manner, mentioned in the report and mere citation in the report of some cases without indicating the result, was not sufficient to bring the case of the applicant within the purview of section 14 of Sindh Crimes Control Act. 8. Mr. Issardas learned counsel for A.A.G. in view of the facts and circumstances and authorities referred herein-above rightly conceded for allowing the application. Consequently in view of the facts stated above and authorities referred by Mr. Syed Aijaz Ali Shah. I am inclined to allow this application, resultantly the application is allowed, and the proceedings pending against the applicant in the Court of learned SDM/Tribunal, Garhi Yasin are quashed. 9. Applicant is present on bail, his bail bonds stands cancelled. After hearing the learned counsel for the parties, I have allowed the application on 13.8.1996, and these are the reasons for the same. (K.K.F.) Application allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 457 [D.I. Khan Branch Registry] Present; MALIK hamid SAEED, J. MUHAMMAD AMIN-Appellant versus STATE-Respondent Crl. Appeal No. 32 of 1994 accepted on 25.2.1997. Pakistan Penal Code, 1860 (Act XLV of I860)-- -S, 302/34--Murder--Offence of--Conviction for-Challenge to--Prosecution case is full of doubts and discrepancies-Wintesses are closely related to deceased and have made improvementThough plausible explanation is available on record for delay in lodging report, but admission by P.W. 6, in his statement to the effect that all relatives of deceased gathered and consulted each other about occurrence for one and a half hour casts serious doubts about prosecution case-Co-accused was acquitted by trial Court on same evidence and, as such, appellant also deserved same treatment-It was an unseen incident-Ocular evidence was also found in conflict with medico legal report-Appellant was admittedly of 15 years age and his alleged absconsion, even if proved, would not be of any use because in such a teenage, a human-being cannot visualize effects and consequences of absconsion-When alleged abscondence was not taken into account qua co-accused same cannot be used against appellant- Motive set-up during trial is an after-throught-Appeal accepted. [Pp. 462 & 463] A, B, C & D Mr. Dost Muhammad Khan, Advocate for Appellant. Mr. Muhammad Khan, Advocate for State and S. Zafar Abbas Zaidi, Advocate for Complainant. Dates of hearing; 24 & 25.2.1997. judgment Muhammad Amin aged about 17/18 years, appellant herein, and his father Mubarrik Shah, aged about 60/65 years, residents of village Abba Khel, Tehsil and District Lakki Marwat, were tried by the learned Additional Sessions Judge, Lakki Marwat, on the charge that they in fuitherence of their common object committed the murder of deceased Jamil Khan by firing at him vide F.I.R. No. 65 dated 1.2.1991 registered at Police Station Lakki, under Sections 302/34 PPG, at the behest of Nawaz Khan son of Shahabuddin, complainant of the occurrence. After conclusion of the trial, accused Mubarrik Shah was acquitted of the charge by giving him the benefit of doubt, while his son Muhammad Amin was found guilty of the murder of the deceased and on conviction sentenced him to undergo rigorous imprisonment for life with a fine of Rs. 30.000/- or in default thereof to further suffer simple imprisonment for one year. On realization, the fine was ordered to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. vide judgment dated 19.9.1994. 2. Not contended with the aforesaid judgment of the learned trial Judge, Muhammad Amin accused has challenged his conviction and entence through Cr. Appeal No. 32 of 1994, while the complainant Nawaz Khan too feeling aggrieved from the conclusion drawn by the lower Court has filed Criminal Revision No. 12 of 1994 for retrial of acquitted accused Mubarrik Shah and enhancement of sentences awarded to the appellant Muhammad Amin. Since both the matters are the outcome of one and the same incident, therefore, we propose to dispose of the same through this single judgment. 3. The prosecution case, as gleaned from the First Information Report, Ex. P.A. is that on 1.2.1991 at "Digar Qaza Vella" Nawaz Khan complainant made a eport in the Police Station Lakki Marwat to the effect that on the eventful day at 1900 hours he alongwith his son Jamil Khan, brother Gul Nawaz and nephew Naimatullah Khan were on their way towards their house situated in village Kaka Khel for inquiring about the illhealth of his another brother named Abdullah Khan. When walked for half a mile, Jamil Khan deceased wanted to urinate. No sooner, we went ahead and Jamil Khan remained behind, report of fire-shots was heard and Mubarrik Shah armed with .303 bore rifle and his son Amin armed with a D.B. shotgun were seen running. When the complainant alongwith his companions reached near Jamil, he succumbed to the injuries and took his last breath. No motive was given for the occurrence which was stated to have been witnessed by the complainant and his companions. 4. In order to prove its case, the prosecution examined ten witnesses. Of them, P.W. 1, namely, Gul Nawaz Khan DFC was entrusted with the warrants of arrest, Ex. PW. 1/1 and Ex. PW. 1/2, under Section 204 Cr.P.C. against both the accused. Since they were avoiding arrest, therefore, proclamation notices u/s 87 Cr.P.C., Ex. PW. 1/3 and Ex. PW. 1/4, were issued against each of them and handed over to the said prosecution witness. 5. P.W. 22, namely, Doctor Ghulam Nabi Khan, has conducted autopsy on the dead body of the deceased Jamil Khan and on external examination found the following injuries on his person:- EXTERNAL EXAMINATION 1. Three enterance wounds of fire-arm on the anterior surface of the left side of chest about 4" below and lateral to the left nipple within an area of 2" x 2" in size of 1/4" x 1/4". Skin muscle and cavity deep. 2. Three enterance wounds of fire arm on the lateral surface of the chest about 4" to the left of the left nipple within an area of 2" x 3" size of each wound is 1/4" x 1/4". Skin muscle and cavity deep. 3. Eight enterance wounds of fire-arm at the left buttock within the area of 5" x 5". Size of each wound is 1/4: x 1/4". Skin muscle and bone deep. 4. Five exit wound of fire-arm at anterior surface of the upper part of the left thigh size of each wound is 1/4" x 1/4". 5. An exist wound of fire arm at the medial boarder of the right scappula at the level of fifth theracic vertibra size is 1/4" x 1/4". 6. An exit wound of fire arm at the medial boarder of the left scapula at the level of sixth theracic vertibra size is 1/4" x 1/4". 7. An exit wound of fire arm at the medial boarder of the right scapula on the level of fifth theracic vertibra size is 1/4" x 1/4". 8. An exit wound of fire arm about one inch to left of vertibra column on back at the level of ten theracic vertibra. Size is 1/2" x 1/4". On internal examination, the Doctor had found the walls of the deceased injured. Sixth and Seventh left theracic ribs fractured, Plurea left lung and blood vessels of chest injured. Stomach was found healthy containing fluid juices. Left famur was also found fractured. 4. In opinion of the Doctor, death of the deceased had occurred as a result of injury to vital organs, i.e. left lung, theracic etc.; causing haemorrhage shock. A sealed bottle containing six pellets weighing 300 rains was recovered during post-mortem examination of the deceased. Probable time that elapsed between injury and death was opined as 5 to 10 minutes while that between death and autopsy 15 to 16 hours. 5. P.W. 3, namely, Muhammad Saeed had identified the dead body of the deceased who was the son of his maternal uncle. P.W. 4, namely, Shah Wali Khan, is a marginal witness to the recovery memo Ex. PW. 4/1 vide which the Investigating Officer had taken into possession a shirt Ex. P. 1, a Shalwar Ex. P. 2, a Banyan Ex. P. 3 having cut marks and blood stained belonging to the deceased, a sealed phial Ex. P. 4 containing six pellets. He is also a marginal witness to the recovery memos Ex. PW. 4/2, Ex. PW. 4/3, Ex. P.W. 4/4 and Ex. PW. 4/5, vide which the Investigating Officer had taken into possession one empty shell of .12 bore (Ex. P. 5), twenty-two card boards (Ex. P. 6), a pellet of .12 bore shotgun (Ex. P. 7) and blood stained sand and blood stained leaves of trees from the place of the deceased. 6. P.W. 5, namely, Nawaz Khan and Naimatullah Khan, P.W. 6, are the eye witnesses of the occurrence who have almost supported the complainant and the averments made in the F.I.R. P.W. 7, namely, Sadull h han, Constable No. 861 had accompanied the dead-body of the deceased from the police station to the hospital for post-mortem examination. P.W. 8, namely, Habibullah Khan A.S.I. had investigated the case after the S.H.O. who had recorded the statement of the complainant and prepared the injury sheet and inquest report of the deceased. This witness had completed all the requisite formalities of the case. He had submitted supplementary challan dated 1.6.1992 against the accused before the Court. , 7. P.W. 9, namely, Sultan Khan, Ex. S.H.O. had registered the case on the report of complainant Nawaz Khan. He had prepared the injury sheet Ex. P. M/2 and inquest report, Ex. M/3 and had submitted complete challan under Section 512 Cr.P.C. against the accused. 8. PW. 10, namely, Muhammad Farid Khan was posted during the days of occurrence as S.H.O. Police Station Lakki, before whom accused Mubarrik Shah surrendered himself who was accordingly arrested and prepared his card of arrest, Ex. PW. 10/1. He had also submitted supplementary challan against him. 9. Appellant in his statement under section 342 Cr.P.C. has denied the prosecution allegations and proclaimed innocence. 10. Mr. Dost Muhammad Khan, counsel for the appellant confined his arguments to the evidence of P.W. 5, Nawaz Khan, the complainant, P.W. 6 Naimatullah, the alleged eye witness and P.W. 8 Habibullah Khan A.S.I, who had conducted investigation of the case and has strongly criticized their testimony. His contention was that the eye witnesses are not only nterested and partisan, but are untrustworthy, liers, un-reliable and as such their evidence requires very strong corroboration to ustain conviction thereon. Occurrence at the place shown in the case is not disputed by the learned counsel for the appellant, as the I.O. recovered lood-stained sand nd leaves etc; therefrom, but doubted the narration of the incident put forth by the prosecution. He argued that the alleged eye-witnesses have made improvements in their statements, as the complainant in his first information report had stated that:- and in his supplementary statement recorded on the following day coupled with that of PW. 6 named Naimatullah Khan recorded u/S. 161 Cr.P.C, they have taken the same stance, but in their Court statement an altogether different stand has been taken by both of them by stating that they have seen the accused firing at the deceased. The learned counsel classified the witnesses into three categories; namely, (i) Absoutely dependable, (ii) Partially dependable and (iii) Independable. According to him, witnesses of the instant incident fall under the third category as they have made various somersaults in their narrations. At first instance they had stated that the appellant was seen running from the spot after firing at the deceased, while during trial they changed their version by attributing the effective shot to the appellant. He was of the view that the improvements were made in order to bring conformity in the medical and prosecution evidence. He argued that the report was lodged after a considerable delay, as in the body of the F.I.R. rk- jf. " has been mentioned and in the heading thereof, the time of occurrence is given as " /4iJ ^-^$- " which further gets support from the statement of PW. 6, Naimatullah Khan who has stated that the deadbody of the deceased was brought to village where all the relatives were gathered and after discussing the occurrence for one and a half hour the report was lodged after consultation and deliberation amongst the relatives. The learned counsel further pointed out that house of father of PW. 6 Naimatullah namely Abdullah has not been verified by the 1.0. nor he has taken any evidence to verify the ailment of said Abdullah. He argued that if a fact is relevant to a fact-in-issue, then it was incumbant upon the prosecution to bring on record some evidence about the said fact and, therefore, proper and fair investigation in the case has not been carried out. 11. His last contention was that as per site plan, distance between the deceased and appellant is shown to be more than 30 feet and according to medical report, injuries No. 1 and 2 are on front of chest within an area of 2" x 2" and 2" x 3", while the third injury is on thigh in size of 5" x 5". Tylor in his book at page 245 and Modi at pages 229 and 230 have opined that if a person is fired from a distance of 30 feet, the spread of pellets would take an area of 12" x 15" on the body of the victim and, therefore, ocular evidence is completely in conflict with the medical evidence. He vehemently stressed that the entire prosecution case is full of doubts and a single doubt in a criminal case entitles the accused for acquittal. 12. In reply, the learned State counsel argued that the F.I.R. was lodged promptly without deliberation and consultation and the occurrence is duly witnessed by two independent witnesses. He supported the impugned judgment and opposed the criminal revision filed by the complainant for enhanement of the sentences awarded to the accused/appellant. 13. The learned counsel appearing for the complainant, however, submitted that the prosecution case was supported by two eye-witnesses who had accompanied the deceased at the time of occurrence. He though conceded that the said two witnesses had made improvements in their statements at trial, but deposed that such improvements could be ignored iu the circumstances when the appellant armed with a shotgun at the spot is proved from circumstantial evidence and further recovery from the spot proves that the deceased was done to death by fire shots fired by the accused/appellant 14. We have minutely considered the respective arguments advanced on either side and carefully examined record of the case with their valuable assistance. We find that the prosecution's case is full of doubts and discrepancies. The inherent infirmities in the prosecution's case throws a shadow of doubt on the veracity of the alleged eye-witnessess. They are closely related to the deceased and have not supported the F.I.R. in toto, as in their statement u/S. 161 Cr.P.C. have deposed that the accused/appellant was seen running after hearing the report of fire-shots and have not seen him while firing at the deceased, but being his relatives have made improvements therein. Though plausible explanation is available on record for the delay in lodging the report, but admission by PW. 6, namely, Naimatullah, in his statement to the effect that all the relatives of deceased gathered and consulted each other about the occurrence for one and a half j hour casts serious doubts about the prosecution case. In fact, there is no evidence at all to sustain conviction of the appellant on the material brought on record which are full of doubts and infirmities. Above all, co-accused of the convict-appellant, namely, Mubarak Shah, was acquitted by the trial Court on the same evidence and, as such, the appellant also deserved the ' same treatment. 15. The factum of absconsion of the convict-appellant and his father, j acquitted co-accused was also considered a fact to establish the guilt of the | appellant. Nevertheless, it is an established principle of administration of criminal justice that mere abscondence is not enough to sustain conviction i thereon. The prosecution's case suffers from improbabilities and conduct of i the PWs show that they were interested in conviction of the appellant. It was ' found an unseen incident and the appellant and his acquitted father were ; roped in the case after concoction. The ocular evidence was also found in I conflict with the medicolegal report. The appellant was admittedly of 15 ! years age and his alleged absconsion, even if proved, would not be of any use i because in such a teenage, a human-being cannot visualize the effects and | consequences of absconsion. Rather the appellant must have been under the j influence of his elders. When the alleged abscondence was not taken into account qua his father, the same cannot be used as against the appellant so as to base it for awarding him punishment. 16. As regards motive, it is a double-edged weapon and can be used either way. In the instant case, the motive set-up during trial is an afterthought/cooked-up and is of no help to the prosecution; Firstly because no documentary/oral proof was brought on record to substantiate the plea that the deceased was done to death due to his purchasing the landed property from the female relative of the accused, and; Secondly if it is presumed to be true, then why the complainant had remained mum in his first report, which too was lodged after deliberation and consultation. 17. As a result of the above discussion, we are of the firm view that the prosecution had not been able to prove its case against the convictappellant beyond any shadow of doubt and, therefore, while accepting his appeal, set aside his conviction and sentence and acquit him of the charge brought against him. He shall be set free froth with if not wanted in any other case. 18. In consequence, Criminal Revision No. 12 of 1994 filed by the complainant for enhancement of the sentences awarded to the accused/appellant and re-trial of his acquitted co-accused fails and stands dismissed accordingly. D (K.K.F.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 463 [D.I. Khan Branch Registry] Present: shah jehan khan, J. MUHAMMAD NADEEM-Appellant versus STATE-Respondent Crl. Appeal No. 21 of 1996 allowed on 14.3.1997. (i) Offences Against Property (Enforcement of Hudood) Ordinance, 1979- -S. 11-Confessional statement not recorded by trial court (Sessions Court) instead of it was recorded by M.I.C.-Validity-Held: Confession of co- accused are not confessions as required under Section 11 of Hudood Ordinance. [P. 465] A (ii) Qanun-e-Shahadat Order, 1984- S. 43-Confessions if proved voluntarily and without any pressure would be a proof against its maker but would have an effect of circumstantial evidence against his other accomplice. [P. 465] B Mr. Farid Ullah Khan, Advocate for Appellant. Mr. Muhammad Khan Khakwami, Advocate for State. Date of hearing: 19.2.1997. judgment Muhammad Nadeem appellant alongwith Hafeezullah, his cousin, and Maqbool Khan, his uncle, were tried by Additional Sessions Judge, Bannu in Hadd Case No. 31 of 1996 decided on 26.6.1996. Muhammad Nadeem appellant and Hafeezullah were found guilty under Section 457 P.P.C. and convicted and sentenced each to two years R.I. with a fine of Rs. 5.000/- each. Accused Maqbool Khan was convicted under Section 411 P.P.C. and sentenced to 6 months S.I. with a fine of Rs. 2.000/-. All the thre accused were granted benefit under Section 382-B Cr.P.C. Maqbool Khan and Hafeezullah have not filed appeal against their conviction. However, Muhammad Naeem has filed the instant appeal. 2. Facts leading to the instant criminal appeal are that Nawab Ali Khan who was running a joint shop (General Store) with Fahim Khan (P.W. 5) situated inside Paradi Gate, Bannu City. Hazrat Mir and Noor Ah' were sewing in the said shop as sewants. It was on 2.3.1993 when Fahim Khan informed Nawab Ali Khan that on the preceding night theft has been committed in their shop and a number of articles mentioned in the report were llegedly tolen from the said shop. On receiving information NawabAli Khan lodged a report in the local Police Station. None was charged for the alleged theft. The report was ncorporated in F.I.R. No. 104 registered on 3.2.1993. On 5.2.1993 Maqbool Khan was arrested in the case when he was selling certain watches which were later on identified by complainant as the j stolen watches from his General Store. On 7.2.1993 his son Hafizullah was arrested and on 10.2.1993 the appellant was arrested in the case. It is the case of prosecution that some of the alleged stolen articles were recovered on different occasions. Hafizullah and his father Maqbool Khan made confessions before the M.I.C. on 9.2.1993 and 10.2.1993. The confessional statement of Maqbool Khan is exculpatory while the confessional statement of Hafizullah is inculpatory in nature. The appellant while put on trial was charge sheeted. He did not plead guilty and claimed trial. The prosecution produced eight witnesses to prove the guilt of accused. Apart from P.Ws. th learned Judge trial court has also examined Abdur Rahim, IHC, No. 1096 as C.W. 1, Hazrat Mir Khan as C.W-2 and Noor Ali Khan as C.W-3. 3. The evidence which resulted in the conviction of the appellant consists of the confessional statements of the two co-accused, the statement of Abdul Zaman (P.W-8) and the statement of Abdur Rahim (C.W-1). The confessional statement of Maqbool Khan accused can not be used as evidence against the appellant not only because it is exculpatory in nature but it was recorded by the M.I.C. Although the offence under Section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, is triable by the Sessions Judge. The confessional statement of accused Hafizullah is also of no use for prosecution because it was not recorded by the trial Court and that the statements of Maqbool Khan and Hafizullah are contradictory to each other on material facts vis-a-vis the appellant, it has been held by a Full Bench of Federal Shariat Court in Muhammad Naseer's case reported in PLD 1988 F.S.C. 58, that: "It will be seen that trial of the offence of Zina has to be undertaken only by a Sessions Court as laid down in the second proviso to section 20 of the Ordinance VII of 1979 and the jurisdiction of a Magistrate has been expressly excluded. Any statement before a Magistrate, therefore, is not a confession under section 8(a) of the Ordinance VII of 1979 and, therefore, has no legal effect." i The second proviso of Section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance-VI of 1979) is the ditto copy of second proviso of Section 20 which reads as under: - "Provided further that an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by a Magistrate .............................................................. " 4. Thus the aforesaid two alleged confessions of the co-accused are n:t confessions as required under Section 11 of the Hudood Ordinance. 5. The above dictum of the Federal Shariat Court was also followed ly the Peshawar High Court in case ofMumtaz Khan vs. The State reported in P.Cr.L.J. 1992-412. The head note reads as under;- "Ss. 5, 8(a), 10 & 20--Confession-Confession to be effective in a case under the Ordinance, 1979, must be recorded by a trial court and a Magistrate would not be competent to undertake that exercise-Any confessional statement recorded by a Magistrate, would not be a confession and would have no legal effect." 6. Section 43 of the Qanun-e-Shahadat Order, 1984 reads as under:- "Consideration of proved confession affecting person making it and others jointly under trial for same o/fercce.--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved:- (a) such confession shall be proof against the person; making it; and (b) the Court may take into consideration such confession as circumstantial evidence against such other person." 7. The bare reading of Section 43 ibid would show that the confession if proved voluntarily and without any pressure would be a proof B against its maker but would have an affect of circumstantial evidence against his other accomplices. 8. Apart from the aforesaid confessional statements the prosecution has brought on record a recovery memo (Ex. P. D/l) vide which the Investigating Officer took into possession one VCP from the shop of Muhammad Amin at Peshawar allegedly sold to^him by Hafizullah and the appellant at the pointation of appellant. It is pertinent to note that neither the No. nor model of the VCP was mentioned in the FIR nor in the subsequent statements. However, the recovery memo shows its Model SV 7700 MK11. The said recovery on the pointation of appellant was allegedly effected in presence of Abdur Rahim (C.W-1) and Ghazi Marjan, F.Cs. Although the alleged recovery was effected in day light and in a thick Bazaar but none from the Public has endorsed the said recovery. The complainant has also not identified the said VCP in any identification parade before the competent authority. 9. Abdul Zaman (P.W. 8) has deposed during the trial that he used to drive a Flying Coach from Bannu to D.I. Khan. It was 3.2.1993 (the day when report was lodged) while standing at Sarai Naurang with his Flying Coach, when accused Muhammad Nadim and Hafizullah arrived there and told him that they want to sell their watch which was purchased by him at a consideration of Rs. 100/-. It was also told to him that the father of Hafizullah accused had sent the same from Saudi Arabia. The witness was neither shown the watch in question nor he was subjected to point out the appellant in identification parade. He is also not a marginal witness to the recoveiy of any watch. 10. The learned trial Judge has analysed that:- "Even if it is presumed that all these articles were recovered in the same manner as alleged by the prosecution, even then there is no proof regarding the fact that all these articles were stolen articles and were the same which were stolen from the shop of Nawab Ali, complainant because there is nothing in the evidence to show that after the recovery of these articles the same were indentified by the complainant as stolen one and belonging to him." 11. Inspite of the aforesaid observations of the trial Court he was influenced by the confessional statements although not recorded in accordance with law as already discussed. The other factor which influenced the mind of the trial court Judge was the recoveiy of VCP at the pointation of appellant but since the trial court has himself observed that the alleged recoveiy is of no use for the prosecution, how conviction could be based on such evidence. 12. In view of what has been stated above, the appeal is allowed. The impugned order and judgment of the learned Additional Sessions Judge, Bannu in Hadd Case No. 31 of 1996, dated 26.6.1996 is set aside in respect of the appellant only. The appellant shall be set at liberty forthwith if not required in any other case. (K.K.F.) Appeal allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 467 [D.I. Khan Branch Registry] Present: malik HAMID SAEED, J. GUL JAMAT and others-Petitioner versus STATE and another-Respondent Crl. M.B. No. 224 of 1996, accepted on 21.3.1997. (i) Bail- -S. 497 Cr.P.C.--Bail--Prayer for-Offence U/Ss. 324/34 PPC--Bail granted by Ilaqa Magistrate recalled by Additional Sessions Judge-Challenge to- No positive role is attributed to each one, ocular evidence contradicts site plan as no recovery was effected from spot though all three are charged for firing at victim together-It is a case of further inquiry-petition accepted. [P. 470] B (ii) Suppression of Terrorist Activities (Special Court Act, 1975)- Clause-C of Schedule of Act-Whether .303 bore rifle falls within definition of any other type of Assault Rifle" as per Schedule appended with Suppression of Terrorist Activities (Special Court) Act, 1975-HelcU A weapon which is not automatic or semi-automatic and not a type of klashnikov or G-III rifle could not be included in campus "of any assault ri£le"--Held further: .303 bore rifle or all other such weapons which are not automatic or semi-automatic or alike to G-III and kalshnikov do not fan under schedule. [P. 469] A S. Zafar Abbas Zaidi, Advocate for Petitioner. Mr. Inamullah Khan Yousafzai, Advocate for State. Pir Liaquat Ali Shah, Advocate for Complainant. te of hearing: 21.3.1997. judgment Accused/petitioners charged for an offence under Sections 324/34 PPC in case F.I.R. No. 5 dated 10.1.1996 registered at Police Station Township Bannu seek their release on bail. The concession of bail was extended to them by the Ilaqa Magistrate vide his order dated 5,9.1996, but on an application of the complainant, their bail was recalled by the learned Additional Sessions Judge Bannu per his order dated 18.9.1996. Hence this Court. 2. Brief facts of the case are that on the eventful day.after morning prayer, the complainant and his brother named Shahbazar were on their way to Bannu City and after walking for a while, his brother went aside to answer the call of nature. Meanwhile, the accused/petitioners duly armed with .303 bore rifles and daggers emerged from a nearby tree and simultaneously opened fire at the complainant and gave him dagger blows as a result of which he was injured. Thereafter, all the accused decamped from the scene of occurrence. The crime was stated to be witnessed by Shahbazar, his brother and motive was given to be previous quarrel between the parties. 3. Perusal of the impugned order of the learned Additional Sessions Judge Bannu reveals that due to the injuries sustained by the victim, the functions, power and capacity of his Tibia and Ulna had been permanently impared which persuaded him to recall the bail order passed by the Court below. 4. At the veiy outset, Pir Liaqat Ali Shah Advocate appearing on behalf of the complainant, raised a preliminary objection about the jurisdiction of the forum below on the ground that the weapon of offence used in the crime being .303 bore rifle which falls within the definition of "Assault Rifle" as per Schedule appended with Suppression of Terrorist Activities (Special Courts) Act, 1975 and, therefore, both the Courts below were corurn nonjudice. 5. The aforesaid objection was repelled by the petitioner's counsel by stating that in the Schedule, description of Klashnikov, G-III Rifle has been given and if .303 bore rifle was intended to be included in the said Schedule by the Law Maker, then it would have been specifically mentioned thereunder and in the present circumstances the same cannot be included/linked within the categoiy of an "Assault Rifle". 6. I have anxiously considered arguments advanced on either side. "Assault Rifle' includes in the Schedule appended to the Offences triable by the Special Courts constituted under the provisions of Terrorist Activities (Special Courts) Act 1975 by Ordinance I of 1990 promulgated on 17.3.1990 given retrospective effect from 7.11.1988. Offences under the Arms Ordinance are punishable with imprisonment not exceeding seven years and as such are triable by the ordinary Courts of Magistrates. Due to increase of crime ratio in our country and to bring down the subversive activities of the criminals, Suppression of Terrorist Activities (Special Courts) Act, 1975 was enforced and the arms and ammunition oftenly used in commission of terrorist Activities were included in the Schedule appended therewith and the offences committed thereby were exclusively made triable by the said Special Courts. Clause-C to the Schedule of the aforesaid Act provides that:- "Any offence punishable under the Arms Act, 1878 (XI of 1878), or an offence punishable under any of the following Sections for the West Pakistan Arms Ordinance, 1965 (West-Pakistan Ordinance No. XX of 1965), namely, Sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket, or a light or heavy automatic or semi-automatic weapon such as Kalashnikov, a G-III rifle or any other type of assault rifle." It is thus clear that after the word "heavy automatic or Semi automatic weapon", the classification of weapon such as Kalashnikov, a G-III rifle is defined and not a specific reference to .303 bore rifle is given, but instead, the words "any other type of assault rifle" mentioned. The interpretation of the words "anv other type of assault rifle" is not defined independently and hence the same could not be read in seuqence and reference to the preceding lines of the clause ibid. Thus a weapon which is not automatic or semi-automatic and not of a type of Kalashnikov or G-III rifle could not be included in the campus "of any other assault rifle". Hence .303 bore rifle or all other such weapons which are not automatic or semi-automatic or alike to G-III and Kalasnikov do rot fall under the Schedule referred above. The Courts below were, therefore, perfectly right in exercising their jurisdiction. 7. Learned counsel for the petitioners in support of his petition stressed that:- (i) that the injuries on the person of the complainant were caused with sharp-edged weapon as per medical report; (ii) that firing by all the three accused-petitioners is alleged but no recovery of any empty from the spot; (iii) that all the injuries are on the legs knee joint and ancle joint and not on the vital part of the body and hence it could not be gathered that an attempt to kill the complainant was made; (iv) that the learned Additional Sessions Judge had wrongly drawn inference that as the complainant had been permanently impaired, the offence falls under Section 336 PP, i.e. Itlaf-i-Salahiyat-Udu which falls under the prohibitory clause of Section 497 Cr.P.C. But, vide order dated 27.11.1996 the injured was referred to Standing Medical Board for examination and its report is as under:- "Old Multiple fractions are well united, healed and accused needs no further treatment." 8. From perusal of the report reproduced above, it is crystal clear that the view taken by the Additional Sessions Judge was not correct and his impugned order was not justified. 9. Both the learned counsel for the complainant and State, however, conceded that from the circumstance of the case together with the stamps of injuries sustained by the victim, it is not a case of attempted murder, but strongly contended that the accused/petitioners are directly charged in a promptly lodged report, the occurrence having taken place in a day-light, the complainant being an aged person of seventy years old badly beaten by them, the petitioners are not entitled to the concession of bail. Further, they remained fugitive from law for about seven months which too dis-entitle them for the concession of bail. 10. No doubt the petitioners are directly charged for the injuries sustained by the complainant in a broad-day light occurrence, but keeping in view the facts that no positive role is attributed to each one, ocular evidence contradicts the site plan as no recovery was effected from the spot though all the three are charged for firing at the victim together with the fact that the ground which influenced the learned Additional Sessions Judge was not g proved valid by the Standing Medical Board constituted for examination of the complainant, I am of the considered opinion that it is a case of further inquiry. There are, therefore, reasonable grounds exist for believing that the accused/petitioners are not guilty of the offence charged for and there are sufficient grounds for further inquiry into their guilt. 11. In view of the facts and circumstances of the case narrated above, the petitioners are held entitled to the concession of bail. Their prayer for bail is thus accepted and they are admitted to bail provided they furnish bail bond in a sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate. (K.K.F.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Peshawar ) 472 [D.I. Khan Bench] Present: malik hamid saeed, J. ABDULLAH JAN KHAN-Petitioner versus SAIFUR REHMAN KHAN and 7 others-Respondents Crl. Misc. No. 208/96 dismissed on 15.2.1997. Criminal Procedure Code, 1898 (Act V of 1898)-- ----S. 249-A read with S. 417(2 )~ 0ffence U/Ss. 447/290 PPC--Acquittal of accused-Challenge to-Section 249-A Cr.P.C. empowers Magistrate to acquit accused at any stage of proceeding after hearing prosecution/ complainant and accused and for reasons, to be recorded, if he considers charge to be groundless or there being no probability of accused's conviction for any offence-Appeal dismissed in limine. [P. 473] A Mr. Muhammad Yunis Taheem, Advocate for Petitioner. Date of hearing: 15.2.1997. ORDER This is a petition under Section 417(2) Cr.P.C. for special leave to appeal against the order dated 21.7.1996 passed by the learned Sub Divisional Magistrate Kulachi, acquitting Saif-ur-Rehman and six others named in the head of appeal as respondents from the charges under Section 447/290 PPG. 2. Brief facts of the case are that complainant Abdullah Jan had filed a complaint under Sections 447/290 PPC against the accused/respondents in the Court of learned S.D.M. Kulachi to the effect hat accused/respondents had tress-passed in the street owned and possessed by him by opening the doors of their houses in the street. 3. After observing all the required formalities, evidence on behalf f the complainant recorded, which consisted of four witnesses including the complainant. 4. The learned trial Court after the close of the complainant's evidence in his presence heard the arguments of the respondent's counsel on the application made by him under Section 249-A Cr.P.C. 5. The learned Sub-Divisional Magistrate acquitted the accused/respondent under Section 249-A Cr.P.C. by holding that not a single witness produced by the complainant has supported his version beyond any shadow of doubt and, therefore, there is no probability of conviction of the accused/respondents 6. On going through the evidence, I find that the complainant has not produced any documentary evidence in support of his claim that the "~" street in dispute is owned and possessed by him, rather all the witnesses produced by the complainant have stated that the street was also being used by the accused/respondents. 7. As the arguments on application under Section 249-A Cr.P.C. were addressed by the counsel of the respondents in presence of the complainant, herefore, it could be safely gathered from the circumstances that complainant was in the knowledge of the application under Section 249- A Cr.P.C. and the arguments addressed thereon. 8. Section 249-A Cr.P.C. empowers Magistrate to acquit accused at any stage of proceeding after hearing the Prosecutor/Complainant and accused and for reasons to be recorded, if he considers charge to be groundless or there being no probability of accused's conviction for any offence. 9. There is thus hardly any substance in this application for leave to appeal, which is accordingly dismissed in limine. i X. K. F.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 473 [Larkana Bench] Present: amanullah abbasi, J. SHAMMAS-UD-DIN-Applicant versus THE STATE-Respondent Crl. Bail Appl. No. 68 of 1996, heard on 13.5.1996. (i) Bail- -Ss. 497/498 and Penal Code (XLV of 1860) Ss. 302/34-Bail, grant of- Further inquiry-Case of-Grounds-Occurrence taking place in night time-Delay in lodging of FIR is 7 hours-Old enmity existing between parties-Identification of culprits is said to be on torch light-All PWs., interested witness-Conflict between ocular and medical evidence- Applicant not causing any injury to deceased, but he caused injury to P\V-Case one of further enquiry-Bail allowed. [P. 474] A (ii) Bail- Bail Meaning of-Held: Bail does not mean acquittal and it remains open for trial court to come to any conclusion on basis of evidence recorded during proceedings. [P- 476] B Mr. AsifAli Soomro, Advocate for the Applicant. Mr. Muhammad Bachal Tanyo, Addl. A.G. for the State. Date of hearing: 13.5.1996. order 1. The office has raised the objection that the previous application of the applicant was dismissed by Shah Nawaz Awan, Jon 19.12.1995 therefore matter may be sent to Principal seat for placing before the Honourable Chief Justice for orders. The order referred to has been perused and relevant portion of the said order is as under:- "However trial court is directed to record the evidence of Medical Officer immediately within the period of one month and thereafter if the applicant is satisfied, he can file a fresh application before the trial court." This order was complied with and the Medical Officer Ghulam Muhammad was examined and the applicant repeated bail application before the trial court which was rejected on 17.4.1996. Against this order present bail application has been filed. The previous order was not on merits and therefore it is not necessary to send the bail application to Principal seat for placing the same before the Honourable Chief Justice. 2. Exemption granted for the time being. 3. FIR of this case was registered on 5.10.1995 for offences under section 302, 34 PPC read with section 324 Qisas and Diyat Ordinance. Complainant Kaural has stated that at about 1.30 a.m. suddenly three persons came there and they saw them in the light of torch and identified them to be accused Shamsuddin 2. Khadim and 2. Deedar. Accused Shamsuddin gave "hakal" that they had killed his father Mehar and due to that revenge he will murder them. After saying this accused Shamsuddin fired his gun at Mazan and Khadim fired at Ranjhan. Ranjhan died on account of fire arm injury. The learned advocate for the applicant has requested for bail on the ground that it is a night time incident and applicant has been falsely implicated. There is delay of seven hours in the lodging of the FIR and there is old standing enmity between the parties. The identification of the culprits in dark night requires enquiry aidentification is said to be on torch light. He hov/ever submits that apart from this, the applicant did not cause any injury to deceased. The complainant and PWs are interested witnesses. He also submits that the applicant is in custody since 30.10.1994. His main ground for bail is that there is conflict between ocular evidence and medical evidence. He submits that according to FIR and 161 Cr.P.C. statements applicant fired only once at Mazan but the statement of Medical Officer recorded during trial proceedings shows that there were three independent shots which caused injuries on the person of injured Mazan but PWs speak about only one shot having been fired. He submits that the gun is alleged to have been recovered from applicant but even after seventeen months, there is no report of Ballistic Expert. The learned Additional Advocate-General opposes the grant of bail to the applicant on the ground that the name of the applicant appears in the FIR and the PWs have involved him in their 161 Cr.P.C. statements. He is assigned part of firing at Mazan and he is vicariously liable also. He places reliance on deem expert in SCMR 1991 page 1849. At the bail stage, only the contents of FIR and 161 Cr.P.C. statements are examined and these are accepted on their face value. This is the basic principle but there are some exceptions when there is to be a deviation from this principle. One of such exception is when the accused takes plea of alibi which is supported by reasonably genuine evidence and the second exception is when ocular evidence is contradicted by medical evidence. These are the two exceptions and there may be others also when deviation is made from the principle that contents of FIR and 161 Cr.P.C. statements are correct. Once these become questionable by plea of alibi or contradicted by medical evidence then there is scope for further enquiry. The name of applicant appears in the FIR and he is alleged to have fired at Mazan but the medical officer has testified that the injuries on person of Mazan were caused by three independent shots. Normally the statement of complainant in FIR and 161 Cr.P.C. statements are accepted on face value but because of contradiction in ocular and medical opinion, there is scope for further enquiry. The learned counsel for the applicant has relied on two decisions wherein the bail was granted because there was conflict between ocular evidence and medical evidence. The decisions relied upon by him are reported in 1986 P.Cr.L.J. 120 and 1977 P.Cr.L.J. 159. The learned counsel for the applicant has therefore insisted for bail on this ground and according to him the applicant has been falsely involved. Their Lordships of the Supreme Court in decision reported in 1996 PLD 241 have been pleased to rule as under:- To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial." The admitted position remains that the applicant did not cause any injury to the deceased but he caused injury to PW Mazan. There is conflict between ocular evidence and medical evidence. Bail does not mean acquittal and it will remain open for the trial court to come to any conclusion on the basis of evidence recorded during trial proceedings but so far as the question of bail is concerned, as there is scope of further enquiiy, I grant him bail subject to his furnishing solvent surety in the sum of Rs. 1,50,000/- (rupees one lac and fifty thousand only) and PR bond to the satisfaction of Additional Registrar of this Court. (Aq. By.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 476 Present: abdul hameed dogar, J. GULAB-Appellant versus STATE-Respondent Crl. Jail Appeal No. 32/95 accepted on 19.9.1996. Qisas and Diyat Ordinance, 1990-- -S. 337D--Appellant served-out his substantive sentence R. I for 4 years and is confined only for non-payment of Arsh amount-Financial position of appellant is so weak that was not in a position to pay Arsh amount inn lump-sum or in installments spread over a period of 3 years-Taking into consideration this aspect of matter, appellant may be released on bail if he furnishes bail-cum security bond in sum equal to amount of Arsh to satisfaction of learned trial court with an undertaking to pay same within a period of 3 years from date of this order, failing which appellant shall be re-arrested and sent to prison where he shall stay for such time fill he pays such amount of Ars/z-Order accordingly. [P. 478] A Nizamuddin Baluch, Advocate for Petitioner. Mr. AG. Shaikh, Addl. A.G. for State. Date of hearing: 19.9.1996. judgment Appellant Gulab alongwith Allah Dad, Abdul Latif and Eidan (acquitted accused) were tried by learned IVth Additional Sessions Judge, Shikarpur for causing grievous injuries toMst. Shareefan and Ms. Kazbano. On the conclusion of the trial the appellant was found guilty and was convicted under section 337-D Q & D Ord. (amended PPC) and sentenced to undergo R.I. for 4 years and to pay a fine in terms of Arsh worth Rs. 56,666/- beir.g l/3rd of Diyat amount for each injured separately whereas other coaccused were acquitted on the benefit of doubt vide judgment dated 30.4.1395. Appellant filed appeal from inside the Jail and during its pendency Mr. Nizamuddin Baluch filed power on his behalf. Mr. Nizamuddin Baluch learned counsel for the appellant out rightly submitted that appellant has already served-out his sentence but as he has net paid the Arsh amount to the victim/injureds, therefore is still confined in Jail. Superintendent Central Prison, Sukkur submitted report on 18.6.96 before this Court that appellant Gulab has served-out his substantive sentence and is confined in Jail for non-payment of Ars/z/compensation of a- :uzur.g of Rs. 56,666/-. Learned counsel for the appellant argued that the £ r.a^:ia] position of the appellant is so weak that he is not in a position to y the Arsh amount in lump-sum or in the installments spread over a ri;d of 3 years from the date of judgment. Appellant present in Court seased that he has only brother in family namely Hafiz Ghulam Hyder son Kareem Bux Soomro resident of Humayoon District Shikarpur and will ni surety and will furnish security equal to the amount of Arsh for his ".;a=e on bail as required under Sub-section (2) of Section 337-X. Mr. ch lastly submitted that appellant be released on bail on furnishing rety cf his brother with an undertaking to pay the compensation within 3 ars from his release, else he may again be remanded to custody be ained inside Jail until the Arsh amount is deposited. He placed reliance the case law reported in 1994 Pak. Cr. J. Page 934. Mr. A.G. Shaikh Additional A.G. appearing on behalf of State conceded and stated that it is a fact that the appellant has served-out his substantive sentence R. I for 4 years and is confined only for non-payment of Arsh amount. He in these circumstances agreed that the appellant be released on his bail if he furnishes security for a period of 3 years for making payment of the Arsh amount as required under the above provisions of law and in case if he fails he may again be sent to custody. It is an admitted fact that the appellant has, by this time, undergone the substantive sentence of imprisonment awarded to him by the trial Court, after his conviction and sentence as above and he was ordered to remain in prison till such time he makes payment of Arsh amount of Rs. 56,666/- to each victims insured in lump-sum or installments spread over a period of 3 years form the date of conviction. According to the appellant and his counsel the financial position of the appellant is so weak that he is not in a position to pay Arsh amount or to furnish security equal to the amount, otherwise he would not have stayed in Jail for a period after the expiry of his substantive sentence. This position further gets support from the fact that he was unable to engage counsel before this Court and Mr. Nizamuddin Baluch filed power on his behalf on humanitarian grounds. Taking into the consideration this aspect of the matter, the appellant may be released on bail if he furnishes bail-cum security bond of his brother Hafiz GhulamHyder in the sum equal to the amount of Arsh to the satisfaction of learned trial Court with an undertaking to pay the same within a period of 3 years from the date of this order, failing which appellant shall be re-arrested and sent to the prison where he shall stay for such time till he pays such amount of Arsh. Amount deposited by the appellant shall be paid to the victims/injured by the trial Court. With above observations appeal stands disposed of. (M.S.N.) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 478 Present: rasheed A. razvi, J. BAKHSHAL SHAH-Petitioner versus STATE-Respondent Crl. Misc. No. 38 of 1996, accepted on 21.1.1997. Sindh Crimes Control Act, 1975 (VI of 1975)-- S. 14 & 8 sub-section 3(a)(l)(2) read with s. 561-A Cr.P.C.-Applicant is facing proceedings u/s 14 of Sindh Crimes Control Act, 1975 before Tribunal and therefore has filed this petition u/s 561-A Cr.P.C., for quashment of sameEntire proceedings was concluded within a span of two days and during all this period applicant was in police custody- Allegations made in complaint as well as in statement of S.H.O., are of vague and wild in nature and lacking material particulars-Witnesses cited in complaint are all police constables of same police station as of complainant and working under authority of complainant/S.H.O.--In such circumstances, it cannot be held that enquiry conducted was in accordance with provisions of Sindh Crime Control Act, 1975-Held further: Frequent resort to sub-section 39(a)) to section 8 of Act, 1975 without first holding preliminary enquiiy under sub-section (1) and (2) and without application of judicious and conscious approach to attending circumstances leads to abuse of process of law-Proceedings quashed. [P. 481] A Mr. Abdul Fatah Mughal, Advocate for Petitioner. Mr. Rashid All Shaikh, Advocate for Asstt. A.G. for State. Date of hearing: 21.1.1997. judgment Applicant is facing proceedings under section 14 of the Sindh Crimes Control Act, 1975 (hereinafter referred as the Act 1975) before the Tribunal/SDM, Mehar and therefore has filed this petition under section 561-A Cr.P.C., for quashment of the same. With this petition, applicant was not able to file certified copy of any order passed by the learned S.D.M., therefore, on 21.8.1996 he was granted exemption and the R & P was called from the Tribunal/S.D.M., Mehar. 2. On 28.7.1996 S.H.O., P.S., Thariri Mohabat filed a report under section 14/4 of the Sindh Crimes Control Act, 1975 before the S.D.M., Mehar alleging therein that there are general complaints against the applicant that he is notorious and dangerous criminal; that he is habitual thief and indulge in disposal of stolen properties; he is involved in collecting "Bhung" (ransom); that criminals of far off places use to visit him and he provides them shelter and serves meals; that he also supplies them weapons for the commission of crimes; that he also acts as informant of dacoits and has links with notorious dacoit like Mashooq Malano; that he instigates youngsters to commit crimes and always moves in public places with deadly weapons; that due to his fear and harassment, no one from public is prepared to depose against him and that his remaining at large is hazardous for the public safety. The S.H.O ., cited himself and three other Police Constables as witnesses in support of above allegations. 3. Again on 30.7.1996 the statement of S.I.P., Muhammad Mithal Solangi, S.H.O., was recorded before the Tribunal/S.D.M., Mehar in absence of applicant when same allegations as of complaint were reiterated by him without disclosing any specific dates, nature and other details of alleged offences. On such statement, learned Tribunal passed order under section 5 of the Act, 1975 issuing non bailable warrants against the applicant who was arrested and was produced before the Tribunal on 1.8.1996. Applicant was directed to furnish surety in the sum of Rs. 25,000/- which he was not able o produce as at the relevant time he was in custody nd therefore, he was remanded to the police custody by the learned Tribunal. On 1.8.1996, he was against produced before the Tribunal when formal charge was framed and he was called upon to show cause as to why he may not be required to execute bond with two sureties of "Zamindari class" in the sum of Rs . 25,000/- each and P.R. bond in the like amount to maintain good behaviour for a period of 12 months. Following are the contents of the said charge which was recorded as Exhibit 2:- "I, Muhammad Ahsan Rana, Sub-Divisional Magistrate, Mehar do hereby charge you : 1. Buxial Shah s/o Niaz Ali Shah that you are residing within the local limits of this Court/Trimanal and habitually commit the following acts: (1) You are notorious thief, habitually receive stolen roperty and dispose of the same on Bhung money. (2) You frequently possess and carry deadly weapons with an intention to create terror amongst the people of the area. (3) You are so dangerous and desperate that your further remaining at large without security is hazardous to the community. You are therefore called upon to show cause as to why you should not be ordered to execute bond with two sureties of Zamindari class each solvent in the sum of Rs. 25,000/-and P.R. bond in the like amount to maintain good behaviour for the period of 12 (twelve) months, to the satisfaction of this Court/Tribunal." 4. It is pertinent to note that Exh. 3 which is the plea of applicant recorded by the Tribunal in reply to the above mentioned charge, indicates that the applicant has pleaded not guilty and has claimed enquiry but the entire R & P is silent whether any enquiiy was conducted except one solitary statement of S.H.O., which was recorded on 30.7.1996 prior to arrest of the applicant. It is further pertinent to note that on the same date i.e. 1.8.1996 interlocutory orders under section 8(3 )( a) of the Act, 1975 was passed in the same manner as of the show-cause/charge (Exh. 2). 5. I have heard Mr. Abdul Fatah Mughal, Advocate for the applicant who has strenuously argued that the initial complaint by the S.H.O., as well as orders passed thereon by the learned Tribunal are illegal and void in as much as none of the provisions of the Act, 1975 was complied either by the S.H.O., or by the Tribunal. He has referred to the case of Nisar v. The State (1996 P.Cr.L.J. 102), Asghar v. S.D.M. Mehar (1996 P.Cr.L.J. 107) and unreported case of this Court Ghulam Hussain v. The State (Cr. Misc. No. 116/1995) wherein a learned single Judge of this Court quashed the proceedings pending before the Tribunal under the Sindh Crimes Control Act, 1975 more or less, on the same ground and facts. 6. Learned counsel for the applicant has further argued that the order dated 1.8.1996 passed under section 8(3 )( a) of the Act, 1975 by the Tribunal was not warranted as there was no satisfactory material before the learned Tribunal on the basis of which it can be concluded that there was need for adopting immediate measure for prevention of commission of any act complained. In my opinion, this plea has force in as much as the allegation before the learned Tribunal was that he is an active and habitual criminal and was a man of dangerous and desperate nature. Except the bare allegation there was no other material before the learned Tribunal. The initial complaint was also silent on material particulars and other details about the applicant, therefore, his immediate detention was not necessary in order to prevent the so-called commission of act complained. Time and again, Superior Courts of Pakistan have held that such are wild and vague allegations and on such allegations neither warrants nor summons can be issued nor any person can be arrested. The law envisages that the complaint before the Tribunal should be with full details and with all material particulars. For reference see the case of Haji All Muhammad Solangi v. Tribunal/S.D.M., Nazimabad Karachi (PLD 1980 Karachi 267) and Nazimuddin v. The State (PLD 1986 615). 7. In the present case the entire proceedings was concluded within a span of two days and during all this period applicant/accused was in police custody. The allegations made in the complaint as well as in the statement of S.H.O., are of vague and wild in nature and lacking material particulars. Witnesses cited in the complaint are all police constables of the same Police Station as of the complainant and working under the authority of said complainant/S.H.O. In such circumstances, it cannot be held that the enquiiy as conducted by the S.D.M/Tribunal, Mehar (Muhammad Ahsan Rana) was in accordance with the provisions of the Sindh Crimes Control Act, 1975. I would like to observe that frequent resort to subsection 3(a) to the section 8 of the Act, 1975, without first holding preliminary enquiry under subsection (1) and (2) and without application of judicious and conscious approach to the attending circumstances leads to the same result as of the instant case which is the abuse of process of law. Detention of a person can only be allowed, if it is "necessary", as provided under the Act, 1975. 8. As a result of above discussion, I allow this petition filed under section 561-A Cr.P.C. and quash the above mentioned proceedings pending before the Tribunal/S.D.M., Mehar. (M.S.N.) Proceedings quashed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 482 Present: muhammad asif jan, J. ALI HASSAN alias MITHU-Petitioner versus THE STATE-Respondent Cr. Misc. No. 4482-B/96, heard on 21.11.1996. PLJ (i) Bail- -S. 497(1) Cl. (b) Proviso 3rd Offence under Ss. 302/34 and 109-BaO- Grant of--Statutory ground-Plea of--Petitioner is languishing in jail for more than two years and not responsible for inordinate delay in conclusion of trial-Bail granted. [P. 484] B & C PLJ 1996 Cr.C. Lahore 1140, PLJ 1996 Cr.C. Kar.. 1562, 1980 SCMR 203 and 1990 SCMR 307 ref, but not rel. (ii) Bail-- S. 497(1) cl. (b) Proviso 3rd-Bail on ground of statutory ground-Grant ofWhen the statute provides a certain benefit to a citizen, held, it cannot be with-held because of in-adequacy of a presiding officer who may not have processed the matter with all seriousness, the fault may lie with the presiding officer and not the citizen. [P. 483] A Ch. Muhammad Nawaz Sulehria, Advocate for Petitioner. Mr. BadarMunir, Advocate, for the State. Saghir, Inspector with Record. Mr. S.M. Shad, Advocate for Complainant. order Ali Hassan alias Mithu was arrested on the 15th of June 1994 and is in jail eversince in pursuance of a case registered against him and others vide FIR No. 18 dated the 8th of February, 1994, at police station Lessar Kalan of District Narowal, under Sections 302/34 read with Section 109 of the Pakistan Penal Code. 2. The trial has commenced but has not yet concluded. Bail is sought on the ground that the petitioner is entitled to the benefit of Clause (b) of 3rd proviso to sub-section 1 of Section 497 of the Code of Criminal Procedure. Reliance is placed by the learned counsel for the petitioner upon the case of Zahid Hussain Shah v. The State reported in PLD 1995 S.C. 49, wherein, the dictum laid down by their Lordships of the Supreme Court is that the benefit of the 3rd Proviso to Section 497 sub-section 1 of the Code of Criminal Procedure can only be refused by the Court on the ground that the delay in the conclusion of the trial had been occasioned by an act or omission of the accused and in all other cases, the Court must grant bail. 2. Learned State counsel informs me that the ehallan was submitted on the 19th August 1994 and that five prosecution witnesses have been examined so far and that the trial is in progress but has not yet concluded. 3. Learned counsel for the complainant argues that the petitioner is not entitled to the grant of bail because the principle role in the commission f the murder in uestion is assigned to him, the trial has commenced and finally the delay in the conclusion of the trial is due to various adjournments sought on behalf of the accused persons. Learned counsel for the complainant places reliance upon the following cases:- 1. Farid Bakhsh v. Allah Bakhsh PLJ 1996 Criminal cases (Lahore) 1140; 2. Javed Akhtar v. State, PLJ 1996 Karachi 1562; 3. Muhammad Sadiq v. State 1980 S.C.M.R. 203; and 4. Allah Ditto v. State 1990 S.C.M.R. 307. In the case of Farid Bakhsh v. Allah Bakhsh, reported in PLJ 1996 Criminal Cases (Lahore) 1140, my learned brother Muhammad Naseem, J. was pleased to cancel bail which had been granted on statutory ground on account of continuous detention for over a period of two years from the date of arrest because the case had not been processed with all seriousness by the Presiding Officer and also because many adjournments had been sought to engage a defence counsel and further because some dates had been sought by the learned defence counsel. 4. With utmost respect for my learned brother, I am afraid that I cannot subscribe to his Lordship's view. In my opinion, when the Statute provides a certain benefit to a citizen it cannot be with-held because of the inadequacy of a Presiding Officer who may not have processed the matter with all seriousness, the fault may lie with the Presiding Officer and not the citizen. 5. The only rider clause is mentioned in the proviso which follows Clause (b) to the 3rd Proviso which is to the following effect: - "Provided further that the provisions of the third proviso to this sub-section shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism." It seems that the real reason which weighed with my learned brother Muhammad Naseem, J., was to the effect that the accused who had taken the law in his own hands in the precincts of the Sessions Court was considered to be a desperate and dangerous criminal. 6. In the next case cited by the learned counsel for the complainant (PLJ 1996 criminal cases (Karachi) 1562), it was held that right from the date of the submission of the challan the accused had been moving applications for adjournments and false and frivolous applications against the Presiding 'Officer for getting the case transferred which resulted in delay of conclusion of the trial and, therefore, it was held that the accused was not entitled to be released on bail. In the. case in hand, the petitioner is languishing in jail for more than two years and he is not responsible for this inordinate delay in the conclusion of the trial. In the case of Muhammad Sadiq v. The State reported in 1980 S.C.M.R. 203,, it was held by their Lordships of the Supreme Court that when the trial was to commence shortly it was not fair to go into the merits of the case. This case was decided by their Lordships of the Supreme Court on the 14th of May 1979, which is much before the amendment to Section 497 Cr.P.C., whereby, the third Proviso was added by virtue of Act XIX of 1994 dated the 14th of November 1994. In the case of Allah Ditta v. The State, reported in 1990 S.C.M.R. 307, their Lordships of the Supreme Court were pleased to observe that when the case had already been fixed for evidence by the trial Court, no ground was made out for the grant of bail. This case was decided by their Lordships of the Supreme Couit on the 25th of September 1989. 7. The law as it stands now clearly creates a Statutory benefit for all citizens who are accused of having committed an offence, which cannot be with-held unless it is shown that a person is disentitled to the benefit by virtue of the law itself. 8. To my mind, the order raison d'etre (reason'for existence of) for the amendment brought by the amending Act of 1994 is in line with the fundamental right provided in the Constitution of the Islamic Republic of Pakistan in Article 9, which provides that no person shall be deprived of life or liberty, save in accordance with law. Whenever a citizen is accused of an offence, it is necessary in a democratic polity that such a person should be afforded an opportunity of a fair trial. The concept of fair trial necessarily includes a trial without inordinate delay. It is of the utmost importance that a person either be convicted for the offence which he has committed or acquitted if he has not. Either way, "justice delayed is justice denied". This is the established principle of law which has now been brought on to the Statute Book by way of the Amending Act, 1994. Resultantly, the petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the trial Court. (Aq. By.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 485 [Multan Bench] Present: raja muhammad khurshid, J. ASHFAQ AHMAD-Petitioner versus THE STATE-Respondent Cr. Misc. No. 1294-B/96, heard on 3.12.96. Cr.C. 485 Bail- -Ss. 497/498 Cr.P.C.-Offence of Zina (Enforcement of Hudood) ordinance 1979 (VII of 1979) Ss. 10/16--Bail rejection of--Grounds~FIR clear to say that petitioner took co-accused Mst. Shamshad from her house on false pretext of her having been called by her ailing friend Mst. Farzana-- Thereafter, she was taken to a house where she was kept secretly showing her to be his wife-Statement of two PWs. supporting version in FIR--One months delay in lodging of FIR, clearly explained in FIR-- Evidence, collected by prosecution has prima-facie linked petitioner with offence which falls with prohibitory clause of Sec. 497 of Cr.P.C-Petition, dismissed in circumstances. [P. 486] A, B & C Malik Muhammad Farooq Kamboh, Advocate for Petitioner. Mirza Fayyaz-ud-Din, Advocate for State. Muhammad Sharif, ASI. Date of hearing: 3.12.1996. order A case under Sections 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is registered against the petitioner and Mst Shamshad as they were allegedly committing Zina. 2. According to the FIR lodged by Mst. Sultana Le.; mother of Mst. Shamshad, the latter was married about seven years back to one Siraj of Chicha Watni. A boy was born from the wedlock. However, Mst. Shamshad after having a row with her husband came to the house of parents Le., complainant. On the day of occurrence, the aforesaid Mst. Shamshad was taken away by the petitioner namely Ashfaq Ahmad on the pretext that her girl friend Mst. Farzana was seriously ill and that she had called her. She accordingly accompanied the aforesaid Ashfaq Ahmad but did not return to the house till the next day. The complainant got worried and went to the house of Mst Farzana afore-mentioned and was told that Mst Shamshad or and his son Ghulam Hussain armed with rifles, Muhammad Anwar armed with 12-bore gun, Abdul Hameed (petitioner herein) armed with pistol and two other persons on 6.6.1995 at about 6.15 PM. The FIR was lodged promptly on the same day at 8.45 PM. The complainant reported that the land belonging to his grandfather was obtained through fraud by Ghulam Mustafa and a suit to challenge the fraudulent transaction was pending against Ghulam Mustafa and his sons in the Civil Court. Temporary injunctions protecting possession of the complainant party was granted by the trial court and the suit was fixed for hearing on 7.6.1995. However, on 6.6.1995 the aforesaid accused persons came in Pajero Jeep No. VRB-22 and a Fiat Tractor and raised lalkara that they would get possession of the suit land by force. Abdul Hameed petitioner was driving the tractor and he allegedly started ploughing killa No. 12 which was having crops of Cotton and Charri. On having been asked to desist from doing so Ghulam Hussain fired with his rifle, which hit Khalid Mehmood. Other accused are also alleged to have resorted to indiscriminate firing with their respective weapons. Khalid Mehmood died of the injury suffered by him at the hand of Ghulam Hussain. 3. The bail was granted by me to Abdul Razaq co-accused on the consideration that he was not named in the FIR. The case of the petitioner has come before me at the Principal Seat in view of the dictum laid down in Zubair's case. 4. Learned counsel for the petitioner in support of his prayer for grant of bail to the petitioner has made the following submissions:- (5) Initially only four accused persons were named in the FIR. The two unnamed accused were later on identified as Abdul Razaq and Lai Din through supplementary statement of the complainant. In addition thereto seven other persons were also involved through the statements of Muhammad Suleman and Iqbal PWs. In this way 13 accused persons were found involved in the commission of the crime by the police. Out of the 13 accused persons 5 are absconders. One of the absconders is Ghulam Hussain who fired the fatal shot. According to the learned counsel, he has fled the country and reportedly enjoying in London. Three persons have been enlarged on bail by the Additional Sessions Judge, three have been discharged by the Illaqa Magistrate on the police report while one has been granted bail by this court. The petitioner is the only accused person who is in jail since 28.6.1996. According to the learned counsel, since the main accused person who actually committed the murder has already absconded, the petitioner who did not resort to firing deserves to be enlarged on bail. (ii) Inspector Range Crime, as per his finding record on 25.9.1996, .eld that Abdul Hameed petitioner was not present at uie time when the firing was made because on sensing dai. c .ar of armed conflict between the parties he had slipped away from the scene. On this opinion of the investigating Inspector the petitioner is entitled to be enlarged on bail. Learned counsel in this behalf has vehmently argued that Abdul Hameed was merely a driver of the tractor and had no connection with the motive stated in the FIR. He has also argued that his client cannot be kept in jail for vicarious liability. (iii) The petitioner is entitled to bail on the rule of consistency as his case is better than that of Abdul Razaq who was granted bail by this court. (iv) The case of the petitioner is covered by Subsection (2) of Section 497 Cr.P.C., as it is a matter of further inquiry as to what actual role was played by the petitioner during the occurrence. 5. The complainant is present in person. He has stated that Ghulam Mustafa accused is owner of some agricultural land in Chak No. 265. Anwar and Abdul Hameed accused are residents of Chak No. 265 and they have cbtair.ed land on lease from Ghulam Mustafa. Anwar is otherwise son-in-law cf Mustafa. The tractor driven by Abdul Hameed is owned by Anwar accused. He has thus submitted that Abdul Hameed is not merely the driver cf the tractor but had deep connection with the accused party. He has cextroverted the submission made by the learned counsel for the petitioner that Abdul Hameed was declared innocent in the investigation conducted by the Range Crime. He has submitted that in fact D.S.P. Range Crime was the investigating officer and he had finally found that Abdul Hameed was fully involved in the commission of the crime and recommended that he and other accused persons should be challaned. The investigation of the D.S.P., Range Crime was duly confirmed by the D.I.G., Range Crime. He has submitted that the role played by Abdul Hameed is by no means insignificant. He came with tractor and actually started destroying the crops standing in killa No. 12 with the tractor driven by him. It is also submitted by him that Abdul Hameed was armed with a pistol and he also resorted to firing and a pistol has been recovered from him during the investigation. 6. I have examined the Zimini dated 20.10.1996 recorded by the D.S.P., Range Crime. According to his findings the disputed land was in possession of the complainant party and with a view to illegally occupy the same the occurrence took place. According to him Ghulam Hussain, Mustafa, Anwar, Abdul Hameed (petitioner herein), Razaq, Ghulam Muhammad, Muhammad Hanif, Lai Din, Akhtar All, Muhammad Irshad, Muhammad Hussain, Zafar and Kala Gujar are all involved in the commission of the crime. Based on this finding he recommended that all these persons should be challaned, I have also examined the Zimini dated 25.9.1996 which has been relied upon by the learned counsel for the petitioner. According to this Zimni recorded by the Inspector Range Crime, Abdul Hameed had already slipped away from the spot on sensing danger when he saw co-accused Abdul Razaq etc. sitting with weapons. He forwarded his report to the D.S.P., Range Crime to whom the investigation was entrusted under the order of the D.I.G. Inspector Range Crime was not the investigating officer, therefore, his findings/opinion cannot be given much weight. The opinion of the D.S.P., Range Crime, who was the investigating officer is specific and clear that Abdul Hameed is also involved in the commission of the crime. The prosecution witnesses in their statements recorded under Sections 161 Cr.P.C. have also fully implicated Abdul Hameed for having played a vital role daring the occurrence. His case is still worse if he had opted to be hired as a driver of the tractor to take forcible possession of the land in dispute. 7. Rule of consistency is not applicable in the present case. Bail to co-accused Abdul Razaq was granted by this court on the consideration that he was not named in the FIR and his name was disclosed in the supplementary statement. The case of the present petitioner is clearly distinguishable. His name appears in the FIR and a specific role of trying to take illegal possession of the land by ploughing the fields with his tractor is ascribed to him. Indeed the FIR was lodged promptly, in that, the occurrence took place at 6.15 PM and the report was made at 8.45 PM on the same day while the police station is situated at 9 miles from the place of occurrence. The petitioner was also found guilty in the investigation conducted by the local police. 8. For what has been stated above, I am of the view that there appears reasonable grounds for believing that the petitioner was fully involved in the commission of th crime as alleged in the FIR. Resultantly, his bail application is dismissed. 9. During the course of arguments it transpired that Ghulam Mustafa, Muhammad Anwar and Lai Din have been discharged by the Illaqa Magistrate on 25.7.1995 on police report. The prosecution witnesses had ully implicated these persons in their statements recorded under Section 161 Cr.P.C. In these circumstances, prima fade, the Magistrate could not discharge them on the basis of police opinion that they were innocent. Such a finding can be given by the competent court or by this Court in quashment proceedings. The Assistant Advocate General, Multan should .move appropriate application in the Multan Bench of this court for annulment of the aforesaid order of the Illaqa Magistrate. It may, however, be observed that anything said herein will not prejudice either side during the trial or the proceedings to be initiated by the law officer. (Aq. By.) Bail rejected.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 491 [Multan Bench] Present: KARAMAT NAZIR BHANDARI, J. LAL-Petitioner versus SAJJAD and another-Respondeats Cr. Misc. No. 1521-CB/96, decided on 27.1.1997. Bail-Cancellation of- S. 497(5) Cr.P.C.-Offence of Zina (Enforcement of Hudood) Ordinance 1979 (VII of 1979) S. 11, read with S. 380 PPC--Bail, cancellation of- Session court granting pre-arrest bail in case registered against respondent u/s 11 of Zina Ordinance--Not clear in bail order as to what prevails with court in admitting respondent to pre-arrest bail-Offence being serious and punishable with life imprisonment and no mala fide, alleged against police, exercise of discretion by Addl. Session Judge held, to be improper, if not illegal-Application allowed by cancelling bail grantsd by Addl. S.J. [P. 492] A & B Syed Murtaza All Zaidi t Advocate for the Petitioner. Mr. Muhammad Anwar-ul-Haq, Advocate, for the State. .Vr Tariq Muhammad Iqbal, Advocate, for the Respondent No. 1. Muhammad Amin, S.I., P.S. Harappa. Date of hearing: 27.1.1997. order Respondent No. 1 is an accused in case FIR No. 268/96, dated 8.7.1996, registered at Police Station Harrapa, District Sahiwal. He was admitted to pre-arrest bail in the case by the Additional Sessions Judge, Sahiwal, on 21.7.1996. By way of this application under section 497(5) Cr.P.C., the complainant prays that the bail be recalled on the ground that there is prima facie a case against the petitioner and that the necessary ingredients, viz. malafide of the police, is not available in the present case. 2. On behalf of respondent No. 1 the claim is controverted and it is maintained that in the FIR the allegations are not precise and it is not clear as to whether Muhammad Nawaz, co-accused has abducted the girl or respondent No. 1, Sajjad has done so. 3. I have perused the contents of the FIR as well as the impugned order of the learned Additional Sessions Judge. It is difficult to read the impugned order inasmuch as the learned Additional Sessions Judge has written a very long sentence covering almost 3/4th of the page. It is not clear as to what prevailed with the Court in admitting the respondent No. 1 to pre-arrest bail in a case where section 11 of the Offence of Ziiia (Enforcement of Hudood) Ordinance, 1979, is claimed to have been violated. The offence being serious and punishable upto imprisonment for life and no malafide having been alleged against the police, the exercise of discretion by the learned Additional Sessions Judge, is improper, if not illegal. Resultantly, this application is allowed and the bail granted to respondent No. 1 by the order dated 21.7.1996 of the learned Additional Sessions Judge, Sahiwal, is hereby cancelled. Disposed of. (Aq. By.) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 492 [Multan Bench] Present: KHAN RiAZ-UD-DiN AHMED, J. Mst. KHURSHID Bffil alias SAIDAN-Petitioner versus THE STATE-Respondent Cr. Misc. No. 1471-B/96, heard on 28.1.1997. Bail- - Ss. 497/498 Cr.P.C.-Qffence u/S. 302 PPC--Bail, grant of--Murder case- Petitioner, neither named in FIR nor any suspicion was laid on her in FIR, which was subsequently registered-After 10/11 days of occurrence 3 PWs appearing before 1.0 and implicating petitioner as an accused by alleging that he has made extra-judicial confession before them--No other evidence led by prosecution so as to strengthen extra-judicial confession- Petitioner's case falling u/s 497(1) Cr.P.C., being a woman-Petitioner in jail for 7/8 months and conclusion of trial not in sight-Prfma facie no ground to believe connection of petitioner with commission of crime-Bail allowed in circumstances of case. [P. 493 & 494] A, B & C SyedMurtaza Ali Zaidi, Advocate for Petitioner. Mr. Altaf Ibrahim Qureshi, Advocate for Complainant. Mr. Muhammad Rafiq, Advocate for the State. Allah Ditta ASI, with Record. Date of hearing: 28.1.1997. order Mst. Khurshid Bibi petitioner seeks her bail after arrest in case F.I.R. No. 121/96 dated 28.5.1996 under Section 302 P.P.C. registered at Police Station Kassowal, District Sahiwal at the instance of Muhammad Younas complainant for the alleged murder of Mst. Zahida Khalid. 2. Briefly the facts of the case are thatMst Zahida Khalid was living in the house cf the complainant for the last about 6/7 years and was __ studying in cth class. On 26,5.1996 the complainant was away in the fields, while the other members of his family were at Jhang and Kassowal except the deceased who was in the house all alone. The complainant returned at about 11 a.m. from the fields and found the said Zahida Khalid lying dead under the cot. The matter was reported to the police where Rapat No. 23 dated 26.5.1996 was recorded in the daily diary and the dead body was sent for post mortem examination. It was on receipt of the said report that case 1 , registered under Section 302 P.P.C. on 28.5.1996 and the investigation was resumed. 3. The petitioner was arrested on 25.6.1996 as she was stated to have made an extra-judicial confession before Mst. Suraya, Matloob and Manzoor PWs on 6.6.1996. After due investigation the petitioner was challaned to Court to face her trial. 4. The petitioner had earlier applied for her bail before the learned Additional Sessions Judge Chichawatni but the same was refused on 22.7.1996. Hence this petition. 5. Learned counsel for the petitioner contends that there was no direct evidence to connect the petitioner with the crime; that even no suspicion was laid on her in he Rapat recorded on 26.5.1996 or in the F.I.R. which was subsequently registered at the Police Station on 28,5.1996; that 10,11 days after the alleged occurrence, evidence of extra-judicial confession was manoeuvred from the three PWs who were closely related to the deceased: that there was no other incriminating material to corroborate the ah eve said week type of evidence which was not sufficient to be placed ~ reliance on, for the conviction of the petitioner; that the petitioner has been unier going the rigors of jail for the last about 7/8 months but there was no material progress at the trial. Lastly it was submitted that the petitioner being a woman her case was covered by proviso 1 to Section 497 Cr.P.C. entitling the petitioner to the concession of bail. 6. Learned counsel for the complainant as well as for the State have opposed the grant of bail to the petitioner by submitting that trial was on and statement of one witness has already been recorded. 1. I have heard the learned counsel for the parties and have perused the record carefully. 8. Admittedly the petitioner was neither named in the Rapat nor any suspicion was laid on her in the F.I.R. which was subsequently registered on 28.5.1996. It was after about 10/11 days of the occurrence that the three PWs closely related to the deceased appeared before the investigating officer and implicated the petitioner as an accused by allegi-<? that the petitioner has made extra-judicial-confession before,them. This being the only evidence against the petitioner, the evidentiary value of, which, would be appraised by the learned trial Court. No other evidence has been led by the prosecution so as to strengthen the said extra-judicial confession, which was itself a weeker type of evidence to be pressed into service against the accused/petitioner. Moreover the petitioner being a woman, her case would also attract the proviso 1 to Section 497 Cr.P.C. The petitioner was in the lock-up for the last about 7/8 months and the conclusion of the trial was not in sight. Prima facie no reasonable grounds are made out to believe that the petitioner has committed the offence alleged against her. 9. Under the above circumstances and without going deep into the merits of the case so as to avoid prejudice to the cause of either party, the petitioner is allowed bail subject to her furnishing bail bond in the sum of Rs. 50.000/- (Rupees fifty thousand) with two sureties in the like amount each to the satisfaction of the learned trial Court. (Aq. By.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 494 Present: ali MUHAMMAD BALOCH, J. GHULAM HUSSAIN SOOMRO-Applicant versus STATE-Respondent Crl. Misc. Application No. 116 of 1995, accepted on 22.9.1996. Sindh Crimes Control Act, 1975- Ss. 5, 6 & 14 read with S. 561-A of Cr.P.C.-Proceedings u/S. 6 of Sindh Crimes Control Act, 1975-Challenge to-Plain reading of police report as well as contents of orders passed by Tribunal, it is clear that same are of general nature and can safely be termed as "vague" due to lack of their details-Applicant is not previously involved in any case and there is no mention that any report was ever lodged against applicant prior to police report-There is no list of witnesses given by police to Tribunal to be examined by police, rather, there is mention that nobody was ready to give evidence against applicant implying thereby that police was relying merely on its report which is neither supported by any document nor by list of witnesses-Held: Proceedings are abuse of process of court-Held further: Application u/S. 561-A Cr.P.C. is allowed. [P. 496 & 497] A & B Mr. Muhammad Afzal Soomro, Advocate for Applicant. Mr, Muhammad Bachal Tanya, Addl. A.G. for State. Date of hearing: 2.9.1996. judgment Applicant Ghulam Hussain Soomro has been sent up by SHO, Police Station, Dakhan, Taluka Gariii Yasin District Shikarpur to be proceeded against under the provisions of section 14 of Siridh Crimes Control Act in the court cf SDM, Garni Yasin, Such report was made by the SHO on 23,7.1995 and on receipt of the report, the SDM, Garhi Yasin immediately on the same day issued warrants of arrest against the applicant. On the next day i.e. 24.7.1995 an order under section 6 of Sindh Crimes Control Act was passed by the SDM Garhi Yasin who is also a Tribunal for proceedings under Sindh Crimes Control Act. In the order under section 6 of Sindh Crimes Control Act, the SDM mentioned that on receiving the information from SHO, Police Station. Dakhan, he was issuing this order calling upon the applicant to show cause as to why he should not be ordered to execute a bond in the sum cf Rs. 10.OCO/ - for maintaining good behaviour for a period of two years with r-vo sureties in the like amount. The further contention was that the sureties should te respectable persons and should be solvent and should be able to c;ntr;i ;r.e activities of the applicant to the satisfaction of the Court. The has challenged the proceedings and has filed this application powers of this Court under section 561-A Cr.P.C., and has the quashment of the entire proceedings including the order the SDM under section 5 and 6 of the Sindh Crimes Control Act. The contents of the police report are to the effect that the applicant is a thief, a harbourer of the thieves, disposer of the stolen properties on receiving "bhung money" and that he is associated with the gang of criminals wh; wanders with deadly weapons. It is also mentioned in the police report tr.a: the applicant was such a notorious criminal that nobody was prepared tc publicly come forward to give evidence against him and that his remaining cutsiie jail was hazardous to the public. At the bottom of the report, the police was required to give details of his previous criminal record but since "here was no previous criminal record against the applicant, the SHO has written as under:- "There are general complaints against the applicant from the public living within the jurisdiction of P.S. Dakhan." The learned SDM in his order under section 6 of Sindh Crimes Control Act merely repeated, in the precise form, the allegations in the police report andpassedthe order under section 6 Sindh Crimes Control Act. Provisions of section 6 of Sindh Crimes Control Act 1975 require that on receiving the report from the police, the Tribunal shall issue summons or warrants for production of the person reported against before it when there is reason to apprehend the commission of the act complained against such person, and that siu prevented otherwise than by the immediate arrest of that person. From the contents of the police report and from the contents of the order passed under section 5 of Sindh Crimes Control Act by the Tribunal in this case, I do not find that sufficient reasons were placed before the Tribunal by the police so that the Tribunal was obliged to pass an order under section 5 of Sindh Crimes Control Act, as contemplated by S. 6 of the Act. The provisions of section 6 of Sindh Crimes Control Act 1975 require that every summon or warrant issued under section 5 of the Act shall be accompanied by a copy of the police report and a proviso to section 6 of the Act provides that such police report shall state as under:- (i) The acts with which the person complained against is charged; (ii) The details of time and place of such acts; (iii) General repute of person complained or such other allegations made against him. The requirements shown in the proviso to section 6 of Sindh Crimes Control Act, 1975 if had not been complied with, and the report was lacking such details, the cognizance of the proceedings had not been legally taken by the Tribunal. When the allegations against the person proceeded are vague and general in nature in as much as no specific instance, with time, date and place of the acts complained against was not alleged to be a previous convict of any substantive offence, the proceedings under Sindh Crimes Control Act were not properly initiated and, therefore, the same were liable to quashment. One such case on the point is the case of Muhammad Nasim Qureshi v. The State reported in 1990 P.C.L.J. 1249. In the present case, the applicant has not been even alleged to be a previous convict. The specific instances and their time, dates and places are lacking in the police report as well as in the contents of the order passed under section 6 of the Sindh Crimes Control Act. From the plain reading of the police report as well as the contents of the orders passed by the Tribunal, it is clear that the same are of general nature and can safely be termed as "vague" due to lack of their details. The applicant is not previously involved in any case and there is no mention that any report was ever lodged-against the applicant prior to the police report in these proceedings. There is no list of witnesses given by the police to the Tribunal to be examined by the police. Rather, there is mention that nobody was ready to give evidence against the applicant implying thereby that police was relying merely on its report which is neither supported by any document nor by the list of witnesses. Under these circumstances, the learned Additional Advocate- General has also conceded that the proceedings against the applicant have not been legally initiated by the police arid the cognizance taken by the SDM and Tribunal is also not in accordance with law. I therefore, hold that the proceedings before the S.D.M. and Tribunal will result in abuse of process of Court if allowed to proceed further. Consequently this Criminal Miscellaneous Application is allowed and using the powers under section 561-A, Cr.P.C., I hereby order that the proceedings initiated against the applicant before the SDM and Tribunal under the provisions of Sindh Crimes Control Act are hereby quashed. (M.S.N.) Appeal accepted
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 497 Present: ALI MUHAMMAD BALOCH, J. ABDUL AZIZ-Appellant versus STATE-Respondent Crl. Appeal No. 44 of 1994, accepted on 19.9.1996. Pakistan Penal Code, 1860 (Act XLV of I860)-- -S. 409 read with S. 5(2) of Act II of 1947-Misappropriation-Case of-- Conviction for-Challenge to--The very fact that vouchers were entertained by Municipal Committee and they were under scrutiny and pending for approval, suggested that those vouchers could he approved or dis£pproved--In any case if, at a later stage vouchers were found to be correct, then conviction of appellant would be groundless-Held: Trial Court should have under these circumstances given benefit of doubt to appellant as allegation against appellant were not proved beyond reasonable doubt, at stage of judgment-Appeal accepted. [P. 498] A Syed Aijaz Ali Shah, Advocate for Appellant. State through Mr. Issardas, Advocate for Addl. A.G. Date of hearing: 19.9.1996. judgment Abdul Aziz the appellant was convicted by the Special Judge, Anticorruption Larkana Division on 4.4.1993 and sentenced to suffer R.I. for two years and fine of Rs. 5,OOD/-. In default of payment of fine he was ordered to suffer S.I for three months more. 2. The appellant was working as a Cashier at Municipal Committee Shikarpur at the relevant time. The charge against the appellant related to the fact that on 13.3.1982, he was paid a sum of Rs. 3.000/- in cash for the purchase of P.O.L. He was accused of the fact that he did not furnish the details of the expenditure nor returned the amount and therefore it was presumed that he had dishonestly mis-appropriated the above stated sum of money and thereby caused wrongful loss to the Municipal Committee of Shikarpur. The appellant was said to have committed an offence punishable ~ U/s. 409 PPC r/w Section 5(2) of Act II of 1947. 3. The prosecution in support of their case had examined the witnesses Khair Muhammad Deputy Accountant of M,C. Shikarpur, Sadaruddin Office Superintendent M.C. Shikarpur, Ghulam Nabi Accounts Officer and Ghularn Sarwar and Noor Muhammad both employees of the nticorruption Department. As for as the question of payment of the above mounts to the appellant, the same are not denied by the appellant in his case before the trial Court, but his defence was that he had actually spent those amounts for the purpose for which the same were advanced to him and had submitted the vouchers thereof in the Municipal Office but before the said vouchers could be adjudged to be correct or incorrect the prosecution case was completed and Judgment was pronounced against, him and he was convicted. 4. The learned Counsel for the appellant as well as the learned Counsel for State have assisted me to go through the depositions of the witnesses recorded by the trial Court in this ease. All these depositions of the witnesses show that the amounts were actually entrusted to the appellant and that the appellant, had actually submitted the vouchers showing expenditure. All the witnesses have admitted that the vouchers were under the process and they were pending for the purpose of pproval. The trial Court in the judgment has held that since the vouchers have been submitted late, in matter of time, it was presumed that the ppellant had misappropriated the amount arid submitted the vouchers only after complaint had been lodged against him. 5. I have considered the arguments of the learned Counsel as well as gone through the record. The very fact that vouchers were entertained y the Municipal Committee Shikarpur and they were under scrutiny and j pending for approval, suggested that those vouchers could be proved or disapproved. In any case if, at a later stage the vouchers were found to be Al correct, then the conviction of the appellant would be roundless. In my vie the trial Court should have under these circumstances given the benefit of oubt to the appellant as the allegation against the pellant were not proved beyond reasonable doubt, at the stage of the Judgment. 6. Under these circumstances, giving benefit of doubt to the ppellant I accept the appeal and setaside the judgment and the sentence. The appellant is on bail his bail bonds stand discharged. (M.S.N.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 499 Present: SYED DEEDAR HUSSAIN SHAH, J. GUL HASSAN and another-Appellants versus STATE-Respondent Crl. Appeal No. 17 of 1995, accepted on 13.8.1996. Pakistan Penal Code, 1860 (Act XLV of I860)-- -S. 302/34--Murder--Offence of--Conviction for--Challenge to-Ocular evidence produced by prosecution is without any corroboration and circumstantial evidence is hardly to be believed-Identification on torch light during odd hours of night is hardly to be believed-Recovery of gun and torch not supported by mashirs-Empties were not secured by police from vardat, therefore, mere recovery of gun without empties is of no help to prosecutionOcular evidence furnished by prosecution is even telied by prosecution story-Investigating Officer of case due to his death did not appear in court and F.I.R, was lodged by police after preliminary investigation-Appeal allowed. [P. 503 & 506] A & B ?,Ir. All Nawaz Ghanghro, Advocate for Appellant. .Mr. Isserdas, Advocate for Addl. A.G. for State. Date of hearing: 13.8.1997. judgment Appellants were tried by learned Additional Sessions Judge, Shahdadkot for an offence punishable under section 302/34 PPG, found then: guilty and vide judgment dated 29.10.1995 convicted Gul Hassan and sentenced him to suffer R.I. for 25 years and convicted and sentenced appellant Khadim under Section 34 PPC to suffer R.I. for 10 years. The appellants filed this appeal under section 410 Cr.P.C., and have challenged their conviction and sentences. The case of prosecution as unfolded by complainant Ghulam Sarwar in the Roznamcha entry No. 7 dated 28.7.1986 recorded by ASI Muhammad Ycusuf, Incharge Police Post, Sijawal which was subsequently incorporated in 154 Cr.P.C. book of Police Station, Minro Khan is, that deceased Mehboob vas his uncle and his otaq is situated near abandoned Ambat Canal adjoining to his house. Gul Hassan is their caste fellow and resides at the distance of about one mile from their village. His uncle deceased Mehboob prevented Gul Hassan not to visit their village. Gul Hassan replied that he used to visit the house of Muhammad Yakoob, as such they have no concern. About a week prior to the incident Gul Hassan visited the house of Muhammad Yakoob and on this account there was exchange of harsh words between Gul Hassan and deceased Mehboob. On account of this Gul Hassan was annoyed and issued threats to deceased Mehboob. On the night of incident i.e. 28.7.1986 at about 'Fajr' prayer time deceased Mehboob was sleeping in his otaq whereas PWs Muhammad Khan and Mithal were sleeping in their own houses. Complainant and PWs heard gun shot reports and cries of deceased Mehboob and immediately went running towards the otaq and found on the torch light appellants Gul Hassan and Khadim armed with S.H.B.L. gun and were firing at deceased Mehboob on which they gave hakals and culprits made good their escape towards north. Complainant and PWs went over to Mehboob and found him injured having fire arm injuries and subsequently he died. Complainant after leaving the PWs over the dead-body went to lodge the report. ASI Muhammad Yousuf Incharge Police Post, Sijawal lodged the report. After lodging the report ASI proceeded towards vardat, inspected the vardat and prepared mashirnama in presence of mashirs Wazir AH s/o Karim Bakhsh and Noor Muhmmad s/o Piyaro Jatoi and also prepared danishnama of deceased Mehboob in presence of the same mashirs. Complainant also produced torch before police on 28.7.1986 which was secured by ASI Muhammad Yousuf. ASI Muhammad Yousuf after completing the usual formalities handed over the dead-body of Mehboob to Huzoor Bakhsh PC for taking the same to Medical Officer, Miro Khan for post mortem examination and report. After usual autopsy, dead-body was handed over to Ghulam Qadir by Huzoor Bakhsh PC under receipt. ASI Muhammad Yousuf on 22.8.1986 arrested Kliadim Hussain in presence of same mashirs and prepared mashirnama and obtained signatures of mashirs Wazir All and Noor Muhammad. On the same day ASI secured SBBL gun at the pointation of Khadim Hussain in presence ofmashir Wazir Ali and Noor Muhammad and prepared mashirnama. On 22.8.1986 Gui Hassan was arrested by ASI Muhammad Yousuf in presence of mashirs PCs Muhammad Hassan and Ghulam Qadir of PS Miro Khan at Bhand-Garhi Khairo road near Kot Lai Bakhsh Mahesar. Police also secured SBBL gun from accused Gul Hassan in presence of same mashirs. Police prepared single mashirnama for recovery and arrest of Gul Hassan. After fmalizatioii of investigation accused were challaned in the court. On 22.9,1987 learned Vth Additional Sessions Judge Larkana framed the charge against the accused. Accused pleaded not guilty. During the trial, prosecution examined PW-1 Huzoor Bakhsh PC Ex. 7. PC Huzoor Bakhsh after receiving dead-body of Mehboob from ASI Muhammad Yousuf, handed over the same to Medical Officer Miro Khan for post mortem examination which was handed over to Ghulam Qadir under receipt which is x. 7-A by Huzoor Bakhsh. PW-2 Dr. Aurangzeb Ex. 8. Doctor received the dead-body of deceased Mehboob. According to this witness, he observed following injuries:- EXTERNAL EXAMINATION A dead body of middle aged, male, Muslim, rigor mortes present, postmortem lividity present, no signs of putrifaction. "EXTERNAL INJURIES (1) 8 lacerated punctured type of wounds \ c.m. x \ c.m. diameter over the back of the chest at the mid of vertebral column (wound of entrance). (2) 7 lacerated punctured type of wounds \ c.m. x \ c.m. x diameter in the left axilla (wound of entrance). Four pallets recovered from the body of deceased and went to the police station. INTERNAL EXAMINATION Brain N.A.D. Spinal cord ruptured at the side of injury No. 1. Fracture of the 8th and 9th thoresic vertebrea. Chest. Rupture of both right and left lung. Ruptured of the heart. Abdomen, Stomach empty. Few perforation in intestine." According to doctor, death of deceased has occtirred due to shock and haemorrhage, all the injuries were ante-mortem in nature, discharged from fire arm. The death was instantaneous. Medical Officer produced the post mortem notes as Ex. 8-A. In cross-examination, according to doctor injuries sustained by deceased were not fired from front. Injury No. 1 was fired from back while injury No. 22 was fired from left side. PW-3 is Ghulam Sarwar complainant Ex. 9. According to him during night time when as usual he was sleeping in his house at about fajr prayer time, he heaid gun reports coming from the otaq of his uncle Mehboob. He picked up torch and went running there. PWs Muhammad Khan and Mithal followed him. He flashed torch and saw Gul Hassan and Khadim armed with SBBL guns, PWs Mithal and Muhammad Khan also saw the accused. According to him he had seen Gul Hassan firing at deceased Mehboob. Accused Gul Hassan used to visit the house of Yakoob. His uncle Mehboob had restrained Gul Hassan not to visit the house of Yakoob. On this account Gul Hassan was annoyed and subsequently Mehboob was killed on 8th day when Gul Hassan was restrained by Mehboob not to visit the house of Yakoob. Complainant produced FIR Ex. 9-A. He has shown vardat to police and in his presence dead-body of Mehboob was despatched to dispensary for autopsy through PC Huzoor Bakhsh. PW-4 is Muhammad Mithal Ex. 10. He has stated that it was night time when he and his brother Muhammad Khan were sleeping in their house. House of complainant Ghulam Sarwar is near to their house. At Fqjr prayer time, he heard gun reports and cries coming from west of their house. He and Muhammad Khan went running there and also saw Ghulam Sarwar going ahead of them. They went to the otaq of Mehboob and saw Gul Hassan and Khadim armed with SBBL gun, they were firing at deceased Mehboob and told them not to come near to them as they would be killed. Accused thereafter ran away. They went near Mehboob and found him dead. Muhammad Mithal and Khan Muhammad remained with the dead-body of Mehboob while Ghulam Sarwar went for lodging report to the police. He was examined by police. His 164 Cr.P.C. statement was recorded by Mukhtiarkar and FCM, Miro Khan which he produced as Ex. 10-A. According to witness deceased Mehboob had prevented accused Gul Hassan from visiting the village over which Gul Hassan got annoyed. PW-5 Muhammad Khan Ex. 11 has stated that it was about Fqjr prayer time when he alongwith complainant Ghulam Sarwar and PW Muhammad Mithal and other inamtes were present in the house. All of sudden there was gun report coming from the otaq of deceased Mehboob. They rushed towards otaq of Mehboob. He saw Gul Hassan and Khadim armed with guns in the Ewan of otaq. Accused Gul Hassan and Khadim issued hakal to Ghulam Sarwar and told him not to come near to them. Accused Gul Hassan then fired at Mehboob and ran away. They found Mehboob dead. He was examined by police. His 164 Cr.P.C., statement was recorded by Mukhtiarkar & FCM Miro Khan which he produced as Ex. 11-A. According to this witness, accused persons have committed the murder of Mehboob without any reason. PW-6 Niaz Hussain tapedar of the beat was examined as Ex. 12. He produced sketch of vardat. According to him vardat was shown in this case by Ghulam Sarwar. He prepared sketch of vardat by showing therein the points, directions and distance and marginal notes. According to him, he has taken the measurements with the measure tape and produced sketch of vardat in duplicate as Ex. 12-A. PW-7 Wazir Khan mashir was examined as Ex. 15 who did not support the prosecution case regarding the production of torch by the complainant and did not support prosecution case regarding arrest of Khadim and denied that Khadim had led police to his katcha landhi and produced one SBBL gun and licence copy in his name. Finally he stated " I cannot say if torch and gun available in court are same." The witness was declared hostile by the learned APP and the suggestions of APP were denied by the witness. PW-8 Azizullah was examined as Ex. 23. As Muhammad Yousuf ASI has expired and Azizullah was conversant with his hand writing and signature, therefore, he was examined by the prosecution. He produced Roznamcha entry No. 7 as Ex. 23-A and also saw Ex. 15-A, B, C and 15-D and stated that these documents bear the signatures of late Muhammad Yousuf. Report of Chemical Examiner was produced by APP as Ex. 24-A, parcel No. 1 of this crime showing earth secured beneath deceased Mehboob was sent for report and the report of the Analyzer is in positive showing earth to be stained with human blood. On 19.9.1995 learned APP submitted statement closing the side on behalf of prosecution as Ex. 25. Statement of accused Gul Hassan was recorded as Ex. 26 and statement of accused Khadim was recorded as Ex. 27. Both the accused denied the prosecution allegations and stated that PWs are inimical, hostile a:;i interested. Accused neither led any defence nor they examined themselves on oath. I have heard Mr. Ali Nawaz Changhro learned counsel for the appellants who has contended that the evidence adduced by the prosecution at trial is not properly examined, analysed and evaluated by the trial court; that the ocular evidence produced by the prosecution is without any beration and circumstantial evidence is hardly to be believed against ppellants; that alleged identification on torch light during odd hours of night is hardly to be believed. Ocular evidence so furnished by the prosecution is even belied by the prosecution story, circumstances and conduct of the PWs so examined by the trial court. Recovery of torch and gun against the appellants is not supported by the mashir. Investigating Officer of the case due to his death did not appear in the Court and the FIR was lodged by the police after preliminary investigation, this fact is admitted by the complainant himself in his evidence. Mr. Ghanghro has referred 1988 P.Cr.L J. 152 wherein it is held as under:- '"Occurrence a dark night incident and victim assault having one injury each thereby leaving a little opportunity to eye witnesses for having witnessed the incident-incident appearing to be unwitnessed and possibility that complainant party being hostile to accused, falsely implicated them due to suspicion and enmity." Learned counsel for the appellants has also referred 1989 P.Cr.L.J. 471 Afzal Hussain v. State in which dictum laid down is as follows:- "Investigating Officer was dead and mashirnama regarding recovery of weapon used in offence was produced through another Police Officer to prove handwriting and signature of deceased Investigating Officer-Mashirnama not being substantive piece of evidence, recovery, held, could not be proved through Police Officer other than Investigating Officer." Learned counsel has also referred 1992 P.Cr.L.J. 2498 Muhammad Zaman v. The State in which the observation of Honourable Judge is as follows:- "Actual incident was found to be an unwitnessed crime having been committed in the dark hours of the night for which the accused had been roped in." Learned counsel lastly referred 1993 P.Cr.L.J. 527 Muhammad Amin v. The State, D.B. decision of this Court. The learned Division Bench has held as follows:- "Ocular evidence was discrepant, full of infirmities and unworthy of credit-Incident having occurred at mid night mistaken identity of assailant could not be ruled out-- FIR might have been recorded after due deliberations giving names of close relations of deceased as eye-witnesses." I have also heard Mr. Isserdas learned counsel for Additional Advocate-General and I have gone through the record of this case carefully. The fact that Mehboob was murdered by means of gun shot injuries is not in dispute. Besides other evidence on this point, Dr. Aurangzeb PW-2 has produced the post mortem report Ex. 18 referred hereinabove. The case of prosecution against the appellants hinges upon the ocular testimony of complainant Ghulam Sarwar, PWs Muhammad Mithal and Muhammad Khan. Admittedly according to prosecution, incident took place during night time round about Fajr prayer time when Mehboob was sleeping in his otaq. After hearing gun reports complaint and PWs went running there and according to them they were on their respective cots when they heard the first fire report. The complainant in his initial report with the police stated that he had only seen accused Gul Hassan firing at deceased and he has admitted this fact during cross-examination in the trial court. The complainant was confronted by the learned counsel for the defence on making improvement in the case that they had witnessed the incident of firing by Gul Hassan and Khadim at deceased Mehboob Complainant Ghulam Sarwar in cross-examination has stated as follows:- "I have not stated in my FIR that in our presence accused Gul Hassan and Khadim Hussain were firing at deceased Mehboob." Admittedly houses of complainant and PWs are at some distance from the otaq of Mehboob i.e. the place of vardat The contention of the learned counsel that FIR was lodged by the police after preliminary investigation is supported by the evidence of complainant and during cross-examination he has stated that "I gave the facts to ASI who accompanied me to the village of Khan Muhammad Jatoi. We had gone to the village of Khan Muhammad Jatoi in police vehicle. ASI told Khan Muhammad that since murder has taken place in his village, therefore, hands of culprits should be entrusted to him. Khan Muhammad told ASI that he has nothing to do with the matter and that accused had disappeared. After this we came to vardat where ASI took down my report. ASI did not examine the witnesses at the vardat. He brought all of us to Police Station, Miro Khan where ASI examined my witnesses." According to complainant mashirs Noor Muhammad and Wazir are his caste fellows. On the point of production of torch, complainant has stated that he had produced the torch before the police at Police Station, Miro Khan on the next day of incident whereas according to mashirnama of recovery of torch, same was produced by the complainant at the time when police inspected the scene of offence. This controvercial statement itself belies the production of torch by the complainant. PW Muhammad Mithal has stated in cross-examination that he was awakened when he heard the gun reports, Muhammad Khan was also awakened. According to PW Muhammad Mithal, he and Muhammad Khan saw complainant when he was coming out of his house and was running towards otaq of Mehboob and that he had heard one gun report while he was in his house and when he reached the otaq of Mehboob second fire was made by Gul 'Hassan at deceased Mehboob whereas accused Khadim Hussain did not fire at deceased in his presence. According to this witness deceased had bleeded a lot and the blood spread on the cot as well as on the ground, police had secured all the blood stained articles including the cot and the bed. This statement is falsified by the mashirnama of vardat prepared by the police as except blood strained earth neither cot was secured by the police nor other blood stained articles were shown to have been secured by the police in the mashirnama. According to this witness police had arrested the accused on either second or third day of incident and he had seen the accused present at the Police Station whereas according to police and mashirnama of arrest of accused and recovery of gun, accused were arrested on 22.8.1986. PW Muhammad Khan has admitted that he has stated in his 161 Cr.P.C. statement and 164 Cr.P.C. statement that on the relevant night he was sleeping in his house when he heard gun report and that he had heard one fire report while he and other inmates were awakened. Witness has further admitted in cross-examination that he has stated in 161 as well as 164 Cr.P.C. statements that on reaching the otaq, he saw only Gul Hassan firing at Mehboob and that he has not stated in his 164 Cr.P.C. statement that accused Gul Hassan and Khadim Hussain had fired at deceased in his presence and that when they arrived at the otaq they found Mehboob lying on the ground. Witness was confronted by the learned defence counsel to his 164 Cr.P.C. statement recorded by Mukhtiarkar and FCM Miro Khan. The learned trial court has considered only the ocular evidence of the witnesses referred herein above. Witnesses have deliberately made improvements in the case and have given stoiy which itself does not inspire confidence. In as much as deceased Mehboob was sleeping in his otaq whereas complainant and PWs Mithal and Khan Muhammad were sleeping in their respective houses when on hearing gun shot reports they were awakened and they proceeded towards the otaq of Mehboob. In their 161 and 164 Cr.P.C. statements they were not unanimous about the role played by both of the accused. On the one hand they have alleged incident of firing at Gul Hassan and that Khadim has not caused any fire arm injury whereas in the evidence they implicated both of the appellants. This ambiguity and improvement in any case shows that evidence furnished by the PWs is not trustworthy and implicit reliance cannot be placed on the evidence. The non recovery of cot and bed etc. from the vardat also cast serious doubt about the veracity of stoiy given by the PWs. RECOVERY, Mashir Wazir Khan has not supported the prosecution case on the point o presentation of torch by the complainant and arrest of appellantKhadim Hussain and recovery of SBBL gun at his pointation and witness was declared hostile. ASI Muhammad Yousuf xmfortunately expired before recording of his evidence. PW Azizullah was examined in his place as he was well conversant with the signature and hand writing of Muhammad Yousuf ASI. Under these circumstances, recovery in any case against the appellant Gul Hassan cannot be proved through the evidence adduced by the prosecution. It is the case of the prosecution that empties were not secured by the police from the vardat, therefore, mere recovery of gun without B empties is of no help to the prosecution. I have minutely gone through the evidence as discussed above and have also perused the authorities cited by Mr. AH Nawaz Ghanghro learned counsel for the appellants. Mr. Isserdas learned State counsel in view of the evidence discussed hereinabove and authorities referred by Mr. Ghanghro, very rightly did not support the conviction awarded by the learned trial court. As a result, therefore, for this unsatisfactory state of evidence in this case, I find myself unable to uphold the conviction of the appellants and giving them the benefit of doubt, I set aside their conviction and sentences and direct that both of them be set at liberty if not wanted in any case. The appeal is accordingly accepted and the impugned judgment is set aside. By short order dated 13.8.1996 I have allowed this appeal and these are the reasons for the same. (M.S.M.) Appeal allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. 507(Karachi) Present: SYED DEEDAR HUSSAIN SHAH, J. JANIB CHANDIO-Applicant versus STATE-Respondent Cr. B.A. No. 99 of 1996, accepted on 25.8.1996. Benefit of Doubt-- -Benefit of doubt-There are two versions of prosecution case and by now it is settled law that benefit of doubt arising out of prosecution case is to be exercised in favour of accused. [P. 511] A Mr. AsifAli Soomro, Advocate for Applicant. M/s. Abdul Fatah Mughal and Issardas, counsel for Addl. A.G. Mr Muhammad Afzal Soomro, Advocate for Complainant. Date of hearing: 25.8.1996. judgment Applicant Janib S/o Buxial Chandio seeks bail in Crime No. 1/1996 P.S Drigh under section 302, 34 PPG. The case as unfolded in the F.I.R. is that on 20.1.1996 complainant Abdul Qadir, his brother Ghulam Qadir and cousin Mashooque Ali left their houses towards village Qadir Bux Chandio. When they reached near the lands of Allah Bux in the evening at about 6.30 p.m they, saw Imam Bux, Rasool Bux, Janib and Muhammad Hassan coming running towards them. Rasool Bux was armed with Rifle, Imam Bux was having shotgun and rest were having hatchets. Imam Bux challenged Mashooque and asked him that his relative Barkat Ali is their KARO and why they have come to their village. They will not be spared and would be killed. Imam Bux fired direct shot at Mashooque Ali which hit him who fell down. Other two accused challenged the complainant not to come near. The complainant party was empty handed, they did not went near to them and raised cries which attracted Allah Bux Chandio. Complainant lodged the F.I.R.. During investigation applicant/accused was arrested by police. His bail application was rejected by the learned Sessions Judge vide his order dated 4.4.1996. 2. I have heard Mr. Asif Ali Soomro learned counsel for the applicant/accused, Mr. Muhammad Afzal Soomro for the complainant and M/s. Abdul Fatah Mughal & Issardas counsel for Addl. A.G. Mr. Asif Ali Soomro contends that specific role of firing on the deceased is attributed to co-accused Imam Bux and according to the prosecution case part assigned to this accused is that he was armed with hatchet. Police during investigation examined Bachal, Muhammad Piyaral, Mashooque and Ali Gohar and recorded their 161 & 164 Cr.P.C. statements in which they implicated applicant/accused Janib also. Police also got recorded the judicial confession of present applicant/accused from the Court of Civil Judge & FCM Qamber. Complainant party being dis-satisfied with the findings of the investigation moved the learned Sessions Judge with an application under section 193 Cr.P.C. for joining Imam Bux as an accused. It would be pertinent to refer clause 4 of the application filed on behalf of complainant in the Court of learned Sessions Judge:- "That as per version given in the FIR as well as in 161 & 164 Cr.P.C. statements of the witnesses, respondent No. 1 (Imam Bux) was present at the wardat duly armed with gun and specific role of causing gun shot injuries to deceased Mashooque Ali has been attributed to him." After hearing the learned Counsel for the complainant the Sessions Judge vide his order dated 29.5.1996 ordered as follows:- "I have perused the F.I.R.. and found that the complainant has specifically attributed part against this accused that he has raised Lalkara arid then he fired a shot which hit Mashooque Ali, hence he has taken part in the offence, even otherwise this accused has been let off u/S. 497 Cr.P.C. which means he was left off on bail and he was not released under section 169 Cr.P.C. Under these circumstances the application moved u/S. 193 Cr.P.C. is allowed. Issue N.B.Ws against accused Imam Bux S/o Mevo Chandio for his arrest to SHO P.S Drigh." Mr. Asif Soomro learned Counsel contends that the case of prosecution prima facie appears to be to two versions and by now it is settled law that any doubt arising out of prosecution case is to be allowed in favour of the accused. Mr. Asif Ali Soomro refers (1) P.L.D. 1994 Supreme Court 86, (2) 1984 P.Cr.LJ. 2495 and (3) 1995 P.Cr.L.J. 544:- (1) P.L.D. 1994 Supreme Court 86 (Muhammad Rahim and another v. Baita Gul and another). The observation of the Honourable Supreme Court is as follows: "Tariq Nawaz who is a young boy of 16/17 years, first made a complaint against his brother in law and then in his statement u/s. 164 Cr.P.C. resile from it and accused the petitioners." (2) 1984 P.Cr.L.J. 2495 (Shahbaz Gul v. The State). Learned Judge of this Court has held:- "I have considered the arguments advanced by learned Counsel for applicant as well as learned Assistant Advqcate General and find that in view of the totally different version given in the FIR and statements u/S. 164 Cr.P.C. whereby different persons had been implicated and even the nature of weapon used as well as the motive setup have been changed, without expressing any opinion on the merits of the case. It is a case of further inquiry." (3'i 1995 P.Cr.L.J. 544 (Asghar Masih and another v. The State), Learned Judge observed that:- "There is no legal or moral compulsion to keep an accused in jail merely on the allegation that he had been mentioned in the F.I.R. and had committed rmirder unless reasonable grounds appear to exit. It is well established principle of law that law should not be stretched in favour of the prosecution if any benefit of doubt arises, it must go to the accused." Mr. Muhammad Afzal Soomro learned Counsel contends that accused/applicant has given judicial confession before Civil Judge and F.C.M. Qamber which is corroborated by recovery of his licensed gun. Learned Counsel has referred (i) 1994 P.Cr.L.J. 2139 (Hubdar All Shah v. The State) decision of this Bench:- "The alleged judicial confession is verbatim copy of the statement of accused recorded by police on 4.9.1994 which is available in the police appears. Facts in advance knowledge of the police stated in confession and only corroborated the confession when confessor had not done so at the instance of prosecution." In this case facts of the present case were already in the knowledge of police and alleged judicial confession is verbatim copy of the statement of accused recorded by police u/S. 161 Cr.P.C., therefore, this authority is not in favour of the complainant, and rather it supports the case of complainant. (2) P.L.D. 1986 Supreme Court 173 (The State v. Zubair and 4 others). The observation of honourable Supreme Court is as follows:- "The second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed cannot be considered as a fresh and made the basis of any subsequent bail application. The mere fact that the Judge who had rejected the first bail application with the observation that as far as the remaining petitioners are concerned no case had been made out for their release on bail, does not mean that the application has not been disposed of on merits. It must be assumed that he had considered all the pleas or ground raised by the learned Counsel before him that the same had not found favour with him. The notion that each contention raised before the Court in a bail application must not be dealt with the separately or repelled by recording elaborate reasoning, is totally misconceived." "The fact of having recorded judicial confession of the accused was considered by the learned Sessions Judge in his order dated 4.4.1996. The application is not moved here second time." With all humbleness at my command I am of the opinion that observation of the Honourable Supreme Court is not applicable to the facts of the present case. I have heard M/s. Abdul Fatah Mughal & Issardas learned Counsel for Addl. A.G. who have conceded to the grant of application. Admittedly the accused Imam Bux has been joined by the Sessions Judge, Larkana as co-accused in this case. Police during investigation has released him under section 497 Cr.P.C. The confession has been perused by me without discussing further merits or demerits of the case, the confession appears to be verbatim statement of accused recorded by the police. In FIR active role of firing is attributed to accused Imam Bux, whereas subsequently police during investigation arrested accused/applicant and on the very day got recorded his confession. I may point out that in his judicial confession none is mentioned as witness of occurrence, whereas he has mentioned Rasool Bux, Muhammad Hassan who are shown as co-accused in the case by the police. According to cliallan Muhammad Hassan is shown as absconder whereas Rasool Bux is shown in custody, who has been released on bail by the learned Sessions Judge, Larkana. The contention of Mr. Muhammad Afzal that police has dishonestly investigated the case and recorded the statements of the persons at the v, him and wish of co-accused Rasool Bux. Be that as it may, any fault in p;.'.i:e investigation is not to be taken in favour of the prosecution at all. Co-accused Imam Bux is released on bail by the police. Accused Rasool Bus has been granted bail by the learned Trial Court. The version given in the FIR in which accused/applicant is alleged to be armed with hatchet is subsequently changed by the witnesses examined by the police namely Bachal, Muhammad Piyaral, Mashooque Ali and Ali Gohar in their 164 Cr.P.C. statements. It is strange enough to note that alleged judicial confession of accused Janib is silent about the presence of these witnesses. The active role of firing at deceased is assigned in these statements to accused/applicant Janib. Thereafter, police released accused Imam Bux on bail u/S. 497 Cr.P.C. According to prosecution case solitary single empty is alleged to have been recovered by the police from the wardat and active role of firing in FIR is attributed to Imam. Bux co-accused who has subsequently been joined by the learned Sessions Judge as accused vide his order dated 29.5.1996 referred hereinabove. The contention of learned counsel for complainant that alleged recovery of licensed gun is corroboration to the judicial confession of accused recorded by Magistrate is hardly to be considered, because according to case of prosecution active firing is attributed to accused Imam Bux and subsequently version is changed and active role is assigned to present accused Janib. It would be pertinent to refer unreported decision of this Court in Cr. Bail A. No. 169/1991 (Ghanwar v. The State), Crl. Bail A. No. 388/1992 (Ranjhan v. The State) and Crl. Bail A. No. 6622/1986 (Sono v. The State) in which it has been held that judicial confession without independent corroboration is hardly to be believed and the cases of the applicants were held to be of further inquiry. Here in this case also, the judicial confession is not supported by independent corroboration. The case law referred by Mr. Asif Ali Soomro has relevancy to the facts of the present case, whereas case law cited by Mr. Muhammad Afzal Soomro is different and distinguishable and has no relevancy to the facts of the case. Prima fade there are two versions of the prosecution case and by now it is settled law that benefit of doubt arising out of prosecution case is to be, exercised in favour of the accused. For the foregoing reasons, case of the applicant/accused is that of further inquiry. I allow this application and order that accused/applicant be released on bail on furnishing solvent surety in the sum of Rs. 200,000/- (Two lacs) and PR Bond in the like amount to the satisfaction of trial Court. (M.S.N.) Application accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 512 Present: ali muhammad baloch, J. MUKHTAR AHMAD-Petitioner versus STATE-Respondent Crl. Misc. A. No. 40 of 1996, accepted on 17.9.1996. Sindh Crimes Control Act, 1975- -S. 14 read with S. 561-A of Cr.P.C.-A person against whom neither a report has been lodged nor any complaint has been received by police cannot be said to be a habitual or repeater of crimes-Therefore action U/S. 14 of Sindh Crimes Control Act against applicant does not appear to be warranted by law-Proceedings quashed. [P. 514] A Mr. Abdul Fatah Mughal, Advocate for Applicant. Mr. Muhammad Bachal Tanvo, Addl. A.G. for State. Date of hearing: 17.9.1996. judgment Applicant Mukhtiar Ahmed has been sent to face the proceedings under section 14 of Sindh Crimes Control Act 1975 by S.H.O. Mehar. 2. The S.H.O. Mehar moved the Court of SDM and Tribunal by making a report against the applicant on 15.8.1996 for an action u/S. 14/4 of Sindh Crimes Control Act 1975. In this report it was mentioned by the S.H.O. that the applicant was a notorious drugs dealer, harbourer of criminals and that he roams about with deadly weapons in order to create harassment in public. The report further discloses that no person from the public was ready to come forward to give evidence against him or register case against him and that therefore action under section 6. Sindh Crimes Control Act may be taken against him. The report did not disclose as in what crimes the applicant was involved previously and as to when and where the applicant had committed any crime and whether he was a previous convict. The list of witnesses which the SHO proposed to examine in support of his report showed the names of three police officials of the same Police Station in addition to the SHO himself. 3. It appears from the record of the case called from the Court of SDM and Tribunal Mehar that on that very day SDM issued non bailable warrants for the arrest of the applicant addressed to the SHO Mehar for his appearance before the Court on 25.8.1996. Thhus Non bailable warrants appear to have been issued after the SDM recorded the statement of SHO Mehar Mr. Dost Muhammad Mangario. It is significant to note that this statement of the SHO does not appear to have been recorded on oath. In the statement of Dost Muhammad Mangario the SHO Mehar in general terms levelled same allegations as in the report. The record further shows that an order u/S. 5 of Sindh Crimes Control Act was passed by the SDM Mehar on the same day i.e. 15.8.1996 holding that the remaining at large of the applicant was hazardous to the community. 4. The applicant was arrested and produced before the SDM by the SHO Mehar on 20.8.1996 on which date he was remanded to judicial lockup at Mehar. On 25.8.1996, the record shows that an order u/S. 8/3 (a) Sindh Crin~.es Control Act 1975 was passed. The contents of this order speak that applicant is an active and habitual criminal and that he is a desparate person therefore for immediate prevention of the commission of the acts complained against him he should execute a bond with two sureties of Zemindar class each solvent in the sum of Rs. 25,000/- and PR Bond in the like amount to maintain good behaviour till the completion of the inquiiy. The applicant Mukhtar Ahmed however refuted all the allegations against him before the DM Mehar and claimed inquiiy. Such plea of the applicant as also retried in response to the formal charge framed against him by the SDM Mehar. The applicant was supplied copy of the report filed against him by the police in the Court of SDM. The applicant who had been arrested and put behind the bars, filed a Crl. Miscellaneous Application u/S. 561-A Cr.P.C. before this Court and stated that he is a sickman aged about 145 years, suffers from chest disease, that his brother who had applied for the certified copy of the police report and orders passed by the SDM, was not issued any copy. The applicant further claimed that the report made by the p clice against him and the orders passed by the SDM, were in contravention cf the provisions of Sindh Crimes Control Act as interpreted by the Superior Courts and that his involvement in the proceedings was illegal and mala fide ar.d that the proceedings were infact abuse of process of law as neither police had any record to show that the applicant had indulged in any crime nor thfa police had mentioned in the report the pieces of evidence against the appli cant to prove the allegation. The applicant was ordered to be released on bfii.1 ty this Court on 26.8.1996. To day the case is fixed for regular hearing. 5. I have heard the learned Counsel for applicant as well as learmed Additional A.G. Learned Counsel for applicant apart from challenging the legality of the proceedings and the orders issued by the SDM has stated that infact the applicant has never indulged in any crime and that on accou.nt of malafide reasons the police has involved him. Learned Additional A.G. aAer going through the record of the case has not supported the proceedings in the Court of SDM and the orders passed by him, and stated that the proceedings before the SDM are abuse of the process of law and t'nat the same ought to be quashed. 6. I have considered all the aspects of the case. Mere mention in the police report that the applicant was a notorious and hazardcms criminal without specifying instances of his involvement in any incident <or crime, was not enough to bring the case within the purview of the section 14 of the Sindh Crimes Control Act. 7. In case of Haji Jam v. The State (1994 P.Cr.L.J. 1). This Court has already held, reports by the police should specifically mention the particulars of whatsoever acts have been committed by the applicant. The report should comprise the date, time and place of each act and copies of the previous reports or complaints against the applicant must be annexed with the report. These have been held to be essential requirements of the Act. It is clear that in this report such details are not given by the police. 8. In the case of Ali Box v. The State (1994 P.Cr.L. J. 4), it was found that in the report the applicant was not shown to have been convicted in any case and the only witnesses cited against the applicant, were police officers and the names of the criminals who were alleged to have been sheltered by the applicant were not given. In such circumstances, it had been held that the Magistrate had acted illegally by remanding the applicant to custody and had also acted illegally by passing an order u/S. 8(3) of the Act, as such material was not found enough. Similarly in this case the applicant appears to have been illegally sent to jail as the material available before the Magistrate did not justify issuance of nonbailable warrants against him, specifically in view of the above cited two cases and many other cases decided by this Court on this point. 9. The police generally does not strictly comply with the provisions of Sindh Crimes Control Act while dealing with the criminals obviously on account of ignorance of the decisions of this Court interpreting the provisions of Sindh Crimes Control Act. The learned Magistrate in this case has also ignored the decisions of this Court. 10. In this case the applicant has not been alleged to be a previous convict. The specific instances of the crimes committed by him are lacking in the police report as well as in the orders passed by the S.D.M. The plain reading of the report as well as the orders show that the allegations are of mechanical and general nature and can safely be termed as "vague." The non involvement of the applicant in any case prior to this report, in is surprising. The very preamble of the Sindh Crimes Control Act 1975 shows that it has been enacted to provide effective machinary of law to prevent the commission and a repetition of crimes and to consolidate law relating to anti ocial elements and disorderly persons in the province of Sindh. A person against whom neither a report has been lodged nor any complaint has been received by the police cannot be said to be a habitual or repeater of crimes and therefore the action u/S. 14 of Sindh Crimes Control Act against the applicant in this case does not appear to be warranted by law. 11. I am clear in my mind if these proceedings are allowed to remain on record of the SDM it will be abuse of the process of law and therefore invoking powers under section 561-A Cr.P.C., 1 hereby order that the proceedings initiated against the applicant before the S.D.M. and Tribunal Mehar by SHO Mehar under the provisions of Sindh Crimes Control Act are hereby quashed. (M.S.N.) Proceeding quashed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 515 Present: khalid paul khwaja, J. MAQBOOL AHMAD and another-Petitioner versus STATE and AMEER ALI-Respondent Crl. Misc. No. 2039-B of 1996, decided on 10.3.1997. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- S. 204-Under section 204 Cr.P.C. a Magistrate could issue process to accused on being satisfied that there was sufficient ground for proceeding against themHe is not required under law to state reasons in support of his order. [P. 518] A (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- -S. 204 read with Section 94~Whether learned Sessions Judge could straight-away issue non-bailable warrants of arrest against accused while issuing process under section 204 Cr.P.C.-Non-bailable warrants of arrest had been issued to petitioners U/S. 302 PPC-Petitioners are accused persons in a private complaint-After issuance of process against them under Section 204 Cr.P.C. when they had put in appearance before trial Court learned Sessions Judge should have acted in accordance with provisions of Section 91 Cr.P.C.-Admittedly petitioners were not asked to execute bondsThis was a lapse on part of learned trial Court which militates against law laid down by Superior Courts-Held: Learned Sessions Judge should have asked petitioners to execute bonds for their appearance even if they had been summoned through non-bailable warrants of arrest. [P. 518] B & C Ch. LiaquatAli Sindhu, Advocate for Petitioner. Raja Shafqat Abbassi, Advocate for Complainant. Mr. AH. Masood, Advocate for State. Ch. uhammad Anwar Naroo, Advocate. Date of hearing: 10.3.1997. order By this order I propose to dispose of the following four bail applications which arise out of the same case and have common questions of lav,- and fact- CD Crl. Misc. No. 2039-B of 1996 (i) Maqbool Ahmad and Muhammad Aslam Vs. The State and (ii) Ameer AIL (2) Crl. Misc. No. 2128-B of 1996. (i) Baboo Muhammad Ishaq (ii) Master Asif and (ii) Akhtarvs. (i) The State (ii) Ameer Mi. (3) Crl. Misc. No. 2329-B of 1996. Muhammad Nawaz vs. (i) The State and (ii) Ameer All. (4) Crl. Misc. No. 5357-B of 1996. Muhammad Aslam vs. (i) The State and (ii) Ameer AIL 2. The relevant facts which gave rise to the above applications are that on 13.12.1992 a case (FIR No. 285/92) under Section 319 PPC was registered at Police Station Pindi Bhattian, Hafizabad on the statement of Ameer All respondent No. 2 in the above mentioned applications and hereinafter referred to as the complainant, against Mukhtar Ahmad Inspector/SHO, Police Station Pindi Bhattian, Maqbool Ahmad Sub- Inspector, Muhammad Aslam ASI, Baboo Muhammad Ishaq, Akhtar, Master Asif and two Constables who could be identified by the complainant if brought before him. It was alleged that on 7.9.1992 Muhammad Munir, the brother of the complainant, hereinafter referred to as the deceased, was taken into illegal custody by the above mentioned police officials and taken to the Police Station where he was tortured. As a result of the said severe torture he became unconscious and was removed to the Mayo Hospital, Lahore where he died on 26.9.1992. The complainant alleged that the aforementioned accused had intentionally caused the death of his deceased brother through torture. 3. The concerned police authorities/investigating agency came to the conclusion that only an offence under Section 319 PPC (Qatl-i-Amd) was constituted. However, on the direction of the High Court the investigation of the case was entrusted to Crimes Branch and the Investigating Officer came to the conclusion that only an offence under Section 337 PPC was constituted against Maqbool Ahmad Sub-Inspector only. 4. On 13.9.1994 Ameer All complainant instituted a private complaint under Sections 302, 342, 364, 147, 148 and 201 PPC in the Court of the learned Sessions Judge, Hafizabad against the aforementioned accused. The learned Sessions Judge sent the compliant to a Magistrate for an inquiry under Section 202 Cr.P.C. The learned Magistrate held the requisite inquiry and came to the conclusion that there appears sufficient ground for proceeding against the accused. After considering the said inquiiy report the learned Sessions Judge made the following order on 29.1.1995:- "In view of the tatement of the complainant and the preliminary report submitted by the Magistrate 1st Class Hafizabad, there is sufficient ground for proceeding against all the accused who stand involved in this complaint with the allegation of murder of Muhammad Munir. All the accused are summond to face trial by way of issuance of nonbailable warrants of arrest for 7.3.1995." 5. The accused petitioners appeared before the learned Sessions Judge and moved applications for their pre-arrest bail but their bail applications were dismissed vide order dated 13.5.1996. They have now approached this Court through the above mentioned applications for their pre-arrest bail. 6. It may be pointed out that Muhammad Aslam accused, who was one of the petitioners in Crl. Misc. No, 2039-B of 1996 absented himself on 23.9.1996 and therefore, the said bail application to his extent was dismissed. Later on he moved fresh application for his pre-arrest bail through Crl. Misc. No.. 5357-B of 1996. 7. I have heard the parties' learned counsel and have also gone through the material available on record. 8. Learned counsel for the accused petitioners submitted that they had been falsely implicated in the case, that the report of the Inquiry Magistrate and the order of the learned Sessions Judge dated 29.1.1995 were vague insofar as it was not specified as to what offences the aforesaid accused petitioners had committed, that since a process had been issued to the petitioners in a complaint case the learned Sessions Judge should have issued bailable warrants of arrest against them instead of issuing nonbailable warrants and that when the petitioners had appeared before the learned Sessions Judge, ordinarily, in a complaint case they should have been released on executing bonds with or without sureties for their appearance in the said court under Section 91 Cr.P.C. 9. Learned counsel for the State supporting the contention raised on behalf of the petitioners submitted that the summoning order dated 29.1.1995 passed by the learned Sessions Judge was too vague and therefore, the same should be struck down in exercise of suo moto revisional powers and the case be sent back to the learned Sessions Judge with a direction to pass a proper order afresh. 10 On the other hand learned counsel for the complainant submitted that the bail applications moved by the petitioners were liable to be dismissed merely on the ground that they did not contain any allegation ofmalafides. He further submitted that the order dated 29.1.1995 could no be described as a vague order and the learned Sessions Judge was not required to write a detailed judgment, 11. Order dated 29.1.1995 was passed by the learned Sessions Judge under section 204 Cr.P.C. after considering the report of the Inquiry Magistrate. It is true that he has not given detailed reasons for the summoning of the accused and has also not specified the offences for which they were to be tried but this does not mean that he had not applied bis mind to the facts of the case. Under section 204 Cr.P.C he could issue process to the accused on being satisfied that there was sufficient ground for proceeding against them. He was not required under the law to state reasons . in support of his order. In this connection reliance is placed on Manzoor ^Hussain and another vs. Manzoor Hussain (PLD 1974 Lah. 202). Thus the contention raised by learned counsel for the petitioners that the order dated 29.1.1995 was vague and liable to be set aside has no force. 12. The next question which falls for consideration is whether the learned Sessions Judge could straight-away issue non-bailable warrants of arrest against the accused while issuing process under section 204 Cr.P.C. Non-bailable warrants of arrest had been issued to the petitioners under section 302 PPC i.e. for the murder of Muhammad Munir deceased. According to the fourth column of the second schedule of the Criminal Procedure Code learned Sessions Judge was competent to issue a warrant in such a case. He could also in his discretion issue a summons or bailable warrant against the petitioners to secure their attendance before the court for trial. Since the petitioners had not been found guilty of murder by various investigating agencies it would have been proper for the learned Sessions Judge to issue summons or bailable warrants against the petitioners to procure their attendance. This view has the support of the law laid down in Mumtaz Ahmed and another vs. The State 1990 P.Cr.LJ.. 189 (Lahore). 13. Admittedly the petitioners are accused persons in a private complaint. After the issuance of a process against them under section 204 Cr.PC when they had put in appearance before the trial court the learned Sessions Judge should have acted in accordance with the provisions of section 91 Cr.PC which reads as follows:- "When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court." It has been held in Mazhar Hussain Shah vs. The State 1986 P.Cr.L.J.. 2359 (Lahore) that after appearance of the accused in court in pursuance of a process issued under section 204 Cr.PC the trial court was required to proceed under section 91 Cr.PC and to direct the accused to execute bonds with or without sureties for appearance in court. Admittedly in the present case the accused/petitioners were not asked to execute bonds. This was a lapse on the part of the learned trial court which militates against the law laid down by Superior Courts. In my opinion the learned Sessions Judge should have asked the petitioners to execute bonds for their appearance even if they had been summoned through non-bailable warrants of arrest. 14. From the dictum laid down in the afore-cited Mazhar Hussain Shah's case it emanates that the learned Sessions Judge had wrongly proceeded to consider that the petitioners had applied for their pre-arrest ail. In the afore-cited case the facts are identical to the present case. A few police officers were summoned in a private complaint under sections 120-B 148, 302, 109 and 149 PPG. They appeared before the trial court and moved applications for bail. The court treated the said applications as applications for pre-arrest bail and dismissed them. It was held that the observation of the learned trial court that it was a case of pre-arrest bail was misconceived and the accused were found to be entitled to bail. It was further held that existence of sufficient grounds for proceedings in a complaint case could not be equated with the existence of reasonable grounds that the accused was uilty of an offence punishable with death or imprisonment for ten years. In this view of the matter the present applications, in stricto senso, could not be considered to be applications for pre-arrest bail and therefore, the contention that the petitioners had not alleged malafides was irrelevant. 15. In view of what has been stated above the interim bail granted to Maqbool Ahmad, Babu Muhammad Ishaque, Master Asif, Akhtar and Muhammad Nawaz petitioners is confirmed while Muhammad Aslam petitioner in Crl. Misc. No. 5357-B of 1997 is required to execute a bail bond in the sum of Rs. 20,OQG/- with one surety in the like amount to the satisfaction of the learned trial court. 16. The learned trial court is directed to dispose of the case within three months. Compliance shall be reported to this court through Additional Registrar (Judicial). 17. The above applications are disposed of accordingly. (K.K.F.) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 520 [DB] Present: muhammad islam bhatti and muhammad nawaz abbasi, JJ, MAZHAR alias MAZHAREE and 3 others-Appellants versus STATE-Respondent Cr. M. No. l-B/96 , Cr. A. (SO No, 6-96/BWP, accepted on 19.11.1996. Criminal Procedure Code, 1898 (V of 1898)- -S. 426(l-A)--Suspension of sentence-Prayer for-Offence U/Ss. 36S/324/ 34, 336/34 & 337/34 PPC--It is a settled principle of law as laid down in (1996 P.Cr.L.J. 1506) that section 426U-A) Cr.P.C. creates a right in favour of accused to be enforced, which cannot he ordinarily denied to him without any fault on his part for non-disposal of his appeal within statutory period-Under section 426(1-A) Cr.P.C. an Appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life or imprisonment exceeding 7 years and whose appeal has not be decided within in a period of 2 years of his conviction- Since appeal has been pending hearing for more than three years and has not been fixed for final hearing, petition is accepted. [P. 521] A Ch. M. Ashraf Akhtar, Advocate for Petitioners. Mian M. Tayyab Wattoo, Advocate for Complainant. Date of hearing: 19.11.1996. order This order shall dispose of an application under Section 426(l-A)(c) Cr.P.C. having been moved by Azhar Ahmad and Allah Ditta sons of Ahmed Yar, who faced trial in case (FIR No. 71 of 1995) under Sections 365/324/34, 336/34 & 337/34 PPG registered at P.S. Takhat Mahal on 24.11.1992 and consequently they were convicted in Special Case No. 48/93 alongwith their co-accused Mazhar alias Mazhari and Qutabuddin, for having damaged the vision of both the eyes of Bakhtiar Ahmed and completely crippling him. They were awarded following sentences: - (1) Azhar: 10 years R.I for causing itlaf-i-salahiyyat-i-udw regarding the right eye and diyyat of Rs. 1,70,000/- under Sections 336/34 PPC. and five years R. I for causing damage to the left eye under Sections 336/34 PPC. (2) Allah Ditta: 10 years R.I for causing damage to the left eye and diyyat at Rs. 1.70.000/- and five years R.I for causing damage to the right eye under Sections 336/34 PPC. 2. Their co-accused/appellants Mazhar alias Mazhari and Qutabuddin joined them in moving an application which was taken up by this Court on 5.12.1995. Their sentences were suspended on statutory ground under Section 426(l-A)(c) Cr.P.C. and they were ordered to be released on bail subject to their furnishing bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount, by means of order dated 5.12.1995, The application so far as it related to the present petitioners, namely Azhar and Allah Ditta, was not pressed and was, therefore, dismissed. 3. It has today been urged by the learned counsel for the petitioners Allah Ditta and Azhar that both of them alongwith their third brother Mashar, were arrested on 1.12.1992 and eversince then they have been behind the bars. It was on 19.10.1993 that they were convicted and sentenced, as stated above and having remained behind the bars, for about four years, they are entitled to the suspension of their sentences because their appeals has not been decided within a period of two years of their conviction and there is little likelihood of its being heard and disposed of in the near future, in view of the heavy pendency of the work of similar nature. 4. Mian Muhammad Tayyab Wattoo, learned counsel for the complainant has, however, opposed this petition contending that the petitioners are hardened criminals. He was directed to place before the Court the record of the criminal cases or convictions recorded therein against the present petitioners but he has not been able to place any criminal record of the petitioners and has, on the other hand, submitted some record of other persons claiming to be the relatives of the petitioners. The said record is totally irrelevant. The learned counsel for the complainant has not at all been bale to suggest that the petitioners are previous convicts or hardened criminals or that there are some other good reasons to disallow this application. 5. It is a settled principle of law as laid down in Safair vs. The State] (1996 P.Cr.L.J. 1506) that Section 426C1-A) Cr.P.C. creates a right in favourl of accused to be enforced, which cannot be ordinarily denied to him without any fault on his part for non-disposal of his appeal within the statutory) period. Under Section 426(1-A) Cr.P.C. an Appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life or imprisonment exceeding 7 years and whose appeal has not beeniy decided within a period of two years of his conviction. The contention raised I by the learned counsel for the complainant that they had acted in a cruel | manner in damaging the visions of eyes of Bakhtiar Ahmad and crippling j him, also cannot be considered at this stage because it relates to the merits of the case. Since the appeal has been pending hearing for more than three years and has not been fixed so far for final hearing, this petition is accepted, the sentences of the appellants/petitioners are suspended and they are released on bail subject to their furnishing bail bonds in the sum of Es. 2,00,000/- (Rupees two hundred thousand) each with two sureties in the like amount each to the satisfaction of the Deputy Registrar of this Court. (K.K.F.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 522 Present: muhammad aqil mirza, J. MUHAMMAD ASHRAF GQNDAL-Appellant versus STATE-Respondent Crl Misc. 1179-B/96, dismissed on 26.1,1997. Bail- S. 497 Cr.P.C.--Murder--Offence of-Bail-Grant of--Prayer for-Deceased while in police custody died on account of severe torture received by him from police-Not only Assistant Commissioner but even S.P. Crimes Branch found that petitioner alongwith two other had committed murder-At bail stage it is difficult to say that there do not exist reasonable grounds for believing that petitioner is not involved in commission of crime-Bail refused. [P. 523] A & B Mr. Muhammad Hanif Khatana, Advocate for Petitioner. Rana Jjaz Ahmad Khan, Advocate, for Complainant. Mr, Muhammad Sharif Butt, Advocate for State. Date of hearing: 26.1.1997. order Samar Mehdi was arrested by the police on 5.7.1994 in connection with case FIR No. 225 registered under Section 324 PPC. Muhammad Ashraf, S.I./SHO, petitioner herein was the Investigating Officer. While in police custody he died on 6.7.1994 on account of the severe torture received by him from the police. It was, however, shown that Samar Mehdi committed suicide by hanging himself with a rope. The District Magistrate ordered judicial inquiry which was conducted by the Assistant Commissioner, Shakargarh. The inquiiy officer found that the deceased was tortured in a cell privately established by the SHO Muhammad Ashraf Gondal. He further found that this torture cell was established by him for the purpose of corruption and violence was institutionalised by the SHO. He found that "death of Samar Mehdi had taken place at the hands of the SHO Muhammad Ashraf Gondal." 2. Eight injuries were found on the dead body of Samar Mehdi in the post mortem examination. 3. It is submitted by the learned counsel for the petitioner that the deceased was in police custody in connection with same case registered against him and there is no evidence that the fatal injuries were received by the deceased at the hands of the petitioner. He has placed reliance on 1980 SCMR 784 to contend that where it is not possible to attribute the fatal injuries to a particular accused person, then he has to be enlarged on bail under sub-section (2) of Section 497 Cr.P.C. He has farther submitted that four of the prosecution witnesses have exonerated the petitioner in their statements recorded under Section 164 Cr.P.C. He has also argued that there is no direct evidence with regard to the actual torture done to the deceased. Learned counsel has further argued that from the nature of the injuries suffered by the deceased it cannot be said that the petitioner or any other police official had the intention to kill him. 4, Learned counsel for the complainant has vehemently opposed the bail application. He has submitted that the deceased Samar Mehdi was done to death in a merciless manner in a privately established torture cell, as found by the Assistant Commissioner in the judicial inquiry. He has further submitted that medical board was constituted and the possibility of the suicide was excluded by it. He has argued that not only the Assistant Commissioner but even the S.P. Crimes Branch found that the petitioner iilongwith two others had committed the murder of Samar Medhi by r.:l ministering severe torture to him. He further argues that the trial has already commenced, in that, the charge has been framed and the case is now f :>;d for recording of the prosecution evidence on 29.1.1997. It is further submitted that two co-accused, namely Ansar Khan and Farooq, Constables are still absconding. He has criticised the conduct of the petitioner, in that, he surrendered himself for the first time on 16.1.1996 but prior to that he has been evading his arrest, although his bail application had been dismissed frcm this Court on 16.10.1995. It is apprehended by him that if the petitioner is enlarged on bail he will influence the prosecution witnesses as he has Already influenced four prosecution witnesses by securing their statements under Section 164 Cr.P.C. Learned counsel for the State has also opposed the grant of bail to the petitioner. It is submitted by him that the petitioner has been found guilty in the investigation conducted by the senior police officer as also by the Assistant Commissioner, Shakargarh in the inquiry. 5. I have heard the learned counsel for the petitioner, the State and the complainant at quite some length. In view of the conclusions of the Assistant Commissioner made by him in the judicial inquiry and the findings of the S.P. Crimes Branch as recorded in Zimini dated 22.12.1994, at this stage it is difficult to say that there do not exist reasonable grounds for believing that the petitioner is not involved in the commission of the crime, Resultantiy, I am not inclined to allow the bail application. The same is dismissed. It is, however, directed that the trial shall be concluded expeditiously, and in any ease within the next three months. (K.K.F.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 524 Present: KlIALIL-UK-REHMAN RAMDAY, J. NASIR ZAMAN-Petitioner Versus MEHR-SALABAT, ADDL. SESSIONS JUDGE etc.--Respondents Crl. Misc. No. ll-T-1997 dismissed on 20.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- -Ss. 526 and 561-A~Transfer of Bail application from one judge to otherIf complainant feels aggrieved of some inter-locutory order, then same is hardly a ground for transfer of the case because every such inter-locutory matter has to be decided in favour of one party or other and same can never be taken as a bias of presiding officer in favour of party in whose favour such a matter is decided, unless party could demonstrate a patent prejudice in mind of said presiding officer, therefore, a case should be transferred on solid reasons only-No such substantial ground was available when Sessions Judge withdrew challan case from one court and entrusted it to other court-Argument that since a party had moved a transfer application, therefore, he would have incurred anger on wrath of presiding officer against whom such a petition was moved, held, such a ground is fallacious because if accepted, same would grant a license to every litigant to move a transfer application which may or may not be well and then to secure transfer on ground of having moved such application as this would lead to chaos and anarchy in Administration of Justice-Petition dismissed. [P. 525 & 526] A to D Muhammad Naeem Arshad, Advocate for Petitioner. Mr. Altaf Ibrahim Qureshi, Advocate for Jalal Akbar Accused. Date of hearing: 20.3.1997. order This petition seeks withdrawal of a bail application filed by one Nazeer Ahmad who is accused of a murder case vide F.I.R. No. 146 of 1996 of Police Station Qaboola, from the Court of Mehr Salabat Khan, Add. Sessions Judge Arif Wala, Pakpattan and for its entrustment to the Court of Ch. Muhammad Ashraf, Addl. Sessions Judge Pakpattan, on the ground that the trial of the case in question was pending before the latter Court. 2. During the course of the proceedings it was argued and thus transpired that the learned Sessions Judge of Pakpattan had withdrawn the challan case arising out of the above-mentioned F.I.R. from the Court of Mehr Salabat Khan, Addl. Sessions Judge, Arifwala and had entrusted the same for trial to the Court of Ch. Muhammad Ashraf, Addl. Sessions Judge at Pakpattan where the complaint case in connection with the same occurrence was pending trial. In order to find out the reasons which had led the learned Sessions Judge to have so transferred the challan case, I requisitioned the record relating to the transfer case which has been received and perused and whereafter I had issued notice to the petitioner to show cause why both these cases should not be entrusted to Mehr Salabat Khan, Addl. Sessions Judge. 3. Nasir Zaman, the petitioner herein who was the complainant of the murder case in question had moved the learned Sessions Judge at Pakpattan for transfer of the challan case above-mentioned from the Court of Mehr Salabat Khan, Addl. Sessions Judge at Arifwala to some other Court of competent jurisdiction and the ground which had prompted the complainant to express his mis-trust in Mehr Salabat Khan, Addl. Sessions Judge was that he had released some of the accused persons of the said case on bail and that the accused persons were openly propagating that they had approached Mehr Salabat Khan, Addl. Sessions Judge and that and that they would be acquitted. Having considered the said ground and also having noticed that Mehr Salabat Khan, the learned Addl. Sessions Judge had, while submitting his comments to the matter in question, requested that it would be appropriate if the case in question was transferred from his Court, the learned Sessions Judge conceded the complainant's prayer but mentioned that he was doing so without imputing any allegations against Mehr Salabat Khan, Addl. Sessions Judge. 4. Since no one has a vested right in any particular forum of trial, therefore, I did not consider it necessary to issue notice to the accusedpersons of the present case for disposing of this matter and the further specific reason for not hearing the accused party was that the learned counsel for the complainant/petitioner herein was insisting for an early disposal of the matter because of the pendency of the bail petition before Mehr Salabat Khan, Addl. Sessions Judge. 5. Not much weight can ever by attached when a learned Presiding Officer from whose Court a case is sought to be transferred, requests for the transfer of the same, because no Presiding Officer would like to insist on clining on to a particular trial because the same could be misconstrued as his interest in the matter. Therefore, transferring a case on such a request of the learned Presiding Officer was not a jurisdiction properly exercised. If the complainant facts aggrieved of some interlocutory order then the same is hardly a ground for transfer of the case because every such inter-locutory matter has to be decided in favour of one party or the other and the same, can never be taken as a bias of the Presiding Officer in favour of the party in whose favour such a matter is decided. The proper remedy in such a case is to approach a higher forum to seek re-examination of an Inter-locutory order passed by a learned Court unless the party could demonstrate a patent prejudice in the mind of a learned Presiding Officer. It should also be kept in mind that in whatever language the transfer order might be couched for transfer of a case from one learned Presiding Officer when allegations of bias and prejudice stand levelled by a party, carries some kind of stigma on the learned Presiding Officer in question. It should be, therefore, only for solid reasons that a case should be withdrawn from a Presiding Officer for entrustment to some other Presiding Officer for trial. No such substantial. ground or reason was available when the learned Sessions Judge withdrew the challan case from the Court of Mehr Salabat Khan, Addl. Sessions Judge, and entrusted the same to another learned Presiding Officer. At time it is argued that since a party had moved a transfer application, therefore, he would have incurred the anger or the wrath of the Presiding Officer against whom such a petition was moved and this should, therefore be a valid ground for transfer of a case. Such a ground is fallacious because if accepted, the same would grant a license to every litigant to move a transfer application which may or may not be well-founded and then to secure the transfer on the ground of having moved such an application. This would lead to chaos and anarchy in the Administration of Justice. 6. Consequently, in exercise of the power conferred on this Court under Section 439 of the Cr.P.C. read with Section 526 of the said Code, I set aside the order dated 16.11.1996 passed by the learned Sessions Judge of Pakpattan whereby he had withdrawn the challan case of the above mentioned F.I.R. from the Court cf Mehr Salabat Khan, Addl. Sessions Judge and had entrusted the same to the Court of Ch. Muhammad Ashraf, Addl. Sessions Judge, Pakpattan, While also exercising the powers under Section 526 Cr.P.C. and having heard the complainant in the matter, I ithdraw the complaint case from the Court of Ch. Muhammad Ashraf, learned Addl. Sessions Judge Pakpattan and entrust the same to the Court of Mehr Salabat Khan, learned Addl. Sessions Judge Pakpattan at Arifwala where both challan case and complaint case made then stand consolidated for trial. 7. In view of what has been noticed above, I do not find any reason to allow this petition seeking transfer of a bail matter from the Court of Mehr Salabat Khan, learned Addl. Sessions Judge, and this petition is, therefore, dismissed. The record received from the Court of learned Sessions Judge shall be returned to the said learned Court and copies of this order shall also be sent to the Courts of Mehr Salabat Khan, and Ch. Muhammad Ashraf, learned Addl. Sessions Judges at Pakpattan for information and compliance. (MYFK) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 527 [Multan Bench] Present: zafar PASHA CHAUDHARY, J. KHUSHI MUHAMMAD etc.-Petitioners versus STATE-Respondent Crl. Misc. No. 1706-B-1996, disposed of on 10.3.1997. Bail- S. 497 Cr.P.C.-Ofrence u/Ss. 302, 324, 34 PPC--Murder--Offence--of--Bail application-According to police there are two versions-According to prosecution occurrence took place in front of house of complainant party but according to accused in front of their house-Discrepancy in between medical evidence and version given in FIR, makes case as that of further inquiry-Petitioner is aged about 70 years, therefore he was granted bail, whereas other accused was refused concession of bail. [P. 528] A & B Malik Muhammad Rafiq Rajwana, Advocate for Petitioners. Mr. Altaf Ibrahim Qureshi, Advocate for Complainant. Mr. Zafar Mehmood Anjum, Advocate for State. Date of hearing: 10.3.1997. order This application has been moved on behalf of Khushi Muhammad and Muhammad Latif in case FIR No. 305/95 registered with Police Station Gaggoo u/Ss. 302/324/34 PPC on the statement of Riasat Ali son of Imam Din, for the murder of his father Imam Din. Four persons have been named in the FIR as accused namely Khushi Muhammad, petitioner, his son Shafiq, other son Munir and third son Muhammad Latif, petitioner. Shafiq and Munir have been alleged to be armed with 12 bore shot gun and pistol respectively whereas Khushi Muhammad and Muhammad Latif petitioners have been alleged to be armed with "Barchi" and Sota respectively. Latif has been alleged to have inflicted a "sota" blow and Khushi Muhammad has inflicted blows of "Barchi" on his chest whereas Latif has statedly caused injuries on the back of complainant. The main contention on behalf of the petitioners is that although Khushi Muhammad is alleged to have caused "Bare/if blows on the chest of deceased but there was found no incised wound on the chest of the deceased in the post mortem report. There is contradiction in the version of eye witnesses and the medical evidence. Latif although is attributed "sota" blow to complainant but only abrision has been located on his person. On the other hand learned counsel for the State associated by the counsel for the complainant opposed the bail. About Latif it is submitted that there is injury on the person of complainant his back which corroborates the averments in the FIR. However, learned counsel has not been able to explain absence of any injury caused with "Barchi" on the deceased. Learned counsel for the petitioners further adds that Khushi Muhammad is aged about 79 years, therefore, his participation in the occurrence is not very probable whereas Latifs participation hasprima facie been established. 2. Even according to the police itself there are two versions. According to the prosecution the occurrence took place in front of the house of the complainant party but according to accused in front of their house. 3. Without making any comments on the merits of the case and without resorting to appreciation of the e'ddence I think the discripency in between the medical evidence and the version given in the FIR, makes the case as that of further inquiry, therefore, Khushi Miihammad petitioner is entitled to the concession of bail, I, therefore, admit him to bail on his furnishing bail bond in the sum of Rs. 1,GO,GOO/- (one lac) with one surety in . the like amount to the satisfaction of learned trial court. However, application to the extent of Muhammad Latif is not accepted. 3. This petition stands disposed of. (MYFK) Orders accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 528 Present: iftikhar hussain chaudhry, J. GHULAM NABI and another-Petitioners versus STATE-Respondent Crl. Misc. No. 2161/B/1996, allowed on 10.3.1997. Bail- -Ss. 497/498 Cr.P.C.-Offence of Zina (Enforcement of Hudood) 11 Ordinance, VII of 1979, Ss. 10(2) and 16-Baii after arrest-Petitioner No. 1 according to copy of Identity Card placed on record is aged about 69 years and under the circumstances can be considered an old person- Petitioner No. 2 being female is also entitled to grant of bail, but since two persons claim to be her husbands, it would not be desirable to enlarge her on bail without any condition-Petitioners granted bail, but bail of Mst. Noor Bibi (petitioner No. 2) was granted with condition that her bail bonds are submitted by a person, who is related to her within the prohibitory degree-Order accordingly. [P. 529] A & B M/s Altaf Ibrahim Qureshi, Sh. Gul Muhammad and Malik Muhammad Yousaf Kamboh, Advocate for Petitioner. Mr. Anwarul Haq, Advocate for State. Date of hearing : 10.3.1997. 529 order The petitioners are accused in case FIR No. 223/96 dated 27.5.1996, under sections 10(2)/16 of the Offence of Zina (Enforcement of Hudood) Ordinance VH of 1979, registered at P.S. City Arifwala, District Pakpattan Sharif. 2. According to FIR Mst. Noor Bibi was married to Shakoor, who due to some matrimonial dispute had come over to her father's house and was living there when she was taken away by Ghulam Nabi. them. 3. The petitioners were arrested and applied for grant of bail to 4. Learned counsel for the petitioners submitted that Mst Noor Bibi was married to Shakoor, but she was divorced by her husband, whereafter she started living with her parents and during that period, it transpired that said Shakoor had died whereafter the petitioners contracted marriage with one another and thus had committed no offence under the circumstances. It was also claimed that Shakoor had never come forward to claim Mst. Noor Bibi, as his wife. It was also contended that petitioner No. 1 was aged about 69 years and there was thus no possibility of fornication between the petitioners. Learned counsel for the State assisted by the learned counsel for the complainant opposed grant of bail to the petitioners and submitted that Abdul Shakoor had not pronounced divorce upon Mst. Noor Bibi and this was a false plea being taken by the present petitioners. 5. Petitioner No. 1 according to copy of identity card placed on record is aged about 69 years and under the circumstances can be considered an cli person. He is directed to be released on bail subject to bis furnishing tail bonds in the sum of Rs. 30.QQO/- (Rupees thirty thousands) with one surety in the like amount to the satisfaction of trial Court. 6. Mst. Noor Bibi being female is also entitled to grant of bail, but sir.ce two persons claim to be her husbands, it would not be desirable to enlarge her on bail without any condition. Learned counsel for the parties have suted that they would have no objection for release of Mst Noor Bibi on tail provided the bail bonds are submitted by a person, who is related to her within the prohibitory degree, Mst. Noor Bibi shall be released from custody subject to her furnishing bail-bonds in the sum of Us. 30.000/- (.Rupees thirty thousands) with one surety in the like amount to the satisfaction of trial Court. The sureties should be father of Mst Noor Bibi, or any person related to her within the prohibitory degree, if the father does not come forward to submit bail bonds.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 530 [Multan Bench] Present: M. JAVED BUTTAR, J. MUHAMMAD RAMZAN-Petitioner versus STATE-Respondent Crl. Misc. No. 223/-B-1996, allowed on 23.2.1997. Bail- -Ss. 497/498 Cr.P.C.-Penal Code, Ss. 302/34/201-Murder-Offence of~ Bail petition after arrest-Only material against petitioner which is available on record is in the shape of extra-judicial confession of coaccused and even motive is not alleged against petitioner-In these circumstances, it is a case of further inquiry-Petitioner is behind bars for almost last two years-Bail granted. [P. 531] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Sh, M. Naseem Rashid, Advocate for State. Date of hearing: 23.2.1997. order The petitioner Muhammad Ramzan is seeking bail after arrest in case, FIR No. 38/95 dated 18.2.1995 registered at Police Station Luddan, Vehari under Sections 302/201/34 PPC at the instance of complainant Muhammad Murad for an occurrence alleged to have taken place 5/6 days prior to the lodging of the FIR in which the complainant's brother Ahmed Bakhsh got killed due to strangulation. 2. The petitioner was arrested on 6.5.1995. The Sessions Judge Vehari dismissed his application for the grant of bail firstly on 23.5.1995 and then on 8.12.1996. The challan has been submitted against the petitioner and the co-accused Razia Bibi and Muhammad Yar. 3. As per allegations in the FIR the co-accused Mst. Razia Bibi, the wife of the deceased developed illicit relation with Muhammad Yar Sial nd, therefore, the co-accused Muhammad Yar Sial with the help of the petitioner strangulated Ahmed Bakhsh and killed him. It is further narrated in the IR that the co-accused Muhammad Yar Sial and Mst. Razia Bibi made inculpatory extrajudicial confession. 4. I have heard the learned counsel for the petitioner, the State and have also seen the record. 5. It is contended by the learned counsel for the petitioner that there is no motive against the petitioner which is only against the co-accused and there is no other material available on the record as against the petitioner except that of the estrajudicial confession made by the co-accused, the petitioner is behind the bars commenced as yet. 6. The learned counsel for the State has opposed the petition. 7. The only material which is available on the record is in the shape of extrajudicial confession of the co-accused and even the motive is not alleged against the petitioner and in these circumstances it is a case of further inquiry as far as the petitioner is concerned and in view of the above mentioned and also in view of the fact the petitioner is behind the bars for almost last two years, the application is allowed and the petitioner is granted bail subject to his furnishing bail bonds in the sum of Rs. 100,000/- with one surety in the like amount to the satisfaction of trial Court. (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 533 [Multan Bench] Present: IFTIKHAR hussain CHAUDHARY, J. ALLAH DITTA-Petitioner versus STATE-Respondent Crl. Misc.. No. 2271-B-1996, allowed on 5.3.1997. Bail- -Ss. 497/498 Cr.P.C.-Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 10, read with Ss. 380/452 of Pakistan Penal Code-Bail-Prayer for-Prosecutrix has been blowing hot and cold-Some times she supported contents of FIR and on other occasions she sought quashment of FIR and sided with accused-Prosecutrix is a person with doubtful credentials and case against petitioner thus requires further prove-Bail allowed. [P. 533] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Mr. Khawar Masood Tipu and Mr. Shaukat AZt, Advocates for State. Date of hearing: 5.3.1997. order Petitioner is accused in case FIR No. 34 dated 5.3.1996 u/s 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 380/452 PPC registered at Police Station Kot Sultan. Allegation against the petitioner and his co-accused is that they trespassed into the house of the prosecutrix, took her away and also a number of house hold articles. 2. The petitioner was arrested and has applied for grant of bail to him. 3. Learned counsel for the parties have been heard in the matter. The prosecutrix in this case has been blowing hot and cold. Some times she supported the contents of FIR and on other occasions she sought quashment of FIR and sided with the accused. The prosecutrix is a person with doubtful credentials and case against the petitioner thus requires further probe. 4. The petitioner is allowed bail in the sum of Rs. 30.000/- with one surety in the like amount to the satisfaction Judicial/Area Magistrate. (MYFK) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) .534 [Multan Bench] Present: MUHAMMAD JAVED BUTTAR, J. SADIQ and another-Petitioners versus STATE-Respondent Crl. Misc. No. 1803-B-96, allowed on 24.2.1997. Bail- -Ss. 497/498 Cr.P.C.-Offence u/Ss. 337-F(ii) 34, 337-D, 148, 149 PPC-- Bail after arrest-Petitioners are behind bars for the last more than 10 months and for offences alleged against them are maximum punishment provided under the law is three years and as such offence does not fall within prohibitory clause of Section 497 Cr.P.C. and there is nothing on record to show that they are not entitled to concession of bail-Bail allowed. [P. 535] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioners. Mehr Muhammad Saleem, Advocate for State. Date of hearing: 24.2.1997. order The petitioners Sadiq and Sultan are seeking post-arrest bail in case FIR No. 104/96 dated 1.4.1996 registered at police station Sadar Dera Ghazi Khan u/s 337-F(ii), 337-D, 148, 149 PPC at the instance of complainant Haji Khuda Bakhsh for an occurrence of the same day in which Ibrahim and Musa PWs got injured, the former having suffered an incised wound, skin deep on the shoulder attributed to petitioner Sadiq with a knife and latter having suffered skin deep knife injuries on shoulder and arm ascribed to Sultan petitioner. 2. The co-accused have been found innocent, the petitioners were arrested on 25.4.1996, were found guilty by the police and challan has been submitted against them on 26.4.1996. Learned Sessions Judge, D.G. Khan dismissed their application for the grant of bail on 2.10.1996. 3. I have heard the learned counsel for the petitioner, the State and have also perused the record. 4. It is contended by the learned counsel for the petitioner that the petitioner Sadiq suffered as many as 17 injuries with blunt weapon, though are declared to be simple, the maximum punishment for the offences alleged against the petitioners is three years and as such the petitioners who are behind the bars for the last more than 10 months are entitled to the concession of bail. On the other hand, learned counsel for the State has opposed the petition. 5. The petitioners are behind the bars for the last more than 10 months and for the offences alleged against them the maximum punishment provided under the law is three years and as such no one does not fall within the prohibitory clause of section 497 Cr.P.C. and there is nothing on the record to show that they are not entitled to the conferment of concession of bail. Under these circumstances, the application is allowed and the petitioners are granted bail subject to their furnishing bail bonds in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of the trial Court. (MYFK) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 535 [Multan Bench] Present: IFTIKHAR HUSSAIN CHAUDHARY, J. NOOR MUHAMMAD-Petitioner versus GHULAM MUHAMMAD etc.-Respondents Crl. Misc. No. 235-CB-97, rejected on 12.3.1997. Bail-Cancellation of- -S. 497 (5) Cr.P.C.-Offence u/Ss. 302/324/148/149/337-H (ii) 109 PPC-- Bail-Cancellation of-Three of respondents are females and appear to be aged-Two of other persons are also quite old persons-Fatal injury on person of Mst, Sayani (deceased) was attributed to a co-accused of respondents-They had not caused any injury to deceased-Complainant has chosen to involve as many as 25 persons in this case and in all probability, net was thrown too wide which reacts on bonafide of complainant-Held: Though course adopted by lower court in disposing of applications before him was subjective, yet for reasons otherwise that of grant of bail-Bail granting orders not being interfered-Application rejected. [Pp. 536 & 537] A Mr. Muhammad Nawaz Malik, Advocate for Petitioner. Mr, Altaf Ibrahim Qureshi, Advocate for Respondents. Mirza Fayyaz-ud-Din, Advocate for State. Date of hearing: 12.3.1997. order The petition has been submitted for cancellation of bail allowed to the respondents who were accused in case FIR No. 273/96 dated 26.12.1996, under sections 3Q2/324/148/149/337-H(ii)/109 P.P.C., P.S. Machhiwal, District Vehari. 2. The case was registered against 25 persons with the allegations that the accused attacked the complainant party while they were picking cotton from their fields in Chak No. 6/WB. P.S. Macchiwal, at about 3.00 P.M. on 26.12.1996. Bashir Ahmad allegedly gave a blow to the head of Mst. Sayani Bibi, wife of the complainant, while the other accused gave blows to her as well as other members of the complainant party. 3. Respondents No. 1 to 6 as well as a number of their co-accused submitted applications under section 498 Cr.P.C. for grant of pre-arrest bail and the concession was conferred on the respondents by separate orders dated 22.1.1997 passed by Sessions Judge, Vehari. 4. Aggrieved of the orders dated 22.1.1997, all of which re in the same terms present petition was submitted in which notice to the respondents was issued on 23.2.1997. Learned counsel for the parties have been heard in the matter. 5. Learned counsel for the petitioner submitted that concession of bail in anticipation of arrest was an extra-ordinary concession and could be conferred on a person accused of non-bailable criminal offence in rare circumstances. It was not the position in the present case and the bail was allowed to the respondents only on the ground that the learned counsel for the complainant had given a concession to the accused, which, however, was not authorized by the complainant. It was submitted that learned Sessions Judge ought to have considered the merits of cases of applicants before him and concession of pre-arrest bail could have been granted only after having concluded that involvement of the applicants/respondents was motivated or th ° case against them was false and since this was not done, the impugned order was liable to be set-aside. Learned counsel for the respondents on the other hand submitted that the respondents were either old persons or were females and they had not caused any injury to the deceased, and the learned Sessions Judge keeping in view this factor granted bail before arrest to the respondents justifiably and that the impugned order was not violative of any principle of law. It was submitted that the learned counsel for the complainant was a duly authorized agent of the complainant and he could have given such concession as was done by him. 6. The respondents are present in Court. Three of them are females .and appear to be aged. Two of other persons are also quite old persons. JAccording to the record, the fatal injury on the person of Mst. Sayani (deceased) was attributed to a co-accused of the respondents/accused. They had not caused any injury to the deceased though some of their co-accused were alleged to have given stick blows to her. The complainant has chosen to involve as many as 25 persons in the case and in all probability, the net was thrown too wide which reacts on the bonaftdes of the complainant. Though the course adopted by the learned lower Court in disposing of the applications before him was subjective, yet for the reasons that the case of the respondents/accused was otherwise that of grant of bail, the bail granting orders are not being interfered with. 7. The application is rejected. (MYFK) Application rejected.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 540 [Multan Bench] Present: tassaduq hussain jilani, J. QUTAB DIN-Petitioner Versus STATE-Respondent Crl. Misc. No. 2296-B/96 and Crl. Misc. No. 1703-B of 1996, allowed on 6.2.1997. Bail- Ss. 497/498 Cr.P.C.-Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 Ss. 16/10-Abduction and Zma--Offence of~Bail petition-Petitioner is aged 60 years-Allegation that he sentMsf. Nazran with his son Ashraf for Commission of Zina, prima facie would require further inquiry-So far as Rustam Ali petitioner its concerned, possibility cannot be ruled out that he was falsely implicated for mala fide reasons as stated by investigation officer-Petition Qutab Din admitted to bail and pre-arrest bail of petitioner Rustam Ali confirmed. [P. 542] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. In Crl. Misc. 2296-B of 1996 and Mr. Kabeer Mehmood, Advocate for Petitioner in Crl. Misc. 1703-Bof 1996. Sh. Muhzmrr^d Rahim, Advocate for State. Date of hearing: 6.2.1997. order This order shall dispose of Criminal Misc. No. 2296-B/96 and Crl. Misc. No. 1703-33/96 as both arise out of the same case F.I.R. No. 227 of 1996 dated 17.S.1996 under sections 16/10 Offence of Zina (Enforcement of Hadood; Ordinance, VII of 1979 PS Gaggo Tehsil Burewala District Vehari, reg-istired on the statement of Ghulam Abbas, complainant. 2. The prosecution story as given in the FIR briefly stated in that complainant's younger sister Mst. Nazran, the alleged abductee had married Fazil. On 14th of August, 1996, he came to the house of complainant and in the evening Qutab Din petitioner alongwith his wife came to complainant's house and took away Mst. Nazran on the pretext of some work. As she did net return till late night, complainant made queries from Qutab Din and he was told that Mst. Nazran had gone with Muhammad Ashraf son of the petitioner and that they will come back after a little while but despite that she never returned. A punchyat was convened but the same was also of no avail. It was alleged that Qutab Din petitioner, & his wife, had abducted Mst. Nazran and that she was being detained by Muhammad Ashraf petitioner's son who is committing zina with her. The allegation against petitioner Rustam Ali (in Crl. Misc. No. 1703-B-96) is that of abetment. 3. Learned counsel for the petitioner Qutab Din seeks bail on the grounds that there is a delay of three days in lodging the FIR; that it is unbelievable that Qutab Din petitioner who is aged 60 years would be party to the immoral act of zina which is alleged against his son Muhammad Ashraf and that there is no tenable evidence to connect the petitioner with the offence alleged. Learned counsel for the petitioner Rustam Ali, seeks confirmation of his bail on the grounds that petitioner is a Lumberdar of the area and that he has been falsely implicated on account of party faction. 4. Investigating Officer, appearing in Court submits that as per his investigation, Rustam Ali petitioner has been involved on account of party faction; that he had only intervened in the matter during punchyat and had repremanded the complainant, that he should put a check on his daughter Mst. Nazran and that was why he had been falsely implicated. 5. Learned counsel for the State, in all fairness submits that although the allegation levelled against the petitioners connect them with an offence, which falls in the prohibitory clause of Section 497 Cr.P.C., yet the fact remains that petitioner Qutab Din is aged 60 years and Rustam etitioner is a Lumberdar of the area and there is no allegation of abduction against him. 6. I have heard learned counsel for the parties and have also gone through the record. . 7. It is not denied that petitioner Qutab Din is aged 60 years. The allegation that he sent Mst. Nazran with his son Ashraf for commission of zina, prima facie would require further inquiry. So far as Rustam All Petitioner is concerned, it is not denied that he is maternal uncle of Ashraf co-accused who has allegedly committed zina with Mst. Nazran and in view of the statement made by the Investigating Officer, the possibility cannot be ruled out that he was falsely implicated for mala fide reasons. In view of the above, I am inclined to admit petitioner Qubtab Din to bail in case FIR No. 227/96 dated 17.8.1996 PS Gaggo provided he furnishes bail bonds in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of Judicial Magistrate, Section 30 concerned. The pre-arrest bail granted to Rustam petitioner vide this Court's order dated 26.9.1996 is also confirmed. (MYFK) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr.C.542 (Lahore) [Multan Bench] Present: raja muhammad sabir, J. MUNIR AHMED etc.--Petitioners versus STATE-Respondent Crl. Misc. No. 2265-B-96, allowed on 20.2.1997. Bail- ~Ss. 497/498 Cr.P.C.-Offence u/Ss. 324, 337-F (iii), 109, 148, 149, PPC-- Bail after arrest-Petitioners are behind bars since their arrest i.e. more than five months-No injury is attributed to petitioners No. 1 & 2, however, injury attributed to petitioner No. 3 is on non vital part of victiin--Co-accused who are attributed similar role, already granted bail- Investigation of case has not been completed so far-Conclusion of trial after submission of challan will take considerable time-Petitioners cannot be kept in jail without trial for indefinite period-Bail granted. [P. 543] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioners. Mr. Naseem Rashid, Advocate for State. Date of hearing: 20.2.1997. order The petitioners are involved alongwith others in a case FIR No. 163 96 dated 16.7.1996 under Section 324, 337-F(iii), 109, 148, 149 PPC registered at Police Station City Pakpattan Sharif. 2. The allegation against the present petitioners is that they ahngv.'iih other co-accused caused injuries to Ghulam Farid with daggers. The main role is attributed to Shahzad alias Shada and Muhammad Ashraf absccnder and Shera. As far as the petitioners are concerned Munir Ahmad is i.ct attributed any overt act. Similarly Sher Ali petitioner No. 2 has not caused any injury to victim. Regarding Shabbir Ahmad it is stated that he caused injury to Ghulam Farid victim. They wee arrested in the month of Juiy. 1996. Since there are in jail. The co-accused namely Jaffar and Sona have already been granted bail by the Trial Court, challan has not been submitted in court so far. 3. Learned counsel for the State has opposed the bail application. 4. I have heard the arguments of the learned counsel for the parties and gone through the record. The petitioners are behind the bars since their arrest i.e. more than five months. No injury is attributed to petitioners No. 1 & 2, however, the injury attributed to Shabbir/petitioner No. 3 is on the non-vital part of Ghulam Farid victim. Co-accused namely Jaffar and Sona have already been granted bail by the Trial Court who are attributed the similar role. The investigation of the case has not been completed so far. One of the accused Muhammad Ashraf is still absconder. The conclusion of the trial after submission of challan will take considerable time. The petitioners cannot be kept in jail without trial for indefinite period. 5. Keeping in view the facts and circumstances of the case, the petitioners are granted bail, subject to their tendering bail bonds in the sum of Rs. 50,000/- (Rupees fifty thousand) each, with one suety each, in the like amount to the satisfaction of the Trial Court. (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 601 [DB] [Hyderabad Bench] Present: dr. ghous muhammad and amanullah abbasi, JJ. MUHAMMAD ASIM ete.--Petitioners ' versus JUDGE SPECIAL COURTS etc.~Respondents Cr. Misc. A. No. 69/1996, accepted on 1.1.1997. (i) Bail- S. 497 Cr.P.C.-Artides 3 and 4 of constitution contain due process clause, while Article 37(d) of constitution makes provisions for inexpensive and expeditious justiceWhen faced with matters pertaining to bail S.T.A. courts or any other judicial or quasi judicial forum have to dispose of such matters expeditiously and without any delay. [P. 604] A (ii) Bail-Statutory- S. 497 3rd proviso Cr.P.C.-Delay of more than two years which has given applicants justification to invoke third proviso to S. 497 Cr.P.C.~No material has been brought on record to show that applicants are previously convicted offenders or hardened, desperate or dangerous criminals-Also the delay in trial which is more than two years is not attributable to accused-Applicants are squarely entitled to be released on bail-Application accepted. [Pp. 606] B Muhammad Aslam Bhatti, Advocate for Applicants. Ahmed All Shaikh, Advocate, for Complainant. Abdul LatifAnsari A.A.G. for State. Date of hearing: 1.1.1997. order Dr. Ghous Muhammad, J.-This order shall dispose of the application under section 561-A Cr.P.C. submitted on behalf of the applicants for grant of bail who are facing trial in Criminal Case No. 19/1995 (State v. Muhammad Asim & others) for the offences under section 302-A, 307-A, 325, 120 PPC & 5/6 Bomb Explosive Act, being Crime No. 70/1993 Registered at P.S. Kotri (District Dadu). Bail applications were submitted on behalf of the applicants before the Judge Special Courts (Suppression of Terrorist Activities) No. II Hyderabad on 12.7.1995 and since then the said applications are pending as no order have been passed therein. Briefly stated, the facts of the case as disclosed in the F.I.R. lodged by SHO Haji Talib Hussain of P.S. Kotri are that on 30.6.1993 vide entry No. 24 he alongwith his subordinate staff went for Muharram duty. When the police party reached at Eidgah at 23.50 hours the participants of procession were offering mourning (matum) at Shahi Bazar. Suddenly there was an explosion and H.C. Ali Akber, P.O. Fazal Ali Shaikh, Mukhtiar Ali and others told the police party that the persons who had caused explosion were running away. The police party also saw the two persons running away. On the direction of the SHO those two persons were chased after. Initially, one was caught while the other was also apprehended by A.S.I. Niaz Hussain and his subordinates thereafter in the chase. They disclosed their names as Asim and Abdul Sattar. It is alleged in the FIR that they had confessed their guilt and further disclosed that they were members of Anjuman Sipah-e- Sahaba (A.S.S.) and their moazzin (Nazim Hussain) had given them a hand grenade with directions by Moulvi Saeed to throw the same on the matum procession of Kotri. The accused were brought at the police station and ultimately the case was challaned in the Court of Judge (Special Court-II) (Suppression of Terrorist Activities) Hyderabad. Admittedly applications for bail were moved before the trial court which were rejected on merits. Thereafter bail applications filed before this Court were also dismissed Subsequently the applicants on 12.7.1995 repeated the bail applications before the trial court on the ground of statutory delay as according to them more than two years had lapsed without any progress. The repeated bail applications have been pending before the trial court without decision till date i.e. for more than 8 months, hence the present application to envoke the inherent powers of this CoUrt to grant bail. We have heard Mr. Muhammad Aslam Bhatti learned counsel for the applicant and Mr. Abdul Latif Ansari learned Additional Advocate General for State and Mr. Ahmed Ali Shaikh who had also filed his vakalatnama on behalf of the complainant. We have also perused the record. The learned counsel for the applicants submitted that the second bail applications were submitted before the irial court on 12.7.1995, however, inspite of a lapse of more than 8 months the bail applications have not been disposed of which have resulted in unnecessary detention of the accused in jail. Furthermore, by not passing the orders on the bail applications which is a matter of urgency, the trial court has acted beyond its jurisdiction. Such an inaction amounts to an abuse of process of law, equity and justice. Therefore, finding no other remedy the applicants were constrained to approach this court for bail seeking to invoke its inherent powers. On the other hand, the learned Assistant Advocate General has submitted that till such time the bail applications before the STA Judge were first decided, this court had no powers to entertain the present applications or enlarge the applicants on bail under its inherent powers. The learned counsel for the complainant submitted that the applicants/accused were behind the bars for more than 1wo years because they are involved in a heinous offence, and are thus not entitled to be released on bail. The Judge Special Court-II (Suppression of Terrorist Activities) Hyderabad, (Mr. Muhammad Azim Panhwar) in his comments has stated that the learned defence counsel had submitted bail applications on 12.7.1995 on behalf of the applicants/accused which were fixed for hearing on 19.7.1995. A notice was issued to the Special Public Prosecutor and a report was called from the concerned police. On 19.7.1995 the report from police was not received in view whereof the hearing of bail applications was adjourned to 3.8.1995. Since then the bail applications have been pending on the record as they have not been pressed. We have given our anxious consideration to the above submissions of the learned counsel for the parties. In order to decide the present application we feel that the decision on the following would be a necessary exercise:- (i) Whether the S.T.A. Judges are under an obligation to decide bail applications on merits, expeditiously and whether there is to be a prescribed time limit in this regard. In case there is a delay on the part of the S.T.A. Judges to decide the bail application, whether the said inaction can be construed as an action to dismiss the bail application or to allow the bail application. (ii) In case the answer to the above issue is to the effect that the present application is maintainable whether the applicants are entitled to be enlarged on bail on merits i.e. due to the statutory delay. We shall take the first issue at the outset. The Suppression of Terrorist Activities (Special Courts), Act, 1975 (hereafter" the 1975 Act") was enacted to make a special provision for the purpose of suppressing the acts of sabotage, subversion, terrorism and to provide for a speedy trial of offences committed in furtherance of or in connection with such acts. The 1975 Act does not specify or prescribe the time limit within which S.T.A. Judge is to dispose of a bail application pending before it. However, it is needless to emphasis that the spirit of the 1975 Act mandates a speedy trial and disposal of cases and to such effect is also the wording of the preamble to the 1975 Act. We may also observe that bail applications are matters of urgency. In such matters a citizen's right of liberty is at stake which requires an immediate attention on the part of the concerned courts. Articles 3 and 4 of our Constitution contain the due process clause, while Article 37(d) of the Constitution makes provisions for inexpensive and expeditious justice. Accordingly, there can be no cavil with the proposition that when faced with matters pertaining to bail, S.T.A. Courts or any other judicial or quasi judicial forum have to dispose of such matters expeditiously and without any delay. In this case the para-wise comments submitted by the S.T.A. Judge state that the initial delay had been caused due to non-submission of the police report and thereafter the applicants failed to pursue the bail applications by not getting them fixed. We may observe that non-submission of police report is hardly a ground to justify the failure to decide the bail applications. The court should grant the prosecution the shortest possible time to submit the report/challan/interim challan if that at all is to be a ground to delay the disposal of a bail application. The entire idea being that the prosecution before apprehending the accused should have conducted the investigation of the case. The procedure should not be the other way round where the accused is first arrested and then the prosecution proceeds with the investigation process. In any event, the accused/applicant cannot be penalised for failure of the prosecution to submit the police report and no delay to dispose of the bail application is justified on such grounds. Secondly, it is the duty of the concerned court to fix and dispose of the bail application. Also it is not the duty of the applicant to pursue its fixation. Admittedly, it is not the prosecution's case that the delay in deciding the bail applications has occurred due to adjournments requested on behalf of the accused themselves. In this manner, there can be hardly any justification for the failure of the S.T.A. Judge to decide the bail applications expeditiously. Having said that, the inter-connected question is as to what would amount to an expeditious disposal of the bail application Le, how much time should this exercise consume. We are mindful of the fact that there can be no hard and fast rule in this regard. As a matter of laying down the law we would, however, like to observe that the disposal of such an application should be within a reasonable period of time and of course done expeditiously. What would be a reasonable and expeditious period of time would no doubt differ from case to case, depending upon the facts and circumstances. In the present case a reasonable and expeditious period of time would not have been for more than 3 to 4 days. Accordingly, there can be no doubt that the learned S.T.A. Judge has materially erred by not deciding the bail applications for even more than eight months. The question now is as to what course can this Court adopt. There are three options available to us:- (a) to give a direction to the S.T A. Judge to dispose of the matters expeditiously within a weak. (b) to treat the inaction of the learned S.T.A. Judge as a gesture allowing the bail application; (c) to treat the inaction of the S.T .A. Judge as an action rejecting the bail application and then treating the present application on merits as an appellate court or in the exercise of inherent powers; Option No. (a) has been exercised by a number of our brother TJudges as also ourselves only to observe that such directions are usually ignored. No doubt such a position reveals a sad state of things which can further lead to the invoking of our contempt jurisdiction upon the recalcitrant. However, this hardly gives the remedy to the accused/applicant. Option No. (b) is based upon the general principle that if a person makes an application or intimates to the other about certain facts and no denial or rebuttal is made available by the recipient of such application/intimation, the. person making the application or forwarding the intimation may presume his application or intimation to be accepted. However, in matters of bail such a course in our society can open up a number of undesired avenues. One such avenue could be the course where the S.T.A. Judges while not deciding the bail applications warranting rejection on merits on purpose for extraneous reasons, secure a grant of bail by invoking this principle. In view of the aforesaid we feel that the option No. (c) would be the best course whereby the inaction of the trial court to dispose of the bail application within a reasonable time is seen as an act of rejecting the bail and allowing this court or any other superior forum to adjudicate upon the bail application on merits as an appellate court or even exercising the inherent powers under Section 561-A of Cr.P.C. Having now laid the inaction of the S.T.A. Judge in this case to be an action equated with an order rejecting the bail, the question is whether the applicants are entitled to bail on statutory delay. Admittedly, there has been a delay of more than two years which has given the applicants/ appellant the justification to invoke the third proviso to Section 497 of the Cr.P.C. No material has been brought on record to show that the applicants are previously convicted offenders or hardened, desperate or dangerous criminals. Also the delay in the trial which is more than two years is not attributable to the accused. In this manner, the applicants are squarely entitled to be released on bail. (See the unreported decision of the Supreme Court in Criminal Petition No. 52-K of 1995 dated the 26th August 1995. Jaggat Ram vs. The State. By our short order dated 15.12.1996 and for reasons to be recorded later on we had allowed this Cr. Misc. Application and admitted the applicants/accused to bail on furnishing of surety each in the sum of Rs. 1,00,000/- (Rs. One lac only) with PR bonds in the like amount to the satisfaction of the learned trial court The above are the reasons for the same. (K.A.B.) Application accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 610 [Sukkur Bench] Present: abdul hameed dogar, J. AMANULLAH etc.--Petitioners versus STATE-Respondent Cr. B.A. No. 161/96, accepted on 12.6.1996. Bail- S. 497(2) Cr.P.C.--Offence under Sections 337-A(i)(ii), 337-H, 379, 148, 149 PPC--Bail--Grant of~Prayer fcr-Majority of accused being found false-None recovery of theft properly and empty cartridges from place of wardzt-Law for purpose of bail is not be stretched in favour of prosecution and benefit of any doubt arising in case must go to accused- Allegation apiinst applicants require further enquiry as envisaged under section 497(2) Cr.P.C-Bail allowed. [P. 612] A Mr. Abdul Fateh Malik, Advocate for Applicants. Mr. Nidamuddin Brohi, Addl. A.G. for the State. Date of hearing: 12.6.1996. order Applicants Amanullah and Gujoo seek bail in Crime No. 70/95 of P.S. Ghouspur, District Jacobabad for offence registered under section 337-A (i) (ii), 337-H, 379, 148, 149 PPC. The facts forming prosecution are that on 28.10.1995 complainant Muhammad Nawaz lodged FIR mentioning therein that complainant party is contractor of fishing rights in Government pits in deh Mangi of Ghouspur Defend Band. From the above pits Ali Bux Oghi and others used to commit theft of fish for which they were prohibited to do so previously but were still committing the theft. On the day of incident complainant and his brother Muhammad Ramzan went to look after the fish pond in the above pits and found Amanullah, Gujoo and accused Brohi Oghi taking away the fish and on their following them applicant Amanullah caused blow from the blunt side of the hatchet upon the head of Ramzan brother of complainant and applicant Gujoo and co-accused- Brohi inflicted him lathi blows on the head and other parts of his body. Complainant's intervened but he was also inflicted lathi injuries. Complainant's brother Muhammad Ramzan fell down and became un-conscious after sustaining injuries. On the cries of complainant, brother Ali Nawaz relative Mehar, Allah Wadhayo and Ali Akbar Mirbahar came running whereas from the side of accused persons namely Ali Bux, Kaloo and Shahban with guns, Kamal, Jamal, Mehwal with lathis came there while giving Hakals, and inflicted injuries to complainant, brother Ali Nawaz, nephew Mehar, and relative Allah Wadhayo and ALi Akbar with lathis and hatchets. Accused with guns fired in air and on the Hakals and fire reports many persons from village came running. Seeing them comming the applicants and co-accused went to their houses. During fight complainant party received injuries from blunt side of hatchet and lathis over head and other parts of the body. Police arrested applicants Amanullah, Gujoo and co-accused Ali Bux, Kamal, Jamal, Mehwal, Kaloo, Shahban and Haboo alias Habibullah and let off and released all the other accused expecting applicants, finding them innocent and simply challaned applicants and one Brohi showing him absconder before court of law under ether section amongst 302 PPC, as injured Muhammad Ramzan'succumbed to the injuries. Bail application was filed on behalf of applicants before the Court of learned Ilnd Addl. Sessions Judge Kandhkot which resulted in dismissal and therefore this application. Applicant's counsel argues that FIR becomes doubtful and its credibility is shaken and is found to be false in respect of majority of accused by police during investigation. According to him accused Ali Bux, Kamal, Jamal, Mehwal, Kaloo, Shahban and Haboo alias Habibullah have been let off during investigation and are not challaned though they are nominated with specified role of causing injuries to complainant and other accused. In this respect Mr. Abdul Fateh Malik refers that injured Mehar, Ali Akbar, Ali Nawaz and Allah Wadhayo have stated in 162 Cr.P.C. statement recorded by SIP' CIA Jacobabad that the offence is committed only by applicants Amanullah, Gujoo and co-accused Brohi, and co-accused Ali Bux, Kaloo, Kamal, Jamal, Habu alias Habibullah and Shahban are innocent and their names were not given by complainant but were included by SHO himself at his own accord. Not only this but counsel states that all these P.Ws have stated same facts in 164 Cr.P.C. statements recorded by Mukhtiarkar and FCM Jacobabad. He further states that nothing incriminating has been recovered from the place of wardat including empty cartridges or the theft property so the very happening of incident requires serious consideration. He lastly submits that from the contents of FIR incident seems to be a sudden flare up and there is neither preplanning nor predemiation seen on the part of applicants for committing the offence. He refers case law reported in 1982 S.C.M.R. 955, 1995 P.Cr.L.J. 1275 and 1996 P.Cr.L.J. 783 in support of his pleas requests that the allegations against applicants require further enquiry and concession of bail may kindly be extended to them. Mr. Nidamuddin Brohi appearing on behalf of Addl. A.G. opposes to the grant of bail to the applicants stating that the ocular evidence as put forth by prosecution against the applicants is supported by the medical evidence and the evidence of recovery of hatchet and lathi, The arguments advanced by applicants' counsel in my opinion cany sufficient weight as the very sanctity of FIR becomes questionable in view of finding majority of accused namely Ali Bux, Kamal, Jamal, Mehwal, Kaloo, Shaban and Habu alias Habibulfeh false during investigation though they are specifically nominated in FIR with specific role of causing injuries to complainant and other P.Ws. From the perusal of police papers it transpires that SIP CIA Jacobabad has not only recorded further statements of complainant Muhammad Nawaz, but has also recorded statement under section 162 Cr.P.C. of P.Ws Mehar, Ali Akbar, Ali Nawaz and Allah Warayo in which all of them have clearly stated that they have neither nominated accused Ali Bux, Kamal, Jamal, Shahban, Mehwal and Habu alias Habibullah in FIR nor in any statement before police and their names are included by SHO at his own accord. None recoveiy of theft property and empty cartridges from place of wardat makes an additional ground for consideration the question of grant of bail in respect of applicants. Hon'ble Supreme Court in a case ofAmjadand another vs. The State (1982 S.C.M.R. 955) has mainly granted bail to the accused on the point of majority of the accused being found false. Irrespective of the above arguments, from the FIR it is clear that it was not only on that day that applicants had gone to commit theft of fish but they usually use to commit theft of fish from the pits in contract of complainant and also using of the hatchets from its blunt side fuzther shows that applicants had no intention to kill Muhammad Ramzan. In case of Maulana Ataul Mosin and 4 others vs. The State (1995 P.Cr.L.J. 1276) this court granted bail to the accused under the similar circumstances. In case ofShamon Jato vs. The State (1986 P.Cr.L.J. 783) Division Bench of this Court allowed him bail on the benefit of doubt. So also law for Bfthe purpose of bail is not be stretched in favour of prosecution and benefit of any doubt arising in the case must go to the accused. In my opinion the allegation against applicants require further serious consideration and for the present their case requires further enquiry as envisaged under sub section (2) of Section 497 Cr.P.C. They are allowed bail. They may be released on bail on their furnishing surety in the sum of Rs. l.OO.OOO/- each & PR bond in the like amount to the satisfaction of the trial court. (M.S.N.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 613 [Multan Bench] Present: zafar pasha chaudhry, J. ABDUL AZIZ-Petitioner versus STATE-Respondent Crl. Misc. No. 188/B/1997, accepted on 6.3.1997. Bail- -S. 497 Cr.P.C.--Bail--Grant of--Prayer for--Gffence u/S. 324/34 PPC-- Contention that petitioner has been attributed only a proverbial Lalkara, he was empty handed and did not inflict any injury on person of deceased, and that question of his vicarious liability will be determined at the time of trial-Held: Question of vicarious liability or act in furtherance of common intention will be more appropriately established after holding trial, as such case against petitioner becomes that of further inquiry-Bail grant. [Pp. 613 & 614] A & B Mehr Muhammad Masood, Advocate for Petitioner. Agha Khurram, Advocate for State. Malik Wazir Ghazi, Advocate for Complainant. Date of hearing: 6.3.1997. order Case FIR No. 213/96 was recorded on the statement of Abdul Khaliq brother of Abdul Malik deceased alleging inter alia, that the petitioner Abdul Aziz alongwith shis companion Hanif came to the place of occurrence on a motorcycle. Muhammad Hanif was armed with gun whereas the petitioner was empty handed. Abdul Aziz petitioner raised Lalkara that the deceased and the complainant party would be taught lesson for forcibly taking turn of water of the petitioner, on which Muhammad Hanif opened fire hitting Abdul Malik on his right and left legs. The case was initially registered under section 324/34 PPC on 28.8.1996. Subsequently on expiry of Abdul Malik, section 302 PPC was substituted on 29.8.1996. 2. It is submitted on behalf of the petitioner that he has been attributed only a proverbial Lalkara; he was empty handed and did not inflict any injury on the person of the deceased; and that the question of his vicarious liability will be determined at the time of trial. Learned counsel appearing on behalf of the complainant has strongly opposed the grant of bail on the ground that the turn of water according to the petitioner belonged to him, therefore, it was he who had the motive. It is further submitted that Muhammad Hanif subsequently got recovered the fire-arm belonging to his friend. Lastly it is submitted that the Lalkara attributed to the petitioner is not merely a proverbial but amounted to effective exhortation. 3. Without making any comments on the submissions made by the parties, I am of the view that the question of vicarious liability or act in furtherance of common intention will be more appropriately established after holding trial, as such the case against the petitioner becomes that of further inquiry. Therefore, the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. l.OO.OOO/- (Rupees One Lac) with two sureties each in the like amount to the satisfaction of the trial Court. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 614 [Multan Bench] Present: ZAFAR PASHA CHAUDHRY. J. RAFIQUE alias RAFIQA-Petitioner versus STATE-Respondent Crl. Misc. No 253-M 1996, accepted en 2,4.1997. Criminal Procedure Code. 1898 (V of 18GS)- -S. 382-B-Bcnefit of 3S2-B should be extended-Prayer for-Offence u/s 4 of Prohibition Order IV of 1979--Only reasonable interpretation of section is that said provision is mandatory and leaned trial court has to assign reasons that although section 362 B was taken into consideration but convict is not entitled to receive its benefit-Initially in this section word "may" existed but afterwards word may' was substituted by word 'shall' on account of amendment incorporated in that section by virtue of Ordinance LXXI of 1979- Hence said provision being mandatory-Held: etitioner is entitled to its benefit unless same is refused for cogent I reasons. [P. 615] A Mr. Nafecs Ahmad Ansan, Advocate for Petitioner. Humeru Khan, Advocate for State. Date of hearing: 2.4.1997. judgment Through this application the petitioner has prayed that benefit as envisaged under section 382-B Cr.P C. should be extended to him. 2. I have been taken through the concluding paragraph of the judgment dated 17.3.1996 passed by Magistrate Section 30, Multan whereby the petitioner has been convicted under Article 4 of Prohibition Order IV of 1979 and awarded sentence of five years R.I. 20 stripes and a fine of Rs. 10,000/-. The application is opposed by learned counsel appearing on behalf of State on the ground that it has not been specified as to how much time was spent by the petitioner as under trial prisoner and also whether the delay was caused by the petitioner himself or was occasioned on acocunt of some other exigency. In support of hor contention, she has cited Mukhtiar ud Din vs. The State (1997 SCMR 55) whereby their lordships of the Supreme Court declined to interfere because the learned trial Judge had refused to extend benefit under section 382-B Cr.P.C. The cited case has no bearing on the present case because the learned trial Magistrate did not make any observation with regard to extension or non-extension of benefit under section 382-B Cr.P.C. For reference section 382-B Cr.P.C. is reproduced as follows:- "382-B. Period of detention to be considered while awarding sentence of imprisonment.--Where a Court decides to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which such accused \va.s detained in custody for such offence." I The only reasonable interpretation of the section is that the said provision is mandatory and the learned trial court has to assign reasons that although section 382-B Cr.P.C. was taken into consideration but the convict is not entitled to receive its benefit. My view is further fortified by the fact that initially in this section the word may estied but afterwards the word "may" was substituted by the wurd shall' on account of amendment incorporated in that section by virtue of Ordinance LXXI of 1979 Hence, the said provision being mandatory, the petitioner is entitled to its benefit unless the same is refused for cogent reasons. 3. For the foregoing reasons, this application is allowed and the Superintendent, District Jail Multan is directed that the period of confinement undergone by the petitioner during trial shall be computed towards his substantive term of imprisonment. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 616 [Multan Bench] Present: muhammad javed buttar, J. MUHAMMAD AKRAM and another-Petitioners versus STATE-Respondent Cr. Appeal No. 2 of 1995 Crl. Misc. No. 1/97, accepted on 26.2.1997. Criminal Procedure Code, 1898 (V of 1898)-- S. 426il-A) a & b~Suspension of sentence on statutory delay-Prayer for~ Offence u/s. 302/34 PPC--After expiry of statutory period as provided in sub-clause (a) to (c) of section 426(1-A) Cr.P.C. bail to convict/applicant can be refused if:- (i) the considerations relevant for refusal of bail under 3rd and 4th provisos to section 497 Cr.P.C. are applicable to case of convict/appellant, or (ii) if it is apprehended that in case of enlargement of convict on bail, he might repeat offence or (iii) if High Court has already fixed appeal for hearing None of above enumerated reasons for refusing suspension of sentence are available and in these circumstances petitioners although not entitled to suspension of sentences on merits have earned statutory right of suspension of their sentences u/S. 426(l-A)(c) Cr.P.C. as their appeal has not been decided within a period of two years of their conviction and there is no likelihood of its disposal in near future Petition allowed. [P. 618] A Sahibzada Farooq All Khan, Advocate for Petitioners. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 26.2.1997. The petitioners Muhammad Akram and Muhammad Saleem are seeking suspension of sentence awarded t«j them by Sessions Judge Vehari vide judgment dated 27.12.1994, convicting each of them u/S. 302/34 PPC, to life imprisonment with a further direction to each of them to pay compensation of Rs. 20,000/- to the legal heirs of the deceased u/S. 544-A Cr.P.C. with the benefit of Section 382-B Cr.P.C. 2. The sentences of the co-convicts Karam Din and Ghulam Fatima, the father and mother of the petitioners respectively were suspended by this court on 14.5.1995 while the petitioners' application (Crl. Misc. No. 2/95) for the suspension of their sentence was rejected on merits by this court on 14.11.1995. 3. The suspension of the sentence is sought only on statutory ground u/S. 426 (1-A) (c) as the petitioners appeal has not been decided within a period of two years of their conviction. Reliance is placed on Khuda Bux vs. The State (1994 P.Cr.L.J. 2359) and Liaqat and another s. The tate (1995 SCMR 1819) to contend that the statutory benefit available to the convict u/S. 426 (1-A) Cr.P.C. cannot be withheld even if the court is of the opinion that the convicts are not entitled to be released on bail on merits and the right to be released on bail has not been left to the discretion of the court. Learned counsel has also referred to an order of this court passed in Crl. Misc. No. 1/96 in Crl. Appeal No. 164/94, on 12.2.1997, wherein at the time of its decision the office had reported that appeals pertaining to the year 1985 were being fixed at the moment at Multan Bench whereas the present appeal relates to the year 1995. 4. In Liaqat and another vs. The State (supra) the Hon'ble Supreme Court has held that- "The effect of insertion of subsection (1-A) after subsection (1) of section 426, Cr.P.C. in the Code of Criminal Procedure in our view, is that the appellant/convict has been conferred a right to ask for bail pending»his appeal, if the Court is unable to dispose of his case within the periods specified in sub-clauses (a) to (c) of section 426 (1-A), Cr.P.C. This right of the convict/appellant is independent of his right to seek suspension of his sentence by the appellate court on merits under section 426(1), Cr.P.C. The right conferred on on the appellant/convict under section 426 (1A), Cr.P.C. therefore, can be exercised by him, notwithstanding the fact that the appellate Court, in exercise of its discretion had earlier declined his prayer for suspension of his sentence on merits under section 426(1), Cr.P.C. As a necessary corollary, therefore, it follows that the appellate Court cannot decline to suspend the sentence of an appellant under section 426 (1-A), Cr.P.C. on the ground that the appellant has no case on merits or that he would not be entitled to bail on merits or that he has been declined bail earlier on merits. The reasons on which the appellate Court may decline to suspend the sentence of the appellant while considering his application under subsection (1-A) of section 426, Cr.P.C., therefore, in our view, must be other than the merits of his case"; and the Hon'ble Supreme Court has further held in this very judgment that the court can decline to suspend the sentence of the appellant while considering his application under subsection (1-A) of section 426 Criminal Procedure Code inspite of the fact the statutory period mentioned in sub-clauses (a) to (c.) of Section 426(1 A) CrP.C. for decision of appeal and expired if the considerations relevant for refusal of bail under the 3rd and 4th proviso to section 497 Cr.P C. are applicable to the case of the appellant. 5. The perusal of the above mentioned judgment of the Hon'ble Supreme Court (1995 SCMR 1819) shows that after the expiry of the statutory period as provided in sub-clauses (a) to (c) of section 426 (1-A) Cr P C the bail to the convict/appellant can be refused if:- (i) the considerations relevant for refusal of bail under the 3rd and 4th provisos to section 497 Cr.P.C. are applicable to the case of the convict/appellant, or (ii) if it is apprehended that in case of enlargement of the convict on bail, he might repeated the offence, or (iii) if the High Court has already fixed the appeal for hearing. In the present case, none of the above enumerated reasons for refusing the i suspension of sentences are available and in these circumstances the petitioners although not entitled to the suspension of sentences on merits i have earned the statutory right of the suspension of their sentences u/S 426 ! (1-A) (c) Cr.P.C. as their appeal has not been decided within a period of two Aj years of their conviction and as there is no likelihood of its disposal in the | near future because, reportedly, the appeals of such category, incident by i more than a decade, are being listed for disposal these days. Having found no reasons to deny the expressly provided statutory right of bail to the petitioners, it would be unjust to withhold the benefit indefinitely. 6. The application is, therefore, allowed and the above said sentences recorded against the petitioners are suspended till the inal disposal of their appeal and the petitioners are ordered to be released on bail subject to their furnishing bail bonds in the sum of Rs 5,OQ,000/- (five lacs) each with one surely each in the like amount to the satisfaction^ Judicial Magistrate, Vehari. (AAJS^ Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 618 [Multan Bench] Present: zafar pasha chaudhry, J, Mst, WAZIRAN-PetiUoner versus STATE-Respondent Crl. Misc. 81/M-97 accepted on 2 i 1997. Bail--Pre-arrest S. 498-Bail-Bail admitted by learned Aditional Sessions Judge but a condition has been imposed by Additional Sessions Judge that surety shall be filed only by father-Challenge to-Plain reading of section 498 Cr.P.C. indicates that orders subjected to condition of surety is not sustainablePetition accepted [P. 619] A Mian Ashfaq Ahmad, Advocate for Petitioner, Mr. Riaz Ahmad. Advocate for State Date of hearing: 2 4.1997 order Submits that although the petitioner has been admitted to bail by the learned Additional Sessions Judge Pakpattan Sharif yet a condition has been imposed that the surety shall be filed only by the father The order has been assailed on the ground that the condition imposed by the learned Additional Sessions Judge is not in accordance with law and Section 498 Cr.P.C. does not envisage any such condition. The plain reading of the section reveals that amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the cases and shall not be excessive. It clearly means that the court can direct an accused or surety to furnish bond which should not be excessive but it does not envisage that any condition with regard to any intending surety has also been imposed. Rather on the contrary it appears that u/S. 498 Cr.P.C, it has been made clear that in case the bail is allowed the same surety op accused should not be bourdened with a heavy bond which he should not be in a position to furnish or execute. In the present case if the learned Additional Sessions Judge had come to the conclusion dvai the accused person was entitled to the .concession of bail then irr.pcsiticn of condition that only her father should stand surety decs uoi have any sinci^on of law on the subject. The learned counsel for the petitioner has also cited a case titled. "Mst. Chan Bibi vs. The State" (PLJ 1993 Cr.C. Peshawar 478) decided by a learned Judge from Peshawar High Court observing that there is no justification at all to dovetail bail order with condition complained of i.e some relative of the petitioner should have stood surety. An order imposing such like condition was modified and a fresh order determining the amount of bail bond was passed. 2. The learned counsel appearing ou buhulf of the State has argued that there were peculiar circumstances of the present case because the accused-petitioner had contracted marriage against the will of her father and apprehending that the petitioner may not join her husband against the will of the father, this condition was imposed. The condition may look justifiable keeping in view the prevailing cu.sionis and social norms in our Society but any order passed by any of the judicial offu-tr must have a legal sanction to support it. In the present case plain reading of Section 498 Cr.P.C. indicates that the order subjected to the condition of the surety is not sustainable. I, therefore, accept the petition a:;c! d;/ic'e the condition whereby only father can stand surety for ihv a:-.;.;;/,! ,jeUUuiiei' iii t.Lc impugned order dated 19.3.1997 passed by the learned Additional Sessions Judge Pakpattan Sharif. The petitioner will fuiTusIi Lai! bond with a surety as ordered by the learned Addl. Sessions Judge to his satisfaction in the amount as has been specified already. 3. With these observations this petition is disposed of. (AAJS) Petition accpeted.
PLJ 1997 Cr PLJ 1997 Cr. C. Karachi 620 Present: SYED DEEDAR HUSSAIN SHAH, J. ABDULLAH SHAH--Applicant versus STATE-Respondent Cr. Bail Application No. 2252/1996, accepted on 2-1-1997 Bail- S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/Ss. 409/109 read with Section 5 (2) of prevention of corruption Act, 1947Accused applicant was granted pre-arrest bail by High Court in various crimes- Name of accused/applicant does not appear in F.I.R.-Evidence so far collected by prosecution is documentary in nature, which is in possession of prosecution prima facie same cannot be tampered with by accused/ applicant at this stage-Series of cases initiated by prosecution against applicant and granting him bail by Court, supports version of learned counsel for applicant that government of days due to political differences wants to harass, humiliates and torture applicant, by involving him in cases-Held : Prima facie case of accused requires further inquiry-Bail granted. [Pp. 625 & 626] A Mr. Aziz Ullah K. Sheikh, Advocate for Applicant. Mr. Syed Tariq All, Standing Counsel alongwith Mr. Ghulam Subhani, A.D. of FIA, for the State. Date of hearing: 29.2.1996. order "Consequent upon Special Enquiry No. 2/96 of FIA I&AS, Karachi conducted by Mr. Ghulam Subhani Qureshi, Assistant Director, FIA I&AS, Karachi, Airport, the following facts have been established :-- 1. That piece of land of about 75 acres from China Creek Bank Water adjacent to Mai Kolachi Road originally belonged to the KPT. This land which was laying Barron since long actually situated at a highly precious location connecting Bath Island Clifton to Moulvi Tamizuddin Khan Road. 2. In 1989, the then Chief Minister of Sindh, Syed Qaim All Shah approached the Federal Government and wrote a letter to the Prime Minister of Pakistan Vice o. Scay-CM/876/89 dated 15.5.1989, requested for transfer of 75 acres of KPT land to Government of Sindh. The apperent purpose of the transfer was shown as better utilization and development of the city. 3. Later on Mr. Salman Farooqui, the then Additional Secretary, Prime Minister's Secretariat, Rawalpindi, wrote a letter to Mr. N. . khter, Secretary Communications, Islamabad, and Syed Ijlal Haider, Secretary, Defence, Islamabad vide No. PMS Sectt. (Publ) U.O. No. DS/Imp/Mis/2265 dated 21.5.1989 requesting to offer their views urgently in light of Prime Minister's minutes. 4. Mr. Aleem Akhter, the then Chairman, KPT, vide letter dated 27.5.1989 addressed to Joint Secretary (Public) Ministry of ommunication, Govt. of Pakistan, Islamabad, strongly opposed the said orders for transfer of 75 acres of KPT land to Govt. of Sindh. 5. No reply from Ministry of Defence was received as nothing is available on record. 6. Further due to intense political pressure of Maj. Gen. (Retd.) Naseerullah Khan Babar, the then Special Assistant to the then Prime Minister, Mr. Aleem Akhter Shah, the then Chairman, KPT, wrote a letter to General Sahib dated 12.9.1989, agreeing for transfer of 75 acres of land of KPT to Govt. of Sindh. Record shows that this consent was without any lawful authority. The said land was sold out to Govt. of Sindh at a total cost of Rs. 20,49,77,040/- (the said amount was never paid to KPT). 7. Record further shows that the land in question pertaining to KPT, for which Govt. of Sindh has not paid any amount, and which was acquired for betterment and development of the city, was fraudulently with ulterior motive sold out by the then Chief Minister Sindh Syed Muzaffar Shah to different persons. 8. Said order for allotment of land was malafidely made on 6.12.1992, whereas it was withdrawn on 7.12.1992, possession was shown to have been delivered on 9.12,1992. 9. On 18 1.1993, Mr. Abdul Rauf Chaudhry the then Joint Secretary Prime Minister's Secretariat (Public) vide U.O. No. J.S. (Imp) 20/C077/36043 addressed to the Chief Secretary Sindh, directed to return 75 acres of land to KPT as directed by the then Prime Minister 10. In April, 1994, KPT filed a Suit No. 240/94 before High Court of Sindh, Karachi stating therein full facts, requesting for cancellation of allotment order and reversion of the said land to KPT. 11. It was in November. 1994, when R. Adm. (Retd.) Akber H, Khan took over as a Chairman KPT and started working for withdrawal of the said suit pending before the High Court of Sindh, Karachi. 12. Finally he could prevail over the Board of Trustee and other officials to cover up the illegal acts by allotting them various size of plots in KPT and withdrew civil Suit No, 240/94 from the High Court and as such the land in question actually valued at Rs. 3000.000 million was sold out at a price of Rs. 204.977 million and as such huge less was caused to Govt. exchequer and corresponding gain to the parties and to themselves. In view of the foregoing series of acts or record, it is established beyond doubt that the accused persons-namely R. Adm. (Retd.) Akber H. Khanand and others by defying the settled rules and regulations wilfully and deliberately, having common object and intention abused the official position as public servant and by going so they with a malafide intention acted in such a manner which resulted into substantial loss to the public exchequer and corresponding pecuniaiy advantages to themselves and thereby committed offences punishable under section 409, 109 PPC read with section 5(2) Act-n of 1947." During investigation accused/applicant Abdullah Shah was taken by FIA from his residence on 18-12-1996, on the pretext of recording his evidence in a criminal case, which was being investigated against Wajid Shamasul Hasan, former High Commissioner of Pakistan in U.K. The applicant was already granted pre-arrest bail in the same case by the Hon'ble Chief Justice on 14-12-1996. On arrival at FIA CC-I, Karachi Police Station, the applicant was informed that he was under arrest in Crime No. 14/96. Application for bail, on behalf of the accused/applicant was moved before the learned Special Judge (Central), Karachi, but the same was rejected by him on 22-12-1996, with the following observations :-- "As regards the bail application of accused Abdullah Shah, his advocate Mr. Azizullah Sheikh argued at length. Syed Israr Ali, AD (Legal) for the State at the time of his arguments said that accused Abdullah Shah is not being challaned in this Court and his case will be challaned before the Provincial Anti-Corruption Court, therefore this Court has no jurisdiction in the matter. Looking to this situation that this Court has no jurisdiction in the matter and the case of accused Abdullah Shah would be taken to the Court of Provincial Anti Corruption, his bail application is dismissed having no jurisdiction to this Court." Thereafter the applicant has approached this Court for bail. i Mr. Azizullah K. Shaikh, learned counsel for the accused/applicant has contended that accused/applicant was granted bail before arrest by the Hon'ble Chief Justice in FIR No. 13/96 in Cr. Bail No. 2024/96, ledged by the FIA on 28-11-1996, in FIR No. 74/96 in Cr. Bail No. 2135 of 1996 on 11- 12-1996 and pre-arrest bail by my learned brother Kamal Mansoor Alam, J in Mir Murtaza Bhutto's case, being Cr. Bail No. 2019/96 on 8-11-1996; that name of the accused/applicant is not mentioned in the FIR, bearing No. 13/96, ledged by the FIA; that interim charge sheet for the same crime was submitted on 15-12-1996 wherein name of the accused/applicant Abdullah Shah is not mentioned; that 1G1 Cr.P.C. statements of five P.VVs. were recorded but none of the P.Ws. has implicated the accused/applicant Abdullah Shah; that case against the accused/applicant has been foisted due to political reasons and he has oeen victimised due to political differences with the government of the day; that whatever evidence against the accused/' applicant is available, that is documentary in nature, which is purported to be summary, approved by the accused/applicant on 10-1-1996 and submitted for approval by the Secretary to Government of Sindh, Land Utilization Department. Mr. Azizullah K. Shaikh, learned counsel for the applicant has referred the following case law :-- (1) Unreported judgment passed in Cr. Misc. 248 of 1991, delivered by Qaisar Ahmad Hamidi, a celebrated Judge, in a case initiated against Syed Qaim Ali Shah, former Chief Minister of the Province of Sindh, who was alleged to have dishonestly disposed of 37 acres of land, situated in Gulistan-e-Jauhar, Karachi, to different builders at the instance of co-accused Asif Ali Zardari at a nominal price, thereby causing pecuniary advantages to the purchaser and causing huge pecuniary less to the Government of Sindh. The learned Judge was pleased to allow the application and quash the proceedings, observing that "to allow the case to proceed would be to allow a mock trial to proceed, with no purpose". (2) 1977 Pak. Cr. L.J. 676-Case of Brig (Retd.) Sahib Dad Khan us. The State :- The dictum of this authority is as under :-- "Petitioner, an Ex-Minister of Provincial Cabinet, accused of embezzling funds earmarked for Punjab Peoples Festival and other malpractices-Allegations, however, relating to rendition of accounts and scrutiny of various documents from Government Department, requiring a good deal of time and entailing lengthy investigation-Bail ad interim confirmed." (3) 1978 SCMR 64-Case of Ijaz Akhtar vs. The State :- In this authority the learned Judge has held as under :-- "Fact of amount allegedly embezzled by accused being large~By itself, held no ground for refusing bail- Apprehension that accused might tamper with evidence if enlarged on bail also, held further, no ground for refusal of bail-State could in such eventuality prosecute its remedies in Sessions Court". (4) 1983 Pak. Cr.L.J. 2010-Case of Abdul Hay-uz-Zafar us. The State :- The learned Judge in this authority has observed as follows :-- "That the amount involved is of course sufficiently large and this fact by itself would be no ground for refusing bail particularly when the investigation is complete, except that the report of the hand-writing expert is awaited. There is more force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is not possible. As far as the question of prohibition contained in subsection (1) of Section 497 is concerned, a Court is not supposed to keep in view only the maximum sentence provided under relevant law rather it is to be seen what punishment is likely to be awarded ultimately to an accused in particular circumstances of the case. To grant the bail is rule and to refuse is an exception. The petitioner is admittedly a public servant and there is no likelihood of his abscondence." (5) 1988 S.C.M.R. 1223-Case of Raza Muhammad Sial vs. The State :-- Dictum of this authority is as follows :-- Petitioner charged with misappropriating Government wheat valued at about Rs. 87 lacs-High Court refusing to grant him pre-arrest bail-Prosecution witnesses hardly implicating petitioner-Evidence requiring further inquiry in order to connect petitioner with the crime. Pre-arrest bail to the applicant was granted. (6) 1995 S.C.M.R. 170-Case of Saeed Ahmed vs. The State :- The rule laid down in this authority is as follows :-- Case entirely depended upon documentary evidence which was in possession of the prosecution and no possibility of tampering with such evidence existedBail was granted. Mr. Syed Tariq Ali, learned Standing Counsel for the State has contended that 13 acres of State land has been allotted below the market value of the land; that organized method has been adopted to put heavy loss to the government exchequer; that public property has been disposed of at a very through-away price; that the entire burglary was committed at the behest of the accused/applicant; that the government functionaries have acted for help of the high ups; that provisions of Section 409/109 P.P.C. are fully attracted in the case and that the application may be dismissed. I have gone through the material placed with the case. Admittedly the accused/applicant was granted pre-arrest bail by this Court in various implicated the accused/applicant, has not been controverted by the State ! Counsel. Before the Special Judge (Central). Karachi it, was stated by Syed ilsrar All, AD (Legal) for the State" thai accused Abdullah Shah is not being ichallaned in this Court", and the bail application was rejected. The I prosecution submitted application under Section 167 Cr.P.C. mentioning !therein that "efforts are being made to locate Mr, Muhammad Iqbal Khan to whom Syed Abdullah Shah granted 13 acres of KPT land at the rate of Rs. ;25/- per square yard for residential, commercial/industrial purpose. Since the investigation of the case has not yet completed it is therefore, requested ! that nine (9) days police custody remand may kindly be granted w.e.f. 123,12.1996 to 31.12.1996". The learned Magistrate did not: allow police : remand and request was dis-allowed and the applicant was remanded to Judicial custody upto 28-12-1996. The evidence so far collected by the i prosecution is documentary in nature, which is in possession of the jprosecution prirna facie same cannot be tampered wkh by the incensed/applicant at this stage. Series of the cases in:;iated by the ! prosecution against the applicant and granting him bail by the Court, | supports the version of the learned counsel for the applicant that i government of the days due to political differences wants to harass, i humiliate and torture the applicant, by involving him in cases. The jnnrepotted judgment, referred hereinabove, pertaining to the dishonest (disposal of the State land, also supports the case of the applicant that [whatever the applicant did, was in the capacity of Chief Minister and the jproceedings initiated against the Chief Minister (Syed Qaim Ali Shah) in a j criminal case, were quashed by the learned Judge. The other authorities j cited by Mr. Azizuliah K. Shaikh, in my humble opinion are relevant and applicable to the present case, which I most respectfully follow. Upshot of the above discussion is that, prima facie, case of the accused/applicant requires further enquiry. Consequently I arn inclined to allow the application, which is hereby granted The accused/applicant may be released on bail on furnishing one solvent surety in the sum of Rs. 2,00,000/- (Rupees Two Lac only) and P.R. Bond in the like amount to the satisfaction of theNazir of this Court. He may be released, if not required in any other case. After hearing the learned counsel for the parties I have allowed the application by short order dated 29-12-1996. These are the reasons for the same. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 627 Present : ALI MUHAMMAD BALOCH, J. KHUDA BUX and 2 others-Applicants versus STATE-Respondent B.A. No. 1414/1996, accepted on 19.1.1997 Bail-- -S. 497(1) 3rd proviso Cr.P.C.-Bail--Grant of-Prayer for-Statutory Delay-Ground of~Robbery--Offence of--Applicants have not been assigned their respective role in robbing property and committing murder, but they are generally charged with offence-High Court find that in the absence of independent material to hold applicants to be desperate, dangerous and hardened criminals and in absence of specific role against each of them, they could not be held to be desperate, dangerous and hardened criminals so as to deprive them of their right of bail earned by them on the ground of statutory delay-Bail granted. [P. 630] A M/s M.A. Kazi and Muhammad Rafique Khanzada, Advocates for Applicants. Mr. Habib Ahmed, Advocate for Advocate General for State. Date of hearing : 9.1.1997. order Applicants Khuda Bux, Dhani Bux and Usman are facing trial in a case registered against them through FIR No. 174/93 at P.S. Gizri Karachi (South), on 14.11.1993. Rizwan Jaffari a resident of Defence Housing Society, sent a letter by post to the police which was incorporated as F.l.R. Rizwan Jaffari had disclosed that he wokeup on gun reports at 2-30 a.m. and found 4 armed persons inside his bungalow. His driver-cum cook Ghulam Hussain was crying and he was being forced by the assailants to lead them to other inmates of the house. The assailants who had forced their entry in the house after breaking open the gate of the house, robbed the house-hold articles comprising gold ornaments, VCR, Watches cash of Rs. 23,000/- and Dollars 1910. The informant also stated that Chowkidar of his bungalow had been killed by the assailants when he the Chowkidar had resisted their entry. The assailants had remained inside the house of the complainant for more than \ hours before they collected the looted property and left. Police arrested the present applicants after about one month of the incident and challaned them to stand the trial in this case. It appears that the applicants were arrested in the month of December, 1993 when they were found to be involved in many other similar incidents. The main contention of the learned counsel for the applicants is that the applicants have remained in jail beyond period of 2 years whue the trial against them has not concluded and that therefore, they are entitled to be released on bail on the ground of statutory delay as provided by 3rd proviso to Section 497 (1) Cr.P.C. The learned counsel appearing for the State, stated that the applicants are not responsible for the delay in the conclusion of the trial therefore, they are of course entitled to be released on bail but because the 4th proviso to Section 497 (1) Cr.P.C. is attracted in this case the applicants being desperate, dangerous and hardened criminals, the right of bail on the ground of statutory delay could not be extended to them. Learned State counsel has relied on a statement signed by Mr. Muhammad Shaft PJnd Inspector CIA, Sadar Karachi, who had appeared before the Court with this statement in place of Mukhtiar Ahmed Baig, Investigating Officer of this ease, as Mr. Mukthiar Ahmed Baig, was on Ex-Pakistan Leave. Mr. Muhammad Shafi Rind in his statements stated that the applicants were involved in 15 cases of similar heinous crimes which were pending in different Courts, they were habitual criminals and also desperate, dangerous and hardened. The learned State counsel basing his argument on the strength of the statement of the police officer opposed the grant of bail to the applicants. On considering the arguments advanced before me and also after perusing the impugned order and other relevant record, I have come to the conclusion that the applicants are entitled to be released on bail. The learned counsel for the applicants have placed on record copies of the case diaries of the trial Court showing that charge against the applicants was framed in the month of March, 1996, and they were not responsible in any manner for the delay in the conclusion of the trial. The learned counsel for the applicants have also placed on record 13 bail orders in different cases, in which they have been released on bail. These orders show that the applicants were ordered to be released in these cases mainly on the ground that the police had failed to get them identified through the PWs. in identification tests, and in some cases the bails were granted to them on the ground of statutory delay. The main ground urged by the learned counsel for the applicants is the statutory delay lit the conclusion of the trial. I have therefore, examined the case from that angle. Admittedly applicants are in custody for more than 2 years while they are not found responsible for delay in the conclusion of the trial against them. Therefore, they are obviously entitled to be released on hail, but the only ground on which the concession of bail to them could be withheld, is the provision of 4th proviso, to Section 497(1) Cr.P.C. which is reproduced hereunder for convenience sake :-- S. 497(1) Cr.P.C,- "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment, for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism". The first point for application of 4th proviso appears to be the previous conviction. In this case the prosecution has not pleaded that any of the applicants is a previous convict while the counsel for applicants have claimed that none of the applicants is a previous convict. The next point for the purpose of determination of the application of this proviso is "whether the applicants are hardened, desperate or dangerous criminals," and lastly "whether they are involved in terrorism". Admittedly there is no charge of terrorism against the applicants. Therefore, the only question remains to be examined is whether the applicants could be termed as "hardened, dangerous and desperate criminals". The 4th proviso to Section 497(1) Cr.P.C., provides that the Court will refuse bail to the applicants when it forms an opinion to the effect that applicants are hardened, dangerous or desperate criminals. This opinion in respect of the above characteristics of the accused is to be formed on the material before the Court. Consequently the material which was available before the Court was examined. It comprises of the statement by a police officer who is not the Investigating Officer, but an officer holding charge on his behalf who has stated that the applicants are desperate, dangerous and hardened criminals. In addition to that the learned State counsel invited the attention of the Court to take note of 13 other cases in which the applicants are involved but have been granted bail, and stated that since the applicants are involved in similar incidents, therefore it can be said that they are habitual offenders and habitually commit robberies, hence they may be. 'bracketed as desperate, dangerous and hardened criminals. No doubt, applicants appear to be involved in many similar cases but in none of these cases they were found so desperate, dangerous and hardened criminals that their bail should have been withheld. On the contrary in many of the cases the balls were allowed to them on the ground of statutory delay taking use of the 3rd proviso to Section 497(1) O.P.C., thereby inipliedly meaning that provisions of 4th proviso to Section 497(1) Cr.P.C., was not found applicable to their cases. The only other material is the statement of a police officer who has filed the same on behalf of another police officer who was the actual Investigating Officer. Therefore, this could not equate with the opinion of the actual Investigating Officer, even though I have reservations if an opinion of the Investigating Officer in worth consideration for holding a person to be a desperate, dangerous and hardened criminal. In the case of Maunder and others v. The State, (P.L.D. 1990 S.C. P/934) our Supreme Court has defined in detail the words "desperate, dangerous and hardened" and relying on the case of Muhammad Hanif v. The State (P.L.D. 1988 Kar. 437) had laid a principle that it had to be derived from the nature of the offence with which the applicants are charged after assessing evidence against them, tentatively, whether they could be termed as "desperate, dangerous and hardened criminals." In Moundar's case bail was granted to the applicants after considering that no specific role was I assigned to the accused and therefore, it was held that the Court below was | not justified in holding that the accused were dangerous persons. Therefore, | in this case also, judging it on the same principle that specifically they have not been assigned their respective role in robbing the property, and j committing the murder, but they are generally charged with the offence. The j involvement of the applicants in other cases, in absence of material that they I are desperate, dangerous and hardened criminals, does not appear to me a, such that the applicants should be deprived of their liberty of being released j on bail which they have earned on account of delay in their trial. Under ' these circumstances I find that in absence of the independent material to | hold the applicants to be desperate, dangerous and hardened criminals and ! in absence of the specific role against each of them, they could not be held to be desperate, dangerous and hardened criminals so as to deprive them of their right of bail earned by them on the ground of statutory delay in 1 disposal of the case. Consequently I find that the applicants are entitled to be released on bail. This application is therefore, granted. Applicants are ordered to be released on bail on their furnishing two sureties by each of them each surety in the sum of Rs, 100.000/- (Rs. One Lac) and P.R. bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 631 Present: ALI MUHAMMAD BALOCH, J, SALEEM-Applicant versus STATE-Respondent Crl. Misc. Application No. 84 of 1996, accepted on 31.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- S. 561-A-Quashment-Prayer for-Offence u/Ss. 147/148/149/435/353/ 332 and 324 PPC-There is no evidence collected by police against applicant and only circumstance against him proved from police record is that he was standing alongwith co-accused at the time of arrest of coaccused--He was neither armed nor he has shown to have token any part in the incident-There is no allegation of any nature in 161 Cr.P.C. statements of witnesses against applicantHeld : Allowing applicant to face trial will amount of abuse of process of law-Proceedings quashed. [P.633JA Mr. Mahmood A. Qure.shi, Advocate for Applicant, Mr. Farid Ahmed Dayo, Advocate for State. Date of hearing : 31.3.1997. judgment Applicant Saleem son of Adam has moved this Cr. Misc. Application under provisions of Section 561-A Cr.P.C, requesting that the case pending against him before the 1st Addl. Sessions Judge, Karachi (West), may be quashed. 2. The case against the applicant was the result of FIR registered at P.S. Saeedabad, District Karachi (West), which was lodged by SHO Syed Saleem Hussain Shah, Sub-Inspector of Police. 3. The facts of the prosecution case in nutshell are to the effect that Syed Saleem Hussain Shah was informed by A.S.I.P. Ishaque Lodhi that firing between two groups of boys belonging to the MQM and PPI was taking place. On hearing this report Syed Saleem Hussain Shah, SHO, alongwith Sub-Inspector of Police Muhammad Aslani in company of the police constables Abdul Quddoos, Faiz Ahmed, Muhammad Rasheed and Zafar Iqbal proceeded to the area. On reaching the place of incident the police noted that A.S.I.P. Ishaque Lodhi alongwith his police party had also reached. They learnt that during the night between 21-22 of August 1994 boys belongs to MQM group had burnt the party flag of PPI. As a result of that incident at about 3.00 p.m. on the day when the police had received the information of firing, the two groups had started firing against each other. As a result of the firing Abdul Hadi, Ghulam Rasool, Shaukat and Muhammad Zahid had received bullet injuries. It was also mentioned in the FIR that 30 persons from the side of MQM and 8 persons from the side of PPI were firing at each other apart from some other unknown persons with each party. The names of 30 persons and 8 persons from MQM and PPI were given in the FIR and the name of the applicant is not among the list of the persons who were identified or named in the FIR. On the arrival of the police, it is stated that the parties, who were firing at each other also fired at the police but when the police retaliated to the firing in their defence, the boys ran away in the streets. The police registered a case under Sections 147, 148, 149, 435, 353, 332 and 324 P.P.C. The police started conducting the investigation and after 5 days of the incident the police managed to arrest accused Shakeel. It is stated in the police case that when the accused Shakeel was arrested, the present applicant Saleem was also found standing with him. On that account the present applicant Saleem was also arrested and finally involved in this case. The case has not yet proceeded although police has finally challaned the case and at present the trial is taking place in the Court of 1st Addl. Sessions Judge Karachi (West). An application under Section 265-K Cr.P.C. on behalf of the present applicant was moved before the trial Court and it was urged before the trial Court that there was no allegation of any kind against the present applicant in the case so that he should have been made accused by the police and, therefore, the proceedings against the applicant would amount to abuse of the process of law. However, the trial Court rejected the application under Section 265-K Cr.P.C. on 8.2.1996. On 28.2.1996 the present application under Section 561-A Cr.P.C. for quashment of the case against the applicant was moved before this Court. Learned counsel for the applicant urged that the name of the applicant did not appear in the FIR although names of 30 persons belonging to MQM have been mentioned while names of 8 persons from the rival group are also mentioned in the FIR. Secondly, it was argued that during the entire investigation the police did not find any evidence against the applicant of having participated in the alleged incident and the learned counsel pointed out that in the statements recorded under Section 161 no witness has mentioned the name of the applicant or pointed towards him of anything incriminating, in any manner. In other words the contention of the learned counsel for the applicant is that there is complete lack of accusation of any kind against the applicant in this case. Learned State counsel assisted the Court in scrutinizing the police record in respect of this case and he conceded that neither the name of the applicant appears in the FIR nor he has been named by any of the witnesses in their statements ijnder Section 161 Cr.P.C. nor police has collected any circumstantial evidence against the applicant. Learned State counsel veiy frankly conceded that under the circumstances if the case against the present applicant is allowed to remain on record, it will amount to abuse of the process of law and that in no case the trial against the applicant can result in his conviction in the present case. It appears that the applicant has been involved merely finding him standing alongwith the co-accused Shakeel, whose name appeared in the FIR and on his arrest he was found in possession of an unlicensed pistol. Making this circumstance as the reason for involving the present applicant in this case, the police had mentioned the name of the present applicant after arresting him in the charge sheet and, therefore, the applicant is facing the trial. Learned counsel for the applicant has relied upon the case of Syed Muhammad Owais Shibli vs. The State reported in 1995 MLD 532 and the case of Muhammad Sadiq Umrani vs. Govt. ofSindh, reported in PLD 1993 Karachi 735. The principle laid down in the above cases as well as in other cases decided by the superior judiciary is that if from the FIR and other evidence collected by the Investigating Agency there appears no possibility that the case against the applicant will result in conviction, the proceedings will amount to abuse of the process of law and, therefore, invariably such proceedings have been quashed by the High Court under the provisions of Section 561-A Cr.P.C. 6. I am satisfied that there is no evidence collected by the police against the applicant and the only circumstance against him proved from the police record is that he was standing alongwith the co-accused Shakeel at the time of arrest of Shakeel. He was neither armed nor he has shown to have taken any part in the incident. There is no allegation of any nature in the 161 Cr.P.C. statements of the witnesses against the applicant as pointed out by the learned counsel for the State. I, therefore, have come to the conclusion that allowing the applicant to face the trial in the above case will amount to abuse of the process of law. Therefore, I find that the case against the applicant is liable to be quashed. Consequently, this Cr. Misc. Application is allowed and it is directed that the name of the applicant may be excluded from the list of the accused in the above case and the case against him stands quashed. (AAJS) Proceeding quashed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 633 [Multan Bench] Present: zafar pasha chaudhari, J. MANZOOR HUSSAIN and 2 others-Petitioners versus STATE-Respondent Crl. MiscNo. 265/B/1997, accepted on 20.3.1997. Bail- __ S. 497 Cr.P.C.--Bail--Grant of--Prayer for-Offence u/S. 10 of Zina(Enforcement of Hadd) Order, 1979-Two investigations have been conducted and in both of them it was found that no Zina has been committed-Medical report prima fade is not supporting prosecution version because victim is a married woman and her medical examination was conducted about five days after occurrence-Delay in such like cases is not always fatal but keeping in view circumstances of case delay does affect adversely prosecution case-Bail granted. [P. 634] A Syed Javaid Ali Bokhari, Advocate for the Petitioners. Mr. Abdul Aziz, Advocate for State Date of hearing: 20.3.1997 order Arguments heard and relevant record perused. It is submitted by learned counsel for the petitioners that there is a delay of five days in lodging the FIR which has not been explained adequately. Also that the medical report which is dated 28.11.1996 is not supporting the prosecution version. It is further added that two investigations were conducted in this case and in both of them it was held that only modesty of the victim Mst. Kalsoom was outraged and no criminal assault was made. This investigation was subsequently verified by the DSP, therefore, initially a challan was submitted under section 354 PPG but subsequently on an objection taken by the DDA, section 354 PPC was again substituted by Section 10 of Ordinance VII of 1979. 2. Without resorting to any detailed appreciation of the evidence, suffice it to say at the moment that in this case two investigations have been conducted and in both of them it was found that no zina has been committed. As far as the medical report is concerned, prima fade it is not supporting the prosecution version because admittedly the victim is a married woman and her medical examination was conducted on 28.11.1996 i.e. about five days after the alleged occurrence. Delay in lodging such like cases is not always fatal but keeping in view the circumstances of the present case the delay does not affect adversely the prosecution case. Considering the entire facts and circumstances, I find that it is a case of further inquiry. This petition is, therefore, allowed and the petitioners are admitted to bail subject to their furnishing bail bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand) each with two sureties each in the like amount to the satisfaction of the learned trial court. 3. It is however clarified that observations with regard to merits of the case have been made only to decide the bail application in hand and they will not in any manner affect or prejudice the case of either party during trial. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 635 (DB) [Multan Bench] Present : KHALIL-UR-REHMAN RAMDAY AND ZAFAR PASHA CHAUDHARI, JJ. ABDUL QAYYUM-Petitioner versus STATE-Respondent Crl. Appeal No. 27/96, accepted on 4.3.1997. West Pakistan Arms Ordinance, 1965 <XX of 1965)-- S. 13 read with 420 PPC--Rifle 222-Recovery of--Conviction for- Challenge toContention that recovery has not been effected from appellant and he has been falsely implicated merely as a scape-goat; that information was laid before police unless a raiding party reached house of complainant during course of patrolling, that prosecution story is in consistent, unreasonable and not acceptable-Rifle had been recovered from complainant, therefore, onus is upon him to satisfactorily explain possession of illicit arm which has not been discharged-Possibility cannot be ruled out that appellant has been implicated as an accused person to save the skin of complainant-Prosecution case is not free from doubt- Appeal allowed. [Pp. 636 & 637] A & B M/s Mian Ashfaq Ahmad and Muhammad Nawaz Malik, Advocates for Appellant. Mehr Muhammad Saleem, Advocate for State. Date of hearing: 4.3.1997. judgment Zafar Pasha Chaudhry, J.--This appeal is directed against judgment dated 7.1.1996 passed by Mr. Muhammad Asif Khan, Judge Suppression of Terrorist Activities Court Multan Division Multan whereby he convicted the appellant u/s 13 of Arms Ordinance (XX of 1965) and sentenced him to undergo rigorous imprisonment for three years with a fine of Rs. 10,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. Benefit under section 382-B Cr.P.C. was extended. 2. The brief facts relevant for disposal of this appeal are that Hamid Khan PW. 5 lodged a complaint Ex. PA with Muhammad Sharif ASI on the basis of which formal FIR Ex. P/l was registered at Police Station Chehliyak District Multan u/S. 13 A.O. read with section 420 PPC. It was alleged inter alia that the complainant had obtained licence for purchase of arm on 13.9.1993 which was got registered in General Post Office as a result of which the licenced arm had to be purchased by 31.9.1993. He was interested in purchasing arm at some cheap rate. In the meanwhile Mirza Imran Baig alongwith Abdul Qayyum (appellant) contacted the complainant and offered _ to sell rifle 222 which according to him was a licenced arm belonging to ' Imran Baig. As wife of Imran Baig was admitted in a hospital he wanted to raise money by selling the said rifle. He struck bargain for purchase of the rifle for Rs. 6000/- in the presence of his father Ahmad Khan PW. 5 and brother in law Mushtaq Ahmad Khan. However, the rifle was to be delivered on 29.9.1993 which was received by him accordingly. 3. On 24.10.1993 a police party comprising of Muhammad Sharif SI alongwith Muhammad Ashraf and Abdul Hameed constables was on patrol duty for detection of crime when Hamid PW. 4 produced rifle 222(P. 1) before the raiding party alongwith its magazine P. 2 containing ten live cartridges P. 3/1 to 10. The same were taken into possession vide Ex. DB dated 24.10.1993. In the site plan Ex. PC place of recoveiy of the rifle has been shown to have been procured in front of the house of Hamid Khan complainant. 4. Mirza Imran Baig, co-accused of the appellant could not be arrested and was declared absconder. The appellant was sent up to face trial whereas his said co-accused was shown in column No. 2 as absconder. The appellant was separately tried by Mr. Muhammad Asif Khan, learned Judge, Suppression of Terrorist Activities Multan. During the trial formal charge u/S. 13 of Arms Ordinance was framed against him who pleaded not guilty and claimed trial. 5. The prosecution examined 6 witnesses in all to substantiate the :harge. PWs 1, 2 and 3 are formal witnesses whereas PW. 5 complainant and PW. 4 his father are the main witnesses who reiterated the version given in Jie FIR and narrated the stoiy as has been detailed supra. 6. The appellant in his statement u/S. 342 Cr.P.C. denied the illegations and stated that in fact rifle P. 1 had been recovered from Hamid Chan and was planted on him to save his skin by cooking up a false story. 7. The learned counsel for the appellant Las argued that no recoveiy las been effected from the appellant and he has been falsely implicated nerely as a scape goat; that no information was laid before the police unless . raiding party reached the house of the complainant during the course of latrolling; that the prosecution stoiy is inconsistent, unreasonable and not ceptable. 8. The learned counsel appearing on behalf of State has opposed the ontentions raised on behalf of the appellant and maintained that PW. 4 and - ! W. 5 had no enmity against the appellant, therefore, their testimony had een rightly relied upon by the learned trial Judge and as such he defended ie conviction recorded against the appellant. 9. We have perused the record and have given our anxious jnsideration to facts and circumstances of the case. Admittedly the rifle 222 ?. 1) was taken into possession by the raiding party during the course of their patrol duty and that too when they were present even according to the prosecution in front of the house of the complainant. It is not understandable as to why complainant kept the gun with him without receiving the licence or getting the endorsement made thereon. It has come in the evidence that the complainant was aware that Abdul Qayyum and his companion Imran Baig used to deal in illicit arms then why aid he opt to purchase the arm from them and that too without licence. The pretext that licence could not be delivered to him on account of illness or ailment of wife of Imran Baig is hardly acceptable. Viewing the matter from this angle complainant Hamid Khan himself becomes an accomplice and his evidence cannot be accepted unless corroborated by some other material evidence which is absolutely lacking in this case. 10. As observed above rifle P. 1 had been recovered from the complainant, therefore, onus is upon him to satisfactorily explain the possession of the illicit arm which, we think, has not been discharged. The possibility cannot be ruled out that the appellant has been implicated as an accused person to save the skin of the complainant. It has also come on the record that complainant's father Ahmad Khan PW. 4 is posted as District Accounts Officer in Multan, as such he had every opportunity to wield influence on the police and investigating agency. The prosecution case is not free from doubt, therefore, we are not inclined to uphold and maintain the conviction recorded against the appellant. 11. For the foregoing reasons we allow the appeal and set aside the conviction recorded vide judgment dated 7.1.1996 passed by Mr. Muhammad Asif Khan, Judge Suppression of Terrorist Activities Multan Division, Multan. (AAJS) Appeal allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 637 Present: MUHAMMAD AQIL MiRZA, J. MUHAMMAD SIDDIQUE-Petitioner versus MANSHA ETC.-Respondents Crl. Misc. No. 235-H/97, decided on 13.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 491 read with Art. 11 of Constitution of 1973, Ss. 371 and 374 PPG. and Ss. 11 and 12 of Bonded Labour System (Abolition Act) 1992-Detenues Recovery of from a Snick kiln-Prayer for-Owners of brick kilns cannot engage labour after making advance payment under bonded labour system-Tills is patently an offence-Resultantly, respondents cannot plead justiiication for getting forced labour from detenues on the ground tLtti iiead of family had obtained advance amount for future work by detenues-Women children are made to work at brick kilns in negation of fundamental right guaranteed under Article 11 of constitution of Pakistan, 1973--In appropriate cases such acts may even constitute offences under Section 371 and 374 PPC--In addition thereto, extraction of bonded labour under bonded labour system is punishable u/s 11 and 12 of Bonded Labour System (Abolition Act) 1992-These offences are cognizable u/S. 17 of the Act-Therefore, in all such like case criminal case should be registered against persons including family heads who are found responsible for forced labour under bonded labour system and the culprits brought to book-Detenues who have not been recovered so far will be recovered by police and set them at liberty. [P. 639 & 640] A, B, C & D Mr. C. M. LatifRawn, Advocate for Petitioner. Noor Muhammad, Respondent No. 5 and Muhammad Akram, Respondent No. 9 in person. Date of hearing : 13.3.1997. order This habeas corpus petition under Section 491 Cr.P.C. has been filed for the recovery of seven persons who include the tow sons, daughter-in-law and grand children of the petitioner. 2. The facts as stated in the petition are that the petitioner and the detenues were employed on the brick kiln of respondent No. 1. The petitioner owed a sum of Rs. 60.000/- to the owner of the brick kiln. After giving surety for repayment of the aforesaid amount the petitioner and his family members shifted to the brick kiln of respondent No. 9. On 4.3.1997 respondent No. 1 alongwith others after giving threats took away the detenues in a HiJux wagon. 2. The police was directed to recover the detenues. The ASI of Police Station Bhera has stated that the detenues could not be recovered. Respondent No. 9 has stated that the detenues were taken from him custody on 28.2.1997 by respondent No. 1. It is stated by him that respondent No. 1 had taken away the detenues saying that they owned money which had been taken in advance for working at his brick kiln and for completing their term of employment. Respondent No. 5 stated that the detenues were working at his brick kiln but they slipped away 4/5 days back. 3. It appears that the petitioner obtained money in advance from the owner of the brick kiln for the employment of the detenues and before the expiry of the contract period shifted them to some other brick kiln after taking advance therefor under the bonded labour system. 4. By general practice, ladies and children are made to work under forced conditions by the management of the brick kilns with the connivance of the heads of the families. Usually such labour force is put under restraint and tightly guarded. In some cases this practice even amounts to slavery and human trafficking. Ankle 11 of the Constitution prohibits slavery, forced labour and traffic in human beings in all forjns. Similarly, no child beluw the age of 14 years can be engaged in any factory or mine or any other hazardous employment. Needless to observe tiiat environments at brick kilns on account of excessive smoke are hazardous to tiie health of children. Women and children are made to work at brick kilns in negation of the fundamental right guaranteed under Article 11 of the Constitution. In appropriate cases such acts may even constitute offences under Section 371 and 374 PPC. In addition thereto, extraction of bonded labour under the bonded labour system, is punishable under Sections 11 and 12 of the Bonded Labour System (Abolition Act) 1992. These offences are cognizable under Section 17 'of the Act. These penal provisions are reproduced below : "11. Punishment for enforcement of bonded labour.- Whoever. after the commencement of this Act compels any person to render any bonded labour shall be punishable with imprisonment for a term which shall not be less than two years no more than five years, or with fine which shall not be less than fifty thousand rupees, or with both. 12. Punisluncnt far extruding bonded labour under the bonded labour system.--Whoever enforces, after the commencement of this Act any custom, tradition, practice, contract, agreement or other instrument, by virtue of which any person or any member of his family is required to render any service under the bonded labour system, shall be punishable with imprisonment for a term which shall not be less than two years nor more than five years or with fine which shall not be less than fifty thousand rupees, or with both, and out of the fine, if recovered, payment shall be made to the bonded labourer at the rate of note less than fifty rupees of each day for which bonded labour was extracted from him. 17. Cognizance of o/j'crcecs.--Every offence under this Act shall be cognizable and bailable." 5. Prima fade, women and children of the family of the petitioner, have been made victims of forced labour under the bonded labour system with the connivance of the petitioner. The owners of the brick kilns cannot engage labour after making advance payments under the bonded labour system. This is patently an offence. Resultantly, they cannot plead justification for getting forced labour from the detenues on the ground that head of the family had obtained advance amount for future work by the detenues. 6. For what has been stated above, it is directed that S.S.P., Sargodha shall direct S.H.O. Police Station Bhera to register the case against the petitioner, respondent No. 9 and the owners of the brick kilns who have t. been dealing the detenues under the bonded labour system, for committing the aforementioned offences, and get the case investigated by a responsible senior officer not below the rank of a DSP. 7. It may be observed that the police being part of the State administration is duty-bound to ensure that constitutional and statutory rights guaranteed to the citizens are not violated by unlawful practices. herefore, in all such like case criminal cases should be registered against persons including family heads who are found responsible for forced labour under the bonded labour systems and the culprits brought to book. 8. The detenues who have not been recovered so far will be recovered by the police and set them at liberty. 9. The petition stands disposed of in the above terms. (AAJS) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Karachi ) 640 (DB) Present: wajihud-din ahmad and amanullah abbasi, JJ. NADIM HAMID-Applicant versus STATE-Respondent Bail Application No. 915 of 1996, allowed on 11-7-1996. Criminal Procedure Code, (V of 1898)-- -Ss. 497, 498 read with Ss. 61, 62, 167, 173 and Arms Ordinance, 1965 . 13-D, Suppression of Terrorist Activities (special courts) Act, 1975, S. 5 Constitution of Pakistan, Articles 9 and 10~Bail after arrest-Taking cognizance of a case by a Special Court is concerned, requirements of Section 173 Cr.P.C . appear to have been merged in section 5 of Act, 1975- In situations where special court does not become seized of a proceeding, Section 5 of special law being disregarded, High Court having been conferred appellate and supervisory jurisdiction, can also step in, if so moved by an aggrieved person-Applicant has been under detention since 10-5-1996-Mandates of Ss. 61, 62, 167 Cr.P.C . and Articles 9 and 10 of Constitution have not been adhered to rendering detention illegal-There is nothing in the Act, 1975 which precludes applicability of said provisions-Held : Liberty of a person having been violated under cover of a statute, which is clearly subject to constitution-Bail granted. . [Pp. 641 & 642] A to E ' 1995 P.Cr.L.J . 297, 1996 P. Cr.L.J . 272, 1991 SCMR 619 ref. Mr. Ghulam Mustafa Memon , Advocate for Applicant. Mr. Habib Ahmed, for State. Date of hearing: 11-7-1996. order This is a direct application for bail filed in this court on 9.6.1996. According to FIR No. 98/96 of P.S. Orangi (Extension), Karachi West, registered on 10.5.1996 at 1540 hours by ASI Ali Haider Shah of such Police Station, the said ASI was on patrolling duty with a police party that at 1500 hours they found the applicant-accused concealing himself. The applicant was apprehended in the presence of P.Cs . Hidayatullah and Abdul Aziz , disclosed his name to by Nadeem Hamid Balwai son of Hamid Hussaiu and upon his person was found a .30 bore pistol, without number, with two live bullets in the magazine for which he failed to produce due licence . It' is claimed on behalf of the applicant that the accused continues in custody ever since, no challan has been submitted so far and there is little evidence in the case, exclusively consisting of police personnel, which would furnish reasonable grounds for his conviction in due course of law. The learned counsel for the applicant for seeking grant of bail directly in this court relies upon Sareed Khan v . The State, PLD 1989 Peshawar 80 and Muhammad Ali Khan v. The State, PLD 1991 Peshawar 66. For reasons to be recorded separately, we had on 27.6.1996 admitted the applicant to bail in the sum of Rs . 50,000/- with P.R. bond in like amount to the satisfaction of the Nazir of this Court. Recorded below are the reasons for that order. It is now well settled that the Suppression of Terrorist Activities (Special Courts) Act, 1975, does not oust the jurisdiction of this court to grant bail to persons arraigned or indicted under such Act. The enactment merely regulates or controls such grants. Even where the Special Court under the special law is seized of a case bails, including bails before arrest, can be granted in this jurisdiction. Inter alia , Mumtaz v. The State, 1995 P.Cr . L.J. 297 and Imdad Khan v. The State, 1996 P.Cr . L.J. 272 may be referred on the point Now the applicant, as seen, has been under detention since 10.5.1996 and there is nothing in the Suppression of Terrorist Activities (Special Courts) Act, 1975, which precludes the applicability of Sections 61, 62 and 167 of the Code of Criminal Procedure to such arrests. These provisions in the Code have also been elevated to the status of Constitutional guarantees under Articles 9 and 10 of the Constitution, Article 9 conferring a fundamental right, whereunder no person can be deprived of life or liberty, save in accordance with law and Article 10 ensuring that every person arrested and detained in custody shall be produced before a Magistrate within 24 hours of his arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest Magistrate and that no person so arrested may be detained in custody beyond such period without due authority of a Magistrate. As to Section 167 of the Code, that provision postulates the rale of inviolability of personal liberty in such manner that in cases wherein investigation cannot be completed with 24 hours, as fixed by Section 61, and tbere ar ® grounds for believing that the accusation or mformatksn is well founded the Magistrate concerned may authorise the detention from time to time not exceeding a period of 15 days but in so doing reasons for the remand are to be recorded. It needs little application of mind to conclude that the foregoing mandates have not been adhered to, rendering the detention illegal as, inter alia , found by this Court in Asma Khatoon v. J$j Syed Shamir Hussain & Ors., C.P.No . D-517 of 1996, decided in the court on 25.4.1936. Insofar as taking cognizance of the case by the Special Court is concerned; the requirement of Section 173 of the Code of Criminal Procedure appear to Jbaye been merged in Section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which enjoins that the officer incharge of a police station shall complete the investigation and forward directly to the Special Court a report under Section 173 of the Code within 14 days in.respect of a case triable by such court, the Special Court being correspondingly empowered to extend the time within which such report is to be forwarded in a case where good reasons are shown for not doing so within the period prescribed and a default on the part of the officer incharge of the police station, etc., resulting in delay in the investigation or submission of the re-port being termed a wilful disobedience of an order of the Special Court to be dealt with accordingly. The implications are obvious and saeh are that whereas the, simultaneous, prohibitory and enabling provisions in Sections 61, 62 and 167 of the Code, as upstaged by Articles 9 and 10 of the Constitution, remain in place, it is only from the point of applicability of Section 173 Cr.P.C . that the Special Court takes over a matter falling within its purview (Allied Bank v. Khalid Farooq , 1991 SCMR 599, 619) and it is only upon taking over that the jurisdictions under the Code of Criminal Procedure stand by-passed. For obvious reasons, the act of taking seizing of a case under Section 173 of the Code, as read with Section 5 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is a conscious act In situations where the Special Court does not become seized of a proceeding, Section 5 of the special law being disregarded, this court, having been conferred appellate and supervisory jurisdiction under the 1975 Statute can also step in, If so moved by an aggrieved person. Examining the present application on the basis of the foregoing enunciations of law, we reached the conclusion that the liberty of a person having been violated under the cover of a statute, which is dearly subject to the Constitution, a case for grant of bail was made out and the applicant was duly enlarged. (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 643 [Multaa Bench] Present : sh. rlaz ahmed, J. GHULAM alias GOMI-Petitioner versus STATE-Respondent Crl. Misc. No. 1920-B/1996, accepted on 15-12-1996. (I) Ball- S. 497/4S8 Cr,P.C.--Baii"Grant of--Prayer for-Offenct under section 302/109/34 P.P.C.-Further inquiry-Case of--It is unintelligible as to how complainant was present when petitioner asked his son to kill deceased-Further more, investigation officer has not so far collected any evidence as to ahetment--In this view of the matter, it becomes a case of further inquiry falling within purview of S. 497 (2) Cr.P.C.-Bail allowed. [P. 643] A Aliaf Ibrahim, Qureshi, Advocate for Petitioner. Oul Muhammad., Advocate for State. Date of hearing: 15-12-1996. order Petitioner is accused of the commission of offence under sections 302/109/34 PPG. Petitioner happens to be the father of the accused, namely, Safdar olios Shafa, who is alleged to have fired at the deceased. According to FIR it is stated therein that a day before the occurrence, dispute had taken place, and the petitioner had asked his son Safdar to kill the deceased namely Ijaz. 2. I have gone through the contents of the FIR, and have heard the learned counsel appearing oa behalf of the petitioner and the State. It is unintelligible as to how the complainant was present when petitioner asked his son to kill Ijaz deceased. Furthermore, the Investigating Officer has not so far collected any evidence as to the abetment la this view of the matter, it becomes a case of further enquiry falling within the purview of section 497 (2) CrJP.C. Accordingly, I direct that petitioner Ghulam alias Gomi shall be released on bail subject to his furnishing bail bonds in the sum of Rs. one hundred thousand (Rs. l,00,000/-> with one surety in the like amount to the satisfaction of Judicial Magistrate. Burewala. (KA.B.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 644 [DB] [Multan Bench] Present : KHALIL-UR-REHMAN RAMDAYAND MUHAMMAD ASIF JAN, JJ. NOOR MUHAMMAD etc.-Petitioners versus STATE-Respondent Crl. Misc. No. 1/95 and CrI. Misc. No. 1/96, accepted on 10-6-1996. (i) Criminal Procedure Code, 1898~ S. 426-Sentence--Suspension of-Beside allegation of raising lalkaras during course of occurrence, they did not stand burdened with any other overt act including any use of weapons in question carried by them or giving of any injury on person of deceased--They have been in custody for about a year after their conviction by learned trial court-Both of them have made out a case for suspension of their sentence of imprisonment- Petition accepted. " [P. 644J A Mtaf Ibrahim Qureshi and Zawar Hussain Shah, Advocates for Petitioners. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 10-6-1996. order Both these petitions are being disposed of together since both of them arise out of the same judgment and pertain to the co-convicts in the same case. 2. Noor Muhammad petitioner in Criminal Misc. No. 1/1995 and Allah Bakhsh petitioner in Criminal Misc. No. 1/1996 were allegedly armed with a pistol and hatchet respectively, but, besides the allegation of raising lalkaras during the course of occurrence, they did not stand burdened with any other overt act including any use of the weapons in question carried by them or giving of any injury on the person of Murtaza deceased. They have been in custody for about a year after their conviction by the learned trial Court. 2. Without expressing any opinion on the deeper merits of the case, we find that both of them have made out a case for the suspension of their sentences of imprisonment. Consequently, the sentences of imprisonment of both the petitioners (Noor Muhammad & Allah Bakhsh) are suspended and they shall be released on bail subject to each one of them furnishing security in the sum of Rupees One Lac with two sureties each in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate Pakpattan Sharif. (KA.B.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 645 [Million Bench] Present : MUHAMMAD AQIL MiRZA, J. MUHAMMAD ASHRAF-Petitioner versus S.H.O. etc.--Respondents Crl. Misc. No. 398-H/96, disposed of on 23-10-1996. Criminal Procedure Code, 1898-- S. 491~Production of detenuPrayer forDetenu was allowed to meet her ather and matter for more than two hours, she however states that she want to go and live with her husband (Respondent No. 3) and does not want to go with her parents (Petitioners)--She may go and live with her husband-Petition disposed of. [P. 646] A Ch. Gul Muhammad, Advocate for Petitioner. Altaf Ibrahim, Advocate for Respondent No. 2. Date of hearing: 23-10-1996. order It is submitted by the learned counsel for the respondent that Mst. Fauzia Shaheen alias Fauzia Yasmeen daughter of Muhammad Ashraf has already contracted marriage with Shaukat Ali son of Fateh Muhammad vide Nikahnama dated 29-5-1996. He states that Fateh Muhammad is an owner of a house situated in Chak No. 549/EB, Tehsil and District Vehari. With a view to show bona fides of the marriage he states that Fateh Muhammad has gifted half share in the house owned by him in favour of Mst. Fauzia Shaheen alias Fauzia Yasmin by way of additional dower of the marriage contracted by her with his son Shaukat Ali. Fateh Muhammad who is present in person has stated that he has gifted half of his house in favour of Mst. Fauzia Shaheen alias Fauzia Yasmeen by way of additional dower for the marriage contracted between Shaukat Ali and Mst. Fauzia Shaheen. He further states that the house is already in possession of the donee as she is living in the house with her husband. Mst Fauzia Shaheen has accepted the gift. The gift, under the Muslim law has become complete and she has become owner of half of the house. Such an oral gift is not required to be registered under section 129 of the Magistration Act. The Tehsildar shall attest the mutation in respect of the gift within one month. 2. Mst, Fauzia Shaheen was allowed to meet her father and mother for more than two hours. She however, states that she wants to go and live with her husband Shaukat AH and does cot want to go with her parents. She "f may go and live with her husband. Shaukat AM and Fateh Muhammad have undertaken that if the parents of the girl come to their house they will be treated with honour and dignity and no harm shall be done to them. They will be allowed to see their daughter. The petition stands disposed of. (KA.B.) Petition disposed of.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 649 [Multan Bench] Present: KHAN RlAZ-UD-Dm AHMAD, J. MUHAMMAD SAEED-Petitioner versus S.H.O.-Respondent Crl. Misc. No. 668-H-96 converted into Crl. Misc. No. 2072-B-96, disposed of on 19.11.1996. Criminal Procedure Code, 1898-- S. 491 Habeas corpus petition-Detenu recovered from illegal detention of respondent (S.H.O)~Absence of parat from daily diary register-As S.H.O. has not been able to satisfy court regarding absence of parat from daily diary register or regarding arrest of detenu under S. 54r-Prima facie seems as if parat of daily diary was prepared subsequently so as to save their own skin as they had illegally detained detenu for so many days prior to raid conducted by bailiffAs the manners and procedure adopted by S.H.O were doubtful and were apparently not straitiy in accordance with law in this view of matter, the petitioners are allowed interim bail- Order accordingly. [P. 650] A&B Altaf Ibrahim, Advocate for Petitioner. Date of hearing: 19.11.1996. order The SI/SHO has produced the medico-legal certificates of both Muhammad Akram and Zafar Iqbal detenus disclosing thereby that no marks of violence were found on the persons of the alleged detenus. Learned counsel for the petitioner has vehemently argued that absence of the parat from the original register of daily diary in which the arrest was stated to have been entered on 17-11-96 reflects that the same was forged by the said officials, after they had come to know above the raid conducted by the bailiff of this Court According to the learned counsel, the case in which arrest of the detenus has been shown was registered about five months earlier and that the detenus were not named therein specifically, as such the arrest under section 54 Cr. P.C. was shown, so as to defeat the ends of justice, as the process was issued from this Court for the recovery of the alleged detenus. The Sl/SHO oa the other hand submits that it was during the investigation that the complaisant had expressed Ms suspicion regarding involvement of the detenus who were stated to be the members of a gang which had, committed the offence. Sl/SHO however, has not been able to satisfy this Court regarding the absence of parat from the daily diary register or regarding the arrest of the detenus under Section 54 Cr,P.C. on 17-11-1996 at 7.20 sum. Prima fade it asern as if theporaf of the daily diary was prepared subsequently so as to save their own skin as they had illegally detained the detenus for so many days prior to tha raid conducted by the bailiff. In this view of the matter, It was deemed fit to order the Add!. Superintendent of Police, Sahiwal to hold an enquiry into the conduct of Mulazim Hussain Sl/SHO and Mukhtar Hussain ASI. P.S, Gala Mandi, Sahiwal and intimate this Court about the result of the action taken against the said officials within four weeks. Learned counsel at this stags submits, that as the arrest of the petitioners were not strictly in accordance with law and was hurriedly incorporated on a separate parat of the daily diary, and, absence of the names of the petitioners from the above said FIR, he would request that thig petition may be treated as a bail application and the petitioners be allowed bail which is necessitated in the circumstances of the case. To substantiate his contentions learned counsel placed reliance on Abdul Qayym vs. SHO (1993 P.Cr. L.J. 91), Ali Muhammad vs. SHO (1995 P.Cr. L.J. 626) and Farzand All Shah vs. SHO (1895 P.Cr. L. J. 1076). I have considered the submissions made by the learned counsel and have gone through the case-law cited at the Bar. I feel pursuaded to agree with the learned counsel that as the manners and procedure adopted by the SHO were doubtful and were apparently not strictly in accordance with law. la this view of the matter, the petitioners are allowed interim bail till 16-12-1996 subject to their furnishing bail bond in the sum of Rs. 35.000/- with two sureties each in the like amount to the satisfaction of Duty/ Judicial Magistrate, Sahiwal, Meanwhile the petitioners shall if advised seek alternate remedy before the court of competent jurisdiction. The detenus are further directed to join the investigation as and when required by the police. This petition stands disposed of accordingly. (The order of this Court dated 18-11-1996 may be read as part of this order.) (KLA.B) Disposed of accordingly.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 651 [Multan Bench] Present : muhammad naseem, J. ASfflQ HUSSAIN etc.~Petitioners versus STATE-Respondent Cr. Misc. No. 1834/B-95 accepted on 28-2-1996. Bail- S. 497 Cr.P.C.--Bail--Prayer for-Offence under Article 12 of offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S. 377 PPC-- PWs submitted their affidavits exonerating accused person case becomes that of further enquiry-Case of prosecution against both the petitioners has become that of further enquiry and they are held entitled to be admitted to bailApplication accepted. [P. 652] A Malik Muhammad Shabbir Langarial, Advocate for Petitioners. Zafar Mahmood Anjum, Advocate for State. Date of hearing: 28.2.1996. order flyas Raza complainant aged about 14 years got recorded FIR No. 48 dated 4.4.1995 at Police Station Saddar Alipur under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377 PPC with the allegation that on 3.4.1995 he had gone from Multan to the house of his maternal uncle in Tibbi Arain. On 4.4.1995 he was returning back to his home at 12.00 at noon. In a garden he was surprised by Asbiq Hussain and Ghulam Shabbir petitioners-accused who removed him to an other garden. Ashiq Hussain was armed with a pistol. They threatened him. His Shalwar was removed. Both Ashiq Hussain and Ghulam Shabbir committed carnal intercourse against the order of nature. Ghulam Muhammad and Muhammad Yar PWs are said to have been attracted at the spot on bis alram. The accused persons made good their escape. The case was investigated. The bail plea of the petitioners has been rejected by the lower Court Hence this petition with the same desire 2. I have heard the learned counsel for the petitioners as well as learned State counsel and gone through the record before me. Ghulam Muhammad P.W. is present before me alongwith his affidavit to the effect that he had not seen the occurrence and was not present at the spot In order dated 9.10.1995 as well it is mentioned that both the witnesses namely Ghulam Muhammad and Muhammad Yar had sworn in and submitted their affidavits to the effect that they had not seen the occurrence. However, no reliance was placed on the same on the ground that the swearing of the affidavits was the result of compromise with the child who was a minor. The view expressed by the lower courts is not in accordance with law. According to the dictum enunciated in Allah Bakhsh vs. Nazar Hussain Shah and another (1979 SCMR 137) when the PWs submitted their affidavits exonerating the accused person the case becames that of further inquiry and under Article 189 of the Constitution of Pakistan the subordinate Courts have to follow the dictum enunciated and the law expounded by the Supreme Court of Pakistan. Further according to me the complainant was surprised while passing the garden who was removed to some distance and such a removal may have to be analysed about the attraction of the offence of abduction for the purpose of sodomy as narrated under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the circumstances, the case of the prosecution against both these petitioners has become that of further inquiiy and they are held entitled to be admitted to bail. 3. I, therefore, accept this application and admit both Ashiq Hussain and Ghulam Shabbir petitioners-accused to bail in the sum of Rs. 25.000/- (rupees twenty five thousand) each with one surety each in the like amount to the satisfaction of the Additional Sessions Judge, Alipur/Sessions Judge, Muzaffargarh with the direction to appear before him when and where so required failing which their bail may be cancelled by the trial Court 4. Copy Dasti subject to payment of usual charges, if desired. & (K.K.F.) Application accepted.
PLJ 1997 Cr PLJ 1997 Cr. C.652 (Lahore) [Multan Bench] Present : karamat nazir bhandari, J. MUHAMMAD ASLAM-Petitioner Versus
STATE-Respondent Crl. Misc. No. 1403-B-96, accepted on 27.1.1997. (1) Bail- S. 497 Cr.P.°C.--Bail--Grant of-Prayer for-Offence under Section 302 P.P.C.~Grave and sudden provocation-Case of~As claimed in FIR it self, it seems to be a case of grave and sudden provocation where petitioners on finding his wife in a compromising position with her paramour, killed both of them--In there circumstances bail is allowed. [P. 653] A Altaf Ibrahim Qureshi, Advocate for Petitioner. Mirza Fayyazuddin Ahmad, Advocate for State. Date of hearing: 27.1.1997. order Muhammad Aslam, petitioner, is facing prosecution on a charge under section 302 PPC in the court of Additional Sessions Judge, Vehari, Camp at Burewala. The allegation against him, as reflected in FIR No. 383/95, dated 7.11.1995, registered at Police Station City Burewala, District Vehari, is that he killed his wife as well as her paramour Shabir Ahmad on seeing them in a compromising position on the same bed. During the trial five of the prosecution witnesses have been examined and each of them has resiled from his statement under section 161 Cr. P.C. and has been subjected to cross-examination. Even the complainant, father of the deceased Jamila, has disowned the occurrence and has stated that he knows nothing about it 2. The learned trial court has rejected the bail on the ground that Nazir Ahmad, father of Shabbir deceased has filled application under section 540 Cr. P.C. for summoning some witnesses and, in the circumstances, it cannot be said that the case against the petitioner is that of no evidence. The reasons stated by the court does not seem to be valid. On the present record and keeping in view the resiling statements, the prosecution is left with no evidence connecting the petitioner with the commission of crime. Even otherwise, as claimed in the FIR itself, it seems to be a case of grave and sudden provocation where the petitioner on finding his wife in a compromising position with her paramour, killed both of them. 3. In the circumstances, I am inclined to allow this application and direct that on petitioner's furnishing bond in the sum of Rs. 50.0QQ/- with one surety in the like amount to the satisfaction of the trial court, the petitioner shall be released on bail in this case. (ICA.B.) Bail is allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 654 [Multan Bench] Present : tassaduq hussain jillani, J. MIAN KHAN-Petitioner versus STATE-Respondent Cri. Misc. No. 1714-B-1996, accepted on 6.2.1997. Criminal Procedure Code, 1898-- -S. 497-Bail~Grant of--Prayer for--Offence under sections 324/452/365/148/149/337-A-11 PPC--It is not denied that in private complaint field by co-accused qua same incident complainant party has been summoned-Petitioner is in jail for last eight months and not a single witness have been examinedAll co-accused are on bail is admitted to bail. [P. 655] A Altaf Ibrahim, Advocate for Petitioner. Mehr Muhammad Saleern, Advocate for State. Date of hearing: 6.2.1996. order Petitioner seeks bail in a case registered vide FIR No. 2/96 dated 1.1.1996-under sections 324/452/365/148/149/337-A-H PPC PS Saddar Pakpattan Sharif. 2. The prosecution story briefly stated is that on 31.12.1995 at about 8 a.m. when the complainant was sitting alognwith two others was attacked by Mian Khan petitioner, Nazir Ahmad, Muhammad Munir and Muhammad Bashir armed with sotas, Hakim Ali armed with hatchet, Mst. Shahida armed with sota and two unknown persons also armed with sotas. Mian Khan petitioner raised a lalkara that Jan Muhammad be taught a lesson for disgracing Mst. Shahida Bibi his wife. The complainant was caught hold by Muhammad Munir, Muhammad Bashir and Hakim All and was taken towards the house of Mian Khaa where he was belaboured by Hakim AM accused with hatchet Muhammad Munir also gave sota blow which landed oa his right shoulder. Muhammad Bashir gave him sota blow which bit on his right eye whereas the sota blow of Miaa Khan petitioner landed oa his left eys. Nazir also gave Mm beating. Complainant's mother Mst. Sardsran Bibi was given a sota blow on head by Mian Khan petitioner. She fell down and the two unknown persons gave her another sofa blow. Waris AM a son of the complainant was given a sota blow by Mst. Shahida Bibi and the complainant was locked up ia the house. The motive alleged is that a day prior to the day of occurrence there was an altercation between Mst Shahida Bibi wife of the petitioner and Mst. Haasainan Bibi sister of the complainant. Mian Khan, on that grudge, attacked the complainant party. 3. Learned counsel for the petitioner seeks bail on the ground that the petitioner was victim of attack and he received six injuries which have been suppressed; that as the police refused to register a case a private complaint was filed by Munir Ahmad co-accused in the afore-referred case and the complainant parly have been summoned'for 19.2.1997. He further adds that the injury attributed to the petitioner does not fall within the _ prohibitory clause of section 497 Cr. P.C. and that all the co-accused are on bail and the petitioner is in jail for the last eight months without any trial in sight Learned State counsel on the other hand has opposed the prayer for bail by submitting that the offences alleged fall within the prohibitory clause of section 497 Cr. P.C. and there is no justifiable reason to release the petitioner on bail at this stage. I have heard learned counsel for the parties and have also gone through the record. 6. It is not denied that in the private complaint filed by Munir Ahmad co-accused qua the same incident the complainant party has been summoned. The petitioner is in jail for the last eight months and not a single witness have been examined. All the co-accused are on bail. In view of the above I am inclined to admit the petitioner to bail provided he furnishes bail beads in the sum of Rs. 20.0QO/- with one surety in the like amount to the satisfaction of Magistrate Section 30 concerned. Copy dasti. (KJLB.) ' Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 656 [Multan Bench] Present : mrs. fakhar un nisa khokhar, J. MUHAMMAD SIDDIQUE eta-Petitioners
versus STATE-Respondent Crl. Misc. No. 1180-B-96, accepted on 22.1.1997. Bail- S. 497 Cr.P.C.--Murder case-Bail-Prayer for~Further inquiry-Case of- Since trial is not in view and it is still to be established whose fire hit injured witnesses, out of three accused, nominated in the FIR and this makes petitioner's case of further inquiry; investigation is complete and challan is sent up; no injury to deceased is attributed to petitionerBail allowed. [P. 657] A Altaf Ibrahim Qureshi, Advocate for Petitioners. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 22.1.1997. order The petitioners have applied for post arrest bail in case FIR No. 562/94 dated 6.12.1994 registered under sections 302/324/34 PPC at Police Station Noor Shah, District Sahiwal. His bail petition was dismissed by the learned Additional Sessions Judge, Sahiwal vide order dated 18.6.1996. From the very ouset learned counsel for the petitioners does not to press the petition of Muhammad Siddiq petitioner No. 1 which is dismissed as withdrawn. In respect of petitioner No. 2 (Shafqat Ali) learned counsel for the petitioner submits that the allegation in the FIR against him is that he alongwith Iqbal and Jabbar fired at PWs Haq Nawaz and Noor Ahmad and it is still to be established whose fire hit the injured P.Ws and the maximum punishment provided under the law which is section 337-F(iii) PPC is 3 years; the petitioner is in the judicial lock up since 7.2.1995; still it is not in view that when the trial of the petitioner will commence; the petitioner ib 17 years old according to the police record and his whole family stands roped in the instant murder case. 4. Learned State counsel submits that Shafqat's participation is shown in the FIR and the injured P.Ws supported the prosecution version. 5. Since the trial is not in view about the instant case and it is still to be established whose fire hit the injured witnesses, out of three accused, nominated in the FIR and this makes petitioner's case of further inquiry; investigation is complete and the challan is sent up; no injury to the deceased s attributed to the petitioner, herefore, he is admitted to bail in the sum of s. 2,00,000/- (Rupees two lacs only) with two sureties in the like amount to the satisfaction of the learned Sessions Judge, ahiwal. (K.A.B.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 657 [ Multan Bench] Present: muhammad iqil mirza, J IMRAN etc.--Petitioners versus STATE-Respondent Crl . Misc. No. 924/B-96, accepted on 26.11.1996. Criminal Procedure Code, 1898 (V of 1898)- —S. 497--Bail-Grant of--Prayer for--Offence under Section 377 PPC and 12 Offence of Zina (Enforcement of Hadood ) Ordinance VII of 1979-In view of the fact that report of chemical examiner does not support prosecution case and the petitioners are students of 9th class-Bail allowed. [P. 658] A Muhammad Rafique and Mehr Naeem , Advocates for Petitioners. Altaf Ibrahim Qureshi , Advocate for Complainant. Sh . Muhammad Rahim , Advocate for State. Date of hearing: 26.11.1996. order Bail is sought in a case registered under Section 12 of Ordinance 7 of 197 ,9 and Section 377 PPC. The three accused persons are allowed to have committed sodomy with Muhammad Ajmal who is son of the complainant. 2. It is submitted by the learned counsel that all the petitioners are students studying in 9th class and they are less than 16 years of age. Similarly, Muhammad Ajmal with whom sodomy is alleged to have been committed is student of 9th class. It is further submitted that the swabs sent to the Chemical Examiner have not been found to stained with semen. According to the learned counsel it is a case of further inquiry as to whether the act of sodomy has been committed or not. The fathers of all the three accused persons are present in court. On the last date of hearing they had offered to go to the village of the complainant for the purpose of seeking forgiveness from the father of Muhammad Ajmal , even though, according to them, the offence has not been committed by their sons. Muhammad Taqi complainant alongwith his son is present in court. He states that the fathers of the petitioners had sought forgiveness from him in a room. He further states that forgiveness should have been sought in some open assembly, so that people of the village could have known this fact. In open court today, the fathers of all the three accused persons have sought forgiveness from Muhammad Taqi as also from his son. In order to restore the honour of Muhammad Taqi and his son as a condition for grant of bail it is directed in the interest of justice, that the fathers of all the accused persons will go after Zohar Prayer in the Jamia Masjid of village Nanakpur on 27.11.1996 and offer apology, as desired by the complainant I Be that as it may, in view of the fact that report of chemical examiner does not support the prosecution case and the petitioners are students of 9th Class, this application is allowed. The petitioners are admitted to bail in the sum of Rs . 20,000/- each, with one surety each, in the 'like amount to the satisfaction of Judicial/ Illaqa Magistrate, Pakpattan ., Nothing said herein shall prejudice the case of either party on merits. (K.A.B.) Bail is allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 658 [Multan Bench] Present: tassaduq hussain jilani, J. GHULAM ABBAS etc.-Petitioners versus STATE-Respondent Crl. Misc. No. 1/96 in Crl. Appeal No. 164/94, accepted on 12.2.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 426~Sentence--Suspension of--Prayer for--0ffence under Sections 302/34 PPC--Right of suspension of sentence on statutory ground is not a right which becomes automatically available to a convict if appeal is not decided within a period stipulated in S. 426--Grant or refusal of suspension of sentence is a discretion of court but said discretion has to be exercised judicially and afore-referred provisions mandates that court I may refuse to suspend sentence for reasons recorded--In this case r however- no reason has been furnished neither by state or by learned counsel for complainant to refuse relief sought-Merely fixing appeal instead of disposing of an application for suspension of sentence had not been found to be a valid ground to refuse bail-Petition accepted. [Pp. 659 & 560] worth consideration but his eye-witness account of murder of deceased seems to be doubtful because in his own version while receiving injury on his shoulder he fell down and it is yet to be clarified that he was in a position to go and see venue of murder at a distance of 256 paces from place where he sustained injury-Matter is of further enquiry-Bail granted. [P. 673] A Mr. Muhammad Karim Anjum, Advocate for the Petitioner. Mr. Samiullah Khan, Advocate for State. Mr. S. Zafar Abbas Zaidi, Advocate for the Complainant. The petitioners who were charged for an offence under section 302/324/34 PPC read with Section 13 Arms Ordinance vide case FIR No. 330, P.S. Cantt:, D.I. Khan on 1.7.1996, were refused bail by the Judge Special Court on 26.8.1996, and through the instant petition they are seeking concession of bail under sections 497/498 Cr.P.C. read with Section 5-A(8) S.T.A. Act, 1975. Facts as reported in the FIR are that on 1.7.1996 at 7.45 hours Sher Khan the injured complainant lodged a report on the spot that on the same day at 7.45 hours he left his house and was going through motor cycle to his shop known as Yaseen Sports situated in Rahim Bazar D.I. Khan. When he reached the State lands cultivated by Karim Bakhsh, the three accused, namely, Allah Wasaya 'absconding accused', Muhammad Ramzan and Haqnawaz petitioners were standing duly armed with Klashnikoves and on seeing the complainant all the three opened fire at the complainant with intent to kill him. As a result of the said firing he sustained injury on his left shoulder and fell down from the motor cycle. The complainant took shelter in the house of Akram Baloch. After a few moments the complainant heard fire shots. He ran towards the destination and saw that all the three accused were firing on his brother Gul Zaman who was on the way from his night duty. The accused fled away after the occurrence. The complainant noticed that Gul Zaman was murdered due to the said firing. It was disclosed in the report that occurrence was witnessed by Zulfiqar, Muhammad Bilal & Haqnawaz S\O Allah Bakhsh. The motive for the occurrence was reported to be an altercation between the accused and one Shah Jehan brother of the complainant. In the said altercation the accused threatened to kill him. The learned counsel for the petitioners submits that the report in the instant case was lodged on the spot after half hour of the occurrence. Although it is stated in the FIR that after receiving a telephonic message about the occurrence in the Police Station, the ASI who is author of the report/Afuras/7a has not reduced it into writing the telephonic message which was infact the first information received in the Police Station about the occurrence. The learned counsel further submits that the eye-witnesses mentioned in the FIR have not supported the version of complainant in toto. All the three witnesses have not mentioned the name of Muhammad Ramzan accused as assailant in their statements under Section 161 Cr.P.C. P, W. Haqnawaz has said nothing about the injury caused to the complainant rather the name of complainant is no where mentioned in his said statement. P.W. Haji Zulfiqar through affirmed the injury sustained by Sher Khan complainant but has not deposed that from whose firing Sher Khan received the injury. The learned counsel for the petitioners further submits that Sher Khan complainant had received single shot injury. The site plan shows that complainant was at a distance of 6 paces from the accused 3 in number allegedly armed with Kalashinkoves and the version of the complainant is improbable not only against his own injury but also witnessing the subsequent firing at the deceased at a distance of 256 paces. No empties were recovered from points 2, 3 & 4 where the accused were allegedly present while firing at the complainant. However, empties were ^ recovered for point No. 10 lying near the places where accused are shown to have fired at the deceased. 4. In view of these facts, the learned counsel for the petitioner is of the view that the case against accused-petitioners require further enquiry and atleast the case of accused Muhammad Ramzan who has not been mentioned in the statements of eye-witnesses recorded under Section 161 Cr. P C. 5. The learned counsel for the complainant submits that all the three accused have brutally murdered the deceased and have effectively attempted at he life of the complainant. It is a day light occurrence and the sole statement of injured complainant is sufficient to establish aprima facie charge of murder and attempt of committing murder against the accused. He - further submits that report of complainant has got corroboration from the recoveries on the spot and the medical and inquest reports. The learned State counsel supported the version of the complainant's counsel and submitted that even if one injury was stamped on the body of complainant, all the three accused were vicariously liable for the offence. The absconding accused Allah Wasaya was arrested in the case but fled away from the police custody which shows the conduct of accused and argued that if the concession of bail is extended to the accused-petitioners they may abscond and avoid the trial. 6. I have gone through the record with the assistance of learned counsel for the parties and have given my anxious consideration to the submissions made at the Bar, The case of Muhammad Ramzan accused is at ifferent footings than Haqnawaz as Haqnawaz Accused-petitioner is not only charged by the complainant but by the all the eye-witnesses. While none of the eye-witnesses has mentioned the name of Muhammad Ramz n as assailant. Since Sher Khan complainant has received only one injury on his person and he has not specifically charged any of the accused among the three although all the three accused have been shown at a distance of 6 paces. 7. The version of complainant vis-a-vis his own injury is worth consideration but bis eye-witness account of murder of deceased seems to be doubtful because in his own version while receiving injury on his shoulder he fell down and it is yet to be clarified that he was in a position to go and see the venue of murder at points 11,12 & 13 at a distance of 256 paces from the place where he sustained injury. In this view of the matter without going into deep merits of the case and on tentative assessment of the available record, I hold that the case of Muhammad Ramzan alias Babbar Sher accused requires further enquiry and is entitled to be released on bail. Further keeping in view the charge of murder and attempt at the life of complainant vis-a-vis Haq Nawaz has got sufficient material and if left un-rebutted at the trial, Haq Nawaz could be held guilty of the offence. Therefore, the bail prayer of Haq Nawaz accused-petitioner is rejected whereas Muhammad Ramzan alias Babbar Sher accused-petitioner is released on bail provided he furnishes bail bond in the sum of Rs. 1,00,000/- with three sureties each in the like amount to the satisfaction of MIC/MOD. (M.G.B.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 673 [DB] Present: WAJIHUDDIN AHMED AND HAMID ALI MlRZA, JJ. KAMRAN alias GHULAM RASOOL alias KALOO-Applicant/Accused versus STATE-Respondent Crl. B.A. No. 999 of 1996, accepted on 15.8.1996. (i) Bail- S. 497 (1) Cr.P.C.--Bail-Grant of-Prayer for-Offence u/S. 5-A (8) suppression of Terrorist Activities (Special Courts) Act, 1995-Recovery of .30 bore pistol-Bail application-In element of discretion vest in court in prohibitory clause of S. 497 Cr. P.C. and such must be deemed to vest in cases falling under Section 5A(8) of 1975 statute-Prohibition for grant of bail extends only to such cases, where reasonable ground exist for believing that an accused in guilty of commission of relative offence- Where such reasonable ground does not subsist, discretion of court should come into play with full force [P. 677] E 1995 P.Cr. L.J. 297 ref. (ii) Bail-- -S. 497 (1) Cr.P.C.-Bail-Grant of-Prayer for-Offenee u/S. 5-A (8) suppression of Terrorist Activities (Special Courts) Act, 1995~Bail after arrestIt cannot be said thai a delayed trial may not be used to extend relief of ball to accused as 1975 statute is a special law~An accused would be entitled to benefit of statutory delay as terminology in section 5A(8) of 1975 statute is synonymous with prohibitory clause in S. 497 Cr. P.C. and principles for grant of bail in either provision have to be equally stringent-Bail granted. [Pp. 679 & 680] G & H (iii) Constitution of Pakistan, 1973-- -Art. 189-Whether a judgment of supreme Court not certified for report ing, does not tantamount to law declared-Question of-Any question of law, decided by Supreme Court, constitutes law declared within meaning of Article 189 and all courts are bound by that declaration-It is immaterial whether a particular case has been reported or not or has been certified to be reported or not and so long as a question of law is decided by Supreme Court, that constitutes a declaration of law. [P. 680] I (iv) Criminal Procedure Code, 1898 (V of 1898)- -S. 1 OS-Search of person-Whether provisions of Section 103 Cr.P.C. are limited to search of a place as distinct from search of a person-Question of-RuIe incorporated in S. 103 strictly applies to search of a place, but in practice has been extended also to personal searches-Object is to forestall chicanery, manipulation and concoctionRule being a rule of procedure rather than evidence and based on principles of equity, justice and good conscienceWhere a person is to stand ondemned or exonerated solely upon recoveries made from him, it may amount to going to contemplate a conviction totally based on evidence of police functionaries, except where a cogent and plausible explanation for such exclusive evidence is forth coming-Acceptance of evidence of police may amount to making prosecution itself judge of its own cause-In such cases, it would be difficult to say that such cases would not qualify as cases requiring further enquiry. [Pp. 675 & 676] A to D. 1990 P.Cr. L.J. 1689, PLJ 1996 SC 396, PLJ 1996 SC 1323 ref. (v) Suppression of Terrorist Activities (Special Courts) Act, 1975- -S. 8-Recovery of .30 bore pistol-Burden of proof-Whether burden of proof shifted from prosecution to accused under special Act, 1975- Question of-This presumption depends upon an ex facie proof of "possessions" "control" or apprehension in circumstances raising a "reasonable suspicion"-Reasonableness linked with objective satisfaction of Court-These are essentially matters for trial-However, in order to allow presumption to arise may also be examined tentatively for purpose of bail. [P. 679] F Mr. Arshad Lodhi, Advocate for Applicant Mr. Muhammad Sowar A.A.G. for State. Date of hearing: 15-8-1996. order We have heard the learned counsel. The facts of the case need not be reproduced in any great detail as the same find due mention in the order of the learned Presiding Judge of the Special Court dated 9.6.1996. Recovery is of a .30 bore pistol together with a magazine containing two bullets. Mashirs are police officials alone while the rule codified in Section 103 Cr. P.C., at least for the purposes of bail, has been extended to personal recoveries as well for which ready reference may be made to Ashiq Hussain Shah v. State, 1990 ALD 20 (Lahore S.B.) and Zulfiqar v. State, 1981 P.Cr. L.J. Note 275 (Lahore (D.B.)). Since recovery was made at 1850 hours in a populated locality it, therefore, remains to be seen whether conditions subsisted for bypassing the requirements in the principles underlying Section 103 Cr. P.C. As against the foregoing proposition, it has been pointed out by Mr. Muhammad Sarwar, A.A.G., that, in their pristine form, the provisions of Section 103 C. P.C. are limited to the search of a place as distinct from search of a person, the last of which is hot visualized in the section. Our attention has been drawn to the Supreme Court dictum in Mushtaq Ahmed v. State, PLD 1996 S.C. 574, where, while summarising the position emerging under Section 103 Cr. P.C. it has been observed : "Section 103 Cr, P.C. relates to a search of a place situate in a locality and not a search of a person". This obviously summarises the codified rule in Section 103 Cr. P.C. None-the-less, the rule itself is a time honoured rule of prudence and carries an obvious element of caution. An examination of Mumtazuddin v. State, PLD 1978 S.C. 114, Muhammad Afzal v. State, 1983 S.C.M.R. 1, Sultan V. State, 1987 S.C.M.R. 1177, Yameen Kumhar v. State, PLD 1990 Karachi 275, Yar Muhammad v. State, 1992 S.C.M.R. 96, and Mirza Shah v. State, 1992 S.C.M.R. 1475, would lead to the conclusion that recoveries in many a case, at times constituting direct or only evidence in a case and at others corroborative evidence, have to be viewed with great circumspection. While, undoubtedly, the role incorporated in Section 103 Cr. P.C., strictly applies to search of a place as distinguished from search of a person, such is one of common sense and prudence and in practice has been extended also to personal searches. The object is obvious namely, to forestall chicanery, manipulation and concoction. Thus in Muhammad Azam v. State, PLD 1996 S.C, 67, apparently, the only five member bench Supreme Court case on the subject, while it was said that the requirement in Section 103 Cr. P.C. of examining two witnesses from the locality would not apply to a running vehicle, the observation was conditioned by the vehicle being "stopped at some place where there are no house in the vicinity and search is made for the purpose of recovery. Even so, as laid down in Muhammad Khan v. DotMuhaxvnad,¥LDlfft5 S.C. 607, Rehan v. State, 1976 S.C.M.R. 72, Muhammad v. State, PLD 1981 S.C. 635, Shabbo v. State, PLD 1990 S.C. 1083, Tasleem Khan v. State, PLD 1990 S.C. 1088, Syed Muhammad v. State, PLD 1990 S.C. 1176, Zardad v. Sate, 1991 S.C.M.R. 458, Arshad Zubair v. State, 1993 S.C.M.R. 2059, Zakir Khan v. Store, 1995 S.C.M.R. 1793, and Muhammad Azam v. State, PLD 1996 S.C. 67, each case of compliance or otherwise with the mandate in Section 103 Cr. P.C. has to be judged on its own facts and circumstances. Thus, not to mention situations where mere principle in Section 103 Cr. P.C. is invoked, as in relation to personal searches, even where the pristine provisions of the rule apply, a bare absence of two independent respectable witnesses of the locality for the search may not be fatal in all cases nor vitiate the proceedings ipso facto. If explanation is forthcoming such as constraints of lime and place, urgency of the occasion or even unwillingness of those expected to attest recovery in line with Section 103 Cr. P.C., the court is expected to give due credence to all admissible evidence. Reliance on the point may be placed on Javed Sheikh v. State, 1990 P.Cr. L.J. 1689. Of the reluctance/non-availability of those expected to associate with recoveries, common examples would be cases of robbery, dacoity, kidnapping for ransom etc. The over-all impression gathered from the long line of authority, therefore, is that while the pristine concept in Section 103 Cr. P.C. applies to searches of places alone the rule has been extended to personal searches as well, the rule being a rule of procedure rather than evidence and based on the principles of equity, justice and good conscience. Indeed, where a person is to stand condemned or exonerated solely upon recoveries made from him, it may, on principle, amount to going a little too far to contemplate a conviction totally based on the evidence of police functionaries, except where a cogent and plausible explanation for such exclusive evidence is forthcoming. Such may consist, inter alia, of the search being conducted at a time where no independent witnesses could be available or at a place, which was absolutely deserted or found virtually uninhabited. Explanation may even be that no independent respectable person of the locality, when the personal search came to be conducted, was prepared to witness the recovery but then credible basis for such a plea may have to be laid. In matters of recoveiy from a person, which recovery alone may constitute evidence in a cause, such as that occasionally failing under the Arms Ordinance to, unreservedly, accept attesting evidence of police functionaries alone, may indeed amount to making the prosecution itself judge of its own cause, something which is impermissible according to the basic norms of administration of justice. As is only too well known, no one can be judge in his own cause. Therefore, we are inclined to think that no blanket cover is envisioned for recoveries being witnessed by police officials alone, particularly where the entire evidence in a case comprises of such evidence simpliciter. Doubtlessly, matters of this genus shall have to come up for closer scrutiny when the trial unfolds and then the rule laid down in Javed Sheikh v. The State, 1990 P.Cr. L.J. 1689, as, apparently, approved in Muhammad Azam v. State, PLD 1996 S.C. 67, may be invocable. Even so, in cases of recovery where police witnesses alone figure in the attestation, it would be difficult to say, upon the existing dicta, that such cases would not qualify as cases requiring further inquiry, The next contention of Mr. Muhammad Sarwar, A.A.G., is that Section 5A(8) in the Act is couched in negative language and where negative language is employed in a statute, the act required to be done is to be done in the particular manner alone and not otherwise, A Bench of this Court had occasion to examine such question in Mumtaz v. State, 1995 P.Cr. L.J. 297, and the conclusion was that the phraseology used, conditioning and controlling the grant of bail in Section 5A(8) of the Suppression of Terrorist Activities Act and in the prohibitory clause in Section 497(1) Cr. P.C. was substantially similar. This leads to an inference that where bail cannot be granted under the prohibitory clause, aforesaid, in like manner, it cannot be granted in cases covered by Section 5A(8) ibid. However, in the said prohibitory clause under Section 497(1) Cr. P.C. an element of discretion still vests in the court and such, likewise, must be deemed to vest in cases falling under Section 5A(8) of the 1975 statute. Another common aspect of these two provisions in that the prohibition for the grant of bail extends only to such cases, where reasonable ground exists for believing that an accused is guilty of the commission of the relative offence complained of. Where such reasonable ground does not subsist, the discretion of the court should come into play with full force. This, we think, is a complete answer to the argument advanced. Another aspect, which must be referred to in the context of Section 5A(8) above is the subsistence of Section 5A(1) £ (2) in the same Act, requiring that the trials under the Act are to proceed from day to day and no adjournment is to be granted except where that is in the interest of justice, with a further rider that no adjournment shall extend beyond the period of two days at a time. Because sub-section (8) of Section 5A in the Suppression of Terrorist Activities (Special Courts) Act, 1975, follows upon sub-sections (1) and (2) of the name section, in order to cater to the prohibition in the grant of bail under such sub-section (8) it is expected to be ensured that the trial has substantially conformed to the mandate in sub-sections (1) and (2) of Section 5A. If that be not so that prohibitory provision in sub-section (8) of the Section would, to that extent, stand diluted. This, therefore, is another principle, which is to be kept in mind while considering bail applications, covered by Section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. We are fortified in this view by a Full Bench decision of this court in Abdul Khalique v. State, PLD 1990 Karachi 448. That was also a case under the Suppression of Terrorist Activities (Special Courts) Act, 1975. There, while this court found power to suspend a sentence on appeal barred under Section 7 of the Act, it, inter alia, concluded that where such an appeal could not be taken up and decided within the time prescribed, the prerogative under Section 561-A Cr. P.C. could be resorted to. Relevant passage from the judgment is this :- Tor the facts and reasons mentioned above, on the question of interpretation of section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, my considered view is that this section clearly provides that from conviction under the said Act appeal can be heard by a .Division Bench of the High Court but during the pendency of the appeal jurisdiction is barred in respect of suspension of sentence and grant of bail under section 426, under section 491 and under section 498, Cr. P.C. as well as no order can be passed under revisional jurisdiction nor any 'order can be passed with regard to transfer of a case from Special Court. This construction is so placed on section 7 in the said Act keeping in view preamble of the Act and other provisions, which manifest the intention of the legislature that cases of sabotage, subversion and terrorism in the scheduled offences are to be tried speedily and their appeals are also to be disposed of expeditionary within three months. For that reason, legislature intently has deprived Court of Appeal from power of grant of bail under section 426 Cr. P.C. during pendency of appeal. Since inherent jurisdiction of the High Court under section 561-A Cr. P.C. is neither specifically barred nor impliedly, the same is available to pass such orders which may be necessary to give effect to any order under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice in appropriate case of hardship. Hardship case may include a case in which appeal is not disposed of within three months or order of bail is to be passed in order to secure the ends of justice." In the instant case, 'the learned counsel for the applicant maintains that while the arrest was made on 11,5,1996, let alone evidence being rendered even the charge has not yet been framed. Yet another argument of the learned counsel for the State is that Section 8 of the special law has shifted the burden of proof from the prosecution to the accused. Such section, however, is not in absolute terms. For facility of reference, we may here reproduce Section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which js as under :- "8. Burden of Proof. --Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under Ms control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact, committed the offence." It will at once he seen that the presumption under the section arises only if "possession" or "control" of the weapon is established or the accused "is apprehended in circumstances which tend to raise a reasonable suspicion that he has committed such offence", in which even "he shall be presumed to have committed the offence unless he can prove that he has not in fact committed the offence". The presumption, therefore, depends on an Ex Facie proof of "possession", "control or apprehension in circumstances raising a "reasonable suspicion". Reasonableness, in turn, is linked with objective satisfaction of the court,. These are essentially matters for trial. However, compliance with procedural requirements, in order to allow the presumption to arise may also be examined tentatively for the purpose of bail. It has also been argued for the State that grant of bail is not to be considered favourably under Section 5A(8) above, solely on account of delay, if any, in the conduct of the trial and if benefit of delay is to be extended then, in accordance with the dictum in Qaim Ali Shah's case, the delay must be equal to the statutory requirements in the applicable provisos of Section 497(1) Cr. P.C. As said earlier, the 1975 statute is a special law and while, undoubtedly, in view of the dictum in Qaim Ali Shah's case, an accused would be entitled to the benefit of statutory delay, it cannot be said that a delayed trial, in patent disregard of sub-sections (1) and (2) of Section 5A of the Suppression of Terrorist Activities Act, may not be used to extend relief of bail to the affectee under Section 5A (8). We may add that if the various postulates in the special law and, more particularly, under Section 5A(8) of the Act are to be given effect to, an prescribed, then all such requirements, including those under sub-sections (1) and (2) of Section 5A and Section 8, regarding ex facie proof and recovery, have also to be strictly adhered to and if the various steps in the proceeding do not, satisfy the mandates in the Act, surely, the discretionary benefit of bail under Section 5AC8) cannot alone be conditioned and relief denied to an accused person, Furthermore, the rule invoked in the Supreme Court per Ejazur Rehman v. State (Criminal Petition No. 140/95 converted into Criminal Appeal No. 445/95) also comes into play where the prosecution falls under the Arms Ordinance. The rule laid down in Ejazur Rekman's ease is as follows :- "8. We have decided to refrain from dilating oa lie respective contentions raised by the learned counsel' for the parties. The offence with which the appellant stands charged, prima facie, falls under section 13(d) of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven years. In either case, the offence does not fall within the prohibitory clause of section 497(1) Cr. P.C. We would accordingly allow him bail and direct that the should furnish bal in the sum of Rs. 50,000.00 with one surety to the satisfaction of the trial Court" The learned A.A.G., however, has urged that under Section 5A(8) ibid, there is no concept of quantum of punishment whatsoever as in Section 497(1) Cr. P.C. and, therefore, the discretion based on a lesser quantum of punishment is not attracted to the case falling under the special law. There may be some substance in the argument because respectfully, as we have stated, the terminology in Section 5A(8) of the 1975 statute is synonymous with the prohibitory clause in Section 497(1) Cr. P.C. and the principles for grant of bail in either provision have to be equally stringent. This, with respect, aries because a scheduled offence, falling under Section 5A(8) of the Act is equivalent to an offence covered by the prohibitory clause in Section 497(1) Cr. P.C. and the punishment involved for a scheduled offence, even though lesser, may attract similar treatment, as visualized by the prohibitory clause in Section 497(1) Cr.P.C. However on that question, we can say no further and are bound by Article 189 of the Constitution to follow the dictum in Ejazur Rehman's case supra. Even as to such case of Ejazur Rehman, Mr. H Muhammad Sarwar Khan, A.A.G. has argued for the Sate that their Lordships have not certified such case for reporting and, therefore, the same does not tantamount to law declared. This is rather far-fetched. Any question of law, decided by the Supreme Court, constitutes law declared within the meaning of Article 189 of the Constitution and all courts are bound by the declaration. It is immaterial whether a particular case has been reported or not or has been certified to be reported or not and, so long as a question of law is decided by the Supreme Court, that constitutes a declaration of law, binding on all courts, including this court. We cannot, therefore, ignore of side-track the dictum in Ejazur Rehman's and shall have to act thereupon. For all the aforesaid reasons, we find the applicant entitled to grant of bail and admit him to the same in the sum of Rs. 50,000.00 with P.R. Bond in like amount to the satisfaction of the trial court. (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C (Lahore) 681 [FB] Present: IHSAN-UL-HAQ chaudhary, malik M. qayyum and khalil-ur-rehman ramady, JJ. HAFIZ ABDUL WAHID-Petitioner versus Mrs. ASMA JAHANGIR and others-Respondents Crl. Misc. No. 425-H of 1996, Crl. Misc. No. 435-H/96 and WP No. 6468/96 decided as per majority view on 26.33.97 also decided WP Nos. 2620/96, 7514/96, 8288/96, 6063/96,1153/96 and 8921/96). (i) Constitution Pakistan, 1973- Chapter 3-A of Part Yll-Whether judgments of the Federal Shariat Court is binding on High Court-Question of-Held : An appeal from judgment of criminal court cited as PLD 1981 FSC 308 dealt by the Federal Shariat court not under this chapter, therefore, the decision in appeal is not binding on High Court-Held further : That Federal Shariat court only enjoys revisional jurisdiction in respect of the cases decided by the criminal courts under any law relating to the enforcement ofHudood but no appeal has been provided in this Chapter-The intention of the Legislature clearly seems to be not to make a judgment passed in criminal appeal by the Federal Shariat Court binding on this (High) Court~Per : Ihsan-ul-Haq Chaudhary, J.--(Minority view). [Pp. 721 & 722] P & Q PLD 1981 FSC 308 Discussed. (ii) Constitution Pakistan, 1973- Article 35-It is the foremost duty of government to provide Institutions where females and children could be lodged pending decision of court matter-Such institutions should cater not only for boarding and lodging facilities for inmates but also for job, vocations, according to their education and experience-Institutions should also report to District judge and police within 24 hours to arrival of anyone (girl etc.) in such institutions--Per: Ihsan-ul-Haq Chaudhary, J.. [Pp. 720 & 721] 0 (iii) Constitution Pakistan, 1973- Article 203DD (3) of Chapter 3-A of Part VH-Article envisages conferment of any other power by law upon Federal Shariat Court and as such it cannot be said that appellate jurisdiction in exercise of which judgment cited as PLD 1981 FSC 308 was delivered by the Federal Shariat Court was outside the contemplation of Chapter 3-A of the Constitution-Held: Judgment is binding on this (High) Court--Per : Malik Muhammad Qayyum, J, [P. 731] BB (iv) Equity- Discretionary relief in equality is available only to those who approach a court of law with clean hands-Person having acted in a manner not honourable or having acted in breach of the established social and moral norms of the society, disentitle themselves to any relief in equityPer : Khalil-ur- Rehman Ramedy, J. [P. 762] GGG (v) Family- -Family-Significance of in human life-Family is basic sphere of human activity-Child normally is said to learn good manner, discipline and follow religion which he finds his parents and other members of family practising or following-Therefore, all religions have laid special emphasis on preservation, strengthening and protection of family-Per : Ihsan-ul- Haq Chaudhry. Books referred: (i) A hand book of Sociology by William F. Ogburn and Meyer F. Nimkoff-Referred. (ii) The Age of Faith by Will Dur&nt-Ref. (iii) A History of Medieval Civilization-Christian, Islamic and Judaic from Constantine to Dante" (A.D. 3325-1300) ref. (iv) Muqaddama Ibne Khaldoon by Allama Abdul Rehman Ibne- Khaldoon Almaghrabi (7332 AH to 808 AH). [P. 699] A (vi) Family-- -Family-Rights and obligations in Islam-Rights and obligations in Islam are not according to sex but according to its contribution to family- Rights and liabilities of members of family are not as male and female, girls and boys men and women but are with reference to their status in the family namely, father, mother, husband, wife brother and sister- Family life with reference to sex would not be justified-Per : Ihsan-ul- Haq Chaudhry, J.. [P. 702] B (vii) Law-Interpretation of- Interpetation-Rule of-View which is in line with moral standards of society is to be accepted-Judges are not debarred from giving their own opinion in the matter for which there is no direction in Holy Qur'an as well as there is no hadith to guide Umma and there is difference of opinion between various Imam Muhaddaseen and jurists. [P. 718] K PLD 1967 SC 97 and PLD 1993 SC 901. ref. (viii) Marriage- Marriage-Parents are responsible for marriage of children generally and girls particularly-This is not only in Islam but recognised by all religion-- Per: Ehsan-ul-Haq Chaudhry, J. Encyclopaedia of Religion and ethics by James Hastin'gs, discused. DP, 702] C (ix) Marriage-- Marriage-Duty of parents-It is the duty of parents to marry the children particularly girls at the earliest point of time-They should not afford opportunity to outsider in the house or outside to come across young girl may be visitors, servants, drivers of public conveyance-It is absolutely essential to preserve purely of homes and this is why much emphasis have been laid by Islam that females should not mixing with males-Per: Ehsan-ul-Haq Chaudhry, J. [P. 720] N (x) Marriage- Whether a Muslim adult girl can marry without consent of her wali- Question of-Runaway marriages are abhorrent and against norms of our society and must therefore be deplored-No principle is available on the basis of which it can be held that Nikah of sui juris Muslim girl without consent of her wall would be invalid-However, nature of marriage and the manner in which it has been performed may be relevant consideration for granting or withholding relief in a matter in which courts of law are called upon to exercise discretion-Per : Malik Muhammad Qayyum, J. , [P. 730] AA (xi) Marriage- Islam abhores establishment of liaison between men and women and court ships, pre-marital relationship, secret friends and secret marriages are forbidden in Islam-Per : Khalil-ur-Rehman Ramday, J. [P. 762] CCC (xii) Marriage- Parents and family have a definite importance and place in social set-up ordained by AllahIt is not possible to hold that parents or family could have a right to force someone to marry a particular individual yet they have a right to be consulted and their wishes were entitled to respect- Per: Khalil-ur-Rehman Ramday, J. [P. 762] ODD (xlii) Marriage- Concept of a young girl or a boy for that matter, venturing out in search of a spouse is alien to the teaching of Islam and even otherwise this scheme of Husband-Shopping which obviously includes testing and trial of disired material is fraught and pregnant with dangers and cannot be viewed with favour-Per: Khalil-ur-Rehman Ramday, J. [P. 762] EEE Odv) Marriage-- Marriage-Mode of contracting-In the light of Islamic Injunctions and established social and moral norms of our society ideal scheme for choosing marriage partners is let elders of family males or females do search and even re-search and then let whatever is available be put before boy or girl, who should then have final choice in matter-Held : This procedure is in consonance with respect and dignity of all concerned and would even eliminate crime which erupts where marriages are contracted in a manner which injures honour and pride-Per : Khalil-ur- Rehman Ramday, J. [P. 762] FFF (xv) Marriage- Marriage-Pre-marital and extra-marital liasons, are not only offensive to the commands of Allah but are also one major source of serious crime in our society-Therefore, High Court recommended that executive and legislature examine desirability of enacting laws to take care of this menace and to provide remedies- egislature also consider advisability of making such-like immoral relationship and secret marriages etc. a penal offence-Per: Khalil-ur-Rehman Ramday, J. [P. 764] in (xvi) Marriage- Whether marriage is a civil contract in Islam-Question of-View that marriage is a civil contract in Islam is mainly supported by view that dower was its consideration-View is superficial and advanced without taking into consideration philosophy of dower-Dower is no consideration of marriage in Islam-Women folks has been driven to the status of slaves by this theory-This was not only inhuman but most disgraceful and was completely inderogation to teaching of Islam-Per : Ehsan-ul-Haq Chaudhry, J. (i) Islah-e-Inqlabe Ummat ( Page 52 volume II by Maulana Ashraf Ali Thanvi. ref. (ii) Mishqat Shareef translated by Maulana Muhammad Sadiq Khalilre/: (iii) Islamic Family Law edited by Chibli Mallat ref. (iv) The Social Structure of Islam by Revenue Levy ref. (v) Muslim Personal Law and Judiciary by Dr. Muhammad Shabbir ref. (vi) AIR 1933 PC 80 ref. (vii) AIR 1933 All 634 ref. (viii)AIR 1937 Lahore 345 ref. (ix) 1881 3 All 266 (PC) ref. (x) Encyclopaedia of religion and ethics volume V page No. 464, 470,471, 472 ref. (xi) Auza-ul-Tashriah ref. [Pp. 707 & 710] G & H (xvii) Marriage- -Whether marriage contracted without consent of Wali is a valid marriage or notQuestion ofMode which was approved and followed by Muslims was that man desirous of marrying a girl or woman would approved to her father or head of family and after settling dower Nikah would be performed-This mode is not only in line with command of Holy Qur'an but also supported by Ahadiths that a woman cannot marry herself-It is a matter of common knowledge that this mode is in vogue in Muslim society including this sub continent till today-This is only mode of marriage prevalent in our society and to disturb this arrangement would if not wreck then completely shake structure of society rather strengthening-Per : Ehsan-ul-Haq Chaudhry, J. [P. 717] I & J (xviii) Marriage-Invalid- Invalidating a marriage entails rather serious and even penal consequences not only for wife and husband but even for innocent children born out of such a union-Such a declaration could therefore not be given unless material was available which was of an un-impeachable character admitting of no doubt-Per: Khalil-ur-Rehman Ramday, J. [P. 761] AAA Referred following Books :- (i) Sura-Al-Baqra Vesse 221 (ii) Tafsear-ul-Kabeer by Muhammad Yovsaf Ondalsy. (iii) Tafseer Qurtabee by Imam Qurtabee (R.H) (iv) Tafseer-ul-Minar by Allam Hazam (R.H) (v) Sura Noor verse 332. (vi) Sura-e-Al Baqra verse 232. (vii) Tafseer Ibne Kaseer by Allam Ibne Kaseer. Volume I page 323. (viii)Taffseer Al Jamia Ahkam-ul-Quran by Imam Qurtabee Volume 33 page 158 (Maktaba Al-Ghazali Damashiq) (ix) Tafseer Jama-ul-Bian-ul-Batri by Imam Ibne Jareer Tibree (x) Tafseer-ul-Tahreer-O-Tanveer by Muhammad Tahir Ibne Ashoor. (xi) Various Ahadiths. (x) Sunnan Abu Dawood Sharif Hadith No. 315. (xi) Ghunia-tul-Talibeen by Hazrat Qaadir Jilani (R.H) Urdu translation by Maulana Ahmad Sahib Madrasi. (xii) Mevaref-ul-Hadith by Maulana Muhammad Manzoor Naumani (xiii)PLD 1965 WP Lahore 695 (xiv)PLD1980SC160 (xix) Marriage-Valid- ... -Valid marriage-Consent of female is a condition precedent for a valid marriage-What, if girl refuses to marry a particular person at the instance of her wall for valid reason-Remedy of~Government should enact law to provide a detailed machinery in this behalf-Petitions may be made to District Judges of place where girl last resided with parents by herself or by anybody on her behalf-District Judge should exercise paternal jurisdiction keeping in view facts of particular case, Shariat and norms of Muslim society-Per: Ihsan-ul-Haq Chaudhry, J. [P. 720] N (xx) Muslim Family Laws Ordinance, 1961-- Nikah-Term not defined in Ordinance-Purpose of serial No. 7 of column No. 1 of nikahnama seems to be that as female is not to appear in assembly herself therefore she should be represented by a maleWakil generally is representative of party appointing/ nominating him Wakil representing female cannot be man from street because he is to perform Ijab-o-Qabool ( Wakil of female has to be one related to her in prohibited degree-It is normally maternal/paternal uncles, sister, husband, brother, father etc-Stranger cannot represent a female in NikahGirl speaks through her wakil-Tbis is not a restriction on females but purpose is to preserve their honour-She is entitled to this because being honour of two familiesIt would also exclude marriage through duress, preserve compulsion and fraudThis is also in consonance of Islamic principles otherwise marriage will loose all its sanctity and witness, wakil would all be hired-arranged by marriage bureaus-Per: Ehsan-ul-Haq Chaudhry, J. [Pp. 719 & 720] L (xxi) Nikah- M&a/z-Declaration of-Assembly is essential because Nikah has to be made known-It is improper to keep the same secret-Declaration is one of condition of Nikah because it distinguishes same from ZinaPer Ehsan-ul-Haq Chaudhry, J. [P. 720] M (xxii) Nikah-- NikahHavf being treated as civil contract by courts of law in sub continent-Explanation of--In early days of British rule there was no codified law dealing with Muslim marriages-Result was that suits for restitution of conjugal rights were treated as suits for specific performance and theory of civil contract developed-Decisions were given in utter disregard of position of nikah in Islam and purpose of dower was completely misunderstoodOther reason seems to be influence of development of English Law of marriage-Another specie of marriage where man and woman would go to court of law and after denouncing their religion seek permission to get married, came into existence to defy Supremacy of Church-These all seems to have influenced mind of courts in sub-Continent while treating Muslim Marriage as a civil contract-Per : Ihsan-ul-Haq Chaudhry, J. [P. 706] F (xxlii) Parents- Whether obedience of order of parents is obligation of children-Question of-Enforcement of-Mode of-Rule accepted is that whatever a person wants to do of his own volition, he is bound to obey parents in that behalf-This obedience of parents could even be enforced by courts through petition to District Judge to enforce their rights against children- Amendment is also proposed in schedule to Muslim Family Courts Act, 1964-Per: Ihsan-ul-Haq Chaudhry, J. Referred following:' Sura-e-Nisa verse No. 1 Sura-e-Inam verse No. 151 Sura-e-Bani Israil verse No. 23 & 24 Sura-e-Luqman verses No. 14 & 15 Ahadiths dealt by Imam Bokhari (R, H) in Sahi Muslim. [P. 729] R 917 516 582 915 (xxiv) Wall- Wall-Authority is also available in Islam that in case of a dispute between wall and child in matter of choice of a spouce-Qazi (court of law) can be approached who shall then resolve issue-Per: Khalil-ur-Rehman Ramady,J. [P. 763] HHH (xxv) Wali- Wali-Consent of man and women who are getting married is an indispensable condition for validity of marriage and a wall has no right to grant such a consent on behalf of woman without her approval-Pen Khalil-ur-Rehman Ramady, J. [P. 762] BBB (xxvi) Words and Phrases-- Marriage-Meaning of--Word marriage has been derived from word "marri" and means to "take over". [P. 705] D (xxvli) Words and phrases- Nikafi-M.ea.ning of--To unite, bind. [P. 705] E Malik M. Nawaz, Advocate Syed and Riaz-ul-Hassan Cillani, Advocate and Rao Nasim Haider Khan, Advocate for Appellants. Dr. Abdul Basit, Abid Saqi, Salman Akram Raja, Khalid Ishaq and Ashtar AusafAli, Advocate for the Respondents. Dates of hearing : 1, 7, 8.1996, 22, 25, 29, 30.9.1996, 1, 2, 7.10.1996, S, 9, 13, 14, 15, 20, 21, 22, 23.10.1996. judgment Ihsan-ul-Haq Chaudhry, J.--It is proposed to decide Crl. M. No. 425-W/96 filed by Hafiz Abdul Waheed on 18.4.1996, Crl. M. No 435-H/96 habeas corpus petitions and W.P. No. 6484/96 by Saima Waheed under Articles 9, 10, 11 and 15 of the Constitution of Islamic Republic of Pakistan, 1973. During the pendency of these petitions the Hon'ble Chief Justice also referred W.P. Nos. 2620/96, 7514/96, 8288/96, 6063/96, 11513/96 and 8912/96, involving the same legal controversy. The same, therefore, were taken up together and are being decided through common judgment. 2. The brief background as ascertained from the arguments and petitions is that Mst. Saima Waheed was a student of 4th Year in Govt Lahore College for Women. She allegedly contracted marriage on 26.2.1996 with Muhammad Arshad, who was a tutor of her brother. The petitioner- Abdul Waheed, her father, came to know of this secret marriage on 9.3.1996. He approached the father and other family members of Muhammad Arshad. Nikhanama was returned to him with the note that no Nikah was performed and in any case same is not subsisting and stands cancelled. The detenue continued living with her father till 9.4.1996 when she was allegedly abducted and her family came to know on 11.4.1996 that she was being detained in the "Dastak" managed by respondent No. 1 and they started negotiation for release of the detenue. Respondent No. 2 feeling that failure of his scheme is evident proceeded to file Crl. M. 393-H/96 on 14.4.1994 for her release from Dastak but it was dismissed on 16.4.1996. Criminal Miscellaneous by the father came up for hearing on 18.4.96 when the Bailiff was deputed to recover the detenue for production in this Court. The order was complied. In the meanwhile, the remaining two petitions were filed. The detenue was lodged initially in Dar-ul-Aman but vide order dated 22.4.1996 she was allowed to live in 'Dastak'. Thereafter some arguments were heard and learned counsel for the father of girl raised, inter alia, following questions that- (i) Whether the parents have a right to be obeyed and their right of obedience is judicially enforceable; (ii) Whether marriage in Islam is a civil contract; and (iii) Whether or not the permission of Wall is one of the main conditions of a valid Nikah. In view of these important issues involved the matter referred to the Hon'ble Chief Justice for constituting a Larger Bench and in this background this Full Bench was constituted. Malik Muhammad Nawaz, Advocate argued that a virgin girl stepping out of her house without the consent of the parents can be asked to go back. He added that at the moment in Islamic countries clash of two civilizations is quite prominent because some negligible number of Muslims are playing the role assigned to them by the vested interest from the west. The purpose is to shake foundation of Muslim Society and introduce, in the words of Dr. Allama Muhammad Iqbal in Guftar-e-Iqbal by Mr. Muhammad Rafique Afzal, moralless society ( fjf ( i VI ^4 t» ). He in this behalf proceeded to rely on The Holy Qur'an, Islah-e-Inqlabe Ummat by Maulana Ashraf Ali Thanvi Volume II, Seerat-un-Nabi (Life of The Holy Prophet, peace be upon him) by M/s Allama Shibli Naumani (R.H.) and Maulana Syed Suleman Nadvi (R.H.) Vol. VI, Nuzhat-ul-Aula (tyl&fy ), Taffseer Ibne Kaseer (Urdu) translated by AUama Muhammad Mamen Juna Gaddhi (R.H.) Vol. I, Khirj-ul-Malki ( (/ U /&^ ) Sahi Bokhari Sharif (^^(f^.^ ) by Abu Abdullah Muhammad Bin Ismail Bokhari (R.H.) Vol. Ill, Muqaddama Ibne Khaldoon by Allama Abdul Rehman Ibne Khaldoon Almaghrabi (R.H.), Alauza-ul-Tashria by Almhami Subihee Mahamsani and Holy Bible. The learned counsel in support of his arguments referred to Sura-e-Ahzaab 6.33, Sura-e-Al Baqra 2.221, Sura-e-Alnoor 32.24, Sura-e-Al Baqra 2.232, Sura-e-Alqassas 27.28. He referred to authentic translations and commentaries on The Holy Book and also number of hadith in support of his contentions. The learned counsel also submitted detailed written arguments, with reference to verses of The Holy Qur'an, Ahadith Sharif and reference to different text books, wherein he discussed the verses of The Holy Qur'an, Ahadith and opinion of Jurists. Mr. Riaz-ul-Hassan Gilani, Advocate adopting the arguments added that children are under the obligation to obey their parents. The learned counsel in this behalf referred to Sura-e-Luqman 31.14, Sura-e-Ankaboot 29.8. He referred to the explanation of Imam Fakhr-ud-Din Razi for interpretation of word "Ehsan" ( £) i-"/ ) which meant obedience with heart and soul, and Hadith Sharif Nos. 915, 916 and 917 of Sahi Bokhari Sharif Volume III. He added that the orders of parents are judicially enforceable. He further referred to Imam Ghazali, who stated that the order should not be mala fide and also referred to Mizaq-ul-Aarffeen by Imam Muhammad Ghazali (R.H.) Vol. II, Rights of Parents and Children, Tashreeh Imam-ul-Hajri by Imam Hajar Askalani CR.H.) and Sunnan Ibne Maaja Sharif by Imam Abu Abdullah Muhammad Bin Yazeed Ibne Maaja (R.H.) Vol. II Hadith No. 2290. 5. Syed Riaz-ul-Hassan Gilani, Advocate on the second point argued that marriage in Islam is not a civil contract and is one of the Ibadaat <JZflt[t? ) and at the best may be called social contract (compact). He referred to Mst. KhurshidBM vs. Baboo Muhammad Amin (PLD 1967 S.C. 97). He submitted that this theory of civil contract is result of superficial approach to the teaching of Islam. He, in this behalf, referred to cases of Abbas Ati versus Karim Bakhsh (1909) 4 1C 466), Abdul Qadir vs. Salima (1886 ILR, 8 Allahabad 149) and Saburannessa versus Sabdu Sheikh and others (AIR 1934 Calcutta 693). The learned counsel explained that before . he promulgation of Shariat Act of 1936, the Muslim marriage unlike Hindu nd Christian was not .enforceable and the Courts enforced it as a civil contract but religious scholars like Maulana Ashraf Ali Thanvi in his book Islah-e-Inqlabe Ummat Volume II condemned it in the strongest possible words. It was argued that after came into being Independence, Shariat was not given effect as complete way of life for the Muslims. This theoiy of civil contract remained somewhat alive. He submitted that in Christians marriage can only be performed through Church and the same cannot be dissolved by any one except the church. This was in order to dilute the effect of this strict mode that the second specie common law marriage came into existence. Where male and female would appeal before Court/Registrar denounce their religion's allegiance and claim that according to their religion there is restriction on their marriage. The Court would grant the permission. - This type of marriage could be dissolved only by common law courts. It was emphasised that in both types of marriages there were three parties. In the first type, Church, male and female while in the other type State, male and female were the three parties. It was argued that the "marriage' is a french word and derived from marri. In this behalf, he referred to Words and Phrases and dictionary meanings of word "marriage" and in this behalf also referred to the judgment reported as 47 LR 487. On the other hand, in Islam Nikah ( & feu ) means to bind or unite. If looked from this angle then it unites two families besides two persons. 6. It was explained that the dower is not a consideration for marriage and the same was wrongly treated as such in the above cases and even in some of our courts' judgments. It was submitted that the dower finds mention in Sura 4.4 and it is stated to carry meanings of Nehla ( j£ ) which means something given as gift of free will to the wife. The learned counsel argued that even acceptance by the spouses , will not make the marriage a simple contract. The learned counsel in this behalf referred to Encyclopaedia of Religion and Ethics by James Hastings Volume V. The Age of Faith by Will Durant, Alauza-ul-Tashira by Almahami Subihee Mahmsani Bab-ul-Sadaq in Mushkal-ul-Masabih Urdu Maulana Muhammad Sadiq Khalil, Durr-ul-Mukhtar by Muhammad Ala-ud-Din Haskafi translated by B.M. Dayal, Islamic Family Law by M/s Chibli Mallat & Jane Connors, Muslim Personal Law and Judiciary by Dr. Muhammad Shabbir, Chapter of dower in Mahmoedan Jurisprudence by Sir Abdul Rahim and American Society by Robin M. Williams, Jr. It was argued that it was clear from the above books that Nikah in Islam is not a social contract as interpreted and understood in some of judgments without an effort being made to find out the real status of Nikah. 7. It was argued Nikah without the consent of the Wali is not valid. In this behalf, reliance is placed on Sura-e-Al Baqra 2.232 and 2.221 which would be reproduced in the latter part of this judgment. Thereafter he referred to following four commands of The Holy Prophet (peace be upon him):- It was explained that as far Hadith No. 1 is concerned there was no dispute amongst the companions of The Holy Prophet (peace be upon him) Sahaba Kiram (R.Z.A.) ( ' ^/jvfvV^ 7 ) and, even thereafter. The same is the position of Muhaddaseen (R.H.) ( gLjf+~^ ) It was argued that the period can be divided into three phasis, namely: - from life of The Holy Prophet (peace be upon him); from Hidaya and Fatawa Alamgiri to Shah Wali Allah; and period starting with Hazrat Shah Wali Allah upto present time. It was added that it has wrongly been attributed to Imam Abu Hanifa that Nikah without the consent of the Wali is valid. It was explained that Imam Abu Hanifa has not written any book by himself and his views were not recorded in any of the authentic book written by his pupil or contemporaries. 8. The learned counsel for the petitioner argued that the judgment of Federal Shariat Court in Muhammad Imtiaz and another (Supra) is not binding on this Court because the same has been rendered in a criminal appeal directed against the judgment of Addl. Sessions Judge, Attack. It was added that it seems the Federal Shariat Court based its judgment on some written papers rather than after referring to the original books tabulated in para 24 of the judgment. In this behalf, it was pointed out that in Fateh-ul- Bari. The translation of the text is that there were arrangements for marriage while in the other cases the mother had married her daughter and not the daughter has contracted marriage herself. There was no effort to find out the correctness of the view allegedly attributed to Imam Abu Hanifa. It was added that verse of Holy Quran and other three Ahadith were completely lost sight of the fact. It was added that the Federal Shariat Court ignored the centuries old Islamic tradition that marriage is not only union between two individuals but of two families and it was always the head of the family who arranged for the marriage of the children. It was argued that the guideline for Qazi as is clear from the letter written by Hazrat Umar (R.Z.A) to Qazi; the first comes the Orders of the Almighty God as contained in the Noble Quran then Shariah and thereafter accepted norms in the Society. It was submitted that it is a matter of common knowledge that runway marriages are not solemnised in accordance with the principles of Islam. There is even no proper Nikah because no Nikahkhawan is prepared to perform the Nikah ceremony, no Registrar is prepared to register Nikah, no person is willing to witness the same and show his participation because they are all afraid of being involved in a case under Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The runway marriages offend all norms of a Muslim Society beginning to end. The proposition would become clear from answer to the question how a girl would arrange her marriage? There cannot be any other made but of freely mixing with males and then selecting one of them as future husband. This way of life is not permitted rather than even encouraged by any Fiqa or school of thought because it is against basic teachings of Islam that the people from both sexes should not have free access to each other. In other words the beginning is not commendable. hen coming to the marriage. The universally accepted principle is that it should be made known and announced. The Nikah ceremony, Walima and giving of dowry are means adopted by people to make the marriage known. On the other hand, runway marriage is always kept secret. We have already noted the manner in which it is usually performed. No proper Nikah even take place. It was argued that history tells us that pre-Islamic civilizations were authoritarian in pattern but the Islam brought democratic pattern in he family as well as he Society. He referred to "Azwaaj" by Ahmad Bin Al in Hqjar Almakki Vol. II. It is argued that parents have right to be obeyed and their rights are judicially nforceable provided (i) their order is not repugnant to Shariah and they do not ask for Shirk; and (ii) it is not mala fide. The learned counsel in this behalf referred to Hadith Sharif No. 2290, as recorded in Sunnan Ibn-e-Maaja Sharif. The learned counsel also referred to following verses of The Holy Book: Sura-e-Al Tehreem Sura-e-Bani Israeel Sura-e-Kahaf Sura-e-Luqman Sura-e-Inam Verse Nos. 6 and 7 Verse Nos. 23 and 25 Verse Nos. 15 and 17 Verse No 31.14 Verse No. 21.51 Thereafter he referred to Mishkat Sharif, Volume IV page 23. 11. The learned counsel stated that Nikah by the family of the bride is not only in Islam but also recognized and practised in other religions. He in this behalf referred to American Society by Robin M. Williams, Jr. He submitted for the lawful Nikah following are the conditions that:- Ajjabo Qabool ( (JjH3 ^^ (/J ) made in the assembly convened by the family of the girl; for lawful Nikah permission of the Wall and consent of the girl are two essential elements; and the contracting party is Wall and not the girl herself. He argued that according to Shia, Imam Abu Hanifa is said to have differs from the other Imams on this point but argued with force that the view attributed to Imam Abu Hanifa is not authentic. There is nothing coming from any authentic and original source to prove Imam Abu Hanifa having said so. 12. It was argued that it is clear from verse 2.232 that the Wall was restrained from not standing in the way of woman remarrying previous husband. Ammar Bin Yasir and Maqal Bin Yasar said that this verse related to them. In Tafseer Ibe Kaseer (Urdu), it has been explained that Wall has been stopped. It was, therefore, argued that it was not a permission to woman to many of her own free will. This clearly was an exception to the rule that Wall is to arrange for the marriage of his dependent females. The word Wali has been used in Noble Quran at numerous places including . Sura-e-Kahf, Sura-e-Yousaf and Sura-e-Shoora, etc. It carries different meanings in the context. In Sura-e-Kahf, Wali has been used as person looking after the welfare. According to the Durr-ul-Mukhtar by Muhammad Ala-ud-Din Haskafi, the Wali literally means opposite of enemy. It was argued that these Ahadith were proved authentic from several sources. In this behalf, reference was made to Sunnan Ibne Maaja Sharif, Tirmazi Sharif and Sunnan Abu Dawood Sharif. It was added that in the absence of Wali Sultan would be her Wall The Nikah was explained by Imam Hafiz Abi Abdullah Hakim Alnishapuri in his book Almustadrak Maa al Takhlees. It was argued that the same was the expression in Neel ul Autar. The literal means are to connect different views. It was added that it is clear from these text books that there is a complete unity of views (Ijma) of Sahaba Kiram (R.Z.A.) ( &) I (/^flS'lS ) on this point. 13. The learned counsel thereafter referred to Hanafi Jurists. He in the first instance referred to Sharah Maani-al-Aasar by Imam Abi Jafar, Ahmad Bin Muhammad Bin Salaamah Bin Abdul Mulk Bin Salmaah al Azdi, & known jurist as well as Muhaddis, who with reference to Hazrat Aisha and Abu Musa stated that woman cannot perform her Nikah. The ceremony is to be arranged by a male and beside these reliance was again placed on Sura-e-Al Baqra 2.232 to hold thai Nikah of a female is the duty of the Wali. Thereafter he referred to Nasab-ul-Raiya by Allama Jamal-ud-Din and Alsunnan-ul-kubra. He argued that Federal Shariat Court has wrongly referred in para 18 of its judgment to marriage by girl, in fact the marriage was performed by her mother. The learned counsel thereafter referred to Sunnan Dar Quatni by Imam-ul-Kabir Ali Bin Umar Dar Quatni, Tohfat-ul- Ahwazi by Hafiz Abdul Rehman Azhar, Moota Imam Muhammad and Sahi Sunnan Tirmazi by Muhammad Nasiruddin Albani, Vol. I. 14. It was argued that the girl after attaining majority is master of her property but as far Nikah was concerned the same is subject to consent of Wali. It was argued that the Islam is a natural religion and the unmarried girls are deemed to be under the protection of Wali in the matters of Nikah for the reason that all possible conceivable modes, which may result in Nikah by the female herself, are against decency and against accepted norms of Islamic Society. 15. The learned counsel thereafter referred to Fuqha to show that even amongst Fuqha for most of the period there was no dissection. It was submitted that Imam Abu Hanifa, who died in 150 Hijri, did not write any book himself. The works of Imam Abu Hanifa were reduced into writing by Imam Abu Yousaf and Imam Muhammad Shaibani. Imam Abu Yousaf left no writing on this subject while the book by Imam Muhammad Shaibani (died in 189 A.H.) is known as Moota Imam Muhammad which clearly referred to the above Hadith. The learned counsel in this behalf has.referred to Moota Imam Muhammad and Aiqaz Hambrao-Ulil-Absaar by Imam Saleh Bin Muhammad. He added that on the one hand this Hadith has been denied by some of the writers but on the other hand, they have quoted Imam Abu Yousaf saying that the Nikah outside Khffaw is invalid. He added that this cuts at the root of the criticism that Hadith is not authentic. The second period starts with Fatawa-i-Kazee Khan and Fatawa-i-Alamgiri when reference was made to certain persons to deny the existence of Hadith No. 1 but neither there is any writing to this effect nor they could otherwise support their views with any Sanad The third period started with Shah Wali Allah Muhaddis Dehlvi, Anwar Shah Kashmiri Abul Hassan Ali Nadvi and Maulana Maudoodi. They by and large reverted to the view prevalent in first period. The learned counsel in this behalf referred to Hujjat-ul-Allah Albaligha by Hazrat Imam Shah Wall Allah (R.H.) Volume n, Fatawa Alamgiria Vol. II, Muasharti Massail Din-e-Fitrat Ki Roshni Main lay Maulana Muhammad Burn Burhanuddin Sunbhli and Rasail-o-Masail by Maulana Abul Ala Maudoodi, Volume II. 16. The learned counsel referred to Kanz-ul-Daqaiq by Maulana Abdullah, who died in 710 A.H. and Tafseer-ul-Haqaiq by Fakhar-ud-Din Zaili, who died in 743 A.H. The right of the female to contract marriage has been justified with reference to her right to enter into agreement to sell and purchase property. It was argued that justification is too superficial, ignore norms of Muslim Society and nature of women. Then he referred to Mazzaqul-Arifm by Imam Muhammad Ghazali, who died in 500 A.H. and Ghuniatul-Talibeen by Sheikh Abdul Qadir Jillani, where the conditions of valid Nikah have been noted. It was argued that the Court can follow Jurists, who have given weighty reasons in support of their views or rules relating to social set up. In this behalf, he has referred to Mst. Khurshid Bibi versus Baboo Muhammad Amin (PLD 1967 S.C. 97) and Iqbal Hussain vs. Deputy Commissioner/Collector, Lahore and 33 others (PLD 1995 Lahore 381). The learned counsel thereafter reverted back to order, which could be passed by a ourt to compel female to join parents. He submitted that these are reformative measures and follow as under:- 1. Sura-e-Nisa 4.15 2. Sura-e-Noor 24.2 3. Al-Kashaf by Mahmood Bin Umar Alz Makhshri Alkhawaruzmi 4. Tafseer-ul-Kabir by Alfakhar-ul-Razi 5. Islam Ka Nizam-e-Iffat-o-Asmat by Maulana Muhammad Zafeer-ud-Din 6. Islam and Family Planning by Shaikh Muhammad Mahdi Shamsuddin 7. Shariat-e-Islam Main Aurat Aur Mard Ka Rutba in "Guftar-e-Iqbal" by Muhammad Rafiq Afzal 8. An Introduction to Islamic Law by Joseph Schacht 9. Kitab-ul-Fiqa by Allama Alijaziri. 17. The learned counsel for the petitioner argued with reference to Sura-e-Nisa 4.15 and Sura-e-Noor 24.2 that the Islam permits reformative measures and compelling the girls to join their parents. He proceeded to refer to Al-Kashaf by Imam Alz Makhshri, Tafseer Baizavi, Tafseer-ul-Kabir by Imam Fakhr-ud-Din Razi, Islamic System of Chestity by Ch. Muhammad Zafar-ud-Din, Islam & Family Planning Vol. I, Guftar-e-Iqbal (collection of speeches by late Dr. Allama Muhammad Iqbal), An Introduction to Islamic Law by Joseph Schacht and Kitab-ul-Fiqa by Allama Aljaziri. 18. On the other hand, respondent No. 1 argued with reference to Article 199 of the Constitution of Islamic Republic of Pakistan and section 491, Cr.P.C. She referred to PLD 1970 SC 323, 1970 SCMR 437, PLD 1972 SC 6, 172 SCMR 398, 197 SCMR 189, 1973 SCMR 577, PLD 1976 SC 298, 1987 SCMR 905, PLJ 1975 Cr. C. 516, 1975 P.Cr. LJ 1049, 1977 P Cr LJ 17, PLD 1978 Kar. 374, PLJ 1979 Cr. C. Kar. 362, 1987 MLD 1549, 1988 MID 1822, 1995 P.Cr. LJ 2085, PLD 1962 (WP) Kar. 725, PLD 1962 (WP) Kar. 442, PLD 1965 Dacca 553,1968 P.Cr LJ 1785,1971 P.Cr. LJ 489, 1971 P Cr LJ 38, 1971 P.Cr. LJ 523, PLD 1971 Lah. 139, 1972 P.Cr. LJ 586, 1971 P Cr LJ 640, 1973 P.Cr. LJ 61, 1973 P.Cr LJ 79, 1973 P.Cr. LJ 559, 1973 P Cr LJ 1012, PLJ 1975 Cr. C 96,1976 P.Cr. LJ 1447, PLD 1980 Lah. 350, PLD 1982 B.J 74, NLR 1984 UC 280, NLR 1984 Cr. 728, 1984 P.Cr. LJ 2908, 1985 MLD 485, 1986 P. Cr. LJ 861, 1404, 2269, 1986 MLD 2490, 1987 CLC 1496, 1987 MLD 2595, 1988 P.Cr. LJ 898, 1988 MLD 44, 1989 P Cr LJ 1717 and 1995 MLD 1507 to contend that the superior Courts have normally permitted the girl sui juris to have her own way. She, however, added that in the cases reported as PLD 1962 Karachi 725, PLD 1965 Dacca 553, 1S68 P Cr LJ 1578, PLD 1972 Lah. 809,1975 P Cr LJ 1444,1977 P Cr LJ 49S, FLD 1971 Lah. 128, PLD 1971 Lah. 343, PLD 1973 Lah 591, PLJ 1974 Cr. C 181, 1984 P.Cr. LJ 2977, PLD 1995 Lah. 364 and 1968 P Cr LJ 1758, a different view was taken but this was mostly on account of the girl being miner or there being no Nikahnama or more than one Nikahnamas. It was maintained that normally the Courts have allowed female detenue to have her own way. This is the rule. It was argued that restrain on movements of females against their will is unconstitutional and would result in violation of Articles 10,11,14, 15, 20 and 25. She submitted that the fundamental rights should not be violated. In this behalf, she has referred to 1983 SCMR 1718, PLD 1993 SC 901, PLD 1992 SC 595, 1994 SCMR 681 and PLD 1993 SC 456. Thereafter she referred to the speech of Quaid-e-Azam Muhammad All Jinnah (R.H.) on Hindu Child Marriage Bill in 1929 in the Legislative Assembly and referred to the provisions of Muslim Family Laws Ordinance, 1961 to maintain that there is nothing as to Wali. She also referred to report | of Ahtasham-ul-Haq Thanvi, Member Commission on marriage. She also referred the code of Muslim Personal Laws Volume I by Dr. Tanzii-ur- Rehman to argue that a major Muslim male or female can many without intervention of the guardian. Thereafter she referred to the Dictionary of Islam by Thomas Patrick Hughes, according to which the marriage is simply a civil contract. She also referred to Durr-ul-Mukhtar where it is tvcarcled that the consent of Wall is condition of validity of marriage of Nikah of minor, a lunatic and a slab but not of adult. Thereafter she referred to "Convention on the Elimination of all forms of discrimination against Woman". In the end she referred to article titled "Are Women their Walls puppets on a string" by Mr. Khalid Ishaque, Advocate printed in the issue 11.10.1996 of the Daily "DAWN", Karachi. 19. Mr. Khalid Ishaque, Advocate argued that so far the Hanifies are concerned an adult girl is at liberty to marry. He referred to book by Allama Ainee Chapter which contained a detailed discussion with reference to" the different sayings of The Holy Prophet (peace be upon ( him). He also referred to which is Urdu Commentary of Mishkat Sharif by Allama Nawab Muhammad Qutabud-Din Khan Dehlvi then which is the commentary on Al Imam Abi-ul-Fazal Shahabuddin" 'Ahmad biik Ali Bin Muhammad Bin Hajar-ul-Askalani, then which is the commentary of Sahi Bokhari Sharif, Muhammad Bin Ali Bin Muhammad Alsarkani, which is the cpmmentary on The learned counsel argued that judgments of the Hon'ble Shariat Court are binding on a High Court. The learned counsel in this behalf has referred to Articles 203A, 203DD and 203GG. He in support of his argument referred to the judgments reported as PLD 1992 FSC 286, 1988 CLC 1877, PLD 1989 SC 777 (778), PLD 1989 Kar 481, PLD 1994 SC 1, 1987 CLC 126, PLD 1986 SC 360 (475), NLR 1994 S.D. 567 (581), PLD 1994. SC 607 (620) and PLD 1983 FSC 73. 20. Mr Nazir Ahmad Ghazi, Advocate argued that the marriage between the male and female, therefore, can be performed validly without intervention of Wall. In this behalf, he referred to Sura-e-Ahzab 22.22 and 22.151, Sura-e-Al Baqra 2.228, 2.230, 2.234 and 2.240. Thereafter he supplemented his arguments with the submission that when the adult female is master of her will in the property matters is not possible to maintain restriction in respect of marriage. He proceeded to refer to following saying of The Holy Prophet (peace be upon him):- Hadith No. Name of the Book ther Particulars 324 4 67&6S 380 & 381 1099 Sunnah Abu Dawood Moota Imam Malik Sahi Bokhari Sunnan Nissai Tirmazi Sharif 126 Volume II of translation by Shahjehan Puri and printed by Farid Book Stall Lahore. 416 Kitab ul Nikah 51-52 English Volume VII Printed by Farid Book Stall, Lahore. 566 Volume I, Translated by Siddique Hazarvi and printed by Farid Book Stall, Lahore. 1101 1847 1870 1871 1889 Sunnan Ibne Maaja 567 114 129 130 140-141 Volume II, English Translation by Qazi Publication Thereafter he referred to the different instances which took place in the life of the Holy Prophet (peace be upon him) and during the times of Khulfa-e-Rashidden. Then he referred to Islamic Laws by Dr. Tanzil-ur-Rehman and Haqooq-ul-Zaujain by Maulana Abul Ala Maudoodi. 21. We have given our anxious consideration to the arguments of the learned counsel for the parties, Mr. Muhammad Akram Sheikh, Advocate and Mr. Abdul Rehman Madni, gone through the record and relevant provisions of law, precedents as well as textbooks. Now we proceed to consider the significance of 'family' in human life. The family is the basic sphere of human activity. The child normally is said to learn good manners, discipline and following religion which he finds his parents and other members of the family practising or following. Therefore, all religions have laid special emphasis on the preservation, strengthening and protection of family. Suffice it is to refer here following para from 'A Handbook of Sociology' by William F. Ogburn and Meyer F. Nimkoff. "The type of citizen one becomes is related closely to the type . of mother, father, and home life on has." In 'The Age of Faith' by Will Durant "A History of Medieval Civilization- Christian, Islamic, and Judaic-from Constantine to Dante" (A.D. 325-1300) while dealing with the components of integration has written as under:- "Despite the comparative looseness of the marriage bond in law, the family was the saving center of Jewish life. External danger brought internal unity; and hostile witnesses testify to the "warmth and dignity ..... thoughtfulness, consideration, parental and fraternal affection," that marked and mark the Jewish family ........ " Now we proceed to refer to Muqaddama Ibne Khaldoon ( by Allam Abdul Rehman Ibne Khaldoon Almaghrabi ( 732 A.H. to 808 A.H.). The great philosopher wrote as under : ' In the next chapter of the same book reads as under: And in the next part he wrote as under:- 22. Islam being religion nature and covering all human activity from cradle to grave, has taken special care of the integrity, up-keep and preservation of family. In Islam family unit is fully oriented. The Nikah is uniting/linking not only two individuals but also two families. The rights and obligations in Islam are not according to the sex but according to its contribution to the family. The rights and liabilities of members of family are not as male and female, girls and boys man and woman but are with reference to their status in the family namely, father, mother, husband, wife, brother and sister. The champions of the women rights are ignorant of the status of mother in Islamic Society. The highest respect which one can conceive has been givenJby Islam to mother, therefore, to judge rights and obligations in Islam particularly family life with reference to sex would not be justified. 23. The parents are responsible for marriage of the children generally and girls particularly. The learned counsel for the petitioner correctly referred to Encyclopaedia of Religion and Ethics by James Hastings to argue that this is not only in Islam but recognized by all religions. Bishop Kenenth appeared to canvass the same point. 24. Mr. M. Khalid Ishaque was asked as to the main reason for moral decline in the west. He rightly remarked that it is on account of egislation against divine law. He proceeded to explain that the law was macted, of course on the agitation of the women, that if the marriage breaks ;he spouses shall share the assets equally. He added that the result is that low men and women are living without maniage bond in order to ;ave properly. It would be relevant to refer here Armstrong's emphasis on he preservation of family in his article in the Reader's Digest, which appeared at page 39 of May, 1996 issue. The relevant portion reads as under:- "I thought about the power of a good name when I heard General Colin Powell say that America needs to restore a sense of shame in its neighbourhoods. He's right. If pride in a good name keeps families and neighbourhoods straight, a sense of shame is the reverse side of that coin. Doing drugs, abusing alcohol, stealing, getting a young woman pregnant out of wedlock-today, none of these behaviours is the deep embarrassment it should be. Nearly one out of three births in America is to an unwed mother. Many of these children will grow up without the security and guidance of a caring father and mother committed to each other. Once the social ties and mutual obligations of the family disintegrate, communities fall apart. Politicians may boast that crime in falling, but while the population has increased only 40 percent since 1960, violent crime in America has increased a staggering 550 percent-and we've become used to it. Teen drug abuse is rising again. No neighbourhood is immune. In one North Carolina county, police arrested 73 students from 12 secondary schools foi dealing drugs, some of them right in the classroom. Cultural influences such as television and movies portraj mostly a world in which respect goes to the most violent Life is considered cheap." 25. Mr. Muhammad Akram Sheikh, Advocate in his paper hai referred to following portion of the speech of Mrs. Hillary Clinton made ty her in election campaign of her husband:- " ............................ In order to raise a family, a happy family, a confiden family, it needs a family, it needs a village, it needs a society it needs a President and, it needs Bill Clinton.' According to Mr. Muhammad Akram Sheikh, Advocate, who heard th speech himself, the response of this touching speech was very positive an for one moment it appeared that "evil empire" of United States of America i within the reach of its lost paradise. Although it has become sole power bi is feeling hollow and deficient because of collapse of family nucleus. M Muhammad Akram Sheikh referred to social change which is being thrusted upon Pakistani society in somewhat similar fashion, which is seen to bave prefaced the subsequent explosion of family unit in the other societies Jn west. He referred to following statistics : "Household Sizes. More than a quarter of households in Great Britain in 1994-95 consisted of one person living alone, almost double the proportion in 1961. This is due to the increasing elderly population who lives alone and the increasing number of men living alone. The average household size in U.K. fell to 2, 4 persons in 1994-95 as compared to 2.9 in 1971. This is due to the increase in the divorce rate and the fall in family size. As the proportion of one-person households has been growing, the proportion of traditional one family households of a couple with children has been declining. In 1961 38% of households in Great Britain comprised of married couples with dependent children, this proportion fell by 133 percentage points to 25% in 1994-95. Single-Parent Families. The proportion of dependent children living in one-parent families in GB has tripled since 1972; 19% of children lived with just their mother and 1% with just their father in 1994-95. This reflects the increase in the number of live births outside marriage and the increase in the divorce rate. The proportion of lone mother families increased gradually until the late 1980s, but has since increased more rapidly, so that in 1993 one in five mothers with dependent children was a lone mother. Nearly two-fifths of lone mothers were single in Great Britain in 1994-95 while almost the same proportion were divorced. The gradual increase in the propoziion of lone mothers until the mid 1980s was caused mainly by the increasing numbers of divorced mothers. Since then the proportion of divorced lone mothers has stabilized, but the proportion of single, never married, mothers has more than doubled. Cohabitation. The proportion of unmarried women aged between 18 and 49 who were cohabiting in Great Britain almost doubled between 1981 to 23%. Among single women, 33% of those aged between 25-34 were cohabiting in 1993- 94. Between 1986 and 1994-95 the proportion of non-married men cohabiting increased by 10 percentage points, so that 21% of men aged between 16 to 59 were cohabiting in 1994- 95. Divorce. In 1993, the UK had the highest divorce rate in the European Union, at almost twice the average. Difference in the European union rates may be attributed to the effects of religion, cultural and social differences and legal requirements. The Reader's Digest has published debates of the presidential candidates of the present USA Election in its November 1996 issue. One of the questions and reply thereof by the main candidates read as under: - "America has witnessed a sharp increase in illegitimacy. In 1965 eight percent of all children were born out of wedlock. The latest figure is 33 percent. What is happening and what can be done? Clinton: The social stigma of bearing a child out of wedlock is less than it used to be and less than it should be. Once a baby is brought into the world, I don't think we should condemn the mother and the child. But we should say that it is not a good thing when a child is born out off wedlock. Dole: It's happening for a lot of reasons. Some we can't legislate-it's family breakdown. That's why I want to go back to education; the best place to start is kindergarten. We've got to go back to our churches and service clubs. We've got to have some personal responsibility too. We've got to go after fathers who don't support their children." 26. Now we proceed to deal with the Nikah and its significance. It is interesting to note here that the word 'marriage' commonly used has been derived from word 'marri' and means to take over. On the other hand, the word 'Nikah' means to unite, bind. Robin and W T illiam in their book 'American Society' wrote that marriage is more than an ordinary civil contract. It contains an element of status in the legal sense. If the family is the basic unit of a society then marriage is the basic material of this unit. 26A. Before proceeding with the essential ingredients of a valid WJikah, we would take up the issue whether Nikah in Islam is civil contract jas held in the cases of Munshi Fazal Rahim, Abdul Qadir and Abbas All {(Supra). The marriage was treated as sale purchase with dower its .'consideration. The background seems to be that in the Sub-Continent in early days of British rule there was no Codified Law dealing with the Muslim marriages. The result was that the suits for restitution of conjugal rights were treated as suits for specific performance and the theory of civil contract (developed; as against that Hindu marriages were governed by their personal law and there was no such rule. The decisions were given in utter disregard of the position of Nikah ia Islam and the purpose of dower was completely misunderstood. The other reason seems to be the influence of development of English Law of marriage, which was performed through church and the same could be dissolved only with the intervention of the church. Then another specie of marriage came into existence to defy the supremacy of church. Where man and woman would go to the Court of law and after denouncing their religion would seek permission to get married. This also seems to have influenced the mind of Courts in Sub-Continent while treating the marriage as a civil contract. » 27. In Islam the Nikah is 'Sunnat' of the Holy Prophet (peace be upon him) and it was made clear who gave up the Sunnat he ceased to be a Muslim. The notion of civil contract was taken serious note by Maulana Ashraf Ah Thanvi in his book Islah-e-Inqlabe Ummat ( ^Zl<rjJj}Jl &U I ) at page 52 Volume II. He opined as under:- 28. The view that marriage was a civil contract in Islam was mainly supported by the argument that dower was its consideration. The view is superficial and advanced without taking into consideration the philosophy of dower. The dower is no consideration of marriage in Islam. In Sura 4.4. it has been called as Nehla ( ,JL^-^ ), which carried the meaning of gifting something of free will while in Mishqat Sharif translated by Maulana Muhammad Sadiq Khalil, the same has been dealt in Baab-ul-Sadaq while in Durr-ul-Mukhtar it means" In the Islamic Family Law edited by Chibli Mallat while dealing with Jewish marriage it was noted that "The salient features of the ceremony were that the groom gave the bride an object of a specific worth, which in practice nowadays is the wedding ring. This object must be given to the wife in the presence of two witnesses, whose present is not merely evidentially but constitutive." Then Reuben Levy in his book 'The Social Structure of Islam' opined that "The fact that in Islam "mahr" or "sadaq" was paid to the wife has a bearing on the question whether women in pre-Islamic items and in early Islam could own property." The issue was also dealt by Dr. Muhammad Shabbir in his book 'Muslim Personal Law and Judiciary'. The learned author after reference to The Holy Qulfan, jurists and various judgments rendered in the Sub-Continent concluded as under:- "The comparison between 'dower' and 'consideration' is mere analogical and the one is not an identical precedent for the other. It will be wrong to scratch the analogy of sale too far. Marriage is not a contract of sale in the strict sense nor the consideration that is known as dower. In short, both proposition that the marriage is a 'purely civil contract' and dower is a price of wife" do not hold much water. It is really surprising as to how the courts still treat marriage as a transaction of a sale inspite of weighty judicial precedents to the contrary. The realities of human mind appear to have worked against the true nature of the institution of marriage and dower and judicial sphere of decision-making. As is evidence from the observation of Mr. Justice Mitter in Subrannissa v. Sabdu Sheikh (AIR 1934 Cal. 693) and opinion of Mookerjee and Amiya Kumar, JJ. in B.M. Mondal v. D.R. Bibi (AIR 1971 Cal. 162). It is virtually the outcome of the decision of Abdul Qadir's case." Dr. Muhammad Shabbir has also referred to case of Syed Sabir Hussain Shah vs. Farzand Hussain (AIR 1933 P.C. 80), where it was finally concluded that it was not only a pious obligation but legal responsibility of husband too. While in the judgment of Anis Begum vs. Malik Muhammad Istafa Wall Khan (AIR 1933 All 634) Sir Suliman, Chief Justice ruled as under:- " ... The analogy of the same cannot be carried out too far. The marriage cannot be regarded as purely sale of the person of the wife in consideration for the payment of the dower." The same view was expressed by Justice Tek Chand in Fatima Bibi vs. Lai Din (AIR 1937 Lahore 345) clarifying the scope of dower reads as under:- "Under the Mahomedan law dower is not exchange or consideration, as understood in the technical sense In the Contract Act, given by the man to the woman for entering into the contract but an effect of the contract imposed By the law on the husband as token of respect for its subject, the woman. So an agreement by the third person guaranteeing payment of a post-nuptial dower, is not void as being without consideration and the third person cannot escape liability under it." Allahabad High Court in Kamar-uf-Nissa Bibi vs. Hussain Bibi (1881) 3 All 268 (PC) conclusively held as under:- "consideration not to be taken or has been used in the Indian Contract Act" And the learned Judge in support of the above view referred to following passage of Mahomedan Jurisprudence by Sir Abdul Rahim:- " ..... a marriage is valid though dower is not settled at the time and it is wrong to say that dower is a consideration proceeding from the husband for the contract of marriage. In reality it is an obligation imposed by Muhammadan law aS a mark of respect for the wife." 29. The theoiy that dower was a consideration for the marriage is otherwise falsified by three basic facts, namely: - Firstly, the fixation of dower is not a necessaiy requirement of valid and may not be in terms of money or shape of material things; Secondly, the amount can be enhanced by mutual agreement and bride can forego the same; and Lastly, but no leastly, dower can be deferred, which would be payable after death or dissolution of marriage, therefore, this fact alone is sufficient to discard the view that dower is a consideration for marriage. 30. The other argument in support of .the view that the marriage is a civil contract was acceptance. This was introduced by Islam while in the earlier the women were treated as chattel. Syed Riazul Hassan Gilani, Advocate in support of this view has referred to Encyclopaedia of Religion and Ethics, Volume V. The relevant portions read as under - Page464 ....... Roman of early times did not think of marriage and manus as inseparable; for the bride must have been properly married under usus, if her children were to be Roman citizens, though for a year at least she was not under manus 3. The historic period.--(a) Conditions of marriage- The necessary conditions of marriage were: (1) the families of both parties must possess the ins connubii (as explained above); (2) the parties must not be within the prohibited degrees of relationship (cognatio). Page 470 5. Abyssm;an.--Such marriages are solemnized by a priest, and the contracting parties partake of the Holy Communion. Page 471 When a man desires to many a girl, he applies directly to her parents or nearest relatives; Marriage (Slavic).--As early as the pagan period the family life of the Slave was regulated by legal marriages, which were concluded in a solemn manner. Page 472 A marriage became legal only after the precise performance of all prescribed observances inherited from the ancestors and consecrated by the family tradition; and this conviction is still to be found among some of the Slavic nations." Thereafter he referred to Auza-ul-Tashriah (legal system). The translation of the relevant portions read as under:- 30-A. The view that marriage was simply contract of sale purchase was projected without keeping in mind that the womenfolk has been driven to the status of slaves by this theory of sale purchase. This was not only inhuman but most disgraceful and was completely in derogation to teachings of Islam. 31. Now we take up the institution of Nikah and its ingredients. Dr. Syed Riazul Hassan Gilani, Advocate argued that following are the conditions of a valid Nikah: ( 1 ) permission of Wali and consent of the bride; (2) the acceptance by the spouses ( (/j?wLf£l ) should be in the assembly convened by the family of the girl; and (3) it shall be done in the presence of the two witnesses. The learned counsel added that the contracting party is Wali and not the girl herself because she speaks through Wali. There is not much difference between various sects except the permission of the Wali because Imam Abu Hanifa is said to hold the view that consent of Wali was not necessary for a valid Nikah. 32. The learned counsel for the petitioner, Dr. Syed Riazul Hassan Gilani and Malik Muhammad Nawaz, in support of their contention that sanction/consent of Wali is one of the conditions of valid Nikah, have referred to Sura-e-Al Baqra, Verse 221, which reads as under: 221. Do not marry. Unbelieving 245-A woman. Until they believe: A slave woman who believes Is better than an believing 245- a woman. Even though she allure you. Nor marry (your girls) To unbelievers until. They believe: A man slave who believes. Is better than an unbeliever 245-A Even though he allure you. 246 Unbelievers do (but). Beckon you to the Pire. But Allah beckons by His grace To the Garden of Bliss And forgiveness The latter part of the above Verse is clear command to the men, fathers/head of families and it negates the marriage by female herself. In the marginal note the literal meanings of unbelieving and unbeliever, are "pagan". Muhammad Yousaf Ondalsy, in his commentary Tafseer-ul-Kabeer has written that the command is to be the Wali of the woman, therefore, for valid Nikah consent of Wali is necessary while Imam Qurtabee in his Tafseer Qurtabee has referred to this verse in support of the rule that the presence/participation of Wali is essential in Nikah. The great Imam also added that nowhere in the Holy Qur'an, Almighty God has directed other than man to perform the Nikah if the presence of Wali was not necessary then address must have been to be women at least somewhere. The same is the view expressed by Allama Hazam (R.H.) in Tafseer-ul-Minar. The second Verse relevant on the issue is Sura-e-Noor 32, which reads as under: 32. Marry those among you who are single, 2988 and The virtuous ones among your slaves, male or female; If they are in poverty., 33. Again the address is to the men and not women. The third verse, of course, the main verse which supports the proposition is Verse No.232 of Surae-Al Baqra, which reads as under: 232. When ye divorce Women, and they fulfil The term of their 'Iddat, Do not prevent them 265 From marrying Their former husbands, If they mutually agree on equitable terms. This instruction is for all amongst you, Who believe in Allah And the Last Day. That is the course Making for most virtue And purity '" amongst you And Allah knows. And ye know not. Imam Bokhari (R.H.) has cited above two verses in support of Hadith ( dW\&&H ). The Imam has his own style. He did not incorporate the saying of The Holy Prophet (peace be upon him) one after the other but proceeded to pick up issues, subjects or titles and then incorporated all the Ahadith under the same with reference to Holy Qur'an. 34. Imam Bokhari (R.H.) under this title has mentioned the incident of Maakkal Bin Yassar (R.Z.A.), according to which, Aasim Bin Addi ex-husband of his sister wanted to remarry her after having pronounced divorce. Maakkal (R.Z.A.), did not approve this move for the reason that he has already caused insult to the family, therefore, he said on Oath that he will not marry his sister once again to him but after revelation of this verse he allowed the marriage of his sister to her ex-husband and paid expiation { tj£»f ) for breaking the Oath. Imam Bokhari (R.H.) after citing this instance concluded that woman in spite of wish cannot marry by herself and the command of the Almighty God was directed to her Wali not to stand in her way. The other interpretation that it permitted the woman to contract marriage is not possible because Imam Bokhari (R.H.) has concluded this instance with the words, so Maaka! married his sister to this man while according to Imam Shaafi (R.H.) this is the strongest and decisive argument in favour of the rule that the consent of the Wali is necessary for Nikah of a woman. Allama Ibne Kaseer in his work Tatscer Ibne Kaseer has expressed the same opinion as under:- In the end we would refer to commentary of this verse in Tafseer-ul-Jamia Ahkam-ul-Quran by Imam Qurtabee, which reads as under: And to the same effect is commentary in "Tafseer Jamia-ul-Bian-ul-Batri' by Imam Ibne Jareer Tibree and 'Tafseer-ul-Taheer-o-fanveer' by Muhammad Tahir Ibne Aashhoor. 35. Now we proceed to refer four Ahadith, relied by the learned counsel for the petitioner on the point of "No Nikah without Wali', which are reproduced as under: Besides this there are other sayings, one of which has already been noted in the foregoing paragraphs. 36. On the other hand, Mr. Nazir Ahmad Ghazi, Advocate, counsel in W.P. 2620 of 1996 argued with reference to seven Verses of the Holy Qur'an noted in his argument that in fact the commands of Almighty God with reference to marriage are to the women and not to the men. He referred to number of complaints brought to The Holy Prophet (peace be upon him) and Khulafa-e- Rashideen (R.Z.A.), where women complained that the marriage has been forced on them and they do not approve the ame. These marriages were dissolved. A careful perusal of all these instances would show that in all these cases the consent of the woman was missing or secured through duress and pressure. We have already recorded that there cannot be a marriage without the consent of the female. The marriage forced on her is not a valid marriage in accordance with the Injunctions of Islam. This sufficiently disposes of the arguments of Mr. Nazir Ahmad Ghazi Advocate. 37. It is made clear that if a female wanted to denounce her marriage for want of her consent then she has to do it within shortest possible period from date of Nikah as option of puberty is exercised immediately on attaining puberty otherwise plea would be rendered doubtful by delay. 37-A. According to Sunnan Abu Dawood Sharif, if there is a difference of opinion between the Walls or there is none then Sultan Ruler is the Wali. In this, behalf, reference is made to Hadith No.315, which reads as under: in the end we would like to refer to views of Hazrat Abdul Qadir Jilani (R.H.) expressed in Ghunia-tul -Tali been Urdu translation by Maulana Ahmad Sahib Madrasi as under: 38. We would proceed to examine different types of marriages prevalent in Arab on the dawn of Islam and the type approved and followed as it would make the point further clear. In this behalf, it is relevant to refer folldwing portions of saying of Hazrat Aisha CR.Z.A.) as included in Maaref-ul-Hadith by Maulana Muhammad Manzoor Naumani: - It is clear from the opening passage that the mode which was approved and followed by Muslims was that, man dcsirious of marrying a girl or woman would approach to her father or the head of the family and after settling the dower the Nikah would be performed. lu my humble opinion this not only was in line with ommand of The Holy Quran but also supported the above Hadith that a woman cannot many herself. It is matter of common knowledge that this mode is in vogue in the Muslim Society including this Sub-Continent till today. What more clear, strong and direct evidence is required to uphold the rule that (J Ji I) I & £/if . This is the only known mode of marriage prevalent in our society and to disturb this arrangement would if not wreck then completely shake the structure of the society rather strengthening it. The Holy Qur'an says J& Itf^) %& I , (mischief is more devasting then murder). The other established rule is that a Hadith, which has been consistently repeated is to be accepted as correct. Imam Abu Hanifa himself in clear terms told his followers that if they come across a Hadith against his views then they shall follow the Hadith and not him. Above all no writing of the Imam to this effect is available. 39. M/s. Khalid Ishaque and Nazir Ahmad Ghazi, Advocates have referred to Code of Islamic Law by Dr. Tanzil-ur-Rehman, Suffice it is to record here that learned author debated the point without keeping in mind startling results. It was lost sight of the fact that it would lead to a society free from all social and moral values and to borrow the words of Dr. Allama Muhammad Iqbal (R.H.)" The Muslims did not strive in the past, they are not making efforts'toclay and they would never endeavour for such a society in future. The views of the learned author also lost sight of the sufferings of west by following the theory of equality and sui juris. Hafiz Salah-ud-Din Yousaf, Advisor to Federal Shariat Court, in his articles printed in the Daily 'Nawa-i-Waqt' has elaborately exposed the pit falls and short comings of the views expressed by the learned author. 40. We have recorded our views on the point with reference to Holy Quran, Ahadith, Ijma and in the historical perspective. The admitted position is that there is difference of opinion on the point amongst A'linma and Faqihs. Assuming that there is no Quranic verse or Hadith or Ijma on this point then this Court may form its own opinion. We are fortified in our view by the judgment in the case afMst. Zohra Begum vs. Sh. Latif Ahmad Munawar (PLI) 1965 (W.P.) Lahore 695). The relevant portion reads as under:- "8 ................ On this view, it would be permissible for Courts to differ from the Rule of Hizanat stated in the Text » Books on Muslim Law for there is no Quranic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which, according to Imam-Al-Shafei', is included in the doctrine of Qiyas. It has been mentioned earlier that the rule propounded in different Text Books on the subject of Hizanat is not uniform. It would, therefore, be permissible to depart from the rule stated therein if, on the facts of a given case, its application is against the welfare of the minor ' :-- This was affirmed by the Hon'ble Supreme Court in B.Z. Kaikus and 10 others vs. President of Pakistan and 15 others (PLD 1980 SC 160). The relevant portion of the judgment reads as unden- "8. With great humility I venture to submit that it would not be correct to lay it down as a positive rule of law that the present-day Court in this countiy should have no power or authority to interpret the Qur'an in a way different from that adopted by the earlier jurists and Imams. The adoption of such a view is likely to endanger the dynamic and universal character of the religion and law of Islam. At the same time it is clear that the views of the earlier Imams and Jurists are entitled to the utmost respect, and no Court or Commentator would differ from them except for very compelling and sound reasons. I would also like to make it clear at this stage that this difference of interpretation does not, and cannot, mean a departure from a clear injunction of law as contained in the Qur'an or Sunnah, or even Ijma", on any grounds of equity, good conscience or public policy." It will be beneficial to refer to another portion of this judgment, which reads as under:- "6 ............... Islam is not a priest-dominated theocracy. Its principles are neither hidden nor complicated or involved, and not impracticable. It is a law which has within it the capacity or capability of being practised enforced and applied, and adopted at all time and at all places, only.if it is understood and interpreted in a true and proper manner and in its true spirit, keeping in view the environments and the circumstances of the situation at the relevant time." We are national Judges and as such custodian of the morals of the citizens, therefore, it is not possible to subscribe to the opinion expressed by Dr. Tanzil-ur-Rehman. Even otherwise rule off interpretation is that view which is in line with the moral standards of the society is to be accepted. 42. The Judges are not debarred from giving their own opinion in the matters for which there is no direction in the Holy Qur'an as well as there is no hadith to guide the Umma and there is difference of opinion between various Imams, Muhaddaseen and jurists. We in this behalf may refer to the judgment of the Hon'ble Supreme Court in the case of Mst. KhurshidBibi vs. Baboo Muhammad Arnin (PLD 1967 S.C. 97). The relevant paras read as under:- "The fundamental laws of Islam are contained in the Qur'an and this is, by common consent, the primary source of law for Muslims. Hanafide Muslim jurisprudence also recognises hadith, ijtehad and y'ma as the three other secondary sources of law. The last-two really fall under a single category of subsidiary reasoning, ijtehad being by individual scholars and ijma being the concensus of scholars who have resorted to ijtehad in any one age. That this is the order of priority, in their importance, is clear from the well-known hadith, relating to Muadh-ibn-e-jabal who was sent by the Prophet as Governor and Qazi of Yamen. The Prophet asked him, how he would adjudicate cases. "By the Book of God", he replied. "But if you find nothing in the Book of God, how ?" Then by the precedent of the Prophet". "But if there be no precedent?" "Then I will diligently try to form my own judgment." On this, the Prophet is reported to have said, "Praise be to God who hath fulfilled in the messenger sent forth by his apostle that which is wellpleasing to the apostle of Allah". The four orthodox schools of Sunni fiqh were headed by Imam Abu Hanifa, Imam Malik, Imam Shafei and Imam Ahmad-bin-Hanbil. The learned Imams never claimed finality for their opinions, but due to various historical causes, their followers in subsequent ages, invented the doctrine of taqlid, under which a Sunni Muslim must follow the opinions of only one of their Imams, exclusively, irrespective of whether reason be in favour of another opinion. There is no warrant for this doctrinaire fossiliza-tion, in the Qur'an or authentic Ahadith. In the Alrnital-wan-Nihal (page 39), it is stated that the great Abu Hanifa used to say "This is my opinion and I consider it to be the best If someone regards another person's opinion to be better, he is welcome to it ("for him is his opinion and for us ours")." 43. In the case of Mst. Kaneez Fatima vs. Wall Muhammad and another (PLD 1993 SC 901) the Hon'ble Supreme Court ruled that principle of Islamic Law and Injunctions of Islam have to be kept into consideration while interpreting the statutes. It was held that the Courts are competent to enforce well recognized principles of common law hence such interpretation which is itf conformity with the Injunctions of Islam is to be followed. 44. Now coming to the Muslim Family Laws Ordinance, 1961 wherein a proformafor Nikah has been prescribed and registration ofNikah has been made compulsory under section 5 thereof. Serial No. 7 of column I of the Nikahnama provides for appointment of Wakil of bride. The same is to be witnessed by two persons. 45. The term 'WakiV has not been defined in the Ordinance 1961. The purpose seems to be that as the female is not to appear in the assembly herself, therefore, she should be represented by a male. The Wakil generally [is representative of the party appointing/nominating him. We are, at the moment, not concerned with the different views as to the capacity of a minor to act as Wakil in Hanafi and Sliaafi schools but one thing is clear that a Wakil representing the female cannot Le man from the street because he is to perform Ijab-o-Qabool ( Therefore, keeping in view the Islamic principles and the general practice prevalent in our society the Wakil of the female has to be one related to her in the prohibited degree. It is normally maternal/paternal uncles, sister's husband, brother, father [etc. The stranger cannot represent a female in Nikah. The girl speaks ! through her Wukil. This is not a restriction on the females but the purpose is | to preserve their honour. This way it is requirement of her protocol. She is j entitled to this because being the honour of two families. This has to be : observed for another reason that it would exclude marriage through duress, pressure, compulsion and fraud. In the case of Saima her Wakil was one Syed Shaukat Hussain. Nobody knows, who he was, but one thing is established that he has no blood relation with her. This will be in consonance of the Islamic principles otherwise the marriage will loose all its sanctity and the witnesses, Wakil Would all be hired/arranged by the Marriage Bureaus as is happening in Reno Nevada USA. Where man and woman just engage a marriage agency and they make all the arrangements including ceremonial dresses, witnesses, priest etc. 46. The assembly is also essential because Nikah has to be made known. It is improper to keep the same secret and according to Imam Maalik (R.H.) the declaration is one of the conditions of Nikah because it disting uishes the same from Zina, therefore, he was of the view that if witnesses of M Nikah were told to keep it a secret then the Nikah becomes invalid. 47. Before leaving the topic we want to make it clear that it is the duty of the parents to many the children particularly girls at the earliest point of time. They should not afford opportunity to outsiders in the house or outside to come across the young girls may be visitors, servants, drivel's of jpublic conveyance. It is absolutely essential to preserve the purety of the homes and this is why much emphasis have been laid by the Islam that females should not mix up with males. 48. The Government should also regulate, if not totally ban, the marriage bureaus and such like institutions, which have become a menace in the society and most of them are otherwise of not bad character. The innocent parents of both sides and would be spouses become their victims and their whole life is spoiled. 49. We have held that according to Shariah consent of female is a condition precedent for a valid marriage. There can be cases where the girl refuses to many a particular person at the instance of her Wali for valid reasons. Then the question would arise as to what is her remedy? We propose that the Government should enact law to provide a detailed machinery in this behalf and in the meanwhile, the petitions may be made to the District Judges of the place where the girl last resided with the parents. This could be done under the Quetta declaration issued by the Chief Justices Committee on 14.8.1991. The relevant paras read as under:- "(2) to ensure that all citizens, particularly the deprived and unaided sections of the society, become conscious and assertive of their rights and obligations as guaranteed and provided by Islam, the Constitution and the Law and in order to achieve this objective, to provide an efficient machinery at the door-steps so that they can protect the rights and fulfil the obligations; (3) to strive for realizing the objections set out in the "OBJECTIVES RESOLUTION" as well as in the "CONSTITUTION" with particular emphasis on Islamic social justice;" The female or anybody may petition on her behalf to the District Judge pointing out proposed marriage without her consent. The District Judge should sent for the parties and hear them day to day till the controversy is resolved and in the interregnum period he would lodge the female in Dar-ul- Aman or allow her to remain with any of the blood relations falling within the prohibited degree as per her choice. In case the District Judge is a non- Muslim, the petition shall be entrusted to the senior most Muslim Addl. District Judge. It is not desirable to prescribed a specific form of such petitions and the District Judge should exercise the parental jurisdiction keeping in view the facts of the particular case, Shariat and norms of the Muslim society. There is no satisfactoiy arrangement for lodging females and children particularly during the pendency of habeas corpus petition and other matters in this Court, therefore, it is proposed that the Government may provide for the institutions where females and children could be lodged pending the decision of the Court matters. Such institutions should cater not. only for boarding and lodging facilities for the inmates but also for job, vocations according to their education and experience. These institutions should be established at least at the divisional level for the time being. This is constitutional duty of Government under Article 35 of Constitution, 1973. 50. The Courts at the moment are mainly relying on Dar-ul-Aman established by Anjuman Himayat-e-Islam. The same is voluntarily financed, therefore, sources at their disposal are limited and they have also to face criticism from the parallel institutions run privately. It is not safe at all to lodge a female or child in privately managed institutions. The Government should provide for strict supervision of such institutions which among other matter should prescribe for reporting as to the arrival of anyone in such institution to the Police as well as the District Judge within 24 hours, scrutiny of their accounts and antecedents of the persons connecting with the management of those institutions. 51. The next question for determination is whether the judgment of the Federal Shariat Court in the case of Muhammad Imtiaz and another vs. The State (PLD 1981 FSC 308) rendered in a criminal appeal is binding on jthis Court. Article 203D details the powers, jurisdiction and functions of the | Federal Shariat Court. It is empowered to examine provision of law, which [appears to be repugnant to Injunctions of Islam while under Article 203DD I the Court has suo motu revisional powers in respect of the case decided by a j Criminal Court under the enforcement of Hudood. The Federal Shariat 'Court has not been vested with appellate jurisdiction under this chapter, j However, it has been provided in Clause (3) of Article 203 DD that it shall |have such other jurisdiction as may be conferred on it by or under any law. i The relevant clause reads as under:- "(3) The court shall have such other jurisdiction as may be conferred on it by or under any law." The words jurisdiction as may be conferred in the above clause are all important. This way the Federal Shariat Court has two fold jurisdiction, namely (i) Constitutional; and (ii) under other law. The other relevant Article is 203 GG, which reads as iinder;- "203GG. Subject to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court." The key words in this Article are exercise of its jurisdiction under 3-A Chapter of Part VII of 1973 Constitution. Now when this article is read with Clause (3) of Article 203DD then it becomes clear that an appeal from judgment of Criminal Court is dealt by the Federal Shariat Court not under this Chapter, therefore, the decision in appeal is not binding on High Court. It is interesting to note that while Federal Shariat Court enjoys revisional jurisdiction, as already noted, in respect of the cases decided by the Criminal Courts under any law relating to the enforcement of Hudood but no appeal has been provided in this Chapter, The intention of the Legislature clearly seems to be not to make a judgment passed in criminal appeal by the Federal Shariat Court binding on this Court. 52. Now we proceed to examine the rights and obligation of the parents and children inter se. We are here concerned whether the obedience of the orders of the parents is obligation of the children or not? Before proceeding any further we would like to refer to the rights of the parents as appearing in the Holy Qur'an. First of all we would be referred to some of the verses and first in the series is Sura-e-Nisa verse No. 1 The English translation reads as untSen- "1. 0 mankind! fear Your Guardian Lord Who created you From a single person, 504 Created, out of it, His mate, and from them twain Scattered (like seeds) Countless men and women;-Fear Allah, through Whom 505 Ye demand your mutual (rights), And be heedful of the wombs 506 (That bore you): for Allah Ever watches over you. (504. Nafs may mean: (1) soul; (2) self; (3) person, living person; (4) will, good pleasure, as in iv. 4 below. Minha: I follow the construction suggested by Imam Razi. The particle min would then suggest here a species, a nature, a similarity. The pronoun ha refers of course to Nafs.) (505. All our mutual rights and duties are referred to Allah. We are His creatures: His Will is the standard and measure of Allah; and our duties are measured by our conformity with His Will. "Our wills are ours, to make them Thine," says Tennyson (In Memoriam). Among ourselves (human beings) our mutual rights and duties arise out of Allah's Law, the sense of Right that is implanted in us by Him). (506. Among the most wonderful mysteries of our nature is that of sex. The unregenerate male is apt, in the pride of his physical strength, to forget the all-important part which the female plays in his veiy existence, and in all the social relationships that arise in our collective human lives. The mother that bore us must ever have our reverence. The wife, through whom we enter parentage, must have our reverence. Sex which governs so much of our physical life, and has no much influence on our emotional and higher nature, deserves-not our fear, or our contempt, or our amused indulgence, but-our reverence in the highest sense of the term. With this fitting introduction we enter on a discussion of women, orphans, and family relationships.) The other relevant verse is Sura-e-Inam verse No. 151. The English translation reads as under: - 151. Say: "Come, I will rehearse What Allah hath (really) 976 Prohibited you from": join not Anything with Him: Be good to your parents; Kill not your children On a plea of want ;-We (976. Instead of following Pagan superstitions, and being in constant a terror of imaginary taboos and prohibitions, we should study the true moral law, whose sanction is Allah's Law. The first step is that we should recognise that He is the One and Only Lord and Cherisher. The mention of goodness to parents immediately afterwards suggests: (1) that Allah's love of us and care for us may-on an infinitely higher plane-be understood by our ideal of parental love, which is purely unselfish: (2) that our first duty among our fellow creatures is to our father and mother, whose love leads us to the conception of divine love. Arising from that is the conception of four converse duties to our children, Allah provides sustenance (material and spiritual) not only for us, but for them; hence any custom like the Pagan custom of sacrificing children to Moloch stands condemned. Then come the moral prohibitions against lewdness and all unseemly acts, relating to sex or otherwise, open or secret. This is followed by the prohibition of killing. All these things are conformable to our own interests, and therefore true wisdom from our own point of view.) Thereafter we would refer to Sura-e-Bani Israil verses No. 23 and 24. The English translation reads as under:- "23. Thy Lord hath decreed That ye worship none but Him, And that ye be kind To parents. Whether one Or both of them attain Old age in thy life, 2204 Say not to them a word Of contempt, nor repel them But address them, In terms of honour. 24. And, our of kindness, Lower to them the wing 2205 Of humility, and say: "My Lord! bestow on them Thy Mercy even as they Cherished me in childhood." 2206 (2204. The spiritual and moral duties are now brought into juxtaposition. We are to worship none but Allah, because none but Allah is worthy of worship, not because "the Lord thy God is a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate Me" Note that the act of worship may be collective as well as individual; hence the plural ta'budu. The kindness to parents is an individual act of piety; hence the singular taqul, qul, etc.) (2205. Cf. xv. 88 and n. 2011. The metaphor is that of a high-flying bird which lowers her wing out of tenderness to her offspring. There is a double aptness. (1) When the parent was strong and the child was helpless, parental affection was showered on the child: when the child grows up and is strong, and the parent is helpless, can he do less than bestow similar tender care on the parent? (2) But niore: he must approach the matter with gentle humility: for does not parental love, remind him of the great love with which Allah cherishes His creatures? There is something here more than simple human gratitude; it does up into the highest spiritual region.) (2206. Note that we are asked to honour our father and mother, not "that thy days may be long upon the land which the Lord thy God giveth thee" (Exod. xx. 12), but upon much higher and more universal grounds, such as befit a perfected revelation. In the first place, not merely respect, but cherishing kindness, and humility to parents, are commanded. In the second place, this command is bracketed with the command to worship the One True God. Parental love should be to us a type of divine love: nothing that we can do can ever really compensate for that which we have received. In the third place (see next verse) our spiritual advancement is tested by this: we cannot expect Allah's forgiveness if we are rude or unkind to those who unselfishly brought us up.) Then we refer to Sura-e-Luqman verses No. 14 and 15. The English translation reads as unden- "14. And We have enjoined on man (To be good) to his parents: In travail upon travail Did his mother bear him. And in years twain 3596 Was his weaning: (hear The command), "Show gratitude To Me and to thy parents: To Me is (thy final) Goal. 15. "But if they strive 3597 To make thee join In worship with Me Things of which thou hast ,, Nojfchowledge, obey them not; Yet bear them company In this life with justice (And consideration), and follow The way of those who Turn to Me: 3598 In the End the return Of you all is to Me, And I will tell you All that ye did. 3599 (3596. The set of milk teeth in a human child is completed at the age of two years, which is therefore the natural extreme limit for breast-feeding. In our artificial life the duration is much less. (3597. Where the duty to man conflicts with the duty to Allah, it means that there is something wrong with the human will, and we should obey Allah rather than man. But even here, it does not mean that we should be arrogant or insolent To parents and those in authority, we must he kind, considerate, and courteous, even where they command things which we should not do and therefore disobedience becomes our highest duty. The worship of things other than Allah is the worship of false things, things which are alien to our true knowledge, things that go against our own pure nature as created by Allah. (3598. In any apparent conflict of duties our standard should be Allah's Will, as declared to us by His command. That is the way of those who love Allah: and their motive in disobedience to parents or human authority where disobedience is necessary by Allah's Law is not self willed rebellion or defiance, but love of Allah, which means the true love of man in the highest sense of the word. Arid the reason we should give is: "Both you and I have to return to Allah; therefore not only must I follow Allah's Will, but you must command nothing against Allah's Will." (3599. These conflicts may appear to us strange and puzzling in this life. But in Allah's Presence we shall see their real meaning and significance. It may be that the was one way in which our true mettle could be tested: for it is not easy to disobey and love man at the same time.) 53. Now we proceed to refer to Ahadith. Imam Bokhari (R.H.) has dealt Ahadith under thejjeading that disobedience of the parents is a major sin an( i quoted following Ahaditli, which are also included in the Sahi Muslim :- There are number of other Ahadith, according to which, the children are bound to obey their parents. Imam Fakhr-ud-Din azi explained the word " Ehsan' ( C'U'I ) appearing in Sura-e-Luqman as total obedience or to accept the orders of the parents willingly with heart and soul. The rule accepted is that whatever a person wants to do of his own volition he is bound to obey the parents in that behalf. Imam Ghazali (R.H.) besides ( udi< ) has put j another condition that basis or reasons for such order should not be mala fide i Now the question is whether such obedience could be enforced through \ Court. In this behalf, the well-known precedent narrated by Abdullah Bin Umar j (R.Z.A.), that he was married to a woman whom he loved but Hazrat Umar j " (R.Z.A.), his father, did not like this woman and asked him to divorce but Abdullah (R.Z.A.), did not comply with the direction. Thereupon, Hazrat Umar (R.Z.A.), complained to the Holy Prophet (peace be upon him) about this. Thereupon the Prophet (peace be upon him) ordered Abdullah (R.Z.A.) to divorce that woman. It is amply clear from the above instance that the obedience of the parents could be enforced by the Courts. 54. The next question is that how it should be enforced in the present date. We propose amendment in the schedule to the Muslim Family Courts Act, 1964 and in the meanwhile, parents may petition to the District Judge where they are putting up under Quetta Declaration to enforce their rights against the children. 55. We are conscious of the fact that some principles, rules of Sharia look harsh or offending to fundamental rights and other laws. The legal position is that as per section 3 of the Sharia Act, 1991 Sharia is the supreme law of the country. The difficulty is that although we profess Islam but do not practise. But once we accept the Islam from core of heart as ordained by the Almighty _ God in Sura-e-Al Baqra Verse No. 208 Until we follow this golden rule prescribed by the Creator we would continue facing the superficial difficulties. 56. It is, therefore, held that Mst. Saima Waheed and Arshad were not validly married. However, it is observed that the petitioner-Hafiz Abdul Waheed as well as Mst. Saima Waheed may approach the learned District Judge, Lahore in view of our findings recorded in earlier portion of this judgment. 57. It is made clear that the rule as to participation of Wall in the marriage would have no application to the marriages solemnised in past except those which are subject matter of this and other connected petitions. 58. In this view of the matter, this Crl. Misc. No. 425-H/96 is allowed. Malik Muhammad Qayyum, J.--I have had the privilege of going through the judgment proposed to be rendered by my learned brother Ihsan-ul-Haq Chaudhary, J. Despite my high respect and regard for him, I am not in a position to subscribe to the opinion expressed by him on certain aspects in his judgment. To me the sole question which arises for determination is as to whether a Muslim adult girl can marry without consent of her Wali. While sharing the anxiety of my learned brother that Islamic norms of our society and the sanctity which Islam attaches to a family must be protected and safe-guarded, my answer to the above question has to be in the affirmative. True enough that run-away marriages are abhorrent and against the norms of our society and must, therefore, be deplored but I have despite my best efforts not been able to discover any principle on the basis of which it can be held thatNikah of sui juris Muslim girl without consent of her Wali would be invalid. However, the nature of the marriage and the manner in which it has been performed may be relevant consideration for granting or with-holding relief in a matter in which the Courts of law are called upon to exercise their discretion. 2. Though we had heard lengthy arguments of the learned counsel for the parties yet I agree with Mr. Khalid Ishaque, Advocate that it is not necessaiy for us to enter into detailed discussed on the subject as the Federal Shariat Court in the case of Muhammad Imtiaz and another v. The State (PLD 1981 F.S.C. 308) after examining all aspects of the matter has ruled that in Islam, a Muslim adult girl can many without the consent of her Wali. This judgment of the Federal Shariat Court is not only binding on us in view of Article 203-GG of the Constitution of Islamic Republic of Pakistan, 1973 but also commands great respect in view of the eminence of the learned Judges and Ulema forming the Bench. 3. It has been argued on behalf of the petitioner that the aforesaid judgment was delivered in the exercise of appellate jurisdiction by the Federal Shariat Court and has, therefore, no binding effect The distinction pointed out is specious. It matters little whether the judgment was delivered in the exercise of appellate or revisional jurisdiction as it would be anomalous to hold that one judgment of a Court is binding, another of its judgment can be ignored. It is idle to draw any such distinction. 4. Even otherwise Article 203-DD(3) of the Constitution envisages conferment of any other power by law upon the Federal Shariat Court and as such it cannot be said that the appellate jurisdiction in the exercise of which the above cited judgment was delivered by the Federal Shariat Court was outside the contemplation of Chapter 3-A of the Constitution. In view of the clear provision of Article 203-GG, the said judgment is binding on this Court. 5. Be that as it may, coming from a high constitutional Court like Federal Shariat Court constituted for the specific purpose of dealing with the questions as to interpretation of Islamic principles, the judgment in any case is entitled to great respect. Therefore, respectfully following the judgment on the vital question, I am of the view that Nikah contracted without the consent of Wall by a sui juris Muslim girl would be valid. Khalil-ur-Rehman Ramday, J.--I have had the privilege of reading the elaborate, well-considered and learned judgments proposed to be delivered by my learned brothers, Ihsan-ul-Haq Chaudhry and Malik Muhammad Qayyum, J.J. in Crl. Misc. No. 425/H-96, Crl. Misc. No. 435/H- 96, W.P. No. 6468/96, W.P. No. 8288/96, W.P. No. 8912/96, W.P. No. 6063/96, W.P. No. 11513/96 and W.P. No. 2620/96. 2. In view of the importance of the issues, involved in these petitions, 1 have considered it appropriate to give my own views and my own decision thereon and the reasons therefor. 3. The facts and circumstances leading upto all these petitions have been noticed in some detail by my learned brother Ihsan-ul-Haq Chaudhry, J. and I do not wish to un-necessarily burden this judgment by repeating the same. Suffice it, however, to say that in all these cases, each young, un married girl had managed to establish contact with a man; this contact then developed into a secret liaison and this secret affair then allegedly culminated into a secret marriage; each girl disappeared from her parental home; apprehending worst of consequences, the family in each case ommenced a frantic search for their daughter/sister to ultimately find out, after weeks in some cases and after months in others, that their dear-one had contracted on alleged marriage. 4. The one crucial question, amongst others, which is common in all hese petitions is as to whether such a Nikah (marriage), surreptitiously contracted, by a male or a female of his or her own accord and otherwise than through a Wali (a guardian or an elder) was or was not valid in terms of the injunctions of Islam ? 5. 5. Since the task before me is to identify the Commands Of Allah and His Prophet (S.A.W.) on the issues in question, therefore, I consider it imperative, at the very outset, to notice some of the basic principles ordained lay Allah about His Injunctions and the light in which they have to be viewed and appreciated. The Muslims are called upon to:~ "Enter into Islam Whole-heartedly; And follow not The footsteps Of the Evil One; For he is to you An avowed enemy." SURAH 2.208. We must also understand the purpose which had, inter-alia, led the Creator to create us and which is : "Blessed be He In Whose hands Is Dominion: And He over all things Hath Power. He Who created Death And Life, that He May tiy which of you Is best in deed." SURAH 67.1 and 2. ALLAH ALMIGHTY further declared that :-- "It is your Lord That knoweth best all beings That are in the heavens And on eaith." SURAH 17.55. And that:-- "Should He not know, He that created? SURAH 67.14. We also need to know that Allah had condemned, in rather stwmg terms, the onles who used to accept only that part of His revelations which suited them and who used to reject the other part of the Divine Book which was not to their liking. One such verse is reproduced hereunder for ready reference : "Then is it only a part of the Book That ye believe in, And to you reject the rest ? But what is the reward for those Among you who behave like this But disgrace in this life?-- And on the Day of Judgment They shall be consigned To the most grievous penalty. For Allah is not unmindful Of what ye do." SURAH 2.85. It has been further ordained by the ALMIGHTY ALLAH that we should not question the Commands of ALLAH when He has decided some issue and should willingly accept the same. The relevant verse is as under :- "It is not fitting For a Believer, man or woman, When a matter has been decided By Allah and His Apostle, To have any option About their decision If anyone disobeys Allah And His Apostle, he is indeed On a clearly wrong Path." SURAH 33.36. It is thus obvious that the Muslims are called upon to accept ISLAM in its totality and not just to follow what tastes sweet to them and to discard what is not to their liking. It is also the belief of a Muslim that ALLAH is the Creator of all things and He knows his creations the best. And finally that when a Command of the Creator is available with respect to a particular matter, then the believers must accept and follow the same. 6. In order to discover the essentials of a valid marriage, I propose first to examine the status, social and legal, which ISLAM has conferred on females. The next aspect that I shall attend to would be the Code of Conduct prescribed by ALLAH and His PROPHET (S.A.W.) which the men and women are expected to abide by. This shall be followed by a discourse on how ALLAH and His PROPHET (S.A.W.) view the pre-marital and extra marital relationships between a man and a woman. I shall thereafter try and identify the obligations of the children towards their parents and the place which the family occupies in terms of the HOLY QURAN and the SUNN AH of the HOLY PROPHET (S.A.W.) and then venture to determine the crucial question of the validity of a marriage without the intervention of a WALL 7. To appreciate the status which ISLAM conferred on a woman, it would be of advantage to notice the place of a woman in the pre-islamic societies and also her position in post-islamic societies which did not follows ISLAM. The Greeks believed that the cause of all evil and all worldly calamities was the woman. PANDORA whose box is proverbial for being a collection of evil and mischief was a mythical woman amongst the Greeks. APHRODITUS, according to their mythology, had sexual relations with three gods and a MORTAL being and CUPID was the product of extra marital sexual relationship between APHRODITUS and the said MORTAL being. Amongst the Greeks, a woman had no rights; was considered evil and was treated only as a source catering for satisfaction of sexual lust. Abuse of oman even amongst the Romans was rampant. She was never regarded as an independent respectable entity and her status stood degenerated to that of a child-bearing slave who was never considered equal to man in any respect. (ENCYCLOPAEDIA BRITTANICA 1984 EDITION, VOL. 19, P. 909). In ancient Israel, men had proprietary rights over women and the father could even sell his daughter into bond-service (ENCYCLOPAEDIA OF RELIGION AND ETHICS, VOL. 5 P. 724). In civilised countries like England and America, a woman was hardly ever treated as an independent legal entity. By the rules of Common Law in ENGLAND, the legal capacity of a wife got sunk in that uf her husband; husband and wife were regarded as one person and a married woman was incapable of acquiring and enjoying, independently of her husband, any property, real or personal. (The Age of Faith by Will Durrant. P. 363 and Halsbury's Laws of England, Lord Simonds Ed. Vol. 19 P. 822). It was only through the Law of Property Act of 1925 that a married woman was recognised as an independent legal entity and was permitted to own and enjoy property independent of her husband. In the year 1935, another enactment called the Law Reforms (Married Woman and Tortfeassors) Act was promulgated which made a married woman capable of entering into contracts as if she were a female sole. In America, a married woman had no legal existence apart from her husband till the 19th Century (Conds of Women by Nancy F. Cott, P. 5). Needless to mention here that all these rights which the West conceded to the women in the 19th and the 20th Century stood conferred, by Islam, on the females in the beginning of the 7th Century A.D., While I am on the subject, I also feel tempted to reproduce a quotation from the Old Testament which is as under: "The woman that you had given me, gave me this fruit and I ate it" and then Gold told Eve "I will increase your pain in labour; your shall deliver a child with pain; you shall be attracted towards your husband and he shall rule over you." Old Testament-Birth-Chapter 3. 8. The Holy Quran also notices how girls were treated in the preislamic societies and the relevant verses are as under :-- "When news is brought To one of them, of the birth Of a female child, his face Darkens and he is filled With inward grief! With shame does he hide Himself from his people, Because of the bad news He has had! Shall be retain it with the Sufferance on contempt Or bury it in the dust? What an evil choice They decide on ! Surah 16.58 and 59. "When the female (infant), Burried alive, is questioned-For what crime She was killed. Surah 81.8 and 9. 9. This was then the contempt with which a female was treated in the pre-islamic societies and also in the contemporary extra-islamic societies of the world. 10. Islam hastened not only to recognise a female as an independent legal entity, vested with all legal rights but also refuted the false conceptions amongst the earlier societies that it was Eve (a woman) who had yielded to the false temptations offered by the serpentine and it was thus she who was responsible for the fall of man from heavens and all his consequent miseries. It may be mentioned here that the word 'Evil' coined by the English is derived from the word 'Eve'. 11. The Holy Quran declared, almost 1400 years ago that it was not just the Eve but both the Adam and the Eve who had got mislead and lured by Satan into eating the forbidden fruit. The relevant verses are as under : "Then began Satan to whisper Suggestions to them, bringing Openly before their minds And their shame That was hidden from them s efore he said 'Your Lord Only forbade you his tree, Let ye should become angels Or such beings as live for ever'. And he swore to them Both, that he was Their sincere adviser." Surah 7.20 and 21. "Then did Satan make them slip From the Garden, and get them out Of the state of felicity in which They had been. We said: 'Get ye down, all ye people, With enmity between yourselves. On earth will be your dwelling-place And your means of livelihood For a time'." Surah 2.36. 12. Islam thus contradicted and condemned the pre-islamic contemptuous concepts about women and lifted her to a place of honour and respect. 13. Allah declared in Surah 30.21 and to the same effect is Allah's revelation through Surah 16.72 that He created mates for men from amongst themselves and thus declaring that all men and women were alike and that it was not a case where man had been made of a superior material than the woman. And from this it also follows that although a man and a woman may be different from each other in certain aspects but one was not better than or superior to the other. Surah 2.228 tells us that :-- "Women shall have rights Similar to the rights Against them, according To what is equitable; Only that men had a degree Of dvantage over them In certain matters." Surah 2.228. Allah informs the females that: "Never will I suffer to be lost The work of any of you, Be he male or female: Ye are members, one of another.-" Surah 3.195. To the same effect are the verses of Surahs 4.124, 16.97 and Surah 40.40. How-much and what a woman means to a man and what is her place in the heart of a man and how close according to the will of Allah she is to a man, is indicated by the following verses :-- "They are your garments And ye are their garments," Surah 2.187. "0 ye who believe! Ye are forbidden to inherit Women against their will. Nor should ye treat them With harshness, that ye may Take away part of the dower Ye have given then),- except Where they have been guilty Of open lewdness, On the contrary i;\v with them On a footing of kindness and equity If ye taL-i a dislike to then; It may be that ye dislike A thing, and Allah brings about Tli rough it a great deal of good." Surah 4.19. "It is He Who created You from a single person, And made his mate Of like nature, in order That he night dwell with her In love. When they are United, she bears a light Burden and carries it about Unnoticed. When she grows Heavy, they both pray To Allah their Lord, saying: 'If Thou givest us A goodly child, We vow we shall Ever be grateful." Surah 7.189. "And among His Signs Is this, that He created For you mates from among Yourselves, that ye may Dwell in tranquillity with them, And He has put love And mercy between your hearts; Verily in that are Signs For those who reflect." Surah 30.21. 14. These declarations of Allah are further reflected and elucidated by the Holy Prophet (S.A. W.) through His following sayings :-- (i) "And God has forbidden you to disobey your mothers and to bury alive your daughters." Bukhari Sharif. (ii) "Whoever has a daughter and he does not bury her alive and does not treat her with contempt and does not prefer his son over his daughter then Allah shall bless him with Heaven." Abu Daud. (iii) "Whoever has daughters and brings them up well; these daughters shall save him from Hell." Muslim Sharif. (iv) "Do not manhandle the females." Ibn-e-Mqja. (v) "Abi Huraira a companion of the Holy Prophet (S.A. WJ and Hazrat Aisha (R.A.) a wife of the Holy Prophet (S.A.W.) reported the Holy Prophet (S.A.W.) saying that the best amongst you is he who is best with the members of his family and also the best vis-a-vis his females." (vi) "A woman is the ruler of her husband's house and is also answerable for her acts vis-a-vis this rule." Sahi Bukhari. And one need not dwell much upon the oft quoted and well-known saying of the Holy Prophet (S.A W.) through which he had declared that heavens lay under the feet of our mothers and one entitled most to man's care and benevolence was his mother. 15. Islam also conferred on women, almost 1400 years ago, the right to hold and to enjoy properly, independent of their husbands; their fathers and their brothers. One of the indispensible conditions of a Muslim marriage is payment of dower money which is either a specified amount of money or a specified item of property. This payment of dower by the husband to his wife at the time of marriage is, amongst other things, a recognition on the part of the husband, of the wife's right to acquire, hold and enjoy property. Needless also to mention here that Islam made a female a share-holder in the estate left behind by her father, mother, husband and children. One of the verses on the subject is reproduced as under :-- "From what is left by parents And those nearest related There is a share for men And a share for women, Whether the property be small Or large,-a determine share." Surah 4.7. 16. I conclude this aspect of the judgment by summarizing hereunder, the status conferred on the females by Islam :-- (i) woman was granted recognition as an independent, social and legal entity; (ii) woman was declared worthy of the same honour and respect to which a man was entitled; (iii) it was declared that it was not the woman alone who was responsible for the man's fall from heaven but it was both, the woman and then man who had fallen aprey to the deceit of Satan; (iv) woman was permitted the same social and legal status which was due to a man except in certain specified spheres which distinction had been created by Allah not to lower the prestige of a woman but for the smooth and proper running of the society, and finally that (v) woman had same rights to acquire, hold and enjoy property as a man possessed. 17. An impression, though incorrect, is however in currency in certain quarters that according to the Islamic set up of society, men were the masters and women the slaves. Although the above-quoted verses of the Holy Quran and the Ahadiths (the sayings of the Holy Prophet (S.A.W.)) are sufficient to dispel such an inference yet I consider it necessary to discuss this matter in some further detail. The relevant verses quoted in this context are as under :-- "Men are the protectors And maintainers of women, Because Allah has given The one more strength Than the other, and because They support them From their means ................... " Surah 4.34. And women shall have rights Similar to the rights Against them, according To what is equitable; But men have a degree Qf dvantage over them. And Allah is Exalted in Power, Wise." Surah 2.228. In the first quoted verse, Allah declares that He had given more strength to the men as compared to the females. Needless to mention here that only because one was physically stronger than the other did not mean that the one stronger had to be the ruler and the weaker in physical strength thus had to withdraw to the position of the ruled. A guard employed by an individual to protect and defend him does not become the master of his employer only because the guard happens to be superior in physical strength. We know that the basic unit of the society is the family and in a family a number of functions need to be performed. There has to be some one to defend and protect the members of the family from any threat to their safety or security. There also has to be some-one in the family who would go out and arrange food by hunting birds and animals as in the olden days and by earning of livelihood as in modern terminology. The family also has the natural urge towards re-production, thus the necessity to produce and then to bring up the new horns. Since it would not have been practically possible for the same individual to have undertaken all these assignments, therefore, in His ultimate wisdom, Allah Almighty distributed the pezformance of these functions between the Pair. As the security and the protection of the family and doing the hunting and earning the livelihood for them required more physical strength, therefore, the Creator bestowed the strength on one member of the couple and granted the other the capacity to produce their like and to bring them up. The men have one kind of obligations to discharge while the females have certain other duties to perform. Thus the man and the woman might well be different from each other in some ways but it would be fallacious to hold that this differentiation implied the superiority of the one over the other. If men have certain qualities reserved only for them, then the females also have certain characteristics peculiar to them alone. 18. It is also common knowledge that a group or a team of individuals which has to exist and operate together, has to have a leader or a captain, otherwise anarchical consequences could follow. Never has the captain of a team or a leader of a group been considered the ruler. He might at best be the first amongst the equals. And I may add here that never has it ever been mentioned by Allah that men were the rulers and the women were their servants or salves. As has been mentioned-above, it is just a matter of division of labour and I may also refer here to a saying of the Holy Prophet (S.A.W.) which is as under :-- "A woman is the incharge of the house-hold and shall be questioned about the same." Sahi Bokhari, Kitab-ul-Amaarah. 19. A reference is at times also made to the Commands of Allah where He, while granting share to a woman in the inheritance, decided that a woman shall get half of what a man gets. This is not because the man is twice as superior but because in His infinite wisdom Allah had charged the man with tie responsibility of supporting and maintaining the family. This is so mentioned in Surah 4.34 quoted above. 20. Curiosity and rebellion is inherent in every human being which is examplified by the eating of the forbidden fruit. And it is also ingrained in the nature of the mortals that to him or her, grass on the other side of the fence always looks greaner. Therefore I am not surprised to find females craving to be let outdoors to become professionals and the men yearning for opportunities to be able to stay home. The above-noticed is, however, the Divine division of labour and it is our faith that Creator knows his creations the best (Surah 67, 14 Supra) and it is also a part of our faith that once He has ordained a matter then we must un-questioningly submit to His will (Surah 33.36 Supra). 21. However, Allah has, for our benefit explained that some have edge over others in certain matters not only as between men and women but also between men and men so that the system could be made to work and that we could also be tested. "Is it they who would portion out They Marcy of the Lord? It is We Who portion out Between them their livelihood In the life of this world: And We raise some of them Above others in ranks, So that some may command Work from others: But the Mercy of thy Lord Is better than the wealth Which they amass." Sura h 43.32. "It is He Who hath made You His agents, inheritors Of the earth: He hath raised You in ranks, some above Others: that He may try you In the gifts He hath given you: For thy Lord is quick In punishment: yet He Is indeed Oft-Forgiving, Most Merciful." Surah 6.165. 22. Since this distribution of gifts and blessings was with a purpose, therefore, Allah commanded us not to cry and grumble over this Divine will. Reference is made to the following verse:-- "And in no wise covet Those things in which Allah Hath bestowed His gifts More freely On some of you. Than on others: to men Is allotted what they earn, And to Women what they earn: But ask Allah of His bounty: For Allah hath full Knowledge of all things." Surah 4.32. 24. It might be of consolation to us that this differentiation exists not only between men and women and men and men but was there even amongst the Prophets and Apostles. We know that one of them could ride the air; could understand the language of the birds and animals and had control over JINS while another had the gift of conversing directly with ALLAH and yet another was endowed with the power to cure the blind and to put life into the dead. The following verses confirm the excellence which some Prophets had over the others :-- "Those apostles we endowed with gifts, Some above others: To one of them Allah Spoke; others He raised to degrees of Honour; to Jesus the son of Mary We gave Clear signs, and strengthened him with The Holy Spirit ............................. " Surah 2.253. "And it is your Lord that knoweth best all Beings that are in the heavens and on Earth: We did bestow on some Prophets more And other gifts than on others: and We gave To David the gift of the Psalms." Surah 17.55. And yet We stand commanded to say that :-- " ..... We make no distinction between One and another of His messengers ..... " Surah2.285. Therefore, the conclusion is inevitable that this differentiation in certain matters, amongst various creations, as noticed above, in not intended to make some superior to the others or to make some the masters and others the servants. 24. Having thus identified the status and the placement of the women in our society; their rights and obligations, I now proceed to the next question which requires attention i.e. how does Allah expect the females to conduct themselves indoors and out-doors and also vis-a-vis the men. 25. Amongst the basic urges inherent in every being, be it an animal or a human being, one of the strongest is the sex. The Creator knew that if the human beings were to be left un-checked and un-guided in the matter of sex then the same would lead to disastreous results. The unfortunate and the unpleasant consequences faced today by the more permissive societies are unknown to none and thus need not be mentioned in any detail. It was for this reason that we find some emphasis in the Holy Quran and the Ahadiths of the Holy Prophet in the matter of unbridled inter-action between the two sexes which stand bestowed with physical attraction for each other. Thus the command is all human beings to :-- "Guard the private parts." Surah 23.5. and: "Nor come nigh to adultery: For it is a shameful deed And an evil, opening the road To other evils." Surah 17.32. It may be appreciation that Allah did not just say that, "do not commit adultery" but commanded that do not come near it Therefore, what is forbidden is not just the commission of Zina (fornication) but all gestures, every act and every conduct which could ultimately lead to it It could be noticed also from the verses which are being reproduced below that Allah forbade all Fawahish (shameful and indecent deeds). These verses are as follows :-- " ............................... Come net Nigh to shameful deeds, Whether open or secret; Surah 6.151. "Say: The things that my Lord Hath indeed forbidden are: Shameful deeds, whether open Or secret; ............................ " Surah 7.33. " .................. and He forbids All shameful deeds, .................. " ^ Surah 16.90. "Those who avoid the greater Crimes and shameful deeds, And, when they are angry Even then forgive; .................... " Surah 42.37. "Say: Nay, Allah never Commands what is shameful. Do ye say of Allah What ye know not? Surah 7.28 Knowing that a contact between man and woman was liable to lead to undesirable nay, horrifying results, Allah advised the women to stay in doors, as is apparent from the following verse:-- "And stay quietly in Your houses, and make not A dazzling display, like That of the former Times Of Ignorance; and establish Regular Prayer and give Regular Charity; and obey Allah and His Apostle. And Allah only wishes To remove all abomination From you, ye Members Of the Family, and to make You pure and spotless." Surah 33.33. And further commanded that if at all the women required to go out-doors, then following rules were to be observed : "And say to the believing women That they should lower Their gane and guard Their modesty; that they Should not display their Beauty and ornaments except What must ordinarily appear Thereof; that they should Draw their veils over Their bosoms and not display Their beauty except To their husbands' their fathers, Their husbands' fathers, their sons, Their husbands' sons, Their brothers or their brothers' sons, Or their sisters' sons, Or their women, or the slaves Whom their right hands Possess, or male servants Free of physical needs, Or small children who Have no sense of the shame Of sex; and that they Should not strike their feet In order to draw attention To their hidden ornaments. And 0 ye Believers! Turn ye all together Towards Allah, that ye May attain Bliss." Surah 24.31. "O Prophet! tell They wives and daughters, And the believing women, That they should cast Their outer garments over Their persons when abroad: That is most convenient, That they should be known As such and not molested: And Allah is Oft-Forgiving, Most Merciful." Surah 33.59. The caution that Allah expects the females to exercise when they come into contact with men is further evident from the following Verses:-- "O Consorts of the Prophet! ye are Not like any of he other women: If Ye do fear ALLAH, be not too complainant Of speech, lest one in whose heart is a Disease should be moved with desire: but Speak ye a speech that is just" SURAH 33.32. ".. And when ye ask his ladies For anything ye want, ask them from Behind a screen: that makes for greater Purity for your hearts and for theirs. SURAH 33.53. 26. The intention of ALLAH and consequently of His PROPHET (S.A.W.) appears to be to eliminate all possibilities which could attract men to women and women to men who were not married to each other. On one of the occasions HAZRAT IBN-E-UME-MAKTOOM (R.A.) who was a companion of the HOLY PROPHET (S.A.W.) and was totally blind came to the house of the HOLY PROPHET (S.A.W.) who asked his wife HAZRAT UME-SALMA (R.A.) to observe HIJAAB (veil) to which HAZRAT UME- SAIMA (R.A.) replied that the gentleman was totally blind and could not see her. The HOLY PROPHET (S.A.W.) remarked that the gentleman was blind but She was not (SUNAIN ABIDAWOOD.) The HOLY PROPHET (S.A.W.) had also prohibited the females from using perfumes when going outdoors lest the fragrance attracted some men towards them (SUNAIN ABI DAWOOD) (KITAB-AL-RAJL). 27. Having thus examined the commands of Allah regulating the conduct of the females vis-a-vis their, contact with men, the inference is obvious that Allah and His Prophet (S.A.W.) abhor any liaison between men and women except between the legally Wedded spouses or between the ones in the prohibited degree and of course the children and the ones who are too old. The logical conclusion would obviously be that pre-marital and extra marital liaisons between men and women stand prohibited and bannished in an Islamic set-up. Thus, any courtship or romantic affair between a man and woman other than between the ones married to each other, are not permitted in Islam. The verses of the Holy Quran are also available which verify and sanctify this conclusion. They are as under :-- "........But do not make a secret contact with Them except in terms Honourable " Surah2.235. "Also prohibited are women already married, Except those whom your right hands possess. Thus hath Allah ordained prohibitions Against you: Except for these, all others Are lawful, provided ye seek them in Marriage with gifts from your property,-- Desiring chastity, not lust. ........................ " Surah 4.24. " .................. Lawful unto you in marriage are not Only chaste women who are believers, but Chaste women among the People of the Book, Revealed before your time,-When ye give Them their due dowers, and desire Chastity, not lewdness, nor Secret intrigues ........................ " Surah 5.6. 28. It is thus clear that making secret love affairs and taking paramours is a conduct condemned and prohibited by Allah. 29. Some of us decry the restz-ictions envisaged by the above-noticed regulations as a clog on one's basic rights. The exponents of this claim forget that no rights, any where, even in the most democratic of societies, are ever absolute. Look at any Constitution of any country of the world and one would find that every right guaranteed therein was subject to reasonable restrictions. American, is perhaps the only Constitution where fundamental rights are couched in un-conditional terms but then the U.S. Supreme Court moved in to declare that even if it was not specifically so stated that the rights could be subjected to reasonable restrictions, the State always had the right to impose reasonable conditions thereon. This is what came to be called the Police Powers of the State. And then it was not an orthodox religious scholar of the East but a political philosopher of the West who said that the man was only born free but was in chains every-where. 30. We have before us the examples of those societies which could not maintain a proper balance between the extent of the individual's freedom and the limits to which the individual's rights extended. The result is legalisation of carnal inter-course against the order of nature; the so-called marriages between brothers and sisters; un-married wives'; un-married 'husbands'; unwed mothers and parentless children. If this is freedom then I am afraid this is only a freedom from all civilised norms of society and a freedom to take human beings back into the animal world. Sex, co-habitation and the instinct of procreation exist both, among animals and among the human beings. The civilization, the Divine Books and His Messangers transformed, for us, a mere animal cohabitation into an institution of marriage and raised a temporaiy carnal relationship to an honourable and durable union between men and women which also provided for a lasting bondage with the products of this union. 31. Some of us also clamour to break all shackles of morality and reasonableness on the pretext of following the more knowledgeable and the more progressive West. This, to my mind, is a false accusation on the people inhabiting that part of the globle. Not many years ago, a rather strong Presidential candidate in one of the countries of the West appeared to be found involved in an extra-marital relationship with a lady. Not only that the gentleman had to withdraw from the race but has in fact disappeared into oblivion eversince. Another gentleman from the same country who stood nominated for the judgeship of a superior court got accused of having, some times in the past, made passes on a female colleague. The gentleman was put through a humiliating, worldly televised, public test and was cleared to be a judge only after he had cleared himself of the charge as a result of a marathon and a deeply embarrassing bout. These are the values to which the West still holds steadfastedly. It is just that the common man in the streets of the West has got led astray which is definitely a source of great concern and anxiety amongst the leaders of those nations. I am tempted to quote some passages from two judgments of U.S. Supreme Court in verification of this fact. The first case is Myra Bradwell vs. State of Illinois (83 U.S. 442) :-- " ... On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divide ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong or should belong to the family institution, is repugnant to the idea of a women adopting a distinct and independent career The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases " The next case, and a more recent one, decided on 20.11.1961 is Gwendolyn Hoyt vs. Florida (368 U.S. 57) :« " ...... Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, women is still regarded as the center of home and family life " 32. This brings me to the consideration of the question of relationship between the children and their parents and the obligations, if any, arising therefrom. The relevant verses of the Holy Quran are as under:- "And remember We took a covenant from the children of Israel to this effect: Worship none but Allah; Treat with Kindness your parents and kindred, and Orphans and those in need; Speak fair To the people; be steadfast in prayer, And practise regular charity. Then did ye turn back, except a few among you, And ye backslid even now. Surah 2.83. "They ask thee what they should spend In charity. Say: whatever ye spend That is good, is for parents and kindred And orphans and those in ant and for Wayfarers. And whatever ye do that is Good,-Allah knoweth it well." Surah 2.215. "Serve Allah, and join not any partners With Him: and do good--to parents, Kinsfolk, orphans, those in need, Neighbours who are near, neighbours Who are strangers, the companion by Your side, the way-farer ye meet, and What your right hands possess. For Allah loveth not the arrogant, The vain glorious--." Surah 4.36. "Say: 'Come, I will rehearse what Allah hath really prohibited from you': Join not anything as equal with Him; Be good to your parents ......................... " Surah 6.151. "Thy Lord hath decreed that ye worship none but Him, and that ye he kind to Parents. Whether one or both of them Attain old age in thy life, say not to Them a word of contempt, no repel them, But address them in terms of honour. And, out of kindness, lower to them the wing of humility, and say: 'My Lord! bestow on them thy Mercy Even as they cherished me in childhood!. Surah 17.23 and 24. "We have enjoined on man kindness to parents ............................... " Surah 29.8. "And We have enjoined on man to be Good to his parents: In travail upon Travail did his mother hear him, And in years twain was his weaning: Hear the command, 'show gratitude To Me and to thy parents: To Me Is thy final Goal'. Surah 31.14. "We have enjoined on man kindness to his Parents: In pain did his mother bear him, And in pain did she give him birth. The carrying of the child to his weaning is A period of thirty months. At length, when He reaches the age of full strength and Attains forty years, he says, '0 my Lord! Grant me that I may be grateful for Thy Favour which Thou hast bestowed upon me And upon both my parents, and that I may Work righteousness. Such as Thou mayest approve; and be gravious to me in my issue. Truly have I turned to Thee and truly Do I bow to Thee in Islam'." Surah 46.15. "Then, when the son reached the age of Serious work with him, he said: 'O my Son! I see in vision that I offer thee in sacrifice: Now see what is Thy view! The son said: 'O my father! do as thou Art commanded: Thou wilt find me, If Allah so wills, one practising patience And constancy'" Surah 37.102 "O mankind! reverence your Guardian-Lord, Who created you from a single person, Created, of like nature, His mate, and From them twain scattered like seeds Countless men and women;--Reverence Allah, through Whom ye demand your Mutual rights, and reverence the wombs That bore you: for Allah ever watches over you." Surah 4.1. "O ye who believe! save yourselves and your families from a Fire ................... " Sura h 66.6. Having read these verses what becomes obvious is that in addition to the will of Allah, a human being owes his creation and his existence to his parents. How can one not remember the pain and misery that his mother had suffered while conceiving him and then carrying him in her womb for nine months; the discomfort that she had faced in delivering him and the suffering that she experienced in bringing him up in that part of his age when he could neither walk nor talk and when he could not even express or describe his wants? How can one become oblivious of how his father had toiled day in and cay out; how his father had shed his blood and sweat and how he had remained un-rested and un-slept so that he could earn enough to cater for his child's needs and to make his child's life comfortable and secure'. Should then this child, when he comes of age, discard these benefactors and either dump them in the old peoples' homes or throw them in the bin like one throws away the used and the useless articles. Thus if Allah commands us to be kind and gentle to our parents than this command is not without a cause. In Hazrat Ismail (A.A.), we find the right example of what a person owes to his parents and how a person should willingly sub nilt to the wish of his parents even if it involved laying down of his life. Does it behove a person when he is grown-up, to say that since he or she had become Sui Juris, therefore, she or he did not need to listen to his or her parents any more or even to consult them in any matter concerning him or her? 33. Needless to add here that one would notice from the above verses that in the matter of obligations that Allah casts on individuals, one's obligations and one's gentle and kind conduct towards one's parents stands placed immediately after the command to worship Allah and none other than Him. This is then the divine indication of what importance Allah attaches to one's parents and to one's obligations towards them. 34. Besides Surah 4.1 quoted above, Surah 6.6. above referred, is also an evidence of the importance that Allah attaches to a family system. This inference is further strengthened when we find that when Allah orders us to be gentle and kind to our parents, He also commands us to show similar kindness to the Aqrabeen (the ones near and around us). Allah emphasises strengthening of the family bondages because He knew the welfare of society lay in the protection and preservation of the family system. The lessons of the societies which did not and could not maintain this system and the consequent miseries that they suffered and are still suffering, are not far to find. It is not surprising that in the 1992 American Presidential Elections, one of the issues on which the compaign of both the candidates revolved was the steps that were required to be taken to restore the family system to that the fabric of their society could be re-constructed on correct lines. 35. Needless to mention here that inherent in the existence and the preservation of social groups, the family system and the society, is the basic requirement for each member of such groups, families and societies to be willing to surrender some of his rights and desires and if every such member, claiming to be Sui Juris had to go his or her way without being prepared to sacrifice any of his pleasures or desires then the societies shall get blown off on account of disorder and anarchy. 36. The cardinal principle of enjoying one's rights is to exercise them in a manner that others did not get deprived of the opportunities of enjoying the rights vesting in them. One's rights end where the nose of another begins. And also that one is expected not to pursue one's pleasures in a manner that it causes disgrace, embarrassment and at times even injury and death of another. The parents sacrificed their rights and pleasures so that their children flourished. Should the children then insist on exercising their rights and pursuing their pleasure in a manner which sinks the parents in shame, is a question not difficult to answer. 37. It is said that the commands of Allah such as the ones regulating one's conduct towards one's parents were only directory in nature and not mandatory because the Holy Quran did not envisage any corporeal penalties for the ones contravening them. The interpretation is appalling. Should one not pay Zakat (religious tax) or not keep fasts nor offer prayers or should one worship others besides Allah because not doing or doing all this did not entail corporeal punishment in this world? What an appreciation of Divinity and His messages? Even if it be presumed for the sake of discussion that the above-noticed is just a pious wish of Allah, or a command neither mandatory nor culpable, then how many have we seen ignoring a wish of the ruler or violating his command only because the breach was not punishable? And here we are talking of a desire, even if it be just a desire, of the Ruler of all rulers. 38. Having found that as per the Islamic Principles and Injunctions a woman was a social and legal entity independent of her father, husband, brothers and the like; that she had the same status as that of a man except in certain specified matters; that this edge which men had over women in certain matters did not make the men the rulers and the women their salves; that no man whatever his capacity, had any proprietary rights over females and also having found that Allah and His Prophet (S.A.W.) did not encourage women to leave their homes and to go out-doors and further that Allah and His Prophet (S.A.W.) abhorred un-checked intermingling of the two sexes: and having thus assessed the parameters prescribed by Islam in this context, I now proceed to determine whether a marriage contracted by a female otherwise than through her Wall (guardian) was or was not valid in terms of the Islamic Commands. 39. Dr. Syed Riaz-ul-Hassan Gillani, Advocate and Malik Muhammad Nawaz, Advocate, who addressed the Court on behalf of the parents of the females who are parties to the marriages in question, submitted that a Nikah (marriage) contracted by a maiden female even if she was an adult and sane,- was invalid if this marriage had been contracted without the consent of her Wall (guardian). Reliance was placed on the Ahadiths allegedly emanating from the Holy Prophet (S.A.W.) which are as under :-- (There is no Nikah (marriage) without a Wali (guardian)). (The women who contracts marriage without the permission of her Wali, her Nikah (marriage) is invalid, invalid, invalid. And if the husband has cohabited, then he shall have to pay dower money. If there is difference of opinion or if one has no Wa/i then the ruler is the WaZi.) Reference had also been made by these learned Advocates to various other Works and Commentaries carrying the same view. Most of the authors of these authorities belong to Shaafi and Maliki Schools of Thought. The learned counsel also attempted to show that some Jurists, though the followers of Imam Abu Hanifa also held the same view. An effort was also made to demonstrate that Muhammad Imtiaz's case decided by the Federal Shariat Court and reported as P.L.D. 1981 F.S.C. 308 proceeded on inaccurate authorities and was thus not a good law. The learned counsel had also placed reliance on certain judgments of the Supreme Court but I am not noticing the same because they were not specifically relevant to the question in issue. 40. Mr. Khalid Ishaq, Advocate Dr. Abdul Basit, Advocate and Mrs. Asma Jehangir, Advocate who led the arguments in defence to the marriages contracted by the girls without intervention and the consent of their Watts, however, contended that the Fiqah being followed generally in Sub- Continent and in Pakistan was Hanfl Fiqah and that Imam Abu Hanifa (R.A.) was of the considered opinion that the above-noticed Ahadith, relied upon by the other side were not sound and had not been followed by Imam Abu Hanifa (R.A.). These learned Advocates also brought out books and works in support of the view canvassed by them. 41. Having examined the literature produced by both the sides and also having considered the opinions of the Aaimma (Leaders of different Schools of thought), I find that theAaimma are rather sharply divided on the issue in question. According to the Shaafi, Maliki and the Humbali Schools, the marriage of an un-married girl even though she was sane and adult, was invalid if she had entered into such a marriage without the consent of her Wall (guardian) but if co-habitation had ensued as a result of this marriage, then the man was required to pay proportionate dower money to the female and further that the man and the woman involved in this cohabitation were not liable to be punished for fornication. 42. According to Imam Abu Hanifa (R.A.) and the Shia Schools of thought, a maiden, if adult and sane, was competent to enter into a marriage and did not require the consent of a Wall for its validity. Some of the later Hanifls however added that a marriage contracted without the consent of a Wali would be valid only if the man qualified as a Kufw of the female and also if .the dower fixed in respect of this marriage was not inadequate. These Scholars and Jurists further opined that if these two conditions relating to Kufw and dower money djd not stand satisfied then the Wali of the bride was entitled to approach the Qazi (Court of Law) and could demand annulment of the same. It may be mentioned here that Kufw is stated to mean, interalia, that the man should come from a background similar to that of the woman and should have a status in the matters of education, wealth and family back-ground which is similar to that of the female. To demonstrate the Shia view, reliance is placed on Marriage, According To Five Schools of Islamic Fiqa Part-2 (By Allama Muhammad Jawad Maghniyyah). The Shaafi and the Maliki view can be found, amongst others, in Trimzi Sharif Sunnan Abu Dawood, Sunnan Ibn-e-Maaja, Almustadrak-Alassahihain by Imam Abn-e-Abdullah Al-Hakim Naishapuri), Neel-ul-Autar and Sharah Muani-al-Autar. 43. Inter-alia, Fataawa-Alamgiri, Fatah-ul-Bari, Tuhfat-ul-Ahwazi Sharah Fatah-ul-Qadeer by Ibn-e-Humman and Al-Binai Feie Sharah-Al- Hidaya of Allama Aaine, are the Works carrying the above-noticed Hanafi view. 44. Muhammadan Law, Rassail-o-Massail by Syed Abu-Al-Alla Modoodi, Fatah-ul-Bari, A Dictionary of Islam by Thomas Patric Hughes and the Code of Muslim Personal Law by Dr. Tanzil-ur-Rehman, notice the difference of opinions between the various Schools of thoughts as abovementioned. 45. .Sarakhsi who belonged to Shaafi School explains in his book Al- Mabsoot that the insistance of the Shaafi view on the consent of Wali was based on the reason that the young girl intending to get married may not be able to take proper care of Kufw and adequacy of dower. Similar is the view of Imam Shah Wali Ullah Mohaddis Dehlui expressed through his book Hujatul-Balagha. 46. Neel-ul-Autar makes a mention also of Imam Abu-Yousafs view ccording to which if a marriage without Wali was amongst the Kufw then it was valid otherwise, it was liable to be annulled at the instance of the Wali. Similar view also finds mention in Dr. Tanzil-ur-Rehman's Code of Muslim Personal Law as also in Muaarif-ul-Quran by Maulana Mufti Muhammad Shan. 47. Dr. Muhammad Hawass Qallaji of Dharan University of Saudi Arabia has compiled the Fiqah of various Caliphs (R.A.) In his book Fiqah Hazrat Umer (R.A.), while he mentions that Hazrat Umer (HA.) was of the opinion that a marriage without a WiaZi was invalid yet he quotes a case from Hazrat Umer'a Court that in respect of a female who had contracted marriage without her Wall, the Caliph had ordered that she be punished with 100 stripes. No indication is available as to whether the marriage contracted by this female had also been annulled by the Caliph. The possibility thus could not be ruled out that the Caliph punished the female for having entered into a marriage in a manner which was not proper and then permitted the marriage to continue. In Fiqah Hazrat Ali (R.A.), we find at page 751 that Hazrat Ali (KA.) was also rather strict about females getting married without the consent of their Win/is. But two cases decided by Caliph Ali (R.A.) are also quoted: one relating to a lady by the name of Sal a from Aiz-Ullah tribe where the marriage had been arranged not by a male guardian but by the mother of the girl and since the marriage had got consummated the Caliph Ali (R.A.) did not annul the same. Then there was the case of a girl by the name otBehriah who was the daughter of one Hani- Bin-Qabisa and had on her own entered into marriage with Qaqa-Bin-Shore and on a complaint made by he father of the girl, the Caliph Ali (R.A.) did ot annul the marriage because co-habitation had taken place. About this Behnah's case there is also a tradition that her arriage had been arranged by her mother to which the father was not a party. This case is also reported by Sarkhasi in Kitab-al-Mabsoot. 48. Dr. Syed Riaz-ul-Hassan Gillani, Advocate made an effort to show that the a above-referred Federal Shariat Court judgment was not binding on this Court. In view of the provision of Article 203-G.G. of the Constitution, I cannot accept this view. 49. The position which thus emerges is that : (i) Malikis, Shafe's and Hambal's find that the marriages of the type in question, without Walis, are void; (ii) Hanafis and Shias hold just the opposite view; (iii) according to the Ahadith mentioned at no. (ii) above, such a marriage is void but if cohabitation takes place then proportionate dower has to be paid and the two are not guilty of fornication. If marriage was void then why dower? (iv) then there are other Jurists and Scholars who declare that a marriage without a Wali is not void if contracted with a Kufw and with adequate dower money, (v) Hazrat Umer (R.A.) only punished the girl but there is no evidence that He annulled the marriage; (vi) (vi) Hazrat Ali (R.A.) also did not annul the marriage without a Wali where it had been consummated; (vii) the Federal Shariat Court does not consider such a marriage as void and finally that; (viii)the authenticity of the Ahadith in question is in serious doubt. 50. There is thus a division amongst the Aimmah, the Jurists and the Scholars of the Ummah (the Muslim) on the issue in question as a result of which the veracity or soundness of the Ahadith in question becomes hazy and open to doubt 51. But there are certain other matters relating to the c ontroversy under adjudication which are open to no doubt and are incontrovertible i.e. the revelations of Allah on the subject which stand quoted by me supra. The position obtaining therefrom is as under:-- (a) The females should ordinarily stay indoors; (b) if a woman needs to go outdoors then she must extend her veil over her face; must cover her chest and should not indulge in any act which could attract men, and that, (c) if it becomes inevitable for her to talk to a man then she should not talk in a mild and a pliable tone and further that if some one needs to ask her for some-thing then she should talk to the man from behind a screen or a veil. 52. Then there is the command of Allah :-- (a) not to go near fornication or adultery; (b) not to indulge in Fawaahish (shameful, immoral and indecent deeds), and finally, (c) the prohibition about pre-marital or extra-marital relationships and the secret courtships and secret marriages. 53. The detailed discussion supra, reveals also that children are ordained to obey their parents; to be kind to them; not to offend them by words or by deeds and not even to say 'Uff (expression of displeasure) if the parents were to say something which was not to their liking. 54. The verses of the Holy Quran noticed in the earlier part of this judgment further demonstrate the recognition granted to the Family System and the respect and importance which Allah and His Prophet attach to it. 55. There is yet another aspect of this matter. Societies are known to be cautious and careful in the matter of admitting strangers to their fold. The laws recognizing and consequently granting the right of pre-emption provide ample evidence of the existence of this norm amongst the human beings. If an outsider is sought to be introduced in a vicinity or a locality, the law of pre-emption confers a right on the ones in the neighbourhood to decide whether they would or would not accept such a person in their midst. Needless to state that a family is a much more closely knit entity than a neighbourhood and the members of a family have far greater lights and claims on each other than the neighbours in a locality. If the neighbours have legal rights in the matter of outsiders entering their locality then how could it be said or maintained, legally, logically, socially or religiously that the members of a family would have no such right in the matter of strangers being brought into the house-hold either in the form of a son-in-law or the form of a daughter-in-law? 56. This being so, let us now examine the marriages which are in dispute before us. Take the case of Ms. Saima. Her family had employed her alleged husband as a tutor to coach brother and thus trusted him with access to their house-hold. She came into contact with him. Says she developed a liking for him. The two then established a secret liaison and instead of approaching their respective families or parents to persuade them to accept the two in their respective families, they surreptitiously contracted a secret marriage. More than a month after this alleged marriage, Ms. Saima suddenly disappeared from the house to the horror of the family who ultimately found her parked in a destitute home. 57. Which part of this entire exercise is in consonance either with the above-mentioned commands of Allah and His Prophet (S.AWJ or in conformity with the dictates of the established norms of our society ? When we put this quest on to Mr. Khalid Ishaq, Advocate, he frankly conceded that he did not approve of such a conduct either on the part of Ms. Saima or on the part of her husband. 58. This brings me to the conclusions that I draw from all that has been discussed by me above and the same are as follow :-- (a) invalidating a marriage entails rather serious and even penal consequences not only for the wife and the husband but even for the innocent children born out of such a union. Such a declaration could therefore not be given unless material was available which was of an un impeachable character admitting of no doubt. The authenticity of the Ahadith relied upon for the purpose is not in-controvertible. Therefore it could not be said that the marriages in question were invalid and I hold accordingly; (b) the consent of the man and the woman who are getting married is an indispensable condition for the validity of a marriage and a Wali has no right to grant such a consent on behalf of the woman without her approval; (c) Islam abhors establishment of liaison between men and women and courtships, pre-marital relationship, secret friendships and secret marriages are forbidden in Islam; (d) the parents and the family have a definite importance and place in the social set-up ordained by Allah. Although, it is not possible for me to hold that the parents or the family could have a right to force some one to many a particular individual yet they have a right to be consulted and their wishes were entitled to respect; (e) the concept of a young girl or a boy for that matter, venturing out in search of a spouse is alien to the teachings of Islam and even otherwise this scheme of Husband- Shopping which obviously involves testing and trial of the desired material is fraught and pregnant with dangers and cannot b« viewed with favour; (f) instances are not un-known where certain person or class of persons, for certain acceptable reasons, do not go out shopping. They notify their requirements and preferences to their agents who look for the required items; report back about whatever is available in the required category and the concerned person then makes the final choice of whatever appears attractive to him from the available lot In the light of Islamic Injunctions and the established social and moral norms of our society, this appears to be the ideal scheme for chosing marriage partners. Let the elders of the family-males or females do the search and even research and then let whatever is available be put before the boy or the girl, as the case may be, who should then have the final choice in the matter. This procedure would also be in consonance with respect and dignity of all concerned and would even eliminate crime which erupts where marriages are contracted in a manner which injures honour and pride; (g) discretionary relief in equity is available only those who approach a Court of Law with clean hands. Persons having acted in a manner not honourable or having acted in breach of the established social and moral norms of the society, dis-entitle themselves to any relief in equity. As has been mentioned above, the persons who are parties to the kind of marriages which are in question, are ones who have contravened the wishes of Allah; who have offended their parents and families and who have violated the established values of the society. It is, therefore, declared that such-like persons are not worthy of any relief in equity; (h) There may be cases where the parents or the elders or the family have either failed to discharge their obligations in the matter of looking for marriage partners for their children or are intentionally avoiding it for ulterior motives. In such a case, any such child shall have a right to approach the competent Court complaining of this inaction on the part of his/her parents etc. and if the Court finds that the elders etc. are in default, then the Court shall grant a certificate to that effect whereafter no blame shall lie on such a person if he or she gets married, of his or her own accord; (i) authority is also available in Islam that in case of a dispute between the Wall and the child, in the matter of the choice of a spouce, the Qazi (Court of Law) can be approached who shall then resolve the issue. It will, therefore, be open to a person, if his or her parents do not accept the choice made by him or her having acted not in breach of social or religious values, to approach a Court of Law for the settlement of this dispute; (j) The menace of Shighaar (giving a girl in marriage to someone and taking a girl in return) and the menace of giving daughters and sisters etc. in marriage for money, are rampant in certain sections of our society. Allah condemns such-like practices. Any girl who is being forced into such a marriage shall also have right to approach a Court of Law to seek protection and if the Court finds that the girl is being bartered away, then the Court shall pass necessary orders including an order absolving the girl from her obligations towards such-like parents and elders etc.; (k) it has been held by me above that parents or the family are not absolute aliens to the institution of marriage. In one of the cases before use, the girl had allegedly eloped with a Christian driver. The situation though could be reverse also in so far as it relates to the matter of faith etc.. There are thus cases where the boy or the girl act on sheer momentary impulses which decisions are patently not in their interest and which are also a cause for shame and disgrace to the whole family. In such a situation, the aggrieved person shall have a right to initiate proceedings in the competent Court seeking annulment of such a marriage. The Court shall then have the power to annul a marriage if after hearing all concerned; after taking into account the wishes of the family and after considering all the attending facts and circumstances, in the exercise of its parental jurisdiction, it finds that it shall be in the interest of all concerned if the marriage in question wai not permitted to continue. The aggrieved person, for the purposes of these proceedings, shall mean the parents; in their absence, the brothers and in their absence, any-one falling within the prohibited degree of the concerned girl as prescribed by Islam. In providing this remedy, I am moved and fortified by the fact that law permits recision of contracts which are against law, against morality and against public policy etc.; and by the fact that the marriage ofHazrat Zainab (R.A.) who was a cousin of Holy Prophet Muhammad (S.A.W.) and had been married off to Hazrat Zaid (R.A.) who had been a slave, had been dissolved at the instance of Hazrat Zainab (R.A.) on account of incompatibility of the parties, and finally by the fact that it will eliminate cases where aggrieved persons, finding no remedy, report to extreme measures by taking law into their hands. 59. Pre-martial and extra-marital liaisons, courtships, secret friendships and secret marriages are not only offensive to the Commands of Allah but are also one major source of serious crime in our society. I would, therefore, recommend that the Executive and the Legislature examine the desirability of enacting laws to take care of this menace and to provide remedies as mentioned by me in para 58 above. I would further recommend that the Legislature also consider the advisability of making such-like immoral relationships and secret marriages etc., a penal offence. 60. Till such time that the Legislature moves in the matter, the remedies that have been made available, in the larger public interest of the society in terms of para 58 above, shall lie before the Family Courts of the concerned areas and the decision and the orders etc. passed in these proceedings or as a result of the same shall be subject to appeals etc. as if they were orders arid judgments etc. passed by the Family Courts in exercise of the jurisdiction conferred on them under the West Pakistan Family Courts Act of 1964. 61. Since I have held that the marriage between Ms. Saima Waheed and Arshad Ahmad cannot be declared to be in-valid and since Ms. Saima Waheed had started residing in 'Dastak' of her own free will, therefore, she could not be said to be in illegal custody at the said 'Dastak'. She is, therefore, declared to be at liberty to reside wherever she pleases. 62. Crl. Misc. No. 425/H-96 filed by Hafiz Abdul Waheed is disposed of in these terms. 63. Since I have declared that Ms. Saima Waheed is at liberty to stay wherever she pleases, Crl. Misc. No. 435/H-96 and W.P. No. 6468/96 filed by her seeking the said relief have become infructuous and are disposed of accordingly. 64. Having decided the issue in question, all other matters shall be placed before a learned Single Bench for disposal in accordance with law. 65. Before parting with this judgment, I would like to bring on record my deep appreciation of the valuable assistance rendered to us by all the learned counsel representing various parties before us, especially Mr. Khalid Ishaq, Advocate, Dr. Syed Riaz-ul-Hassan Gillani, Advocate Ms. Asma Jahangir, Advocate, Malik Muhammad Nawaz, Advocate and Dr. A. Basit, Advocate. order of the court For reasons stated in our respective judgments it is held and declared as per majority (Malik Muhammad Qayyum and Khalil-ur-Rehman Ramday, JJ) that the marriage in question contracted without the consent of the Wali is not invalid. In the view of the matter, Crl. Misc. No. 425-H/96 is dismissed while Crl. Misc. No. 435-H/96 and W.P. No. 6468/96 are disposed of as having become infructuous. All the other matters shall be placed before a learned Single Judge of this Court for decision in accordance with law. (MGB) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C ( Lahore ) 766 Present: mrs, fakhar-un-nisa KHOKHAR, J. SABRAN BIBI-Petitioner versus STATE etc.--Respondents Crl . Misc. 366/Q/96, in W.P. No. 3534/97. ( i ) Criminal Procedure Code, 1898-- Ss. 190 read with 561-A read with S. 452 PPC--Constitutional Petition- FIR-Lodging of--Non submission of Challan -Complaint against-- Assumption of jurisdiction on complaint treating it as challan -Challenge toA.A.G. admitted that challan was never submitted to Court nor it was registered in Registry of Sessions Court-Presiding Officer without verifying whether challan was available or not took cognizance of matter and summoned accused while investigation agency forwarded cancellation report of case-Impugned order of summoning accused, held, without lawful authority hence, set aside. [P. 768] B (ii) Criminal Procedure Code, 1898 (V of 1898)- -S. 439-A read with Ss. 435 and 561-A--Summoning of accused on complaint without submission of challan -Challenge toInherent powers of High Court-High Court is possessed with inherent powers of Section 561-A Cr.P.C . to give effect to any order and to prevent abuse of process of any Court to otherwise to secure ends of justice. [P. 767] A Ch. Muhammad Hussain Chuhan and Sardar Abdul Majid Dogara , Advocates for Petitioner. Mr. ZahidFarani Sheikh, A.A.G. for State. Date of hearing: 21.3.1997. judgment This is petition is converted into criminal revision under section 439- A read with section 561-A, Cr.P.C . 2. Brief facts of the instant petition are that a case F.I.R. 140/93 under section 452 P.P.C. was registered on 25.8.1993 at Police Station Sabaz Peer Tehsil Pasrur , District Sialkot upon the instant of one Honorary Captain (Retired). Bashir Hussain against the petitioner and others. 3. According to the contention of the petitioner this case was interrogated and a cancellation report was presented to the Court of competent Magistrate which was refused and sent back to the legal Branch nd again a cancellation report was submitted for the second time but this was also returned and uptill now no challan was submitted the Court of Ilaqa Magistrate. 4. The complainant filed an application for presentation of challan in the Court of Mr. Zafar Sultan, learned Civil Judge with powers of Ilaqa Magistrate. On this very application which was filed on 18.6.1996, the learned Magistrate assumed jurisdiction and on 24.6.1996 summoned the Inspector Legal and the accused for 21.7.1996 which cognizance of the matter is completely without lawful authority and jurisdiction since the challan uptill now is not submitted to the Court and the learned court cannot consider the application filed by the complaint as a report under section 173 Cr.P.C . and proceed with the case. 5. Learned A.A.G. on Court call is present and plea record produced by the Police Officer present in Court and on instructions, has submitted to this Court that only cancellation report was forwarded to the Court as the challan uptil now is not submitted to the Court of competent jurisdiction. He has however, contended that the instant writ petition is not maintainable as the impugned order being of revisable order could be challenged under section 135 Cr.P.C . before the revisional Court and being the adequate remedy the instant writ petition is not maintainable. 6. So far as the jurisdiction point is concerned, that Court is possessed with inherent power of section 561-A of Cr.P.C . to give effect to any order in this Court and to prevent abuse of process of any Court or otherwise to secure the ends of justice. Chapter XV of Cr.P.C . deals with the jurisdiction of criminal Courts of inquiries and trials. Section 190 of Cr.P.C . deals with the cognizance of offence by the Magistrates:- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than & police officer, or upon his own knowledge or suspicion, that such offence has been committed. In the instant case only an application was filed by the complainant to summon thijchallan . It is surprising that on that application it is written " and in the interim order dated 24.6.1996 the learned Magistrate has recorded: Learned A.A.G. present in Court per' instructions has admitted that the challan was never submitted to the Court of competent jurisdiction nor it was registered in the Registry of the Sessions Court. It is still not known who wrote that the challan has been submitted. The learned Presiding Officer without verifying whether the challan was available with the Court or not took cognizance of the matter and summoned the accused for 21.7.1996 while the actual fact is that the investigating agency forwarded cancellation report of the case which was not agreed upon by the learned Magistrate. 8. Therefore, the impugned order dated 24.6.1996 passed by the learned Magistrate is set aside being passed without lawful authority and jurisdiction. (MYFK) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Quetta) 768 (DB) Present: iftikhar muhammad chaudhary and raja fayyaz ahmed, JJ. MUHAMMAD SHAREEF-Appellant versus STATE-Respondent Criminal Appeal No. 233 of 1996, accepted on 7.4.1997.' (i) Administration of Justice- -Whether after dictating short order in the court whereby appeal was dismissed later on during process of recording reasons matter can be re opened or otherwise-Question ofSuch matters where a short order has been recorded, but before writing reasons in support thereof if new material comes in notice of court or on basis of available record if it is observed that an important aspect either has not been pointed out during arguments of case or it skipped notice of court, then in interest of justice decision already recorded can be altered in order to secure ends of justice. [P. 771] A (ii) Recovery- Arms ammunition-Recovery of-Prosecution failed to brought sufficient evidence on record-Coasequencies of-Prosecution has not brought sufficient evidence to connect appellant with recoveiy of arms ammunition taken out from three different places as such it is doubtful whether accused/appellant had control over arms ammunition recovered from them, therefore, it was difficult to conclude that he was found in possession these articles without valid documents-Appeal accepted. [P. 771] B Mr. Tahir Muhammad Khan, Advocate for Appellant. Mr. Ashraf Abbas, Advocate for State. Date of hearing: 18.3.1997. judgment Iftikhar Muhammad Chaudhary, J.-Precisely stating facts are that appellant Muhammad Shareef son of Ghulam Muhammad resident of Mand was suspected to be killer of a sepoy of F.C. namely, Makhia Din, but he was not being arrested. Accordingly on 23.2.1996 Intelligence Agencies revealed to Syed Aizaz Shah Bukhari PW-Wing Commander F.C. Turbat that appellant has arrived in his village to celebrate Eid. Thus a raid party was organised by the F.C. Officers alongwith Civil Administration and in the morning of 21.2.1996 at 08.00 hours he was arrested in presence of Abdul Hafeez Tehsildar Mand and allegedly following arms/ammunition were recovered from his possession:- "(a) Sub machine gun 02 numbers (b) Rifle Hamet 01 number (c) Rifle Cal-243 01 number (d) 12 bore shot gun s/b 01 number (e) Magazine Sub machine gun 08 number (f) Motorbike 01 number (g) Binoculars 05 numbers (h) Rounds sub machine gun 300 number (i) Rounds Rifle Harnet 125 number <j) Rounds Rifle Cal-243 02 number A case under Section 13-E of the Arms ordinance was registered on 22.2.1996 against the appellant because he failed to produce licence/documents for keeping the recovered articles in his possession. Investigation of the case was carried out by Tehsildar during course whereof he prepared site plan Ex. P/3-B and ultimately submitted challan before the Special Court Suppression of Terrorist Activities Balochistan. Charge was read over to appellant on 02.9.96 which was denied by him, as such prosecution led evidence of PW-1 Major Syed Aizaz Shah Bukhari, PW-2 Subedar Khan Muhammad and PW-3 Abdul Hafeez Tehsildar. Statement of appellant under Section 342 Cr.P.C. as well as under Section 340(2) Cr.P.C. was also recorded wherein he denied to prosecution case. Learned trial court vide judgment dated 26.1996 convicted and sentenced the appellant for four years RI with benefit of Section 382-B Cr.P.C. We heard the appeal on 13.3.1997 when for the reasons to be recorded later on appeal was dismissed upholding the conviction order, but when we started recording reasons it transpired that in view of site plan Ex P/3-B produced by PW-Ahmed Hafeez Tehsildar, it is not possible to conclude that the arms/ammunition were found in the exclusive possession of appellant because there were at least 3 houses situated at different places from where recoveries were effected and neither witnesses of F.C. nor Tehsildar in their statements clarified that which house was in the possession/Control of the appellant. Actually this point was not argued specifically by the learned counsel for appellant nor Mrs. Ashraf Abbas who appeared as State counsel. Since it was most important question for decision of the case, therefore, we decided to re-hear the appeal on issuing fresh notices. Accordingly on 18.3.1997 against parties' counsel were heard. Before dilating upon merits of the case foremost question for consideration is whether after dictating short order in the court whereby appeal was dismissed later on during the process of recording reasons matter can be re-opened or otherwise. As far as Criminal Procedure Code is concerned there are two important sections which can be put into service to over come the difficulty noted hereinabove. One is section 369, according to which save as otherwise provided by the Code or by any other law for the time being in force or in the case of High Court by the letters patent of such High Court, no court when it has signed its judgment shall alter or review the same except to correct a clerical error. Second provision is contained in Section 561-A according to which nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. In the former section subject to certain provisions of law or exercising jurisdiction of a High Court by the letters patent of such High Court which jurisdiction is now not available, no court even including the High Court will alter or review the judgment except to correct a clerical error. Thus it is necessary to examine that what is the definition of "judgment" whether short order disposing of the matter can be treated as 'judgment" or otherwise. In the Criminal Procedure Code word "judgment" has not been defined any where and same is the position in the Pakistan Penal Code. Honourable Supreme Court in the case of "Mulla Ejhar Ali vs. Government of East Pakistan" PLD 1970 SC 173 has held that "a judicial order must be a speaking order manifesting by itself that the court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate may be reached by laborious effort but if final order does not bear an imprint of that offered and on the contrary discloses arbitrariness of thought or action, the feeling of its painful results, the justice has neither been done nor seems to have been done is inescapable". This view was later on followed in the case of "Hqji Abdul Baqi & another versus Muzaffar Ali Khan & another" PLD 1978 Quetta 56. Following the dictum of honourable Supreme Court it is to be observed that only those pronouncements which contain reasonings on the basis of point put forth for consideration as well as material available on record. Admittedly when a short order is recorded and subsequently is signed by the court it also attains the status of the judgment as it has been held in PLD 1982 Karachi 250, therefore, in exercise of powers under Section 369 Cr.P.C. after passing of the short order "judgment" cannot be altered. Now we are left with the later provision, i.e., Section 561-A Cr.P.C. which confers inherent jurisdiction on the court on the basis whereof in the interest of justice court seized with the matter can pass an appropriate order to secure the ends of justice. Thus we are of the opinion that such matters where a short order has been recorded, but before writing reasons in support thereof if new material comes in the notice of the court or on the basis of the available record if it is observed that an important aspect either has not been pointed out during arguments of the case or it skipped notice of the court, then in the interest of justice decision already recorded can be altered in order to secure the ends of justice. In view of the above discussion now we would proceed to examine the statement of Ahmed Hafeez Tehsildar who produced Site Plan Ex P/3/B wherein in key notes at Serial No. 6, 8 and 9, 3 houses have been mentioned; whereas Serial No. 9 indicates that there is a bazar in between them. As per the house shown at Serial No. 6 a harnet rifle and a shot gun was recovered from the house located at Serial No. 8 and 9 two kalashinkoves separately were recovered. None of the witnesses appearing in support of prosecution case stated that out of those three houses which house belonged to appellant nor they stated that the arms ammunition was recovered at the pointation of appellant, neither it is stated he had possession of all the three houses, if not, then which house was in his possession. Thus it leads us to conclude the prosecution has not brought sufficient evidence to connect the appellant with the recovery of the arms ammunition taken out from three different places noted hereinabove as such it is doubtful whether the accused/appellant had control over the arms ammunition recovered from them, therefore, it was difficult to conclude that he was found in possession of these articles without valid documents and under these circumstation he was entitled for acquittal. For the foregoing reasons short order recorded in the court on 13.3.1997, whereby appeal was dismissed, is re-called. Consequently appeal is accepted and conviction/sentence passed by Special Judge Terrorist Activities against the appellant dated 26.9.1996 is set aside. Appellant is ordered to be set at liberty forthwith, if not required in any other case. (K.A.B.) Appeal accepted.
PLJ 1997 (Cr PLJ 1997 (Cr.C.) Karachi 772 Present: SYED DEEDAR HUSSAIN SHAH, J. ZULFIQAR ALI-Applicant versus STATE-Respondent Bail- -S. 497 Cr.P.C. read with S. 302 of PPC--Murder--Offence ofBail application-Accused was produced before Civil Judge and F.C.M. who after all legal formalities, recorded his confession which was read over to hira-Contention of accused that judicial confession has been retracted by him at an earliest opportunity is not born out from record-It is also not born from record that same has been recorded under duress-Plea of sudden provocation would be pre-mature because statement of accused is still to be recorded by trial Court after evidence by prosecution is concludedRole assigned to accused in FIR, judicial confession of accused, recovery of 7 m.m. rifle from possession of accused at the time cf his arrest are reasonable grounds to believe that accused is guilty of offence- Bail application dismissed. [Pp. 780 & 781] A & B Muhammad Afzal Soomro, Advocate for Applicant. Mr. Riaz Hussain Mughal, A.A.G. for State. Date of hearing: 12.3.1997. order Applicant/accused Zulfiqar Ali seeks bail in crime No. 1./1996 lodged with Police Station, Gaibidero for an offence under section 302 P.P.C. Brief facts of the case, according to F.I.R., are that complainant Muhammad Mithal alongwith Ghulam Qadir, Muhammad Hanif and Zulfiqar Ali (present applicant) went to their fields. Zulfiqar Ali used to say that Ali Sher son of Muhammad Ramzan Budhani Chandio was his "Kara"; that at about 2 p.m. when they reached near the water-course of Punhal Khan, they saw Ali Sher son of Muhammad Ramzan Chandio and Mst. Husna wife of Zulfiqar Ali embracing each other in bed of the canal. On seeing them, Mst. Husna ran away. Zulfiqar Ali had a rifle who fired direct shot upon AJi Sher who raised cries and fell down on the ground. They shouted upon Zulfiqar Ali who decamped towards west. They went and noticed fire arm injuries on the right lumber region of abdomen of Ali Sher, was bleeding and was dead Complainant left Ghulam Qadir and Muhammad Hanif as guard over the dead body and lodged the report stating that Zulfiqar Ali seeing his wife Mst. Husna in objectionable position with Ali Sher by firing from rifle has committed murder of Ali Sher due to "Ghairat". F.I.R. was lodged on 4.1.1996 at 5.30 p.m. After lodging of the F.I.R. police started investigation on same day i.e. 4.1.1996 and at 6.30 p.m. inspected the vardat where deadbody of Ali Slier was lying in the bed of the canal from where police at a distance of about 80 paces, secured empty of 7 m.m, rifle from which recent smell of powder was coming out. Police prepared mashirnama in presence of mashirs Liaqat Ali and Muhammad Qasim and also prepared "danishnama" of deceased Ali Sher in presence of same mashirs. On the same day police also examined Ghulam Qadir and Muhammad Hanif. On 5.1.1996 police searched the house of applicant/ accused for his arrest but he could not be arrested as he was not available in his house and had slipped away after commission of crime. Police prepared such mashirnama on the same day at 8.30 a.m. Police during investigation received spy information that accused was going towards Shalo Bus Stop. On such information, S.H.O. arranged a raid alongwith mashirs and on 9.1.1996 "at 4 p.m. applicant/accused was arrested from Shalo bus stop alongwith unlicensed 7 m.m. rifle with two live bullets of 7 m.m. On 10.1.1996 accused was produced by the police before Civil Judge and F.C.M. Kamber who recorded his judicial confession and on the same day the same Magistrate recorded 164 Cr.P.C. statements of Muhammad Hanif and Ghulam Qadir in presence of accused Zulfiqar Ali who did not cross-examine the witnesses though opportunity was provided to him. 164 Cr.P.C. statements bear the signatures of witnesses and required certificate is recorded by the concerned Magistrate. After finalization of investigation, charge-sheet against applicant/accused was submitted in the Court. Bail application on behalf of applicant/accused was moved before the learned Additional Sessions Judge, Kamber on 26.8.1996 mentioning therein that complainant Muhammad ' Mithal, P.Ws Ghulam Qadir and Muhammad Hanif and mashirs Liaqat Ali and Muhammad Qasim have sworn their affidavits exculpating the applicant/accused from commission of crime. Notice to the D.D.A. was issued and police papers were called for on 9.9.1996 on which date complainant Muhammad Mithal eye witnesses Ghulam Qadir and Muhammad Hanif and mashirs Liaqat Ali and Muhammad Qasim were produced before the learned trial Court. According to endorsement, the witnesses admitted the contents of the affidavits which are drafted in English and date of filing of the affidavits is not mentioned whereas it is mentioned "verified and signed this the : day of August, 1996 at Kamber". Learned Additional Sessions Judge, Kamber was pleased to reject the bail application of applicant/accused on 3.11.1996, hence this application. I have heard Mr. Muhammad Afzal Soomro, learned counsel for the f applicant/accused who has contended that complainant Muhammad Mithal, eye-witnesses Ghulam Qadir and Muhammad Hanif and mashirs Liaqat Ali and Muhammad Qasim have sworn affidavits before the trial Court in which they have exonerated the accused/applicant form commission of crime; that judicial confession is on oath and has not been properly recorded; that at the earliest opportunity same has been retracted being recorded under duress; that it has no evidentiary value as the same is hit by section 304 of Qisas and Diyat Ordinance; that it is same as 161 Cr.P.C. statement of applicant/ accused; that even otherwise, on the facts and circumstances of the case, offence would not fall under section 302 P.P.C. i.e. "Qatl-i-amd" but same would fall under section 303(b) P.P.C. i.e. "Iqrah-i-Naqis" as the applicant has acted under duress i.e. under the impulse of grave and sudden provocation. Learned counsel has cited plothora of case-law:- (1) Gulab Khan and another v. The State (PLD 1971 Karachi 299); (2) Rehmat and another v. The State (1979 SCMR 30); (3) Allah Bakhsh v. Nazar Plussain Shah and another (1979 SCMR 137); (4) All Gul and 3 others v. The State (1986 P.Cr.L.J. 433); (5) Muhammad Hayat and others v. The State (1988 SCMR 474); (6) Muhammad Nawaz and others v. The State (1989 P.Cr.L.J. 1126); (7) The State v. Muhammad Hanif and 5 others (1992 SCMR ' 2047); (8) Khan Muhammad v. The State (unreported Cr.B.A. No. 17/1995); (9) Ghulam Hussain alias Gudu v. The State (1996 P.Cr.L.J. 368). Mr. Riaz Hussain Mughal, learned Assistant Advocate-General contended that incident is that of day time at about 2 p.m., accused has been assigned specific role of firing from 7 mm rifle which has hit the deceased; empty of 7 mm and the rile has been secured from the vardat as per mashirnama of the place of incident prepared by the police; that accused after commission of crime ran away from his permanent residence and subsequently on spy information, he was arrested on 9.1.1996 near Shalo bus stop alongwith unlicensed 7 mm rifle which he was carrying with two live bullets and on 10.1.1996 judicial confession of the accused was recorded by the Magistrate; 164 Cr.P.C. statements of P.Ws Muhammad Hanif and Ghulam Qadir were recorded by the Magistrate in which cross-examination by accused was not carried on though opportunity was afforded to him; that affidavits of witnesses who are not legal heirs of "walies" of the deceased have been filed; prima facie these witnesses are related to accused; that trial has not yet taken place; that any decision at the stage of bail either to accept the affidavits of the witnesses in which they have exonerated the accused or to discard the judicial confession recorded by the Magistrate and at this stage to hold that offence is not likely to fall under section 302 P.P.C. i.e. "Qatl-i-Amd" but is likely to fall under section 303 P.P.C. i.e. "Iqrah-i-Naqis" will prejudice the case of prosecution and practically will amount a judgment before the trial has taken place. I would like to discuss the case-law cited by the learned counsel for the applicant/accused; (1) P.L.D. 1971 Karachi 299; In this case trial has taken place and the learned Sessions Judge awarded the conviction to accused Gulab Khan and Ali Akbar for an offence under section 302 P.P.C. Gulab Khan was sentenced to death while Ali Akbar was awarded transportation for life. In appeal and for confirmation of death sentence, the learned Division Bench examined the evidence so recorded and particularly referred to the .judicial confession which was as follows:- "After giving all these warnings, the accused is asked to give his true statement which he believes to be true before God Almighty. As such accused Ali Akbar gives the statement." So far the contention of learned counsel that confession of the applicant/accused is on oath is not borne out from record. Under these circumstances, in-my humble view, untill and unless trial has not taken place, the judicial confession of the accused has not been produced and exhibited and the concerned magistrate has not appeared, it would be pre mature to dilate upon this aspect of the case. (2) 1979 S.C.M.R. 30. In this case first information was recorded at the instance of brother of deceased who subsequently in his statement under section 164 O.P.C. resiled from his version given in the F.I.R. Apart from this, the mother and sister of the deceased also submitted affidavits to vouch for the innocence of the accused petitioners. Under these circumstances, Honourable Supreme Court was pleased to allow bail. Whereas, in this case neither complainant is brother of deceased nor other witnesses are closely related to the deceased whereas, prima facie it appears that they are related to accused Zulfiqar Ali at whose instance they have submitted affidavits. (3) 1979 S.C.M.R. 137. In this case also learned High Court keeping in view the affidavits of eye witnesses exculpating the accused/respondents from the commission of crime granted bail to the respondents and Allah Bakhsh petitioner approached the Supreme Court for cancellation of bail and his petition was dismissed. Nowhere in this case, it is mentioned that either 164 Cr.P.C. statements of the eye witnesses were recorded by the Magistrate during investigation or judicial confession of accused/respondents were recorded by the Magistrate during investigation and whether both these facts were considered by the Lahore High Court or by the Honourable Supreme Court. Whereas, in this case, 164 Cr.P.C. statements of the witnesses were recorded during investigation by the Magistrate in presence of accused who did not cross-examine the witnesses though opportunity was afforded; judicial confession-of the accused was recorded immediately after arrest by the Magistrate, certified true copy of the same was filed by the learned counsel, prima facie all the necessary formalities, as required under section 164 Cr.P.C. have been duly complied with, necessary certificate as required by the Magistrate has been appended. Under these circumstances, this authority, in my humble opinion, is not applicable and not relevant to the facts of present case. (4) 1986 P.Cr.L.J. 433. In this case also Munawar Ali Khan, J. (as he then was) after considering the affidavits of the witnesses was pleased to allow bail to the applicants/accused but no-where in the case it is mentioned that whether judicial confession of the accused persons recorded by the Magistrate was available on the file which was also considered by the learned trial Court or by the Honourable Judge of the High Court. Whereas in this case, judicial confession of the accused is coupled with 164 Cr.P.C. statements of witnesses recorded by the Magistrate alongwith recoveiy of un-licensed 7 m.m. rifle from prosecution of applicant/accused at the time of his arrest whereas allegation of prosecution is that deceased was done to death by accused by firing direct shot from 7 m.m. rifle and one empty of 7 m.m. rifle has also been secured from the place of vardat. With all humbleness at my command and with due respect to the authority, I am of the view that facts of the present case are somewhat different and this authority is not applicable and helpful to the case of applicant/accused. (5) 1988 S.C.M.R. 474. In this case Honourable Supreme Court considered the fact that husband ofMst. Sultana had divorced her on 4.10.1985 and that thereafter she had voluntarily entered into Nikah with Muhammad Hayat on 20.7.1986. Case was registered against appellant on 11.9.1986. The Honourable Supreme Court considered that divorce was pronounced by the arbitration council and since it had been admitted, and Mst. Sultana was entitled to enter into second marriage. Consequently affidavits of eye witnesses were filed and the appeal was allowed and bail was granted. I am afraid, facts of this authority in any case have no relevance with the facts of present case. (6) 1989 P.Cr.L.J. 1126. In this case also 3 eye-witnesses had filed affidavits before the Sessions Court in which they had mentioned that accused persons were not identified as their faces were muffled and night was dark, names of accused persons were not mentioned in the F.I.R. and in the 164 Cr.P.C. statements of the remaining eye-witnesses, Sajjad Ali Shah, J (His Lordship as then was) considered the aspect of the filing of the affidavits and granted bail. This authority, on the face of it, is not relevant to the facts of the present case, as mentioned hereinabove in earlier part of this order. (7) 1992 S.C.M.R. 2047. The facts of this case as given in the judgment are as follows:- "The trial Court totally disbelieved the presence of the two eye witnesses. They were held to be chance witnesses and had not satisfactorily accounted for their presence. Their testimony was further found to be intrinsically unsound. Besides, it was held that the occurrence having taking place in the Bazar some evidence should have been available independently of such interested and uninspiring witnesses. The medical evidence was also found to be consistent in as much as hatchet injuries attributed to two of the co-accused, were not found present on the deceased. The recoveries were also totally disbelieved. The Court concluded as hereunder:- "In this case the ocular evidence has been disbelieved, medical evidence does not full corroborate the prosecution story and the recoveries have been planted on the accused. The proof of motive does not prove the prosecution case as it is a corroborative piece of evidence. When the ocular witnesses have been disbelieved, the evidence of motive also loses its force. A vast net has been cast to entangle as many persons of the family of Allah Mehar as the complainant could." On the legal question, whether the act of Muhammad Hanif on the established facts amounted to Qatl-i-Amd liable to Qisas or not, the trial court has held as under:- "Muhammad Hanif has taken the plea of grave and sudden provocation which is not available to him now as section 300 PPC has been substituted by a new section 300 and the exceptions contained in the old section have been deleted. The definition of Qatli-Amd has been given in the new section 300 PPC. Anyhow it serves as a mitigating circumstances in favour of Muhammad Hanif. Another fact that he has taken revenge of murder of his brother Khurshid is also an extenuating ircumstance in favour of Muhammad Hanif. Another fact that he has taken revenge of murder of his brother Khurshid is also an extenuating circumstances which goes in his favour. I find Muhammad Hanif guilty under section 302(c) PPG and award ten years" rigorous imprisonment. Muhammad Hanif accused is also directed to pay Rs. 25.000/- as Arsh to the heirs of the deceased, in default of the payment of the said amount, he shall further undergo the rigorous imprisonment for two years." The other co-accused of Muhammad Hanif respondent No. 1 were acquitted of the charge." The Honourable Supreme Appellate Court rightly dismissed the appeal filed by the State. In my opinion, facts of the cited case are quite different and distinguishable from the bail application in hand. In the reported case, medical evidence was found to be inconsistent and hatchet injuries attributed to the two co-accused were not found, recoveries were also disbelieved whereas on the plea that of grave and sudden provocation raised by Muhammad Hanif during the trial while recording his statement under section 342 Cr.P.C., the trial Court rightly convicted him and accepted his own version whereas rest of the prosecution case was found to be incorrect Here in this case, medical evidence is not in conflict with the ocular evidence; judicial confession as referred hereinabove has been recorded promptly and required questions have been recorded by the Magistrate alongwith required certificate. It is no-where mentioned before the filing of the bail application in the trial Court that accused/applicant has retracted the judicial confession or has submitted any application to that effect which at-least is not borne out from the record filed with the bail application. Whereas the stage to record the statement of accused has yet to come which will be recorded after prosecution is able to conclude the evidence which still is to be recorded by the trial Court and his statement, if any, is still to be taken by the learned trial Court which stage has not yet come. In these circumstances, this authority is not helpful to the case of present applicant/accused. (8) Un-reported Cr.B.A. No. 17/1995. In this case complainant Shabir was brother of accused Khan Muhammad and according to prosecution case, his daughter Mst. Majeeda was married to the son of accused and that on the day of incident, when he alongwith P.Ws Shamo and Shamsuddin were sitting in the Otaq of Ali Chandio and that they heard cries of his daughter Mst. Majeeda and ran towards that direction where they saw the deceased Mst. Majeeda alongwith Shous Bux Shahrani both lying dead behind the house of the accused and Jiey also saw the accused having a gun in his hand who told the complainant ind the P.Ws that he had seen the deceased Mst. Majeeda with deceased 3hous Bakhsh in an objectionable position and have provocated gravely and ired at them which resulted in their death. Saying so accused ran away. On he face of it, the facts of this bail application in any case are not relevant, as n this case Mst. Majeeda and Ghous Bux were done to death on the spot and heir deadbodies were lying there. Whereas in this case, unfortunately, case of the prosecution according to confession of the accused is that deceased All Sher was "Karo" who had illicit relations with his wife Mst. Husna and according to prosecution case, Mst. Husna made her escaped good. Even she did not receive any scratch or injury but Ali Sher was done to death with rifle shot, therefore, this authority is not helpful to the case of present accused. (9) 1996 P.Cr.L.J. 368. According to facts of this case, deceased Fida Hussain had friendly terms with Moula Bux alias Papoo who used to accompany him to the house. On 1.2.1995 deceased had come to the house of complainant alongwith two above friends and as usual he went inside his room with these persons. It was at about 22-45 hours that complainant saw Ghulam Hussain and Moula Bux coming out of the house who went away. Thereafter complainant himself went to sleep and on the next day in the afternoon, he knocked the door of the deceased and after breaking open the said door, he saw that the deceased was lying on a couch with his neck having been slit. Complainant informed his other brothers who also came there. Subse quently F.I.R. was registered, after usual investigation, accused were arrested and challan was submitted. The learned Judge of this Court considered the case to be unwitnesses one and in confession learned Judge found that applicant has given judicial confession on the directions given to him. Whereas in this case, complainant himself has lodged the F.I.R., specific role has been assigned to accused who subsequently appeared before Magistrate and his judicial confession was recorded wherein he has not mentioned that he has made the confession on any direction or duress. The facts of this case are quite different and are not relevant to the facts of the present case. I have gone through the material placed with the matter. I have also minutely perused the authorities referred by learned counsel for the applicant/accused which in my humble opinion, discussed here-in-above in the earlier part of this order, with due respect, all the authorities so cited, in my humble opinion, are quite different and distinguishable from the facts of the present case and are not relevant to the matter in hand. Some of the authorities are such where evidence was recorded by the trial Court which was examined and analyzed and decisions awarded which were agitated at the appellate forum. In many cases, bails were granted by the Honourable Judges considering the affidavits sworn by the parties either who were kith and kin of the deceased or were related to the deceased. No-where it is mentioned in the cases that judicial confessions of the accused persons were as recorded by the Magistrate promptly without any delay and the Courts have rightly granted bail. Whereas in this case, accused after commission of crime himself slipped away from the residence which was raided by the police immediately after incident. On 9.1.1996 he was arrested by the police on receiving spy information that he was to leave from the Shalo bus stop wherefrom he was apprehended alongwith unlicensed 7 m.m. rifle which vas also secured by the police and a case under section 13(d) Arms Ordinance was lodged. Immediately after arrest and without any loss of time, iccused was produced before the Civil Judge and F.C.M. Kamber who after
bserving all the legal formalities, recorded his confession which was eadover to him, such certificate was also appended by the Civil Judge and i'.C.M. Kamber which is to this effect: - "Certiflcate. I have explained to the accused Zulflqar Ali that he is not bound to make a confession and that, if he does so, any confession he may make, may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and written in my hand and was read^over to the person making it and admitted by him to be true and correct and it contains full and true account of his statement made by him. He put his L.T.I. The accused, after his confession has been recorded by me, is forwarded to the Jail custody. Sd/-10.1.96. Civil Judge and FCM, Kamber." The contention of the learned counsel is that this confession ia same 161 Cr.P.C. statement of accused recorded by Magistrate which is not rne out from the record submitted by police which was available with ssistant Advocate-General and has been perused by the Court. On the one |nd contention of learned counsel is that judicial confession has been ^tracted by the accused at an earliest opportunity which is also not borne it from the record and that same has been recorded under duress is also it borne out from the record; that this confession has no evidentiary value d may be discarded whereas in the same argument contention of learned unsel is that accused has committed the offence under sudden and grave vocation and that offence would fall under section 303(b) PPC i.e. "Jqrah- Jaqis". The actual contents of the paragraph No. 6 to this effect mentioned a the bail application are as follows:- "That even other-wise, on the facts and circumstances of the case, the offence would not fall under section 302 PPC i.e. "Qatl-i-Amd" but the same would fall under section 303 (b) i.e. called "Iqrah-i-Naqis" as the applicant has acted under duress i.e. under the impulse of grave and sudden provocation." jny humble opinion, this plea if allowed to the accused; advisedly, would .tare-mature. The statement of the accused is still to be recorded by the tl Court after evidence by the prosecution is concluded. Advisedly, I refrain further to dilate upon this aspect which may prejudice case of either party. However, prirna facie, keeping in view the role assigned to the applicant in the F.I.R., 164 Cr.P.C. statements recorded by the Magistrate on 10.1.1996, judicial confession of the accused recorded by the Magistrate on 10.,1.1996. without any loss of time observing legal formalities coupled with recovery of unlicensed 7 m,m. rifle from the possession of the accused at the time of his arrest and recovery of empty of 7 m.m. rifle from the place of vardat, in my humble opinion, there are reasonable grounds to believe that accused/applicant is guilty of offence for which he has been challaned. Finding no merit/substance in the bail application, the same was dismissed by short order and these are the reasons for the same. (MYFK) Application rejected.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 781 Present: syed deedar hussain shah, J. MUHAMMAD USMAN-Applicant versus STATE-Respondent Crl. B.A. No. 171 of 1996, dismissed on 12.3.1997. Bail- -S. 497 Cr.P.C.»Offence u/Ss. 302, 324, Q.D.O. read with S. 34, 452 P.P.C and Arms Ordinance, 1965 S. 13-D--Murder--Offence of--Bail application- Incident is that of day time which has taken place at 7 A.M., FIR was lodged promptly on same day at 7.25 A.M.Police directly inspected wardat and also recovered 4 empties from wardat which were sealed in separate parcel by police-Eye witnesses have implicated accused/applicant to have fired with pistol and that Mst. T. received pistol shot injuries-PWs were cross examined by accused, nothing substantial has come out from cross examination-Police have also recovered unlicensed revolver of 32 bore on pointation of accusedIn view of evidence so collected, prima facie there are reasonable grounds to believe that accused is guilty of offence for which he has been challaned- Application dismissed. [P. 785] A & B Mr. Muhammad Ayaz Soomro, Advocate for Applicant. Mr. Riaz Hussain Mughal, A.A.G. for State. Mr. Safdar Mi G. Bhutto, Advocate for mplainant. Date of hearing: 12.3.1997. order Bail application on behalf of the accused has been filed which was rejected by the Learned Sessions Judge, Larkana, vide order dated 4.12.1996. The brief story as stated by complainant Shaukat Ali with P.S. Market Larkana is to the effect that on 4.10.1995 complainant alongwith his son Aijaz Ali were present in their house when they heard cries coming from the house of Abdul Ghafoor their relative who resides near their house. Complainant, his son Aijaz and Mujeeb Rehman went running towards the house of Abdul Ghafoor where they found Mangho @ Ghulam Hussain and Muhammad Usman s/o Nawab Ali Mahar (present applicant/accused) and another unidentified person. Both the accused persons were armed with Pistols. Accused Ghulam Hussain told cousin of the complainant namely Mst. Anwar Khatoon, that as he has refused to give the hand of her daughter (Miss Tasleem), therefore, she and here daughter should be ready for death, saying so he fired at Mst. Anwar Khatoon and Miss Tasleem. Mst. Anwar Khatoon after receiving fire arm injuries fell down on the ground and died. Miss Tasleem received the fire arm injuries and tried to runaway towards the room and that Muhammad Usman applicant/accused also fired at her which hit on her back and fell down on the ground. The accused persons threatened the complainant party not to come near to them as such they did not go near the accused persons and thereafter, accused persons went out of the house. Mst. Anwar Khatoon was found dead, she was bleeding while. Miss. Tasleem was lying unconscious after receiving injuries and she was bleeding. Miss Tasleem was taken away to Hospital for immediate treatment by P.W Ayaz Ali and Mujeeb Rehman was asked to be with the dead body, thereafter, complainant formally lodged the P.I.R. The motive assigned for the crime is that Miss Tasleem the injured Medical Student was demanded for marriage purpose by Mangho alias Ghulam hussain but Mst. Anwar Khatoon the mother of Miss Tasleem refused to give the hand of her daughter to Mangho alias Ghulam Hussain being an unducated. After lodging of the F.I.R. for an offence U/s. 302, 324 Q.D.O. 34, 452 PPC and 13- i D Arms Ordinance. Police started investigation, after finalization of the investigation police submitted challan against both the accused. After rejection of the bail application as mentioned herein above, hence this bail application. Mr. Muhammad Ayaz Soomro learned Counsel for the applicant has i contended that Mangho alias Ghulam Hussain has been assigned the role of ( firing of pistol shots with which Mst. Anwar Khatoon has died, whereas role t assigned to Muhammad Usman present accused/applicant is that he has [ fired from his pistol which hit the injured Miss Tasleem on her back, that ; injuries so received by Mst. Tasleem are not on the vital part of the body i and that injuries are simple in nature. Learned Counsel has relied on (1) 1976 S.C.M.R. 168, (2) 1986 N.L.R. Criminal Cases 621, and (3) 1987 P.Cr.L.J. 276. Mr, Riyaz Hussain Mughal Learned Assistant A.G has stated that case has finally been challaned on 18.10.1995, recoveiy of unlicensed 32 bore pistol has been effected from the present accused/applicant on 14.10.1995, that P.Ws in their 161 as well as in their 164 Cr.P.C. statements have implicated the present accused/applicant to have trespassed into the house of deceased Mst. Anwar Khatoon duly armed with Pistols with the common object of all of them and in furtherance of their common object fired, with the result of which Mst. Anwar Khatoon expired and Miss Tasleem received the injuries on her back. The medical reports are in positive, that from the place of wardat 4 empties have also been recovered by police on 14.10.1995 which were sealed in a parcel and has opposed the prayer for bail on behalf of accused/applicant Mr. Safdar Ali Bhutto, learned Counsel for complainant has adopted the arguments of learned Assistant Advocate General, Sindh, and has further pointed out that injuries on the person of Miss Tasleem are on the vital part of the body and after receipt of the injuries Miss Tasleem is paralysed from waist down and will remain as for the remainder of her life. That the offence has been committed by the present accused alongwith coaccused in furtherance of their common intention by trespassing into the house of Mst. Anwar Khatoon by causing fire arm injuries to Mst. Anwar Khatoon and fire arm injuries on the pei - son of Miss Tasleem on the refusal of proposal of marriage. Applicant does not deserve the concession of bail. I would like to discuss the case law cited by Mr. Muhammad Ayaz Soomro learned Counsel for applicant. (i) 1976 S.C.M.R. 168 (Ch. Muhammad Anwar Samma Etc. v. The State); The facts of this case are that only allegation against the petitioner was that he caused injuries by kicks to the complainant. Though according to F.I.R. he was armed with Stain Gun, but even there was no allegation that any blow with the butt of Stain Gun was struck by the petitioner. Further more according to complainant's own statement in F.I.R. after he was released by the accused party, complainant walked to G.T. Road and then returned to Wazir Abad by Bus, which supports the contention. This also does not show that he was so grievously injured. That he was not in a position to be able to move about. On the consideration that kicks blows were attributed to the applicant/accused and though he was armed with stain gun but even butt of the stain gun was not used and complainant himself proceeded to G.T. Road and they returned to Wazir Abad by Bus. On the face of it with due respect I say that this authority is not relevant to the facts of the present case. Whereas in the case in hand specific role of firing at the injured Miss Tasleem a medical student has been attributed to the applicant/accused. (ii) N.L.R. 1986 Criminal 619 (Iftikhar Ahmad v. The State); In this case appellant was convicted for causing murder of Ghulam Dastagir by the learned Additional Sessions Judge for an offence U/s. 302 r/w S: 34 PPC and was sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/- each or in default of payment of fine to suffer further R.I for a term of six months each. Learned Judge, of Lahore High Court after discussing the evidence by the trial Court and hearing learned Counsel fo the parties was pleased to accept the appeal and set-aside the judgment of the trial Court. This case law is quite different and distinguishable, inasmuch as, the matter in this Court is pending for decision of bail application. The evidence has not yet been recorded by the trial Court. (iii) 1987 P.Cr.L.J. 276 (Jan Muhammad & 2 others vs. The State); In this matter injured received two injuries, one was grievous on head and the other was simple one on hand and the contention of the learned Counsel for applicant before learned Judge was that both the injuries were result of one blow as the injured wanted to ward of the blow so injured received injury on his hand. The State also raised no objection for the grant of bail and the bail was accordingly granted by the Court I am afraid, this authority in any case is not relevant to the present matter in which accused/applicant is alleged to have acted with the common object to cause the death ofMst. Anwar Khatoon and also caused pistol shots at Miss Tasleem Khatoon, The result of which is that after receipt of injuries which according to medical report are as follows:- 1. Lacerated Punctured Wound about 4 c.m leng x 1 c.m breath x superficial on front - Poritol region of Scalp (though and through). 2-A. Lacerated Punctured wound about 1 c.m in diameter x deep muscle on posterior aspect of Rt. for arm (entry wound). 2-B. Lacerated Punctured wound about 2 c.m. in diameter on anterior aspect of Rt. fore arm (exist of injury No. 2-A). 3-A. Lacerated punctured wound about 1 c.m in diameter x deep cavity. Rt. side at mid thoracic spina (entry wound). 3-B. Lacerated Punctured Wound about 2 c.m in dia-meter on Rt. side of breast antero-lateral aspect (exit of injury 3-a). 4-A. Laterated Punctured Wound about 1 c.m in diameter x deep cavity on left lumbar region. Posterior aspect (Entry Wound). 4-B. Lacerated Punctured Wound about 2 c.m in diameter on Rt: Side of Supra public (Exit of injury No. 4-A). Nature of Injuries 1. Shajah-i-Khafifah Caused by: firearm. 2. Jurah Chyar jaifah Damiyah 3 and 4 reserved. Thereafter injured was referred for treatment to Jinnah Postgraduate Medical Centre, Karachi where she was examined by Dr. Rashid Jooma, who issued certificate, which reads as under:- "Miss Tasleem Fatima, aged 25 years, received a firearm injury to her spinal cord on 14th October, 1995. She was treated in Jinnah Post-graduate Medical Centre, Karachi for her injuries, being discharged on 02.06.96. She is paralysed from waist down and will remain so for the remainder of her life." As such this authority in my humble opinion is not favourable to the case of applicant/accused. I have gone through the material placed with the case. Due to refusal of Mst. Anwar Khatoon mother of Miss Tasleem injured a Medical Student to give her in marriage as demanded by Mangho alias Ghulam Hussain the accused/applicant in furtherance of their common object both have trespassed into the house of complainant armed with pistols fired at deceased and while Miss Tasleem p.w tried to save her life was caused pistol shots by the present applicant/accused with the result that she received injuries on her spinal cord and unfortunately as a result of which she is paralysed from Waist down and will remain so far the rest of her life. Contention of learned Counsel is that injured has received simple injuries which are not on the vital part of the body and or rather are not borne out from the record and contrary supports the case of prosecution. Incident is that of day time which has taken place at about 7.00 a.m., F.I.R. was lodged promptly on the same day at 7.25 a.m.. Police directly inspected the wardat and also recovered 4 empties from the wardat which were sealed in separate parcel by the police. Eye witness Mujeeb Rehman, Aijaz Ali and Miss Tasleem were examined by police, subsequently they were examined by Magistrate and their 164 Cr.P.C. statements were recorded in which they have implicated the present accused/applicant, to have fired with pistol and that Mst. Tasleem received pistol shot injuries. P.Ws. were cross examined by the accused, nothing substantial has come out from the cross examination. Police has also recovered unlicensed Revolver of 32 bore on the pointation of present accused/applicant on 24.10.1995 at the time of arrest. The accused have since been charge sheeted by the police. In view of the evidence so collected, by the policy mentioned herein above, prima facie, there are reasonable grounds to believe that accused is guilty of offence for which he has been challaned. The application is devoid of merit/substances which accordingly is dismissed. After hearing the learned counsel for the parties, by short order, I have rejected bail application to day. These are the reason for the same. (MYFK) Application rejected.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 786 Present: syed deedar hussain shah, J. NIAZ AHMED-Applicant versus STATE-Respondent Crl. Misc. Application No. 54 of 1996 allowed on 13.3.1997. Criminal Procedure Code, 1898 (V of 1898)- -S. 561-A read with S. 109--Quashment of criminal proceedings-Report of police is vague without specific instances or previous criminal record/convcition-Appli^nt was being pressurised by S.D.M. to withdraw civil suit filed against Province of Sindh, etc.~Government functionaries are required to act in an equitable manner, whereas in this case applicant was remanded to jail custody by S.D.M. without proper orders which suggest that S.D.M. has misused his authority and applicant has been dragged to face proceedings under section 109 Cr.P.C., who on the contrary appears to be a respectable and land owing Khatedar~No substance in police report-Proceedings quashed. [P. 788] A toC Mr. Muhammad Hashim A. Chandio, Advocate for Applicant. Mr. Riyaz Hussain Mughal, Assistant A.G. for State. Date of hearing: 13.3.1997. judgment Mehar Police on 15.9.1996 submitted report in the Court of S.D.M Mehar alleging therein that SIP Bajhi Khan of P.S Mehar was on patrol duty alongwith his sub-ordinate staff. Police at about 3.00 p.m. reached in Shahi Bazzar and found that one person was watching the pockets of other people, on seeing police personnel in uniform he was trembling and was subsequently arrested by the police. On inquiry he gave his name as Niaz Ahmad alias Niaz Hussain S/o Qadir Bux Junejo Resident of Khairpur Nathan Shah. On suspicion he was taken into custody and search was carried on. During which one blade and two keys were secured from the pocket of the shirt of the applicant (Niaz Ahmed) and was asked to give surety but he could not produce the same, therefore was arrested. Mashirnama was prepared by the police on spot. The report further shows that applicant is not of a good character and police submitted a report under section 109 Cr.P.C. In the report witnesses were cited as complainant Bajhi Khan, Muhammad Moosa Constable B-805 and Ghulam Mustafa Constable B-3191 of P.S. Mehar. Subsequently accused was produced before learned S.D.M., who directed the applicant to furnish surety in the sum of Rs. 500/- and PR Bond in the like amount, but applicant failed to furnish surety, as such he was remanded to jail custody and matter was adjourned to 22.9.96. Being aggrieved by this order applicant submitted criminal revision before Sessions Court, Larkana which was subsequently transferred to the Court of IVth Additional Sessions Judge, Dadu, being Criminal Revision No. 9/96. The matter proceeded before IVth Additional Sessions Judge, Dadu who observed that on 17.9.1996 applicant furnished surety before S.D.M. but no order regarding acceptance or rejecting the surety was passed. Even no diary for 17.9.1996 was written down. Finding this as high handedness of S.D.M., while detaining the applicant in the jail, applicant was directed to furnish surety in he Court of IVth Additional Sessions Judge, Dadu, and subsequently was released on bail. Mr. Muhammad Hashim Chandio learned Counsel for applicant contends that applicant is respectable Zamindar who filed Civil Suit No. 31/96 against the Province of Sindh , Government functionaries and Mst. Murad Khatoon, Ghulam Mustafa, Aijaz and Ghulam Muhammad as defendants for declaration, permanent injunction and cancellation of entry dated 2.1.96 in favour of defendant No. 6. The SDM of the area pressurised the applicant to withdraw the said suit, in case of non compliance of the orders of the SDM, applicant was threatened by the SDM to face the consequences. Subsequently at the behest of SDM Mehar namely Rana Muhammad Ehsan proceedings under section 109 Cr.P.C. were initiated by the Mehar Police. Copy of the Civil Suit has also been filed which is annexure "F" of this application at page 33. Mr. Chandio has also pointed out that Annexure E-l page 25 copy of the Telegram which was despatched by the brother of the applicant to the Honourable Chief Justice High Court of Sindh, Home Secretary, Revenue Secretary, Govt. of Sindh alleging therein that applicant Niaz Hussain has been arrested by the police at the instance of SDM Mehar who is pressurizing the applicant to withdraw Suit No. 31/96 filed by Niaz Hussain applicant and his brother Khadim Hussain against Government Functionaries, Mst. Murad Khatoon and others a whom SDM Mehar is supporting illegally. Mr. Muhammad Hashim Chandio has also produced copy of the report submitted by SHO Khairpur Nathan Shah as an inquiry report, in which it has been submitted that case against the applicant/accused was false one and was initiated at the instance of S.D.M. Mehar. Mr. Chandio contends that there is no previous criminal record or any conviction against the applicant, that false ague report has been submitted by the police and applicant has already suffered a lot. Mr. Chandio has cited 1993 P.Cr.L.J. 146 Ghulam Shabir v. The State, wherein proceedings Under Section 110 Cr.P.C. were initiated in the Court of S.D.M. Khairpur but the report filed against Ghulam Shabir was found as vague containing general allegations without previous record of conviction and the proceedings were quashed. Mr. Riyaz Hussain Mughal learned Assistant A.G. under these circumstances has pointed that there was no material available with the police to initiate the proceedings, whereas entire proceedings were carried on at the instance of S.D.M. Mehar, learned Assistant A.G. concedes that the application may be granted and the proceedings may be quashed. I have gone through the material placed with the case, the report of the police itself is vague without specific instances or previous criminal record/conviction. The telegrams which were despatched to the higher authorities referred herein above and the civil suit baring No. 31/96 filed by the applicant as plaintiff alongwith his brother showing therein that Mst. Murad Khatoon and Ghulam Mustafa and others as defendants and version of the applicant gets support that he was being pressurised by the S.D.M to withdraw the suit. From the order of the learned IVth Additional Sessions Judge, Dadu referred herein above in the earlier part of this Judgment in which applicant was released from jail by the learned IVth Additional Sessions Dadu, observing that applicant was remanded to custody by the SDM which was high handedness on his part. The Government Functionaries are required to act in an equitable manner and decide and pass the orders keeping in view the principle of equity fair play, justice and malice to none. Whereas in this case the applicant was remanded to jail custody by the S.D.M. without proper orders, without mentioning proper diaiy of the case which suggests that S.D.M. has misused his authority -and applicant has been dragged to face the proceedings under section 109 Cr.P.C., who on the contrary appears to be a respectable and land owning Khatedar. I see no substance in the police report and subsequent proceedings pending before S.D.M. Mehar. The case law cited by Mr. Muhammad Hashim Chandio is relevant, applicable to the facts of the case which I respectfully follow. For the foregoing reasons I allow the application and quash the proceedings pending in the Court of S.D.M. Mehar against the applicant under section 109/55 Cr.P.C. Order accordingly. (MYFK) Proceedings quashed.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 788 Present: M.L. shahani, J. MOULA BUX~Applicant versus SHADAN and others-Respondents Crl. Misc. Application No. 107 of 1995, dismissed on 30.4.1997. Bail-Cancellation of-- -S. 497(5) Cr.P.C.--Cancellation of bail-Bail granted to accused can be cancelled if accused persons mis-use concession of bail and indulge into activities nefarious for prosecution or for stifling prosecution through pressure on witnesses concerned but not on merits, because once bail has been granted while considering merits of case, it cannot be cancelled because different version was available and was not considered by court- Additionally plea taken by accused S. regarding his alibi clouded the mystery over case of prosecution and until that mystry is undone through positive evidence, clouds will always hover over story of prosecution- Application dismissed. [P. 792 & 793] A Mr. Muhammad Afzal Soomro, Advocate for Applicant Mr. Ali Nawaz Ghangro, Advocate for Respondent No. 1. Mr. AsifAli Soomro, Advocate for Respondent Mr. Khalid Iqbal Memon, Advocate for Respondent No. 3. Mr. RashidAli Shaikh, Advocate for A.A.G. for State. Date of hearing: 30.4.1997. order I am deciding this case in view of the orders passed by my Lord the Acting Chief Justice in this case on 7.3.1996 wherein his Lordship was pleased to direct that this case may be handled at Larkana Bench according to roster inspite of the fact that bail was granted to one co-accused Hamid by my learned and noble brother Mr. Justice Amanullah Abbasi. This criminal miscellaneous application has been filed by the complainant Moula Bux against an order dated 19.6.1995 passed by learned 1st Additional Sessions Judge, Larkana in Bail Application No. 92/1995 granting bail to accused Kabil and another order dated 19.6.1995 again passed by the same Judge in Criminal Miscellaneous Application No. 84/1995 refusing to cancel the bail granted to accused Akbar and Shadan. The bail application was filed as the three respondents are accused in crime, No. 5/1994 of Police Station, Hyderi, District Larkana lodged at 5 p.m. on 19.7.1994. The narration of the complainant in the said F.I.R. is as follows:- "It is complained that deceased Anwar Ali is my son who is aged about 40/41 years. He has got a medical store in Naudero Town. Today, I alongwith my son Anwar Ali, my brother-in-law Lutuf Ali s/o Muhammad Ismail Mangnejo and son of my nephew Muhammad Saleem s/q Muhammad Ramzan Mangnejo, left for Larkana in our car No. S-9052/Karachi of red colour, with our personal work. Muhammad Saleem was driving the car, Anwar Ali was sitting on front seat while we were sitting on rear seat At about 1630 hours we reached near Dobai Octroi Post, the driver slowed down the car due to breakers and town area. We saw five persons namely 1. Shaman s/o Shadan Pitafi originally r/o Saidudero, presently Ayoob Colony, Larkana armed with pistol, 2. Shadan s/o Muhammad Paryal Pitafi originally r/o village Saidudero, presently Avoob Colony, Larkana armed with shot gun, 3. Kabil s/o Arbab Pitafi armed with shot gun, 4. Hamid s/o Qadan Pitafi armed with TT pistol, 5. Akbar s/o Chakar Pitafi armed with rifle, all r/o village Saidudero, Taluka Ratodero, were standing on the road, who signalled us to stop the car, but we did not stop, on which all the accused fired upon the car with their respective weapons, which hit on front wind screen at right side and the car went out of the control of the driver and car stuck in the rainy water stored on left side of the road. We all got down from the car due to fear. The accused shouted at Anwar Ali that they would not spare him and kill him. Then Anwar Ali ran in the lane of Muhalla Siddiqui Colony and all the accused also followed him and we also ran behind them while raising cries. Anwar Ali ran inside the collapsed house of Muhammad Saleh Detho. Two accused Shaman and Hamid armed with TT pistols also went inside the house and we also followed them. Thereafter accused Shadan, Akbar and Kamil gave hakals not to go near them, else we would be done to death. Within our sight accused Shman fired upon Anwar Ali with TT pistol which hit him on his front chest and accused Hamid also fired with TT pistol upon Anwar Ali which also hit him on his chest, who fell down while raising cries. Then all the five accused made their escape good with their respective weapons towards East in the street. We went over Anwar Ali and noticed two injuries one on the chest over left breast and one injury on left lower shoulder. He was bleeding and was dead. I while leaving the above witnesses over the deadbody of Anwar Ali, have come to lodge report that my son Anwar Ali had purchased 14 jarebs of land in he village, on which the accused Shadan and other issued threats to Anwar Ali to murder him, because he had purchased the land inspite of their opposition. Therefore the above named accused due to the above reason, in their preconcert duly armed with weapons have murdered my son Anwar Ali by causing him fire arm injuries and have caused damage to the car. I am complainant, the investigation be made." In this case, five accused persons are involved namely Shaman armed with pistol, Shadan armed with shot gun, Kabil armed with shot gun, Hamid armed with TT pistol and Akbar armed with rifle. Of these five accused persons, it is stated that Shaman is absconder. No cancellation of bail has been filed against accused Hamid who was armed with TT pistol and for whom direct role has been mentioned that he fired from the TT pistol which hit the deceased person and as a result the deceased person died. Justice Amanullah Abbasi and my learned brother in the order passed by him on 16.11.1995 held as follows:- "The learned State counsel has opposed the grant of bail on the ground that the plea of alibi raised by accused Shaman was investigated by police and was found to be correct, but as regards case of applicant/accused Hamid is concerned, he did not appear before the police to prove his alibi The fact remains that there is a certificate issued by Dr. Mumtaz Ali Channar, Senior Medical Officer, Rural Health Centre, Bandhi, District Nawabshah that Abdul Hamid was under his treatment as an indoor patient from 13.7.1994 to 25.7.1994. The date of incident is 19.7.1994. The complainant has specifically named accused Shaman in the FIR but this statement has not been accepted to be true because plea of alibi raised by accused Shaman has been accepted. It can therefore be inferred that complainant named a person who was not there. In view of this situation, the benefit can be given to the accused/applicant who has produced certificate to prove his presence on the relevant time and date at a different place. Bail does not mean acquittal. It will always remain open for trial Court to come to a different conclusion on the basis of evidence recorded during the trial proceedings. But the rule of consistency requires that applicant should be given benefit as allowed to co-accused Shaman although both are named in the FIR and part has been assigned to them. One has been released and other i.e. present applicant is detained. All these facts taken together make out a case where further enquiry is required, but it will remain open for the trial Court to come to any conclusion after evidence is recorded in the case. There is a decision of Honourable Supreme Court on the point of alibi which is relevant and the said decision is reported in N.L.R. 1993 (Criminal) S.C. 161. The relevant portion in paragraph 23 is as under:- "Defence plea is that applicant Ashiq Hussain did not participate in the incident as he was admitted in the hospital with injuries at the relevant time. Defence plea is supported by CW 1 Dr. Sajjad Hussain in Civil Hospital, Daska, on the day of incident at 9.15 p.m." The concluding para of this paragraph is as under:- This defence plea even if not proved is sufficient to cast doubt in credibility of the prosecution case, which has already become doubtful for the facts and reasons mentioned above." Thus on tentative assessment, it is a case where further enquiry is required as the Medical Officer and his record can be examined during the trial proceedings. In view of case law and facts mentioned above, I grant bail to the applicant subject to furnishing of surety in the sum of Rs. 1,50,000/- (Rupees one lac fifty thousand only) and P.R. bond in the like amount to the satisfaction of trial Court." Learned counsel for applicant/complainant Mr. Muhammad Afzal Soomro has assailed the impugned orders granting bail and refusing cancellation of bail and contended as follows:- "F.I.R. was lodged without any delay; all persons fired at the car; it is broad day light incident and as such there is no case of mis-taken identity; there are three eye witnesses of the crime namely complainant and other two persons sitting in the car; there is strong motive attributed for killing deceased Anwar Ali." His additional plea in respect of Kabil was that he was granted bail before arrest as such the considerations for the grant of bail before arrest are materially different from the considerations applicable to the grant of bail after arrest. His further contention was that the gun was recovered from Saadan on 27.8.1994 and from Akbar on 7.9.1994 as well as the four empties which have been sent to the Ballistic Expert and no report has been furnished so far. According to him, at this stage, the bail granted to the accused persons could not be granted as even the benefit of doubt can not be extended to them. On my enquiry as to why application for cancellation of bail has not been filed against accused Hamid to whom direct role has been mentioned in the F.I.R., the learned counsel for applicant/complainant stated that, that bail application was granted after this bail application was filed. Such justification, I am afraid, is not tenable as now law prevents the applicant to file cancellation of bail if it was granted for the considerations not known to the legal principles. Suffice to say that the bail application of accused Hamid was granted because the entire story of the prosecution due to the alibi taken by one accused person was considered by my learned and noble brother to be one such circumstance extending the bail to the accused person Hamid. The bail granted to the accused persons by the Court can be cancelled if the accused persons mis-use the concession of bail and indulge into the activities nefarious for the prosecution or for stifling the prosecution through pressure on the witnesses concerned but not on merits because once the bail has been granted while considering the merits of the case, it cannot be cancelled because different version was available and was not considered by the Court. Additionally as remarked by my learned brother that the plea taken by accused Shaman regarding his alibi clouded the mystery over the case of prosecution and untill that mystery is undone through positive evidence, the clouds will always hover over the story of prosecution. Consequently, therefore, I am afraid, the applicant has not made out any case for the cancellation of bail extended to the accused persons. Application dismissed. Under the circumstances, this criminal miscellaneous application, therefore, is dismissed. (MYFK)
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 793 Present: M.L. SHAHANI, J. AMANULLAH-Applicant versus STATE-Respondent Cr. Bail Application No. 95 of 1997, allowed on 28.4.1997. Bail- ~-S. 497 Cr.P.C.--Bail Murder-Offence of-FIR mentioned about other accomplices whereas case has been challaned only against applicant- Allegation in FIR that applicant alongwith accomplices caused death and injuries would require further enquiry-Mere particularly because no other accomplices have been shown in challan-Security can be demanded from applicant before he is released on bail and in the event if he is found mis-using concession of bail, prosecution can always file an application for cancellation of bail-Bail application allowed. [P. 795] A Mr. SafdarAli Bhutto, Advocate for Applicant. Mr. Ali Azhar Tunio, A.A.G. for State. Date of hearing: 28.4.1997. order The applicant has filed this application for bail as he has been involved in crime No. 45 of 1995 at P.S. Kamber District Larkana. The F.I.R. has been lodged by A.S.I. Sher Muhammad Solangi which reads as follows: "That, I alongwith subordinate staff viz. A.S.I. Sher Muhammad Sangi P.C./316 Zulfiqar Ali, P.C/416 Ghulam Easool, P.C/3640 Mazaharul Haq had proceeded from Police Station for patrolling duty, in government vehicle, vide daily diary entry No. 8.3.1995 at 1000 hours. During patrolling duty, it was learnt through reliable information that there murder had taken place in village Drib Jaro, we reached at village Drib Jaro, where we saw dead body of deceased Mst. Haleeman w/o Haji Muhammad Khan Magsi, originally R/o village Drib Jaro at present in Quetta-lying on ground near houses of Magsis. She had received gun-shot injury on left side of her abdomen from which she was bleeding, whereas her daughter Mst. Haseena w/o Abdullah Magsi R/o Drib Jaro Taluka Kamber was also lying beside her, in injuried and un-conscious condition. She had received fire shot injury on left shoulder and on left side of head, from which she was bleeding. It was learnt that accused Amanullah s/o Ghulam Nabi bycaste Magsi R/o village Drib Jaro Taluka Kamber with the help of his other accomplices had committed murder of Mst. Haleeman and caused injuries to Mst. Haseena Magsi by causing them gun shot fires and thereafter they had run-away, and no other relative of victims was ready to lodge complaint." The applicant had filed Bail Application No. 105 of 1995 which was rejected by the trial Judge i.e. Additional Sessions Judge, Kambor vide orders dated 4th April, 1997, inter alia, reasons given by the learned trial Judge is that he will prevail over the injured eye witness. His another reasoning was "I held that the act of the accused renders him to be desperate; and dangerous; therefore, he is not entitled to the concession of bail even on the statutory grounds." The learned counsel for the applicant contended that the F.I.R. has been lodged by A.S.I. in which inter alia, he has stated as follows: - "It was learnt that accused Amanullah s/o Ghulam Nabi by caste Magsi R/o village Drib Jaro Taluka Kamber with the help of his other accomplices had committed murder of Mst. Haleeman and caused injuries to Mst. Haseena Magsi by causing them gun-shot fires, thereafter they had run-away, and no other relative of victims was ready to lodge complaint." According to the learned counsel for the applicant the other accomplices have not been chased nor named nor any enquiiy has been made. According to him there is no report from the jail authorities which may be adverse to the applicant According to him there is favourable report at page 23 of this Court's record in which it has been stated that his conduct during the period in this jail remained/found satisfactory. According to him the findings of the trial court are based on surmises and conjecture. As regards the other ground that the applicant shall prevail upon the injured person, he stated that the law has provided remedy to the State to file application for cancellation of bail if the concession of bail is mis-used. The learned Assistant Advocate General has opposed this bail application and has stated that since the applicant has committed heinous crime as such he is not entitled to the relief of concession of bail as he is hardened, desperate criminal, however, he was unable to pin point any such incident which may be available on record and may make him eligible to earn such remarks. I have given anxious consideration to the various pleas urged by the learned counsel. I am of the view that the F.I.R. mentioned about the other accomplices whereas the case has been challaned only against the applicant. The allegation in F.I.R. that the applicant alongwith accomplices caused earth and injuries would require further enquiry. More particularly because no other accomplices have been shown in the challan. As regards the other contention of the learned Assistant Advocate General the only proper course to the Court is that more security be demanded from the applicant before he is released on bail and in the event if he is found mis-using the concession of bail the prosecution can always file an application for cancellation of bail. Therefore, after hearing the parties in the open court I passed the following order: "For the reasons to be recorded separately this bail application is allowed. The applicant is directed to be released on bail on his furnishing one surety in the sum of Rs. 2,00,000/- and P.R. bond in the like amount to the satisfaction of the trial court. The prosecution shall be at liberty in case if the applicant misuses the concession of bail to file application for ancellation with specific role and incident to be mentioned in the said application." These are the reasons for passing the above short orders. (MYFK)
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 796 Present: M.L. SHAHANI, J. SHAHID HUSSAIN-Applicant versus STATE and others-Respondents Crl. Misc. Application No. 11 of 1997, decided on 24.4.1997. Criminal Procedure Code, 1898 (V of 1898)- S. 491--Habeas Corpus petition--An attitude of detaining people without any entry at Police Station and then filing statements which are known to be untrue is unbecoming of a responsible police officerSuch an attitude is highly objectionable-Administration and particularly police must remember that they are servants of law and not servants of any individual, politician or officer how so ever high he may be-Conduct of SHO is contrary to established principles of law D.I.G. Police, and A.A.G. were directed to take departmental action against such police officer- Petition dismissed as withdrawn. [Pp. 796 & 797] A & B Mr. Azizullah M. Buriro, Advocate for Petitioner. Mr. AliAzhar Tunio, A.A.G. for State. Date of hearing: 30.4.1997. order J enquired from S.H.O. in Court regarding the defence which he has taken in reply statement wherein he has stated that he (the detenu) is "nek mard" and came to visit him when the Civil Judge recorded his statement. On my enquiry, the S.H.O. expressed ignorance and he stated that he only came to know that he (the detenu) is "nek rd" on enquiiy. He did not know detenue before. He also stated that he had not arrested him. He has not kept him at Police Station nor he was removed from Police ation to the police quarters. He also stated that he has no previous enmity with detneue. As against this version of the S.H.O., the detenu has specifically stated that he s arrested by this S.H.O. He was kept at Police Station and that when the orders were passed directing Civil Judge to visit the Police Station, the police personnel moved him to the quarters of S.H.O. where he was ietained so long as Civil Judge was available at the Police Station. I have no eason to dis-believe the detenu who s lly implicated the S.H.O. It is for e petitioner or the detenu to take appropriate steps for taking action gainst the S.H.O. in accordance with law. Such an titude of detaining leople without any entry at Police Station and then filing statements which .re known to be untrue to the persons making such statement is - ecoming of a responsible police officer. Such an attitude on the part of ersons responsible for the lives and liberties of the citizens is highly bjectionable. The administration and particularly police must remember that they are servants of levy and not servants of any individual, politician or officer how-so-ever high he may be. Supreme Court of Pakistan has already stated in the case of Zulfikar All Bhutto v. The State (P.L.D. 1979 S.C. 53) that the police functionaries are not bound to obey the illegal orders of their superiors. They should also remember that injustice anywhere is threat to justice every-where. The conduct of the S.H.O. under the circumstances, I am afraid, is contrary to the established principles of law. I would, therefore, direct the Additional Registrar of this Court to send the copies of all orders passed by the Court to D.I.G. Police, Hyderabad and S.S.P. Dadu for taking departmental action against such police officer and report within six months as to what action has been taken and with what results. A copy of this order may also be given to Mr. Ali Azhar Tunio, learned Assistant Advocate- General who shall also convey the orders of the Court to the high ups in the Administration. Such orders/communications shall be placed on record. Since the detenu has been released, this petition has borne fruit. Under the circumstances, learned counsel for the petitioner does not press this petition which is dismissed as with-drawn. (MYFK) Petition dismissed as withdrawn.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 797 Present: M.L. SHAHANI, J. ALI NAWAZ-Applicant versus ALI MUHAMMAD and others-Respondents Crl. Misc. Application No. 48 of 1996, decided on 24.4.1997. Bail-Cancellation of- S. 497(5)--Murder-Offence of--Bail application-Rejection of~Another bail application before another Additional Sessions Judge-Acceptance of- -Application for cancellation before 1st ASJ-Bail cancellation ofAnother bail application before ASJ (who has admitted bail)--Bail allowed again- Challenge to-Abdul Aziz Memon ASJ rejected bail application--When he was on leave, bail application was again filed before Ghulam Mehdi M. Sangi who had previously granted bail, hence, he again granted bail-Subsequent application for bail was filed without any further progress of case was obviously not maintainable-Subsequent order admitting respondents to bail was an absolute high handedness and uncalled forIf at all Abdul Aziz Memon who had rejected bail application earlier was on error, respondents should have filed bail applications before High Court- Conduct of Mr. Sangi is dubious-He should have avoided passing final orders in a case when concerned Judge is on leave (long leave may be exceptions-Specific role has been assigned to accused persons which is also corroborated by medical evidence, such evidence was also ignored by learned Judge granting bail--Pri/rca facie, respondents, are involved in an offence which does not fall within exceptions under section 497 Cr.P.C- Bail granted to respondents was cancelled. [P. 800] A & B Mr. Isserdas, Advocate for Applicant. Mr. Muhammad Sharif Qazi, Advocate for Respondents. Mr. Ali Azhar Tunio, Asstt. A.G. for State. Date of hearing: 24.4.1997. order The respondents are implicated as accused in crime No. 101/1995 of Police Station, KN. Shah District Dadu recorded on 21.9.1995 at 7.30 hours. The incident has taken place at 6.30 in the morning. Specific role has been assigned to the respondents that they fired at Shah Nawaz alongwith two other accused persons Qurban and Khan Muhammad who were let off by police subsequently and the revision application for joining those two accused persons was also dismissed. As regards the present four respondents, specific role has been assigned to them. My learned and noble brother Mr. Justice Rasheed A. Razvi while admitting the revision application passed the following order on 17.10.1996:- "This is an application for cancellation of bail filed under section 475(5) Cr.P.C. by the complainant of FIR bearing No. 101/1995 P.S., K.N. Shah lodged under sections 302, 147, 148 PPC. The respondents No. 1 to 4 are all accused involved in the above said crime and they are facing trial in a Sessions Case No. 474/95 before the Court of learned IV-Additional Sessions Judge, Dadu. During the relevant time i.e. during the month of February, 1996 till July, 1996 Mr. Abdul Aziz Memon was the Presiding Officer of the Court of learned IV-Additional Sessions Judge. For a brief period he was on leave, when the bail plea of the respondents came up for hearing before the incharge of that Court namely Mr. Ghulam Mehdi M. Sangi, who granted bail to all the respondents. Subsequently the application for cancellation of bail under section 497(5) Cr.P.C. was filed by the complainant/petitioner which came up before the original Judge namely Mr. Abdul Aziz Memon, who vide its order re-called the bail granted to the respondents and made the following observations:- "The occular evidence is holding together with the medical evidence and at this stage the impugned order dated 19.2.1996, passed by learned incharge IV-Additional Sessions Judge, Dadu does, not seem to be in accordance with law and as such at this stage looking to the material available on the record, I do not feel it better to maintain it and as such the impugned order is re-called and bail granted to the accused stand cancelled. The accused are committed to custody." Again, the respondents filed their second bail application, taking advantages of the absence of Mr. Abdul Aziz Memon. On 4,7.1996 Mr. Ghulam Mehdi M. Sangi was again incharge of the Court of learned IV-Additional Sessions Judge who admitted the respondents on bail oa.the following grounds:- "I have carefully considered the arguments advanced by party advocate and I have also gone through the authority relied upon. It is admitted fact that applicants were already granted bail by this Court with an exhaustive order with citation of superior Courts, and it was determined that case of applicants requires further enquiry, moreover, for cancellation of bail, once bail is granted and if same is cancelled by the same Court, there should be strong and exceptional grounds for the same. More over the Court having equivalent powers can not criticise its own order and such power lies with Honourable High Court. For cancellation of bail no strong ground is mentioned, only there is word of complainant who is inimical and interested witness and same is rebutted by other side. Under such circumstances and no objection raised by D.D.A. applicants namely Ali Muhammad, Sikander, Anwar and Gul Sher are admitted to bail on furnishing solvent surety in the sum of Rs. 1,00,000/- (one lac) by each accused and P.R. bond in the like amount." Contentions raised by Mr. Isserdas requires consideration. Admit, issue notice to the respondents as well as to the Additional Advocate-General Sindh for31.10.1996. It is a matter of propriety as well as of judicial discipline that the Incharge Judge should avoid passing final orders in a case when the concerned Judge is onleave. Equally, the other learned Judge should have avoided reviewing/recalling orders of another Judge when both the Judges enjoy equal jurisdiction. Both the learned Judges have acted in a manner as they are appellate authority of each other. Such act is highly improper and unjust. A copy of this order be also forwarded to the Registrar at Principal Seat, Karachi as well as to the Member Inspection Team to initiate necessary action as provided under the rules, against the two learned Judicial Officers." The learned Judge Mr. Abdul Aziz Memon rejected the bail application, when Mr. Abdul Aziz Memon was on leave, bail application was again filed before Mr. Ghulam Mehdi M. Sangi who granted bail. When the bail application of respondents was rejected by Mr. Abdul Aziz Memon, subsequent application without any further progress of the case by the respondents was obviously not maintainable. The subsequent order passed by Mr. Ghulam Mehdi Mr. Sangi on 4.7.1996 admitting the above respondents on bail was an absolutely high handedness and un-called for. If at all Mr. Abdul Aziz Memon who had rejected the bail application earlier was on error, the respondents should have filed bail application before this Court. The conduct of Mr. Sangi under the circumstances is dubious. I also agree with my learned brother that as a matter of judicial propriety and discipline, the incharge Judge should avoid passing final orders in a case when the concerned Judge is on leave (long leave may be or exception). In this case I find that Mr. Adul Aziz Memon learned IV-Additional Sessions Judge incharge of the case has probed into the police record while disposing of application filed under section 173 Cr.P.C. He has' inter alia found as follows:- "Perusal of the statements of accused Ali Muhammad, Gul Sher, Anwar and Sikandar recorded on 15.10.1995, shows that they have admitted their guilt of causing the death of Shah Nawaz." The said statement of accused persons was available on police record. Such statement was never taken into consideration by the learned Judge while grating the bail. Specific role has been assigned to the accused persons which B| is also corroborated by the medical evidence, such evidence was also ignored by the learned Judge granting the bail. Prima facie, respondents are involved in an offence which does not fall within the exceptions under section 497 Cr.P.C. After hearing the parties for these reasons, I cancelled the bail granted to the respondents and remanded them to custody. Accused persons may file bail application again after the evidence has been recorded in case if they so desire. A copy of this order be also forwarded to the Member Inspection Team for action in accordance with law as proposed by my learned brother Mr. Justice Rasheed A. Razvi. (MYFK) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Quetta) 801 (DB) Present : IFTIKHAR muhammad chaudhary and raja fayyaz ahmad, JJ. NEK MUHAMMAD-Appellant Cr.C. 801 versus SARDAR ABDUL KARIM etc.-Respondents. Crl.Acq. Appeal No. 346/1996, dismissed on 27-3-1997. Criminal Procedure Code, 1898 (V of 1898)- S. 417-Acquittal--Appeal against-Murder case-It is known principle of criminal administration of justice that when an accused if exonerated of '. charge by a competent court he enjoys presumption of double innocence in his favour therefore, interference in an acquittel order can only be made if trial court has disregarded material evidence or misread evidence or received incriminating evidence illegally. [P.803]B Criminal Procedure Code, 1898 (V of 1898)- S. 161-Examination of witness by Police-Statement of witnesses under S. 161-Statements recorded by police after delay and without explanation are to be ruled out of consideration. [P. 803] A Mr. WJ/. Kohli. Advocate for Appellant Mr. Ashraf Abbas, Advocate for Respondents. Date of hearing: 27.3.1997. judgment Iftikhar Muhammad Chaudhary, J.-Briefly the facts are that on 1st February, 1994, Noor Bakhsh Hawaldar Levies, informed the Assistant Commissioner, Nushki that two dead bodies of Muhammad Afzal son of Dora and Mulla Niaz Muhammad son of Neik Muhammad, have been brought from village of Sardar Abdul Karim. He also informed that on his reaching there, inhabitants of village told him that they had died in a fight Accordingly FIR No. 2/94 under section-320 PPC was registered on the following day. It appears that on same day, appellant and Muhammad Yakub, the legal heirs of both the deceased, lodged a complaint before the Assistant Commissioner, nominating as many as seven persons to be accused, involved in commission of offence. Surprisingly on the following day, yet another application was submitted with the request that in the list of accused persons, names of two more persons be also added. In the meanwhile investigation of the case was entrusted to Muhammad Jam, Naib Tehsildar, Chagai, who at that time was not posted at Nushki. The I.O. arrested to some of the respondents and on completion of investigation, submitted challan against as many as 13 persons, including the one, who was declared absconder. As respondents did not plead guilty to the charge, therefore, prosecution led evidence of eight persons, including PWs Bismillah, Amir Muhammad, Sher Muhammad, Karim Bakhsh and Abdul Rahim, statedly to be the eye witnesses. On completion of trial, vide Judgment dated 25th November, 1996, the learned Additional Sessions Judge, Nushki, acquitted all the respondents form the charge. As such, instant appeal has been preferred. Mr. W.N. Kohli, learned Counsel appeared on behalf of appellant, whereas Mr. Abdul Karim Khan Yousafzai, Advocate, represented the Advocate General, notice to whom was given for assisting the Court. Appellant's counsel, contended that all the eye witnesses have furnished strong incriminating evidence against respondents, but the trial court has discarded their statements without cogent reasons. It is noteworthy that the eye witnesses, whose names have been mentioned herein-above were .examined on 12th February, 1994, by the I.O. as they were produced by prosecution witness Dawood Shah (not produced). We enquired from learned Counsel as to why Dawood Shah or persons whose name was taken by him in his own statement i.e. Sufi Obaidullah was not examined. He could not answer satisfactorily. It was next enquired from learned counsel that how the testimony of eye witnesses can be considered trust worthy, when they have deposed against respondents, after about ten days from incident and no explanation has been offered by the I.O. during his cross examination in recording their statements under section 161 Cr. P.C. promptly. Learned Counsel tried to canvass that probably appellants were not free to produce these witnesses before the I.O. immediately after happening of occurrence, as they were'busy in receiving Tatiah'. We may observed here that his this plea is .not supported by any evidence on record. In addition to this, it is also to be borne in mind that as for as Dawood Shah and Obaidullah are concerned, they were examined on 4th Februaiy, 1994, therefore, question would be that what was the impediment in the way of appellant for not producing other witnesses on that very day, if at all they had seen the incident. As such, we are inclined to conclude that actually these persons were set-up as prosecution witnesses subsequently to involve all the respondents in commission of offence, because as for as Dawood Shah and Obaidullah are concerned, even in their statement under section-161 Cr. P.C. they have not involved to all respondents nor had ascribed any specific role to them, for participating in commission of offence. Since they both have not been produced therefore, their statements cannot be considered, except making reference to draw inference that prosecution had with-hold that best kind of evidence and produced other witnesses who actually had not seen the incident, as no satisfactory explanation is coming forward that why they kept quite for a period of ten days. In this behalf, the Hon'ble Supreme Court in the Judgment of Syed Saeed Muhammad Shah and another versus The State(1993 SCMR 550), has held that statements recorded by police after delay and without explanation are to be ruled out of consideration. Besides it, with the assistance of learned counsel for appellant, we have independently assessed the evidence of all eye witnesses and we are of the opinion that they had not furnished consistent and confidence inspiring evidence, as lot of improvements were made by them in their deposition, comparing to their statements which they had earlier made before the I.O. In as much as PW-Bismillah admitted that in his 161 Cr. P.C. statement, he had not named the deceased persons, therefore, it would mean that he had no knowledge that who had died in the incident, being witnesses by him. Learned Trial Judge had thoroughly scrutinized the evidence of prosecution and rightly came to the conclusion that no case is made out for warranting conviction. It is known principle of criminal administration of justice that when an accused is exonerated of the charge by a competent court he enjoys presumption of double innocence in his favour, therefore, interference in an acquittal order can only be made, if the trial couit has disregarded material evidence or misread the evidence or received incriminating evidence illegally, as it has been held in the case of Ghulam Sikandar and another vs. Mamma Raz Khan and others (PLD 1985 SC 11). On careful consideration of impugned Judgment, we are inclined to hold that neither the available evidence has been disregarded nor it has been misread or received illegally by Trial Court, therefore, no interference is called for. Thus, for the foregoing reasons, we see not force in appeal, which is dismissed in limine. (K.A.B.) Appeal dismissed
PLJ 1997 Cr PLJ 1997 Cr.C. ( Quetta ) 804 (DB) Present: IFTIKHAB MUHAMMAD CHAUDHARY AND raja fayyaz ahmad, J J. HAJI PIR JAN-AppeUant versus MUHAMMAD YAQOOB etc.-Respondents. Crl. Acq. Appeal No. 26/1997, ordered accordingly on 15.4.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 417 read with S. 24 of Offences Against Properly (Enforcement of Hudood) Ordinance, 1979--0ffence under Ss. 147/148/149/427/451/504 and 506 PPC read with Ss. 9 and 14 of Ordinance, 1979-Acquittal-- Appeal against-Whether appeal is maintainable in High Court-Question of-Provisions of Or. P.O. on strength of sub-section (1) of section 24 applies with complete force and extent to cases under ordinance but is subject to qualifying provisions of second proviso to said section, therefore, S. 417(2-A) Cr. P.C. will not be attracted to extent of forum of appeal against an acquittal order as provided in sub-section (1) of S. 417 Cr.P.C. rather in accordance with second proviso to S. 24 of Ordinance such an appeal would lie to Federal Shariat Court being ulterior court of appeal by virtue of S. 24 of Ordinance VI of 1979 provisions of Cr.P.C. has been made applicable mutatis mutandis in respect of cases under said ordinance, therefore, it could safely be understood that provisions of Cr. P.C. will operate and come in aid to and to advance purposes and object of Ordinance (VI of 1979); save to extent of express provisions of Ordinance on such subject. [Pp. 809 & 811] A & B Mr. Tahir Muhammad Khan, Advocate for Appellant Mr. Hadi Shakil Ahmad, Advocate for Respondent Mr. Abdul Karim Yousafzai, Advocate for State. Date of hearing: 3.4.1997. judgment Raja Fayyaz Ahmad, J.-This appeal under section 417 (2-A) Dr.P.C. has been preferred by the complainant against impugned judgment lated 29-12-1996 passed by the learned Additional Sessions Judge, Lasbella it Hub whereby the accused-respondents have been acquitted of the charge inder crime No. 72/93 registered on 27-10-1993 under sections 147/148/149/427 and 451 PPC with Police Station, Hub and ultimately hallaned under the aforesaid sections besides under section 427/504, 506 ead with section 9 and 14 of the Offences Against Property (Enforcement of ludood) Ordinance, 1979. 2. The appellant on 27-10-1993 lodged a report with the Police Station, Huh alleging therein that on 24-10-1993 he had proceeded to Muttan and his son Aziz Ahmad on 25-10-1993 was present in the common office of their estate agency, Muslim Public School and Muslim Ice Factory while the armed 'Kabaza group' of Hqji Yaqooh Mullazai led by his brother Muhammad Ismail went upon the roof of their office and broke open a hole into the concrete roof and this caused damage to the photostat machine just placed under the site of the hole and also by means of the stones/material so collected completely smashed the said machine and as the complainant's one came out of the office he was threatened of his life by Ismail, Hahi Bakhsh, Karim Bakhsh and others, however, on the consequent resistance of the complainant's son they left the site. Again Haji Yaqoob alongwith Karim Bakhsh, Dhani Bakhsh, Ismail the eleven persons duly armed, assaulted their employee sitting out side the office who broke open the locks of the office, ran sacked it and looted the movables, the cash amount and the valuables detailed therein. According to complainant accused Muhammad Yaqoob also allegedly fired at his son which did not hit him, however; he was rescued by his companions present there. Later on some respectables and the Assistant Commissioner reached on the site and personally observed the rampage. The back drop of this incident has also been given in the report Consequently the respondents were challaned for trial of the above quoted offences in the court of learned Additional Sessions Judge, Lasbella at Hub and finally the learned court upon conclusion of the trial acquitted the respondents by means of the impugned judgment. 3. At the very outset of the arguments, the question for determination came up before this court as to whether the appeal against acquittal order recorded by the learned trial court upon conclusion of trial under the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) is competent and maintainable before this court 4. The learned counsel for the appellant/complainant as well as the learned counsel for the respondents and Mr. Abdul Karim Yousafzai, Advocate appearing for the State has been heard at length in support of their respective contentions. Mr. Tahir Muhammad Khan, Advocate strenuously contended that the appeal against acquittal order, to the High Court is quite competent, keeping in view the relevant sections of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) on the grounds :- (A) Though charge under section 17(3) of the Ordinance read with sections 148, 149, 427, 451, 504 and 506 PPC was framed by the learned trial court out no offence under section 17(3) or other penal section of the Ordinance was proved by the prosecution rather the alleged offence under the .quoted sections of PPC has been proved, therefore, the appeal could be vah'dly preferred in the High Court (B) The joinder of charges in the instant case was not permissible and the offences triable under the PPC being not the offence/s under the Ordinance, therefore, the acquittal order passed by the Sessions Court, is appealable to the High Court and appeal thus does not lie to the Hon'ble Federal Shariat Court. (C) Under the scheme of the Ordinance, appeal against the acquittal Order has not been provided, therefore, on account of application of Cr.P.C. by virtue of section 24 of the Ordinance the appeal would be competent before the Sessions Judge and the High Court as the case be. (D) The jurisdiction of the High Court has not been expressly ousted to appeal against an acquittal order, therefore, it has been competently filed, and the jurisdiction of the High Court has been curtailed only to appeal against the sentence if it extends beyond the period of imprisonment of two years, by virtue of 2nd Proviso to section 24 of the Ordinance. (E) Since the right of appeal against an acquittal order has been provided under section 417 (2A) Cr.P.C. therefore, it will be read in conjunction to sub-section (1) of section 417 Cr.P.C. and appeal thus would only be competent before High Court. The learned counsel for the appellant in support of his contentions referred and relied upon the reported judgments : PLD 1969 SC 158, 1981 5. The learned counsel for the respondents vehemently controverted arguments and contentions put forth on behalf of the appellants and 4| submitted that in view of the provisions of section 20 and 24 of the ji$ Ordinance VI of 1979 which being a Special Law, has ecifically conferred in the jurisdiction to the Federal Shariat Court in case of conviction for a period " < exceeding two years imprisonment if awarded by the trial court; irrespective s of such conviction being under any of the offence defined and made "7 'punishable under the Ordinance or within its purview under any of sections ~ Of PPC and the appeal against acquittal order for any or all of the offences under the Ordinance or PPC would also lie only before the Federal Shariat -4 d Court. The learned counsel also quoted an example that if in a case where =dthere are more than one accused tried jointly for the offences as in the ;-;einstant case under the Ordinance and if out of them only one or more acquitted by the court and the remaining accused convicted for a period of more than two years imprisonment who to file appeal before the Federal Shariat Court while the complainant against acquittal order filed appeal before the High Court, which if entertained would cause great anomaly and likely to result in the conflicting verdicts in the same case; therefore, such an intent could not be of the legislature or the Statute itself. The learned counsel for the respondents further convassed that the object of the law as is evidence from its scheme with specific reference to sections 20 and 24 is -. abundantly clear on the subject and on account of jurisdiction of the Federal Shariat Court having been specifically conferred to it under the law, in absence of any provision to the contrary available in the Ordinance itself. does not vest in High Court to hear the acquittal appeal. The learned counsel for the respondents relied upon the reported judgment i.e. PLD 1982 (FSC) 11, PLD 1983 (FSC) 33, PLD 1984 (FSC) 3, 1984 SCMR 129, 1995 P.Cr. LJ 724 and 1987 P.Cr.L.J. 1240 in support of his contentions. The learned counsel appearing for the State adopted the arguments of the respondent's counsel and submitted that the acquittal appeal does not lie before High Court and relied upon a case reported in PLD 1985 (FSC) 416. 6. It is the well settled principle of the law that a general law always give way to the special law on the subject. Upon the promulgation of Ordinance VI of 1979 the offences defined and made punishable under it or persuant to its provisions, hold the field as against such offences specifically dealt with under the PPC. This special law (Ordinance VI of 1979) has been enacted to modify the existing law relating to certain offences against property, so as to bring the existing law on subject in conformity with the injunctions of Holy Quran and Sunnah. The object of the law maker is quite manifest not only by its preamble raher the positive change brought in the structure of definition of the offence of 'Theft' and 'Harraba'. The constituting ingredients of the offences and the prescribed standards of required evidence for imposition of Hadd punishments and the cases in which Hadd punishment is not to be imposed, have been dealt with specifically. The scheme of the Ordinance and its provisions substantially is a departure of the subject from the relative provisions of the PPC except to the extent of punishment of such an offence by way of Tazir. Section 22 of the Ordinance deals with the attempt to commit an offence punishable by the Ordinance which provides that in absence of any provisions in the Ordinance itself for the punishment of such an attempt; the offender shall be punished with imprisonment of either description or a term which may extend to ten years. Thus for all intents and purposes the Ordinance is a special law, therefore, the general law on the subject will lean in favour of the Ordinance on the subject covered by it. Moreover; by virtue of section 3, of the Ordinance; an overriding effect notwithstanding any thing contained in any other law for the time being in force has been given. Section 20 of the Ordinance provides punishment for the offence of Harrabah' by way of Tazir if not liable to the punishment provided for in section 17 of the Ordinance or for which the required proof under section 17 is lacking or for which the punishment of amputation or death may not be imposed or enforced under the Ordinance shall be awarded punishment according to the provisions PPC for the offence of dacoity or extoration as the case may be. The qualified punishment under PPC as envisaged by section 20 of the Ordinance will not ipso facto restore or reverse the forum of appeal as it stood prior to the enforcement of the Ordinance except to the extent provided in the Ordinance itself. Tke Code of Criminal Procedure has been made applicable mutatis mutandis la resBOQk ef the cases under Ordinance VI of 1979. The words In respect ef the cases under this Ordinance' used in sub-section (1) of section 24 of the Qrjiaeace an the qualifying words having specific reference to the cases faffing <n covered under any of the provisions of the Ordinance; which definitely mrfuil the offences punishable by way of imprisonment under the relevant Arttfins ef PPC and thus not excluded such offences from the ambit of Ordinance. Tke contention of the learned counsel for the appellant that in cases where the punishment under the relevant section of PPC is to be awarded but not so imposed the order of acquittal would be appealable to the forums ef appeal provided under the Code of Criminal Procedure; to our mind is without any substance for the reason that by virtue of second proviso to section 24 ef the Ordinance forum of appeal from an order section and 17 or from an order under any other provisions of the Ordinance imposing a sentence of imprisonment for a period of more than two years shall be tke Federal Shariat and thus the second proviso determines the forum of appeal, therefore, appeal against sentence of imprisonment for a term not exceeding two years under any provision of the Ordinance except under section 9 or 17 shall lie to High Court and in any other case to the Federal Shariat Court While interpreting any Statute or any provision of law the object of the particular enactment and its provisions are to be looked into, to ascertain its true intent, import, purpose and object from the Statute itself. To enter into the arena of construction of a Statute, the harmonious interpretation of such an enactment is to be made which in no way makes redundant or superfluous any provision of the law or to result in causing any conflict within the provisions or to its object, as the law maker/legislature make and enact laws to be effective, consistent, purposeful and objective and the superior courts while interpreting a Statute to advance and harmonise the object, intent and purposes of law and not to make any provision redundant or ineffective. As such it cannot be legitimately conceived that the Ordinance within the purview of section 24 create different forums for appeals against acquittal orders. The conclusion of the learned counsel for the appellants that due to the applicability of Cr.P.C. mutatis mutandis in respect of cases under the Ordinance, the appeal against acquittal order would lie to the High Court is not sound and tenable as the second proviso controls the subtion (1) of section 24, therefore, it will be read subject to the proviso and not independently. According to the first proviso to section 24 of the Ordinance, if it appears in evidence that the offender has committed a different offence under any other law, he could be convicted for such an offence by the court provided the court is competent to award punishment, includes the court of Sessions or Magistrate as the case may be subject to the exception of trial of offence under sections 9 or 17 of the Ordinance by a court of Sessions under the second proviso to the section 24, thus the first proviso to this specified extent is controlled by the second proviso and in this context the plea of the learned counsel that it includes the filing of appeal against the acquittal order in respect of an offence other than the offence defined and punishable under the Ordinance, shall lie to the court of Sessions or High Court as the case be, is devoid of any force. Under the second proviso to section 24 of the Ordinance, Federal Shariat Court has been expressly termed and specified to be the court of appeal, whereas; for limited purpose of a case where sentence of imprisonment not exceeding two years has been passed an appeal shall lie to High Court except against an order under section 9 or 17 of the Ordinance. Thus the Principle court of appeal is the Federal Shariat Court and not a High Court As discussed above the provisions of O.P.C. on the strength of sub section (1) of section 24 applies with complete force and extent, to the cases under the Ordinance but is subject to the qualifying provisions of the second proviso to the said section, therefore, section 417 (2-A) Cr. P.C. will not be attracted to the extent of the forum of appeal against an acquittal order as provided in sub-section (1) of section 417 Cr.P.C. rather in accordance with the second proviso to section 24 of the Ordinance such an appeal would lie to the Federal Shariat Court being the ulterior court of appeal and the contention to the contrary convassed by the learned counsel on the grounds taken in this behalf does not sound to be well based. 7. In the reported judgment PLD 1969 SC 158 under head note (C) page 159 it has been held by the Hon'ble Supreme Court that the rule laid down in section 233 Cr.P.C. is that for every district offence of which anj person is an accused there shall be a separate charge which shall be triet separately except in cases mentioned in section 234 to 239, Cr.P.C. which art exception to the general rule and the joint trial under these sections is no mandatory nor it can be said that if several accused persons are charged fo: committing the same offence in the course of same transaction are triei separately irrespective to any question of prejudice, be illegal. This case la\ on the point invoked in the attending matter before this court bears n relevancy or material effect whether the respondents tried under separat charge or jointly for each of the alleged distinct offence. In the light of the above discussion there cold not be any opinion c conclusion otherwise that the ouster of jurisdiction not be readily inferred i SlOCr.C. labsence of provision to the contrary leading to such a conclusion and it is the (well settled principle of interpretation of law but the case the law on thiy .ut lied upon is not attracted in the case in hand. PLD 1985 (FSC) 416 in nc way helps the submissions of the learned counsel of the appellants rather it to an extent rengthens the view that appeal against acquittal "order unde j Jie Ordinance VI of 1979 lies to the Federal Shariat Court. The Ratio \ iecendi of case ported in PLD 1989 (Lab.) 272 of the Single Bench of the rlon'ble Cou;.. ; s that the jurisdiction of High Court is not ousted with ;espect to the offence der ction 379 and 380 or in respect of an offence, ot made punishable as such under the Ordinance VI of 1979. The Rule so id down in the reported judgment PLD 1989 ah.) 272 will also amount to ect the jurisdiction of the Federal Shariat Court in cases even where the ntence of imprisonment exceeding two years has been ssed under ction 379/0 "0 PPC : while against such an order of conviction jurisdiction s expressly been conferred under section 24 of the Ordinance to the ederal Shariat Court for appeal. With utmost respect to the view taken in e said reported judgment, it may result in creating anomalous effects and conflicting dgments e forums at High Court and Federal Shariat ourt levels. There may be cases in which only one or more accused are larged for the offence/s under the Ordinance as ll r the commission ' offence under some relative section of PPC resultantly one set of the cused convicted by the trial court for one offence under section 9 or 17 of e dinance or sentenced exceeding two years imprisonment and the ers under the charged section of PPC. Thus the convicted accused have to efer appeal in is view of the matter to Federal Shariat Court as well as to gh Court respectively; which obviously might bring conflicting, consisting and anomalous ults; thus such an intention cannot be ribtited to the intention of law maker or to the Statute itself. n the cited case reported in 1994 SCMR 152 the oposition /olved in the instant case was not under consideration of Hon'ble Supreme urt and as per facts of the case, the accused were involved in connection th the offence under section 17(4) of the Offences Against Properly nforcement of Hudood) Ordinance read with sections 302/149, 307/149, D/149 and 148 PPC. The accused were convicted for all the offences except } one who was acquitted. The convicted accused filed appeal before the §h Court and consequently the Hon'ble High Court after appraisal of the dence acquitted them all from the charges. The state against the acquittal ler of High Court filed appeal before the Hon'ble Supreme Court, which s finally dismissed. The question of maintainability of appeal in the High urt or even before the learned apex court was not raised, therefore, the ;d case law has no bearing in the present matter. 8. the case Saw Le. PLD 1982 (FSC) 11, PLD 1983 (FSC) 33, PLD 4 (FSC) 3, 1984 SCMR 129 and 1987 P.Cr. L. J. 1240 referred to by the :ned counsel for the respondents pertain to the cases registered under the ance of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979).rear! with the other sections of PPC as per respective case, wherein it has been held in view of section 20 of the Ordinance (VII of 1979) that appeal against conviction as well as of acquittal order shall lie to the Federal Shariat Court. By virtue of the second proviso to section 20 of Ordinance VII of 1979 it has been provided that appeal from an order of the court of Sessions shall lie to the Federal Shariat Court, therefore, there remains no ambiguity that the word 'order' used in the second proviso includes both the orders of conviction as well as that of acquittal and the forum of appeal has also been specifically given. These cited authorities as such of not direct help to the proposition involved in the instant matter, however; in view of these authorities, the case law i.e. PLD 1989 (Lah.) 272 relief upon by the learned counsel for the appellants remains of no avail for the propose it was cited for. The cited case law 1995 P.Cr.L.J. 72 is not relevant to the proposition in hand. By virtue of section 24 of Ordinance VI of 1979 the provisions of the Code of Criminal Procedure has been made applicable mutatis mutandis in respect of case under the said Ordinance, therefore, it could safely be understood that the provisions of Cr.P.C. will operate and came in aid to and to advance the purposes and object of the Ordinance (VI of 1979); save to the extent of the express provisions of the Ordinance on such subject. 9. We feel inclined to hold that even for the offences other than those defined and made punishable under the Ordinance or punishable under any other law for the time being in force within the ambit of the Ordinance, wither it result into conviction of imprisonment for a term exceeding two years or into an order of acquittal passed by a competent court, appeal would lie to the Federal Shariat Court only due to the jurisdiction having been so conferred to the Federal Shariat Court. Keeping in view the principles of the interpretation of Statutes that it should advance the remedy, to save rather destroy the Statute and to meet with certain contingencies not provided for in the Statute; beneficial construction of an enactment is to be made and for the reasons given hereinabove, we are of the considered view that against an order of acquittal for the offence/s tried within the ambit of the Ordinance (VI of 1979) appeal shall lie only to the Federal Shariat Court; resultantly the appeal field in this court is not maintainable, therefore, is ordered to be returned to the appellant for its presentation to the competent court if so desired by him Order accordingly. (K.A.B.) Appeal decided accordingly
PLJ 1997 Cr PLJ 1997 Cr. C. ( Quetta ) 812 (DB) Present: iftikhar muhammad chaudhary, and raja fayyaz ahmed, JJ. WAZIR KHAN-Appellant versus STATE-Respondent Murder Reference No. 4 of 1997 confirmed on 13-5-1997. (i) Motive- No hard and fast rule can be laid down with regard to formation of creating motive-Question of motive is always a question of fact which varies from case to case and depending upon facts and circumstances of a particular case, just like in manner as human being varies and conduct themselves-Sometimes it is noticeable on account of conduct of person, at times it due to certain existent facts leading to commission of any illegal act-Serious crimes are committed where there could be slight motive and there are even cases where motive could not be found or discovered. [P, 822] F & G (ii) Pakistan Penal Code, 1860 (XLV of I860)- S. 3@2(b) read with S. 374 Cr.P.C. and Suppression of Terrorist Activities (Special Courts) Act, 1975 S. 7~Murder~Offence of-Conviction for« Refernece for confirmatien and appeal against-Testimony of ocular solitary witness finds direct and independent corroboration from medical evidence-Mere relationship of PW-4 (son of deceased) will not in ordinary course blend his testimony to be that of interested or partisan in absence of any strong reason, enmity or motive-It is hardly convinceable that son of deceased will let off real culprit and will involve an innocent person-Defence has failed to bring any material or record for treating testimony of PW-4 to be that of inimical person-Contrarily he is straight forward and confidence inspiring free from any contradiction or discrepancy-Motive asserted in report (FIR) had proposed and required proof of event leading to incident-Recovery of fire arm empties, 'chaddar' and cap of convict from place of occurrence coupled with medical evidence established the case of prosecution as a circumstance of happened event- Held : Prosecution having established its case beyond shadow of any reasonable doubt against appellant whereas contentions raised by appellant do not render impugned judgment as not sustainable-Murder reference accepted-Appeal dismissed. [Pp. 818, 820, 822 & 827 ] A to E & H to M. PLD 1992 SC 211 and PLD 1980 SC 225, Rqja M. Afsar, Advocate for Appellant Mr. Noor Muhammad Achakzai, Addl. A.G. for State. Dates of hearing: 23-4-1997 and 28-4-1997. judgment Raja Fayyaz Ahmad, J.-The learned Sessions Judge-cum-Special Judge (S.T.A) Court, Loralai has forwarded this Murder Reference under section 374 CrP.C. for confirmation of the death sentence awarded to the convict Wazir Khan son of Muhammad Noor under section 302 (b) PPC (as amended) vide judgment dated 28-3-1997. The appellant/convict has also challenged his conviction recorded by the learned court vide the aforesaid judgment by ' referring separate Appeal No. 67/1997, therefore, we propose to dispose of the reference and the appeal by this common judgment It is the case of the prosecution as per FIR (Ex. P/G) dated 7-7-1995 lodged by PW-4 Abdul Salam with the Police Station, Zhob to the effect that he lives with his father in the Zarin garden (Baghicha) and his father works as 'Bazgar' in the garden and at about 8:00 PM while he alongwith his father (Sanzar Khan) reached opposite to the College Mohallah after having a round of the garden three persons including the convict Wazir Khan son of Muhammad Noor Levies employes armed with a Kalashanikov, were standing in segregated position while the other two could not be identified by the complainant and when the complainant and his father reached near to the convict, the deceased offered 'Salaam' ( ^^" ) to him who in response replied that he will not be spared and fired four shots from his Kalashanikov on the father of complainant who fell down on the ground having sustained bullet, while the complainant ran towards the College Colony being horrified, whereas; the convict alongwith his two companions also made good their escape from the site. The complainant PW-4 describing the motive for the commission of the offence stated in his report that a few days back Wazir Khan (convict) had brought his cow to their house for crossing it with the bull kept by his father and his father had charged Rs. 100/- for the purpose from Wazir Khan, who on the same day again brought his cow for crossing but his father did not allow for such crossing of the cow due to which exchange of bitter words between the two happened and according to the complainant it was a grudge in the mind of Wazir Khan due to which he alongwith his two helpers murdered his father by firing. During the investigation consequent upon registration of the case PW-5 Amir Muhammad Khan S.I.P. visited the site of occurrence and got the site map Ex. P/H., inquest report Ex. P/i prepared. He also secured the blood stained earth, two empties of China rifle, one cap and Chaadar from the place of incident vide recovery memos:. The blood stained clothes of the deceased were also taken into possession vide recoveiy memo: Ex. P/C and the dead body was sent to the hospital for autopsy. The convict Wazir Khan was arrested on 21-5-1995 and his father Muhammad Noor was arrested on 4-6-1995 by the police who produced China Rifle which was taken into possession vide memo Ex. P/B. The empties secured from the site of occurrence and the Rifle as produced was sent to the Ballistic Expert for examination and report and positive report Ex. P/J was received from Ballistic Export. Upon completion of the investigation challan Ex. P/K submitted before the learned trial court i.e. Special Judge (S.T.A.) Court, Loralai. The accused Wazir Khan and his father Muhammad Noor did not plead guilty to the charge, whereupon; during trial the prosecution in support to its case examined five witnesses. The accused Muhammad Noor was not examined under section 342 Cr.P.C. as no incriminating evidence was available against him during trial and was already on bail. The convict Wazir Khan has been examined under section 342 Cr.P.C. wherein he denied the case of the prosecution and stated that he has been implicated in a false case and that he is innocent. The convict/appellant made his statement on oath in disproof of the charge against him and took the plea of alibi. He stated that on 6-5-1995 i.e. a day > prior to the date of occurrence he had gone to Killa Saifullah to see his ailing " maternal uncle where he spent three days with him and on the third day of Eid went to Zhob where he allegedly surrendered to the police having come to know about the case registered against him. He further deposed that he did not own cow nor had gone with cow to the house of the deceased and that he has been involved in a false case. The appellant produced one witness in defence in support of his plea namely Allah Dad who deposed that on 6-5- 1995 the appellant spent night at his house with him and he was not feeling well, therefore, the appellant remained with him for three days, thereafter he was called back by his father. The learned court vide its judgment dated 28-3-1997 awarded death penalty to the convict/appellant Wazir Khan and Muhammad Noor was acquitted of the charge. 3. We have heard at length the learned counsel for the appellant and the learned Additional Advocate General in support of their respective contentions in the light of the record of the case. The learned counsel for the appellant contended and argued that the prosecution has failed to establish the guilt against the appellant beyond shadow of any reasonable doubt and raised the following grounds on which he argued the case seeking for acquittal of the convict/appellant :-- ( i ) The solitary ocular witness PW-4 being the real son of the deceased is an interested and partison person, is not worthy of implicit reliance in absence of independent corroboration, contradictions and infirmities in his statement before the court and as to the report lodged by him, the conduct of PW-4 upon the happening of the alleged event not natural and reasonable, younger age of the complainant contributed for confirmation of his deposition, the deposition of PW-4 has given rise to more question than answered in support of prosecution case. Identification of the appellant by PW-4 (complainant) in the moon light is highly doubtful as in the garden which according to the learned counsel almost was covered with bush and trees and the complainant to the extent of the weapon of offence, described by him stands contradicted by the alleged recovery of empties and the rifle. (ii) The testimony of PW-4 in the circumstances of the case requires exceptionally strong corroboration coming from un-impeachable source or supported by strong circumstantial evidence and in absence of such evidence (wanting in the case) the conviction is not sustainable .( iii) Motive set up has not been established except to the extent of the bald statement of PW-4. The trivial alleged dispute not sufficient and justifiable for committing such an alleged grave offence after some days. (iv) The prosecution evidence is scarce, scanty and not qualitative. (v) Testimony of PW-2 ASI and PW-5 Investigating Officer SHO not worth reliance. (vi) Site plan not duly proved, which also does not indicate the house of the deceased and complainant. Inspection no! o of the site of occurrence wanting. The site plan was inadmissible in evidence. (vii) Inquest report contains false entry of the place where I'- 1 dead body was shown to be lying. (viii)Contradictions in the statement of PW-2, 3 and 5 and due notice of the infirmities of the prosecution case has not been taken. (ix) The defence evidence has been wrongly and illegally disbelieved, conduct of the appellant prudent, natural and rational as per his plea, the defence has caused in creating reasonable doubt on the prosecution case. (x) The prosecution has failed to discharge the onus successfully. (xi) It is a case which amply justifies for extending benefit of doubt to the appellant. The learned counsel for the convict/appellant in support of contentions relied on the reported judgments (1) PLD 1978 SC 114, (2) 1971 SCMR 432, (3) 1979 SCMR 214 (4) 1976 P.Cr. L.J. 243, (5) PLD 1963 SC 40, (6) PLD 1973 SC 321, (7) PLD 1976 SC 241 + 629, (8) 1973 PCr. L.J. 904, (9) PLD 1963 SC17, (10) PLD 1970 SC 10. The learned Additional Advocate General controverting the arguments of the learned counsel for the appellant submitted, that there is no material infirmity, discrepancy and material contradiction in the prosecution case and the onus has been successfully discharged by the prosecution. The motive has duly been established agataet the appellant for commission of the alleged offence and the learned trial court according to him as properly appraised the evidence available on record for good reasons and the defence evidence has not been relied upon by the learned trial court due to its being after thought and argued that the sentence awarded by the trial court be confirmed in view of the facts and circumstances of the case and the appeal against conviction of the appellant thus liable to be dismissed. 4. The prosecution case is based on the following pieces of incriminating evidence. (a) Medical evidence. (b) Ocular evidence of PW-4 Muhammad Salam (the son of the deceased) (c) Recovery of rile, empties and the report of the Ballistic Expert. (d) Motive. 5. PW-1 Dr. Muhammad Akbar, Medical Officer, Zhob stated that on 7-5-1995 at about 8:30 PM dead body of Sanzar Khan was brought to the Hospital for examination and report and he found the following external injuries on the dead body: (i) Entrance gun shot wound on the forehead circular in shape \ inch in diameter. (ii) Exit gun shot wound on the occipital region. Brain matter out Bleeding from ear and nose. Oval in shape, one inch in dia meter. Opinion. Death was caused due to the injuries to the vital organ i.e. brain, brain matter out, excessive haemorrhage, shock and death. The witness produced the death certificate Ex. P/A and has not been crossexamined by the defence. The post-mortem of the deceased has not been conducted and the prosecution evidence on the point is silent as to why autopsy of the deceased was not done. It appears that the Doctor on account of the bullet injury to the brain might have not thought it fit to further ascertain the cause of death by cogxhtfting post-mortem or otherwise under the orders of the Magistrate en the request of the complainant and other legal heir of the deceased. The gun shot injury to the brain one of the most vital organ of the body detailed in the certificate Ex. P/A containing definite opinion of the Me^i^ Officer about the cause of death duly proved in court to be due to the injuries to the brain, brain matter out, excessive haemorrhage, shock and death establishes the fact that the gun shot injury sustained by the deceased was sufficient in the ordinary course of nature to cause death. The testimony of the Medical Officer was not challenged by the defence by not cross- ~examining him, therefore, it shall be deemed to have been accepted by the defence as well. It is abundantly established by the Medical evidence that the deceased died due to fire arm injury which in the ordinary course of nature was sufficient to cause death. 6. PW-4 who is the son of the deceased and solitary witness of the occurrence has deposed before the court that he and his father while were looking the wheat crops convict Wazir Khan who was armed with Kalashanikov came to the garden alongwith two other persons and upon saymg' &-\ V^' he opened fire on his father who resultantly died, they fled from the site and he did not identify the other two persons. According to the witness the accused had after having got crossed his cow by their bull paid Rs. 100/- went back and after some time again the accused come to their house with the cow and asked his father for recrossing with his bull but his father refused and the accused got raged and went back due to which he has murdered his father. The witness produced his report as Ex. P/G. While being cross-examined the witness stated that his house is situated in the middle of the orchard and there is no other house in the orchard and he ran away towards the road after his father was injured. The witness admitted that people attracted to the site after the accused ran away and the people took his father to the hospital while the Medical Officer had informed the Police. Further in the cross-examination the witness stated that at night time the police came on the spot and he showed the place of occurrence to the police where the accused had left his 'Chaadar' and cap. He further admitted that it was semi dark but there as moon light at the time of incident The witness denied the suggestion that the accused was not present at the place of incident nor was armed with Kalashanikov. The witness also denied the suggestion of the defence that his father was killed on the road by unknown person and further the witness denied the defence suggestion that he has nominated the accused at the instance of Amir Muhammad Sub Inspector Police and that the accused had no cow nor he has brought the cow for crossing to their house. In the given evidence of PW-4 it has been proved that the house of the witness and of his father where they both were living was situated in the middle of the 'Baghicha' and the area of the 'Baghicha' also contained wheat crops, therefore", the presence of this PW and of his father in the Baghicha was quite natural and through cross-examination the version of the presence of PW-4 at the eventful time with his father could not be impeached. It has also come on record during cross-examination that the house of the deceased is situated in the middle of the 'Baghicha' (mini garden) and there is no other house in the 'Baghicha' therefore, in the given circumstances the presence of any person at the relevant time would not have been in the ordinary course to be reasonable or convincing thus the PW-4 was the only available witness of the occurrence and the contention of the learned counsel for the appellant that no independent witness has been produced by the prosecution, to our mind in the circumstances is of no substance. The testimony of the ocular solitary witness finds direct and independent corroboration from the medical evidence of PW-1 discussed hereinabove. Mere relationship of PW-4 (son of the deceased) will not in the ordinary course blend his testimony to be that of an interested or partisan in absence of any strong reason, enmity or motive. It is hardly in the circumstances of the case convinceable that the son of the deceased will let off the real culprit and will involve an innocent person instead in such a serious crime and that too for no motive. The contention of the learned counsel that PW-4 is the interested witness and hence needs be supported by strong independent corroboration through unimpeachable source in removing the inherent doubt of the ocular testimony of PW-4, no doubt as a Rule of prudence in cases where the ocular testimony is based upon the evidence of the interested or partisan person/s, the rule has to be strictly observed for the safe administration of criminal unstice. As above held the testimony of PW-4 simpliciter cannot be termed to be that of an interested person therefore, the case law i.e. Thoba and another vs. The State PLD 1963 SC 40 has no direct application to the evidence of PW-4. In another case law cited by the learned counsel for the appellant; Bagh All and four others vs. The State PLD 1973 SC it has been held that: "The appraisement of evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is total absence of physical circumstances to connect the accused person with the crime, and there is a back-ground of enmity. In such a situation the ocular evidence must, in order to carry conviction on a capital charge, come from an unimpeachable source. If such a source is not available, then it must be supported by some strong circumstances which would enable the court to overcome the inherent doubt which such evidence necessarily create ." The given situation noticed and visualised necessitating in laying down the Rule quoted in the above mentioned authority is wanting in the case in hand. The defence has failed to bring any material or reason on record for treating the testimony of PW-4 to be that of an inimical or interested person requiring for the full application of the Rule laid down by Hon'ble Supreme Court in the above referred two authorities. Merely on the ground o relationship as laid down in the case Muhammad Iqbal alias Bala vs. State SCMR 01) a witness does not become an interested witness. The defence has given a suggestion to PW-4 during crossexamination that he has nominated the accused at the instance of Amir Muhammad SIP (PW-5) which has been denied by the witness to be correct The defence has not given or even explained by the accused in his statement on oath as to the existing of any motive on the part of PW-5 SIP to get the accused involved in the case through PW-4 neither even the PW-5 has been on this plea cross-examined nor such a suggestion given to the witness by defence and the suggestion given to PW-4 by the defence side appears to have been made without any basis therefor. 7. The learned counsel for the appellant submitted that the deposition of PW-4 with that of his report Ex. P/G is inconsistent, suffers from infirmities and discrepancies, therefore, is immune of implicit reliance without corroboration by reliable evidence and in support of his contention relied upon the case reported in (PLD 1978 SC 114). The learned counsel to support his contention referred to comparative portions of the statement of PW-4 to that contained in the report lodged by him. In his report the witness stated that he was having round of the Baghicha with his father while in his deposition before the court stated that he alongwith his father were looking the wheat crops; in substance is neither contradictory nor an infirmity in our view as one while taking round of the Baghicha can simultaneously look after the wheat crop of the Baghicha. The stated omission in his deposition as compared to that contained in the report that when "they reached near to College Mohalla" does not affect the intrinsic value of the statement of PW-4 nor on this point the witness was confronted by the defence and this omission by itself does not render the version of the witness as discrepant or unreliable and the stated inconsistencies/discrepancies have been pointed out by the learned counsel for the appellant in the report and deposition of PW-4 as follows :-- (i) FIRdeposition- (ii) FIRdeposition- (iii) FIRdeposition- " three persons were standing separately" accused Wazir Khan came to the Baghicha alongwith two other persons. when he alongwith his father reached near to Wazir Khan my father put 'Salaam ' to him accused was armed with kalashanikov and after saying 'Asalamu-Elekum' ( ) opened fire on his father on my father one after the other four fires were made The accused Wazir Khan fired at my father. The comparative alleged inconsistency reproduced at No. (i) above in our estimation does not appear to be an infirmity or discrepancy in the testimony of PW-4 wherein he deposed that "the accused Wazir Khan came to the Baghicha alongwith two other persons" is based upon his physical knowledge that "three persons were standing separately" in the Baghicha. The stated infirmity reproduced at No. (ii) above does not come in conflict inter se, the substance on the point is evident that firing was made by the appellant after saying 'Salaam' by the deceased and in his deposition before the court that after saying 'Aslamo-Elekum' the accused opened fire at his father does not indicate that 'Salaam' was given by the accused. The stated discrepancy reproduced at No. (iii) above is in fact not so, the witness in his deposition has mentioned only of the firing made by the appellant on his father, whereas; in the FIR has given the detail of such firing. In substance the aforementioned omission or the stated infirmities from whatever angle seen does not render the testimony of PW-4 as altered in its instrinsic value and effect rather we are of the considered opinion that the testimony of the ocular witness does not suffer from any improvement, material contractions infirmity or any discrepancy which goes to the root of the prosecution case Zulfiqar alias Bhutto vs. State (1995 SCMR1668). The testimony of the solitary ocular witness is straight-forward and confidence inspiring, free from any material contraction or discrepancy therefore, reliance an safely be placed on his evidence. The younger age i.e. 13 or 14 years of the complainant at the time of the incident by itself is no disqualification to his testimony which if otherwise is confidence inspiring. Conviction even in murder cases can be based on the testimony of a single witness if court is satisfied as to such witness being reliable as has been held by the HonTsle Supreme Court in the case Allah Bakhsh vs. Shammi and others (PLD 1980 SC 225). In the instant case the testimony of the solitary witness finds support from the medical evidence with regard to the manner of murder which has not been disputed even by the defence. To the questions put by the defence counsel to PW-4 the witness replied that the accused has left his Chaddar and the cap and that he had shown the place of incident to the police who recovered the articles from the said site and these facts have been brought on record by the defence through the mouth of the solitary eye witness, gets further support of the recovery memo (Ex. P/F) of the Chaddar and cap produced by PW-3 Nizamuddin head constable. The recovery memo indicates that these articles were pointed out to the police by the complainant (PW-4). The contention of the appellant's counsel that the identification of the convict in the moon light by the complainant was difficult and highly doubtful. The complainant in report Ex. P/G has not only given the name of the appellant rather has mentioned his caste, parentage and occupation and about the other two he stated that he should not identify them, thus it is evident that the appellant was known to the witness previously and as per report and deposition of the witness the convict had come to their house fo crossing his cow with the bull twice therefore, there is no reason to believe that the convict was not known to the complainant or mistakenly identified. The complainant very fairly stated that he did not identify the other two persons accompanying the convict further lends support to the prosecution person about exact identification of the appellant who as such has been categorically and explicitly nominated by the complainant. In absence of any strong reason or enmity there is no substance in the argument that despite lacking proper identification of the appellant by the complainant he has been nominated and implicated in the case. To a question by the defence the witness stated that it was moon light at the time of incident and semi dark, therefore, by visualising the scene of moon light an argument has been advanced on the plea that the identification of the convict was difficult and doubtful, which in fact has no basis. It is not the case of the prosecution that the witness had identified the appellant in the moon light rather he had, nominated the appellant who was already known to him. The distance between the witness, the culprit and the object in such a situation could be very relevant for the purposes of identification but this aspect being so built up during arguments, has not been attended to during trial by the defence. The case law 1973 P.Cr.LJ. 904 cited by the learned counsel is distinguishable on facts, in the cited case the question of identification of the accused arose on account of the murder having committed in the moonlit night under shade of tree. In the instant case the appellant was known to the witness already and there is no evidence that the culprit was under any shade or at such a distances from where he could not have been identified . Mst. Shamim Akhtar's case reported in (PLD 1992 SC 211) could be referred conveniently on the point where also the identification of the accused in the torch light by the complainant arose and it has been held by the Hon'ble Supreme Court that the question of wrong identification in torch light did not arise as the accused was already known to the complainant. 8. The learned counsel for the appellant candidly argued that the motive set up in the report by PW-4 has not been established except to the extent of the bald statement of the complainant. This argument put forth does not carry the weight as the learned counsel conceded to the fact that the alleged motive finds support from the statement of the complainant. In the report lodged by P.W. 4 it has been stated that Wazir Khan had brought his cow to their house for crossing her with the bull kept by his father and his father had got Rs. 100/- for such crossing but on the same day he again brought the cow for re-crossing but his father refused resultantly bitter words were exchanged between the two and this event was in the mind of Wazir Khan and as a consequence thereof he with the help of two other persons murdered his father. While in his deposition before the court the complainant stated that after some time the accused came back and asked his father to permit him for the re-crossing of the cow with his bull but his father refused resultantly the accused became angry and went away, due to this reason he murdered his father. Keeping in view the stated motive of the crime as contained in the FIR to that deposed in the court, is one and the same in substance except the words expressed and altered, which is a natural phenomenon of human conduct and behaviour as it is nevertheless possible in the ordinary course of nature in a humanly conduct to narrate in verbetum what a person has stated years before on a particular point. The narration of facts in the deposition by PW-4 remains the same as made in the report by him. In the given circumstances there could have been no evidence of the motive pertaining to the event having occurred in the presence of the complainant alone, we thus are of the considered view that the motive asserted in the report had the proposed and required proof of the event leading to the incident. The contention in this regard made by the learned counsel does not merit the objected consideration. The proof of motive requires no special rule of evidence nor there could be any special mode or standard of the required evidence to prove such an alleged fact of motive, and it could be proved through evidence that may be needed/required for proving as any other relevant fact. Motive is a phenomenon of the mental state of a person which makes him to act in a particular manner in conducting himself due to any reason, cause or self motivated and pursuant thereto either immediately or thereafter such person acts in a particular direction and no hard and fast rule can be laid down with regard to formation of creating motive. Some times it is noticeable on account of the conduct of a person, at time it due to certain existence fact/s or back ground leading to the commission of any illegal act and even the existence of motive can be perceived or conceived which may move a person to act in a particular manner. The question of motive is always a question of fact which varies from case to case and depending upon the facts and circumstances of a particular case; just like in the manner as the human being varies and conduct themselves . The submission of the learned counsel that the alleged motive being of a veiy trivial nature could not have led to the commission of the stated offence. This objection hardly appeals to the reason as for the human conduct of the affairs no standard or cause could be determined to be sufficient to move a person to act or not to act in a particular manner. The adequacy or otherwise of an alleged motive could never be the foundation to determine or settle the sufficiency or insufficiency for the commission of any illegal act or omission. Serious crimes are committed where there could be slight motive or even committed on the basis of sudden or momentus impulses and there are even cases where motive could not be or having not been found or discovered. The argument so advanced goes to the other way round as well as the trivial dispute of the bitter exchange of words or the anger so ensued between the deceased and the appellant in our opinion lays no reason to the complainant to falsely implicate the appellant for the murder of his father as against the real culprit. As already observed hereinabove that the attributed motive has been proved by the prosecution therefore, the reported case law i.e. Muhammad Sadiq vs. Muhammad Sarwar and 2 others (1979 SCMR 214) and Hakim All us. The State and another (1971 SCMR 432) is of no avail to the raised contention wherein it has been respectively held that motive for crime put forward by the prosecution not proved at all ocular evidence required to be scrutinized, in the circumstances with great caution and that once if a motive has been set up but not established, the prosecution must suffer consequences and not the defence. The other reported judgment reported in 1976 P.Cr.L.J, 243 on the plea of motive raised by the learned counsel renders no assistance in view of the fact of the disclosed motive having been proved by the prosecution. 9. In view of the contentions raised by the learned counsel for the appellant noted in para 3 (v) (vi) (vii) (viii) supra while considered in the light of the record of the case we found that the evidence of PW-2 Abid Hussain Shah ASI Police Station Zhob with regard to the taking into possession of the rifle vide memo Ex. P/B in his presence produced by the father of the convict and evidence on the point of PW-5 Amir Muhammad Khan S.I. Police/Investigating Officer of the case has been disbelieved and consequently the report of the Ballistic expert Ex. P/J tendered by PW-5 treated to be inconsequential. We have re-appraised the evidence independently on the point of the recovery of the weapon produced by the father of the convict in the police station on 7-5-1995, has rightly been not treated to be the weapon of offence for want of any nexus with the crime and consequently the report of the Ballistic Expert resultantly of no avail to the prosecution. The evidence of PW-2 since pertain only to the extent of the production of the rifle as aforesaid therefore, the plea that he contradicts PW-5 has no force. PW-3 Nizamuddin head constable police deposed that he alongwith Amir Khan SIP and other police station went to the Civil Hospital Zhob were the Medical Officer handed over the blood stained shirt, turban and Chaadar of the deceased to PW-5 which was taken into possession vide memo and he produced the recovery memo of the blood stained clothes as Ex. P/C. The witness further deposed that from the hospital they went to the place of incident and Amir Khan (PW-5) recovered the blood stained earth vide memo Ex. P/D. According to the witness two empties of rifle rounds were also recovered from the said site and produced the recovery memo thereof as Ex. P/E in addition to the recovery one Chaadar and cap from the place of occurrence vide Ex. P/F. In the cross-examination the witness stated that at 8:30 PM they went to the hospital and the dead body was lying there and from the hospital they went to the place of incident. The witness replying to the questions in the cross-examination stated that the complainant took them to the site. PW-5 the SIP/Investigating Officer stated that he consequent upon the investigation of the case entrusted to him alongwith the police staff visited the place of occurrence, prepared the sketch of Wardat site, examined t^e dead body, and produced the inquest report as Ex. P/i and thereupon sent the dead body to the hospital for examination and report. According to PW-5 two empties of china rounds were also recovered from the scene of occurrence besides the blood stained earth secured vide their respective memos: He further deposed that Chaadar and cap was also recovered from the said site and recovery memo prepared therefor. The witness stated that the blood stained clothes of the deceased were also taken into possession vide memo Ex. P/C and he arrested the appellant on 21-5-1995. He also took into possession the .China rifle produced by the father of the convict vide memo Ex. P/B and sent the rifle and empties to the Ballistic expert for examination and report. The report of the expert produced by him as Ex. P/J and finally he submitted the challan Ex. P/K in the court. In the cross-examination on material points the witness stated that at 8:45 PM they reached the place of occurrence, there were no houses near to the place of occurrence. He denied the suggestion that the empties were provided by the complainant to the police and he did not put any identification marks on the empties and also denied the suggestion that he had not gone to the place of occurrence. He did not admit the suggestion that nothing was recovered from the site of incident. The recovery of the empties from the site according to the case of prosecution is meant to corroborate the alleged factum with regard to the deceased having been fired upon. The un-impeached testimony of the Medical Officer (PW-5) confirms and establishes the fact that the deceased died due to the bullet injury sustained by him on his fore-head therefore, the additional corroboration of such a fact proved or otherwise will have no material bearing with regard to the use of a particular fire arm weapon. The recovery of the empties however, has been established by the prosecution. The empties according to PW-3 head constable police were recovered from the site and were sealed into parcel which he duly exhibited in court and his testimony on the point could not be impeached. PW-3 during crossexamination stated that the complainant took them to the place of resident and also this fact was again got confirmed in the cross-examination on the complainant who stated that he showed/pointed out the said site to the police, therefore, the contention of the learned counsel that contents of Ex. P/E (empties) with regard to stated pointation of the empties by the complainant is wanting through the mouth of the complainant, appears to be of no substance. The objection of the learned appellant's counsel that the empties of China rifle and that of Kalashanikov empties do not match inter se but the learned counsel did not refer to any calibre of the weapons being different or that the calibre of the empties recovered cannot be fired from such shown weapon nor any question on the point so raised before us was put to either of the witnesses. In absence of any proof to the contrary or reference available on the subject it cannot be legitimately inferred that rounds of a China rifle (empties whereof recovered from the site) is not fire-able from a kalashanikov. The recovery of the fire arm empties from the place of occurrence coupled with the Medical evidence in the light of the evidence the complainant establishes the fact that the empties are of the rounds fin upon deceased in absence of any evidence to the contrary, hence we find the plea so raised in this behalf to be devoid of any basis. 10. We, however, do agree with the learned counsel that the evidence of PW-3 and PW-5 with regard to inspection of dead body by the Investigating Officer at the place of incident to be highly doubtful and contradictory including the entries of such an inspection of the dead body having been carried out at the hospital incorporated in column No. 1 of the inquest report Ex. P/l. The statement of PW-5 that he inspected tha dead body at the place of incident and thereupon sent it to the hospital in view of the relevant entry in the inquest report and the statement of PW-3 becomes not true and reliable but all the same the court is to sift grain from cHpff to find out the truth and the falsehood of the part of such statement has to b« segrated from the truthful part of evidence in order to come to a just and factual aspect of the case; which application of the rule will not by itself destroy the truthful part of the evidence of such witness. The remaining contents of the inquest report particularly of the indicated injury in column No. 10 of the report gets an absolute corroboration from the Medical evidence. The defence has not challenged the death of the deceased having been caused due to the fire arm injury, therefore, the objection of the learned counsel in this regard is of no avail to the appellant The recovery of 'Chaadar', cap and the blood stained earth also help the prosecution as a circumstance of the happened event and the subsequently taking into possession of the blood stained clothes of the deceased in the hospital also to be a relevant fact duly proved. We do agree with the learned counsel that the site plan Ex. P/H In absence of the inspection note of the site is inconsequential. The site map in fact is not a substantial evidence but for better understanding of the site of incident that may be noticed it is to be sketched out by the officer making inspection of the site. The site map Ex. P/H has not been prepared by the Investigating Officer nor even contains his signature rather prepared by a Patwari (not examined) by the prosecution renders no help to the prosecution nor creates any benefit to the defence. 11. The plea of the learned counsel that the defence evidence has dislodged the prosecution case due to the reasonable doubt of probabilities having been created by it and that the defence evidence has not been placed in juxta-position to the prosecution case under the well established Rule or the criminal justice; which according to him has resulted into serious miscarriage of justice though the appellant as such deserved acquittal. We have in order to satisfy ourselves about the impactand the possible effect of the defence evidence independently re-appraised it in the light of the prosecution evidence. It has been suggested to the PW-4 (the complainant) in the cross-examination by the defence counsel that the accused was not armed with kalashanikov nor he was present at the 'Wardat'. These to contradictory suggestions to the solitary ocular witness, about the defence led by the convict with regard to the plea of alibi strongly indicates that the defence was quite shakey and inconsistent to its own plea and thus were not definite about the defence line and the suggestion to P\V-4 that the accused was not armed with kalashanikov amply supports the faci that the accused as well as the complainant was present at the site of incident The appellant in his statement on oath under section 304 (2) Cr.P.C. stated ;ha; he having come to know about the registration of the case surrendered himself to the police also seems to have been an after thought idea as the defer.:; counsel has not suggested to the PW-5 (who deposed about the arrest of convict Laving made by him on 21-5-1995) that the appellant had surrendered LLnself to the police on or about 9-5-1995. According to the statement cf the appellant on oath he went to Killa Saifullah on 6-5-1995 to see his aiiir.2 nu.^mil uncle and spent three days in his house and on the third day of Eid te w&-; back to Zhob and when came to know that the case has been registered Siiirst him he surrendered to the police. The convict further stated that he dii z :: own any cow nor had gone to the mouse of the deceased. The DV,"-l -±e maternal uncle of the appellant has supported the convict, in his dep-cssficn to the effect that the appellant spent night of 6-5-1995 with him in his house and as he was not feeling well therefore, the accused had gone to see him and remained with him on Eid. Thereafter his father called him to the house. PW-5 the Investigating Officer has deposed that the accused Wazir Khan was arrested by him on 21-5-1995 not that this part of the statement of the PW was not challenged by the defence, neither any suggestion with regard to the stated surrender of the applicant to police has been given as per defence version nor even in the light of the defence plea any specific date of such surrender has been suggested to PW-5, inasmuch as; to challenge the version of PW-5 with regard to the arrest of the appellant, the defence could have called for the record of the police to support his plea or nullify the stated fact about the date and arrest of the appellant. According to DW-1 the appellant was called back by his father, who also faced the trial but was on bail and not examined under section 342 Cr.P.C. for want of any incriminating evidence against him being available during trial of the case, was also not examined in support of the version of DW-1 about his having called back the appellant from Killa Saifullah situated at a distance of 100 miles (as disclosed by the appellant during cross-examination) from Zhob. According to the defence version the appellant on the 3rd day of Eid returned to Zhob, remaining there for three days and on 6-5-1995 he went .to Killa Saifullah, The Eid Holidays (Eid-ul-Azha) commenced with effect from 10-5-1995 to 13-5-1995, therefore, the defence evidence that the appellant spent Eid with his uncle or of his return on the 3rd day of Eid, is totally baseless and incorrect. The defence evidence having kept in juxta-position appears to us in the light of above discussion to be not probable rather is an after thought one having no legs to stand upon. There was no reason for the complainant to falsely nominate the appellant for the serious charge of murder and to let off the real culprit instead. The specific defence plea brought in evidence has not even been slightly indicated in examination of the appellant under section 342 Cr.P.C. nor even suggested so to PW-4 and 5 which has rightly been discarded by the learned trial court to be not confidence inspiring and after thought. The reported judgments cited by the learned counsel i.e. 1979 SCMR 214 and PLD 1976 SC 241 and 629 in view of the defence evidence and in support of his contention that the prosecution case suffers from inherent doubts, the reported judgments i.e. PLD 1963 SC 17 and PLD 1970, 10 do not attract in view of the prosecution having established its case beyond shadow of any reasonable doubt against the appellant. We have independently and in the light of the contentions raised before us by the learned counsel for the parties re-appraised the evidence in the case and have come to the conclusion that the contentions raised by the learned counsel for the appellant do not render the impugned judgment as not sustainable. For the foregoing reasons, Reference sent by the learned Sessions Judge/Special Judge, (S.T.A.) Court, Loralai is accepted. Death sentence awarded to the appellant Wazir Khan son of Muhammad Noor vide judgment dated 28-3-1997 is hereby confirmed. Consequently the appeal filed by the convict/appellant is dismissed. (MYFK) Death sentence confirmed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 836 Present: sabihuddin ahmed, J. HUBDAR CHANDIO-Applicant versus STATE-Respondent Crl. Bail Application No. 4 of 1996, decided on 28-3-1997. Bail- Ss. 497, 499 and 514 of Cr.P.C. read with Arms Ordinance (XX of 1965) S. 13-E and Suppression of Terrorist Activities (Special Courts) Act, 1975, S. 6-Application for bail-Rejection of-Appeal against-Abscondence from trial courtReference to High Court seeking permission to cancel bail bond and forfeiture of Surety Bond-What procedure was to be adopted when under trial prisoner released on bail not by trial court itself, but by High Court, jumped bail and whether his absence on a date of hearing was ought to be condoned or which court was competent to take action against sureties-Question of--When an accused person fails to appear before trial court with justifiable reason, trial Court is fully competent to take action against him and secure his presence by issuance of coercive process and it is not necessary to cancel his bail or move another court for such cancellation-Whenever accused jumps bail, action can be taken by Special Judge (or Sessions Judge) n terms of bond itself-When an accused person granted bail by High Court and having furnished a bond for his appearance before trial Court, does not appear before that court without justification, Trial Court has ample powers to proceed against him in terms of bond, cause his arrest and upon recording his satisfaction as to forfeiture of bond even proceed against surety-Held : Cancellation of bail under section 497(5) is not necessary-Further held : Reference to High Court was un-necessaiy with direction that matter be placed before trial court who would consider application for condonation of absence on merits and proceed to pass appropriate orders in accordance with law. [Pp. 837, 838, 842 & 843] A to E 1985 P.Crl. J. 1558 rel. Mr. Muhammad Ayaz Soomro, Advocate for Applicant. Mr. Abdul Fateh Mughal, Advocate for State. M/s Ali Nawaz Fhangro, Issardas and Muhammad Bachal Tunio, Advocates as amicus curiae. Date of hearing: 28-3-1997. order Applicant Huddar Ali was accused of offences under section 13-E, of the Arms Ordinance vide F.I.R. in crime Nd. 152/1992 P.S. Mehar, District Dadu. He was released on bail by an order of Special Court for Suppression of Terrorist Activities, Dadu dated 8.9.1993, he remained absent from court on a few dates of hearing in 1995 and was subsequently arrested and confined at Mehar Jail under orders of the learned S.D.M. Mehar purportedly under section 109 Cr.P.C. Thereafter he applied for bail on 12.11.1995 and his application for bail was dismissed by the learned Special Court vide order 12.12.1995. The applicant, thereafter applied for bail before this Court and by an order dated 26.3.1996 the Division Bench of this Court after finding that non-appearance before the Special Court was for reasons beyond his control released on bail, and a surety bond was executed to the satisfaction of the Additional Registrar of this Court. A letter had been received from the learned Special Court Dadu stating that the-accused who had been granted bail by this Court on 26.3.1996 remained absent from the trial on 31.12.1996 and seeking permission from this Court to cancel the bail bond and forfeiture of the surety bond of the accused. It was further requested that the surely bond may be sent to the Special Court in case such permission was granted. Upon receipt of this letter my learned brother Rashid Ahmed Razvi, J, issued notice to the surety as well as Additional A.G. Sindh for appearance on 29.1.1997. The parties appeared before the Court, but the matter was adjourned on two subsequent dates. It does not appear quite clear as to what procedure was to be adopted when under trial prisoner released on bail not by the trial Court itself, but by High Court (for the matter this Court) jumped bail and where the trial Court of the Court granting bail was required to consider and decide whether his absence on a date of hearings was ought to be condoned or which Court was competent to take action against sureties. Since such questions were likely to arise in number of cases. I decided vide my order dated 20.3.1997 to frame the following legal questions and hear the counsel or the Applicant Ayaz Soomro and the then Additional Advocate General Mr. Muhammad Bachal Tunio in detail. I also requested Messers AH Nawaz Ghanghro and Issardas to assist the Court as arnicas curiae. 1. When an undertrial prisoner enlarged on bail does not ' appear before the trial Court, can he be taken into custody only after cancelling his bail ? Whether the Special Court exercise all powers of the Court of Session under sections 497 and 498 Cr.P.C. ? Is so whether the power to cancel bail U/S. 497(5) Cr.P.C. is available to a Court of Session irrespective of the question which Court had granted bail to an accused person and the stipulation "in the case of a person released by itself appearing in the said provisions is applicable only to a Court other than the High Court or Court of Session ? In any case does the law enable the Special Court to cancel a bail granted by the High Court after obtaining "permission" of the High Court ? Whether the powers to cancel bail granted by the High urt can be exercised by a Single Judge or only by Division Bench ? 4. Subsequently Mr. Muhammad Buchal Tunio informed me that he has resigned from his office and the state could be represented by Mr. Abdul Fatah Mughal, I nevertheless requested Mr. Tunio to assist the Court amicus curiae. Mr. Ali Nawaz Changhro Advocate addressed the Court at length on the aforesaid question with respect to the first question, he was of the view that it was not necessary to cancel the bail granted to an accused. In case such person did not appear before the trial Court and he could be committed to custody upon forfeiture of the bail bond furnished by him. He referred to the provisions of sections 499 and 514 and pointed out that the appearance in Court on the date of hearing of under trial prisoner is a normal condition of the bond in terms of section 499 and upon his nonappearance and entails forfeiture of the bond. In such event even a penalty can be levied on the surety in the discretion of the Court under section 514 of the Code. He nevertheless maintained that a bond could only be forfeited by the Court before whom it was furnished. In response to specific question from the Court as to whether the trial Court could take no action against a person who had been granted bail by the High Court and furnished surety land officer of that Court, Mr. Changhro submitted that the trial court could issue non bailable warrants for his arrest and even commit into custody till such time as a question of forfeiture of the bond was decided by the High Court. He was nevertheless clearly of the opinion that the trial Court could not, in such cases, forfeit the bond itself but was required to make a reference to the High Court. He appeared to be in complete agreement with the proposition laid-down in the case of Manzoor Ahmed Bhatti v. The State (1985 Pakistan Criminal Law Journal 1558). With respect to the second and third question mentioned above, Mr. Ali Nawaz Ghanghro stated that by virtue of section 6 of the Suppression of Terrorists Activities (Special Courts) Act 1974, the Special Courts had all the powers available to Court of Session exercise the original jurisdiction under the Criminal Procedure Code subject of course to such limitations as may be imposed by the Special Law. He therefore contended that the powers to grant bail available to Sessions Court under sections 497 and 498 were exercisable by the Special Courts subject to the limitations contained in section 5-A of the 1974 Act. Nevertheless he was clearly of the view that a Court of Session could not cancel the bail, granted by the High Court U/S. 497(5) and referred to several precedents in support of his view. He contended that even if such power could be spelt out from the text of section 497(5) as a matter of judicial propriety, if not pure in law, it would be highly improper for Sessions Court to cancel a bail granted by the High Court. 5. In view of his reply to the third question Mr. All Nawaz Ghanghro submitted that a question of obtaining permission to cancel bail did not arise. Nevertheless in case material against the accused comes to the notice of the trial Court which might justify cancellation of bail a Court of Session could bring the same to the notice of the High Court for taking appropriate action. With respect to the last question he was of the view that when the power to grant bail was exercised only by Division Bench of the High Court, the power to cancel the same will also be exercisable only by Division Bench. Mr. Issar Das and Mr. Muhammad Buchal Tunio also subscribed to the opinion of Mr. Ghanghro in respect of above formulations and incidently the counsel for both parties also express their complete agreement, as such there was complete unanimity in the comments among all learned members of Bar addressing. 6. Despite the unanimous opinion of the counsel and despite my gratitude for the valuable assistance received from them. I do not feel pursuaded to agree with all the propositions of law enunciated by Mr. Ghanghro and his colleagues for reasons which I shall discuss hereinafter. From my research I have been able to lay my hands on three reported judgments, one from the Lahore High Court and two from this Court which may be directly relevant to the questions involved. 7. In the case of Manzoor Ahmed Bhatti v. The State (1985 P.Cr.L.J. 1558) the accused did not attend the trial after he had been granted bail by he on'ble High Court and thereupon the Sessions Court tried him cancelled his bail. The order of the Sessions Court was called in question before the Hon'ble High Court of Lahore and Muhammad Muneer Khan J. (as his lordship then was) proceeded to hold as under :-- "Without having cancelled the bail granted by the Supreme Court, he could only issue non-bailable warrant for the arrest and production the appellant before him and that he could also proceed against the surety and accused under section 514 Cr.P.C. but he had the authority to cancel the bail." 8. The second decision is the case of State v. Piase All (P.L.D. 1996 Karachi 355). In this matter the accused had been granted bail by the Hon'ble High Court but did not appear before the trial Court on 21.3.1984. His father submitted an application for condoning his absence on medical grounds. He was directed to produce the medical certificate on the next date of hearing. On 23.4.1994 the accused appeared himself and produced the certificate but the trial Court doubted its authenticity and the accused was remanded to custody while the doctor, issuing certificate, was directed to appear on 3.5.1994. On that date the trial Court rejected the application for condoning his absence on 21.3.1984, forfeited the surety bond, issued notices to the surety and made references to the High Court for cancellation of bail. Before the High Court it was argued that the order of the trial Court dated 18.4.1984 remanding the accused to custody amounted to cancellation of bail and could not be passed by the trial Court. The learned Counsel for the State conceded this position and therefore without examining the question whether this legal proposition was correct the order was set aside and his lordship was pleased to hold that the trial Court could not cancel the bail granted by the High Court unless it was enabled by the High Court itself to do so in the bail granting order. As regard the order rejecting the application for exemption from appearance it was found on merits that such rejection was not justified. 9. A third line of reasoning is reflected in the case of Muhammad Ashrafand others v. The State (1990 M.L.D. 99). In this case the accused were granted bail by the High Court and were directed to furnish bonds in the sum of Rs. 20,000/- each to the satisfaction of this Court. After some time the accused jumped bail and absconded for more than 4 months. The trial Court forfeited the bond, issued non-bailable warrants for their arrest and made reference to the High Court for cancellation of their bail. Qaisar Ahmed Hamidi J, examined the question whether such reference was necessaiy and came to the conclusion that the powers of the High Court and Sessions Court related to the cancellation of bail were concurrent and that in such reference to the High Court was not necessaiy. It was observed that: "therefore whether the accused jumped bail for remaining absent for about 4 months forfeited the concession extended to them, the issuance of non-bailable warrants against accused amounts to cancellation of bail and for that no reference to the High Court is necessary. It may be noticed that a careful reading of the above three judgment would show a divergence of opinion on more than one point. In the cases of Manzoor Ahmed Bhatti and Piass Ali it has been clearly held that a Court of Session has no power to cancel the bail granted by the High Court. This view however is not shared by Hamidi J, in case of Muhammad Ashraf. Similarly in Manzoor Ahmed Bhatti's case, it has been clearly held that the trial Court could not cancel the bail granted by the Supreme Court though it can issue non-bailable warrants for the arrest of the accused. In other words issuance of warrants of arrest did not entail cancellation of bail. A contrary view however seems to have been taken by Sajjad Ali Shah (as his lordship then was) in Piass All's case, where his lordship appears to have accepted the contention that issuance of non-bailable warrants itself amounts to cancellation of bail. Hamidi J, also appears to have concurrent to this view in Ashraf s case. It may also be peitinent to reproduce the letter from the Registrar of this Court dated 28.12.1985 addressed to the Special Judge Central Karachi, apparently founded upon opinion of the then Chief Justice (Abdul Hayee Qureshi C.J) which has been reproduced in Muhammad Ashraf s case: "I am directed to refer your letters Nos. 501/1985 and 580/1985 both dated 11.12.1985 on the above subject and to say that under section 514 Cr.P.C. in cases of forfeiture of bonds for appearance, satisfaction in regard to breach of bond has been to be recorded by the Court before whom the accused is bound to appear. Under these circumstances you are fully competent to record forfeiture of the bond on account of absence of accused. You can even issue a nonbailable warrant for arrest of the absconded accused or take any other action which the law permits you to take. In a similar case, Criminal Bail Application No. 471 of 1984- Majid Mushtaq v. The State, on a reference having been made by you, the Hon'ble Chief Justice was pleased to pass the following orders :-- "Bail was granted by Mr. Justice Ali Nawaz Bucthani for appearance before the Court of Special Judge (Central), Karachi. Under section 514 Cr.P.C. the satisfaction in regard to forfeiture of the bond has to be recorded by the Court before whom such person has to appear. No orders of the High Court are, therefore, necessary. The Special Judge could after recording such satisfaction take action in terms of the bond, and even issue non-bailable warrants. In view of what is stated above, no further orders are necessary and the application stands disposed. You are, therefore, requested to desist from making reference in such cases in future and deal with them according to law." 12. The first question to be determined is whether cancellation of bail is a pre-requisite for causing the arrest of or taking action against an accused person or his surety in the event of his failure to appear before the trial Court. The expression "Bail" has not been defined in the Code or else where but as held by the Honourable Federal Court in the case Crown v. Khushi Muhammad (P.L.D. 1953 Federal Court 170) bail means delivery of an accused person from the custody of police (or jail authority) to the custody of the surety. It may be necessary to examine the relevant two issues of sections 497(5), 499 and 514 (1) to appreciate the correct legal position :-- "497(5) O.P.C..---A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody. 499(1) Cr.P.C. .'--Before any person is released on bail or released on own bond, a bond for such of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties condition that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend untill otherwise directed by the police officer or Court, as the case may be. (2) :--If the case so require, the bond shall also bind the person released on bail to, appear when called for at the High Court. 13. Indeed any undertrial prisoner enlarged on bail is required to appear before the trial Court on a date of hearing. What needs to be determined is how this obligation can be enforced. A comparison of the provision of S. 497(5) and 499 indicates that it is the latter section which deals with the specific requirement of law. It requires that before releasing a person on bail, a bond is to be executed by such person as well as his surety undertaking that such person shall appear before the police officer or the Court whenever required. Such bonds have been held to be in the nature of contracts and breach of the conditions stated therein entail their forfeiture. Moreover such bonds are required to be executed not only with respect to bailable offences where bail is accepted not by a Court but by the police and a person executing it before a police officer is as much bound by its conditions as one who has furnished it before a Court. It therefore appears that the provisions of S. 499 and the terms of a bond executed thereunder provide a complete mechanism for securing a person's appearance before a Court or before a police officer including consequences for non-appearance. S. 514 also enables penal action against a surety in such circumstances. 14. S. 497(5) on the other hand confers a specific statutory power upon certain Courts to cancel the concession of bail accorded to a person accused of a non-bailable offence. Its exercise is not dependent on the appearance or non-appearance of an accused person before a Court. This power can be exercised by a competent Court, in accordance with settled egal principles, even if the accused person regularly attends the trial Court or instance when incriminating material against the accused is found after jrant of bail indicating possibility of his involvement in a heinous offence or vhen a higher Court finds that the lower Court exercised its discretion in [ranting bail on wrong principles. 15. I, therefore, agree with Mr. Ghanghro that when an accused erson fails to appear before the trial Court with justifiable reason, the trial ourt is fully competent to take action against him and secure his presence y issuance of coercive process i.e. non-bailable warrants and it is not ecessary to cancel his bail or move another Court for such cancellation. I m fortified in this respect not only by the judgment of Muhammad Munir 2ian, J., in Manzoor Bhatti's case but also by the opinion of the then Chief ustice and the precedent mentioned in the letter quoted in para 11 above. It lay be observed that the said letter only states that whenever the accused imps bail, action can be taken by the Special Judge (or the Sessions Judge) in terms of the bond itself and makes no reference whatsoever to the power to cancel bail. On the other hand if one were to take the contrary view to the effect that action against an accused for not appearing on the date of hearing could only be taken under S. 497 (5) it might lead to anomalous consequences. A Court indeed has the power to seek attendance of a person accused of a bailable offence which could only be exercised under Ss. 499 and 514 as the provisions of S. 497 15) are applicable only to those granted bail under that section and not under S. 496. Perhaps this aspect of the matter was not brought to the attention of Hamidi, J. in Muhammad Ashraf s case. In Piass All's case the observations were premised on a concession and his lordship never had the occasion to examine the question in detail. Nevertheless I do not agree with Mr. Ghanghro in so far as he has said that provisions in terms of the bail bond can only be initiated before the Court where the bond was furnished. In the first place, one can take judicial notice of the fact that once a Court comes to the conclusion that the accused is entitled to bail, directions relating to furnishing of bond are made according to the convenience of the accused or the sureties and should not have any effect on the jurisdiction of Courts. oreover the provisions of section 514 (1) Cr.P.C. are explicit. It is clearly stipulated that when a bond is for appearance of a persons before a particular Court, it is only that Court which can proceed against the sureties and not the Court granting bail or the Court before whom the bond is furnished. I am, therefore, of the view that when an accused person granted bail by the High Court and having furnished a bond for his appearance before the trial Court, does not appear before the trial Court without justification, the trial Court has ample powers to proceed against him in terms of the bond, cause his arrest and upon recording his-satisfaction as to forfeiture of the bond even proceed against the surety. I consequently, of the view that the letter of the Registrar referred in para 11 reflects the correct legal position and the first question stands answered accordingly. In view of the findings that the cancellation pf bail under section 97 (5) is not necessary in the circumstances the remaining questions have become largely academic and need not be answered. I must nevertheless record my gratitude to the learned counsel and particularly to Mr. Ali Nawaz Ghanghro for the invaluable assistance rendered. In view of the foregoing I would hold that reference to this court was unnecessary and direct that the matter be placed before the learned Special Judge who would consider the application for condonation of absence on merits and proceed to pass appropriate orders in accordance with the. (MYFK) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 844 Present: raja abdul Aziz bhatti, J. Mst. ABIDA JABEEN-Petitioner versus IMTIAZ AHMAD and others-Respondents Criminal Miscellaneous No. 664/CB of 1995, decided on 25-10-1995. (i) Bail-Cancellation of-- -S. 497(5) Cr.P.C.-Offence u/Ss. 354/354-A/337-A(i)/34 P.P.C.- Cancellation of bail-Shirt of complainant lady had been torn from a very small place of its front side and S. 354-A, P.P.C., prima facie, was not attracted-It cannot be denied that there are injuries on the person of lady but it is a case of simple and pure beating, and at the most, fall under section 354 PPC-Order granting bail to accused was not capricious and was supported by cogent reasons-Application for cancellation of bail was dismissed accordingly. [P. 847] B & C ii) Pakistan Penal Code, 1860 (XLV of I860)-- S. 354-A-Where applied-Section 354-A, P.P.C. applies only in cases where after stripping of clothes lady is made naked and exposed to public view and is not applicable where very small portion of her shirt is torn. [P. 847] A Ziafat Hussain Cheema, Advocate for Petitioner. M. Fayyaz Ahmad Khawaja, Advocate for Respondents Nos. 1 to 4. Farooq Ahmad, Advocate for the State. order Mst. Abida Jabeen complainant lodged report in Police Station Civil Lines, Rawalpindi, and got F.I.R. No. 353, dated 22-6-1995 under section \ 354/337-A(i)/34, P.P.C. registered against the accused/respondents. In this r t case, there are four accused, namely, Imtiaz Ahmad Khan, Khalid Mahmood Khan, real brothers, Raja Mohsin Aslam and Muhammad Aslam. According to the prosecution story, the complainant Abida Jabeen was an accused in a ^ private complaint which was filed against her by Mst. Kausar Tasneem ,' under section 459, P.P.C. It was pending in the Court of Sagheer Hussain Shah, Magistrate Section 30, Rawalpindi. On the day of occurrence i.e. ' 20-6-1995, it was fixed for evidence. On that date, the present complainant l , and her co-accused in that complaint, namely, Manzoor Ahmad Qureshi and ". Javed Ahmad Qureshi were present in the Court. In addition to them, 1 Kausar Tasneem alongwith her prosecution witnesses Imtiaz Ahmad Khan, J' Raja Aslam, Dr. Kaiser, Khalid Mahmood and Mohsin Aslam were also present in the Court. After appearance in the Court, the case was adjourned. The present complainant alongwith Manzoor Ahmad and Javed Ahmad went to the seat of their counsel while Mohsin Aslam, Imtiaz Ahmad, Khalid Mahmood and Raja Aslam came after them and stopped at some distance from the seat of the learned counsel and started-waiting there. The complainant wanted to go from the seat of her counsel. Imtiaz Ahmad, Raja Aslam etc. sat near the office seat of Altaf Khan, Advocate. They encircled Manzoor Ahmad Qureshi and Javed Ahmad Qureshi, and started beating them including the complainant. She has stated in the complaint that she was injured and during the occurrence her clothings were torn. She has stated that she was humiliated intentionally in the presence of puhlic at large by the accused and her shirt from the front side of the neck was also torn while Manzoor Ahmad Qureshi was beaten by Mohsin Aslam and Khalid while Javed Ahmad was given beating by Raja Aslam with an iron fist. The complainant and Imtiaz Ahmad were also beaten. When the beating was over, the complainant and her co-injured went to the Court of Saghir Hussain Shah, Magistrate Section 30, to inform the Court about the occurrence and on Court's direction, then went to Police Station Civil Lines to lodge the report. When they reached there, the police directed them to go to the Civil Hospital for medical examination. She went there, obtained the medico-legal report and came back to the police station. In spite of all tftat F.I.R. was not recorded. She requested in writing and thei-eafter the aforesaid case was registered against the accused. After registration of the case, investigation was carried out and section 354-A, P.P.C. was added. The accused were arrested in the case. However, they applied for bail after arrest in the Court of Sessions Judge, Rawalpindi. The case was assigned to Ch. Asad Raza, learned Additional Sessions Judge, Rawalpindi, who vide his order, dated 27-7-1995 granted bail to the respondents/accused. The petitioner has challenged the aforesaid order granting bail to the respondents/accused on the following grounds :-- that the facts of the case do make out a case nder section 354-A, P.P.C. According to the learned counsel, this offence is punishable with death or imprisonment for life. Hence, the offence falls under the prohibitory clause of section 497, Cr.P.C.; that there is sufficient evidence on record to connect the accused with the alleged crime, hence, it cannot be said that no reasonable grounds exist to connect the ccused ith the alleged crime. Learned counsel stated that firstly the bail after arrest was rejected but after lapse of 15 days of the said order, learned Additional Sessions Judge granted bail to the accused/respondents which is against the interest of justice; and (c) that heinous offence has been committed and the bail granted to the respondents/accused by the learned Additional Sessions Judge be withdrawn and they be ordered to be arrested. 4. On the other hand, learned counsel for the respondents/accused has opposed the petition on the following grounds :-- that originally the case was registered under section 354 read with section 337-A (i), P.P.C. which are bailable offences. No new material was brought on the record after the registration of case, hence, adding of section 354-A, P.P.C. is improper; and that the contents of the F.I.R. do not show that offence nder section 354-A, P.P.C. can be made out against the respondents/accused. Learned counsel for the respondents places reliance on a case reported in 1991 PCr. LJ 194. Learned counsel appearing for the petitioner relies on PLD 1988 SC 726 and 1995 MLD 1254 (Lahore). 5. I have heard the learned counsel for the parties, perused the record and also read the judgments relied upon by the learned counsel for parties. According to 1995 MLD 1254, the lady was forcibly taken to Jawar field for (he purpose of committing Zina with her. In that course, she fell on the ground and the accused tore her shirt and Shalwar and made her naked. The occurrence was witnessed by some persons on raising hue and cry by her. There is no allegation in this case that the lady was made naked. Hence, this judgment is not applicable. In the case reported as PLD 1988 SC 726, the woman was caught from her hair. She was dragged and many blows were given on different parts of her naked body. The facts of this case are also not identical to the case in hand. 6. On the other hand, learned counsel for the respondents relied upon 1991 PCr. LJ 194. According to this judgment, condition regarding stripping off a women of her clothes envisaged by section 354-A, P.P.C. is fulfilled when the clothes are completely removed making her naked. To interpret the language used in section 354-A, P.P.C. it is appropriate to quote it below for ready reference, which reads as follows :-- "Assault or use of criminal force to woman and stripping her off her clothes. Whoever assaults or uses criminal force to ny woman and stripes her off her clothes and, in that ' condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine." In this section, the words "stripes her off her clothes and in that condition exposes her to the public view" are very important words. This section applies only in those cases whereafter stripping off the clothes, the lady is made naked and exposed to the public view. It is not applicable in the matter where very small portion of a shirt is torn. In the present case, I especially directed to produce the shirt of the lady before the Court for examination. In the presence of the learned counsel for the parties it was seen which is torn from a very small place of its front side. It cannot be denied that there are injuries on the person of the lady but it was a case of simple and pure beating and, at the most, fall under section 354, P.P.C. Hence, at this stage, the tentative assessment is that the offence falls under section 354/337-A(i)/34, P.P.C. and not under section 354-A, P.P.C. 7. Learned Additional Sessions Judge has granted bail with cogent reasons. The impugned order is not capricious or of the nature regarding which it can be said that the lower Court failed to apply its mind in the matter. In view of the above, the order granting bail to the respondents/accused is maintained and the present petition for cancellation of their bail is dismissed. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 847 Present: sharif hussain bokhari, J. MUHAMMAD BOOTA and another-Petitioners versus STATION HOUSE OFFICER and 2 others-Respondents Writ Petition No. 16634 of 1995, decided on 1-7-1996. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- Ss. 10, 13 14 & 16 read with Ss. 324 & 294 of PPC-Constitutional petition-Registration of F.I.R.-Submission that case registered only under section 294 PPC although offences as reported in application were committed u/Ss. 10, 11, 13 and 14 of Offences of Zina (Enforcement of Hudood) Ordinance, 1975, reinvestigation is also requestedAlthough reinvestigation can be ordered in proper cases yet in present case when . challan has already been submitted and cognizance taken by court, it would not be appropriate to order reinvestigation. P. 848] A & B Ch. Muhammad Ilyas Komal, Advocate for Petitioners. Rana Muhammad Arif, for Respondent Nos. 3 and 4. order The relevant facts as stated in the petition are that Mst. Rani, respondent No. 4, who is married with petitioner No. 1, left the house of the latter as she had allegedly developed illicit relations with Israil respondent No. 3. Subsequently respondents Nos. 3 and 4 enticed away Shamim Kausar, petitioner No. 2 the daughter of Muhammad Boota. Respondents Nos. 3 and 4 went to Pattoki where the petitioner No. 2 was made to indulge in prostitution against her wishes. This was narrated by petitioner No. 2 to petitioner No. 1 when the former ran away from the house of respondents Nos. 3 and 4. On 8-11-1995 respondents Nos. 3 and 4 were statedly in the same house when the petitioners alongwith some respectables went to the spot. On seeing, respondent No. 3 fired pistol shots at petitioner No. 1 but by chance he was saved. This scene was witnessed by the neighbourers and was also reported in the press next day- Accordingly petitioner No. 1 submitted an application to the S.H.O., Police Station Pattoki for registration of the case against respondents Nos. 3 and 4 under sections 10, 13 14 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 324 of the P.P.C. but respondents Nos. 1 and 2 registered a case under section 294, P.P.C. against respondents Nos. 3 and 4 as they wanted to favour respondent No. 3. Pre-admission notice was issued to respondents Nos. 3 and 4. On 30-1-1996 Zulfiqar Ahmad, Inspector/S.H.O., Police Station Pattoki appeared and stated that F.I.R. No. 357 of 1995 was registered against respondents Nos. 3 and 4 under section 294, P.P.C. and that after submitting the challan the learned Court of A.C., Pattoki Jias taken cognizance thereof. Learned counsel for the petitioners submits that the investigation was conducted partially favouring respondent No. 3 and that is why the case was registered only under section 294, P.P.C. although the offences as reported in the application were committed under sections 10, 11,13 and 14 A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which are triable by the learned Sessions Court. He further submits that notwithstanding the submission of challan this Court can still direct reinvestigation of the case. 4. Although reinvestigation can be ordered in proper cases yet in the present case when the challan has already been submitted and the cognizance taken by the Court, it would not be appropriate to order reinvestigation. The learned trial Court if, on the basis of the evidence available on record, finds that some other offences have also been committed by the accused, they can be charged for the same by the learned trial Court. If the offence on the basis of such evidence is not triable by the Assistant Commissioner, Pattoki who is presently seized with the matter, he can send the case to the Court of competent jurisdiction for trial. This petition is, accordingly, dismissed. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 849 Present: AMANULLAH ABBASI, J. PIR BUX alias LALA-Applicant versus THE STATE-Respondent Criminal Bail Application No. 1156 of 1995, decided on 14-11-1995. Bail-- -S. 497 Cr.P.C.-Offence u/S. 459/34 of PPC-Bail--Grant of- Complainant's statement about injuries received by prosecution witness at time of occurrence did not appear to be correct as no medical certificate was available on record and complainant even did not say in F.I.R. that he had taken injured witness, to hospital or to any Medical Officer--If no injury have been caused to anybody, provisions of S. 459, P.P.C. will not e attracted-Complainant also had not suffered any loss of property- Availability of accused's identity card at place of incident requires further inquiry-Bail granted. ^ [Pp. 850 & 851] A 1970 PCr. LJ 633; PLJ 1973 C.Cr. (Lah) 467 and 1988 PCr. LJ 1273 ref. Sardar Muhammad Ishaque, Advocate for Applicant. MM. Vassu, Advocate for the State. order The learned Advocate for the applicant submits that the F.I.R. in this case was registered on 31-7-1995 at 7-30 a.m. at Police Station Sujawal for offence under sections 459 and 34, P.P.C. The complainant Moulay Dino has stated in the F.I.R. that at about 1-00 O'clock he heard barking of dogs and he woke up. He flashed the torch and saw two persons in front of cattlepen untying the bullocks. He raised cries which attracted his brother Sahib Dino, Ghulam Qadir and others. On light of torch they saw that the>faces of culprits were not muffled and they identified them as Pir Bux alias Lala who was armed with hatchet and the other culprit had clubs in his hand. Pir Bux inflicted sharp side hatchet blow to Sahib Dino on his neck and gave blunt side blow on back. The other culprits ran away towards South. They found one black rubber Chappal, one hatchet and one purse with coloured cover, one identity card was found in the purse and it belonged to Pir Bux son of Allah Bachayo. It is mentioned in the F.I.R. that the two bullocks were recovered from the thief. The learned Advocate for the applicant has requested for bail on the ground that the incident had not taken place inside the house as is clear from the order of the Sessions Judge, dated 14-9-1995 and he refers to page 2 of the orders which is as under :-- "Perusal of the police papers viz. Masftlrnama of place of Wardat created doubt whether the incident had taken place, which is surrounded with the hedge or wall or in open place. Therefore, Investigating Officer was summoned who appeared in the Court and clarified that the place of Wardat was situated in front of the house of the complainant. Surrounded with hedge where P.W. Sahib Dino had allegedly received hatchet blow." The learned Advocate for the applicant submits that section 445, P.P.C. describes six situations which make out case of trespass and lurking house- tresspass. It is alleged that applicant was armed with hatchet and he caused injuries to Sahib Dino but the other accused ran away. Applicant was arrested on 5-8-1995. He produces certified copy of the challan to show that the Medical Officer is not shown as a witness which fact suggests that no person had received any injury. He submits that nothing incriminating has been recovered from the applicant as hatchet was found lying on the ground. He submits that identification is not reliable piece of evidence as accused is said to have been identified in torch light. He relies on decisions reported in 1970 PCr. LJ 633 and PLJ 1973 Lah. Cr. 467. Apart from this he submits that in identical case, bail was granted and he relied on decision reported in 1988 PCr. LJ 1273. The learned State counsel submits that the applicant had committed offence punishable under section 459, P.P.C. which is punishable with imprisonment for life or 10 years. Applicant is alleged to have caused injuries to brother of complainant named P.W. Sahib Dino with his hatchet. His identity card was also found on the spot and therefore, his complicity in the alleged offence is proved. The learned State Counsel was asked to produce the medical certificate of injured Sahib Dino if it is available in police papers because he certified copy of challan shows that Medical Officer is not a witness. On this learned State Counsel conceded that medical certificate is not available in police«papers. Even the order of learned Sessions Judge, Thatta is silent on the point as to what type of injury was suffered by P.W. Sahib Dino. As there is no medical certificate and the complainant himself does not say in the F.I.R. that he had taken Sahib Dino to hospital or to Medical Officer, it can be said that the statement of complainant that P.W. Sahib Dino suffered injuries is not a correct statement on point of injuries to P.W. Sahib Dino. As no injury has been caused to anyone, the provision of section 459 will not be attracted. The complainant has mentioned in the F.I.R. that the two oxes were already there and that means only an attempt was made to take away the bullocks. In view of admitted facts the picture that emerges is that the complainant party has suffered no loss at all. No injury was suffered by any person from side of complainant and no loss of property has occurred. The availability of identity card of applicant at the time of incident requires further enquiry. I, therefore, grant bail to applicant, subject to furnishing of surety in the sum of Rs. 70,000 and P.R. bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 851 Present: raja abdul Aziz bhatti, J. MUHAMMAD ABID-Petitioner versus NASIR KHAN and others-Respondents Criminal Miscellaneous No. 814/CB of 1995, decided on 6-12-1995. Bail-Cancellation of- -S. 497(5) Cr.P.C.-Offence u/S. 324/34 PPC-Bail-Cancellation of- Principles applicable for grant of bail were different from principles applicable for cancellation of bail-Bail could be withdrawn only when order of bail was perverse and not supported by good reason-Accused was empty-handed used kicks, but medico-legal report did not support sameNo grievous injury was attributed to accused and motive was also not attributed to him-Co-accused attributed firing, was still under arrest-Nothing incriminating had been recovered from accused- Application for cancellation of bail, in circumstances, had no merits and was liable to be dismissed. [P. 853] A Muhammad Amin Jan, Advocate for Petitioner. Muhammad Ibrahim Satti, Advocate for Respondent No. 1. Naila Naseem Sheikh, Advocate for the State. order Petitioner seeks cancellation of bail granted to respondent No. 1 by Magistrate, Section 30, Rawalpindi and confirmed by the learned Additional Sessions Judge, Rawalpindi vide his order, dated 18-9-1995. 2. Brief facts of the case are that on the report of the petitioner case F.I.R. No. 531, dated 11-10-1994 under section 324/34, P.P.C.,was registered at Police Station Civil Lines, Rawalpindi. It is alleged that on the day of occurrence at 6-30 p.m. when the petitioner was sitting on the roof of his house for flying kite, respondent No. 1 came there and called him out. The petitioner accompanied him towards Nala Lai where he saw Muhammad Nazir alias Jeeru co-accused standing there. At that moment, respondent No. 1 asked his co-accused that he (the petitioner) be provided the taste of previous quarrel. Muhammad Nazir brought out pistol from his Dub and fired at the petitioner hitting his left arm. He fired for the second time which hit the petitioner on his left flank. On receiving injuries, the petitioner fell down and respondent No. 1 caused injuries to him with his kicks. According to the petitioner, the occurrence was witnessed by some persons. Motive for the occurrence, according to the petitioner, was that some quarrel took place between him and the co-accused Muhammad Nazir alias Jeeru. 3. Respondent No. 1 was granted bail by the Magistrate Section 30 vide his order, dated 18-12-1994. It was withdrawn by the learned Additional Sessions Judge vide his order, 6-2-1995 and he was taken into custody. The respondent submitted another bail petition after arrest but that, too, was rejected by the learned Additional Sessions Judge vide his order, dated 3-4-1995. Respondent No. 1 moved another bail petition before the Magistrate Section 30 on the ground of minority. It was accordingly granted vide order, dated 8-5-1995 passed by the Magistrate Section 30. This order was again challenged and the cancellation was sought but the same was dismissed by the learned Additional Sessions Judge vide his order, dated 18-9-1995.
4. In support of the petition for cancellation of bail, learned counsel for the petitioner submits that the learned Magistrate was not competent to allow bail to the respondent especially under the circumstances when the same ground was already taken in his first bail petition and the same was duly discussed and considered by both the lower Courts. The respondent/accused having no fresh ground was not entitled to bail. Bail has been allowed to respondent No. 1 on production of medical certificate issued by the jail doctor. According to the learned counsel, the medical certificate is not based on ossification test regarding age. Learned counsel further submits that because of the injuries, the petitioner was operated upon by the doctor about a month ago. Learned counsel is of the view that since the respondent is connected with the crime, hence the bail granted to the respondent and confi/med by the Additional Sessions Judge may be withdrawn. 5. On the other hand, this application has been opposed vehemently by the learned counsel for respondent No. 1. He submits that no grievous injury has been attributed to the respondent/accused and only kicks have been attributed to him; that motive has not been attributed to the accused/respondent; that motive has been attributed to Muhammad Nazir alias Jeeru co-accused who is still under arrest; and that medical certificate has now been tendered showing the age.of the respondent/accused. Learned counsel further submits that there are four injuries on the person of the alleged injured which are of lacerated nature which means that no injury can be attributed to the present respondent. 6. I have heard the learned counsel for the petitioner, as well as the learned counsel appearing for respondent No. 1 and the learned State Counsel. I have also gone through the record especially the order whereby the Magistrate Section 30, granted bail to the respondent and also the order confirming bail passed by the learned Additional Sessions Judge. Admittedly, respondent No. 1 was empty-handed. He was not armed with any weapon of offence. It is alleged in the F.I.R. that he used kicks but the medico-legal report does not support it. Injury No. 1, which is a lacerated wound simple in nature, was caused with blunt weapon. No grievous injury is attributed to the respondent/accused. Motive is also not attributed to him. The co-accused who is attributed firing is still under arrest. Nothing incriminating has been recovered from the respondent. In view of the above, I see no illegality in the order passed by the lower Courts especially under the circumstances when the challan has already been completed and sent to Court for further proceedings. The principle applicable for grant of bail is different to the principle applicable for cancellation of bail. Bail can be withdrawn only when the order is perverse and not supported by good reasons. Here, in the present case, the order of the learned Magistrate was confirmed by the learned Additional Sessions Judge. So, there is concurrent finding of fact in favour of the accused. Hence the present application has no merit especially for withdrawing the bail allowed to the accused/respondent. It is accordingly dismissed. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 853 Present: zahid hussain bokhari, J. YARA-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No. 1629/B of 1995, decided on 8-11-1995. Bail- S. 497 Cr.P.C.-Offence u/S. 337-A (ii)/34-Bail-Grant of-Offence did not fall within prohibitory clause of S. 497 Cr.P.C. and in such like cases bai not jail is a rule-No extraordinary circumstance was available to justify departure from the said rule-Accused was in judicial lock-up and no more required for further investigation-Bail granted. [P. 854] A 1993 SCMR 1994 ref. Syed Murtaza Ali Zaidi, Advocate for Petitioner. order Yara petitioner has moved this after-arrest bail petition in a case F.I.R. No. 194/95, dated 29-7-1995 under section 337-A (ii)/34, P.P.C. registered at Police Station Chak Baidi, District Pakpattan on the complaint of Khan Muhammad. 2. Briefly the prosecution case is that on 25-7-1995 at 4 p.m. Yara petition armed with a hatchet caused injury from the wrong side of the hatchet on the head of Muhammad Bashir brother-in-law of the complainant. His co-accused Sardara caused injury with Sota on person of Muhammad Bashir. The injured was medically examined and the challan was submitted under section 337-A(ii)/34, P.P.C. 3. The learned counsel for the petitioner contends that the petitioner is an old man of 68 years and was arrested on 28-8-1995 and was granted bail after arrest by Magistrate 1st Class on 13-9-1995 but the bail was cancelled by the learned Additional Sessions Judge on 12-10-1995 and since then the petitioner is in the judicial lock-up. He further submits that the offence under section 337-A (ii) is not punishable with 10 years or more. 4. Learned counsel for State submits that the petitioner is named in the F.I.R. and he has caused injury from wrong side of the hatchet on the head of Muhammad Bashir by which the bone was exposed. 5. I have heard learned counsel for the parties and have gone through the record. 6. It is an admitted fact that offence under section 337-A (ii) does not fall within the prohibitory clause of section 497, Cr.P.C. and in such-like cases bail and not the jail is a rule. I do not see any extraordinary circumstance to justify the departure from the said rule. Learned counsel has relied upon 1993 SCMR 1994 in which in the similar circumstances the bail was granted for an offence under section 337-A(ii)/34, P.P.C. The petitioner is in the judicial lock-up and no more required for the purpose of A further investigation. This application is accepted and resultantly the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs. 30,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Pakpattan Sharif. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 855 Present: rana muhammad arshad khan, J. AZEEM and 5 others-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No. 1895/B of 1994, decided on 12-12-1994. Bail- -S. 497(2) Cr.P.C.»Offence u/Ss. 365/452/324/148/149--Bail-Grant of~ Accused were in judicial lock-up for last four months and were no more required for investigation-Two accused were minors-Cross-cases had been registered by both parties on same day at same police station and prima facie is a case of further inquiry-No justifiable purpose could be served by keeping accused in jail-Bail granted. [Pp. 856 & 857] A, B & C Sahibzada Farooq All Khan, Advocate for Petitioners. Ghulam Ghaus, Advocate for the State. order Through this petition filed under section 497/498, Cr.P.C., the petitioners seek post-arrest bail in a case F.I.R. No. 197, dated 8-7-1994 under section 365/452/324/148/149, P.P.C. at the instance of one Allah Dad son of Abdul Karim, registered with Police Station Saddar, Lodhran, for an occurrence which took place on the same day at about 12-00 noon in the area of Mauza Kotha Otera, District Lodhran. 2. The brief facts of the prosecution case are that Mian Muhammad Shabbir Chishti, Azim, Khuda Bakhsh armed with guns, Sajid armed with pistol Zahoor son of Allah Yar, and Zahoor son of Allah Jawaya armed with rifles and Muhammad Hanif armed with Sota at about 12-00 noon on 8-7- 1994 entered into the house of the complainant and raised Lalkara to the effect that they had come to teach a lesson for the abduction of Muhammad Ramzan and resorted firing in the house of the complainant and his father was forcibly abducted by the abovementioned accused persons. They had inflicted injuries on the person of the father of the complainant and others with their respective weapons. Hue and ciy of the complainant party attracted the inhabitants of the locality and on seeing them the assailants ran away. 3. The petition for post-arrest bail of the petitioners was moved in the Court of Magistrate Section 30, Lodhran and the same was dismissed "j vide order, dated 29-9-1994. The post-arrest bail petition was also moved in I the Court of Sessions Judge, Lodhran which was also rejected on 1-11-1994. I Hence this petition. ! 4. The learned counsel for the petitioners vehemently contends that F.I.R. No. 196/94, dated 8-7-1994 of an occurrence which took place on the same day at about 1 p.m. at the instance of Faiz Bakhsh was registered under section 365/148/149, P.P.C. regarding the abduction of one Muhammad Ramzan, who was abducted by Khadim Hussain, Muhammad Sharif, Muhammad Akram, Allah Dad and Allah Yar. Zahoor one of the petitioners herein was also injured in that encounter. The accused persons in case F.I.R. No. 196/94 were enlarged on bail vide order, dated 24-7-1994 passed by the Magistrate Section 30, Lodhran. A petition for cancellation of bail of the accused persons was moved in the Sessions Court which was dismissed on 27-11-1994. Further contends that the petitioners have been falsely involved. The two cases of the similar nature one after the other were got registered on the same day. The petitioners were arrested on 11-7-1994 except Zahoor son of Allah Yar, who was arrested on 14-7-1994 and since then they are in jail. Section 365, P.P.C. cannot be made applicable in the circumstances of this case by any stretch of imagination and section 324, P.P.C. is also not applicable. The petitioners are no more required for the purpose of investigation. The case of the petitioners while keeping in juxtaposition with the F.I.R. No. 196/94 entitles them for the concession of bail at this stage. 5. Conversely, the bail petition is vehemently opposed by the leaimed counsel appearing on behalf of the State on the ground that the petitionex-s have committed a very heinous offence as an old man was abducted from his house, who was beaten and remained unconscious for about two months in the hospital so the petitioners are not entitled to any concession of bail, at this stage. 6. I have heard the learned counsel for the parties at full length and have also gone through the record veiy minutely with their able assistance. 7. Admittedly the two F.I.Rs. have been registered by the police in the same police station one for the abduction of Muhammad Ramzan and the other for the abduction of Abdul Karim. 8. Keeping in view the dictums laid down by the superior Courts of this countiy, it is a settled principle of law that neither the law is to be stretched in favour of the prosecution nor the bail can be denied as punishment. In addition thereto the prosecution has already confirmed that he petitioners are no more required by the police for the purpose of ' investigation and they are being kept in the judicial lock-up for the last about four months. Sajid, petitioner is thirteen and a half years old and according to the school leaving certificate his date of birth is 12-4-1981 whereas Muhammad Hanif, petitioner, is of fifteen and a half years and his date of birth, according to the school leaving certificate, is 5-4-1979. The case of these two petitioners falls under subsection (2) of section 497, Cr.P.C. Keeping in view the circumstances of both the cases registered at the same police station between the same parties prima facie this is a case of further inquiiy. No justiciable purpose shall be served while keeping them in the jail. 9. Without commenting upon the merits of the case of that it may . not prejudice the case of either party, in view of what has been discussedabove, I am inclined to release the petitioners on bail provided they furnish bail bonds in the sum of Rs. 50,000 each with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Lodhran. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 855 Present: rana muhammad arshad khan, J. AZEEM and 5 others-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No. 1895/B of 1994, decided on 12-12-1994. Bail- -S. 497(2) Cr.P.C.»Offence u/Ss. 365/452/324/148/149--Bail-Grant of~ Accused were in judicial lock-up for last four months and were no more required for investigation-Two accused were minors-Cross-cases had been registered by both parties on same day at same police station and prima facie is a case of further inquiry-No justifiable purpose could be served by keeping accused in jail-Bail granted. [Pp. 856 & 857] A, B & C Sahibzada Farooq All Khan, Advocate for Petitioners. Ghulam Ghaus, Advocate for the State. order Through this petition filed under section 497/498, Cr.P.C., the petitioners seek post-arrest bail in a case F.I.R. No. 197, dated 8-7-1994 under section 365/452/324/148/149, P.P.C. at the instance of one Allah Dad son of Abdul Karim, registered with Police Station Saddar, Lodhran, for an occurrence which took place on the same day at about 12-00 noon in the area of Mauza Kotha Otera, District Lodhran. 2. The brief facts of the prosecution case are that Mian Muhammad Shabbir Chishti, Azim, Khuda Bakhsh armed with guns, Sajid armed with pistol Zahoor son of Allah Yar, and Zahoor son of Allah Jawaya armed with rifles and Muhammad Hanif armed with Sota at about 12-00 noon on 8-7- 1994 entered into the house of the complainant and raised Lalkara to the effect that they had come to teach a lesson for the abduction of Muhammad Ramzan and resorted firing in the house of the complainant and his father was forcibly abducted by the abovementioned accused persons. They had inflicted injuries on the person of the father of the complainant and others with their respective weapons. Hue and ciy of the complainant party attracted the inhabitants of the locality and on seeing them the assailants ran away. 3. The petition for post-arrest bail of the petitioners was moved in the Court of Magistrate Section 30, Lodhran and the same was dismissed "j vide order, dated 29-9-1994. The post-arrest bail petition was also moved in I the Court of Sessions Judge, Lodhran which was also rejected on 1-11-1994. I Hence this petition. ! 4. The learned counsel for the petitioners vehemently contends that F.I.R. No. 196/94, dated 8-7-1994 of an occurrence which took place on the same day at about 1 p.m. at the instance of Faiz Bakhsh was registered under section 365/148/149, P.P.C. regarding the abduction of one Muhammad Ramzan, who was abducted by Khadim Hussain, Muhammad Sharif, Muhammad Akram, Allah Dad and Allah Yar. Zahoor one of the petitioners herein was also injured in that encounter. The accused persons in case F.I.R. No. 196/94 were enlarged on bail vide order, dated 24-7-1994 passed by the Magistrate Section 30, Lodhran. A petition for cancellation of bail of the accused persons was moved in the Sessions Court which was dismissed on 27-11-1994. Further contends that the petitioners have been falsely involved. The two cases of the similar nature one after the other were got registered on the same day. The petitioners were arrested on 11-7-1994 except Zahoor son of Allah Yar, who was arrested on 14-7-1994 and since then they are in jail. Section 365, P.P.C. cannot be made applicable in the circumstances of this case by any stretch of imagination and section 324, P.P.C. is also not applicable. The petitioners are no more required for the purpose of investigation. The case of the petitioners while keeping in juxtaposition with the F.I.R. No. 196/94 entitles them for the concession of bail at this stage. 5. Conversely, the bail petition is vehemently opposed by the leaimed counsel appearing on behalf of the State on the ground that the petitionex-s have committed a very heinous offence as an old man was abducted from his house, who was beaten and remained unconscious for about two months in the hospital so the petitioners are not entitled to any concession of bail, at this stage. 6. I have heard the learned counsel for the parties at full length and have also gone through the record veiy minutely with their able assistance. 7. Admittedly the two F.I.Rs. have been registered by the police in the same police station one for the abduction of Muhammad Ramzan and the other for the abduction of Abdul Karim. 8. Keeping in view the dictums laid down by the superior Courts of this countiy, it is a settled principle of law that neither the law is to be stretched in favour of the prosecution nor the bail can be denied as punishment. In addition thereto the prosecution has already confirmed that he petitioners are no more required by the police for the purpose of ' investigation and they are being kept in the judicial lock-up for the last about four months. Sajid, petitioner is thirteen and a half years old and according to the school leaving certificate his date of birth is 12-4-1981 whereas Muhammad Hanif, petitioner, is of fifteen and a half years and his date of birth, according to the school leaving certificate, is 5-4-1979. The case of these two petitioners falls under subsection (2) of section 497, Cr.P.C. Keeping in view the circumstances of both the cases registered at the same police station between the same parties prima facie this is a case of further inquiiy. No justiciable purpose shall be served while keeping them in the jail. 9. Without commenting upon the merits of the case of that it may . not prejudice the case of either party, in view of what has been discussedabove, I am inclined to release the petitioners on bail provided they furnish bail bonds in the sum of Rs. 50,000 each with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Lodhran. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 863 Present: sh. muhammad zubair, J. MUHAMMAD TARIQ MAHMOOD and others-Petitioners versus STATION HOUSE OFFICER-Respondent Writ Petition No. 16563 of 1996, decided on 20-2-1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- S. 11 read with S. 109 PPC and S. 154 of Cr.P.C.-Quashing of F.I.R.- Prayer for-Allegation of Zma--Female accused, who was more than 18 years of age entered into Nikah with male accused 10 months prior to lodging F.I.R. by her father-Adult woman is competent to choose her husband without blessing of Wan-Parties having solemnized marriage with their free consent and both of them being adult and sui juris, they had not committed any offence whatsoever under law and police could not register case against them, unless offence committed was cognizable as contemplated under S. 154, Cr.P.C.--Constitutional petition was accepted by High Court with declaration that F.I.R. registered under S. 11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S. 109, P.P.C. was without lawful authority and of no legal effect. [Pp. 865 & 866] A, B & C Nazir Ahmad Ghazi, Advocate for Petitioner. Irfan Qadir, Addl. A.-G. judgment The petitioners have challenged the validity of~F.I.R. No., 140 of 1996, dated 11-9-1996, Police Station Millat Park, Lahore under section 11 of Ordinance VII of 1979 read with section 109, P.P.C. on the ground that the petitioners being sui juris entered intoNikah on 19-12-1995, though without the blessings of their parents have not committed any offence. 2. Brief facts relevant for the decision of this petition are that Mst. Najma Bibi aged 18 years 4 months performed Nikah with her free will with Muhammad Tariq Mahmood on 19-12-1996 at Lahore. After the solemnization of the marriage with a delay of 10 months, Muhammad Shafi, real father of Mst. Najma Bibi lodged the aforementioned F.I.R. 3. Learned counsel for the petitioners contended that marriage according to the Mahomedan Law is not sacrament but a civil contract and both the persons being sui juris were competent to perform the marriage referred above. For the purpose of marriage, there is no legal requirement that the girls cannot enter into marriage with their free will without the blessings of their father or Wall and placed reliance on PLD 1981 FSC 308 and PLD 1982 FSC 42, which lays down that Nikah of an adult girl not invalid for want of permission of Wall. According to the learned counsel, in large number of cases, the superior Courts have approved the marriage between the parties, who are sui juris and performed the Nikah with their own free will and placed reliance on 1995 PCr. LJ 401, 1995 PCr. LJ 94 and 1995 PCr. LJ 1657. Islam is the only religion which confers the equal rights on the woman before the advent of Islam, women were considered as a chattel and they had no social legal status and the marriage was not a civil contract. The Islam being progressive religion and near to the nature of the human being ( ^J&-» u_£-> ) revolutionise the entire concept of the society and declare the marriage is a civil contract, in which both the parties should illingly give their consent and acceptance. In Sura Nisa, Verse No. 3, Almighty God ordained, many women of their own choice and this also applies to the woman, she can many man of her own choice. In this regard, the reference may be made to tradition of Holy Prophet (peace be upon him) that "a Wali is bound to follow the consent of a woman". The whole Muslim Umma is consistent upon this point that a woman cannot be forced to many against her will. A Wali is bound by the will/consent of the woman and the woman is not bound by the consent/permission of the Wali. She can cancel her marriage contracted during the period of minority by a Wali in exercise of her right of puberty. A sane, free and adult woman does not require prior consent or permission to enter into a marriage bond with a man of her choice according to the Injunctions of Islam and her marriage with her free will without the consent of her parents or Wall is valid and legal. He further contended that in Islam, there is no difference between man and woman, both enjoy equal social political status in the Society. According to the Article 25 of the Constitution of the Islamic Republic of Pakistan, all citizens are equal before the law and entitled to equal protection of law, there shall be no discrimination on the basis of sex alone. Even twice Mohtarma Benazir Bhutto remained the elected Prime Minister of this country. Learned counsel further urged that this Court is not bound to follow the opinion of the Jurists of the past, that woman cannot marry without the consent of her Wali which is not in accordance with the Constitution of Islamic Republic of Pakistan. 4. Learned Law Officer, appearing on behalf of the State has frankly conceded this legal position that in Islam, the woman has equal right and they have right to choice their husband, if so desired and under section 154 of Cr.P.C., the F.I.R. can only be registered, if cognizable offence is committed. In the present case, both these persons entered into Nikah being sui juris, and they have not committed any offence under the law, so the police was not competent to register the case. 5. I have heard the learned counsel for the parties and have perused the record. 6. The marriage is a contract between man and woman which is entered into for procreation of children. The basis of contract is proposal and acceptance " ". According to Verse No. 323 of Sura Al-Baqra by Allama Ahmad Ali :-- "When you have divorced your wives and they have completed the fixed term (of waiting) do not stop them marrying other men, if it is agreed between them honourably. This warning is for those among you who believe in God and the Last Day. This is both proper and right for you, for God knows and you do not know." Some orthodox religious scholars are of the opinion that a woman cannot contract marriage without the blessing of the guardian (Wali). Socioeconomic circumstances have profoundly changed in the society. Women pursue education, do job, and earn living independently. Article 25 of the Constitution of the Islamic Republic of Pakistan declares all citizens are equal before law. It denounces discrimination on the basis of sex. Article 35 makes the State responsibility for protection of the family, one can, therefore, conclude that dependency of the woman on guardian is vanishing. Traditions and modernity appears to be in conflict There is polarization of view points. The Judges of the superior Court are by all measures, Jurists of today, it is their right as well as responsibility to give progressive interpretation to Mahomedan Law that are in consonance with the spirit of law and the need of the time, as issues cannot be left unsettled. Even the Federal Shariat Court in PLD 1981 FSC 308 and PLD 1982 FSC 42 held that the adult woman is competent to choose her husband without the blessing of Wall, this decision is binding on the High Court in view of Article 203-GG of the Islamic Republic of Pakistan. 7. In view of the above discussion, as the petitioners solemnized the marriage with their free consent and both of them being adult and sui juris, they have not committed any offence whatsoever under the law. The police cannot register the case in view of the provisions of Criminal Procedure Code unless the offence committed is cognizable, as contemplated under section 154, Cr.P.C.; hence this petition is accepted and the registration of F.I.R. No. 140 of 1996, dated 11-9-1996, at Police Station Millat Park, Lahore under section 11 of Ordinance VII of 1979 read with section 109, P.P.C. is declared to be without lawful authority and of not legal effect. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 866 Present: GHULAM HAIDER LAKHO, J. RASOOL BUX-Applicant versus THE STATE-Respondent Criminal Bail Application No. 470 of 1995, decided on 16-11-1995. Bail- —S. 497 Cr.P.C.-Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), S. 17(3)-Bail--Grant of-Neither any features or description of accused have been mentioned in F.I.R. nor any identification parade had been held through witnesses to connect accused with crime-Case of further inquiry-Bail granted. [P. 867] A Ahmed Saba, Advocate for Applicant. A. LatifAnsari, A.A.-G. for the State order The applicant has been sent up to stand his trial under section 17(3) of Offences Against Properly (Enforcement of Hudood) Ordinance, 1979 in the Court of Sessions Judge, Sanghar. Bail application moved on behalf of the applicant was rejected by the trial Court, therefore, this application. Prosecution case as stated by complainant Nazir Hussain in the F.I.R. is that while he was driving his Truck No. 4911/BUA loaded with cotton bags four persons way laid his truck and stopped it tied his hands and of his cleaner and other labourers, drove away the truck. Accused were alleged to be armed with gun and pistol. Police after registration of the case recovered the track on the next day, allegedly from the possession of the applicant. I have heard the learned counsel for the applicant and the learned A.A.-G. and perused the record. Contention of the learned counsel for Ui applicant is that no fractures and descriptions of the accused are given in the F.I.R. Even no identification test has been held through the complainant and the witnesses of the case to connect him with the present crime. There is no other evidence against th$ applicant except that he was found at the wheels of the truck. Learned counsel further submitted that co-accused Salaim and Saino Dino have been granted bail by the trial Court. Learned A.A.-G. has opposed to the grant of bail to the applicant contending that it is a case ofHarraba in which no concession of bail is to be extended to the accused. Admittedly no features or description of the accused have been mentioned in the F.I.R. There is only word of police against the applicant. No. identification parade has been held through the witnesses to connect the present applicant with the crime. Case of present applicant requires further enquiry. Bail is allowed to the applicant subject to his furnishing surety in the sum of Rs. 50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 870 (DB) Present: rashid Aziz khan and tassaduq hussain jilani, JJ. M. SIDDIQUE and others-Appellants versus THE STATE-Respondent Criminal Appeal No. 186 and Murder Reference No. 213 of 1991, decided on 29-10-1996. Pakistan Penal Code, 1860 (XLV of 1860)-- Ss. 302/34 & 392-Murder-Offence of-Conviction for-Challenge to- There is no evidence whatsoever which could indicate that accused on fateful day was present in the house of P.W. 9Identification parade qua him was not conducted-He was not correctly described by witness- Recoveries do not connect appellants with alleged occurrence at all~Coaccused (appellant) was neither named as an accused by first informant or by P.W. 9 nor she could identify him in identification parade-She has already been disbelieved quo two acquitted accused-It would be very difficult to rely upon her uncorroborated statement which also does not inspire confidence-Prosecution has not been able to prove its case beyond doubt-Appeal accepted. [Pp. 873 & 874] A, B & C Rana Ijaz Ahmad Khan and Najeeb Faisal Chaudhry, for Appellants. Nemo for the State. Date of hearing: 29-10-1996. judgment Rashid Aziz Khan, J.--Muhammad Siddique (26), Muhammad Akram (22), Iftikhar alias Doctor (26) and Tariq Mehmood alias Tari (20) were sent up by Police Station Mochi Gate, Lahore for an offence under section 302/34, P.P.C. read with section 17, Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979). Additional Sessions Judge, Lahore vide judgment, dated 28-2-1991 gave the benefit of doubt and acquitted Tariq Mehmood and Iftikhar of the charge. Muhammad Siddique alias Noori was, however, found guilty under section 302/34, P.P.C. and sentenced to death. Muhammad Akram was also found guilty under section 302/34, P.P.C. and sentenced to imprisonment for life. Each of them was also sentenced to fine of Rs. 20,000, or in default of payment of fine undergo further R.I. for four years. They were further convicted under section 392, P.P.C. and sentenced to ten years' R.I. each with a fine of Rs. 20,000 each, or in default of payment of fine undergo further R.I. for four years each. It was directed that the fine, if recovered, the amount shall be paid to the legal heirs of the deceased. Muhammad Akram was also given the benefit of section 382-B, Cr.P.C. The convicts have appealed. Case is also before us for confrmation of the death sentence. Both the matters shall be disposed of by this judgment. 2. Prosecution story in brief, as disclosed in F.I.R. Exh. P.F./l, was to the effect that first informant Sh. Abdul Latif had two brothers. Eldest brother Abdul Karim with his wife Mst. Zarina Begum used to live inside Mochi Gate One Mistri Nazra, who was doing repair work of their house for the past four days, had worked as Chowkidar much earlier. On 5-9-1988 when first informant's brother Abdul Karim was present with the first informant in his shop and his wife was alone at home, at about 3 p.m. said Nazra was working in the kitchen and another person was standing with him. On inquiry by sister-in-law of the first informant, Nazra informed that he was son of Gujjars and wanted some work to be done. On the asking of first informant's sister-in-law they went down and hid themselves somewhere. At about 2 at night when first informant's brother and his wife were sleeping in their respective rooms, said Nazra and his co-accused tied the first informant's brother and his wife from their hands and legs and gagged their mouths. On account of gagging for mouth Abdul Karim died. While leaving the accusedpersons took valuables from the house. Occurrence in this case took place on 6-9-1988 at 2 at night inside the house of Abdul Karim, deceased, situated in Mochi Gate, Lahore, one furlong from Police Station Mochi Gate, Complaint Exh. P.F. was made the same day on 6-9-1988 at 8 a.m. at Chowk Mehraj Din by Sh. Abdul Latif, P.W. 8, which was recorded by Zulfiqar Ahmad, Inspector/S.H.O., P.W. 14, on the basis of which formal F.I.R. Exh. P.F./1 was drawn the same day by Bashir Ahmad, S.-I. P.W. 10 at Police Station Mochi Gate, Lahore. Zulfiqar Ahmad, the then S.H.O. P.W. 14 after recording the complaint Exh. P.F. sent the same to the Police Station for registration of the case and himself went to the spot. He prepared the inquest report Exh. P.R. and injury statement Exh. P.S. of the deceased and sent the dead body for autopsy. From the spot he took into possession loin cloth P.2, pieces of cloth P. 3 and P.4, one medical tap P.5, which were secured vide memo, Exh. P.D. got attested from the witnesses. He got the site-plan Exhs. P.E. and P.E./l prepared from the Draftsman and gave his notes in red ink thereunder. Muhammad Siddique, Inspector, P.W. 15, the then S.H.O. stated that on 28-11-1988 Iftikhar alias Doctor, Muhammad Siddique alias Noori and Tariq Mehmood alias Tari, who were in custody in connection with a case registered under section 402, P.P.C. also disclosed having committed the present offence. They were formally arrested in the present case as well. Nazir Ahmad, A.S.-I. P.W. 17 stated that in his presence on 28-11-1988 the accused persons were arrested. From the personal search of Muhammad Siddique, golden ornaments were recovered. P.W. 18 Muhammad Ajmal Qureshi, Inspector was entrusted with the investigation -of this case. He verified the investigation and then moved an application for holding of identification parade. Mst. Zarina and Kashif were joined with the identification parade, wherein Tariq and Iftikhar accused were identified. On 16-12-1988 Tariq accused while in custody got recovered certain golden ornaments which were secured vide memo. Exh. P.L., which was got attested from the witnesses. After usual investigation, he challaned the accused. Dr. Ahmad Saeed, P.W. 4, on 6-9-1988 while posted as Demonstrator, Department of Forensic Medicine, K.E.M. College, Lahore, at 3-15 p.m. conducted the post-mortem examination on the dead body of Sh. Abdul Karim and found the following injuries :-- (1) Multiple abrasion in an area of 10 x 10 c.m. on left side of the fact between chin left eye and nose 6 c.m. from left ear. (2) Multiple abraided area 5 x 2.5 c.m. on the back of left elbow. (3) Abrasion 9x1 c.m. on the back of left forearm 3 c.m. above the wrist joint. (4) Multiple bruised ligature marks in an area of 9 x 7 c.m. around the right fore-arm. 5 c.m. above the wrist joint. (5) Abrasion into 5 x 1.5 c.m. on front of left knee. (6) Abrasion 2.5 x 1 c.m. on the front of right knee. (7) Multiple bruised marks in an area of 15 x 10 c.m. on the front of left leg 4 c.m. above the left leg. In his opinion, the injuries were ante-mortem, but the death had occurred on account of asphyxia. 3. Prosecution in support of its case had produced 18 witnesses in all. P.W.I Nazir Ahmad had witnessed the arrest of the accused and recoveries made at the instance of Muhammad Siddique and Iftikhar. Syed Riaz Hussain, M.I.C., P.W. 2 was directed on 7-12-1988 to supervise the identification parade of Iftikhar Ahmad and Tariq Mehmood. Mst. Zarina, P.W., correctly identify Iftikhar and Tariq Mehmood accused. Thereafter, Kashif, P.W., was asked to identified, who also correctly identified both the accused. P.W. 3 Ghulam Mustafa, F.C., had escorted the dead body to the mortuary. Tanveer Ahmad, P.W. 5 on 6-9-1988 after hearing some noise entered the house of Mst. Zarina and found her hands and legs tied and mouth was gagged. He untied her and thereafter, saw Abdul Karim, who was also tied from legs and arms and had already expired. P.W. 6 Syed Abdul Pvahim Kazmi, Draftsman had prepared site-plan Exhs. P.E. and P.E./1 on the directions of police. P.W.7 Kashif Malik on the night of the incident had seen the accused persons standing in front of the house of the deceased and thereafter identified them in the identification parade. Abdul Latif, P.W. 8 had got the case registered, though himself did not see the occurrence. P.W. 9 Mst. Zarina Begum had deposed, regarding the ocular account. Muhammad Sharif, S.-L, P.W. 12 had witnessed the recovery of certain golden ornaments effected at the instance of Iftikhar and Siddique and signed the memo, as well. P.W. 13 Muhammad Khalid Zauq, M.I.C. was deputed to supervise the identification parade in respect of Muhammad Akram appellant, wherein Mst. Zarina Begum could not identify him. Kashif, P.W., however, identified him. Zulfiqar Ahmad, P.W. 14, S.H.O. had initially recorded the complaint Exh. P.F. and thereafter investigated the case. Muhammad Siddique, Inspector/S.H.O., P.W. 15 had partly investigated the case. Nazir Ahmad, A.S.-I. P.W. 17 had witnessed the recovery of incriminating articles effected at the instance of Siddique accused. Investigation was verified and challan was ultimately submitted by Muhammad Ajmal Qureshi, Inspector, P.W. 18. At the conclusion of prosecution evidence, appellants were examined without oath wherein they refuted the prosecution allegations and pleaded innocence. They neither appeared in their defence on oath nor produced any defence evidence. 4. It was contended by learned counsel for the appellants that the appellants were neither mentioned in the F.I.R. nor any description was given. Contended that no identification parade in respect of Siddique appellant was held in spite of the fact that he was neither mentioned in the F.I.R. nor by Mst. Zarina Begum in her statement under section 161, Cr.P.C. Argued that the recoveries effected at the instance of the appellants cannot be taken into consideration because the only witness from public in crossexamination admitted having appeared in number of cases for the prosecution and in such circumstances he was a stock-witness. Argued that as far as Akram accused is concerned, Mst. Zarina Begum failed to identify him in the identification parade. 5. We have heard the learned counsel and gone through the file. Prosecution in order to establish its case has relied upon the ocular account furnished by Mst. Zarina, P.W. 9 and sought corroboration from the statement of one Wajtakkar witness Kashif Malik, P.W. 7. As far as Mst. Zarina, P.W., is concerned, she disclosed the commission of the offence to her brother-in-law Sh. Abdul Latif, P.W. 8, who reported the matter to police. According to him, the occurrence had been committed by one Nazra with another unknown person. She admitted that she had informed her brother-in-law who had reported the matter to the police and she had told him that Nazra had committed the occurrence. In Court their stance was changed from Nazra to the present appellant Siddique, who, according to them was alias Noori. There is no evidence whatsoever which could indicate that Muhammad Siddique on the fateful day was present in the house of Mst. Zarina Begum, P.W.9. Identification parade qua him was not conducted. He was not correctly described by any witness. As far as Muhammad Akram appellant is concerned, he was neither named as an accused by the first informant or by Mst. Zarina nor she could identify him in the identification parade. Even otherwise, she has already been disbelieved qua Tariq and Iftikhar, acquitted accused, and, in such circumstances, it would be very difficult to rely upon her uncorroborated statement which otherwise also does not inspire confidence. As far as Kashif, P.W. 7 is concerned, we have carefully gone through his statement and are of the view that it does not inspire confidence. According to him, on the relevant day at 12-30 at night he was returning home when he saw the appellants with their acquitted accused standing near the house of Abdul Karim deceased. The witness has already been disbelieved as far as the acquitted accused are concerned. He did not see them committing any overt act, did not notice them being armed with any weapon, nor the witness has stated that on the following day he learnt about the incident. In such circumstances, it does not establish whether he saw the accused, if at all, he saw them was it on the night of occurrence or at some other time. As far as the recoveries from the spot are concerned, they do notconnect the appellants with the alleged occurrence at all. As far the recoveries at the instance of the appellants are concerned, Mst. Zarina, P.W. 9 did identify the articles as her property but the recoveries simpliciter from the appellants would not establish their guilt for the offence they have been charged for. We do not propose to convert the sentence to section 411, P.P.C. because we have noticed that they were arrested in 1988 and till today they are behind the bars and were not released on bail at any stage. The upshot of the discussion is that the prosecution has not been able to prove its case beyond doubt. Therefore, extending the benefit of doubt, the appeal is accepted, conviction and sentences of the appellants are set aside. They shall be released forthwith if not required in any other case. Death sentence is not confirmed. (AAJS) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 874 Present: muhammad asif jan, J. MUHAMMAD ARSHAD-Petitioner versus Trfe STATE-Respondent Criminal Miscellaneous No. 954/B of 1996, decided on 27-3-1996. Bail- S. 497(2) Cr.P.C.-Bail~Grant of-Prayer for--Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Abductee u/S. 164 Cr.P.C. has stated that she liked petitioner and, therefore, married him--Petitions is not guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years-Case of further inquiry within meaning of ubsection (2) of section 497 Cr.P.C. which entitles petitioner to grant of bail-Bail granted. [P. 875] A & B Ch. Akhtar Hussain, Advocate for Petitioner. Maqsood Ahmad Khan and Muhammad Yasub, Advocates for the State. Date of hearing: 27-3-1996. order Muhammad Arshad petitioner was arrested on 19-7-1995 and is in jail eversince in pursuance of a case registered against him vide F.I.R. No. 206/95, dated 27-6-1995 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Garjakh of Gujranwala District. 2. Mst. Farzana Bibi abductee made a statement on 26-6-1995 (Annexure "E") to the effect that nobody had kidnapped or abducted her and that she was voluntarily entering into marriage with Muhammad Arshad petitioner which she actually did on the same day and the Nikahnama has been placed on record as Annexure "D". 3. The statement of Mst. Farzana Bibi under section 164, Cr.P.C. was recorded on 9-7-1995. In this statement also Mst. Farzana Bibi has stated that she liked Muhammad Arshad petitioner and, therefore, married him. 4. Learned counsel appearing on behalf of the State informs me that the challan had not yet been submitted in Court. 5. From the material that has been collected by the prosecution so far, reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not seen to exist. There may be grounds for further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. which entities the petitioner to the grant of bail. 6. Resultantiy, the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Gujranwala. Bail granted. (AAJS)
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 876 (DB) Present: rashid Aziz khan and tassaduq hussain jilani, JJ. MUHAMMAD ASHRAP-Appdlant versus THE STATE-Respondent Criminal Appeal No. 602, Criminal Revision No. 453 of 1993 and Murder Reference No. 267, heard on 23-10-1996. Pakistan Penal Code, 1860 (Act XLV of I860)- S. 302 & 304, Part H-Murder-Offence of-Conviction for~Challenge to- Motive is not free from doubt-Defence version is nearer to truth- Occurrence had taken place in front of house of appellant, therefore, deceased had come these-Appellant had fired more than one shot hitting deceased and in such circumstances he had certainly exceeded right of private defence of his wife-Held : High Court set aside conviction recorded under section 302 PPC and convert it into section 304, Part II, PPC and reduce sentence to 7 years R.I.-Entitled benefit of S. 382-B, Cr.P.C.~Appeal partly accepted. [Pp. 880 & 881] A, B & C Ijaz Hussain Batalvi with Akhtar Ali Kureshi, Advocates for Appellant. Syed Fazal Hussain Jafri, Advocate for the State. Kh. Sultan Ahmad, Advocate for the Complainant. Date of hearing: 23-10-1996. judgment Rashid Aziz Khan, J.-Muhammad Ashraf alias Achhu (64) with his wife Mst. Rashidan Bibi (49) and their two sons Muhammad Shahbaz (19) and Muhammad Nawaz (32) were sent up by Police Station Model Town, Gujranwala to face the charge of murder of Javed Iqbal. Additional Sessions Judge, Gujranwala vide judgment, dated 14-7-1993 gave the benefit of doubt and acquitted Muhammad Nawaz, Muhammad Shahbaz and Mst. Rashidan Bibi of the charge. Muhammad Ashraf was, however, found guilty under section 302, P.P.C. and sentenced to death with a fine of Rs. 30,000 or in default of payment of the same undergo R.I. for two years. He was also directed to pay compensation of Rs. 30,000 to the legal heirs of the deceased or suffer six months' R.I. The convict has appealed. Case is also before us for confirmation of death sentence. Complainant Inayat Ali Butt has also filed a revision bearing Criminal Revision No. 453 of 1993 challenging the acquittal of three accused. All these matters will be disposed of by this judgment. 2. Prosecution story in brief, as disclosed in F.I.R. Exh. P.E./l, got registered by Inayat All, was to the effect that his son Javed Iqbal was Councillor of the area- Muhammad Ashraf, who was a narcotic Pedlar, had his house about 300 yards from the house of first informant's son. First informant's son had forbidden many a time Muhammad Ashraf to desist from his illegal activities. On 31-10-1988 first informant had come to visit his son who also told him that a day earlier he had an altercation with Muhammad Ashraf over narcotics but were separated by witnesses. The same day at about 8 p.m. first informant's son Javed Iqbal with Muhammad Abbas and Muhammad Aslam were present in the vicinity in connection with canvassing for votes. Muhammad Ashraf was standing outside his house. On seeing Javed Iqbal he raised a Lalkara that he would be dealt with. In the meanwhile, Muhammad Nawaz armed with pistol, Shahbaz with carbine with Mst. Rashidan Bibi, wife of Muhammad Ashraf, came out of their house. Muhammad Ashraf took out a pistol from the Nefa of his Shalwar and fired at Javed Iqbal hitting on his forehead, who fell down. Mst. Rashidan Bibi picked up a brick and gave a blow on the chest of Javed Iqbal. Muhammad Nawaz and Shahbaz kept on firing with their respective weapons. Muhammad Abbas and Muhammad Aslam could not intervene on account of firing. On hearing the fire-arm reports first informant reached the spot and found his son in blood. Muhammad Ashraf with his sons Muhammad Shahbaz and Muhammad Nawaz and his wife Mst. Rashidan Bibi after the occurrence got into the car and ran away while firing. Motive for the occurrence was that first informant's son Javed Iqbal used to forbid Muhammad Ashraf from the sale of narcotic, therefore, the occurrence. Occurrence took place on 31-10-1988 at 8 p.m. in front of the house of Muhammad Ashraf accused, one mile from Police Station Model Town, Gujranwala. Complaint Exh. P.E, was drawn the same day at 8-45 p.m. on the statement of Inayat Ali, P.W.6, which was recorded by Muhammad Bashir, S.-I., P.W.12, at the spot on the basis of which formal F.I.R. Exh. P.E./1 was drawn the same day at 9-05 p.m. by Muhammad Akram, A.S.-I. P.W.5. Muhammad Bashir, S.-I., P.W. 12 after recording complaint Exh. P.E. sent the same to police station for formal registration of the case. Thereafter, he prepared injury statement Exh. P.F. ad inquest report Exh. P.G. and sent the dead body for autopsy. From the spot blood-stained earth was secured vide memo. Exh. P.H. Four crime-empties P. 12 to P. 15 were found at the spot which were secured vide memo. Exh. P.K. A brick P. 16 was talten into possession vide memo. Exh. P.L. Last-worn blood-stained clothes of the deceased were taken into possession vide memo. Exh. P.D. Site plan of the spot was got prepared by him on 4-11-1988 and he gave his notes in red ink thereunder. Sh. Muhammad Siddique, Inspector/S.H.O., P.W. 13 also investigated the case and arrested Mst. Rashidan Bibi on 5-11-1988 and had her medically examined. On 12-11-1988 Ashraf, Nawaz and Shahbaz appeared before him, whom he formally arrested. From Nawaz licensed pistol P.8 with licence was taken into possession. On the same day Muhammad Ashraf got recovered pistol P. 8 with licence P. 9, which were secured vide memo. Exh. P.L. After usual investigation the accused were challaned. Dr. Muhammad Naseer Rana, Medical Officer, D.H.Q. Hospital, Gujranwala, P.W. 2, on 1-11-1988 at 11-30 a.m. conducted the post-mortem examination on the dead body of Javed Iqbal and found the following injuries :-- (1) A lacerated oval wound 1.2 c.m. x 6 c.m. x going deep through and through on the right side of forehead medial part 5.5 c.m. above the medial end of right eyebrow and adjacent to the anterior hair line with inverted edges ound of entry. (2) A lacerated oval wound 1 c.m. x .4 c.m. x going deep through and through on back of head lower part 10.5 c.m. from the right ear and 14 c.m. from left ear with everted edges-wound of exit. (3) A lacerated wound .7 c.m. x .3 c.m. x scalp deep on the right eyebrow 2.5 c.m. from its medial end. (4) An abraded contusion 10.5 c. . x 5 c.m. on the anterior lateral side of left chest 3 c.m. below and outer to the left nipple and 11 c.m. from anterior mid line. (5) An abrasion 3.5 c.m. x 2 c.m. on the postero lateral side of left thigh upper part 20 c.m. below the left anterior superior iliac spine. In his opinion, death had occurred on account of shock and haemorrhage because of injuries Nos. 1 and 2 caused with fire-arm. The injuries were ante-mortem and sufficient to cause death in the ordinary course of nature. On 5-11-1988 at about 2 p.m. he medically examined Mst. Rashida Bibi and found the following injuries :-- (1) A lacerated oval wound 1.3 c.m. x 5 c.m. x scabbed with black scab on the right side of abdomen front 10 c.m. from the umbilicus and above its level with a contusion of 7 c.m. x 5 c.m. around the wound. (2) A lacerated oval wound 1.4 c.m x .5 c.m. x scabbed with black scab on front of right abdomen 10 c.m. below the previous injury with a contusion 7 c.m. x 5 c.m. around the wound. (3) A lacerated wound scabbed 1.2 x .4 c.m. on front of right abdomen 9 c.m. below the previous injury with contusion 6 x 4 c.m. around the wound. (4) A lacerated oval wound 1.2 c.m, x .5 c.m. on front of right thigh upper part with contusion 6 c.m. around the wound. (5) A lacerated oval wound 1 c.m. x .5 c.m. x scabbed with black scab on front of right thigh with contusion of 7 c.m. x 3 c.m. around the wound. 3. Prosecution in support of its case had produced 13 witnesses in all. Arif Hussain Ayaz, Draftsman had prepared site plan Exhs. P.A. and P.A./1 on the directions of police. P.W. 2 Dr. Muhammad Naseer Rana had conducted the post-mortem examination. P.W. 3 Faiz Alam, Constable had delivered the sealed parcels in the respective offices at Lahore intact. P.W. 5 Muhammad Akram, Moharrir/A.S.-I. had drawn formal F.I.R. Exh. P.A./1 Eye-witness account was furnished by Inayat Ali, Muhammad Aslam and Muhammad Abbas, P.Ws. 6, 7 and 8, respectively. P.W. 10 Naseer-ud-Din Hamayun had witnessed the recovery of pistol P. 8 effected at the instance of Muhammad Ashraf, convict. The case was initially investigated by P.W. 12 Muhammad Bashir, the then A.S.-I. and thereafter, by Sh. Muhammad Siddique, Inspector/S.H.O., P.W. 13. At the conclusion of prosecution evidence the appellant and the acquitted accused were examined without oath wherein they refuted the prosecution allegations and pleaded innocence. In answer to a question appellant stated that deceased Javed Iqbal was a desperado and used to collect Jagga Tax. On the fateful day the deceased came to his house when his wife was standing outside and started abusing his wife and fired at her hitting in her abdomen. Apprehending danger to his wife and to his person he also fired with his licensed pistol. Co-accused of the appellant, i.e. his sons were not present at the spot. Nawaz and Shahbaz denied their involvement. Mst. Rashidan Bibi, however, supported the version of her co-accused Muhammad Ashraf. The accused also produced two defence witnesses as well. D.W. 1 Dr. Sher Muhammad Khan, the then Surgeon Medico-legal, Punjab, Lahore, on 20-4-1989 examined Mst. Rashida Bibi under the directions of the Court and issued certificate Exh. D.D. to that effect as well. According to the report Exh. D.D. Mst. Rashida Bibi had received fire-arm injuries on her person. D.W. 2 Dr. Iftikhar Hussain Mir, Assistant Radiologist, Services Hospital, Lahore had conducted X-Rays of the right side of abdomen of Mst. Rashida and found a small rounded metallic in her abdomen. 4. It was conteaded by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that the eye witnesses have been completely belied by the fact that they were not relied upon by the trial Court qua the acquitted accused and in such circumstances they cannot be relied upon against the appellant. Argued that all the eyewitnesses suppressed material fact which is injuries on the person of Mst. Rashida, therefore, the ocular account be discarded from consideration. It was lastly argued that even if the entire prosecution story is relied upon yet the appellant had acted in the right of private defence of his wife, therefore, did not commit any offence. The contentions were vehemently opposed by learned counsel for the complainant According to him, it was cold-blooded murder and injuries on the person of Mst. Rashida Bibi could have been engineered. Argued that had the deceased been armed with carbine then the same should have been available near his dead body which was not so. Submitted that both the doctors, who appeared as D.Ws., had been won-over and may not be relied. 5. We have heard the learned counsel at length and gone through the file. Prosecution in order to establish its case has relied upon ocular account furnished by Inayat Ali, Muhammad Aslam and Muhammad Abbas, P.Ws. 6 to 8, respectively. Corroboration was sought from the report of the Forensic Science Laboratory, according to which four crime empties recovered from the spot matched with the pistol P. 8 of the appellant. As far as Inayat Ali, P.W. is concerned, according to the F.I.R., he came to the spot immediately after the occurrence, therefore, he is not an eye-witness of the incident. According to Muhammad Aslam and Muhammad Abbas, both were present at the spot and witnessed the occurrence. Strangely enough, there is no explanation how Mst. Rashida Bibi got injured. Instead their consistent story is that Mst. Rashida Bibi picked up a brick-bat and gave a blow on the chest of Javed Iqbal when he had fallen down after having received an injury with fire-arm. Statement of both the eye-witnesses cannot be relied upon because the doctor who had examined Mst. Rashida on the directions of the Court, found fire-arm injuries on her person. The doctor, who took X-Ray films found pellets in the wounds. This fact alone renders the ocular account highly doubtful. Motive for the occurrence was that the deceased used to indulge in the sale of narcotic, but no evidence has been produced to substantiate the same. Not even an application against the conduct of the appellant was ever moved before the Authorities. In these circumstances, we hold that the motive as alleged is not free from doubt. The appellant, however, in his examination without oath admitted his presence at the spot. He also admitted being armed with licensed pistol and fired at the deceased in defence of his wife who had been hit with the carbine by the deceased. This version finds corroboration from the statement of the doctor who examined Mst. Rashida Bibi as well as the Radiologist who took X-Ray films. In these circumstances, while juxtaposing both the versions, we find the defence version is nearer to truth for the reasons already discussed above. The contention of the learned counsel that the carbine was not found near the dead body cannot be of much significance because after the occurrence the assailants allegedly ran away and the first informant being father of the deceased with two close relatives of the deceased were only present near the dead body. If they could go to the extent Kh. Mahmood Ahmad, Advocate for Petitioner. Miss Tasneem Amin, Advocate for the State. order The petitioner seeks bail in a case registered through F.I.R. No. 34, dated 22-4-1995, under section 302/324/148/149, P.P.C., at Police Station Kakrali, District Gujrat, against the petitioner and four others. 2. The complainant is the son of the deceased Fateh Khan. Fateh Khan was admittedly more than 85 years old. According to the version given in the F.I.R. by his son, Fateh Khan deceased, his other son Shakeel Ahmad and one Amjad Iqbal alias Jagga were talking with each other up to 1-00 p.m. on 22-4-1995 when the complainant when to his house to sleep. He heard the noise of the firing and when came to the spot found that Fateh Khan had been murdered by fire-arm and Shakeel i.e. son of the deceased and Amjad Iqbal alias Jagga were not present there. He went to the Police Station to get the F.I.R. registered and suspected Amjad Iqbal alias Jagga having committed this murder at the instance of sombody else. 3. On 22-4-1995 at day time the complainant namely Muhammad Hyas Ahmad got his supplementary statement recorded in which he appears to have changed the stand taken in the F.I.R. as he stated that in the evening on the day of occurrence the deceased alongwith Shakeel Ahmad and Amjad Iqbal alias Jagga were sleeping in the Dera and he i.e. the complainant was sleeping in his house when he heard noise of the fire-arm and came to the spot and found that Shakeel Ahmad and Amjad Iqbal alias Jagga were not present when after getting the F.I.R. recorded he came to his house, he found Shakeel Ahmad in his house who stated that the present petitioner alongwith four others namely Tariq, Shakeel, Ghulam Abbas and Nasir Mahmood committed this murder. He also attributed motive to the present petitioner which was to the effect that the present petitioner had developed illicit relations with the wife of the son of Lai Khan brother of the deceased and the deceased told him not to indulge in this affair and visit the house of Lai Khan about six months ago which was taken insult by Fayyaz and in order to take revenge, he committed this murder. 4. There is nothing in this supplementary statement of the complainant as to the cause of disappearance of Shakeel Ahmad the other son of the deceased from the spot after the occurrence and his avoidance to approach the police station immediately to get the F.I.R. recorded. It was not stated by the complainant in this supplementary statement that he even showed his anxiety to inquire from Shakeel Ahmad as to the reasons of his disappearance from the spot. 5. The other person i.e. Amjad Iqbal alias Jagga according to his statement, went to the village Gulyana after occurrence from where he boarded a wagon and went to Lala Musa. According to him he sustained injuries of fire-arm but no explanation has come on record as to why in these circumstances, he instead of approaching the Police Station alongwith Shakeel Ahmad to report the occurrence went to Gulyana and Lala Musa and did not get himself medically examined and also did not feel it necessary to get medical treatment for the injuries sustained by him. He was suspected as a murderer, therefore, this conduct of disappearance from the spot and not getting himself medically examined is very much relevant for considering whether it is a case of further inquiry, till both of them are examined as witnesses and explain this conduct. 6. According to supplementary statement of the complainant the petitioner had illicit relations with the wife of son of Lai Khan the brother of the deceased but no such fact was mentioned in the F.I.R, itself. 7. Learned counsel for the State submitted that the challan has been submitted to the Court and the trial is likely to commence which may not take a long period to conclude, therefore, according to the long standing practice of the superior Courts bail application should be rejected at this stage. 8. Learned counsel for the petitioner relies upon judgment reported as Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585 and sections 497(2) and 497(4) of the Cr.P.C. to argue that it has been held that prbvisions of section 497(2), Cr.P.C. do not become inoperative merely because the trial had commenced if otherwise an accused person is found to be entitled to the grant of bail on its own merits which if granted would not in any way amount to expression of opinion about the merits of the case which have to be decided by the trial Court after recording evidence, therefore, no prejudice will be caused to the prosecution regarding the trial. 9.. I have examined this reported judgment in which it has been clearly held that the long standing practice cannot render section 497(2), CrJP.C. as inoperative if an accused person is otherwise found to be entitled to bail the same cannot be withheld merely the trial had commenced. 10. It has been laid down that the long standing practice may be relevant for the purpose of exercise of discretion whereas section 497(2), O.P.C. relates to the right of an accused person which are not mutually destructive. 11. After considering the evidence so far collected and the conduct of Shakeel Ahmad and Amjad. Iqbal alias Jagga and the statement of the complainant in the F.I.R. as originally recorded and the change of the stand made through supplementary statement, it appears to be a case in which it can be doubted that there are reasonable grounds for believing that the B petitioner is guilty of an offence falling within the prohibitory clause of section 497, Cr.P.C. and his case being a case of further inquiry, as such, he is entitled to bail which cannot be withheld merely because the trial is yet to be commenced or has commenced in view of the rule laid down in PLD 1989 SC 595. ' 12. These observations and findings are tentative in nature and made merely for the purpose of considering the case for grant of bail, therefore, will not be taken as expression of opinion on the merits of the case or the evidence to be recorded the case shall be decided on the basis of evidence uninfluenced by any observations made in this order for the trial Court may ultimately feel persuaded to accept the explanation of the said two witnesses about their abovementioned conduct, after recording the evidence. 13. The petitioner is allowed bail in the sum of Rs. 50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Kharian, District Gujrat. Copy Dasti on payment of usual charges. (AAJS) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 884 Present: ch. khurshid ahmad, J. MANZOOR AHMAD and another-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 911/B of 1996, decided on 5-6-1996. Bal!--Pre-arrest- -S. 498 Cr. P.C.--Pakistan Penal Code (XLV of 1860), Ss. 302/324/148/ 149/109-Pre-arrest bail, grant of--Petitioners were not present at the time of occurrence and allegation against them was of abetment under S. .109, P.P.C.-Section 109, P.P.C. having been declared repugnant to the Injunctions of Islam- Reasonable grounds, thus, were available to believe that accused were not guilty of alleged offeree and sufficient grounds were present for further inquiry into their guilt-Bail confirmed. [P. 885] A & B PLD 1990 SC 1172 re/. Muhammad Zakariya Sheikh, Advocate for Petitioner. Sh. Muhammad Raheem, Advocate for the State. Sarwar Javaid Chaudhry, for the omplainant. order The petitioners were nominated as accused persons in case F.I.R. No. 148/96 registered at Police Station Saddar, Ghichawatni on 9-5-1996 under sections 148, 302/149, 324/149 and 109, P.P.C. on the basis of statement made by Abdul Ghani son of Fateh Muhammad to Shafique Ahmad, S.-I./S.H.O. of the Police Station. 2. The allegation against the petitioner as contained in the F.I.R. was that over a dispute regarding allotment of land situated in Chak No. 111/12-L under Horse Breeding Scheme, a Punchayat had taken place in which the petitioner and Zahoor Ahmad their co-accused, had extended open threats that in case they were not given the share in the said land the complainant and his children shall be reduced into pieces. During the night between 8/9-5-1996 Zahoor Ahmad and four others while armed with deadly weapons formed an unlawful assembly and committed Qati-i-Amd of Abdul Ghaffar and made murderous assault on the P.Ws. Admittedly the petitioners were not present at the time of occurrence. Allegation against the petitioners was that of abetment under section 109, P.P.C. Shariat Appellate Bench of the Supreme Court of Pakistan in Federation of Pakistan through Secretary, Ministry of Law and another v, Gul Hassan Khan and other appellants PLD 1989 SC 633 has held the provisions of section 109, P.P.C. to be repugnant to the Injunctions of Islam. This judgment was approved by their Lordships of the Supreme Court in Shariat Review Petition. Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172 and it was held to take effect on 12th day of Rabi-ul-Awwal, 1411 A.M. on which date the said provision to the extent they had been declared repugnant to the Injunctions of Islam ceased to have effect and it was held that :-- "Accordingly, it is ordered that the decision of this Court, dated 5th July, 1989, whereby the provisions declared and held therein as repugnant to the Injunctions of Islam, and which was to take effect on 23rd March, 1990, would now, on the disposal of this review petition, shall take effect on 12th day of Pvabi-ul-Awwal 1411 A.H.; on which day the said provisions to the extent they have been declared and held to be repugnant to the Injunctions of Islam, shall cease to have effect." Section 109, P.P.C. having been declared to be repugnant to the Injunctions of Islam, the application thereof as against the petitioners was against the provision of law for the time being in force and there are reasonable grounds to believe that the petitioners are not guilty of the offence alleged against them but that there are sufficient grounds for further inquiry into their guilt. The application is, therefore, allowed and the interim pre-arrest bail allowed to the petitioners on 20-5-1996 is confirmed. They shall, however, file fresh bail bonds in the sum of Rs. one lac each with two sureties each in the like amount to the satisfaction of A.C./City Magistrate, Chichawatni. (AAJS) Bail confirmed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 886 Present: SAEED-UR-REHMAN FARRUKH, J. MUHAMMAD JAMIL SHAHID-Petitioner versus SUB-DIVISIONAL OFFICER, WAPDA-Respondents Criminal Miscellaneous No. 1420/HC of 1996, decided on 24-11-1996, Criminal Procedure Code, 1898 (V of 1898)-- S. 491 read with West Pakistan Land Revenue Act (XVII of 1967), Ss. 81 & 82-- Habeas corpus petition-Detention for non-payment of arrears of electricity charges-Arrest and detention of any person under S. 82 of the West Pakistan Land Revenue Act, 1967 can take place a prior notice in terms of S. 81 had been issued--No such notice was issued-Even amount regarding arrears of electricity charges due against him was not determined-Detention of detenu, in the circumstances, was illegal and he was directed to be set at liberty accordingly. [P. 886] A Abdul Khaliq, Advocate for Petitioner. order Bailiff has produced the detenu in Court. According to the respondents, present in Court, the detenu is liable to pay a substantial amount bill over Rs. 1,00,000 as arrears of the electricity bill installed in the premises, which according to them, till stands in his name. 2. Learned counsel for the petitioner submits that the industrial concern was sold by the petitioner as far back as on 28-3-1979 through a registered deed, in favour of Aman Ullah and others-vendees who have been consuming electricity though no change was effected in the WAPDA record about this sale. 3. According to him the detenu was not issued any show-cause notice before his arrest was effected and as such the detention of the Fateh Illahi detenu is illegal. 4. I have gone through the papers produced by the Tehsildar (Recovery) respondent No. 6. There is no record of any notice issued to the detenu about his alleged liability prior to his arrest. 5. Arrest and detention of any person under section 82 of Land A Revenue Act, can take place only if a prior notice in terms of section 81 had been issued. This was not done in the instant case. No determination of amount due against the detenu took place and he was straightaway apprehended and detained. Such a detention is clearly illegal. Resultantly, the petition is accepted and the detenu is directed to be set at liberty forthwith. 6. It shall be open to respondents Nos. 1 to 6 and 8 to proceed in accordance with law to effect recovery of the alleged arrears of electricity bills from whosoever is held liable for the same. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Peshawar) 887 Present: jawaid nawaz khan gandapur, J. BAKHATZADA--Petitioner versus STATE-Respondent Criminal Miscellaneous No. 515 of 1995, decided on 11-1-1996. Bail-Cancellation of- S. 497(5) Cr.P.C.-Offence u/Ss. 302/148/149--Cancellation of pre-arrest bail-Sessions Judge had not mentioned any mala fides on the part of complainant or police or intended arrest being result of some intrigue or to harass and ridicule accused with ulterior motive to disgrace them through process of being handcuffed-Order of Sessions Judge being without proper application of mind and unjustified--Pre-arrest bail cancelled. [P. 890] A & B Shahab-ud-Din Burq, Advocate for Petitioner. Hashim Raza, Advocate for the State. Khalid Khan, Advocate for Respondent. Date of hearing: 11-1-1996. judgment Deceased Shoaib Zada, a student of 9th Class, was done to death within the limits of Police Station, Rustam, District Mardan. His father lodged the report (F.I.R. No. 51) on 28-1-1995 wherein he stated that it was on 27-1-1995 (Friday) that his son had left the house for the mosque to take a both and that he too left the house for work. It was at about Degar time when he returned to his house, his wife Mst. Kameena, the mother of the deceased, and his daughters informed him that Shoaib Zada had not returned to the house so far. Accordingly he started looking for the deceased alongwith his other relatives, that during the course of the search, on 28-1-1995, early in the morning, he came to know that a dead body was found lying near a canal known as Guryala Spin. On the receipt of this information he alongwith his family members rushed to the spot and found the dead body of his son lying there. The dead body had bluish marks on its neck which showed that his son had been strangulated. He further stated, in the report, that since he had no enmity with anybody, therefore, he was not charging any person for murdering his son for the time being. 2. It was on 2.2.1995 that the supplementary statement of the complainant was recorded under section 164, Cr.P.C. wherein he charged the respondents (Nos. 1 to 5) for having killed his son. In his statement he also gave the motive for the commission of the offence and stated, that his son had friendly relations with the accused party as well as with P.W. Wajid Ali and P.W. Isteraj. It was further alleged that accused Tahir (respondent No. 5) was in the habit of stealing money from his uncle and had stolen an amount of Rs. 20,000, that since this money was allegedly distributed amongst the friends, therefore, accused Tahir (respondent No. 5) asked all of them to return the same. The complainant further stated that his son had however, refused to oblige and to repay the amount and accordingly he was murdered. He, therefore, charged all the respondents (Nos. 1 to 5) for having killed his son. 3. The learned counsel for the petitioner, Mr. Shahab-ud-Din Burq, Advocate, submitted at the Bar that in this respect statements of P.W. Wajid Ali son of Matlab Khan and P.W. Isteraj son of Sher Khan have also been recorded under section 164, Cr.P.C. They too have supported the version of the complainant. According to the learned counsel for the petitioner, the learned Sessions Judge, Mardan, in the presence of this evidence on record, was not well within his right to grant pre-arrest bail to the respondentsaccused. He contended that before granting pre-arrest bail, the learned Sessions Judge was bound to look for such circumstances which could furnish the assumption that the petitioner/police was motivated to involve the respondents-accused for ulterior reasons. He submitted that a plain reading of the order of the Sessions Judge, dated 14-3-1995 would show that he has not stated a single word about "mala fides" on the part of the prosecution. He thus prayed that the pre-arrest bail granted to the respondents-accused may kindly be withdrawn/cancelled. Reliance was placed on case Khalid Mahmood v. Abdul Qadir Shah 1994 PCr. LJ 1784, wherein it was held as under :-- "(c) Criminal Procedure Code (V of 1898)- -S, 497(5)-Penal Code (XLV of 1860), S. 302/364/365/201/109/120-B--Pre-arrest bail, cancellation ofPolice was not shown to have actuated with malice in the matter of intended arrest of accused, rather police really wanted to arrest him to unveil the circumstances leading to the murder of complainant's brother-Intended motivated arrest of the accused by the police did not appear to have been urged before the Sessions Court otherwise such aspect of the matter would have been adverted to by the Sessions Court in the bail order-Sessions Court in the circumstances had no power to grant pre-arrest bail to the accused without any express finding qua mala fides or ulterior motives on the part of the police-Fact that 16 months had passed since the grant of pre-arrest bail, per se, was not sufficient to abstain the Court from cancellation of the same~Pre-arrest bail granted to accused by Sessions Court was recalled in circumstances." 4. On the other hand, the learned counsel for the respondents, Mr. Khalid Khan, Advocate submitted that it was a fit case in which the learned Sessions Judge had rightly granted pre-arrest bail to respondents (Nos. 1 to 5), inasmuch as, in the first instance, they were not directly charged in the F.I.R. lodged on 28-1-1995, under section 302/139/149 P.P.C., and secondly that till date no incriminating evidence has been collected so as to show that reasonable grounds do exist for believing that the respondents-accused (Nos. 1 to 5) are connected with the commission of the offence with which they have been charged. In the circumstances, he stated that his bail cancellation application be dismissed. 5. I have also heard Mr. Hashim Raza, Advocate learned counsel for the State, who contended that the order of the Sessions Judge vide which he had granted pre-arrest bail to the respondents-accused is not only perverse but is also arbitrary. According to him, the criteria laid down in the Full Bench case of Hidayatullah v. The Crown PLD 1949 Lah. 21 had not undergone any change so far and the principles laid down therein had to be strictly followed. The power of granting pre-arrest bail had to be exercised sparingly and only in appropriate cases and that the Courts should strictly avoid the exercise of his power at random which is likely to embarrass the rosecution in investigation. He further stated that there is no doubt that I the balance has to be kept and each case has to be dealt with on its own merits but the Court is bound to apply its mind properly before passing the order of pre-arrest bail. According to him, the learned Sessions Judge has j not applied his mind, and, therefore, his order was liable to be set aside. In i this respect he placed reliance on a Full Bench case of Supreme Court t reported as Murad Khan v. Fazal Subhan and another PLD 1983 SC 82 'wherein it was held as under :-- "Criminal Procedure Code (V of 1898)- S. 498-A-Pre-arrest bailConditions for grant of pre-arrest bail-Arrest being for ulterior motives such as humiliation and unjustified harassment, prosecu tion motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of police on political consideration-Counsel unable to satisfy Court with regard to condition of mala fides of intended arrest, case held, not fit for grant of anticipatory bail." 6. After having gone through the record of the case, with the help of the learned counsel for the parties, and the case-law produced before me. I im of the considered view that the learned Sessions Judge has failed to apply ,iis mind properly. He has not mentioned anything about the "mala fides" on :he part of the complainant/police and has also failed to state/mention that Jie intended arrest was a result of some intrigue or was to harass ridicule ;he accused, with ulterior motives or to disgrace them through the process of
eing handcuffed. Accordingly there was no justification in allowing preirrest bail to the respondents-accused in the circumstances of the present ase. 7. This petition is therefore, accepted and the impugned order f learned Sessions Judge, Mardan, dated 14-3-1995 vide which ie had granted pre-arrest bail to respondents (Nos. 1 to 5), is set aside nth the direction that the said respondents shall be taken into custody nd sent to jail, forthwith and the law shall take its normal ourse. \AJS) Pre-arrest bail cancelled.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 891 Present: khalil-ur-rehman ramady, J. YOUNIS MAYO and others-Petitioners versus THE STATE-Respondent Criminal Original No. 65 of 1996, decided on 28-8-1996. ( i ) Bail- Ss. 497 & 561-A O.P.C. read with Prohibition (Enforcement of Hadd ) Order (4 of 1979), Ait . 3/4-Bail-Suo motu action taken by High Court- Accused who were drug addicts were found lying admitted in jail hospital at the time of Court visit to jail-Accused were in custody on account of possession of small amounts of heroin etc.-Accused were released on bail on account of their ill-health subject to each one of them offering a personal bond of Rs . 100 only. [Pp. 891 & 892] A Nemo for Petitioners. Abdullah YousafWaraich , Addl. A.-G. for the State. order A list of undertrial prisoners being held in the Camp Jail at Lahore for the alleged commission of offences punishable under Article 3/4 of the Prohibition (Enforcement of Hadd ) Order of 1979 and who have been in custody for more than six months was submitted by the jail authorities. The facts relevant to these undertrial prisoners have been checked and confirmed by the D.S.P. (Legal) present in Court from the police record who has submitted a list with the relevant particulars of the said accused persons and the cases registered against them. 2. The accused persons thirteen in number whose particulars are mentioned below are drug addicts who were lying admitted in the jail hospital at the time of my visit to the said jail. They are in custody on account of the alleged possession of small amounts of Heroin, etc. On account of their ill-health, all these accused persons mentioned below and involved in the cases mentioned against the name of each accused person are released on bail subject to each one of them offering a personal bond of Rs . 100. (List of accused 1 to 14) 3. The accused persons described below (total 392), as has been mentioned above, are in custody for more than six months and the trials against them have still not concluded. As has been noticed in the earlier orders passed by me in this matter, each one of them is a drug addict. Despite their remand to police custody no Investigating Officer ever tried to find out the source which was supplying intoxicants to these unfortunate victims of this menace. Each one of them is released on bail in the cases mentioned against the name of each accused person subject to each one of the offering a personal bond of Rs . 100. (List of accused 1 to 392) 4. All the abovementioned accused persons shall submit their personal bonds to the Superintendent of Camp Jail, Lahore , who shall then transmit the same to the respective Trial Courts. The expenses, if any, involved in the execution of these bonds shall be borne by the State. This arrangement is being made in order to eliminate the unnecessary expenses and infirmities in transporting such a large number of accused persons to various Couzts spread all over the city of Lahore only for the purpose of offering personal bonds. 5. The jail authorities as also the concerned police authorities shall bring the record relating to the accused persons mentioned at Serial Nos. 4, 29, 30, 65, 68, 136, 150, 162, 179, 190-A, 208, 225, 297, 298, 302, 325, 328, 329-A, 331, 356, 365-A, 248, 405 and 406 of the list submitted by the D.S.P. % (Legal) because of certain discrepancies which have existed with respect to these accused persons in the jail as well as the police record. The question of grant of bail or othei'wise to these accused persons shall be considered after examining the said record. 6. The Medical Superintendent of Services Hospital, Lahore has submitted a report, dated 28-8-1996 with respect to Shan Ahmad accused of case F.I.R. No. 399 of 1994 of Police Station, Hanjarwal registered for the alleged commission of offence punishable under section 302, P.P.C. who had been found by me lying admitted in the jail hospital on 18-8-1996 in a precarious condition. According to this report of the M.S. the said Shan Ahmad who had been ordered by me on the said date to be sent immediately to the Services Hospital died in the said hospital on 23-8-1996 i.e. within five days of being sent to the Services Hospital . I would like to examine the conduct of the jail authorities, especially the jail doctor, in the matter of the management of this patient and whether the jail doctor had properly discharged his obligations vis-a-vis this patient. Manzoor Ahmad, Additional Registrar of this Court is directed to proceed immediately to the Camp-Jail of Lahore; to take into custody the entire record available with the jail authorities and the jail doctor relating to said Shan and then to produce the same before this Court on the next date of hearing. He shall also take into custody any record, which may be available relating to other patients who might be lying admitted in the said hospital. 7. The learned Additional Advocate-General shall seek instructions from the Inspector-General, Prisons about .the progress in the matter of recruitment of male nurses in the hospital of the jail in question. He shall also get a report from the Health Secretary regarding the availability oT any rehabilitation centres set-up by the Government in the city of Lahore for the treatment of drug addicts. 8. To come up on 14-9-1996 for further proceedings. (AAJS) - Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 893 Present: SYED ZAHID HUSSAIN BOKHARI, J. SARNAWAZ and another-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No. 89/B of 1996, decided on 11-3-1996. Bail- S. 497 Cr.P.C.«Ortence u/Ss. 380/392/458-Bail-Grant of--Direction of High Court for completion of trial within two months was not complied with for which accused were not responsible-Petitioners were in custody for last more than ten months-Proceedings before lower Court amount to abuse of process of Court-Question whether from evidence collected during investigation offence under S. 411, P.P.C. was made out or the accused were liable under S. 458/380/392, P.P.C. was yet to be determined-Accused were in judicial lock-up and were no more required for further investigation and were not previous convicts-Bail allowed. [Pp. 894 & 895] A & B Abdul Aziz Khan Niazi, Advocate for Petitioners. Sh. Anwar-ul-Haq, for the State. order Petitioner Sarnawaz and Muhammad Anwar sought bail after arrest in case F.I.R. No. 32 of 1995, dated 19-1-1995 under section 380/392/458, P.P.C. of Police Station City, Khanewal registered on the statement of Fida Hussain complainant against some unknown persons for the commission of theft of golden ornaments, currency notes and prize bonds during the night between 18/19-1-1995 from his house situated in Block No. 14, Khanewal. During the investigation petitioners were found involved in the occurrence. 2. Learned petitioners' counsel argued that no detailed description of the features of the culprits is given in the F.I.R.; and no specific role has been attributed to any one in the F.I.R. that the petitioners were involved falsely on account of party faction; that fictitious recoveiy of prize bonds is shown by the Investigating Officer with mala fide; that numbers of prize bonds allegedly recovered from the custody of the petitioners did not tally with the numbers of prize bonds mentioned in the F.I.R.; that the petitioners were shown to the complainant and other witnesses prior to the holding of identification parade and that the petitioners were arrested on 7-5-1995 and trial of the case has not yet commenced. 3. Learned State Counsel argued that sufficient material exists on the record with connects the petitioner with the commission of offence and that the complainant and the witnesses have no enmity whatsoever with the petitioners which would prompt them to falsely involve the petitioners in the commission of offence. 4. I have heard learned counsel for the parties and have gone through the record. 5. Petitioners earlier moved Criminal Miscellaneous No. 1471/B of 1995 for the grant of bail after arrest which was withdrawn by the petitioners in view of the direction of this Court to the trial Judge to conclude the case within two months of the receipt of the order, dated 22-10- 1995.1 have perused the orders passed by the learned Magistrate Section 30, Khanewal on 22-10-1995, 5-11-1995, 16-11-1995, 30-11-1995, 14-12-1995, 20-12-1995 and 2-1-1996. All these orders show 'that no proceedings whatsoever were conducted by the trial Court as the learned Civil Judge/Magistrate Section 30 was promoted and his successor did not take charge during this period. This would show that the direction of the Court or completion of the trial within a period of two months was not complied without ny fault of the petitioners. The petitioners are under custody since 7-5-1995 and according to the learned counsel not even a single witness has been recorded, so far. In my considered view, the proceedings before the lower Court tantamounts to the abuse of process of Court. It is yet to be seen whether from the evidence collected during the investigation offence under section 411, P.P.C. is made out or the petitioners are liable under section 458/380/392, P.P.C. The petitioners are in the judicial lock-up and no more required for further investigation. They are stated to be previous nonconvicts. For what has been stated above, the petitioners have made out a case for the grant of bail after arrest. Resultantly the petitioners are admitted to bail after arrest provided they furnish bail bonds in the sum of Rs. 40,000 each with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Khanewal. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 895 Present: RASHID AZIZ KHAN, J. ABDUL GHAFOOR-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 176/T of 1996, decided on 2-10-1996. Criminal Procedure Code, 1898 (V of 1898)-- £s. 526, 190(l)(c) & 191~Transfer of case-Argument that Trial Court after recording some evidence proceeded to issue process under S. 190(a)(c), Cr.P.C. against some of accused who had not been challaned and Court in such circumstances was duly bound to ask accused if they wanted Trial Court to continue with case which was the mandatory requirement of S. 191, Cr.P.C.-Case pending before Trial Court was ordered to be transferred to any other Court of competent jurisdiction. [Pp. 895 & 896] A & B S.M. Idrees, Advocate for Petitioner. Noor Muhammad Kasir Kalyar, Advocate for the State. Mian Ghulam Hussain, for Respondent No. 1. order This is an application seeking transfer of trial pending before Mr. Javed Mehmood Sindhu, Civil Judge/Magistrate Section 30, Nankana Sahib, to any other Court of competent jurisdiction. The only ground taken by the learned counsel for the petitioner is that some of the accused were not challaned. Learned trial Court after recording some evidence proceeded to issue them process under section 190(c), Cr.P.C. and in such circumstances that Court was duty found to ask the accused if they wanted the trial Court to continue with the case. This is the requirement of section 191, Cr.P.C. which is of mandatory nature. In these circumstances and after hearing the learned counsel for the respondent as well the application is accepted. The case titled The State v. Ghafoor and others bearing F.I.R. No. 162, dated 30-5-1995 registered with Police Station Saddar, Nankana Sahib, District Sheikhupura for offences under section 324/337/447/511/148/149, P.P.C. is ordered to be transferred 3 from the Court of Mr. Javed Mehmood Sindhu, Civil Judge/Magistrate Section 30, Nankana Sahib, to any other Court of competent jurisdiction. The file shall be sent to District and Sessions Judge, Sheikhupura who shall entrust the case to any other Court of competent jurisdiction at Nankana Sahib. It is also directed that the trial Court shall conclude the trial without fall within six months with report to this Court through Deputy Registrar (Judicial). The petition is disposed of. (AAJS) Case transferred.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 896 Present: SAJJAD AHMED SlPRA, J. MUHAMMAD SHARIF-Appellant versus STATE-Respondent Criminal Appeal No. 36 of 1992, accepted on 17-12-1995. Prevention of Corruption Act, 1947 (II of 1947)-- S. 5(2)--Appreciation of evidenceTainted money was not recovered from person of or on behest of appellant but was recovered from floor lying near feet of a third person and that too by complainant-Magistrate and Police Officer had not heard conversation between complainant and accused but they claimed to have seen complainant passing on tainted money to accused from a considerable distance which fact by itself creates serious doubt about their said claim-Prosecution failed to prove charge against accused beyond reasonable doubt-Accused was acquitted. [P.898]A&B Muhammad Nawaz Bhatti, Advocate for Appellant J.V, Gardner, Advocate for the State. Date of hearing: 17-12-1995. judgment The present criminal appeal has been directed against the judgment, dated 5-1-1992, whereby the learned Special Judge Central, Faisalabad, had convicted the appellant under section 5(2), Prevention of Corruption Act, 1947, and sentenced him to undergo R.I. for one year with a fine of Rs. 500 or in default thereof to further suffer R.I. for 15 days. 2. Briefly stated, the case against the appellant Muhammad Sharif, was that, he being, a lineman in WAPDA, demanded a sum of Rs. 250 as illegal gratification for the replacement of defective meter of Muhammad Maqsood complainant, but agreed to take Rs. 200 as such, out of which the complainant had paid Rs. 100 in advance and the balance amount of Rs. 100 was to be paid to him in a cold drink shop in front of a tailor shop situated in Ghxilam Muhammadabad, Faisalabad. In the meantime, the complainant reported the matter to Muhammad Bashir, Inspector, F.I.A., on whose application a raiding party headed by Naseer Khusro Jafri, Magistrate 1st Class, was constituted. The complainant produced seven currency notes P. 1 to P. 7 before the Magistrate, which were returned to him, after nothing down their serial numbers, with the direction to pass on the same to the appellant. Accordingly, the raiding party reached the tailor shop and the complainant went to the office of WAPDA. After a shortwhile, Muhammad Sharif accused/appellant alongwith Abdul Majeed, Assistant Lineman reached there on a motorcycle and went inside the shop opposite to the tailor shop. Meanwhile, the complainant also reached there on a bicycle and went inside the said shop. Soon, thereafter, the complainant and the appellant emerged from the shop and the former passed on the tainted amount to the latter, which act was seen by the raiding party. When the appellant again went inside the shop, the raiding party went there and the Magistrate asked him for handing over the tainted money, but he did not do so. At that very time, the complainant picked up the tainted currency notes from the floor near the feet of Abdul Majeed, Assistant Lineman, and handed over the same to the Magistrate, and the same were found to be the notes that had been given to the complainant to pass on to the appellant, on comparison. 3. The Magistrate recorded the supplementary statement of the complainant Muhammad Maqsood and the statement of Muhammad Sharif accused/appellant, who had denied the recovery of the tainted money. Consequently, on the report of the. Magistrate, duly endorsed by the Assistant Director, F.I.A., the present case was registered, vide F.I.R. No. 35, dated 2-5-1984. After usual investigation, the accused/appellant was challaned to the Court. 4. At the trial, the prosecution had examined as many as five witnesses. P.W. 1 Nehmat Ali, S.-I., who was a member of the raiding party, supported the prosecution case, but conceded that he did not hear the onversation between the complainant and the appellant. P.W. 2 Muhammad Maqsood, was the complainant of the case, whereas P.W. 3 Nasir Khushro Jafri, Magistrate 1st Class, had supervised the raiding party, who had also admitted that he did not hear the conversation between the complainant and the appellant. P.W.5 Muhammad Bashir, Inspector, F.LA was also a member of the raiding party and had also partly investigated the instant case, whereas P.W. 4 Zulfiqar Khan, Inspector, Anti- Corruption had completed the investigation and challaned the accused/appellant. 5. The appellant in his statement under the provisions of section 342, Cr.P.C. denied the allegation against him and claimed to have been falsely involved in this case at, the instance of one Hameed, member of a fake Mohasba Tanzeem. He had produced a photostat copy of Meter Change order as Exh. D.A. in his defence; but did not get recorded his own statement Under the provisions of section 340(2), Cr.P.C. 6. The learned trial Court, taking into consideration the facts and circumstances of the case, convicted and sentenced the appellant as stated above. 7. The learned counsel for the appellant and the State were heard at length and the record of the case perused minutely with their assistance. 8. It has been taken notice of that as contended on behalf of the appellant, the tainted money in question was not recovered from the person of or on the behest of the appellant, but from the floor near the feet of a third person, and that also by the complainant. Muhammad Maqsood P.W. 2 and it was the said complainant who handed it over to P.W. 1 Nehmat Ali, S.-I. Furthermore, it stands admitted by P.W.I Nehmat Ali, S.-I. and P.W. 3 Nasir Khusro Jafri, Magistrate 1st Class, that they had not heard the conversation between the complainant and the appellant, being too far away to be dbJe to do that. It, stands further conceded by the said two prosecution witnesses that they were at a considerable distance when they claimed to have seen the complainant passing on the tainted money to the appellant, which fact by itself creates serious doubt about their claim to be in a position to defln/edly state that the amount passed on to the appellant was in fact the tained money; and the benefit of doubt thus arising can only go to the appellant. Therefore, it is hereby held that the prosecution had failed to prove the charge against the appellant beyond reasonable doubt. 9. Pursuant to the above discussion, the present criminal appeal is hereby allowed and the impugned judgment, dated 5-1-1992 is set aside. The appellant stands acquitted of the offences charged. He is on bail; his bail bonds stand discharged accordingly. (AAJS) Appeal allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 899 Present: SHEIKH LUTFUR REHMAN, J. AKBAR-Appellant versus STATE-Respondent Crl. Appeal No. 790 of 1993, partly accepted on 11.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302(c)--Murder--Offence of-Conviction for--Challenge to--Contention that appellant found deceased committing zina with his daughter and at that time deceased also fired 2/3 shots and in order to save honour of family and to protect himself, appellant while acting in self-defence and under provocation killed both of them-Three vaginal swabs were taken at the time of post-mortem examination of dead-body of Mst. S were found to be stained with semenIrresistable conclusion is that defence version has much force that deceased was committing zina with Mst. S and this provocated appellant, the father of Mst. S and it finally ended into death of both-Appellant/accused did get provocated and this provocation was so grave that he even killed his own daughter-In muslim society, knowledge of illicit liaison of a female of family with some other person is so painful, disturbing and cause of mental torture that it cannot be explained in words-Such things are not accepted in our Muslim society and a "Ghairat Mand" father/brother looses all patience and even mental balance-His actions which follow such an incident are but natural and need proper realization by courts-Appellant/accused must be punished but not with severitykeeping in mind rectitude and un-Islamic act committed by deceased-Held: Appellant/accused acted under grave and sudden provocation and is not liable to qisas or ta'zir within in meanings of section 302 (a)(b) PPC-Hence, his conviction u/S. 302 (b) P.P.C. is altered to that u/S. 302 (c) P.P.C. and sentence of imprisonment for life is reduced to 5 years rigorous imprisonment- Appeal partly accepted. [Pp. 900 to 902] A, B, C, D & E Mr. Muhammad Sharif Khokhar and Mr. Muhammad Yaqoob Pannu, Advocates for Appellant. Mian Muhammad Bashir, Advocate for State. Mr. Wahid-ud'Din Virk, Advocate for Complainant. Date of hearing: 11.7.1997. judgment On 30.5.1992, at about evening time, Akbar (appellant-accused) and his son Bashir (acquitted-accused) allegedly shot dead Riaz Ahmad (deceased), the brother of Ghulam Muhammad complainant and Mst. Sughran (deceased), the daughter of Akbar accused, due to suspected illicit relations between Riaz Ahmed and Mst. Sughran. A case FIR No. 212/92 was registered on the day of occurrence at 8.35 p.m. at Police Station Sadar, Faisalabad. The complainant Ghulam Muhammad being dis-satisfied wit the investigation wherein Bashir was found to be innocent, filed a complaint Ex. P.B. on the same facts in the Court of learned Additional Sessions Judge, Faisalabad, who vide his judgment dated 24.11.1993, convicted Akbar (appellant-accused) under Section 302 (b) P.P.C. for qatl-i-amd of Riaz Ahmad (deceased) and sentenced him to imprisonment for life and to a fine of Rs. 20,000/- and in default of payment of fine to further R.I. for 2 years. He also awarded compensation of Rs. 20,000/- and in default of payment of compensation 6 months R.I. to the said accused. The benefit of Section 382 (B) Cr.P.C. was given to the appellant-accused. 2. Bashir Ahmad accused was given benefit of doubt and was acquitted in this case. The charge for the alleged murder of Mst. Sughran (deceased) was dropped against both the accused persons as the heirs of the 'said deceased had pardoned the accused and had waived their right of qisas and diyat. 3. There is absolutely no dispute between prosecution and the defence regarding the manner in which the occurrence took place except that according to the defence both the deceased were earlier found to be in a compromising position in an abandoned "Dhari" and Akbar appellantaccused while exercising the right of self-defence and under grave and sudden provocation shot dead Riaz Ahmad and Mst. Sughran. 4. The learned counsel for the appellant submitted that the appellant found Riaz Ahmad (deceased) committing Zina with his daughter Mst. Sughran and at that time Riaz Ahmad (deceased) also fired 2/3 shots and in order to save the honour of the family and to protect himself, the appellant while acting in self-defence and under provocation killed both of them. The learned counsel for the complainant, on the other hand, pointed out that Riaz Ahmad was killed in the village while Mst. Sughran was killed near the 'Dhari J of the appellant and there was an interval of some time between both the murders and as such the provocation, if any, was not that grave which could justify the bringing of the case of the appellant within the relevant exception. 5. It is an admitted and proved fact that Riaz Ahmad was murdered n" the village and thereafter Mst. Sughran was murdered near the 'Dhari' jutside the village. It is also admitted by the P.Ws. that illicit relations were inspected by the accused persons between both the deceased. It is also in mdence and not denied by the defence that Mst. Sughran had strained relations with her husband and was living with her parents. The three vaginal swabs taken by Dr. Zahid Hussain (PW 3) a the time of post-mortem examination of the dead-body of Ms?. Sughran were found to be stained with semen. In these circumstances, the irresistable conclusion is that the defence j version has much force that Riaz Ahmad (deceased) was committing zina i with Mst. Sughran and this provocated Akbar, the father of Mst. Sughran, \ and it finally ended into the death of both Riaz Ahmad and Mst. Sughran. | 6. No doubt both of them were murdered at separate places and at different times but there is no way to measure the degree of provocation and how long it continues. It is only the mind of a person which reacts in different manners on such occasions. In the case in hand, the accused Akbar did get provocated and this provocation was so grave that he even killed his J own daughter. In a muslim society, the knowledge of illicit liaison of a female | of the family with some other person is so painful, disturbing and cause of J mental torture that it cannot be explained in words. Such things are not accepted in our muslim society and a "Ghairat Mand" father/brother looses I all his patience and even mental balance. His actions which follow such an j incident are but natural and need proper realization by the Courts. The appellant not only murdered Riaz Ahmad but also took the life of his daughter, which is a sufficient proof of the fact that the appellant had no other enmity with Riaz Ahmad except that he dis-honoured his family. Obviously, it is a case of grave provocation. But at the same time the Court neither favour nor allow anyone to take law in his hands and thereby thwart the legal process. If citizens start settling their own accounts,' even for a noble cause or under provocation, there would be social upheaval and chaos obliterating the established judicial system. To meet such an eventuality, such persons must be punished but with leniency. 7. The major objective for the demand of Pakistan was the establishment of a social, political and economic order based on the Islamic principles after the Independence. The Quaid-i-Azam emphasized on the Islamic Ideology as being the basis of the struggle for Pakistan as is clear through his words:- "We did not demand Pakistan simply to have a piece of land but we wanted a laboratory where we could experiment on Islamic principles". (Peshawar 1946). "Pakistan does not mean freedom and independence only, but the Islamic Ideology as well which has to be preserved, which has come to us as precious gift and which we hope others will share with us." (June 1945). As Pakistan's entire existence was and is based upon Islamic according to Islamic norms. Such norms do not allow for crimes such as 'zina' to be tolerated. The basic difference between a Muslim and a non-muslim society -is the fact that the Muslims are the adherents of the Islamic principles whereas the non-muslims are not. In this case, Akbar (accused) must have been over taken by revulsion which steals man's mental composure on seeing the act of zina being committed by his own daughter. Yet this does not provide him with the right of taking their lives, therefore, the appellant must be punished but not with severity-keeping in mind rectitude and un-Islamic act committed by the deceased. 8. The upshot of the above discussion is that Akbar appellantaccused acted under grave and sudden provocation and is not liable to qisas or ta'zir within the meanings of Section 302(a)(b) P.P.C. Hence, his conviction under Section 302(b) P.P.C. is altered to that under Section 302(c> P.P.C. and the sentence of imprisonment for life is reduced to 5 years rigorous imprisonment and the fine of Rs. 20,000/- is reduced to Rs. 10,000/- and in default of payment of fine he will suffer further R.I. for one year. The deceased Riaz Ahmad was involved in an immoral activity, which became the cause of his murder and, therefore, his heirs are not entitled to any compensation which in fact is the right of the heirs of a person murdered for no fault on his part. The benefit of Section 382(b) Cr.P.C. has already been given to the appellant-accused by the trial Court. The appeal is disposed of in the above terms. (A.A.Q.) Appeal partly accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 902 (DB) Present: nazim hussain sddiqui, amanullah abbasi, dr. ghous muhammad, rasheed ahmed razvi and agha rafiq ahmed khan, JJ. ABDUL KHALIL-Applicant Versus STATE-Respondent Criminal Bail applications No. 1329/95 245/96, 1343/95, 7/96, 283/96, ,115/96 187/96, 42/96, 12/96, 13/96, 322/96, 417/98 292/96, 475/96 and 183/96, accepted on 8.9.1996. Bail- -S. 497 Cr.P.C-Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss. 5-A(8) & 8-Arrest of applicant and recovery of 30 bore PistolGrant of bail Pravor Section 8--Name of applicant appears in F.I.R. and weapon is said to have been recovered from himThere is presumption under section 8 of suppression of Terrorist Activities Act and prima. facie case is made out- Bail rejected-Per : Ammanullah Abbasi, J. [Pp. 905 & 906] A & B Bail -S. 497 Cr.P.C.-Whether accused when charged under Suppression of Terrorist Activities Act 1975 shall be presumed to be guilty and bail application shall not be maintainableQuestion ofWhen person is charged under Suppression of Terrorist Activities (Special Court) Act, 1975, he shall be presumed to be guilty and his bail application shall not be maintainable in law and there would be no room to touch upon merits of matter-Such interpretation is respectfully not borne out by general principles of law of evidence and case law on subject-Held : At bail stage section-8 of Suppression of Terrorist Activities Act has no bearing or consequence-Held further : Prosecution has not been able to make out reasonable case or discharge prima facie burden placed upon itBail allowed-Per Dr. Ghous Muhammad, J. [Pp. 912, 917] C, D, E, F & G 1995 SCMR 1249 1994 SCMR 1283 PLD 1995 Lah. 600. Bail S. 497 Cr.P.C.-Suppression of Terrorist Activities (Special Courts) Act XV of 1975) Ss. 5-A (8) & 8-Whether Section 8 is to be read at bail stage or at stage of evidence-Question of-we agree with conclusion drawn by Dr. Ghous Muhammad Judge-He observed that clause (c) to schedule of S.T.A. only brings within its mischief cannon, grenade, bomb, rocket or light or heavy automatic or semi-automatic weapons such as Klashinkov, G-III Rifle or any other type of assault riffle"-Further he observed that nothing was brought on record that weapons recovered in these cases fall within this clause of Arms spelt out in clause (c) of Schedule of S.T.A. Act 1975-In these case mostly weapons alleging recovered from these applicants were semi-automatic or automatic pistols and those commonly known as T.T. Pistols-Ordinance No. XL of 1995 was promulgated on 9th April, 1995, whereby Suppression of Terrorist (Special Court) Ordinance, 1975 was amended and by virtue of this amendment in schedule of S.T.A. Act, in clause (c) words" semi-automatic or automatic pistols or T.T. pistols were inserted"-Several Ordinances in this regard have been issued and last one being ordinance No. XII of 1996 was issued on 28th February 1996-Thus, Semi-automatic or automatic pistols and T.T. Pistol, are covered by S.T.A. Act-Held : Applicants are entitled to bail-Per: Nazim Russian Siddiqui, J. [P. 924] H&I Bail- -S. 497 Cr.P.C.--Presumption of guilty under section 8 S.T.A.Whether prosecution relieved of duty to prove its case beyond doubtQuestion of It has been constantly held by courts, ever since Federal Court Judgment in Safdar Ali's case that prosecution is never relieved of duty to prove its case beyond doubt and when burden is caste on defence to prove special circumstances, this burden is sufficiently discharged by showing reasonable possibility of defence version being true-Applying these standards to section-8, it would appear that burden of proof would shif upon accused only if all necessary ingredients to attract presumption of guilt established by prosecution beyond doubt and only thereafter defence would only be required to show that its plea is reasonably possible-In order to maintain consistency with principles of Human Rights, law laid down by Hon'ble Supreme Court, High Court is inclined to hold that provisions of S. 8 of Suppression of Terrorist Activities (Special Courts > Act, 1975 is not applicable at bail stage-Held : Applicants are entitled to bail-Per : Rashid A. Razvi, J. [Pp. 926 & 927] J, K & L PLD 1955 F.C. 93; 1992 SCMR 2192; PLD 1978; SC 64; 1994 SCMR 1283: Mr. Kadir Khan, Advocate for Applicant. Mr. Shoukat Hussain Zubadi, Advocate for Applicant in Cr. Bail No. 245/1996. Mr. Syed Sarfraz Ahmad, Advocates for Applicant in Cr. Bail No. 1343/95. Mr: Suleman Habibullah, Advocate for Applicant in Cr. Bail No. 7/1996. Mr. Abdul Karim Junejo.&Advocate for applicant in Cr. Bail No. 283/1996. Mr. Taza Gul Khattak, Advocate for applicants in Cr. Bail No. 115 and 187/1996. . Mr. Sheikh Mir Muhammad, Advocate for applicant in Cr. Bail No. 42/1996. Mr. S. Mahmood Alam Rizvi, Advocate for applicant in Cr. Bail Nos. 12 and 13/1996. Mr. Salima Nasiruddin, Advocate for applicant in Cr. Bail No. 322/1996. Mr. M. Shafiq Qureshi, Advocate for applicant in Cr. Bail No. 417/1996. Mr. Ali Asghar Awan, Advocate for applicant in Cr. Bail No. 292/1996. \fr. Riaz Ahmad, Advocate for applicant in Cr. Bail No. 475/1996. Mr. M. Noman Khan, Addl. Advocate General and Mr. Habib Ahmad, Advocate for the State. Date of hearing : 8.9.1996. order Amanullah Abbasi, J.-The F.I.R. in this case was registered on 15.11.1995 for offence under section 13-D, Arms Ordinance. A .30 bore pistol is said to have been recovered from the applicant. The learned Advocate for the applicant has requested for bail on the ground that A.S.I, and official of C.I.A. had apprehended the applicant and this was illegal. He has placed reliance on decision reported in PLD 1995 Lah. 606. The learned State Counsel opposed the grant of bail and submitted that section 54 authorises any Police Officer to effect the arrest. He also referred to section 156(2) and section 190U-B) of Cr.P.C. He also referred to decision reported in PLD 1994 Lah. 503 and 511(c). A weapon is said to have been recovered from the applicant. His name appears in the F.I.R. The sections cited by the learned State Counsel have not been examined in decision reported in PLD 1995 Lah. 606. The name of the applicant appears in the F.I.R. and a weapon is said to have been recovered from him. There is a presumption under section 8 of the S.T.A. Act and in such cases there are two reported decisions of this Court wherein bail was declined. These decisions are reported in 1990 PCr.LJ 1689 and PLD 1995 Kar. 514. There were divergent views of this Bench on the point of section 8 of S.T.A. Act. The matter was referred to Honourable Chief Justice who had nominated Mr. Justice Nazim Hussain Siddiqui, J. to resolve the controversy. Mr. Justice Nazim Hussain Siddiqui, J. is of the view that section 8 of S.T.A. Act is to be examined at the time of recording of evidence. Normally this makes Full Bench judgment and is binding on me but in this case there is some difficulty. I was of the opinion that the provision of section 5-A(8) is to be read in conjunction with section 8 of the S.T.A. Act. At that time two D.B. decisions of this Court werein view otherwise I would have supported my view with these decisions. These decisions are reported in 1990 PCr.LJ 1689 and PLD 1995 Kar. 514. In decision reported in 1990 PCr.LJ 1689 my Lords Mr. Justice Syed Sajjad All Shah, C.J. and Mr. Justice Wajihuddin Ahmed, J. were pleased to rule as under :-- "Material collected by prosecution of incriminating against is sufficient, on the basis of which it can be said that there are reasonable grounds for believing that applicants have been guilty of scheduled offence and are not entitled to bail as contemplated under section 5-A(8) of Suppression of Terrorist Activities Act, - 1975. In the instant case applicants are being tried for scheduled offences under Special Law and bail plea is to be considered in conjunction with section 8 of the said Act which shifts burden of proof on the accused." There is a second decision on this point reported in PLD 1995 Kar. 514 in which my Lords Mr. Justice Abdul Rahim Kazi and Mr. Justice Ali Muhammad Baloch, JJ. have been pleased to rule as under: - "In view of above discussion we are of the view that provision of section 8 of Suppression of Terrorist Activities (Special Courts) Act may be applicable wherein the burden shifts to the accused to prove his innocence as the accused had been named in the F.I.R. and identified on the very sport." At the time of my original order I have not cited these authorities which support my view on the point of burden of proof. Had I supported my order with these authorities there would have been no need to refer the matter to third Judge. These are two D.B. decisions of this Court which cannot be by-passed. These decisions have not been considered either in my order or in the orders of my learned brothers Mr. Justice Ghous Muhammad and Mr. Justice Nazim Hussain Siddiqui, JJ. As there is presumption under section 8 of the S.T.A. Act and a prirna facie case is made out. the bail application is rejected. However, in order to follow a uniform pattern of views I find it to be my duty to refer the matter to Honourable Chief Justice for Constitution of a Full Bench in order to resolve the controversy. Dr. Ghous Muhammad, J.--I have gone through the order proposed to be delivered by my learned brother Amanullah Abbasi, J. For reasons expressed hereafter I could not pursuade myself to agree with him. 2. While deciding Criminal Bail No. 1073 of 1995 there had been a difference of opinion between Amanullah Abbasi, J. and myself which was ultimately resolved in favour of the opinion expressed by me, by Nazim Hussain Siddiqui, J. vide his order dated 31.3.1996 on the following issues:- (1) Whether the quantum of sentejice.rejatabje fn^hejirnvicionc . the person is charged is at ail relevant to the grant or refusal of bail, where that person is charged under any of the scheduled offences under Suppression of Terrorist Activities (Special Courts) Act, 1975? (ii) Whether the provisos to section 497 of the Criminal Procedure Code are available to the person seeking bail if charged under any of the scheduled offences of the S.T. A.? 3. In the judgment delivered by my brother Amanullah Abbasi, J. in Criminal Bail No. 1073 of 1995 he had also touched upon the implication of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as "S.T.A."fat bail stage. My learned brother had taken the view that section 8 of the S.T. A. which raised a presumption of guilt had to be considered at the bail stage. Dealing with this aspect in the last paragraph of his order Amanullah Abbasi, J. had proposed to reject the bail. The implications of the findings in the last paragraph of the order of Amanullah Abbasi, J. (i.e. in Criminal Bail No. 1073 of 1995) are that once an accused is charged under the S.T.A. he is presumed to be guilty and that presumption would also operate at bail stage warranting rejection of the bail application. Such is also the approach of my learned brother in the present application wherein he has suggested that once the accused has been charged under the S.T.A. the operation of section 8 thereof would operate to raise a presumption of guilt against him and in consequence the very bail application would not be legally maintainable while there would be no need to touch upon the merits of the matter. 4. Before adverting to the present bail application I think it would be more pertinent to briefly recapitulate the outcome of Criminal Bail No. 1073 of 1995. In response to Amanullah Abbasi, J.'s order I have, inter alia, given a finding that section 8 of the S.T.A, had absolutely no bearing on the application of provisos 1 and 3 of section 497, Criminal Procedure Code in relation to bail under the S.T.A. In that respect I had been fortified by analysing three judgments of the Supreme Court where all the relevant provisions had been considered while these three judgments were:-- (a) Allied Bank of Pakistan v. Khalid F;jrooq 1991 SCMR 599; (b) State v. Qaim Ali Shah 1992 SCMR 2192; (c) Chaudhry Shujaat Hussain v. The State 1995 SCMR.1249. 5. Dealing further with the said section 8 of the S.T.A. I had come to the conclusion that the said provision had no bearing at bail stage, as I had observed:-
"The said provisions of burden of proof are only relevant for the purpose of main trial and are of no consequence at bail stage. At bail stage under these special laws I am of the view that the general principle of law as spelt out in Muhammad Iqbal v. The State PLD 1963 Lah. 279,- that at bail stage every accused of an offence is to be presumed to be not guilty, remains applicable. In coming to this conclusion I am fortified from the views expressed by a Division Bench of this Court in Suhrab v. The State 1995 MLD 607 for the proposition that under section 8 of the S.T.A. the burden of proof would not stand shifted to the accused till such time the prosecution first made out a reasonable case against the accused. This dicta has to be read in conjunction with the general principle of law regarding bails that an accused can only be refused bail when, inter alia, there is a reasonable, case against him. In other words even where the said section 8 i:' allowed to operate at bail stage the accused cannot be refused bail till ~ prosecution first comes out with a reasonable case against the accused, /bile such is also the position in general law regarding bail as just aforestated. Accordingly there can be no cavil with the proposition that the said section 8 would have no bearing at bail stage. /See para. 18 of my order in Criminal Bail No.1073 of 1995). 6. The learned referee Judge i.e. Nazim Hussain Siddiqui, J., vide his order, dated 31-3-1996 has found himself in complete agreement widi me, as he observed:-- "In case of scheduled offence if there are reasonable grounds to believe that the accused is guilty of a scheduled offence, he shall not be released on bail: Conversely, if there are reasonable grounds to believe that he is not guilty of the scheduled offence, he may be released on bail. The conclusion, therefore, would be mat even on merits bail may be granted to an accused involved in' scheduled offence, if there are reasonable grounds to believe that he has not committed the said offence. Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds. (See second last paragraph of order of Nazim Hussain Siddiqui, J., in Criminal Bail No. 1073 of 1995). 7. The final upshot is that the conflict stands resolved by a Full Bench. However, now my learned brother Amanullah Abbasi, J. in the present applications has not only taken the same approach that he had followed earlier (in Criminal Bail No. 1073 of 1995) but has also categorically expressed the view that since all the three Judges in the Full Bench in Criminal Bail No. 1073 of 1995 (including himself) had failed to notice the judgments of Division Benches reported as Javed Shaikh v. The State 1990 PCr.LJ 1689 (D.B.) and Kaleem v. The State PLD 1995 Kar. 514 (D.B.), the conclusion arrived at by the majority in Full Bench was incorrect since the said two decisions were in consonance with his'minority opinion. 8. However, now after having gone through the two decisions cited by my learned brother with utmost respect I am of the view that the said two decision -do not in any manner advance the views expressed by him in the instant applications or support his minority opinion in the earlier Bail Application No. 1073 of 1995. 9. In the first judgment cited by Amanullah Abbasi, J., i.e. Javed Shaikh v. The State, Sajjad Ali Shah, C.J. while writing for the Court, had although given the finding that section 8 of the S.T.A. is to be considered at bail stage, once there are reasonable grounds for believing the applicants to be guilty of a .scheduled offence the burden of proof would stand shifted upon the accused. Nowhere in that case has the .view been taken that once an accused is charged under the S.T.A. Section 8 would operate to place an irrebuttable presumption of guilt upon the accused while there would be no need to touch the merits of the case to assess as to whether the accused has discharged the shifted burden by disproving the prosecution's case or that the bail application would not be maintainable at all. In the second case of Kaleem v. The State the Court appreciated that once there were reasonable grounds the burden shifted upon the accused in view of section 8 of the S.T.A. Once again the said case can hardly be used as an authority for the proposition that in view of section 8 of the S.T.A. an accused charged thereunder will not be entitled to bail or that his bail application would not be maintainable or that it would not be essential to go into the merits of the matter. 10. In fact, both the decisions cited by my learned brother Amanullah ''Abbasi, J., i.e. Javed Shaikh v. The State and Kaleem v. The State as also Suhrab v. The State 1995 MLD 607 which was taken note of by me in my earlier judgment in Criminal Bail No. 1073 of 1995, propound the principle of law that once a person is charged under the S.T.A. the initial or prima facie burden of proof would rest with the prosecution to come up with sufficient material to make out a reasonable case against the accused. It is when this prima facie burden of proof is discharged by the prosecution that the burden of disproving the case of the prosecution shifts upon the accused under section 8 of the S.T.A. The Court while adjudicating upon die bail application has to assess as to whether the prosecution has discharged the prima facie burden and in case it has, it has to see as to whether the accused has discharged the shifted burden on him under section 8 by disproving the prosecution's case. In this manner if the prosecution has failed to make out a reasonable case or discharge the prima facie burden the accused shall be entitled to bail, while on the other hand where 'ttie prosecution makes out a reasonable case by proving a prima facie case and thereafter the accused in turn disproves the case of the prosecution thereby discharging the onus of proof shifted on him, once again he shall be entitled to bail. In the context of operation and shifting of burdens of proof I would refer to a recent judgment authored by me while sitting with Salahuddin Mirza, J. (as he then was) reported in Kamran Industries v. Collector of Customs PLD 1996 Kar. 68, wherein I had observed :-- "23. Both classical and contemporary treatises on the law of evidence (Cross on "Evidence" 1967, 3rd Edition, London, Butterworth, "A Practical Approach to Evidence" by Peter Murphy, 1988, 3rd Edition, London, Blackstone Press Ltd. and "The Modern Law of Evidence" by Adrian Keane 1985, 1st Edition, Oxford, Professional Books Ltd. talk in terms of two burdens of proof i.e., the "legal" or "persuasive" burden and the- "evidential" or "tactical" burden. The legal burden is defined as "the burden of proof or the probative burden and the ultimate burden" (s<^ Keane at p. 46). The same has also been defined as "the burden of persuading the tribunal or fact, to the required standard of proof and on the whole of the evidence, of the truth or sufficient probability of every essential fact in issue". (See Murphy at p. 78). On the other hand the "evidential" or "tactical" burden has been defined as "the quantum of evidence which would establish a prima facie case". (See Murphy at p.79). The legal burden is accordingly in our view the ultimate and final burden whereas the evidential burden requires only establishment of a prima facie case. According to the learned authors in every case there is a distinction between these two burdens. On a general principle both these burdens are cast upon the asserter of a proposition whereas in some cases the incidence of these two types of burdens may not coincide. According to Keane the determination of where the burden falls would depend upon substantive law as well as common sense (see pp.49 and 50). The mode of operation of the rules of evidence would be that the party upon whom the evidential burden is cast shall have to establish through prima facie evidence that he has an arguable case. In such an event it would then be obligatory upon the person bearing the legal burden to bring on record such material which would ultimately bring home his case. In circumstances where both the evidential and legal burdens are cast upon the same party the entire burden of proof shall be on that particular party and the distinction between legal and evidential burdens would not serve a fructuous purpose. However, it is in such cases where the incidence of the legal and evidential burdens are distinct i.e. the legal burden is placed on one party whereas the evidential burden lies on another, that the party on whom the evidential burden is placed has to satisfy the same by establishing a prima facie case. In such an eventuality the burden would shift to the other parry who shall have to bring forth the ultimate evidence to make out a case i.e. he would have to satisfy or discharge the legal burden. The concept of shifting of burdens of proof is not alien to even our jurisprudence. The shifting of burdens of proof have been discussed and approved in Mst. Safia Begum v. Mst. Malkani and another (PLD 1965 Lahore 576), Akber Ali v. Ehsan Elahi (PLD 1980 Lahore 145), Government of Pakistan v. Moulvi Ahmed Saeed (1983 CLC 414), Muhammad Sarwar v. Fazal Rehman (1982 CLC 1286) and Sardar Ghulam Nabi han v. Azad Government of State of Jammu and Kashmir (1984 CLC 325). In all these cases and in other cases that we have seen, although the fact of shifting of burdens of proof has been acknowledged, however, the reason as to why such a legal fiction takes place has not been discussed. We feel that it is due to operation of the principles of incidence of burdens of proof vis-a-vis "legal" and "evidential" burdens as discussed above that the process of shifting of burdens become possible. We have already cited the opinion of Adrian Keane and we hold that in order to determine as to which party bears the legal or evidential burden would depend on the terms of the statute, =_ the case-law oa the subject as also common sense and equity." (See paragraph 25 at p .98). ^ 11. In the context of burdens of proof I feel that the implication of the recent decision of the Supreme Court of Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249 is also of significance. The Honourable Supreme Court in that case by a majority allowed the accused bail on grounds that on the material produced by the prosecution there did not exist reasonable grounds to convict the accused with die alleged offences i.e. the prosecution had failed to discharge the prima facie onus of proof in view whereof the accused was entitled to bail. _ In this respect it would be pertinent to quote certain relevant passages from the judgment of Saieem Akhter, J. which are as follows:-- "In case of bail the Court is not required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are relevant grounds to believe that the accused has committed the crime. (See page 1266-1). The term 'reason to believe' can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Even the strongest suspicion cannot transform in "reason to believe'." (At p. 1268 K)." 12. A reading of the decision of the Supreme Court in Chaudhry Shujaat and decisions of the Division Benches of this Court in Javed Shaikh v. The State, Kalcem v. The State and Suhrab v. The State would amply reveal that they all propound the following propositions :-- (a) The prosecution should first have to make out a reasonable case against the accused charged under the Suppression of Terrorist Activities " (Special Courts) Act, 1975; (b) in case (a) above is achieved the prosecution would be taken to have discharged its prima facie burden of proof; (c) in case (a) is not achieved the accused shall be entitled to bail; (d) in case (a) is achieved, the burden of proof shall shift upon the accused to disprove the prosecution's case; (e) in case the accused is not able to discharge the onus of proof shifted upon him as stipulated in (d) above he shall not be entitled to bail; (0 in case the accused is able to discharge the shifted onus of proof as stated in (d) above he shall be entitled to bail; (g) the Court shall have to make a tentative assessment of the merits of the case by applying its mind in the steps indicated as above even at bail stage. 13. In light of the above discussion and the steps in which the Court has to apply its mind when granting bail in S.T.A. cases as detailed in paragraph 12 I above, which are squeezed out of the dicta of our superior Courts and the fundamental principles of the law of evidence, I may yet reiterate that I am unable to subscribe to the views of my learned brother Amanullah Abbasi, J., /C that when a person is charged under the S.T.A. he shall be presumed to be guilty "' and f his bail application shall not be maintainable in law and there would be no room to touch upon the merits of the matter. Such interpretation is respectfully , not borne out by the general principles of law of evidence and the case-law on the subject. 14. Before parting with the judgment I would venture to proceed a step further and reiterate the views expressed by me in Criminal Bail No. 1073 of 1995 that at bail stage section 8 of the S.T.A. has no bearing or consequence. This can be demonstrated by assuming the following situations :~ (a) Let us first assume that section 8 is allowed to operate at bail stage. In such a situation the accused cannot be refused bail till the prosecution first comes out with a reasonable case against the accused (see the steps dilated in para. 12 above). (b) Let us now assume that the said section ? is not allowed to operate at bail stage. Even then the accused cannot under the general principles of aw regarding bail be refused bail till the prosecution first establishes a reasonable case against him (see Government of Sindh v. Raeesa Farooq 1994 SCMR 1283). The above would amply demonstrate that the results in both situations (a) and JJ (b) are the same. In other words this confirms my analysis that operation of section 8 of the S.T.A. can have no bearing or the consequence at bail stage. 15. In view of the principles of law dilated above, the individual bail applications are being decided as under: (i) In Criminal Bail Application No. 1329 of 1995 (F.I.R. No.307/1995 under section 13-D of the Arms Ordinance registered at Police Station Gulzar-e- Hijri. C.I.A. acting on spy information A.S.-I. Muhammad Zaraghat Khan (of C.I.A.) Saddar, Karachi apprehended applicant/accused Abdul Khalil and recovered one unlicensed .30 bore pistol (Pak. made) from the fold of his Shalwar. In this case the complainant is also the investigation officer. (ii) Criminal Bail Application No. 1343 of 1995 was submitted on behalf of accused Farhan Ghaiyas who is involved in F.I.R. No.247/1995 of Police Station Jauharabad, Karachi for offence under section 13-D of Arms Ordinance. He was arrested by Inspector Haji Muhammad Akhtar I.C. S.I.C. Central Karachi as he was allegedly found in possession of an unlicensed .30 bore pistol and five live cartridges which were recovered from the fold of his Shalwar. In this case the learned defence counsel submitted that the Mashirs are police officials and it is a case of false implication and so far even the charge had not been framed. (iii) In Criminal Bail Application No.7 of .1996 (F?I.R. No. 131/1995 registered at Police Station Nabi Bux for the offence under section 13-D, Arms Ordinance), the applicant/accused Muhammad Kashif was arrested on 8-9-1995 by A.S. : I. Nisar Ahmed Qaim Khani of (C.I.A.) Garden, Karachi as allegedly the accused was holding one unlicensed pistol .30 bore mauser black colour, butt brown plastic, CAL 7.63 mm. .30 bore R5102 No. Punched Load 6, cartridges. He could not produce licence for the arms and ammunition therefore the case was registered against him A.S.-I. Nisar Ahmad Qaim Khani also investigated the matter. (iv) In Criminal Bail Application No. 12 of 1996 (F.I.A. No.360/1995 Police Station Liquatabad) the applicant/accused Mirza Asif Baig who was already in custody took the police party to Imran Video Shop at House No.l6/A Bandhani Colony, Liaquatabad and allegedly produced two bags containing: 1) one 7 mm rifle + 32 live rounds 2) .30 bore pistol empty magazine, 3) .30 bore pistol empty magazine 4) .30 bore pistol 4- empty magazine 5) .32 bore pistol with loaded magazine containing 4 live bullets and 4 spare bullets 6) 180 rounds of KK live in the presence of Mashirs who are police constables. The complainant in this case is Inspector Saadullah Khan Bungash posted at (C.I.A.) Jamshed Quarters, Karachi and he is also the Investiga:io,n Officer. (v) In Criminal Bail Application No. 13 of 1996 (F.I.R. No.361/1995 Police Station Jamshed Quarters (C.I.A.) under section 13-E of Arms Ordinance), while the applicant/accused Mirza Nasir Baig was in custody in a case under section 13-D, Arms Ordinance during interrogation allegedly gave clues and thereafter led the police party to Liaquatabad and produced a bag from plastic godown. In that bag there were one revolver of .32 bore with 6 bullets, one .30 bore pistol and empty magazine, one .22 bore pistol with 2 empty magazine and one .22 bore pistol with smpty magazine .32 bore pistol with empty magazine and 23 .12 bore cartridges. These unlicensed arms and ammunition were secured by Inspector Saadullah Khan Bungash of (C.I.A.) in the presence of Mashi r s who were police constables. He is also the complainant in the case. (vi) In Criminal Bail Application No.42 of 1996 (F.I.R. No.291/1995 registered at Police Station Gadap, District Malir for the offence under section 13-D of the Arms Ordinance, 1965, the police acted on spy information! The applicant was arrested by A.S.-I. Akhter Shah Bangish and allegedly one unlicensed TT pistol of .30 bore alongwith magazine containing 4 live bullets were secured from the fold of his Shalwar. According to the applicant he was involved in a false case as A.S.-I. Akhter Shah Bangish used to get his clothes stitched at the tailoring shop of the applicant free-of-cost and on 4-12-1995 when he was asked to make payment for the newly stitched clothes he got annoyed and ultimately this false case was registered. (vii) In Criminal Bail Application No. 115 of 1996 (F.I.R. No.265/95, Police Station Jamshed Quarters, Karachi East under section 13-D, Anns Ordinance, 1965), the applicant/accused was arrested by A.S.-I. All Asgbar Dehri of (C.I.A.) Jamshed Quarters, Karachi East, in the presence of police constables. He could not produce licence for a pistol No.CAL-763 (made in Pakistan), "Automatic" with loaded magazine having four rounds which were allegedly recovered by the police from the fold of his Shalwar. (viii)In Criminal Bail Application No.183 of 1996 (F.I.R. No.248/1995 under section 13-D, Anns Ordinance, 1965 registered at Police Station (C.I.A.) Civil Lines, Karachi), the police acted on spy information. The applicant/accused was apprehended by A.S.-I. Jairo Khan of (C.I.A.) Civil Lines, Karachi on 16-11-1995. Allegedly the applicant/accused could not produce licence for one .30 bore TT pistol loaded with 4 cartridges which were recovered from his possession, hi this case Inspector Jairo Khan-of (C.I.A.) Civil Lines, Karachi was the Investigation Officer. (ix) In Criminal Bail Application No. 187 of 1996 (F.I.R. No.363/1995 Police Station Buffer Zone, Karachi, Central), the applicant/accused was arrested on 5-11-1995 by Sub-Inspector Sharfuddin Soomro of (C.I.A.) Jamshed Quarters, Karachi hi the presence of Mashirs who are Police Officers. It is alleged that the applicant/accused was carrying one unlicensed pistol .30 bore No.3126-P.B.B. alongwith magazine and 6 cartridges which were recovered from the fold of his Shalwar. In this case the investigation was carried out by A.S.-I. Asghar Ali Dehri of C.I.A. Police Jamshed Quarters, Karachi. (x) In Criminal Bail Application No.245 of 1996 (F.I.R. No.5/1996 registered at Police Station Landhi, Karachi for the offence under section 13-D, Arms Ordinance), the applicant/accused was arrested by S.H.O. Inspector Mirza Abdul Majid of Police Station Landhi in the presence of two police officials and one unlicensed .30 bore pistol was recovered from the fold of the Shalwar of the .accused. . (i) In Criminal Bail Application No.283 of 1996 (F.I.R. No.230/95 Police Station Pak Colony, Karachi under section 13-D, Arms Ordinance) acting on spy information Sub-Inspector Shamsul Zaman of Police Station Pak Colony apprehended the applicant/accused and in the presence of police officials one unlicensed .32 bore pistol was recovered. (xii) In Criminal Bail Application No.293 of 1996 (F.I.R. No. 104/1995 Police Station Napier for the offence under section 13-D, Arms Ordinance), the applicant/accused was arrested by Sub-Inspector Nusrat Khan as allegedly one .30 bore unlicensed pistol was recovered from the possession of the accused. His bail application was rejected by Judge, Special Court No.IV of (S.T.A.), Karachi (Mr. Ali Akber M. Dodani) on 31-1-1996 on the ground that the F.I.R. was lodged promptly and the Mashirs of recovery were private persons. , (xiii)In Criminal Bail Application No.322 of 1996 (F.I.R. No.80/1995 Police Station Bin Qasim for the offence under section 13-D, Arms Ordinance). S.-I. Zaheer Haider apprehended the applicant/accused on 10-10-1995 who allegedly was carrying one unlicensed .30 bore pistol in the fold of his Shalwar. (xiv)In Criminal Bail Application No.417 of 1986 (F.I.R. No.306/1995 under section 13-D, Arms Ordinance and challaned by D.S.P. (C.I.A.), Karachi) the applicant/accused was arrested on 25-11-1995 by the police on spy information and one unlicensed .30 bore pistol (Pak.-made) alongwith 2 live cartridges were recovered in the presence of witnesses who are also police officials. . (xu)-In Criminal Application No.475 of 1995 (F.I.R. No. 143/1995 Police Station Saeedabad under section 13-D, Arms Ordinance) the applicant/accused was arrested by S.H.O. Hussain Ahmed Na-,ir Lodhi in the presence of police officials as the applicant/accused could not produce licence for one TT pistol .30 bore with,magazine (5 live cartridges). 16. I have heard all the learned counsel for the applicants/accused and Messrs Sarwar Khan and S. Zawar Hussain learned A.A.-Gs. for the State and also perused the record. 17. Bail applications of applicants/accused Messrs Abdul Khalil, Muhammad Kashif, Mirza Asif Baig, Mirza Nasir Baig, Khalid Pervaiz, Khuram Jarnal, Fayyaz Ahmed, Muhammad Imran, Nazir Ahmed and Muhammad Imran were rejected by Judge, Special Court No.Ill for (S.T.A.), Karachi (Mr. Rafique Ahmed Awan) mainly on the ground that the case had recently been challaned ahd still no charge had been framed in view whereof the bail applications were dismissed as premature. 18. Bail applications of applicants/accused Messrs Farhan Ghayaz, Arshad Ali, Habibur Rehman and Shahab Ali were rejected by Judge, Special Court No.I (S.T.A.), Karachi (Mr. Abdul Majid Bhatti) on the ground that the applicant/accused failed to give any reasonable or plausible ground/explanation that they had not committed the alleged offence. 19. In Bail Application No.283 of 1996 the Judge, Special Court No.I for (S.T.A.), Karachi (Mr. Abdul Majid Bhatti) rejected the bail application and passed the following order:- "While going through the bail application, it has been observed by me that this bail application is not maintainable as is moved under section 497, Cr.P.C. which is not applicable here in the Courts of S.T.A. There is a provision under S.T.A. Act for bail application. In the light of above observation, this bail application js dismissed." 20. The learned defence counsel contended that- (a) while seeking recoveries from the accused no private person was associated although public witnesses were available. Therefore, compliance of section 103, Cr.P.C. was not made; (b) it was vehemently urged that members of the (C.I. A.) staff irrespective of the rank and status can investigat cases only if they have been specifically entrusted such a task by an officer incharge of the police station whom they are subordinate and accordingly the investigation of cases conducted by (C.I,A.) Staff and me Officer Incharge of the (C.I.A.) Staff on their own was illegal as was held by a Division Bench in Iftikhar Ahmed alias Dani v. The State PLD 1995 Lah. 600; (c) the complainant and the Investigating Officer were the same persons which was also illegal; (d) the alleged recoveries do not come within clause (c) to the Schedule of the S.T.A. Act, 1975. 21. The learned State Counsel while opposing the bail applications submitted that the applicants/accused were caught red-handed with unlicensed weapons and the police had no motive to implicate them in false cases. It was also submitted by them that section 190, Cr.P.C. was not taken into consideration in the judgment reported as Iffikhar Ahmed alias Dani v. The State PLD 1995 Lah. 600. 22 On a careful examination I find that the reason assigned for rejection of bail by Mr. Rafique Awan (see para. 17 above), the S.T.A Judge, that bail applications were premature due to non-framing of the charge or non-submission of the challan is totally perverse. Such is not a requirement of law to await the challan/charge before deciding bail applications. A bail application can be 1 moved at any time after registration of the case. If there is delay in framing the charge or submission of the challan the accused cannot be penalized by refusing to adjudicate upon his bail application. If the prosecution has registered a case it should have ample evidence to move expeditiously to submit the challan as per the requirements of law. The stand taken by Mr. Majid Ahmed Bhatti the S.T.A. Judge, in the set of cases laid down in para. 18 above is equally defective and absurd. He was first under the obligation to assess whether prosecution had made out a prima facie/reasonable case against the accused before assuming the burden to have so shifted upon the accused to disprove the prosecution's case. Likewise the approach taken by the learned Judge in Criminal Bail No.283 of. 1996 (see para. 19 above) that the section, number i.e. section 497, Cr.P.C. has been incorrectly stated in the bail application warranting its dismissal is completely bereft of any legs to stand. It is settled law that mere mention of a section number of statute incorrectly shall not change the nature and character of the legal rights and proceedings. 23. On merits and by way of tentative assessment I am of the view that the prosecution has not been able to make out a reasonable case'or discharge the V prima facie burden placed upon it, while the matter warrant further enquiry and grant bail due to the following reasons:- (a) recoveries have not been made in the presence of independent Mashirs dissociated with or not being members of the police/C.I.A. and no explanation or reasoning has been brought on record for nonavailablability or non-utilization of such independent witnesses/ Mashirs; (b) involvement of the C.I. A. officers in the investigation without specific authorization by the Station House Officers in this regard; (c) delay in the submission of the challan; (d) clause (c) to the Schedule of the S.T.A. only brings within its mischief a 'cannon, grenade, bomb, rocket or a light or heavy automatic or semi-automatic weapon such as klashnikov, a G-IH rifle or any other type of assault rifle'. Nothing has been brought on record by the, prosecution to establish that the weapons recovered fall within this class .of arms spelt out in the said clause (c). 24. I according admit all the applicants/accused to bail subject to furnishing of surety in the sum of Rs. 1,00,000 (Rupees one lac) each and P.R. G Bonds each in the like amount to the satisfaction of the learned trial Court. Nazim Hussain Siddiqui, J.--This order will dispose of Bail Applications Nos. (1) 245 of 1996 (2) 1329 of 1995 (3) 1343 of 1995 (4) 7 of 1996(5) 283 of 1996 (6) 115 of 1996 (7) 187 of 1996 (8) 42 of 1996 (9) 12 of 1996 (10) 13 o 1996 (11) 322 of 1996 (12) 417 of 1996 (13) 292 of 19% (14) 475 of 1996 and (15) 183 of 1996. These applications were heard by a learned Division Bench of this Court comprising Amanullah Abbasi, J. and Dr. Ghous Muhammad, J. and their Lordships have taken different views in these matters. Amanullah Abbasi, J. refused bail to all the applicants of these cases, while Dr. Ghous Muhammad, J. has granted bail to all of them. Honourable Chief Justice by order, dated 30th May, 1996 had directed the office to place these matters before this Full Bench for resolving the above controversy. 2. Necessary facts of these applications have been mentioned in the order of Dr. Ghous Muhammad, J. and the same will not be repeated here unless absolutely necessary. 3. Earlier also Amanullah Abbasi, J. and Dr. Ghous Muhammad, J. had taken different views in a similar application and the Honourable Chief Justice by order, dated 15-2-1996 had directed the office to pl?,ce said Bail Application No. viz. 1073 of 1995 before me as a "Third Judge" for its disposal, which was decided accordingly. 4. In Criminal Bail Application No. 1073 of 1995 Amanullah Abbasi, J. while rejecting the bail application of the applicant reached the conclusion that section 5-A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, hereinafter referred to as "S.T.A. Act", though not a complete code, but provides fetters on the powers of Special Court to grant bail. He also held that the principles enunciated in section 497, Cr.P.C. can be pressed into service for grant of bail, and that the provisions of section 5-A(8) are to be read alongwith section 8 and that "a part of provision of section 497 being in conflict with the provisions of section 5-A(8) the bail could only be granted under provisions of section 5-A(8) ibid. He also held that in view of section 8 of the S.T.A. Act the applicant was to be presumed to have committed the offence. Accordingly, he had rejected the bail application. 5. Dr. Ghbtts Muhammad, J. in Criminal Bail Application No. 1073 of 1995 referred to three cases of the Supreme Court namely (1) Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; (2) State v. Qaim Ali Shah 1992 SCMR 2192 and (3) Chaudhry Shujaat Hussain v. The State 1995 SCMR 1249. Having taken into consideration the principles of law enunciated in these cases, he reached the conclusion that the case of the applicant was clearly covered by third proviso of subsection (1) of section 497, Cr.P.C.; as such, he had granted bail to the applicant of said case. 6. Since in these applications the main point is to determine the scope of section 5-A(8) and section 8 of the S.T.A. Act, it would be advantageous to reproduce these sections below : "Section 5-A(8).~- An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be-so released unless the prosecution has been given notice to show cause why he should not be so released, Section 8. Burden of proof. Where any person accused of having committed a scheduled offence is found to be in possession of or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence." 7. In Criminal Bail Application No. 1073 of 1995, after having taken into consideration all the contentions raised on behalf of the parties, I have observed as follows:-- "In case of scheduled offence if there are reasonable grounds to believe that the accused is guilty of a scheduled offence, he shall not be released on bail. Conversely, if there are reasonable grounds to believe that he is not guilty of the scheduled offence, he may be released on bail. The conclusion, therefore, would be that even on merits bail may be granted to an accused involved in scheduled offence, if there are reasonable grounds to believe that he has not committed the said offence. Mere accusation would not be enough to refuse bail to an accused unless such accusation is accompanied by material constituting reasonable grounds." 8. After the decision of Criminal Bail Application No. 1073 of 1995 by the Full Bench, Amanullah Abbasi, J. in these matters observed that he was still of the view that the provisions of section 5-A(8) were to be read in conjunction with section 8 and in support of this view referred to the cases (1) Javed Shaikh and 3 others v. The State 1990 PCr.LJ 1689 and (2) Kaleem v. The State PLD 1995 Kar. 514. These two decisions were not referred by him in his order when he had disposed of Criminal Bail Application No. 1073 of 1995. He held that above two decisions could not be bypassed and since these decisions were not referred to in Criminal Bail Application No. 1073 of 1995, he deemed it proper to refer these matters again to the Honourable Chief Justice for constituting a Full Bench in order to resolve the controversy. -'' 9. In the case of Javed Shaikh four applicants had applied for bail, who were facing trial for the offence punishable under sections 392, 397, P.P.C. and 17(3) of Hudood Ordinance before the Special Court at Hyderabad. Bail was refused to them mainly on the ground that they were fully described in the F.I.R. as well as in 161, Cr.P.C. statements of the prosecution witnesses. Further, they were correctly picked up in the identification test and recoveries of incriminating articles were effected from them. Under these circumstances, bail was refused to them with an observation "bail plea was to be considered in connection with section 8 which shifts burden of proof on the accused." 10. It is noted the material collected by the prosecution against them was ufficient to hold that there were reasonable grounds to believe that they were guilty of the scheduled offences, as such, were not entitled to bail as contemplated under section 5-A(8) and as an additional ground it was noted that bail plea was to be considered in conjunction with section 8. 11. In the case of Kaleem settled principle of law was reiterated that, at the bail stage, only tentative assessment of the eviden e was permissible. In this case dflso, he bail was refused to the applicant mainly on the ground of material collected against the applicant and as an additional ground it was observed "that the provisions of said section 8 may be applicable wherein the burden shifts to the accused to prove his innocence". Thus, in this case also bail was not refused to the. applicant on the sole question of applicability of said section 8 but on the materjal collected by the prosecution during the investigation. 12. It is contended on behalf of the applicants that it is not the intention of the Legislature to refuse bail, under all circumstances, to the persons involved in schedule offences of the S.T.A. Act. Elaborating it, learned counsel traced the history of the Act and submitted that at one stage the Act was amended by Ordinance No XXII of 1992, whereby section 5-A was amended and subsection (8) was substituted, which provided that notwithstanding anything contained in sections 439, 491, 496, 497, 498, 498-A and 561-A, Cr.P.C. no Court other than the Special Court, had the power or jurisdiction to grant bail to any accused person. Thereafter, section 5-A was again amended by Act No. I of 1993 by virtue of which subsection (8), as quoted earlier, was substituted. Learned counsel argued that at the time the Ordinance No. XXII of 1992 was in force no Court had the power or jurisdiction to grant bail, other than the Special Court, but after the amendment by Act of 1993, the bail to the accused is not to be granted, only if there are reasonable grounds for believing that he has been guilty of a scheduled offence, meaning thereby if it is shown that reasonable grounds are not there, bail can be granted both by the trial Court as well as by this Court. Learned counsel also argued that the object of the S.T.A. Act is to suppress the act of sabotage, subversion, and terrorism and in order to achieve above objects S.T.A Act was enacted, which contained the provisions of Cr.P.C ; P.P.C. and Evidence Act. It has also been contended that section 5-A(8) is a provision relating to the grant of refusal off the bail, while section 8 deals with burden of proof, which is a rule of evidence. According to the » learned counsel, both these sections are distinct and are to apply at different stages 13. The S.T.A. Act does not provide any particular section for the grant of bail. On the contrary, the section 5-A(8) says "an accused shall not be released on bail" as stated therein. The Special Court is to follow the procedure as laid down in Criminal Procedure, subject to the restriction imposed by the S.T.A. Act. It is clear that if there are reasonable grounds to believe that the accused is not guilty of the scheduled offence he may be released on bail 14. Section 5-A(8) is an independent section and deals with different subject than section 8. The former is ahout the principles concerning the bail, while the latter speaks about burden of proof, which is a rule of evidence. Bail is to be granted or refused on the ground mentioned in section 497, Cr.P.C. read with section 5-A(8), and not on the principle of evidence. Op this point, we refer to the case reported as Emperor v. Muhammad Panah AIR 1934 Sindh 131 wherein the above principle was enunciated in the following terms:- "Now the learned Judge has here slightly gone beyond the language of the law. The question of bail arises at a time when the opportunity for recording of evidence has not yet occurred. Section 497 does not, therefore, speak of evidence. It speaks of reasonable grounds." 15. The main point to be considered in these applications is whether section 8 is to be read at the stage of hearing of bail application or when the evidence is recorded. 16. Above section shifts the burden of proof upon the accused unless he could show that he had not committed said offence. There are various rules of 'burden of proof and section 8 contains only one of them. The general rule is that burden of proof rests on the person who substantially sserts the affirmative of the issue and not upon the person who denies it. The rules of burden of proof have been enunciated in Articles Nos. 117 to 129 of the Qanun-e-Shahadat, 1984. Section 8 speaks about presumption that it shall be presumed that accused has committed the offence, unless he can prove otherwise. There are two clauses of presumption (1) Presumption of Fact and (2) Presumption of Law. The latter is generally divided into a rebuttable presumption of law and (b) irrebutable. The presumption, which is mentioned in section 8, is presumption of fact and is always rebuttable. 17. Mr. Sarwar Khan, learned Additional Advocate-General strongly opposed these applications and submitted that the weapons recovered from possession of these applicants were semi-automatic, automatic pistols and TT pistol, and in view of section 5-A(8) and section 8 these applicants are not entitled to bail as there are reasonable grounds to believe that they have been guilty of the scheduled offences. 18. The contention of learned A.A.G. has no force. Initial burden of proof always remains on the prosecution. The burden of proof is shifted upon the accused only when the prosecution discharges its initial burden. For example, if it is said that recovery was effected in presence of witnesses, first . it is to be established that so had actually happened. 19. All the principles of burden of proof relating to the presumption of fact are applicable at the stage the evidence is recorded. It cannot be conceived that one of its principle would apply at bail stage and the rest at the time of recording of evidence. The burden of proof if a fluctuating process and it shifts from one party to other party, as the circumstances so warrant. If these principles operate at the bail stage no accused would be entitled to bail and he would have to wait till the evidence was recorded. Article 129 of the Qanun-e-Shahadat, 1984 speaks about presumptions and section 497 of Cr.P.C. lays down the principles for the grant or refusal of bail and no case was cited to show that ever the above provisions were read in conjunction at the bail stage. It is noted the sections 156(2) and section 187 of the Customs Act, 1969 place the burden of proof upon the accused, but before such presumption could be raised that the accused had committed an act of smuggling, the prosecution was required to prove that the goods specified in section 2(s) or in a notification issued under that section was seized from the accused, such seizure was made in accordance with the provisions of said Act, the seizure was in the reasonable belief that an acute to defraud the Government of the duty payable on such goods was committed or there was intent to commit such act. Therefore, to find out the truth in the allegations the Court always kept the prosecution evidence and defence plea in juxtaposition and determined if any offence was committed and this was done after the evidence was recorded. At bail stage in such cases the prosecution evidence has been assessed tentatively. 20. As regards the observations in the cases of Javed Shaikh and Kaleem referred to above, wherein it was observed that bail plea was to be considered in conjunction with section 8, it is noted that those observations are in the nature of obiter dicta and in these two cases the scope of section 8 with reference to the other provisions of the S.T.A. Act, particularly as envisaged under section 5-A(8) was never examined nor said point was raised in those cases. In the case reported as Messrs Amar North Om Prakash v. State of Punjab and others (1985) 1 Supreme Court Cases 345 at page 347, the following has been laid down:- "A case is only an authority for what it actually decides and not for what may seem to follow logically from it. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be iaterpreted as statutes." 21. We are of the view that section 8 of the Act is not to be considered at the bail stage. 22. Besides as above, in the case reported as State v. Qaim Alt Shah 1992 SCMR 1292 it has been held by the Full Bench of the Supreme Court ;hat section 497(1), Cr.P.C. with its provisos 1 and 3 can be pressed into iervice by the High Court and the Special Court during the pendency of a ial of an accused before the Special Court and that the provisions of section 5-AC8) does not completely oust the applicability of section 497, Cr.P.C. in respect of bail at trial stage. Also it was observed that section 5-A(8) is not provision relating to the grant of bail, but a provision detailing circumstances prohibiting the grant of bail. 23. If Section 8 is applied at the bail stage, it would nullify the dictum of law laid down by the Supreme Court in the case of Qaim Ali Shah. 24. A close scrutiny of the S.T.A. Act reveals that this Act was enacted for the purposes of suppressing acts of sabotage, subversions, and terrorism and to provide for speedy trial of offence committed in furtherance of or in connection with such acts. Section 5 of the Act provides that the .Police Officer shall submit the report to S.T.A. Court within fourteen days in respect of a case triable by such Court. The Special Court may, however, extend the time if good reason is shown for it. Any act of the Police Officer causing delay is to be deemed wilful disobedience of the order of the Special Court. S.T.A. Court may directly take cognizance of a case 'triable by such Court without the case being sent to it under section 190 of the Code. The Special Court, under section 5-A shall proceed with the trial from day to day and shall decide the case speedily. Further a Special Court shall not adjourn any trial for any purpose, unless such adjournment is in its opinion, necessary in the interest of justice and no adjournment shall be granted for more than two days. Thus, it is evident from above provisions that the main bject of this Act is to decide the cases speedily and not to keep a person in custody without any just cause for indefinite period. This object would stand frustrate if above provisions are not followed strictly. In case of noncompliance of the provisions of S.T.A. Act, relating to the trial without any justification, it would be deemed to be a reasonable ground for believing that the accused is not guilty of a scheduled offence. 25. Recently a Full Bench of the Honourable Supreme Court in Criminal Petition No. 140 of 1995 in a case, which was registered under section 13-D of the Arms Ordinance, 1965 and was pending before the Special Court, has granted bail with the following observations:- "We have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prime facie, falls under section 13-D of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven years. In either case, the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. We would accordingly allow him bail and direct that he should furnish bail in the sum of Rs. 50,000 with one surety to the satisfaction of the trial Court." 26. It is pertinent to note that Amanullah Abbasi, J. relying upon the aforesaid judgment of the Supreme Court, and speaking on behalf of the Court, granted bail in Criminal Bail Application No. 1276 of 1995 (Maqbool Ahmed v. The State), although in the cases in question involving the similar points he took a different view. 27. We agree with the conclusion drawn by Dr. Ghous Muhammad, J. in his order dated 15.4.1996 granting bails to the applicants but would like to add that, in his order at page 24(d) he observed that clause (c) to the Schedule of ST. A. only brings within its mischief "a cannon, grenade, bomb, rocket, or a light or heavy automatic or semi-automatic weapons such as klashnikov, a G-III rifle or any other type of assault rifle". Further he observed that nothing was brought on record that the weapons recovered in these cases fall within this clause of Arms spelt out in clause (c) of the Schedule of S.T.A. Act. In these cases mostly the weapons allegedly recovered from these applicants were semi-autmatic or automatic pistols and those commonly known as TT pistols. It is pointed here that Ordinance No. XL of 1995 was promulgated on 9th April, 1995, whereby the Suppression of Terrorist Activities (Special Court) Ordinance, 1975 was amended and by virtue of this amendment in the Schedule of the S.T.A. Act, in clause (c) words "semi-automatic or automatic pistols or TT pistols were inserted." Several Ordinances in this regard have been issued and the last one being the Ordinance No. XII of 1996 was issued on 28th February, 1996. Thus, semi-automatic pistols and TT pistols are covered by the S.T.A. Act. 28. In consequence, we hold that, the applicants of these matters are entitled to bail. Accordingly, bail is granted to them in terms of the order of Dr. Ghous Muhammad, J. mentioned earlier. Rasheed Ahmed Razvi, J.--I fully concur with the reasons and conclusion proposed by my learned brother Nazim Hussain Siddiquf, J. in his draft order. But, I would like to supplement my views in addition to what has been elaborately discussed in the said order. It was strenuously argued from the appellant's side that even at the final stage of a case, the burden is still upon the prosecution to prove its case beyond reasonable doubt. In this connection, following case-law was cited where the Honourable Supreme Court and the High Courts, despite provision of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 held inter alia, that the burden to bring home guilt of the accused is still lies upon the prosecution:- (i) The State v.Kazi Pervaiz Iqbal etc. PLD 1978 SC 64; (ii) Ghazi and 2 others v. The State PLJ 1978. Cr. Cases 557; (hi) Mishal Khan v. The Stage 1983 PCr.LJ 1628; (iv) ManzoorAli v. The State 1995 PCr.LJ 1394; (v) Suhrab v. The State 1995 MLD 607; (vi) Khawar and others v. The State PLD 1995 Kar. 105; (vii) Muhammad As lam u. The Sate 1995 PCr.LJ 293; (viii)Muhammad Jaffar and another v. The State 1995 PCr.LJ 2052; and (ix) The State v. Hakim Ali and 3 others 1996 PCr.LJ 231. It was held by a Full Bench of Supreme Court in the case The State v. Kazi Pervaiz Iqbal (supra) that section 8 of (S.T.A.) Act, 1975 has to be construed strictly because it is a penal provision which reverses the most cherished principle of jurisprudence namely, that the burden of proving the guilt of the accused is on the prosecution. It was further held that section 8 is attracted only when the prosecution proves that the accused was in possession of articles and the things specified in the schedule. This view has been consistently followed, thereafter.by this Court. (For any reference, see the cases cited at serial numbers (iii), (vi), (viii) and (ix) above). " The perusal of section 8 indicates that once an accused is "found" to have in his possession or under his control any incriminating article or thing or if he is apprehended in such circumstances which lead to raise a reasonable suspicion that he has committed such offence, only then he shall be presumed to have committed the offences unless proved contrary by him. The term "reasonable suspicion" and the question of presumption was recently considered in the case Government of Sindh and 4 others v. Raisa Farooq and 5 others 1994 SCMR 1283 by the Honourable Supreme Court. In this case bail was granted to the respondents by a Division Bench of this Court during pendency of a Constitutional petition filed under Article 199 of the Constitution, 1973. Against the said order. Provincial Government went in appeal which was dismissed by the Supreme Court. In this reported case, the respondents were allegedly involved in cases under sections 302/34, P.P.C. and 13-E of Arms Ordinance, 1965 and were awaiting trial before the Special Courts. Following is the relevant portion of the said order:- 11. The other aspect of this case is that respondents Nos.3 to 6 were released on furnishing bail bonds. This has also been challenged by the appellant. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable ground exists or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable ground as distinguished from mere allegation of suspicion. As observed in Ch. Abdul Malik v. The State PLD 1968 SC 349, however, strong the suspicion may be. it would not take the place of reasonable ground. The words reasonable grounds' are words of higher import and significance than the words 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judge came to the conclusion that the action being mala fide and also the material documents not having produced, no reasonable ground exists to believe that the accused had committed the crime." (Underlining is mine). I may add here, that even where the Law creates a presumption in favour of the prosecution and shifts the burden of proof on the accused, such burden is never as heavy as the prosecution's burden to establish the charge beyond reasonable doubt. It has been consistently held by our Courts, ever since the Federal Court judgment in Safdar Ali's case PLD 1955 FC 93 that the prosecution is never relieved of the duty to prove its case beyond doubt and when the burden is cast on the defence to prove special circumstances, this burden is sufficiently discharged by showing a reasonable possibility of the defence version being true. Applying these standards to section -6, it would appear that the burden of proof would shift upon the accused only if all necessary ingredients to attract the presumption of guilt are established by the prosecution beyond doubt and only thereafter the defence would only be required to show that its plea is reasonably possible. It is, therefore, quite clear that section 8 would apply only at the trial stage and the presumption of guilt can only be inferred after it is proved that the accused is "found" in possession of some incriminating articles etc. Before such stage this provision does not apply. In the end, I would like to observe that the "right to innocence" is wellestablisheg and the most cherished principle of law. This right is embodied in the principle of fair trial and right to proper defence which are enshrined in the golden rule of natural justice. The right to fair trial and the right to presume an accused person innocent until his guilt is proved, have now become part of many : international instruments as well as pan of law in almost all the developed countries. We cannot close our eyes from the development of law taking place in other countries. We have to interpret law, particularly in the case of penal statute, keeping in view our Constitutional provisions, Islamic Injunctions and the grund norms of human rights. I am fortified in my view by the case of Honourable Supreme Court in The State v. Syed Qaim All Shah 1992 SCMR 2192 wherein Mr. Justice Ajmal Mian, laid down the following principles for interpreting a penal statute. This was a case involving interpretation of several provisions of (S.T.A.) Act, 1975:-- " We should not be oblivious of thefeet that our Constitution guarantees fundamental rights and Article 2A thereof enshrines Islamic mandates and we are living in an era in which the enforcement of the human rights has become an international issue. So the Courts while construing the provisions of statutes should make efforts that the interpretation of the relevant provisions of the relevant statutes should be in consonance with the above Articles of the Constitution and the grand norms of human rights. The view which I am inclined to take seems to be in accord with the above approach." The right to innocence and the right to fair trial have been guaranteed in various international charters and covenants. In this regard reference can be made to Article XXVI of the "American Declaration of the Rights and Duties of Man" adopted by the Organisation of American States. Article 11(1) of the "Universal Declaration of Human Rights" adopted by the General Assembly of U.N.O. in 1948. Article 14(2) of the "International Covenant on Civil and Political Rights" again adopted by the General Assembly of the United Nations in the year 1966. In the subsequent sub-clauses even (7) minimum guarantees are prescribed for the determination of any criminal charge including the rights for preparation of defence, engaging and communicating with the counsel of his choice and the rights to examine, cross-examine a witness (the right to fair trial). In my humble view all these International Instruments are of higher persuasive value. In order to maintain consistency with these principles of Human Rights, the law laid down by the Honourable Supreme Court in the cases cited by my learned brothers Nazim Hussain Siddiqui and Dr. Ghous Muhammad, JJ. as well as in the case ofKazi Pervez Iqbal PLD 1978 SC 64 and the case of Government of Sindh and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283,1 am inclined to hold that the provision of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 is not applicable at the bail stage. As a result of the above discussion, I agree as proposed in the draft order, that the applicants are entitled to bail in the same terms as proposed. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 923 Present: abdul hafeez cheema, J. JALEEL AHMAD alias MUHAMMAD AJMAL-Petitioner versus THE STATE-Respondent Crl . Miscellaneous No. 918/B of 1995/BWP, decided on 11.3.1996. Criminal Procedure Code 1898 (V of 1898) S. 497~Offence of Zina (Enforcement of Hudood ) Ordinance (VII of 1979), S. 10(3)-Bail, grant of-Both the eye-witnesses named in the F.I.R. had sworn affidavits that they had not seen the occurrence and they themselves had put in appearance before the Sessions Court with such claim-Accused was in judicial lock-up for the last about four months and his trial having not yet commenced, no sufficient ground was available for keeping him in jail for indefinite period-Accused was admitted to bail in circumstances. [P. 928] A Shamshair Iqbal Chughtai , Advocate for Petitioner. M.A. Hameed , Advocate for the State. Date of hearing: 11.3.1996 order The petitioner is involved in case F.I.R. No. 224 under section 10(3) of the Offence of Zina (Enforcement of Hudood ) Ordinance (VII of 1979), registered at Police Station Pacca Laran , Tehsil Liaquatpur , District Rahimyar Khan, on 22.10.1995. at the instance ofMst . Sughran daughter of Wahid Bakhsh . 2. It was alleged by the complainant that she was present in the field alongwith her younger brother when the petitioner caught hold her, put her down and committed Zina with her. On her raising hue and cry, Elahi Bakhsh and Saeed Ahmad P.Ws . were attracted to the spot. The petitioner ran away on seeing the witnesses. 3. It is submitted by the learned counsel for the petitioner that the case is absolutely false and is the outcome of party faction in the village; the two witnesses mentioned in the F.I.R. had appeared before the learned Additional Sessions Judge, Liaquatpur and had placed their affidavits on the record which clearly negated the occurrence; that there is no reasonable ground showing that the petitioner had committed the offence. 4. Learned State Counsel, however, argued that although the P Ws have not supported the prosecution and have sworn their affidavits, nevertheless, the value and worth of these affidavits will be seen during the trial. 5 Arguments have been heard and record perused. Both the eye-witnesses named in the F.I.R. have sworn affidavits that they had not seen the occurrence and they themselves had put in appearance before the learned Additional Sessions Judge with this claim. The petitioner is in judicial lock-up since 16 11.1995 and the trial has not yet commenced. In these circumstances, there seems to be no sufficient ground for keeping him in jail for indefinite period. He is, therefore, admitted to bail in the sum of Rs . 50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Liaquatpur . (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Quetta) 929 Present: AMIR-UL-MULK MENGAL AND JAVED IQBAL, JJ. MUHAMMAD IBRHAIM-Petitioner versus Soofi ABDUL RAZZAQ and another-Respondent Criminal Revision No. 28 of 1995, decided on 1.8.1996. (i) Hadd and Tazir-- - A fundamental principle of Muslim Law is that in order to inflict Hadd and Tazir evidence shall be proved beyond any reasonable doubt-It is therefore a fundamental rule of Islam that doubt cannot be the basis of punishment but provides a ground to pardon. [Pp. 940 & 941] C (ii) Offence of Zina (Enforcement of Hudood) Ordinance 1979-- -S. 10(2)-Male and female having lived in the same room must have committed zina, held was not enough for conviction--There must be some categorical assertion by witness showing existing of illicit relations in order to establish charge of zina [P. 940] A (iii) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- -S. 10 (2)-Zina-Case of-Witness-Condictions for-In case of zina at least four eye-witnesses are required to depose before court that they have seen accused in actual act of intercourse-Those witnesses should be of unimpeachable character and have to state that they have seen both persons in the very act of intercourse-These hard rules of evidence themselves indicate that purpose of law is not to fix scaffold in crossings to flog people every day but to punish only those who, despite preventive methods adopted by Islam, commit zina in such wanton way that four or more persons can see them. [P. 940] B (iv) Pakistan Penal Code, 1860 (Act XLV of 1860)-- -S. 302(c)-Offender has a right of self defence which includes right to defend honour of wife and such a case under and section 302, clause (c) of P.P.C. [P. 940] D M. Zafar, for Petition. Malik Sikandar. for Respondent No. 1. Yaqoob Khan Yousufzai, A.G. for the State. Date of hearing: 19.10.1995. judgment Javed Iqbal, J.--This is a criminal revision preferred under section 435, Cr.P.C. on behalf Muhammad Ibrahim against judgment, dated 12-3-1996 passed by Additional Sessions Judge, Pishin at Quetta in Sessions Case No.68 of 1994 convicting the accused/respondent namely Soofi Abdul Razzaq under section 302(c), P.P.C. and awarded him sentence of three (3) years' R.I. and fine of Rs.2,000 or in default whereof to undergo one month's S.I. 2. Briefly stated the facts of the case are that F.I.R. was got lodged by Ikrar Khan, S.-I., Police Station Pishin alleging therein that one Abdul Razzaq has killed his wife Mst. Nek Bibi by means of firing. A case accordingly was registered under section 302, P.P.C. and after usual investigation accused was sent for trial. In support of accusation the prosecution examined eight witnesses namely P.W.I Sahib Jan, P.W.2 Toor Jan, P.W.3 Juma, P.W.4 Dr. Arbab Abcul Wahid, P.W.5 Amanullah H.C., P.W.6 Syed Abdul Jabbar, P.W.7 Muhammad Iqbal and P.W.8 Ikrar Khan, Investigating Officer. Accused/ respondent Soofi Abdul Razzaq pleaded guilty to the charge and also admitted nis offence in his statement got recorded under section 340(2), Cr.P.C. and stated that on the day of incident when he arrived after offering Zohar prayer he saw his wife Mst. Nek Bibi with Ahmed Jan in an objectionable position and killed his wife by means of firing while Ahmed Jan managed his escape and he followed him and also fired upon and resultantly he was injured. On conclusion of trial the learned trial Court convicted and sentenced under section 302(c), P.P.C. for three years' R.I. and fine of Rs.2,000 and in case of default further to undergo one month's S.I. Being aggrieved this revision petition has been filed. 3. It is mainly contended by Mr. M. Zafar, Advocate that the learned trial Court has failed to exercise its jurisdiction in accordance with law and has fallen in error as conviction should have been awarded under section 302(a), P.P.C. as the offence committed was Qatl-i-Amd. It is further argued that the conviction awarded by learned trial Court under section 302(c), P.P.C. is conjectural as no evidence has come on record whereby conviction under section 302, P.P.C. could have been awarded. 4. Malik Sikandar Khan, Advocate appeared on behalf of deceased and strenuously controverted the position as explained by Mr. M. Zafar, Advocate on behalf of complainant by arguing that no conviction could have been awarded even under section 302(c), P.P.C. In the light of Islamic Lflw as in such-like cases the husband has an absolute right to kill his wife. In this regard the Qura'nic version as mentioned in Sura Nisa (V: 34), Sura Bani Israil (V:33), Sura Maida (V:2) and Sura Baqara (V:173) were referred in order to substantiate his abovementioned contention. Besides that he has also relied on the following books: (1) Islamic Qanoon Fojdari. (2) Kitab-ul-Ikhtiar. 5. Learned Advocate-General appeared on behalf of State and supported the judgment and pointed out that a lenient view has already been taken by learned trial Court. He, however, did not agree with the main contention as adduced on behalf of accused Abdul Razzaq that a husband has an absolute right to kill his wife on seeing her in objectionable position and there should be some proof for such allegation and circumstances should justify that timely action was taken by the husband as no other option was available in the peculiar prevailing circumstances at the time of commission of alleged offence. He further ~"~ contended that unconditional authority cannot be conferred upon the husband to kill his wife and even under Islamic Law no such authority has been conferred upon and it is considered desirable to pronounce Talaq in such eventuality. 6. We have carefully examined the respective- contention as adduced on behalf of Muhammad Ibrahim (petitioner) Soofi Abdul Razaq (accused/ respondent) and for State in the light of relevant provisions of law and record of the case. We may point out at the outset that no appeal was filed by the accused/ respondent against the impugned judgment whereby he was convicted and sentenced to undergo three years' RI. under section 302(c), P.P.C. It is also to be noted that the said conviction was awarded as the accused/respondent pleaded guilty. It seems beneficial to reproduce hereinbelow the charge and its reply:- "CHARGE I, Muhammad Nadir Khan, Sessions Judge, Quetta do hereby charge you: Soofi Abdul Razzaq son of Muhammad Jan, That on 3-1-1994 at about 3-20 p.m. at Killo Baso Pishin in your house you fired with a revolver at your wife Mst. Naik Bibi with intention to commit her Qatl-i-Amd and due to your firing she died thereby, you committed Qatal-i-Amd of Mst. Naik Bibi which is punishable under section 302, P.P.C. within cognizance of this Court. And I hereby direct that you be tried by this Court for the aforesaid charge. Dated 17-3-1994 (Sd.) Sessions Judge, Quetta. Plea of accused. The above charge having read over to the accused in " Pashto' which he fully understands and he is asked whether he pleads guilty to the charge or not to which he replied as under:- Ans. it is correct that I killed Mst. Naik Bibi due to her bad character, on the day of incident when I reached my house I found her in objectionable position with Ahmed Jan on which I killed her and Ahmed escaped. (Sd.) Sessions Judge, Quetta." A bare perusal would indicate that the accused pleaded guilty in a categorical manner but simultaneously mentioned that the murder was committed as he had seen his wife in objectionable position with Ahmed Jan who escaped from the place of occurrence. It further transpires from the scrutiny of record that Ahmed Jan was also followed by the accused and he also launched murderous assault upon him by means of firing and he was injured but remained alive. It is remarkable to point out that there is no eye-witness of the occurrence. We have carefully examined the evidence as adduced on behalf of prosecution and to see whether in fact the alleged offence was committed or not. Sahib Jan (P.W.I) has deposed that at about 3-00 p.m. he heard a fire shot and after a while accused Abdul Razzaq came there and fired upon Ahmed Jan which hit on his right shoulder. The accused was caught hold of by Toor Jan Ghamai and Juma and pistol was taken from accused who told that he killed his wife as she was having illicit relations with Ahmed Jan. He was subjected to crossexamination but nothing beneficial could be extracted. Toor Jan (P.W.2) has corroborated the version of Sahib Jan (P.W.I) and as such it would be of no use to reproduce his version. He however, stated in an unambiguous manner that accused Abdul Razzaq informed them that he killed his wife and would kill Ahmed Jan as he was having illicit relations with his wife and the pistol was also snatched from accused. He was subjected to cross-examination but nothing advantageous could be elicited. Juma Khan (P.W.3) has also corroborated the version of Sahib Jan (P.W.I) and Toor Jan (P.W.2). He also stated that accused informed that he killed his wife as he saw Ahmed Jan in objectionable position with his wife and he would also kill Ahmed Jan. Dr. Arbab Abdul Wahid (P.W.4) has examined the dead body and issued certificate (Exh.P.4/A) which indicates the injuries received by deceased Nek Bibi. Since the violent death has not been challenged, therefore, we do not consider necessary to offer detailed comments on medical report. Amanullah (P.W.5) is recovery witness in whose presence the blood-stained earth and blood-stained clothes were taken into possession. He also produced revolver (Art.2) which was got recovered vide recovery memo. (Exh.P.5/B). Syed Abdul Jabbar (P.W.6) has conducted chemical examination of the blood-stained earth and blood-stained shirt which were found stained with human blood. He produced his report as (Exh.P.6/A). Muhammad Iqbal (P.W.7) is Arm Expert who produced certificate (Exh.P.7/A) indicating that alleged recovered revolver bearing No.96210 in working condition and positive findings were given regarding its use. Ikrar Khan (P.W.8) has deposed that he conducted the investigation and recorded the statements of witnesses namely Juma Khan, Toor Jan and Ghamai and also visited the place of occurrence where dead body of deceased Mst. Nek Bibi was lying in the compound of the house of accused who was also present at the spot. He further deposed that Juma Khan produced revolver allegedly snatched from Soofi Abdul Razzaq, He also secured blood-stained earth from the place of occurrence and sealed parcel was prepared. He also visited Civil Hospital, Pishin and dead body of deceased Mst. Nek Bibi was handed over to the relatives namely Lalak, Habibullah and Hazrat AH without having the post-mortem examination as per direction of Assistant Commissioner, Pishin. He produced receipt of dead body (Exh.P.5/A), blood-stained shirt of deceased (Exh.P.5/C) and recovery memo. (Exh.P.5/B) pertaining to revolver, live cartridges and empties. He also sent all the parcels to F.S.L. Chemical Examination and also got recorded the confessional statement of accused under section t64, Cr.P.C. which was recorded by Tehsildar Mir Ahmed Sherwani. He also produced site plan (Exh.P.8/C) and challan (Exh.P.8/D). He also identified the signature of Mehram Shah. S.-l./S.H.O. on supplementary challan (Exh.P.8/E). He was also subjected to lengthy cross-examination but nothing beneficial could be extracted. The statement of accused was recorded on oath wherein he deposed that he killed his wife with the fire of pistol when he found her in objectionable condition with Ahmed Jan who managed his escape from the scene. He further stated that he followed Ahmed Jan and injured him by means of firing. 7. We have carefully perused the evidence led by the prosecution in support of accusation. The prosecution has been able to prove its case beyond shadow of doubt and the conviction as recorded on the basis of confession of accused, statements of eye-witnesses, recovery of crime weapon. Arms Expen report and circumstantial evidence does not call for any interference. It is remarkable to note that no appeal has been filed by Soofi Abdul Razzaq against order of his conviction. We are fully satisfied that he admitted his guilt voluntarily before Court of law when charge was framed against him and besides that the evidence has produced is concrete enough to justify the conviction. 8. The pivotal question to be determined is as to whether an absolute right has been conferred upon a husband under Islamic Law to kill his wife on seeing her in an objectionable condition. 9. Malik Sikandar Khan, Advocate has mainly relied on the judgment as reported in 1993 PCr.LJ 564 wherein it was observed as follows:~ "In the instant case, the deceased entered into the house of the accused without his permission and at the dead of night and while the deceased was violating the honour of his wife, he surprised him, picked up his Chadar which was lying nearby and put it around his neck to expel him out of room and the deceased died of asphyxia. The appellant could do it. He had to stop him by force. He could also inflict Danda blows as he did. He, therefore, had committed no offence. He was left with no other course. He could not watch the sex act in peace without violating Qura'nic order to him. "Help not one another unto sin and transgression'. (Verse 2, Surah Al Maida). Then another Verse covering the situation aptly is: "But he who is driven by necessity, neither craving nor transgressing it, is no sin for him' (Verse 173, Surah l Baqarah). This means in weak moments of provocation anything otherwise forbidden ay be done with impunity. Had the deceased run away from the place then the situation would have been different and the appeliam could not kill the deceased after chase because the rgency to desist him from commission of the offence of Zina by force would have evaporated. For reasons aforementioned. I am of the view that the appellant as custodian of honour of his wife had the right to kill the deceased while he was engaged in sex act with his wife and he had not earned liability of Qisas or Ta'zir or even Diva;, and is hereby acquitted. The appeal accordingly stands accepted and revision rejected."
We have not been persuaded to agree with the abovementioned observation for the following reasons: (1) The circumstances of the case as mentioned above referred to authority is not identical with that of the present one and as such being distinguishable it cannot be made applicable. (2) Honourable Supreme Court has set aside the said dictum in case reported in PLD 1996 SC 274. (3) Islam does not give blank cheque for brutal and merciless killing of a woman being on the basis of speculative and imaginary doubts. 10. Malik Sikandar Khan, Advocate has also referred Sura-Al-Nisa in support of his contention. We have respectfully perused Surah-Al-Nisa and relevant Verses are as under:- A bare reading would indicate that without proof no extreme action can be taken. It must not be inferred from circumstances or conjectural presumption. Even the presumption that male and female having lived in the same room must have committed Zina was not found acceptable PLD 1983 FSC 497 and it was held that living together may cause suspicion which was not enough for conviction for the Offence of Zina PLD 1983 FSC 522. There must be some categorical assertion by the witness showing the existing of illicit relations in order to establish the charge of Zina. It is necessary to show that a man and woman without being validly married to each other have wilfully committed sexual intercourse. The onus is on the prosecution to establish the charge against the accused persons by producing some positive or direct evidence where no such accusation is made even by the prosecution witnesses the onus cannot be said to be discharged. PLD 1992 FSC 397. According to Hedaya "Zina both in its primitive sense and also in its legal acceptance, signifies the carnal conjunction of a man with a woman who is not his property either by right of marriage or of bondage, and in whom he has no erroneous property, because Zina is denomination of an unlawful conjunction of the sexes, and this illegality is universally understood where such conjunction takes place devoid of property, either actual or erroneously supposed" (Hedaya by Hamilton 182) but at the same time it must be kept in view that "Islam in order to save the Muslim society from the havoc of Zina has not solely depended upon punishment by Hadd or Ta'zir but has introduced various preventive and reformative methods. Penal punishment is used as a last measure and the intent to punish persons of Zina etc., is not to allow Zina as a frequent act so that the people be punished every day for such a heinous offence. Purpose of these measures is that Zina be not committed and be rare phenomenon. Zina has been considered to be not only a grave offence but also a great sin, the punishment of which is also to be had in world hereafter and it is so oftenly repeated by the Holy Qur'an. On the other hand, God has provided all the facilities of marriage and ordained every Muslim to marry and to shun celibacy. In some cases, Islam has allowed a man to marry more than one woman and in proof of Zina the Holy Qur'an as well as the Ordinance has provided that at least four eye-witnesses are required to depose before the Court that they have seen the accused in the actual act in intercourse. Those witnesses should be of unimpeachable character and have to state that they have seen both the persons in the very act of the actual intercourse. These hard rules of evidence themselves indicate that the purpose of law is not to fix scaffold in crossings to flog people every day but to punish only those who, despite preventive methods adopted by Islam, commit Zina in such a wanton way that four or more persons can see them. It is another fundamental principle of Muslim Law that in order to inflict Hadd or Ta'zir the evidence shall be proved beyond any reasonable doubt. It is therefore, a fundamental rule of Islam thai doubt cannot be the basis for punishment but provides a ground to pardon". PLD 1980 Lah. 386 (404). It is nowhere provided in Islam that even on the basis of doubt 'punishment can be awarded. The doctrine of "Shubh" has got a very important position in Islam i.e. jurisprudence which is known as Fiqa. It is fundamental rule of Islam that doubt cannot be the basis for punishment but provides a ground to pardon and it is mentioned by Ibni Maja the Holy Prophet (peace be upon him) having stated:- In another Hadis the Holy Prophet (peace be upon him) stated: The upshot of the above discussion is that action taken on the basis of omissions and doubts cannot be ignored on the interpretation which is not in consonance with true spmt of Islamic Laws. In our view the real problem seems to be that we could not decide by now that which system of law is to be followed and we are doing different experience on ad hoc basis. The Qisas and Diyat Ordinance whereby Islamic provisions were incorporated in P.P.C. is yet to be placed before Parliament and haphazard legislation in the shape of Ordinance has highlighted various flaws and ambiguities which are apparent in punishment to be awarded by way of Ta'zir and no specific mode or mechanism has been provided to deal with certain eventualities such as the commission of murder under grave and sudden provocation and on account of Ghairat. This aspect of the matter was also discussed by Honourable Lahore High Court in case titled "Ghulam Yasin and 2 others v. The State' PLD 1994 Lah. 392 as under : "Injunction of Islam in the form of "Ahadeeth 1 relating to Qatl on account of Ghairat does not find any reflection in the specific provisions relating to Qatl which now stands incorporated in the Pakistan Penal Code. The omission is understandable as the process of bringing the old provisions of the law on the subject in conformity with the Injunctions of Islam, is still in its infancy and attaining expertise about the law which has now been put into practice is likely to take some time. There is no dearth of Ahadeeth recognizing the right of an individual to defend himself against any aggression against him or his property or the right to defend other individuals, but present law on the subject makes no specific mention Of giving any allowance to persons causing injuries or even Qatl in the exercise of such right. It is hoped that by the time the present legislation on the subject, which is presently only in the form of an Ordinance, is laid before the Legislature, due notice will be taken of these omissions and others in the law presently in force. (PLD 1994 Lah. 392)." Be as it may we are conscious of the fact that provisions as contained in section 338-F, P.P.C. can be invoked but the same are not very useful in the absence of Islamic law and different conflicting interpretation of different school of thoughts. There is, however, no cavil to the proposition that Qatl on account of grave and sudden provocation cannot be termed as Qatl-i-Amd but it must be proved that provocation was in fact grave and sudden based on concrete base and free from all doubts. The concept of Ghairat could not be stretched too far as a liberal interpretation would be detrimental to the entire society and any woman could be killed on the p!ea of so-called Ghairat. Ther; must be some confidence inspiring evidence to show that murder was committed on account of Ghairat. Mere bald assertion would not be sufficient to take refuge beyond the plea of Ghairat after commission of murder. No yardstick, however, could 6e fixed to adjudge that when such extreme action can be taken as it would depend upon circumstances of each case and nature of evidence available in support of the said plea. It would be essential to mention here that it was made clear in Surah-Al-Nisa translation whereof is reproduced hereinbelow for ready reference: The abovementioned Qur'anic verdict make 1 ; it abundant clear that evidence of four witnesses regarding Zina allegedly committed by woman is essential and no free hand has been given to a husband for slaughtering his wife on account of mere suspicion. Honourable Supreme Court of Pakistan in the recent past has diverted its attention to the plea of grave and sudden provocation and two relevant provisions as contained in section 302, P.P.C. have been discussed in two cases: (1) Abdul Haque v. The State PLD 1996 SC 1 . (2) Ali Muhammad v. Ali Muhammad PLD 1996 SC 274. While discussing the plea of grave and sudden provocation in case of AH Muhammad v. The State PLD 1996 SC 274 it was observed as, follows:- "The case of Abdul Haq, referred to above was a case of provocation by words: in such cases the Courts proceeded on the basis that 'hard words break no bones, and the law expects a reasonable man to endure abuse without resoning to fatal violence', and that "mere words (not being menace of immediate bodily, harm) do not reduce murder to manslaughter " (Holmes case). The significance of Abdul Haq case, however, lies in the fact that it recognised that grave and sudden provocation is a factor to be taken into consideration in determining the punishment in cases within clause (b) of section 302 of the P.P.C. and that cases such as this in which the husband finds his wife in the act of adultery or in a compromising position with another man are a class apart." The provisions as contained in section 302, P.P.C. were also examined and it was held:-- "Section 302, P.P.C. (as substituted), itself divides Qatl-i-Amd, purposes of punishment into three categories (1) Qatl-i-Amd which is punishable with death as Qisas; (2) Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and (3) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable. Section 302 of the P.P.C. therefore, itself contemplates plainly and clearly a category of cases which are within the definition of Qatl-i- Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on a case to case basis." The provisions as contained in section 302(c), P.P.C. were also examined with the following observations:- -S. 302(c)Grave and sudden provocationRight to defend the honour of one's wife falls under S.302(c), P.P.C.Right to act as '"r-tf" must receive a construction most beneficial to the widest possible amplitude of that right. The offender has a right of self-defence which includes the right to defend the honour of his wife and that section 302, clause (c) of the P.P.C. The fundamental right to act as ("'?" conferred as it has been hv the Holy Qur'an, which is intended to endure for all times to come, must receive a construction most beneficial to the widest possible amplitude of that right peripheral rights or rights of penumbra, that is. rights closely associated to it are also basic rights. There can he no doubt that included in the basic right of the man to act as "f 1 )" ' is the right to protect the honour of his women and to defend them from outrage, disgrace and insult." In view of abovementioned discussion and guideline as provided by Honourable Supreme Court we have focussed our attention to the pivotal question as to whether accused can invoke the defence of grave and sudden provocation or otherwise? It transpires from the scrutiny of record that the accused had admitted his guilt in the following words:-- "It is correct that I killed Mst. Nek Bibi due to her bad character, on the day of incident I reached my house I found in an objectionable position with Ahmed Jan on which I killed her and Ahmed escaped." (Answer to the charge framed on 17-3-1994). It has also come on record that accused had launched a murderous assault upon Ahmed Jan anti injured him by means of firing. The statements of Sahib Jan (P.W.I), Toor Jan (P.W.2) and Juma Khan (P.W.3) can be referred in this regard. No other motive has come on record as such we have to believe the statement of his guilt as a whole 1992 SCMR 2047, hut here at this conjecture the question arises as to whether under circumstances of the case the accused had a right, while defending his honour as contended by Malik Sikandar, Advocate to the extent of killing his wife and launching murderous assault upon Ahmed Jan. Malik Sikandar, Advocate has mentioned Kitab-ul-Ikhtiar translated by Moulana Salamat Ali, page 619. A thorough perusal of record would indicate that accused had exercised his right of defending his honour but nowhere he had alleged that at the fateful time deceased was in a compromising position or he had seen both of them committing Zina. We have to keep in view the circumstances of the case and it would be essential to mention here that a marriage ceremony was being performed in the next door neighbour and- it was day time and it seems impossible that in presence of various guests and marriage ceremony such risk would have been taken by Ahmed Jan, but the possibility of his being there in the house of accused cannot be ruled out. In our view it was not mere a suspicion but something more than that as is corroborative from record. The prosecution witnesses namely Sahib Jan (P.W.I), Toor Jan (P.W.2) and Juma Khan (P.W.3) have mentioned about the factum of firing upon Ahmed Jan who escaped. The only motive which has come or, record and as mentioned earlier is the admission of accused who pleaded guilty and stated in a categorical term that he killed his wife as he saw her in objectionable condition with Ahmed Jan. It is remarkable to note that no evidence could be produced by the accused to show that in fact act of Zina was being committed by Ahmed Jan and as such it cannot be declared that on seeing Zina the accused on account of grave and sudden provocation killed his wife hut there is no denial to the fact that he must have seen accused Ahmed Jan in his house which flared him up and consequently fateful incident accurred. In such view of the matter accused was not deserve acquittal as contended by Malik Sikandar, Advocate. In the light of above reasons and legal position as explained while maintaining conviction of convict Abdul Razaq under section 302(c), P.P.C. we are inclined to enhance the sentence of three years' R.I. to that of five years with benefit of section 382-B, Cr.P.C. The fine as imposed being not provided in substance law is hereby set aside. The revision petition is resultantly accepted. (AAJS) Sentence enhanced.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 945 Present: ahmad saeed awan, J. MUHAMMAD NAWAZ-Petitioner versus KAZIM ALI MALIK, ADDITIONAL SESSIONS JUDGE-Respondent Criminal Revision No. 328 of 1995, decided on 31.10.1995. Criminal Procdure Code, 898- S. 439-Arrest of accused by police in Court premises inspite of direction hy court that he was not arrested in court premises-Challenge to-Police Officer had intentionally tried to lower dignity of Court by apprehending accused from Verandah of Court-Sessions Court had not forbidden police to arrest accused but order was clear that accused would not be arrested in any case in Court premises-Impugned order, therefore, did not suffer from any illegality so as to justify interference in revisional jurisdiction- Revision petition was disposed of accordingly. [P. 946] A & B Malik Amir Muhammad Joya, for Petitioner. Date of hearing: 31.10.1995. order This petition under section 439, Cr.P.C. has been filed to assail the validity of the order, dated 31.8.1995 of the learned Additional Sessions Judge, Mianwali. 2. Brief facts are that respondent No. 2 was involved in a case under sections 324/382/436/148 and 149, P.P.C. vide F.I.R. No. 75 Police Station, Baud Khel, District Mianwali; he was granted interim bail by the learned Additional Sessions Judge vide order, dated 6.7.1995; the case after two dates thereafter came up for hearing on 31.8.1995 on which date the learned Additional Sessions Judge observed that as the matter is pending before the High Court in Intra-Court Appeal seeking quashment of the F.I.R., as such, it was not proper to dispose of the bail petition and the petition was adjourned to 21.9.1995; the order-sheet shows that after the case was adjourned and the accused-respondent No. 4 went out of the Court-room and was in the Verandah when Inspector Ijaz Hussain.S.H.O. Police Station Daud Khel cannot hold of him; handed over to his subordinates; the accused raised hue and cry; unpleasant .situation arose; Police Officer was summoned; show-cause notice issued: and the Police Officer was directed not to arrest the accused-respondent No. 4 in any case in the Sessions Court premises. 3. Learned counsel submits that the order of the learned Additional Sessions Judge observing that the Inspector is directed not to arrest the petitioner (respondent No. 4) in any case in the Sessions Court premises is perverse, illegal and manifestly unjust. According to the learned counsel, this is a case of acting beyond jurisdiction. 1 have heard the learned counsel for the petitioner at length and have gone through the tile with care. There is no denying the fact that the police is duty-bound to apprehend the culprits but not at the cost of lowering the dignity and honour of the Court in public eyes. The order-sheet shows that the Police Officer intentionally tried to lower the dignity of the Court in apprehending the respondent No. 2 from the Verandah of the Court; he should have acted with patience and allowed him to go out of the Court premises. The Police Officer; it appears, instead of doing his duty to arrest the accused by himself taking pain selected the Sessions Court to be a fit place to show his efficiency. It may be observed that the tendency of lowering the Court's honour by raising slogans and incidents of firing and murder has gained alarming situation which tendency needs to be curbed with iron hfind. For the foregoing reasons, I am of the view that there is nothing Ulegal in the impugned order of learned Additional Sessions Judge so as to justify interference in revisional jurisdiction. It is noteworthy that the learned Additional Sessions Judge has not forbidden the police to arrest the accused-respondent but the order is clear that he shall not be arrested in any case in Court premises. The police is, therefore, at liberty to arrest the accused-respondent in any case in which he has not be granted bail. With these observations, the revision petition stands disposed. (AAJS) Revision disposed of.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 947 Present: munir A. SHEIKH, J. Haji MUNAWAR HUSSAIN MANJ-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No. 102/T of 1996, decided on 21.5.1996. Criminal Procedure Code 1898 (V of 1898)-- -S. 526-Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4 Control of Narcotic Substances Ordinance VI of 1995 S. 9-Transfer of case-There are as many as eight public witnesses who belong to Sheikhupura--Offieial witnesses are from Lahore due to reason that there is only one police station throughout Punjab which has to deal with such cases under CNSO 1995-Offence according to F.I.R. took place within territorial limits of Sheikhupura and even if payment as alleged was made at Lahore High Court in exercise of powers under Section 526, Cr.P.C. hold that it is in the interest of justice and also convenience that case shoxild be tried at Sheikhupura-Application accepted. [Pp. 948 & 949] A & B Mian Ghulam Rasool with Ch. Ghulam Murtaza for Petition. Masood Mirza, Deputy Attorney-General with Muhammad Ashraf Bajwa, Special P.P. and Muhammad Riaz Lone for the State. Date of hearing: 21.5.1995 order Tue petitioner seeks transfer of Criminal case F.I.R. No. 14/95, dated 14.4.1995 registered with Police Station P.N.C.B., Model Town, Lahore from the Court of Rao Hamid Mukhtar Khan learned Additional Sessions Judge, Lahroe to the Court of learned Sessions Judge, Sheikhupura. 2. The said case has been registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order and section 9 of the Control of Narcotic .Substances Ordinance, 1995 which is a special law. There is only one Police Station known as P.N.C.B. situated at Model Town, Lahore, where F.I.Rs. regarding commission of offence under the said Ordinance are to be registered and invested accordingly. According to the F.I.R. the offence took place within the territorial limits of District Sheikhupura. The Provincial Government in exercise of powers conferred by subsection i'2'> of section 43 of the Control Narcotic Substance Ordinance, 1995 and in consultation with the Chief Justice of this Court appointed District and Sessions Judges in Punjab to be the Special Courts with their headquarters to exercise jurisdiction under the said Ordinance. Sessions Judge, Sheikhupura, therefore, is the Special Court for trying offence under this Ordinance, the commission of which took place within the territorial limits of District Sheikhupura as indicated in column No. 4 of the said Notification. 3. The prosecution, however, instead of submitting challan to the Court of learned Sessions Judge, Sheikhupura submitted the same to the Court of learned Sessions Judge, Lahore, for trial. The petitioner raised objection to the jurisdiction of the said Court by making an application praying that the challan should be returned to the prosecution for presentation before the competent Court i.e. learned Sessions Judge, Sheikhupura. This application was, however, not decided on merits as admitted by learned counsel for the respondent whereas the learned Sessions Judge, Lahore, otherwise expressed his desire not to hear the case for personal reasons and sent the record to this Court on which learned Chief Justice of this Court passed an order for the transfer of the case from his Court to the Court of Rao Hamid Mukhtar Khan learned Additional Sessions Judge, Lahore, who through modification in the earlier notification was also made the Special Court in addition to the learned Sessions Judge, Lahore, where it is now pending. 4. Learned Deputy Attorney-General has submitted that according to the statements of the prosecution witnesses payment of an amount of Rs. 8,00,000 and another amount of Rs. 50,000 in respect of the transaction was made at Begum Kot District Lahore, therefore, a part of the offence having taken place in District Lahore, as such, Special Court at Lahore is also vested with the jurisdiction to hold the trial of the petitioner by virtue of sections 182 and 526, Cr.P.C. He also argued that the petitioner being resident of Sheikhupura may not exert his influence and in view of his political position there is likelihood of law and order situation of the trial of the case takes place at Sheikhupura. 5. No written reply of this application has been filed by the respondent therefore, the argument that there may be law and order situation appears to be an afterthought and raised just for the sake of objection even otherwise in the circumstances of this case I am not inclined to accept this as the State is responsible to maintain law and order situation and on this ground no concession can be shown to the prosecution particularly when there is no material to support this contention. 6. There are as many as eight public witnesses who belong to Sheikhupura. The official witnesses are from Lahore due to the reason that there is only One police station throughout the Punjab which has to deal with such cases. The offence according to the F.I.R. took place within the territorial limits of Sheikhupura and even if the payment as alleged was made at Lahore I would in exercise of powers under section 526, Cr.P.C. hold that it is in the interest of justice as also the convenience of the witnesses that the case should be tried at Sheikhupura where according to the said notification through which the Courts have been recreated should have been tried and the prosecution cannot be given free hand to choose the Courts for prosecution of the criminal cases against the express provision of the notification. 7. For the foregoing reasons this application is accepted. The trial of the case F.I.R. No. 14/95 is hereby withdrawn from the Court of Rao Hamid Mukhtar Khan, learned Additional Sessions Judge, Lahore and the same transferred to the Court of learned Sessions Judge, Sheikhupura for trial. (AAJS) Application accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 949 (DB) Present: sh. muhammad ZuBAiR and raja muhammad khurshid, JJ. MUHAMMAD ANWAR-Appellant versus THE STATE-Respondent Criminal Appeal No. 937 and Murder Reference No. 409 of 1992, heard on 18.11.1996. (i) Eye-witness- Eye-witness-Touchstone in assessing and evaluating evidence of eye-witness- Touchstone in assessing and evaluating evidence of eye-witnesses two important factors should be seriously taken into consideration i.e. (1) Whether in circumstances of case it was possible for eye-witnesses to be present at scene or their explanation for their presence at place of occurrence could be accepted and (2) Whether there was anything inherently improbable or unreliable in their evidenceOcular evidence would carry convincing weight and create unswerving confidence which was corroborated by medical evidence and motive relating "to occurrence-Such type of evidence is further strengthened if F.I.R. was promptly lodged without giving any time for fabrication or inventing totally false story-It is true that there is no inflexible rule that statement of an interested or an inimical witness can never be accepted without corroboration-It is also true that interest and truth some times are so intermingled that those might go together and corroboration, therefore, is not always to be considered as a sine qua non for acceptance of evidence of such interest witnesses-Creditable value is to be attached even to such witnesses if their evidence is found free from doubt, infirmity or possibility of implication of wrong persons is excluded-Rule of prudence in such circumstances requires to find out whether a witness had seen occurrence, could identify culprits and was reliable enough to be believed without corroboration-It is also well-understood that evidence of an interested witness was not like evidence of an approver which would need corroboration and abundant caution before its acceptanceRule of caution cannot be confined to a water-tight compartment nor it can be kept in a straight-jacketIn nutshell every case is to be evaluated and considered on its own merits because in human affairs, facts and circumstances differ from place to place and mostly from time to time. [P. 954] A (ii) Pakistan Penal Code (XLV of 1860)-- Ss. 302/149 & 148Lesser sentenceWhere any of accused cannot definitely be fixed with responsibility of having fired fatal shot, all of them may be awarded imprisonment for life. [P. 958] C Allah Dad and another v. Tlie State 1995 SCMR 142 rcf. (iii) Witness-- Evidence of a witness should be accepted if it substantially gives true and correct picture though wickedly mingled up with grains of falsehood. [P. 957] B Muhammad Siddique Chughlai, for Appellant. J.V. Gardner, for A.G. for the State. Hasan Ahmad K/ian Kanwar, for the Complainant. Dates of hearing: 17 and .11.1996. judgment Raja Muhammad Khurshid, J.--The above-captioned criminal appeals and Murder Reference have arisen out of judgment, dated 5.11.1992 passed by Mr. Khalid Akhtar, learned Additional Sessions Judge, Depalur whereby he convicted Muhammad Anwar under section 302/149, P.P.C. on two counts for the murder of Mst. Ghulam Fatima and Muhammad Aslam deceased and sentenced him to death plus a fine of Rs. 20,000 or in default to undergo R.I. for two years on each count. Likewise appellants Muhammad Ashraf alias Arshad alias Achhu, Riaz, Rehmat Ali and Mustafa were also convicted for the murder of the aforesaid persons under section 302/149, P.P.C. and sentenced them to imprisonment for life each with a fine of Rs. 10,000 each or in default to undergo two years' R.I. on each count. All the aforesaid appellants were further convicted under section 148, P.P.C. and sentenced to two years' R.I. each. A reference was also sent to this Court by the learned trial Court under section 374, Cr.P.C. for the confirmation of death sentence awarded to Muhammad Anwar. 2. Since all the Criminal Appeals and Murder Reference has arisen out of the same judgment, therefore, those are being disposed of through this common judgment. 3. The brief facts are that a case under section 302/148/149, P.P.C. was registered at Police Station, Hujra Shah Muqeem, District Okara at the report of Muhammad'Ashraf son of Jalal Khan vide F.I.R. No. 311/90 for an occurrence which took place at 2.30 p.m. on 5.8.1990 in the area of village Rakar at a distance of 2 kilometers from the police station. The F.I.R. was lodged on the same day at 3.30 p.m. It was alleged in the- F.I.R. by Muhammad Ashraf that about 4 months prior to the unfortunate occurrence Mst. Fia/ Bibi daughter of Fiaz Ahmad and a sister of Muhammad Anwar appellant had eloped with Zulfiqar a brother of the complainant. Later on she married the aforesaid Zulfiqar. Her father, brother aforesaid and other family members felt aggrieved of her elopement and subsequent marriage with Zulfiqar. A brother of the complainant namely Arshad apprehending breach of peace made an application against aforesaid Faiz Ahmad etc. at Police Station Hujra Shah Muqeem whereupon preventive action was taken by the police on 4.8.1990. As a consequence of which the complainant and his elder brother Muhammad Aslam were apprehended and from the opposite side Faiz Ahmad and his son Arshad alias. Kausar were arrested as a preventive measure taken under section 107/151, Cr.P.C. On the day of occurrence the parties were produced before the Ulaqa Magistrate at Depalpur. Members of the opposite-party Fiaz Ahmad etc. were let off after their bails were accepted whereas the complainant and his brother were released on bail about 2 hours thereafter. Both the brothers alongwith their mother Ghulam Fatima and Allah Ditta alias Sher Muhammad, their sister's husband proceeded from Depalpur for their home. The aforesaid Ghulam Fatima and Allah Ditta had come to Depalpur in connection with the bail matters of the complainant and his brother (deceased). All four of them reached at Jujra in a bus from where they proceeded to Adda Dhaliana Road for catching a wagon for their home. Accordingly they boarded a wagon alongwith other passengers which included Muhammad Yasin son of Said Ahmad caste Chishti who got seated on top of the wagon. The deceased Ghulam Fatima and Muhammad Aslam however, got their seats inside the wagon and since it was packed to suffocation, the aforesaid Allah Ditta alongwith the complainant occupied their seats on the top of the vehicle. The wagon had reached near the sugarcane field of Azhar Khan Lodhi; that appellant Ghulam Mustafa empty-handed signalled to stop it. As soon as the wagon stopped, the acquitted accused Arshad alias Kausar son of Faiz Ahmed, and anothers acquitted accused Abbas son of Muhammad Din, Rehmat Ali son of Ramzan armed with .12 bore guns whereas Riaz armed with .12 bore pistol suddenly appeared at the road from the sugarcane filed from its northern side. Meanwhile motor-cycle appeared from the back side of the wagon, which was driven by Muhammad Anwar appellant and its pillion seat was occupied by his co-appellant Ashraf alias Arshad alias Achhu, the former being armed with .12 bore pistol and the latter carrying .12 bore gun. Both of them alighted from the motor-cycle. All the accused raised Lalkara and asked all the passengers to get down from wagon as they had come to take revenge from their enemies for the elopement of Mst. Faiz Bibi. All the passengers came down from the wagon and ran away out of fear. The complainant and his brother-in-law Allah Ditta alongwith Muhammad Yasin jumped from the top of the wagon and took shelter in the nearby crop sugarcane, from where they saw the occurrence. Mst. Ghulam Fatima. and Muhammad Aslam deceased were not allowed to disembark the wagon by. the accused, who started heavy firing from their respective weapons upon them. They also raised Lalkara while firing. After some time Anwar, Ashraf alias Arshad and Abbas accused escaped to the side of Kharal Kalan, on the motor-cycle. The remaining accused made their escape good while proceed-ings towards north on foot. Thereafter, the complainant and aforesaid Allah Ditta and Muhammad Yasin went to the spot and saw both the deceased lying murdered inside the wagon after suffering multiple injuries on their persons due to the firing made by the accused persons. The occurrence was seen by the complainant, his brother-in-law Allah Ditta and Muhammad Yasin while seated on the top of the wagon and also when taking refuge in the nearby crop of sugarcane. According to the complainant all the accused in prosecution of their common object after forming an unlawful assembly had committed the murder of both the deceased. 4. The police investigation led to the conclusion that Muhammad Anwar, Muhammad Ashraf alias Achhu, Mustafa, Rehmat Ali and Riaz Appellants had committed the occurrence whereas Arshad alias Kausar and Abbas accused were found innocent. As such the names of the appellants were placed in column No. 3, whereas names off Arshad alias Kausar and Abbas were placed in Column No. 2 of the report submitted by the Investigating Agency under section 173, Cr.P.C. The learned trial Judge, however, summoned Arshad alias Kausar and Abbas alongwith other accused i.e. appellants to face the trial. 5. The prosecution relied upon the ocular account of occurrence, the medical evidence and recovery of weapons of offence from the accused persons. 6. The ocular account of occurrence was given by Muhammad Ashraf P.W. 9 and Allah Ditta P.W. 1.. It was seriously assailed on the ground that they were related inter se and also to the deceased persons; that they were interested and inimical on account of abduction of Mst. Faiz Bibi and as such they had and inimical on account off abduction of Mst. Faiz Bibi and as such they had motive to implicate all the accused persons falsely in this case. The witnesses being interested were not corroborated through an independent and unimpeachable source; that it was not safe in the interest of justice to believe such witnesses particularly when recover y of weapons of offence was also not believed as no crime-empty was found at the place of occurrence; that motive in this case was far-fetched so as to incite the accused persons to commit the assault at the deceased persons. The medical evidence allegedly contradicted the eye-witnesses and that one of the eye-witnesses as according to him the assailants had muffled up their faces while firing at the deceased persons. 7. Lastly it was contended that Mst. Ghulam Fatima deceased had hotly contested litigation with different people and her sons being of aggressive temperament created many enemies and that the possibility could not be ruled out that any one of their enemies had finished them to end the rouble for ever. 8. We have considered the foregoing arguments addressed at the Bar. The learned counsel for the appellants had ably taken us through the evidence brought on record. It is true that Muhammad Ashraf P.W. 9 and Allah Ditta P.W. 11 are closely related inter se and are also related to the deceased persons. The mere relationship of these two witnesses would not make their evidence doubtful in any manner until and unless it is found that they were inimical and interested persons to implicate all the accused persons in this case falsely. The touchstone in assessing and evaluating the evidence of eye-witnesses two important factors should be seriously taken into consideration i.e. (1) Whether in the circumstances of the case it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the place of occurrence could be accepted and (2) whether there was anything inherently improbable or unreliable in their evidence. The ocular evidence would carry convincing weight and create unswerving confidence which was corroborated by the medical evidence and the motive relating to the occurrence. Such type of evidence is further strengthened if the F.I.R. was promptly lodged without giving any time for fabrication or inventing totally false story. It is true that there is no inflexible role that the statement of an interested or an inimical witness can never be accepted without corroboration. It is also true that interest and truth some times are so intermingled that those might go together and corroborated, therefore, is not always to be considered as a sine qua non for the acceptance of the evidence of such interested witnesses. The creditable value is to be attached even to such witnesses if their evidence is found free from doubt, infirmity or the possibility of the implication of wrong persons is excluded. Rule of prudence in such circumstances requires to find out whether, a witness had seen the occurrence, could identify the culprits and was reliable enough to be
elieved without corroboration. It is also well-understood that the evidence of an interested witness was not like the evidence of an approver which would need corroboration and ab'indant caution before its acceptance. The rule of caution cannot be confined to a water-tight compartment nor it can be kept hi a straight-jacket. In nutshell every case is to be evaluated and considered on its own merits because in human affairs, the facts and circumstances Differ from place to place and mostly from time to time. 9. Keeping in view the above test, it is to be seen whether the ocular account of occurrence in this case is sufficient to inspire confidence to accept the prosecution story as truthful and also free from reasonable doubt. In this context, as pointed out above, Muhammad Ashraf and Allah Ditta P.Ws. are closely related to the deceased. Would it be possible for them to tell a wrong story about the killers of their blood relations? It is true that there were other passengers in the wagon but they fled away when they saw the accused armed with deadly weapons and after they were given a chance to flee away in order to save their lives. Any person in that situation would hasten to leave the place which was to be converted into a butchery within a few moments, except those whose blood was at stake. There can be no grouse or complaint against the passengers who managed to run away on learning from the Lalkaras of the accused that an awful tragedy was to be enacted by the accused to finish their enemies, but Muhammad Ashraf and Allah Ditta stayed back and had hidden themselves in a nearby field to see as to what was going to be the fate of the deceased persons. It would not be somewhat unusual on their part to hold on although they were not in a position to do anything against the accused persons at that time, but they could see the accused committing beastly act in taking away the life of their blood relations. The mere fact that they escaped unhurt would create no doubt in the veracity of their evidence because they were travelling on the top roof of the wagon, and seeing the danger had managed to run away. Travelling on top roof is not uncommon in the Mufassil areas. The people finding no place inside a public transport prefer to travel on top roof to reach their home rather to wait indefinitely for another bus or vehicle. Overcrowding in the buses and wagons seems to be an order of the day. Hence if Muhammad Ashraf and Allah Ditta P.Ws. had travelled on thfe top of the wagon, and on seeing the accused had jumped down to take shelter to save their skin, it would not be unusual or unnatural conduct on their pan. Their presence at the spot or accompanying the deceased persons cannot be doubted because it was expected of them to accompany their kith and kin to watch the security proceedings and also help them in managing their release on bail etc. On such like occasions only close relatives or friends will help the affected party to come out of the wood. After being free from the Court it was, but natural that the eye-" witnesses being closely related would accompany the deceased persons to home. It was therefore, not unusual or improbable if they accompanied the deceased persons in order to reach back to their homes. But as the bad luck would have it, they met the tragedy on their way, Hence the presence of these two eye witnesses at the spot cannot be doubted in any manner nor it can be said that they will tell lie to screen actual offenders, who were responsible for bfutal killing of the deceased persons. The natural instinct on their part would be to name the actual offenders as a spontaneous reaction to the situation and the tragedy which they had witnessed. Thus their evidence cannot be doubted only because they were related to the deceased persons. Their interest if any would be deeply linked with the truth that the actual offenders should be brought to book. Under the aforesaid impulse these witnesses named such persons who had killed the deceased for a motive, which stood proved and of which the accused side was palpably aggrieved. The abduction of a womanfolk is considered as a most heinous social and criminal offence, even if later on it ends into a marriage. In the instant case also one of the brothers of the deceased namely Zulfiqar had abducted Mst. Fiaz Bibi a sister of Muhammad Anwar, who appears to have never appeased with the incident. In such a situation, it cannot be said that the motive was far-fetched affair because the elopement of Mst. Fiaz Bibi took place only 4 months ago which later on resulted into the marriage, perhaps adding fuel to the fire with the passage of time. The motive, therefore, appears to be truthful and it was a sufficient cause to incite the accused party to come out to take the awful revenge from the family of Zulfiqar by doing away with the life of his mother and his brother. The mere fact that Zulfiqar was not assailed as he was the main wrongdoer would not be material firstly because he was not present at the time of occurrence and secondly because the shock he would have received due to the murder of his mother and a brother in a cruel manner would have totally shakened him with a grief and fear, which in such-like situation is invariably embedded in one's mind making the whole life miserable and awestricken. On the contrary the killing of the deceased would have satisfied the family ego of the accused side to a large extent because two lives were taken for one elopement. The saga of such revenge can be well-understood hi the rural "side of our country. Hence it cannot be said that there was no motive with the accused party to finish the deceased persons. As such the motive supports the eye-witnesses like the medical evidence, which discloses 13 fire-arm, injuries on the person of Mst. Ghulam Fatima and 9 fire-arm injuries on the person of other deceased namely Muhammad Aslam. The nature of all the injuries would show that the deceased persons were pierced to death showing that the killers had a deep bedded venom in their minds. Thus, it corroborates the prosecution version that feeling aggrieved of the elopement of Mst. Fiaz Bibi the unfortunate attack was mounted by the accused persons upon the deceased persons. 10. The F.I.R. was promptly lodged. The case was registered within one hour of the occurrence. This excludes the possibility of cooking up a false story or to negate the presence of eye-witnesses at the spot. As such it is clear that the eye-witnesses were supported by the motive, medical evidence and the prompt lodging of F.I.R. Hence their testimony would carry convincing value so as to come to an ultimate truth in passing a judgment. The mere fact that, the wagon driver had stated that one passenger had signalled for stopping the wagon whereas the 4 accused with muffled up faces had resorted to heavy firing would not take away the evidentiary value of the aforesaid two witnesses. The driver was a stranger and would not like to become a victim of tyranny at the hands of accused party. It is very unfortunate that our people feel shy to become witnesses against such desperate persons, who openly destroy the human life in a most fearful manner. Hence it cannot be ruled out that the wagon driver being a stranger, fearing his own safety had made the concession that the occurrence was committed by 4 persons who had muffled up their faces. However, he had stated that both the deceased were in die wagon and that the assailants had warned the passengers to leave the wagon before they killed the victims, by firing at them. . On the completion of their mission, the accused ran away leaving the dead bodies in the wagon. In such a situation, it cannot be said that the evidence of the wagon driver should receive more credibility than the two eye-witnesses aforenamed, who as already stated above, would possess natural instinct and desire that actual killers should not be allowed to go scot-free. In such a situation, the evidence of both the eye-witnesses cannot be brushed aside nor it would be considered to have become non-dependable. 11. Now it is to be seen that both the above-named two witnesses had implicated 7 persons in toto to have committed the awful ccurrence. Out of them two have been found innocent by die police and ultimately acquitted by the trial Court. Would it discredit the testimony of the said two eye-witnesses qua the convicted accused. A plea was taken that the witnesses which, were disbelieved qua some of the accused could not be safely believed in respect of the convicted accused. This allegedly created a serious doubt in the prosecution case because innocent persons were also mixed up with the guilty persons. Such type of witnesses allegedly lose their credibility regarding their testimony against the convicted accused. No doubt this is very inhibitory proposition but superior Courts have held that the principle of falsus in uno falsus in omni bus iy no longer applicable in Pakistan, as the same cannot safely be applied to the evidence of a witness in the present set-up, where evidence is substantially correct but simply because there are some deliberate fal"ehood in it. Unfortunately a tendency has developed, particularly in our rural side that some persons are involved from the opposite group only to bring maximum harm to the other side. This is no doubt unfortunate but to reach a correct decision in picking out guilty, the principle of "sifting the grain from chaff" has been firmly entrenched in our judicial system for the safer administration of criminal justice. The evidence of a witness should be accepted if it substantially gives the true and correct picture though wickedly mingled up with grains of falsehood. The principle of sifting of truth from falsehood fias therefore, been recognized instead of throwing away the evidence altogether. A reference to Zia Ullah v. The State reported as 1993 SCMR 155 (Supreme Court of Pakistan) can be made with advantage. The same is true in this case because in the heat of moments and grief the complainant side may have tried to rope in certain persons whose participation had actually been doubtful. As such two accused out of initially 7 were found innocent by the police. They are Arshad alias Kausar a brother of Muhammad Anwar and one Abbas son of Muhammad Amin. They were also given benefit of doubt by the trial Court and as such their acquittal would in no way spoil the prosecution case or damage the testimony of eye-witnesses. Rather applying the rule of abundant caution and care and to ensure safer administration of criminal justice, it appears that the case of Mustafa accused was also not free from doubt. The role ascribed to him is that he gave signal to stop the wagon while unarmed and thereafter, no active role was performed by him during the occurrence. It also perforated out of the tight lips of Allah Ditta P.W.ll, during the cross-examination that three accused had been declared innocent by the police during the investigation of the case and that Mustafa accused was one of them. This makes the case of Mustafa accused reasonably doubtful and as such he too deserves benefit of doubt in the safer administration of criminal justice. We accordingly acquit Mustafa accused after giving him the benefit of doubt. His Criminal Appeal No.963 of 1992 is accordingly accepted and the conviction and sentences passed up him under sections 302 and 148, P.P.C. respectively are set aside. 12. Before we discuss the case of remaining accused, it would be worthwhile to discuss the defence version before proceeding further. All the accused had denied to have committed the murder. Muhammad Anwar accused however, stated in his defence version while making statement under section 342, Cr.P.C. that he was implicated falsely in this case due to enmity flowing from the abduction of Mst. Fiaz Bibi and that the occurrence was committed by some unknown persons, as Mst. Ghulam Fatima had enmity with different persons on account of her litigation with many persons. In this respect reliance was placed on Exh.D.l to Exh.D.7. 13. We have given our careful consideration to this aspect of the defence. The mere fact that there was some son of litigation of Mst. Ghulam Fatima with some persons would not create any doubt regarding commission of offence by the present accused. As already said, they had clear cut motive and acted in pursuance of that motive to quench the thirst of their revenge. To hold that the occurrence was the result of some litigation would be a far-fetched idea based on unfounded hypothesis. The defence version has, therefore, no genesis to be believed. 14. So far as the remaining accused namely Muhammad Anwar, Muhammad Ashraf alias Arshad alias Achhu, Rehmat Ali and Riaz, there is no doubt that they were the actual killers. Their participation in the occurrence has been fully proved from the ocular account of occurrence supported by motive, medical evidence and other circumstances narrated above. All four of them were therefore, rightly convicted under section 302/34, P.P.C. 15. The question of sentence in this case is not difficult. Mubammad Anwar was sentenced to death on two counts with a fine of Rs.20,000 or in default to suffer further R.I. for two years. His role is similar to the role of Muhammad Ashraf alias Arshad alias Achhu, Rehrnat Ali and Riaz appellants as all of them had fired simultaneously and it was not clear as to whose fire had caused fatal injuries to both the deceased. It is well-established principle of law that where any of the accused cannot definitely be fixed with responsibility of having fired the fatal shot, all of them may be awarded life imprisonment. In this respect, a reference to Allah Dad and another v. The State reported as 1995 SCMR 142 (Supreme Court of Pakistan) can be made with advantage. It is held therein that where the record or the evidence did not show with certainty that it was the shot of the "accused, which killed the deceased and not of the other accused, the entence t of death awarded to the accused was liable to be altered to imprisonment for life. 16. In the case in hand, Muhammad Anwar had also fired alongwith other three convicted accused aforesaid, and it was neither clear nor it was certain thai his shot had also caused any fatal injury vis-a-vis his co-accused. He, therefore, deserves to be given the same treatment in respect of sentence as was given to the other convicted accused. Accordingly the conviction of Muhammad Anwar under section 302, P.P.C. is maintained on two counts, but his death sentence is converted into imprisonment for life on two counts. As such his death sentence is not confirmed. Criminal Appeal No.937 of 1992 filed by Muhammad Anwar is accordingly dismissed with above modification in the sentence.^The sentence of fine awarded to him by the learned trial Court is however, maintained. 17. The convictions and sentences under section 302, P.P.C. awarded to the appellants namely Ashraf alias Arshad alias Achhu, Rehmat Ali and Riaz by the learned trial Court do not call for interference and are maintained. Their. Criminal Appeal No.999 of 1992 is accordingly dismissed. 18. Since all the four convict/appellants acted in fu therance of their common intention to murder the deceased persons, therefore, section 34, P.P.C. is substituted for section 149, P.P.C. read with section 302, P.P.C. while upholding their convictions and sentences aforesaid. Resultantly, their convictions and sentences under section 148, P.P.C. are not maintainable and the same are set aside. 19. The benefit of section 382-B, Cr.P.C. shall be available to all the appellants including Muhammad Anwar accused. 20. Death sentence of Muhammad Anwar is not confirmed. 21. Murder Reference No. 409 of 1992 is answer accordingly. (AAJS) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 959 Present: karamat nazir bhandari, J. STATE-Appellant versus THE DEPUTY INSPECTOR-GENERAL OF POLICE, RAWALPINDI and 2 others-Respondents Criminal Original No. 75/W of 1996, heard on 28.11.1996. (i) Contempt of Court Act (LXfV of 1976)-- S. 3-Contempt of Court-Case of-Power of contempt should be used sparingly in case of contumacy only to vindicate honour of Court and not wreak any vengeance. [P. 965] A (ii) Contempt of Court Act (XLIV of 1976)-- S. 3Contempt of CourtStrict rules of criminal administration of Criminal justice do not apply while dealing with contempt matters. [P. 9651 B (iii) Contempt of Court Act (LX1V of 1976) S. 3Contempt of CourtApologyApology has to be unconditional made at the earliest without any efforts to justify the act of contempt and should reflect genuine remorse on the part <>f ecmfenmer-Such an apology it can be held to have purged contemner while in majority of cases apology has been taken into consideration as a mitigating circumstance for imposing a sentence. [Pp. 965 & 966] C Raja Saeed Akram Khan, A.A.G. and Raja Muhammad Bashir, Deputy Attorney-General for the State. Sardar Muhammad Ishaque Khan, for Respondents. Mirza Muhammad Anwar Baig (on Court call). Dates of hearing: 2&-1Q, 14, 24, 25, 26 and 11.1996. JUDGMENT « This judgment will be read in connection with my order, dated 28-10-1996. In the earlier order noticing complete road blockade at a point where the sign board of Fouji Foundation Hospital is installed on the main G.T. Road (Rawalpindi to Lahore) about 300 metres from the point where the road to the High Court premises ascends and finding the blockade to be interfering in the smooth working of the Court, I had issued contempt 'notices to the senior Officers of the District Administration of Rawalpindi namely District Magistrate, Deputy Inspector-General of Police and Senior Superintendent of Police, Rawalpindi to appear before me and to show cause as to why they may not be committed for contempt of Court. The respondents appeared as directed at 1-00 p.m. when they assured the Court that the road blockades will be cleared. They were directed to file a written reply to the contempt notices which they have done. In view of the importance of the issue, I called upon the Advocate-General, Punjab, the Deputy Attorney-General of Pakistan, the President Supreme Court of Pakistan Bar Association and the President Lahore High Court, Rawalpindi Bench Bar Association to appear and assist the Court. Except for. the President Supreme Court Bar Association, the others appeared and made detailed addresses on the issue. 2. On 29-10-1996 Mr. Ibad-ur-Rehman Lodhi, Advocate, also filed a Constitution petition viz. Writ Petition No. 1774 of 1996 in his name seeking a declaration of the invalidity of the road blockades made by the respondents at various points and at different roads of Rawalpindi City. This petition was directed.to be heard alongwith the present suo motu contempt proceedings. The said petition is being disposed of by-a separate judgment today. 3. Through various letters and communication addressed to this Court from various areas of the Province, it was brought to notice that road blockades were not confined to Rawalpindi alone but all over the Province. Number of lawyers and citizens appearing before me on 27th and 28th October, 1996 made complaints of road blockades that made it difficult for them to reach this Court. Number of citizens appears in Court on 27-10-1996 to complaiq that they were not being permitted to leave Rawalpindi and to go to other stations like Gujar Khan etc. 4. In this judgment apart from the question of contempt of this Court, the validity of the road blockade in question (the one mentioned in the beginning) will have to be of necessity examined because if it is concluded that the act of blockade was without sanction of law, the contempt would stand aggravated. If, however, the conclusion is that the respondents have the jurisdiction and the legal authority to raise the blockade as they have done in this case, the question of contempt would still be relevant but without aggravation. It is on account of this that the exercise undertaken in these proceedings was widened and the learned counsel and Law Officers were directed to assist not only on the question of contempt of Court but also on the question of legality of the act of blockade. 5. Article 15 of the Constitution of the Islamic Republic of Pakistan confers a fundamental right of free movement throughout Pakistan on every citizen, subject to any reasonable restriction imposed by law in the public interest. Article 16 of the Constitution of the Islamic Republic of Pakistan confers on every citizen the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order. The other relevant statutory provisions are sections 31 and 33-A(l)(a)(d) (h) (m) of the Police Act, 1861, which are reproduced as undjer:-- "31. Police to keep order in public roads, etc. It shall be the duty of the police to keep order on the public roads, and in the public streets, thoroughfares, Ghats and landing places, and at all other places of public resort, and to prevent obstructions on the occasions of assemblies and processions on the public roads and in the public streets., or in the neighbourhood of places of worship, during the time of public worship, and in any case when any road, street, thoroughfare, Ghat or landing place may be thronged or may be liable to be obstructed. 33-A. Powers of the District Magistrate to make rules regarding use of streets, etc. (1) In any town or other place in which he thinks fit, the Magistrate of the District may, from time to time and subject "to such order as may have been made by a Municipal or other authority empowered in that respect, make rules or orders (a) closing certain stfeets or places temporarily, in cases of danger from ruinous buildings or other cause, with such exceptions as shall appear reasonable: (d) prohibiting the hanging or placing of any cord or pole across a street or part thereof, or the making of a projection or structure so as to obstruct traffic or the free access of light and air; (h) prohibiting, save under such regulations as aforesaid, the exposure or movement in any street of persons or animals suffering from contagious or infectious diseases and the carcasses of animals or part thereof and the corpses of persons deceased; (m) regulating the movement of persons, animals and vehicles at such times and such places at which, in the opinion of the Magistrate, special regulations may be necessary for the public safety and convenience;" Section 32 of the Police Act, 1861 provides penalty for disobeying the orders passed in the last three preceding sections while section 34 of the Act also provides penalty for committing the prescribed offences on the road. 6. Section 78 of the Motor Vehicles Ordinance, 1965 empowers the Government or any other authority on its behalf to restrict the use of vehicles on road or bridge. The said section is also reproduced below:-- "Section 78. Power to restrict the use of vehicles. Government or any authority authorised in this behalf by Government, if satisfied that it is necessary in the interest of public safety or convenience, or because of the nature of any road or bridge, may, by notification in the official Gazette, prohibit or restrict, subject to such exceptions and conditions as may be specified in the notification, the driving of motor vehicles or of any specified class of mctor vehicles or the use of trailers either generally in a specified area or on a specified road or bridge, and when any such prohibition or restriction is imposed, shall cause appropriate traffic signs to be placed or erected under section 79, at suitable places in such area on or near such road or bridge, as the case may be: Provided that where any prohibition or restriction under this section is to remain in force for a period of not more than one month, notification thereof.shall not be necessary." Other relevant statutory provisions are those contained in sections 133 and 144 of the Criminal Procedure Code, 1898. Under the former obstruction/public nuisance on the road can be got removed in the manner laid down therein while the latter empowers the Magistrate of the District to pass certain orders specified therein. The onus to justify the blockade lies heavily upon the respondents who had to show that the blocking of the aforesaid road through heavy stones, concrete beams and containers placed across the road from one end to the other, is valid. During the course of hearing, the respondents-officers were questioned as to whether any written order directing blocking the road was passed and, if so, under what provision of law. The District Magistrate admitted that he had not passed any order in writing either under section 31 or under section 33-A of the Police Act, 1861 or under section 78 of the Motor Vehicles Ordinance, 1965. His learned counsel, however, did rely on an order, dated 18-9-1996 passed by him under section 144 of the Criminal Procedure Code, 1898 prohibiting the taking out of the procession within the revenue limits of Rawalpindi District and further prohibiting assembly of five or more persons at any public place. This order was to remain in force for two months. As will be seen, learned counsel for the respondents heavily relied on this order to support the road blockade. Some material such as F.l.Rs. recorded at various police stations in District Jhelum and others have also been placed on record to show that the marchers/protesters coming from various areas towards Rawalpindi had damaged police property and also caused injuries to the officials/constables. The bare perusal of the above provisions of law makes it abundantly clear that there is no power with any of the respondents to completely and totally block any road or public street or path, at least during peace time and when the above fundamental rights are intact. All that they can do is to regulate the use of highways and road, and that also after observing the formalities and pre-conditions stated in the relevant statutory provisions and after giving due publicity to the same so as to cause minimum inconvenience to the users of the roads. Since it is not the case of the respondents that they acted under the provisions of the Police Act, 1861 or Motor Vehicles Ordinance, 1965, no further comment need be offered on these provisions except to state that these sections are only enabling provisions and the same postulate a formal order being passed by a competent authority before the same is implemented/enforced. Raja Muhammad Bashir, learned Deputy Attorney-General for Pakistan, while taking no sides during the course of his address, cited a case entitled Qari Abdul Hameed Qadri v. District Magistrate, Lahore and another PLD 1957 (W.P.) Lah. 213 to point out what is reasonable restriction and that the right can be totally prohibited by law. The statement of law may be correct but cannot arise for application in this case inasmuch as the reasonable restriction has to be imposed by law and not by an order under the law. In other words, the right of freedom of movement and assembly can be subjected to reasonable restriction by making a law not by issuing an order. As noted in this case, none of the respondents claimed to have passed any order under any provision of law empowering them to block the road. In this view while it may be correct to say that the rights conferred by Articles 15 and 16 of the Constitution of the Islamic Republic of Pakistan can be partially and completely prohibited, this statement of law is not attracted to the present situation. Sardar Muhammad Ishaq Khan, Advocate, representing respondents forcefully submitted that the blockade should be upheld by this Court as the respondents were apprehending armed marchers into the city of Rawalpindi and had the road not been blocked, there was serious danger to the life, liberty and property of the general public. In his further submission the order promulgated under section 144 of the Criminal Procedure Code, 1898, dated 18-9-1996, although in terms does not authorise blocking the road but in order to prevent assembly of five people the blockade will have to be justified and declared to be covered by the aforesaid order under section 144 of the Criminal Procedure Code, 1898. I am afraid the argument is untenable for number of reasons. One major reason is that the blockade also affected the innocent users of the roads. Even the ordinary citizen not concerned with the protest and lot of persons wanting to leave the city of Rawalpindi, were prohibited from doing so. If the respondents in their own judgment were clear about the gravity of the situation and the threat of incoming protesters, they were called upon to use their wisdom to avoid the threat as also to see the innocent users of road particularly persons desiring to go out of the city are permitted to do so or at least are put to minimum inconvenience. No such measures seem to have been taken nor the learned counsel in the course of his address indicated the steps taken to minimise the miseries of ordinary users of roads particularly school children and patients etc. It seems that respondents were not aware of the consequence of the blockade and they were obsessed with the idea of stopping the incoming marchers. The act of blockade in any case seems to be completely disproportionate to the problem faced by the respondents. It will have, therefore, to be concluded that in blocking the road at the point indicated in the beginning of this judgment, respondents had no legal authority. This takes me to the question of contempt. As seen in the order, dated 28-10-1996 and as gathered later on that day on account of the aforesaid blockade of the road most of the lawyers. Court's officials and litigants could not reach this Court. Majority of the cases on 27-10-1996 had to be adjourned for non-availability of the learned counsel. Those who reached the Court could manage it with extreme difficulty and inconvenience and by adopting routes normally not used. Even the learned Deputy Attorney-General for Pakistan stated that he suffered the same treatment on the said day and could reach the Court with difficulty. Although from complaints made in Court, from press reports and other material, it could be gathered that the entire city life had been frustrated on that day due to blockades erected at various points, I am avoiding taking those into count and confining myself to the fact of the blockade noted above. To me this blockade of the road was totally unnecessary if the idea was to stop the incoming marchers. Just about 300 yards towards Lahore side, the Sowan Bridge (Nala Lae) had been blocked on both sides by placing heavy concrete beams across the road. No marcher coming from southern cities to Rawalpindi could have crossed the bridge but in their wisdom, the respondents also erected the disputed barrier. This barrier created hindrance to the working of this Court inasmuch as lawyers, Court's officials, litigants and even the Judges coming from Rawalpindi City could not come to the High Court without the courtesy of the police force manning the blockade. This clearly amounts to hindering the administration of justice and frustrating the working of this Court. Sardar Muhammad Ishaq Khan, Advocate, however, has defended his clients by urging that his clients never intended to either create hindrance in the way of the relevant persons to approach this Court or to frustrate in any manner the working of this Court. Even if that be so and it may be accepted that respondents had no intention to frustrate the working of this Court, this does not mean that their action would not amount to contempt of Court. Section 3. of the Contempt of Court Act, 1976 defines contempt and it is wide enough to include ;-.n act winch "tends" to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings and so on. The respondents being in control of the district administration must be affixed the responsibility and the knowledge of the consequence of the road blockade. If they were unaware that they would be adversely affecting the working of this | Court, one can only pity their wisdom and power of analysis. A person has to own the logical result consequence of the act whether that consequence is intended or not. The argument, therefore, is no avail to the respondents in so far as the determination of the question of contempt is concerned. It may be relevant to the question of the sentence. Number of reported judgments have'been placed before me touching the question of contempt and also as to when the same should be used. With reference to these judgments, it is pointed out that the power of contempt should be used sparingly, in the case of contumacy, only to vindicate the honour of the Court and not to wreck any vengeances. The judgment has also been cited by both Sardar Muhammad Ishaq Khan, Advocate, as well as Mirza Anwar Baig, Advocate, to throw light on the quantum of punishment. For instance in case entitled Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237 it was held that reprimand is a recognised mode of punishment where offence is not grave. Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the respondents has also urged that the contempt proceedings being criminal, all doubts have to be excluded before recording conviction. For this purpose case titled Mian Qadiruddin and another v. Mian Ghulam Yaqoob Bandey and another 1977 SCMR 475 was cited. The precise nature of the contempt jurisdiction has been examined by the Supreme Court of Pakistan in number of cases. In case titled Saadat Khialy, Staff Rerorter ("Kohistan" Daily) and others v, (1) The State (2) Shama Overseas (Private) Ltd. PLD 1962 SC 457 the Supreme Court of Pakistan held this jurisdiction to be sui generis, neither wholly criminal nor wholly civil but 'partaking of both. As late as 1996, the Supreme Court of Pakistan in case reported as The State v. Khalid Masood, Regional Director, Pakistan Narcotics Control Board, Lahore and 3 others PLD 1996 SC 42 held that rules of criminal jurisprudence viz. where two views are possible one in favour of the accused should be adopted, is not applicable to administrating the contempt law. The preponderance of view, therefore, is that the strict rules of criminal administration of criminal justice do not apply while dealing with contempt matters. 15. Sardar Muhammad Ishaq Khan, Advocate, for the respondents has also relied on apology tendered by the respondents in their written statement. Number of judgments both by him as well as Mirza Anwar Baig, Advocate, have been cited on the question of apology namely what is an apology, when it is to be accepted and when it purges the contemner. The principle of law which can be deduced from the earlier precedents is that the apology has to be unconditional, made at the earliest, without any efforts to justify the act of contempt and should reflect genuine remorse and contriteness on the part of the contemner. In some cases such an apology can be held to have purged the contemner while in majority the apology has been taken into consideration as a!- mitigating circumstance for imposing a sentence. ' As a result of the above discussion and -keeping the principles of law noted above, in view, I hold that the act of blocking the road aforesaid and denying the use of road to persons desiring to approach this Court is an act calculated to hinder the working of this Court and to frustrate the administration of justice. Even if the respondents did not intend such a result, their action is covered by the definition of contempt as laid down in section 3 of the Contempt of Court Act, 1976. I, therefore, hold each of the three respondents guilty of the same. Although the blockade has been held to be without sanction of law but I would accept the argument of both Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the respondents and that of Mirza Anwar Baig, Advocate, that this Court should take a lenient view on the question of sentence. This argument has further to be accepted inasmuch as each of the learned counsel appearing stated that this case seems to be the first of its kind and that none of them has been able to get hold of any precedent case whereby the senior Officers of the District were proceeded against in contempt, in these circumstances. Since the purpose is to vindicate the majesty -of law and the honour of the Court, after holding them guilty as aforesaid I would only impose a sentence of fine of Rs.100 upon each of the three contemners namely Javed Iqbal Awan, Deputy Commissioner/District Magistrate, Tallat Mahmood, Deputy Inspector-General of Police, Rawalpindi and Mushtaq Shah, Senior Superintendent of Police, Rawalpindi. In default each of the contemner shall suffer S.I. for one day only. Vide order, dated 6-11-1996 contempt notice was also issued to Syed Safeer Hussain Shah Sherazi, Deputy Superintendent of Police, Saddar Circle, Islamabad for causing obstruction in the way of my learned brother Mr. Justice Muhammad Nawaz Abbasi while his lordship was proceeding to come to this Court. In reply it has been submitted that no blockade was made in the road falling under his control. This assertion remained unrebutted. In the circumstances, the notice issued to Syed Safeer Hussain Shah Sherazi, Deputy Superintendent of Police/Sub-Divisional Police Officer, Saddar Circle, Islamabad, is hereby withdrawn. In the end, I must place on record the valuable assistance rendered to me in this case by Mirza Muhammad Anwar Baig, Advocate, President, Lahore High Court Bar Association, Rawalpindi Bench, and Raja Muhammad Bashir, Deputy Attorney-General for Pakistan. (AAJS) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 967 Present: MUHAMMAD NAWAZ ABBASI, J. GHULAM MUSTAFA-Petitioner versus S.H.O., POLICE STATION ZAHIR PIR DISTRICT RAHIMYAR KHAN and another-Respondent Criminal Miscellaneous No. 459/H of 1996/BWP, decided on 12.12.1996. Criminal Procedure Code (V of 1898)-- -S. 491-Habeas corpus-Petition of--As per Bailiffs report detenu was found detained in police station in handcuffs and fetters without any entry in Roznamcha-Stsitement of detenu regarding his having been taken into, custody hy the police about 20 days ago was supported by Bailiff-S.H.O. denied contents of bailiffs reports stating that detenu being required in a case-In view report of Bailiff and statement of detenu, bare denial of S.H.O. was not sufficient to accept--Detenu was set at liberty. [Pp. 967 & 968] A & B P.A. Farooqi, for Petitioner. Malik Muhammad Aslam, for Respondent. order The report submitted by the bailiff reveals that Muhammad Ajmal detenu was found in the gallery of a room of police station in handcuff and fetters. The Roznamcha does not contain entry relating tothe arrest of the detenue. The detenue states that he was taken into custody about 20 days ago which fact is also mentioned in the report of bailiff. He also makes complaint of torture by S.H.O. 2. The S.H.O. denies the contents of the report stating that detenu being required in case F.I.R. No. 198/96 registered under section 458/380, P.P.C, on the report lodged by Haji Ghulam Nabi was taken into custody on 11.12.1996 at 4 p.m. Keeping in view the report of bailiff and the statement of detnue, the bare denial of S.H.O. is not sufficient to accept that detenue was taken into custody shortly before the visit of bailiff. 3. Let a copy of this petition alongwith the report of bailiff be sent to S.S.P., Rahim Yar Khan who looking into the conduct of S.H.O. Shall conduct an inquiry into the matter and ascertain the correct position. he allegation of illegal detention with torture and making police station as private jail curtailing the liberty of citizen if found correct shall proceed against the S.H.O and other police officials involved in the case and fix their liability for departmental action under the Police Rules in addition to the criminal liability if any. The report of the action taken by S.S.P. shall be submitted to the Deputy Registrar of this Court within 15 days. 4. Muhammad Ajma detenue is set at liberty. He may if so advised proceed against the S.H.O. separately through a private complaint. However, this order will not affect the investigation of the case by the S.H.O. With the above observation this petitions tands disposed of. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 968 (DB) Present: sh. ijaz nisar and raja muhammad khurshid, JJ. RIAZ MUHAMMAD and another-Appellants Versus THE STATE-Respondent Criminal Appeal No. 516 and Murder Reference No. 175 of 1991, heard on 5th November, 1996. (i) Expert Opinion- -Expert's opinion-Opinion of an Expert cannot be safely equated with evidence of a person who had actually seen event-Due importance and weightage should be given to the testimony of an eye-witness vis-à-vis opinion of an Expert. [P- 974] D (ii) Pakistan Penal Code (XLV of 1860)-- -S. 302/34-Murder-Offence of--Conviction for-Challenge to-- Identification of accused by prosecution witnesses during occurrence was not open to any doubt-Plea of alibi taken by accused was highly doubtful and appeared to be an arranged affair with police-Eye-witnesses could not tell lie to screen original offenders qua accused particularly when one of them was real brother of deceased-Ocular account of occurrence furnished in a natural manner was supported by medical evidence- Presence of eye-witnesses at scene of occurrence could not be doubted as their names were mentioned in promptly lodged F.I.R.-Original incident shrouded in mystery as it has not been shown as to how it actually startedDeath sentence reduced to imprisonment. [Pp. 974 & 975] A, B, C, E & F Mian Aftab Farrukh and Sardar Muhammad Latif Khan Khosa, for Appellants. J.V. Gardner, for A.G. for the State. Muhammad Asghar Khan Rokhari, for the Complainant. Dates of hearing: 4 and 5.11.1996. judgment Raja Muhammad Khurshid, J.--The appellants namely Raiz Muhammad Khan and Ata Muhammad Khan were convicted under section 302/34, P.P.C. and sentenced to imprisonment for life and death rpspectively plus a fine of Rs. 25,000 or in default to suffer R.I. for 4 years each. Fifty per cent, of the fine if realised was to be paid to the heirs of the deceased as compensation under section 544-A, Cr.P.C. vide judgment dated 10.4.1991 passed by Mr. Azhar Hafeez Sheikh, Cr.P.C. vide judgment, dated 10.4.1991 passed by Mr. Azhar Hafeez Sheikh, the then learned Sessions Judge, Mianwali. 2. The learned trial Court made Murder Reference No. 175 of 1991 for the confirmation of death sentence awarded to aforesaid Ata Muhammad Khan accused whereas complainant Munir Ahmad Khan instituted Criminal Revision No. 750 of 1991 for enhancement of sentence of Riaz Muhammad Khan accused from imprisonment for life to death. A prayer was also made in the revision petition for the enhancement of fine from Rs.25,000 to Rs.50,000 to each one of the accused. Since all the three matters arise out of the same judgment, therefore, those are to be discussed and disposed of vide this rommon judgment. The brief facts are that a case under section 302/34, P.P.C. was registered against the appellants for an. occurrence which took place on 7-6-1989 at 10-00 p.m. in which Amir Ahmad, a brother of the complainant Munir Ahmad was done to death in the presence of complainant, fChalid Mahmood Khan and Sami UJlah Khan P.Ws, The motive for the occurrence was given by the complainant Munir Ahmad. It was alleged by him that on the day of occurrence at about 7-05 p.m., he was returning to his home after making purchases from Esa Khel City. When he reached the street known as Ghamtutu Wali Gali, he was confronted by Riaz Muhammad Khan and Ata Muhammad Khan accused. They started abusing him and also opened an attack upon him. The complainant also returned abuses to the ,, accused persons and also gave them fist and kick blows. In the meanwhile upon noise of the complainant the P.Ws. namely Khalid Mahmood Khan and Sami Ullah Khan were attracted to the spot and had seen the aforesaid incident. The complainant alongwith his brother Amir Ahmad deceased and the aforesaid P.Ws. were going to the police station to lodge a report about the aforesaid incident that the murder took place at about 10-00 p.m. on the main road near Badminton Club. Both the accused while acting in furtherance of their common intention committed the murder of the deceased. Out of them Ata Muhammad Khan fired from his .12 bore pistol on the Lalkara of Riaz Muhammad Khan thereby causing fatal fire-arm wound at the chest of the deceased. Another motive for the occurrence was disclosed by the complainant in the F.I.R. The motive was that 2-1/2 years prior to the present occurrence, he (complainant) picked up a row with Riaz Muhammad Khan'accused on the payment of some money; that resulted into ineffective firing by the complainant upon the accused Riaz Muhammad Khan, but the matter was later settled between the parties through brotherhood. However, the accused nursed grudge, which ultimately led to the murder of the deceased. The prosecution examined two witnesses including the complainant to prove its case against both the accused. In addition to that recovery of .12 bore pistol P.4 was effected from Ata Muhammad Khan accused. It was allegedly the weapon of offence. The medical evidence was also put hi the witness-box to prove that the deceased died on account of fire-arm injuries and that Riaz Muhammad Khan accused had also injuries on his person as detailed by Dr. Aale-Rasool P.W.12, Besides examining the Investigating Officer, other police officials were also examined, who had dealt with the case property and parcels prepared during the investigation, relating to this case. The draftsman was also examined to prove the site plan pertaining to the place of occurrence and the position existing at the site as shown to him by the eye-witnesses at the time of occurrence. The accused were examined under section 342, Cr.P.C. but they denied to have committed the occurrence and took up the plea that they were falsely implicated in this case on account of enmity with the complainant side. They also tried to make it clear that they had conflicting interests inter se. We have heard the learned counsel for the parties. It is contended by the learned counsel for the appellants that the prosecution has not been able to prove its case beyond any reasonable doubt. In this respect it was alleged that Riaz Muhammad Khan accused was shown empty-handed and had only raised Lalkara. The motive about the occurrence was that he had picked up a row with Munir Ahmad complainant. Had the complainant been present at the spot, he would have been the victim of the assault instead of his deceased brother for whom, there was no motive. It was further contended that both the P.Ws. were inimical to the accused persons and they involved them hi this case in order to quench thirst of their enmity; that F.I.R. was the result of mutual consultations and deliberations and a false story was cooked up in order to rope the accused persons who had nothing to do with the occurrence; that the complainant side including the deceased was aggressor, who had many enemies having been involved in a number of criminal cases; that due to their highhandedness many persons were aggrieved of their conduct and that some body taking advantage of the deserted place and darkness killed the deceased. Both the accused were involved by the complainant in this case to take revenge from them regarding past enmity, The medical evidence was also allegedly inconsistent and belied the prosecution case; that injuries to the deceased were the result of a single fire, but on the contrary it showed that there were 3 shots fired at the deceased. Lastly it was contended that the motive was not proved and was only invented in order to cook up a false story to involve both the accused in this case. The recovery of weapon of offence from Ata Muhammad Khan was denied on the ground that it was just a fabrication on the part of the police. Even otherwise it carried no value because no empty was collected nor the weapon of offence was sent to Ballistic Expert to find out whether the same was used or not during the occurrence. Advancing the defence version, it was contended that Ata Muhammad Khan accused had taken up the plea that he was arrested by the police and confined in police Sock-up at Police Station Paizu, which was at a distance of about 40 miles from Tehsil Lakki Manvat. Even otherwise he was falsely implicated in this case on account of enmity with the complainant side. The other accused Riaz Muhammad Khan also took up the plea that he was made a victim in this case only because of enmity although he never joined hands with Ata Muhammad Khan to kill the deceased. As such, it was urged that both the accused were innocent and that die prosecution case against them was highly doubtful. A prayer for their acquittal was accordingly made as the case against them was allegedly not proved by the prosecution beyond any shadow of doubt. The learned counsel for the State supported the prosecution case with the plea that two eye-witnesses belonging to the locality were produced. Those witnesses had allegedly no reason to implicate both the accused falsely in this case; that the plea regarding darkness was incorrect as there was an electric bulb near the place of occurrence which was providing light at the relevant time. The motive was allegedly proved against the accused to mount an attack on the deceased; that the medical evidence was in accord with the ocular account of occurrence given by the eye-witnesses and as such there was no intrinsic inconsistency between the two sets of evidence so as to make the prosecution story doubtful in any manner. The accused Ata Muhammad Khan led to the recovery of weapon of offence i.e. .12 bore pistol P.4, which further linked him with the occurrence as the injuries found oa the person of die deceased were caused by fire-arm; that the F.I.R. was promptly lodged i.e. within 20 minutes of the occurrence thereby providing no chance for fabrication or twisting of the actual facts; that story of the prosecution supported by the prompt registration of die case gives truthful colour to the occurrence, which has clearly been supported by the eye-witnesses as stated above. It was, dierefore, prayed that the prosecution had proved its case against both the accused and there was no substance in the arguments that they were entitled to the benefit of doubt. We have considered the above arguments addressed at the Bar. First of all, we would like to deal with the ocular account of occurrence. Munir Ahmad (P.W.9) is the complainant of this case. He is real brother of the deceased. The only instinct on his pan would be to name only such persons to be the killers of his brother, who had actually done him to death. Hence there can be no chance that he would involve the innocent persons in this case. It is true that complainant was the only witness regarding the motive of occurrence, which took place 2 or 2-1/2 years back in which he had picked up a row with Riaz Muhammad Khan accused resulting into his ineffective firing upon him. However, the matter did not proceed farther because no damage was done due to that firing and it was got settled in the brotherhood. The parties however, lived thereafter without any confrontation'till the present occurrence took place. On the day of occurrence both the accused had taken upon the complainant at about 7-00 p.m. in the street known as Ghamtutu Wali Gali and there was exchange of abuses and fist blows etc. in chat incident. On the same day at about 10-00 p.m. the unfortunate occurrence resulting into the murder of the deceased took place when the latter was accompanying the complainant to the police station for reporting the above incident. The injuries on the person of Riaz Muhammad Khan accused showed that he had suffered those injuries 2 or 3 hours before his examination by Dr. Aal-e-Rasooi P.W.12 at 7-45 p.m. on 7-6-1989. This substantially and approximately respond to the incident in which there was quarrel, grappling and exchange of fist blows as stated by the complainant. This corroborates the truthfulness of the motive because there is no plausible explanation of those injuries from the accused side. The question that the prosecution had fabricated the case by stopping the case diary does not appear to be convincing because the F.I.R. was lodged within 20 minutes of the occurrence, which showed that there was no time for such manipulation or consultation to cook up a false story. The prompt lodging of the F.I.R. is itself a corroborating factor of the story given by the eye-witnesses. The name of eye witness namely Khalid Mahmood was mentioned in the F.I.R. as also in the inquest report Exh.P.C., which further corroborates that both the witnesses namely Munir Ahmad and Khalid Mahmood were actually present at the place of occurrence. 14. After coming to the conclusion that both the eye-witnesses were present at the spot, it shall have to be considered whether their evidence should be relied upon in order to pass judgment against the accused persons. It is contended from the defence side that electric connection of the street light of Tehsil Colony up to the Civil Rest House was disconnected on 12-1-1989 for the non-payment of bills and that energy had not been restored,'on account of the outstanding bills till the occurrence took place. It may be pointed out that the Badminton Club where the occurrence took place is not shown to be a part of- the Tehsil Colony or the Civil Rest House, Isa Khel, although service line of the electricity may be passing in front of the Badminton Club, but it cannot be safely said nor it had been brought on record that in fact there was no light at the place of occurrence. On the contrary, the site plan Exh.P.I. clearly showed an electric pole about 59 feet away from the place of murder, having a bulb emitting rays of light. This shows that the plea of the defence that there was not electric light near the place of occurrence is falsified from the documentary evidence particularly when the defence evidence examined at the trial on that point is not of satisfactory nature. The service line may have been disconnected from the Tehsil Colony up to the Civil Rest House, but there may be some other line to provide light to the Badminton Club and its vicinity. The fact that a burning bulb was shown near the place of occurrence in the site plan would itself show that the prosecution story is not only truthful but reasonably convincing that there was electric light near the place of murder. Assuming for the sake of argument that there was darkness at the spot as alleged by the defence, even then the possibility of recognizing the accused from their voice or Lalkara cannot be ruled out as they were known to P.Ws. being from the-same village. As such there can be no doubt regarding the identity of the accused in this case nor any such point was ever taken at the trial stage. Even otherwise it deserves no merit because an electric bulb was providing light near the place of occurrence. The parties were known to each other. They were well-known to each other and as such could be easily recognized through their voice. Hence there is obviously no possibility of any kiad of doubt about the identity of accused by the P.Ws. during the occurrence. 15. There is some evidence of criminal litigation against Munir Ahmad complainant and other witnesses namely Khalid Mahmood. However, these involvements are not of such nature, which would compel Munir Ahmad complainant to falsely implicate both the accused in this case for the murder of his brother and let the actual offenders escape scot free. It is true that Munir Ahmad complainant was involved in certain criminal cases, but was acquitted in appeal. Likewise involvement of Khalid Mahmood P.W. against Ata Muhammad Khan accused etc. would not show that the present occurrence was a cooked up affair. The accused Ata Muhammad Khan tried to invent a story by saying that he was held up and detained at the Police Station Paizu, District Bannu. This appears to be a cock and bull story. It was never given as first version before the Investigating Officer, but was introduced at the trial. Even otherwise it is not credible because his arrest was never reported nor any order of a Court was obtained in the matter. The record of the police station shows that the pages of the daily diary containing entry regarding arrest of the aforesaid accused were detached and pinned with other pages instead of being at their regular place. Even Report No.7 of the daily diary dated 8-6-1989 was not signed by the S.H.O. of the police station concerned. The S.H.O., Police Station Paizu (Naik Nawaz) admitted that he had to face an inquiry regarding entry in the daily diary of the Police Station, Paizu in respect of arrest of Ata Muhammad Khan accused. He stated that he was suspended and was still under suspension when he appeared as a witness. He also admitted that inquiry against him was initiated at the complaint of the complainant party. This makes the plea of alibi highly doubtful and appears to be an arranged affair with the police. It is only for that reason that even the Report No.7 was not signed by the S.H.O. concerned whereby Ata Muhammad Khan accused was allegedly released on bail. Likewise is the story about disconnection of the service line of the Badminton Club etc. as stated above, though there was a bulb giving light near the place of occurrence. Similarly the report of Chairman, Zakat and Ushr Committee is also of no avail nor it is likely to affect the evidentiary value of any of the eye-witnesses because they would not teSl lie to screen the original offenders qua the present accused particularly when one of the witnesses is the real brother of the deceased. Conversely it becomes evident that the prosecution version was supported by the eye-witnesses in a natural manner. The medical evidence also supports the eye-witnesses regarding fire made by Ata Muhammad Khan accused upon the deceased. Both the witnesses have stated that Riaz Muhammad Khan had raised Lalkara to teach a lesson for abusing and beating him whereupon Ata Muhammad Khan accused fired at the deceased Amir Ahmad causing him fatal injury. 16. The learned counsel for the defence had contended that nature and number of injuries would disclose tha? injuries Nos. 1 to 3 were the result of one shot whereas injuries Nos.4 to 7 were caused by another shot and injury No.8 was yet the result of 3rd shot. It was allegedly so because injuries on the person of the deceased were said to be diagonally opposed, having been noticed on front, back and side ways of his body. Such injuries could not possibly be caused with a single shot. In this connection a reference was made to the statement of Dr. Zafar Ullah Khan P.W.I, who was of the opinion that injuries Nos.4 to 6 could be caused as a result of one fire and rest of them by another fire if the deceased was standing still in anatomical position at the time of firing upon him. It was pointed out that even according to the Medical Officer, injuries were caused at least by 2 shots whereas according to the eye-witnesses only one shot was made. We have given our careful consideration to this aspect of the medical evidence. First of all, we must point out that fire was made from some distance at the deceased and due to dispersal of pallets, the deceased suffered multiple injuries on different parts of his body. The injuries were admittedly found on the front, back and other extremities of his body. However, that would not mean that those were caused by 3 different shots as allegedly by the learned counsel for the defence or by 2 shots as stated by the Medical Officer. The opinion of the Medical Officer was conditional to the posture of the deceased at relevant time. He was of the view that injuries with 2 shots were possible only if the deceased was standing still in anatomical position. It is obvious that a living object cannot stand still like a statute, muchless on such-like occasion. Even otherwise opinion of an expert cannot be safely equated with the evidence of a person, who had actually seen the event. It is said, seeing is believing. As such, due importance and weightage should be given to the testimony of an eye witness vis-a-vis opinion of an expert. But in this case, there is no intrinsic or credible contradiction between the medical and the ocular evidence in respect of the single shot qua the injuries found on the person of the deceased, which could be the result of one shot due to body movement. As such the medical evidence supports the eye-witnesses on this point. The presence of eye-witnesses on the spot cannot be doubted as their names were mentioned in the promptly lodged F.I.R., thereby ruling out the possibility of their association with the case at some later stage. The recovery of weapon of offence i.e. .12 bore pistol P.4 cannot be used as a corroborative piece of evidence because no empty was recovered or sent to the Ballistic Expert so as to show that it was wedded to the crime weapon. However, there is sufficient evidence to show that prosecution had proved its case beyond any reasonable doubt against both the accused, as detailed above. The defence evidence has also been discussed and discarded by us. The offence of murder against both the accused is, therefore, proved and they have been rightly convicted under section 302/34. P.P.C. by the learned trial Court as there was a community of purpose and they had acted in furtherance of their common intention as would be clear from the incident, which took place at about 7-00 p.m. before the murder of the deceased at 10-00 p.m. 19. Now the question of sentence would arise. The sentence of imprisonment for life for life awarded to Riaz Muhammad Khan accused by the learned trial Court is upheld and it does not call for any interference. The appeal to his extent is dismissed in toto. In case of Ata Muhammad Khan it will be clear that the original incident which occurred at 7.00 p.m. is shrouded in mystery as it has not been shown as to how it actually started. The confrontation of the parties was also incidental. In such a situation and keeping all the facts in view it will suffice the ends of justice if the sentence of Ata Muhammad Khan accused is reduced from the sentence of death to the sentence of imprisonment for life. It is accordingly reduced to the imprisonment for life, but the sentence of fine as awarded to him by the learned trial Court is upheld. The benefit of section 382-B, Cr.P.C. shall be available to both the accused. The appeal of Ata Muhammad Khan is also dismissed with the above modification in sentence. 20. The Criminal Revision Petition No. 750 of 1991 being without merit is dismissed as a consequence of the above findings. 21. The death sentence awarded to Ata Muhammad Khan is not confirmed. The Murder Reference No. 175 of 1991 is accordingly answered. (AAJS) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 976 (DB) Present: qazi hamiduddin and zeeant khan, JJ. KACHKOL-Appellant versus THE STATE-Respondent Criminal Appeal No. 104 of 1994 and Murder Reference No. 10 of 1974, decided on 22.11.1996. (i) Pakistan Penal Code (XLV of I860)-- -Ss. 302/34 & 201/34-Appraisal of evidence-Motive not proved-Recovery of dead body from inside Kotha of deceased by itself did not connect accused with commission of crime whose involvement in case a; promoted by rumours and suspicion prevailing in area about :heir dubious relations mferse which fact was not legally ;-roved--Recovery of weapon of offence (axe) from house of accused vas not only extremely doubtful, but use of same as crime weapon was also highly doubtful--Recovery of clothes of deceased was also unnatural and was not proved beyond doubt-Similarly recovery of shovel and its use in commission of offence was doubtfulSuspicion in case against both accused had led to concoction, planting of evidence and tutoring of confessions and suspicion giving birth to so many ills could not be relied upon for upholding prosecution story as it could not take place of proof of crime-Accused acquitted in circumstances, [Pp. 983 to 986, 988, to 990] B, C, D, E, F, G, H, I, & J (ii) Witness Veraci'ty of testimony of a witness is not determined only from the fact of his being truthful or a liar by nature but also from the fact as to how far he is careful and cautious in his dealings and particularly as to whether he is in the habit of ascertaining correctness of his statement. [P. 982] A Ishtiaq Ibrahim, for Appellant. Roshan Khan, for the State. Date of hearing: 18.10.1995. judgment Qazi Hamiduddin, J.-Kachkol son of Sanab Gul and Mst. Yasmin widow of Wareed Gul resident of Village Isrnaila, Tehsil and District Swabi were tried for offence under section 302/201/34._P.P.C. and section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the learned Additional Sessions Judge, Swabi who vide his judgment, dated 24.4.1994 convicted both the appellants and sentenced them to death as Tazir under section 302, P.P.C. He convicted and sentenced the appellants to seven years' R.I. each and fine of Rs, 10,000 each or in default to suffer further R.I. for one year each under section 201/34,-P.P.C. The appellants were, however, acquitted of the charges under section 5/30 of the Zina Ordinance. Feeling aggrieved of the said judgment both the appellants have preferred the present criminal appeal from jail. There is also Murder Reference No. 10 of 1974 filed by the learned Additional Sessions Judge, Swabi under section 374, Cr.P.C. for confirmation of death sentences of both the appellants. Both the appeal and the murder reference are to be disposed of by this single judgment. Facts of the prosecution case in brief are that on 19-9-1991 at 11-00 hours, Mst. Yasmin wife of Wareed Gul deceased went in the company of Muhib Gul father of the deceased to Police Station Kalu Khan and while recording her report (Exh.P.Z.) about the missing of her husband she stated therein that her husband Wareed Gul had left his house for the last 8 days telling her that he was going to Mardan for attending "Shabi Jumma' and when he did not return home till 2/3 days she informed Muhib Gul, her father-in-law and her other relatives. She did not charge any one ic the report. However, she stated that her husband had friendly relations with Kachkol resident of Ismaila who was running a shop near their house and both the deceased and Kachkol appellant were on visiting terms with each other. P.W.9, Muhammad Anwar, A.S.-I. after recording the report in the daily diary obtained thumb-impression of the complainant Mst. Yasmin as also of Muhib Gul father of Wareed Gul deceased. He sent the D.D. to Police Station Kalu Khan for obtaining permission for investigation under section 156(3), Cr.P.C. He then went to the house of the deceased Wareed Gul alongwith the abovemennoned two complainants and the general public and during search of the house of the deceased the said A.S.-I. suspected a place inside the Kotha' which was newly plastered with mud. He dug out that place wherefrom dead body of Wareed Gui deceased was recovered which was identified by Muhib Gul father of the deceased, who then made a report to the said A.S.-I. on the spot on !9-9-1991 at 16-00 hours as per Murasila Exh.P.A./l on the basis of which case was registered under section 302/34/201, P.P.C. as also under section 5/10 of the Offence of Zina {Enforcement of Hudood) Ordinance, 1979 vide F.I.R. p>,h.P.A, in Police Station Kalu Khan on the same day at 17-15 hours wherein cur.ipiaiaant Muhib Gul has stated that he had gone to Abbottabad to earn his iiiciihood some 2/3 years back. He received information that whereabouts of his son were not known for the List 7/8 days prior to the lodging of the report. He came to the house of his son Wareed Gul and alongwith his daughter-in-law Mst Yasmin wens to the police station where Mst. Yasmin lodged the report about the missing of her husband- Then with the help of the relatives the police earched the house of the deceased and from a ' Kotha' thereof the dead body of the deceased was recovered from a ditch, who was killed with a sharp-edged weapon. After having satisfied himself the complainant Muhib Gul charged his duughrer-in-iaw Msi. Yasrnin and Kachkol son of Sanab Gui for committing the .Tiurcer of his son and burying the dead body in the "Kotha' of the house of the deceased for concealing it. Motive for the offence was staled to be illicit relations between Kachkoi and Mst. Yasmin appellants and for these relations they conspired arid killed the deceased, 't. The Investigating Officer then prepared the injury sheet- and inquest report Exh.P.M./2 and Exb.P.M../3 respectively of the deceased. He also prepared the site piaa Exh.P.B. and got post-mortem on the dead body of the deceased on the spot by Dr. Ikramuliah (P.W. 4), .Medical Officer Incharge of Civil Hospital, Kalu Khan on 19-9-1991 at 5-00 p.m. The Investigating Officer then carried cut iiie house search of Kachkol appellant .and recovered a blood stained axe P.i;A ; as the weapon of offence from inside the house which was stained with blood at the handle and prepared the recovery .memo. Exh.P.R. to that effect. The appellant Mst. Yasmin was produced oa 21-9-1991 before Rizwamillah Khan the M.I.C., Swabi for recording her confessional statement which was recorded as Exa. P.W.I/I. Appellant Kachkol was absconding, hence Imam Din F.C.I 9 (P.W.2) was entrusted with the warrant of arrest under section 204, Cr.P.C. which he returned unserved alongwith 204, Cr.P.C. which he returned unserved alongwith his report Exh.P.2/1. He was then entrusted with proclamation notice and the provisions of section 87/88, Cr.P.C. were complied with. After arrest of the appellant Mst. Yasmin on 20-9-1991 at her pointation S.H.O. Samar Ali (P.W.8) recovered a shovel P. 6 vide memo. Exh.P.R./3. After completion of formal investigation complete challan against Mst. Yasmin appellant and under section 512, Cr.P.C. against Kachkol appellant was submitted. Appellatf: Kachkol was also arrested on 9-11-1991. His confessional statement Exh.P.W.12/3 was recorded oa 16-11-1991 and after completion of forma! investigation against him, supplementary challan was also put in Court. Dr. Ibrarullah, Medical Officer, Civil Hospital, Kalu Khan on 19-9-1991 conducted autopsy < on the dead body of deceased Wareed Gel at 5-00 p.m. and found the following: Body was swollen, extremely foul smelling and the skin had peeled off the body. Putrefaction had set in. An incised wound 4" x 2" in front on the forehead. An incised wound size 5" x V on the left side of the skull. An incised wound size 4" x 2" 00 :he back of the skull. In l emaj_exj|rninaiign : Scaip, skull, membranes and brain were injured. Bones of the skull were fractured, Death of the deceased was opined by the doctor to be due to haemorrhage and shock and injury to the brain caused by sharp-edge/1 weapon. One Shalwar and one Bunayan of the deceased was handed over to the police alongwith the post-mortem report. Time between injury and death was stated to immediate and that between death and post-mortem was stated to be within 5 to 7 days. The post-mortem report Exh. P.M. and pictorial Exh. P.M./A are in his handwriting and correctly bears his signatures while injury sheet Exh. P.M./2 and inquest report Exh. P.M./3 are duly endorsed by him. 5. Arguments of the learned counsel for the parties were heard and the record of the case perused with their assistance. In this case the prosecution has relied on the following grounds for demanding death penalty for both the appellants which reasons have ostensively prevailed with the learned trial Court and entailed in the passing of the death sentence on both the appellants:- (i) Motive. (ii) Direct charge in the F.I.R. (iii) Confessional statements of both appellants. (iv) Circumstantial evidence corroborating the confessional statements. (v) Abscondence of the appellants Kachkol. Before discussing the reasons enumerated above this Court would like to observe that the case in hand must have created ripples of sensations subtle feeling of nausea and disgust which might have aroused euphoria for revenue and punishment of all those who could be nominated for commission of the brutal act at the time of discoveiy of the dead body of the deceased from his own house while the culprits pronounced were his own wife and her alleged paramour. There must have been a very sharp reaction of the people of the area to the gory crime and the people of the locality must have been emotionally involved to influence the investigation knowingly or unknowingly against the two culprits nominated for the crime and the investigation agency may have been swayed by the emotion and the sentiments of the people to paid up the prosecution case to obtain a conviction and appease the excited reaction of the people and to assert that the law takes its own course to bring the criminals to justice. In the light of above observation it is incumbent upon this Court, which is distant from the occurrence its emotional and sentimental reactions, both in time and space to objectively assess the evidence collected by the Investigating Agency and produced in the trial Court and arrive at a just conclusion demanded by the principles of administration of criminal justice. Before embarking upon the objective analysis of the evidence on which the prosecution has based the edifice of its case the well-settled principles of objective analysis applicable and attracted in this case are enumerated as under:- (i) Retracted confessions require unimpeachable corroborative evidence. (ii) One piece of tainted evidence cannot prove the other piece of such evidence. (iii) Suspicion cannot take the place of proof. (iv) To fill in the lacuna of the prosecution case the evidence adduced shall be subjected to more severe scrutiny and shall only be adopted when proved without any shadow of doubt. (v) The portion of the evidence in the sight plan of the crime or of pointation of places of recovery of incriminating evidence in the site plan and in the pointation plan at the instance of the P.Ws. shall be proved according to Evidence Act and the statements of the P.Ws. to the extent be treated as recorded under section 161, Cr.P.C. The motive for the offence as given out by the maker of the report Muhib Gul is that appellant Mst. Yasmin had developed illicit relations with Kachkol appellant, who had earlier endeared her husband, and obtained access to her body whenever it was conveniently possible without fear of detection. It is very strange that the revelation of illicit relationship between the two appellants dawned on the father of the deceased when he lodged the report at 16-00 hours on 19-9-1991 though on the same day at 11-00 hours when Mst. Yasmin lodged her report, duly accompanied by the complainant, to the effect that whereabouts of her husband were not known for the last 12/13 days prior to the lodging ofthe report Exh.P.Z. He was ignorant of existence of any such relationship between the appellants. It was this report lodged by the appellant Mst. Yasmin which led to the ultimate recovery of the dead body of the deceased Wareed Gul from a " Kotha' of the house in which he allegedly last resided. Now the time of recovery of the dead body and lodging of the report in the shape of Murasila must have been connived by preliminary enquiry and investigation and for nomination of the convict for the offence. Who provided this allegedly incriminating evidence and in what shape or manner is not known nor the prosecution has made any effort to unveil it and place<,it before the trial Court. Of course there are the retracted confessional statements of Mst. Yasmin and her alleged accomplice who have in their retracted confessional statements admitted such relationship between them but at the time of the report lodged by the complainant these confessional statements which were recorded later were not available nor was available any other evidence to base the allegation thereon and nominate the appellants for the offence. At this stage this Court would observe that it does not altogether exclude possibility of existence of any such relationship between the appellants but at the same time it cannot presume existence of any such relationship on the basis of the suspicions aroused through any whispering disclosures by residents of the locality. Suspicion cannot be made basis for proof of a fact, though it may be sufficient to unleash unrelenting efforts to find evidence to substantiate it when crime of such a nature is committed and may prompt the Investigating Agency to supplement the prosecution story in such a false manner as to convince the Court of the crime having beers committed for the motive spelled out in the report, 6. In the first instance the prosecution was bound to prove that the appellants lived in close vicinity to facilitate commission of the crime of adultery ; Granted that earlier the Deceased and his wife lived near the shop of the co-accused Kachkol and may be the appellants may have developed the illicit relationship but there is no evidence to the effect which may convert the suspicion into unrslentabie proof or proof without shadow of doubt. No witness has been produced to prove the suspicion. The prosecution has then shifted the venue to the new house rented to Mst. Yasmin aad her husband near the mosque . where the appellant Kachko! is slated to visit her to commit Zina, There is no evidence to dispel the 'doubt on the allegation of Zina between the appellants. P.W.5 Sanobar Bacha, Pesh Imam of the mosque has never stated that he had ever seen the appellant visiting her, the appellant Mst. Yasmin in the house, or having ever seen him leaving her home bat all the same he stated that illicit relationship did exist between the two appellants. The veracity of the testimony ' of witness is not determined only from the fact that as to whether the witness is a truthful or a tier by nature bat also from fee fact as to how far the witness is careful and cautious in his dealings and particularly as to whether he is in the habit to ascertain the correctness of his statement. Sanobar Bacha, Pesh Imam of the mosque examined as P.W.I8 does not inspire confidence. He has stated that Kachkol appellant was on visiting terms with the deceased. Now this statement does not automatically lead to conclude that since appellant visited the deceased he had illicit relations with the appellant Mst. Yasmin. This witness has stated that on the night of occurrence he heard cries at about 2-00 a.m. from the direction of the house of the deceased but he has failed to identify the cries to be of male or a female and surmised that since appellant Mst. Yasmin was a woman of dubious character therefore be conjectured that she might be being beaten by her husband and she might be crying. Now there are no grounds to say that the cries were of the appellant Mst. Yasmin that she was beaten by her husband and she was a woman of loose character. This witness states that the deceased who regularly offered prayers in the mosque did not turn up for the prayers 7/8 days after he had heard the hues and cries from the direction of the house of the deceased. He did not care to investigate the reason and causes of the hues and cries nor tried to ascertain as to who had raised these cries and why he did not mention this fact to any body and did not bother about the absence of the deceased from the morning prayer for 7/8 days and he kept quiet. The offering of prayers in a mosque wish congregation has its own wisdom, reason and benefits. One of these benefits is that if a person regularly offers his prayers in the mosque fails to offer such prayer in the mosque, then his companions try to find cut the reason of his absence from the prayer and if he is in need of help they render the same to him. It was only when the father of the deceased Wareed Gul brought the police to the house of the deceased where appellant Mst. Yasmin was present and the body of Wareed Gul was dug out from the residential "Kotha' that he, when examined, made the statement. So this witness is not trustworthy for the proof of illicit relations between the two appellants. He has admitted in cross-examination that he has not stated specifically before the police that Mst. Yasmin was woman of loose character. He has admitted that his own residential house was situated at a distance of about one furlong from the mosque and at 2-00 a.m. in the morning he heard hues and cries in the mosque but it is not known as to whether he used to sleep in the mosque or not and why was he in the mosque at the time when he heard hues and cries from the house of the deceased. He admits that he has not seen Mst. Yasmin inside the house prior to the day of the recovery of the dead body. As earlier said the entire statement of this witness is of such a nature that it depicts the maker of the statement to be a person of careless habits making statements without verifying their truthfulness and drawing his own conclusion on the basis of conjectures. So even otherwise if this witness is truthful, even then he loses his credibility by virtue of his careless habits and by reason of his making statements the truthfulness of which he does not care to ascertain. This is the sole witness through whom the prosecution has tried to prove existence of immoral relationship between the two appellants and it points only to suspicion, of illicit relations without any proof thereof. When we exclude the statement of this witness on the motive of illicit relationship between the appellants then we are left with the retracted confessional statements which would be later discussed in the body of this judgment. So this Court is of the view that the prosecution has not been able to prove the motive for the offence without any doubt. The possibility of any such relationship can be suspected but suspicion is nqt a substitute for proof and the administration of criminal justice requires a proof without any shadow of doubt and particularly in this case, when two persons are facing gallows, the doubts inherent in the story of the prosecution leads to the conclusion that the prosecution has failed to bring home the truthfulness of the fat that the appellants were having immoral relationship with each other. 7. The prosecution has correctly laid stress on the recovery of the dead body from the residential "Kotha 1 of the deceased house through P.W.I8 Sanobar Bacha. The prosecution has attempted to prove that the appellant Mst. Yasmin shifted to the house adjacent to the mosque known as Dhery Sar of which P.W.I8 Sanobar Bacha is the Imam. The prosecution evidence is silent as to when the couple shifted to this house and as to where Mst. Yasmin was after the hues and cries heard by this witness at 2-00 a.m. in the morning from the direction of their house. Mst. Yasmin had four children and must have been living somewhere after the fatal night but the prosecution has very conveniently omitted the place of abode of Mst. Yasmin appellant after the alleged occurrence. Even the prosecution failed to put question to the appellant Mst. Yasmin to the effect as to where she had gone after the alleged murder of her husband in collaboration with her alleged paramour. So the prosecution has been abje only to the recovery of dead body of the deceased from the residential "Kotha 1 of the house in the vicinity of the mosque of which P.W.18 Sanobar Bacha was a Pesh Imam but whether factually this "Kotha' was the residential 'Kotha' of the deceased and his wife, has no't been proved. Moreover mere recovery of the dead body from inside the 'Kotha' of the deceased does not of its own connect the appellants with the commission of the crime. The prosecution had to rely on the circumstantial evidence in support of the retracted confessional statements. Recovery of the dead body from the house of the deceased is being projected a$ a circumstance corroborating the statements of the two appellants in their retracted confessional statements, but this Court is of the view that the prosecution could validly suspect that the deceased may have been put to death by the two appellants and buried him in the 'Kotha' of his own house but the prosecution has failed to substantiate the suspicion by evidence inspiring confidence. Therefore, even if dead body is recovered from the ' Kotha' of the deceased even then it does not prove that he was killed by the two appellants and that the killing took place inside the house in which the ' Kotha' is situated. The learned State Counsel has contended that the appellants have been directly and promptly charged in the F.I.R. at the spot after the recovery of the dead body. The dead body was recovered from allegedly the residential 'Kotha' of the deceased on 19-9-1991 but the time of its recovery has not been shown in the F.I.R. The crime so alleged to have been perpetrated on the night between twelfth and thirteenth of September, 1991 and the case was registered through Murasila Exh.P.A./l which was written at 16-00 hours. Now Mst. Yasmin had made her report through Serial No.20 of daily diary on 19-9-1991 at 11-00 hours Exh.P.Z. about the missing of her husband. She was in the company of her father-in-law, complainant in the F.I.R. Exh.P.A. So till 11-00 a.m. of 19-9-1991 the complainant did not know about the death of his son and has not given any statement to the effect that the appellants had illicit relations between themselves. All that transpired between 11-00 a.m. on 19-9-1991 and 16-00 hours on the same day cannot be ascertained. The only fact that comes to light is that after 11-00 a.m. when the report in the daily diary of Mst. Yasmin was registered investigation under section 156(3), Cr.P.C. was initiated and it was through these investigations that the dead body of the deceased was recovered from the house adjacent to the mosque of P.W.18 in presence of Mst. Yasmin. Who furnished the details given in Exh.P.A. regarding illicit relations between Mst. Yasmin and Kachko! to the maker of the report is not disclosed. This Court has already observed that it does not exclude the possibility of any such relationship between the appellants but as held that this relationship was not proved and the complainant may-have charged the appellants for the commission of the crime on the basis of suspicion, but apparently, from ihe perusal of the record, it is abundantly clear that no credible foundations of any such suspicion exist to warrant nominating the appellants for the crime. Thus, it is evident that nomination of the appellants for the|D commission of the crime is prompted by the rumours and suspicion prevailing in the area at the time regarding dubious relations between the appellants but this fact has not been legally proved. 8 Now before taking up the retracted confessional statements recorded in this case the evidence produced in support thereof is discussed. The only allegedly corroborative evidence in support of the confessional statements available or procured or planted are the recovery of the alleged weapon of offence Exh.P.l/A taken into custody vide memo. Exh.P.R., shirt P.I, Shalwar P.2 grey colour Pakistani tetron, a pair of shoes not exhibited recovered vide memo. Exh.P.R./I and a shovel P.6 recovered vide memo. Exh.P.R./3. Now we take these recoveries one by one and discuss the legal steps taken while effecting these recoveries and the legal value and implications of these recoveries and discuss the same in the light of the charges levelled and leading to the conviction of the appellants. The axe P.I./A, allegedly, was blood-stained and oddly enough the blood stains were on the handle of the axe and not on the blade of it. This recovery was made on 19-9-1991 but this axe was received in the Chemical Laboratory on 9-10-1991 that is about after twenty days of its recovery. The axe should have been sent to the Chemical Examiner immediately after its recovery and its retention for 20 days by the Investigating Agency throws sufficient clouds of doubt on the evidentiary value of the blood stains allegedly found on the handle of this axe. No explanation has been given by the prosecution as to why this axe was not promptly sent to the Chemical Analyst for examination, and in absence of any such explanation, reliance on this - recovery linking the appellants with the crime for convicting two persons and depriving them of their life is not justified. Retention of any such property of such an importance by the police or the Investigating Agency does discredit the entire evidence in this regard. So the recovery of axe and its carrying blood stained marks of the deceased does not. inspire confidence and cannot corroborate the retracted confession of the appellants. 9. The prosecution has manoeuvred to connect the appellants with the commission of the crime through the recovery of the blood-stained axe from appellant Kachkol's residential house. The story as told by the prosecution is that the appellant after having used the axe in killing the deceased decamped with it and took it to his home, Now this version does not ring sound. After committing the murder the appellant allegedly buried the dead body of the deceased in the residential room inside the house under occupation of the deceased as tenant. The appellant could have very conveniently buried the axe alongwith the dead body or if this disposal of the weapon of offence did not occur to him at the time of the burial of the dead body of the deceased, the appellant could have disposed it of in his way to his house in the fields or elsewhere as it did not carry any mark of identification which could link the appellant with the offence if subsequently recovered but it is most improbable that he would take it to his own house and hide it there. It does not sound true or rational on the part of the appellant to hide the alleged weapon of offence in his own house to be discovered su&sequently by the Investigating Officer. 10. The next point which militates against ace ting the axe to be the crime weapon used by the appellant is the fact that while the handle bears the blood stains the blade of the weapon which actually caused injuries on the head of the deceased is not stated to be stained with blood. This is very odd phenomenon, the blade not shown to be blood-stained but the handle carrying the blood stains. This is not credible. Reference to the axe in the confessional statement of appellant Kachkol loses its evidential value for the reason that the police had already allegedly recovered the axe from the house of the appellant Kachkol and Kachkol being hi their custody could well be prevailed upon to confirm the police investigation in this regard. Any imputation to appellant about the axe which was within the knowledge of the police prior to its admission by the appellant shall be regarded with deserving caution as it cannot be without the doubt of having been tutored to the appellant in this case and there is no evidence which can repel the doubt that this admission was not the result of the tutoring of the alleged culprit who was within their custody. 11. Now we shall discuss the recovery of the weapon. It was recovered as P.I/A vide recovery memo. Exh.P.R. on 19-9-1991 while the time of recovery is not shown in the memo, hi the presence of P.W. Saad Shah and P.W. Amirullah Khan, A.S.-I. Police Station Kalu Khan but only P.W. Amimllah, A.S.-I. was produced as P.W. 3 to prove the recovery and P.W. Saad'Shah was not produced and was abandoned vide order-sheet No. 10, dated 18-12-1993. While searching the house of the appellant it was incumbent on the police to comply with the provision of section 103, Cr.P.C. and produce the witness Saad Shah as search witness but in the instant case though an independent witness was available he was conveniently abandoned and reliance has been placed on the testimony of the police witness who in the given circumstances of this case cannot be trusted without doubt to corroborate the confessional statement and this led to the conviction of the two appellants to death. Therefore, in the light of the above objective discussion this Court has arrived at the following conclusion:-- (i) It is highly doubtful that the axe P. I/A is the crime weapon. (ii) The recovery of this weapon from the house of the appellant Kachkol is extremely doubtful. (iii) It is also extremely doubtful that the blood stains found on the handle of the weapon were in fact the stains of the blood of the deceased, this weapon recovered in the custody of police for well over 20 days and then sent to the Chemical Examiner. It was not difficult to smear its handle with blood of the group of the deceased. Before parting with the discussion of the evidentiary value of the axe -as crime weapon used and hidden by the appellant Kachkoi this Coun would point out ihai the Coun does not rule out the possibility of padding up the prosecution case by the Investigating Agency and this axe case might have been planted by the Investigating Officer to be recovered and displayed as weapon of offence. While we perused the confessional statement of the appellant Kachkoi Exh.P. W.I 2/1 we found that the effort could have been made to tutor the appellant to mention the recovery of the weapon from his house, a fact which was otherwise not known to the appellant because he did not know that the axe was allegedly recovered from his house whosoever led him to make the confession unrelentingly put the factum of its recovery in the mouth of the appellant because its mention rebounds on the impartiality of the Investigating Agency as the appellant did hot know that the axe was recovered from his home. It is also pertinent to note that there is no mention of axe in the retracted confessional statement of appellant Mst. Yasrain. 12. The next corroborative piece of evidence in support of the confessional statement is the alleged recovery of one shirt P.I, Shalwar P.2 (Malaiia colour i.e. dark grey) and one pair of shoes not exhibited belonging to the deceased Wareed Gul vide recovery' memo.-Exh.P.R./l. On 12-11-1991 about more than twenty days of the recovery of the dead body this recovery was effected allegedly on the pointation of the appellant after his arrest. 13. In the first instance it is extremely doubtful that these-clothes actually belonged to the deceased because vi4e Exh.P.R./2 one Shalwar P.4, one Banyan P.5 were taken into possession by the Investigating Officer on 19-9-1991 produced by Sardar Aii, F.C. No.326 which were given to him by the doctor. Therefore, in the given circumstances of this case there is no scope of another pair of clothes allegedly recovered from the grave in which the dead body of the deceased was hidden as already clothes of the deceased were taken into custody vide memo Exh.P.R./l. The prosecution has in, this case also relied on the police witness Mir Jafar examined as P.W.7 and has abandoned Mira Khan an independent witness. The recovery of the clothes from the place where the dead body was hidden is extremely doubtful rather on the contrary it indicates that the investigating agency in its zeal to get a conviction forgot to comply with the legal formalities regarding recovery of incriminating evidence. Besides the dead body was recovered on 19-9-1991 from the residential "Kotha 1 of the deceased whereas these clothes were recovered on 12-11-1991 almost from the same place from where the dead body was recovered. It does not sound true. If the clothes were buried in the same ditch then the same should have been recovered at the time when the dead body was exhumed. It appears that the Investigating Agency has deliberately delayed the recovery of the clothes to enable them to recover the same at the instance of the appellant Kachkoi and on his pointation when in police custody. The appellant Kachkoi has referred to the alleged hiding of these clothes in the same ditch from which the dead body was recovered in his confessional statement where Mst. Yasmin has not mentioned the same in her tracted confessional statement. This recovery is unnatural and has been manipulated to substantiate a weak confessional statement. Hence the Court Fjholds that:- (i) The clothes allegedly recovered vide memo. Exh.P.R./l have not been proved to be that of the deceased beyond doubt. (ii) The clothes so recovered have not been proved beyond doubt to have been hidden by the appellant in the ditch in which the dead body of the deceased was hidden. (iii) The recovery itself is not proved beyond doubt. (iv) It is an effort on the pan of the Investigating Agency to provide corroborative evidence to die confessional statements. (v) The pointation of the appellant in police custody of the place of hiding the clothes is also doubtful as the places were already known to the police and any pointation of places already known to the Investigating Agency cannot be taken for granted without doubt. 14. The only odier recover}' made relevant to die instant case was effected through Exh.P.R./3 vide which a Belcha (shovel) Exh.P.6 with which the ditch was dug has been recovered. This shovel has been shown by the appellant Mst. Yasmin to be the one used for digging the ditch for hiding the dead body of the deceased. This is a common type of shovel (Belcha) and could be the one used in exhumating the dead body. Sartaj Khan (P.W. 10) marginal witness to the recovery memo, has stated that his signatures were obtained and he made a statement in the Court. He does not admit recovery of this shovel in his presence. In the circumstances the recovery of the shovel and its use in the commission of the crime is also doubtful and cannot be made foundation to maintain the conviction. 15. Now after having exhaustively dealt with the circumstantial evidence adduced in corroboration of the confessional statements of the appellants this Court would take up the confessional statements, their evidentiary value, the method and circumstances the same were recorded and the credence that can be placed on them to maintain conviction. 16. The confessional statement of Mst. Yasmin was recorded on 21 st September, 1991 as Exh.P.W.l/I whereas that of Kachkol was recorded on 16 th November, 3991 as Exh.P.W. 12/1, after seven days of his arrest by the police. In her statement Mst. Yasmin has allegedly admitted to have illicit relations with the appellant Kachkol and murder of her husband in collaboration of appellant Kachkol. This confessional statement was recorded on the 21st of September, 1991. It is to be seen as to whether the confession has been made voluntarily without coercion, undue influence or under false guarantees. In the first instance il is apparent from the record that she was produced in ihe Court of Mr. Rizwanullah Khan, M.I.C., Swabi by Nisar Muhammad S.-I. at 10-00 hours on the same date. It is also apparent from record that at the time of exhumation of the dead body of the deceased on 19-9-1991 Mst, Yasmin was present and on the same day at 16-00 hours case was registered against her then whatever may be the date of formal arrest of the appellant, the fact remains that for all practical purposes she was under police custody from the time of the recovery of .the dead body and any confession recorded during police custody, that too after almost 48 hours of such custody, had to be relied upon gradingly with due caution and care to base conviction thereon. In cases where confessions are recorded the Court recording confession shall in the first instance establish the identity of the person whose confession the Magistrate is about to record. Exh.P.W.1/2 is the pro forma to be filled in prior to recording of the confession. In this pro forma there is a column in which mark of identification' has to be recorded but in this case this column has been left blank which shows tKat the Magistrate recording the confession did. not bother to properly identify the "maker of the confession and therefore, the inescapable conclusion that the person who made this confession may not be the appellant Mst. Yasmin cannot be avoided. This doubt hits at the very root of the confession which can be safely disregarded for maintaining the conviction. Similarly the Magistrate recording confessional statement of the appellant Kachkol failed to properly identify him and give his mark of identification and the same conclusion that the maker of that confession too might not be the appellant Kachkol is inescapable. There is yet another column in which the appellant's reason for recording confessional statement is to be recorded which too has been left blank in case of Mst. Yasmin. Hence for the above two omissions as well, the confessional statement has become extremely doubtful. There are numerous authorities to the effect that where there is delay in recording the confessional statements and the maker thereof has remained in the police custody the confessional statement becomes doubtful and positive corroboration has to be sought to make such confession the basis of conviction. In the case in hand the confessional statements are doubtful and more doubtful is the alleged corroborative testimony discussed and discarded above. 17. The confession in this case of Mst. Yasmin and Kachkol are tailored to the conveniences of the Investigating Agency to prove its case against the appellants through the planted and manipulated evidence. The confessions are thus tutored. The alleged corroborative evidence of recovery of clothes and pointation of places by the appellants proceeded the confessional statement wherein these pointations and recoveries have been spotlighted. The places pointed by the appellants of the recoveries made would not be admissible as such in the site plan as the same have not been observed and recorded by the Police Officer on his own inspection. 18. The above discussion facilitates to arrive at a conclusion that the evidence adduced can be impeached on the grounds discussed above and is so dubious in character that it cannot be relied upon for maintaining conviction of the appellant to death. The Court has already concluded that the evidence adduced is tailored, doubtful and planted and cannot be relied upon for corroboration. 19. The alleged abscondence of Kachkol appellant is considered as corroborative piece of evidence by the prosecution against the appellant. The facts have been correctly mentioned in the statement of P.W.2 regarding the issuance of warrants under section 204, Cr.P.C. and subsequent steps taken in pursuance to issuance of warrants under section 87/88, Cr.P.C. against Kachfcol appellant. The occurrence took place on the night between i2th and 13th of September, 1991 and an application was moved which is Exh.P.E./l for issuance of the search warrants under section 204, Cr.P.C. and the proclamations under section 87/88, Cr.P.C. were issued on 14-4-1993. The appellant was arrested on 16-11-1991. The abscondeace would commence from the date of expiry of 30 days given in the notice under section 87/88, Cr.P.C. and in this case hardly a day has passed on the completion of 30 days as spelled out in the proclamation, when the accused was arrested. Therefore, in this case the abscondence is reduced to one day only and when we take the circumstances in which the warrants were issued and served under section 204, Cr.P.C. and similarly the proclamation and service thereof there is ample room to conclude that these have not been strictly served in accordance with law. P.W. Imam Din F.C. 19 Police Station Kalu Khan, who was entrusted with the warrants under section 204, Cr.P.C. has admitted that signatories Raza Khan and Mira Khan of the warrant Exh.P.W-.2/l are not Lumbardars or councillors. He does not know the name of the Mohallah in which the appellant was residing. He had not inquired from any body in the adjacent house about the wherea&TJuts of the appellant. He had not inquired about the name of the Lunibardar and Chowkidar of the village. The appellant ran a shop according to this witness which was closed and so were closed the other shops in the vicinity. So the warrants under section 204, Cr.P.C. and similarly the proclamations have not been served according to law and this deficiency in the proper service of the proclamation and the fact that only one day had elapsed on the 30 days period fixed in the proclamation for the appellant to surrender himself would disregard the evidence of abscondenqe of only one day as sufficiently strong to corroborate the retracted confession of the appellant Kachkol. 20. The suspicion in the case against both the appellants has led to concoction, planting of evidence, tutoring of confessions and therefore, the suspicion given birth to so. many ills cannot be relied upon for upholding the prosecution story as suspicion cannot take the place of proof of the crime. 21. In the light of the above discussion this appeal is accepted, the conviction and sentences of both the appellants are set aside and they are acquined of the charges levelled against them under section 302/201/34, P.P.C. Both the appellants shall be set at liberty forthwith if not required in any other case. Murder Reference is answered in the negative. 1 AAJS' Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 991 Present: M. javed buttar, J. MUHAMMAD SARWAR and another-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No. 704/B of 1996/BWP, decided on 9.10.1996. Bail-Pre-arrest- - S. 498 Cr.P.C.-Pre-arrest bail-Prayer for-Offence u/Ss. 365/440/148/149 PPC-Previous enmity between parties-Large number of able-bodied men belonging to same family had been roped in case of which there is no eye-witness and due to previous enmity between parties, possibility cannot be ruled out that petitioners have been involved in a malafides manners just to widen net which makes it also a case of further inquiry. [P. 992] A M.A. Rashid Chaudhry, Advocate for Petitioners. Mohsin Raza Joya, Advocate for the State. Ch. Muhammad Akhtar Shabbir, Advocate for the Complainant. order Muhammad Sarwar and Manzoor Ahmad, the petitioners, are seeking bail before arrest in case F.LR. No. 151/96 registered on 3.9.1996 under section 365/440/148/149, P.P.C. at Police Station Shehr Farid, District Bahawalnagar, at the instance of complainant Muhammad Riaz against the petitioners and 6 others for an occurrence which is alleged to have taken place in the intervening night of 1st and 2nd September, 1996. 2. The facts, in brief, as alleged in the F.I.R., are that the complainant is a lessee of one Sahibzada Mian Muhammad Arif and cultivates his land in Mauza Mahar Sharif and on the night of occurrence while he was going towards his home, he saw the petitioner Muhammad Sarwar armed with .30 bore pistol and petitioner Manzoor Ahmad equipped with rifle and other co-accused Ghulam Muhammad, Muhammad Sabir and Muhammad Masood were cutting the crops with sickles and on his resistance the petitioners and accused Muhammad Tariq and Khuda Bakhsh caught hold of him, closed his mouth with a cloth, lifted him from the place of occurrence, confined him in a room of a brick-kiln, locked him and left the place. Thereafter, he was released by the P.Ws. 3. Petitioners' application for bail before arrest was dismissed by the learned Additional Sessions Judge, Bahawalnagr on 21.9.1996. 4. It is contended by the learned counsel for the petitioners that the F.I.R. was lodged after a delay of more than 34 hours; wild allegations have been levelled against, large number of persons including the petitioners belonging to the same family; there is no eye-witness of the occurrence; there is an established enmity of the petitioners' family with the complainant's employer Mian Muhammad Arif, Ghulam Muhammad and Lai Din coaccused who are also father and uncle respectively of the petitioner Muhammad Sarwar have filed a suit for permanent injunction against Mian Muhammad Arif who wanted to illegally occupy the land belonging to them and the Civil Court granted stay to the plaintiff on 1.9.1996 restraining Mian Muhammad Arif from interfering with the possession of the plaintiffs and as a counterblast to the civil suit, the petitioners and others have been involved in this false and bogus case in a mala fide manner with the intention to dispossess them from the land which is in 'dispute between the two parties. Learned counsel has also produced copy of the plaint alongwith copy of the stay order in favour of Ghulam Muhammad and Lai Din. 5. On the other hand, learned counsel for the State while opposing the petition states that Ghulam Muhammad etc. are owners of only one Kanal of land in the joint Khata in which Mian Muhammad Arif is also an owner and there is a dispute of possession and the accused have tried to lift the crops forcibly from the land in dispute. Learned counsel appearing for the complainant has submitted that Ghulam Muhammad etc. have filed a fictitious civil suit with the ulterior motive to take possession of the land in dispute under the cover of stay order. 6. I have heard the learned counsel for the parties and have also perused the record. 7. Admittedly there is an enmity between the complainant's employer and the accused and large number of able-bodied men belonging to the same family have been roped in this case of which there is no eye-witness and due to the previous enmity between the parties, the possibility cannot be ruled out that the petitioners have been involved in a mala fide manner just to widen the net which makes it also a case of further inquiry. 8. In these circumstances, the application is allowed and the ad interim gre-arrest bail granted to the petitioners on 26.9.1996 by this Court is hereby confirmed on the same bail bonds. (AAJS) Application allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Cohere) 993 Present: MRS. FAKHAR-UN-NlSA KHOKHAR, J. Mst. NARGIS-Petitioner versus THE STATE and another-Respondents Criminal Miscellaneous No. 565/B of 1996, decided on 6.S.'1^96. Bail- -S. 497/498 read with--Foreigners Act (XXXI 'of 1946), S. 3/2(A)/14-- Interim transitory bail-Accused a woman being an illegal immigrant was to face trial under S. 3/2(A)/14 of Foreigners Act, 1946 in a Court of first instance at Karachi which had issued non-bailable warrants for her arrest-Accused, however, was confined in Bahawalpur Jail-Power of High Court in respect of bail was large enough to grant anticipatory bail to a deserving person-Detention of accused in Jail at Bahawalpur could not serve any useful purpose-She was allowed interim transitory bail in the interest of justice. [P. 995] A & B Sardar Ghulam Sarwar Rana, for Petitioner. Muhammad Sarwar Bhatti, A.A.G. for the State. order Brief facts of this Criminal Miscellaneous Petition are that the petitioner is a citizen of Bangla Desh and she is involved in a case F.I.R. No. 69/93 registered under section 3/2 (A)/.14, Foreigner Act, 1946. The petitioner was brought to Pakistan by one Abdullah who was not related to her in any way, she was brought to Karachi where the aforesaid case was registered against her and five others. She was bailed out by a Court of competent jurisdiction at Karachi through Abdullah and was later on sold in consideration of Rs. 50,000 and thereafter she was brought to Ahmadpur Sharqia, District Bahawalpur where she was again sold to Shahid. Thereafter she met with one Mukhtar.Ahmad and got married with her through a registered Nikahnama, dated 15.5.1996. Since this news was exposed to Abdullah, who got non-bailable warrant issued in the aforesaid case and the petitioner was arrested and is now confined in New Central Jail, Bahawalpur from 25.7.1996. She has applied for interim transitory bail after arrest so that she may approach the Court of competent jurisdiction at Karachi and pursue her case there. 2. Learned A.A.-G. on Court call is ^resent. He submits that this Court has left with no jurisdiction to entertain the interim transitory bail after arrest as an ordinary practice under section 498-A is that the bail moved to the Court should have jurisdiction to grant the same and it should be the Court of first instance. Learned counsel for the petitioner has placed reliance on Muhammad Amin v. The State 1973 PCr.LJ 661 where it was held that the general power of the High Court unless and until specifically curtailed by the Legislature always being conscious of the powers of this Court makes a provision to that effect. No specific provision exists in the Criminal Procedure Code to the effect that the provisions of section 498, Cr.P.C. are excluded in case of a warrant issued by a Magistrate of a different province for the arrest of a person residing in another province, therefore, even by implication it cannot be said that the powers under section 498, Cr.P.C. in the circumstances, are curtailed in any way. he has also placed reliance on Muhammad Ayyuh v, Muhammad Yaqub PLD 196 SC 1003, where it was held by the Honourable Supreme Court that though powers under section 498 are ancillary and subsidiary to provisions of sections 496 and 497 or whether that section could be construed to extend the power of the High Court or the Court of Session to grant bail even in cases where these Courts would not be competent to grant bail under section 497. The learned Judges examined the true nature of scope of section 498. Their concerned opinion was that section 498 is not to be construed to extend the power of the High Court or a Court of Session to grant bail in cases where these Courts would not be competent to grant bail under section 497 of the Code, but their collective view was that generally the words "in any case" or "any person" occurring in section 498 of the Code should be given full effect and the limitations imposed by section 497 should not be held to govern section 498 of the Code. Therefore, it is ancillary or subsidiary to sections 496 and 497 of the Code. Therefore, the anticipatory bail attracts the provisions of section 497, Cr.P.C. Although the matter in question before their Lordships was a different one in that ease. He also has placed reliance on Malik Mukhtar Ahmad Awan v. The State 1990 PCr.LJ 617 and Ch. Allah Ditta v. The State 1989 PCr.LJ 2152. 3. The relevant point on the subject-matter regarding jurisdiction is whether an applicant residing in a territorial jurisdiction of this Court after his arrest can apply for the grant of interim bail when his warrants of arrest are issued by the Court in Karachi. The powers of the High Court and the Sessions Court are of concurrent jurisdiction and those of the trial Magistrate and the jurisdiction of the High Court is concurrent with the Sessions Court but still the ordinary practice is held to apply to the Court of first instance. However, his Lordship referred the question of jurisdiction of a Court under sections 498 and 491 to grant relief to the applicant before or after execution of the warrant issued by the Court outside the province. 4. I have heard learned counsel for the petitioner as well as learned A.A.-G. and have gone through all facts and circumstances of the case. This is an admitted fact that F.I.R. No. 69/93 registered under section 3/2(A)/14, Foreigners Act, 1946 is pending adjudication before a Court of first instance at Karachi and non-bailable warrants were issued from the same Court. The accused is confined in Bahawalpur Jail. She has been facing the pressure of a case which is pending before a Court at Karachi which was got registered by a black-mailer who brought her from Bangla Desh and the case was registered against her under the aforesaid provision of law. She was bailed out from the Court of Karachi through the help of the same gangster and under that very threat she has allegedly been sold from person to person and even when she decided to finally marry with one person she is again put behind the bars. This is not the case of the present accused. Thousands Bengali girls being illegal immigrants are facing the same miserable situation and then they come to inhuman wishes of the persons who have brought them from a different persons. The power of the High Court in respect of bail is large enough to give anticipatory bail to a person who deserves the same. Therefore, in view of the fact that she becomes independent form the clutches of the persons who have been throughout playing fouls with her and to way it is deemed in the interest of justice that she be allowed interim transitory bail because her detention in jail at Bahawalpur will not serve any useful purpose. I admit her to interim transitory bail in the s'um of Rs. 50,000 with two sureties each in the like amount to the satisfaction of Sessions Judge, Bahawalpur. I also direct the petitioner after being bailed out form the jail she should approach the competent Court at Karachi within 15 days from the date of her release from the jail and get her self properly bailed out from that Court. (AAJS) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 996 Present: muhammad naseem chaudhri, J. YARA-Petitioner versus Haji UMAR HAYAT and 2 others-Respondents Criminal Miscellaneous No. 281/B of 1996, heard on 4.12.1996. Bail-Cancellation of-- -S. 497(5) Cr.P.C.-Offence u/Ss. 302/324/148/149/109 of PPC- Cancellation of bail-F.I.R. contained only a general allegation against accused for having halked out a plan about occurrence without disclosing place where such plan was made and without showing reason about presence of prosecution witnesses there-Prima facie said allegation did not appeal to reason-Accused had neither misused concession of bail nor there was any apprehension-Accused had been rightly allowed prearrest bail by the Sessions Court. [P. 907] A M. Asghar Khan Rokhri, for Petitioner. Bashir Ahmad Gujjar, for Respondents Nos. 1 and 2. Ihsan Sabir, Asstt. A.-G. for the State. Date of hearing: 4.12.1996. judgment Different co-accused of Haji Umar Hayat and Umar Draz respondents-accused, while armed with lethal weapons, are said to have caused the intentional murder of Sardar and Allah Yar and made the murderous assault upon Ashraf and Falak Sher P.Ws. F.I.R. No. 433, dated 3.12.1995 stands 148/149,109, P.P.C. The cause of occurrence is stated to be that there was litigation between Umar Draz respondent-accused and one Mian Khan who had become a fugitive of law and the assailants suspected that the complainant party helped him (Mian Khan) > it is narrated in the F.I.R. that the plan in the matter was chalked by Haji Umar Hayat and his son Umar Draz respondents-accused about the occurrence regarding which Nazir and Ashraf P.Ws. had intimated them, but they (complainant party) did not give impoitance to the same. Learned Additional Sessions Judge, Chiniot admitted the respondents-accused to pre-Additional Sessions Judge,' Chiniot admitted the respondents-accused to pre-arrest bail and the complainant has filed this petition for the cancellation of the same. 2. I have heard the learned counsel for the parties as well as learned Assistant Advocate-General and gone through the record before me. The main contention of the learned counsel for the petitioner-complainant is that both Haji Umar Hayat and his son Umar Draz respondents-accused did not join the nvestigation for a considerable time and as such they stand connected with the occurrence. According to him, due ^to the litigation between Haji Umar Draz respondent and Mian Khan and occurrence has taken place and that they are not entitled to enjoy the extraordinary concession of pre-arrest bail. I do not agree with him. At this stage it would be proper to express that the learned Assistant Advocate-General supported the impugned judgment passed by the learned Additional Sessions Judge. Learned counsel for both the respondents-accused has rightly canvassed that with the material collected by the prosecution to be produced during the occurrence the involvement of the respondents-accused is to be viewed with aution. About the pendency of the litigation between Mian Khan on the one ide and Haji Umar Hayat and Umar Draz respondents-accused on the other side no documentary material has been collected during the investigation. The mere verbal statements of the P.Ws. may not muster the desired defect even during the trial. This open aspect of the matter. The other aspect of the matter is that Nazir and Ashraf P.Ws. intimated Yara complainant about the plan chalked by the respondents-accused about the occurrence. There is general type of narration in the F.I.R. without containing the place where the plan was chalked out and the reason about the presence of the aforesaid P.Ws. at that time. Without prejudice I am tempted to express that prima facie such an allegation does not sound to the reason and I am tempted to express that prima facie such an allegation does not sound to the reason and I am tempted to express that it may be an overdoing on the part of the Police Officer. Furthermore there is no material before this Court that the respondents-accused have misused the concession of bail or have tampered the prosecution evidence and that there is apprehension of their abscondence. It was the duty of the Investigating Officer to summon the accused under Rule 2, Chapter XXV of the Punjab Police Rules, 1934 through the written direction according to Form No. 25.2(1). It is the natural conduct of an accused not to go to the police to join the investigation as he has to save his skin. As such tBis assertion of the learned counsel for the petitioner-complainant has failed to touch my sense of appreciation. The net result of the aforesaid discussion is that both Haji Umar Hayat and his son Uraar Draz respondents-accused have rightly been allowed the concession of bail before arrest by the learned Additional Sessions Judge and there is no ground for the cancellation of the said order. 3. I, therefore, dismiss this petition. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 998 (DB) Present: sh. muhammad ZuBAiR and raja muhammad khurshid, JJ. JAFAR and 2 others-Appellants Versus fHE STATE-Respondent Criminal Appeal No. 862 and Murder Reference No. 366 of 1991, heard on 24.11.1996. Pakistan Penal Code, 1860 (Act XLV of 1860)-- S. 302/34-Murder-Offence of-Conviction for-Challenge to--F.I.R. registered promptly and as such, there, was no chance for deliberation and consultation to twist prosecution version-Lodging of F.I.R. promptly also provides corroboration to ocular account given by eye-witnesses is not only trustworthy but can be safely relied upon having been supported by recovery of weapons of offence from accused-Absence of disinterested witnesses would in no way near to prosecution case particularly when trustworthy ocular account of occurrence was available. [Pp. 1001 to 1003J A, B, C, D & E Rafiq Ahmad Bajwa, for Appellants. Muhammad Aslam Malik, for State. Dates of hearing: 20 and 24.11.1996. judgment Raja Muhammad Khurshid, J.--The appellants Jafar and Abdul Majeed were convicted and sentenced to death plus a fine of Rs. 2,000 each or in default to suffer fourth R.I. for two years on each count whereas, Ghulam Hussain alias Pappu appellant was convicted and sentenced to imprisonment for life and a fine of Rs. 2,000 or in default to suffer further R.I. for two years on each count for the murder of Zulfiqar and Bashir Ahmad deceased persons respectively vide the judgment, dated 30.5.1991 passed by Mr. Mujahid Hussain Sheikh, the then learned Additional Sessions Judge, Toba Tek Singh. 2. A reference under section 374, Cr.P.C. for the confirmation of the eath sentences aforesaid is also before us. 3. A case under section 302/34, P.P.C. was registered against the appellants for an occurrence which took place at about 12.00 O'clock in the noon on 31.7.1989 in the area of Chak No. 763/G.B. Pindi Gaziabad, Police Station Aroti, District Toba Tek Singh at the report of Mukhtar Ahmad, lodged on the same day at about 1.00 p.m., in which it was contended that the complainant alongwith his deceased sons namely Zulfiqar and Bashir Ahmad had been dealing in the business of sheep and goats. All three of them returned from their business and came to the hotel owned by Muhammad Sharif for taking their meals. They found Rab Nawaz, Haq Nawaz and Yousaf already taking tea in the said hotel. Zulfiqar deceased went inside the hotel and laid himself on a cot. The complainant, and his other deceased son Bashir Ahmad occupied a betfch in front of the hotel. Suddenly, the appellants namely Jafar Hussain, Abdul Majeed and Ghulam Hussain alias Pappu while armed with .12 bore pistols came there. Out of them, Jafar and Ghulam Hussain went inside the hotel. The first fire was made by Jafar hitting Zulfiqar deceased on his right eye. The second fire made by Ghulam Hussain hit on the left side of chest of the aforesaid Zulfiqar. Abdxil Majeed appellant fired at Bashir Ahmad deceased n his right eye. The deceased tried to run away, whereupon, Abdul Majeed fired again which hit him on the back of chest. Both the deceased died on the spot. The appellants ran away from the spot while raising Lalkara that they had taken the revenge of the murder of their father Ameer Bakhsh. The occurrence was seen by Rab Nawaz, Haq Nawaz and Yousaf aforementioned in addition to the complainant. The bone of contention was the murder of Ameer Bakhsh, father of the appellants in which Zulfiqar deceased alongwith others were challaned but were acquitted on trial. 4. The prosecution relied upon the evidence of the eye-witnesses consisting of Mukhtar Ahmad (P.W. 4) and Muhammad Yousaf (P.W. 5). To support the eye-witnesses, reliance was placed on the recovery of the weapons of offence from the accused/appellants namely Jafar and Abdul Majeed. The two crime empties P. 2 and P, 3 recovered from the place of occurrence were found wedded with the pistols P. 4 and P. 5, recovered from Jafar and Abdul Majeed aforesaid. In this regard, report Exh. P.U. from the Technical Services, Crime Branch Punjab, Lahore was placed on record. The medical evidence consisting of Dr. Ehsan-ur-Rashid (P.W. 1) was produced in order to show that the deceased persons were done to death with the fire arm weapons and that the injuries found on their persons corroborated the ocular account of the occurrence. The recovery of weapons of offence P. 4 and P. 5 was proved through Noor Muhammad (P.W. 3) and Mukhtar Ahmad (P.W. 4). The Investigation Officer Zaka Ullah, S.I. was examined as P.W. 9. 5. The accused were examined under section 342, Cr.P.C. in which they took up the plea of false implication out of enmity with the complainant side and claimed to be innocent. All of them declined to appear in defence to disprove the allegations against them as required by section 340(2), Cr.P.C. 6. Learned counsel for the appellants contended that enmity between the parties was an admitted factor due to the murder of father of the appellants in which one of the deceased persons namely Zulfiqar was an accused; that the prosecution evidence was not only in inimical but also but also interested to involve the appellants falsely in this case; that such evidence could not be implicitly relied upon without corroboration from a source of unimpeachable nature; that the occurrence took place in a hotel surrounded by shops in the presence of many independent persons and as such in the absence of independent witnesses, the case of the prosecution remains highly doubtful; that the recovery of the pistols was fabricated like the recovery of the empties from the spot; that the matching of the crime empties with the pistols recovered from Jafar and Abdul Majeed appellants would be of no avail because those were maniulated by the police in order to strengthen the prosecution case; that one piece of tainted evidence cannot support other piece of tainted evidence. In addition to that, it was alleged that the presence of the eye-witnesses was doubtful because if the complainant was found at the spot, he should not have escaped unhurt; that he was called to the spot after the occurrence and made a witness in the case; that the ocular account of occurrence was contradictory and hence unreliable; that one of the eye-witnesses namely Rab Nawaz though related to the deceased did not appear in the Court as he did not want to support a false case; that the evidence of the Draftsman would show that there was a bus-stop and shops around the place of occurrence which was located in a thickly populated area. As such, the prosecution has failed to search for disinterested and independent witnesses only because nob'ody would have come forward to support a false prosecution story..Lastly, it was. contended that there was no entry in the inquest report of F.I.R. about the empties which strengthened the belief that those were the result of fabrication. 7. The learned prosecutor contended that though one of the deceased persons was involved in the murder case of the ather of the appellants but enmity would cut both ways. The motive was on the side of the appellants because they were to take the revenge of their father. The eye witnesses were stated to be natural as one of them z.e.; the complainant was accompanying the deceased persons, whereas, the other namely Yousaf was already present in the hotel. The mere fact that both of them were closely related to the deceased.persons would not take away their evidentiary value as they were supported by the circumstantial evidence such as recovery of the crime empties which was not only genuine but also wedded to the crime weapons recovered form Jafar and Abdul Majeed appellants. The medical evidence and prompt registration of the case further supported that the prosecution story was straightforward and genuine and did not admit any possibility of improvement or substitution. 8. We have considered the above arguments. First of all, it is to be seen whether the prosecution has been successful to prove its case against the appellants. In this respect, it may be pointed out that though the father of the appellants was murdered about two years prior to the occurrence in which one of the deceased namely Zulfiqar and others were challaned as accused, however, they were acquitted and as such, motive is proved through the evidence of the complainant Mukhtar Ahmad and Yousaf. P.W. Even otherwise, the appellants must be feeling aggrieved and would have been eager J;o take the revenge after Zulfiqar, etc. were acquitted. All the three appellants, under the aforesaid motive brutally attacked and finished the deceased persons by firing at them., This is sufficiently proved through the eye-witnesses aforesaid. Now the question would arise whether the eye witnesses should or should not be believed. In this respect, it is clear that the complainant is the father of the deceased persons, whereas, Yousaf P.W. i.e., another eye-witnesses is the son of Zulfiqar deceased. Though they are closely related to the deceased persons but they would not nominate any wrong person in the case. Rather they would nominate the real offenders to bring them to book for the murder of their kith and kin. As such, the mere fact that they were related to the deceased persons or were related inter se would not make their evidence untrustworthy as their testimony smacks truth and fairplay. The statement of such type of witnesses could not be overlooked particularly when they were supported by the recovery of weapons of offence from the two accused which were later on found wedded to the crime empties recovered form the place of occurrence through their scientific analysis by Technical Services Bureau. There is nothing on the record to suggest that the crime empties were fabricated. In fact, there is evidence that those were recovered from the spot much earlier than the recovery of weapons of offence and also sent earlier to the laboratory for comparison and test, whereas, the weapons of offence were sent lateron. in such a situation, the recovery of crime empties is not only genuine but also a valuable piece of corroboration to ocular evidence against the appellants. The injuries found on the deceased persons also matched to the description given by the eye-witnesses regarding their seats and local. In that way, the medical evidence also supported the eye-witnesses. There was no contradiction of any type between the medical evidence and the ocular account of occurrence which rather go hand in hand to support that the occurrence had taken place in the manner stated in the F.I.R. The occurrence had taken place at 12-00 O'clock in the noon, whereas, the case was registered at 1.00 p.m. on the same day. The distance between the place of occurrence and the police station was about four miles. Keeping in view the distance and the circumstances under which the occurrence had takep place, it could be safely said that the F.I.R. was registered promptly and as such, there was no chance for deliberation or consultation to twist the prosecution version. The lodging of F.I.R. promptly also provides corroboration to the ocular account j of the occurrence. 9. In view of the above discussion, it can be said that the ocular account of occurrence given by the eye-witnesses is not only trustworthy but can be safely relied upon having been supported by the recovery of the Weapons of offence from the accused/appellants which were found wedded with the crime empties picked up from the spot. The mere fact that there was no entry of empty in the inquest report or F.I.R. would not make the prosecution case doubtful because it might be a routine slip on the part of the police officials who take the things casually during the investigation due to lack of training or experience. B 10. An objection was raised that since the occurrence had taken place in a rowded place surrounded by shops and bus-stop, therefore, the police should have produced independent witnesses to support the occurrence. The statement of the Investigating Officer at the trial shows that he made efforts to associate such type of evidence but the people were not prepared to come forward on the plea that they had not seen the occurrence. In such a situation, to look for independent witnesses would be rather an exercise in futility. It is usually noticed that the people do not wish to poke their nose in the bloody affairs of others as they know that they might have to pay heavy price, even with the risk of losing their lives and liberty, if they enter the witness-box against desperate and such, the absence of the disinterested witnesses would in no way mar to the prosecution case particu larly when the trustworthy ocular account of occurrence was available. 11. Likewise, it cannot be said that since no recovery of the weapon of offence i.e. .12 bore pistol was effected from Ghulam Hussain alias Pappu appellant, therefore, the case to his extent had become doubtful, in this regard, it was alleged that had he fired at Zulfiqar then there should have been no crime empty near the place of occurrence relating to the aforesaid deceased. The empty would only be ejected if the fire was made twice from the same ground and not if two different assailants had made two different fires "from their respective pistols. Whowever, there is no f rce in this argument because the recovery of a crime empty is only a orroborative factor. The recovery may have not been made from the aforesaid accused due to lapse on the part of the police or due to concession given to him by the Investigating Officer. This inference would stand fortified from the statement of the Investigating Officer who had adopted a concessional attitude when he was examined at the trial as P.W. 9. He deposed that ccording to his secret enquiry, Ghulam Hussain alias Pappu accused was found to be present at the place of occurrence but had never fired. In the earlier portion of the present at the place of occurrence but had never fired. In the earlier portion of the same statement, the Investigating Officer stated that the aforesaid Ghulam Hussain had stated in his first version before him that he had gone to the spot with his brothers i.e.; the remaining two appellants in order to take the revenge of the murder of his father, in that situation, it cannot be believed that he would have gone without any weapon alongwith his brothers. On the contrary, the eye-witnesses have clearly stated that he had accompanied his brothers in furtherance of the common intention to kill the deceased persons in order to take the revenge of their late father. They also deposed that the fire made by Ghulam Hussain alias Pappu had hit Zulfiqar deceased at the right side of chest, whereupon, the latter fell down from the cot. It is, thus, obvious that no exception can be aken to the participation of the aforesaid Ghulam Hussain alias Pappu in the murder of the deceased persons alongwith his co-accused namely Jafar and Abdul Majeed. 12. In view of our above discussion, we come to an irresistible conclusion that the offence under section 302/34, P.P.C. was proved against ll the appellants beyond any reasonable doubt. They were rightly convicted by the learned trial Court. The appellant Ghulam Husskin alias Pappu was about 14/15 years of age at the time of occurrence, even according to the D statement of the Investigating Officer. As such, he was at the threshold of his youth. It was, therefore, rightly considered as an extenuating ground for awarding lesser penally of imprisonment for life to him. As a consequence, the appeal is dismissed. However, the appellant Ghulam Hussain alias Pappu shall be given the benefit of section 382-B, Cr.P.C. 13. The death sentence awarded to Jafar and Abdul Majeed appellants on two counts each is confirmed. 14. The Murder Reference No. 366 of 1991 is accepted accordingly. (AAJS) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1003 (DB) Present: MIAN ALLAH NAWAZ AND MUHAMMAD ISLAM BHATTI, JJ. SHER MUHAMMAD and another-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No. 353/M of 1996/BWP, decided on 7.10.1996. Criminal Procedure Code 1898 (V of 1898)-- -Ss. 382-B & 561-A--S. 302/34--Grant of benefit of S. 382-B, Cr.P.C.-One accused had been sentenced to imprisonment for life and sentence of death of other accused had been converted into imprisonment for life on account of Presidential Order-Accused persons being entitled to benefit ofS. 382-B, Cr.F.C. [P. 1004] A&B M.A. Rashid Chaudhary, for Petitioner. Muhammad Afzal Cheema and Zafar Iqbal Awan, A.A.-G. for the State. order Sher Muhammad, Muhammad Amin herein petitioners, Muhammad Sharif, Manzoor Ahmad son of Sher Muhammad and Manzoor son of Karim Bakhsh were tried under section 302/34, P.P.C. for assassination of Ghulam Yasin and his wife Mst. Aisha. Manzoor son of Karim Bakhsh died before the commencement of trial and so he was not tried. Manzoor, Ahmad son of Sher Muhammad, Sharif son of Baddar Din were acquitted. Sher Muhammad and Muhammad Amin/petitioners were found guilty and so sentenced death on two counts plus fine. This happened vide judgment rendered by Additional Sessions Judge, ahawalpur on 21.7.1996. Against this order petitioner preferred appeal which was accepted \ to the extent of assassination of Ghulam Yasin and death enally of ! petitioners was reduced to life imprisonment while penalty of death inflicted on Sher Muhammad petitioner for murder of Mst, Aisha was maintained. The sentence of Muhammad Amin, however, was reduced to life imprisonment. The Appellate Court had rendered the judgment on A 27.5.1990. e petitioner's appeal before Supreme Court also failed. The i death penalty of Sher Muhammad petitioner, however, was converted into life imprisonment on ccount of Presidential Order. This is how this criminal miscellaneous was moved by the petitioners. 2. Mr. M.A. Rashid Chaudhary, Advocate relied upon Khalil Ahmad v. State 1994 MLD 1739 to contended that the petitioners were entitled to , award of benefit of section 382-B, Cr.P.C. as given in the aforenoted P precedent. Learned A.A.-G. appearing on behalf of State was not able to dispute the above position. 3. Guided by the rule laid down in Khalil Ahmad's case supra, we find that this application must succeed. In result, we allow this application . and grant benefit of section 382-B, Cr.P.C. to the applicants. The jail authorities shall make necessary computation in this behalf. (AAJS) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1004 (DB) Present: sh. muhammad zubair and raja muhammad khurshid, JJ. GHULAM ABBAS alias MAZHAR ABBAS-Appellant Versus STATE-Respondent Criminal Appeal No. 750 and Murder Reference No. 432 of 1991, heard on 12.11.1996. Pakistan Penal Code (XLV of I860)-- S. 302»Murder--Offence of-Conviction for-Challenge to-Medical evidence was consistent with ocular testimony-Motive existed for occurrence-Death .of deceased hough had occurred after ten days of occurrence, yet it was direct result of fire-arm injuries caused by accused-accused had achieved'object of killing deceased by firing at him a simple shot on vital part of body in daylight in heartless manner which did not call for any leniency to deport from usual sentence of death under S. 302, P.P.C.--Conviction and sentence of death maintained. [P. 1009] A & B (ii) Word and Phrases- -"Rivalry" and "enimty"--Distinction--Rivalry and enmity are two different things-Mere rivalry is not sufficient to discard evidence of eye-witnesses until and unless their statements are motivated by ill-will or enmity towards accused. . [P- 1010] C Shah Ahmad Khan Baloch, for Appellant. Nemat Khan, for A.-G. for the State. Date of hearing; 12.11.1996. judgment Raja Muhammad Khurshid, J.»This appeal is directed against the judgment dated 2.6.1991 passed by Mr. Abdul Razzaq Bhatti, the then learned Additional Sessions Judge, Faisalabad, whereby, the convicted the appellant under section 302, P.P.C. for the murder of Ghulam Ali deceased and sentenced him to death, subject to its confirmation by this Court. The appellant was also sentenced to a fine of Rs. 10,000 or in default to undergo. Further R.I for one year. The half of the fine, if realized, was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. A reference was also made by the learned trial Court under section 374, Cr.P.C. for the confirmation of the death sentence passed upon the accused. 2. The appeal as well as the connected Murder Reference No. 432 of 1991 shall be disposed of together this judgment. 3. The brief facts are that the appellant was arraigned alongwith one Riaz Hussain for committing the murder of Ghulam Ali at 6.45 a.m. on 10.7.1989 in the area of Chak No. 34/J.B. within the territorial jurisdiction of Police Station Thikriwala, District Faisalabad. The F.I.R. No. 281/89 was registered initially under section 307/34, which was later on converted to an offence under section 302/34, P.P.C. The F.I.R. was lodged by Rab Nawaz, a brother of the deceased in which it was contended that the deceased was done to death by Ghulam Abbas alias Mazhar Abbas i.e., he appellant at the behest and Lalkara of Riaz Hussain since dead. According to the F.I.R., Ghulam Abbas alias Mazhar Abbas appellant was armed with a .12 bore gun, whereas, Riaz Hussain was armed with .7 MM Rifle. Both of them in furtherance of their common intention committed the murder of the eceased after reaching the place of occurrence. Riaz Hussain had raise Lalkara that the deceased should be taught a lesson for abetting the fire at him through one Muhammad Rafique son of Inayat about 1-1/2 years back. In pursuance of the Lalkara, the appellant opened fire at the deceased from his gun which hit at the lower part of his abdomen. The occurrence was seen by Sabir Hussain, Muhammad Hayat and Muhammad Akbar but no one went near the deceased out of fear. Later on, the deceased was take to the hospital where he died on 20.7.1989 on account of septicemia and cardio vascular failure. 4. The prosecution relied upon the ocular account of the occurrence rendered by Rab Nawaz complainant (P.W. 7) and Sabir Hussain (P.W. 8). The circumstantial evidence such as motive and recovery of gun P. 2 vide memo. Exh. P.G. from the appellant was also relied upon to provide corroboration to the eye-witnesses. The medical evidence consisting of Dr. Abdul Sattar (P.W. 5), Dr. Rasheed Maqbool (P.W. 12) and Dr. Muhammad Arshad (C.W. 1) was relied upon to show that the injuries caused to the deceased due to the fire of the appellant were sufficient to cause death in the ordinary course of nature. It was also found by the doctors that the injuries were caused by the fire-arm. 5. The appellant/accused was examined under section 342, Cr.P.C. He contended that he was falsely implicated in the case on account of interested and inimical evidence. 6. Learned counsel for the appellant submitted that the motive mentioned in the F.I.R. was not proved as both the eye-witnesses contradicted each other on the question of motive. In this regard, it was lleged hat according to P.W. 7, about 1-1/2 years back Muhammad Rafique had field at Muhammad Riaz accused since dead but the latter entertained his suspicion that firing upon him was made at the instigation of the deceased Ghulam Ali. However, P.W. .8 deposed that Rafique had fired at the aforesaid accused about one year prior to the present occurrence on account of some suspicion of illicit relations with his sister. It was, therefore, contended that both the witnesses gave different stories regarding the motive and as such, they could not be believed qua the motive alleged in the F.I.R. Secondly, it was contended that the recovery of gun P.2 was extremely doubtful for the reason that it was evidenced by interested and inimical witnesses and secondly because no empty was recovered to connect it with he crime weapon. The veracity of the F.I.R. was also challenged on the ground that it was registered after preliminary investigation because the occurrence alleged took place at 6.45 a a.m. whereas, the F.I.R. was registered on the same day 8.05 p.m. thereby giving a sufficient time to the complainant side and the police to hatch up a concocted version regarding the occurrence to implicate the appellant, with whom there was a trial of enmity from deceased's side. The ocular account of occurrence was alleged to be interested and inimical because both the witnesses belonged to the opposite camp to the brotherhood of the appellant, it was alleged that these witnesses had been appearing against Baloch group to which the appellant belongs in some murder and criminal cases. As such, their evidence was required to be corroborated through a source of unimpeachable and independent character which, in the present case, was none. It was, therefore, contended that the ocular account was of no avail in this case. The medical evidence was allegedly of no help to the prosecution because the appellant/accused had allegedly made a single shot and that too on the nonvital part of the body of the deceased. It was also contended that assuming for the sake of arguments that the fire was attributed to the appellant/accused, it would not indicate that in fact he had intention to kill the deceased. In this connection, it was pointed out that death of the deceased had occurred after about ten days of the occurrence and that too because of septicemia and cardiac arrest. These elements in no way could be attributed to the injuries allegedly ascribed to the appellant/accused and it was probably due to the negligence of the doctors that the deceased had expired. Learned counsel for the appellant contended that had the deceased been given proper treatment at appropriate time by the doctors, dreadful consequences could have been avoided. It was, therefore, contended that coming to the worst situation, the appellant/accused could only be connected with an offence under section 304, P.P.C. In the end, it was submitted that in any scale, sentence of death was very harsh under the present circumstances and that the appellant/accused could only be held, if at all, for the commission of an offence under section 304, P.P.C. 7. The learned prosecutor submitted that the prosecution had proved its case beyond any reasonable doubt through the evidence of unquestionable eye-witnesses out of whom one is the real brother of the deceased and he would not like that the real offender should be allowed to go scot free and an innocent person should be substituted in his place. The allegation that the eye-witnesses were interested or inimail was alleged to be devoid of force because there was nothing to show that in fact there was such type of enmity between the two sides so as the witnesses will be blinded to go all out to get the appellant convicted on a charge of capital punishment. The mere fact that they were cited as witnesses in some of the criminal cases against the appellant's side would not make them against the appellant that they would go to the extent of telling lies. The place of occurrence was alleged to be a village which was inhabited by heterogeneous tribes such as Rajputs, Pathans, Balochis, Burhans, Sials and Tiwanas, etc. As such, the witnesses from above tribes will not only be natural but would carry convincing credentials about their truthfulness being from the same village. Any stranger of the village would be considered as a chance witness. Hence it was urged that mere citing of eye-witness of his case in some other cases against the appellant/accused would not make them necessarily interested or inimical witnesses. Further contended that such eye-witnesses would not even call for required, it was available in the from of motive whereby, it was proved that Riaz (dead accused) entertained suspicion against the deceased that the latter had instigated Rafique to fire at him. The mere fact that one of the witnesses had stated that the firing was made by Rafique because he suspected Riaz for keeping relations with his sister would make no difference when the incident of firing is unanimously supported by both the witnesses, that it being a day time occurrence there could be no doubt regarding the identification of the assailants, occurrence there could be no doubt regarding the identification of the assailants, that the witnesses clearly stated that the occurrence was committed by the appellant and as such there could be no doubt about his role in the occurrence, that the recovery of gun P. 2 further linked the appellant/accused with the occurrence, that the F.I.R. was not only true but also fit in the circumstances, thereby eliminating even the remotest chance of concoction. Finally, it was urged that, the appellant/accused was rightly convicted for the murder of the deceased because the injuries caused by him were sufficient to cause his death in the ordinary course of nature. As such, the development of septicemia or cardiac arrest would in no way mitigate the offence committed by the appellant/accused. 8. We have considered the foregoing arguments. First of all, it is to be seen whether the prosecution has been successful to prove its case as required by law. In this connection, evidence of the eye-witnesses namely Rab Nawaz (P.W. 7) and Sabir Hussain (P.W. 8) would require intrinsic evaluation. One of them namely Rab Nawaz is the real brother of the deceased. It is true that he is a blood relation of the deceased but that would not adversely tell upon his evidentiary value if it is shown that he was present at the time of occurrence and that he had no ulterior end to involve the appellant/accused falsely in this case, it, will be his natural instinct to see that the real killer of his brother is brought to the book. That instinct would prevent him to substitute an innocent person for the actual killer. He has clearly stated that the dead accused Riaz alongwith the appellant came to the spot while they were armed with rifle and .12 bore gun respectively. Riaz accused raised Lalkara whereupon, the appellant opened fire thereby causing fire-arm injuries to the deceased. This stoty is supported by the other witnesses namely Sabir Hussain (P.W. 8). The aforesaid witness has also no axe to grind for involving the appellant/accused falsely in this case. As such both they eye-witnesses are consistent to say that the appellant/accused had fired upon the deceased. Their evidence is corroborated by medical evidence brought on record, dr. Abdul Sattar (P.W. 5) had conducted the post-mortem examination and had given the opinion that the death was caused due to haemorrhage and shock produced by injuries Nos. 1 and 2 which were ante-mortem in nature, caused fire-arm and were sufficient to cause death in the ordinary course of nature. These injuries were stated to be the result of a single shot from the fire-arm. This sufficiently corroborates the version given by the eye-witnesses that the deceased was done to death by the appellant/accused by firing a single shot from .12 bore gun. Similarly, the statement of Dr. Rasheed Maqbool (P.W. 12) would show that upon the medico-legal examination of the deceased, he had found two fire-arm injuries on the person of the deceased which were fresh in nature and could have been caused within one minute to three hours. The medico-legal report was Exh. P.J. and the diagram of the injuries was Exh. P.J./I. This also corroborates the eye-witnesses that the deceased was done to death on account of fire-arm injuries and that too, through a single shot because the nature of the injury No. 1 showed that it was theentry wound out of which intestines were protruding. The second injury having everted margins was an exit wound and as such, both of them could be the result of one shot as stated by the doctor who had conducted the post mortem examination. The evidence given by Dr. Muhammad Arshad (C.W. 1) shows that the deceased was admitted in the hospital on 10.7.1989 and remained there till 20.7.1989. he had conducted the operation on the deceased on 10.7.1989 as an emergency case after he was brought there in injured condition. According to him, the death of the deceased had occurred due to cardio respiratory failure and an account of septicemia. It, therefore, follow that the medical evidence was consistent with the statement of the eye-witnesses that the deceased was done to death through a single shot by fire-arm injuries. 9. Likewise, the motive given in the F.I.R. shows that Riaz dead accused had suspected that he was fired at about one or 1-1/2 years ago by Muhammad Rafique at the instance of the deceased. The mere fact that P.W. 8 had stated that the firing was made as a consequence of suspicion that Riaz dead accused had allegedly illicit relations with the sister, of Rafique would be of no consequence because both the witnesses were consistent to say that Riaz dead accused suspected Ghulam All to have instigated Rafique to make the firing. It may be remarked that the F.I.R. though a foundation of the case, is not expected to be an encyclopaedia so as to provide the minor details about everything connected with the occurrence. As such, if it was not mentioned in the F.I.R. that Rafique fired at Riaz because of some illicit intimacy with his sister by Riaz accused, it will not effect the credentials of the evidence of the aforesaid witnesses or the evidence of Rab Nawaz (P.W.) as the latter was likely to know better as to what had happened qua his deceased brother regarding that incident. It cannot be, therefore, said that the motive remained unproved by the prosecution. 10. The recovery of gun P.2 from the accused cannot be taken as a corroborative piece of evidence because no empty was recovered from the pot nor the gun or an empty was sent to the Ballistic Expert to determine as I to whether it was a crime weapon or not. The recovery of the gun P.2 from the appellant/accused would be of no avail in this case. 11. It is clear from the above that the motive existed for the occurrence and even in the past there were frequent quarrels which resulted into compromise between the deceased and the aforesaid Riaz dead accused. The reading of the statements of the eye-witnesses will show that though they have been cited as prosecution witnesses against the accused in some of the cases alongwith their relatives but most of those cases were compromised later on. Now the question would arise whether evidence of both the eye-witnesses should be discarded only for the reason that they have been cited in some of the cases as prosecution witnesses against the accused side or vice versa. As already observed above, the parties come from the same village which is inhabited by different tribes. There is some sort of rivalry between Balochi residents of the village with the members of other tribes residing therein. This type of rivalry is not very unusual in the rural side of our.country. As such, it will not be considered to be a sound cause for discarding the evidence of both the P.Ws. merely on the ground that they belonged to different tribes than the tribe of the appellant/accused who had some sort of rivalry between them. The rivalry and enmity are two different things. The mere rivalry would not be sufficient to discard the evidence of the eye-witnesses until and unless it is shown that their statements were motivated by ill-will or enmity towards the appellant/accused. Except, that they were cited as witnesses in some of the cases against the accused there is no other factor which would make us to believe that the witnesses were actually inimical to the appellant/accused. In such a situation and particularly when their evidence has been corroborated by the medical evidence, it would be well within the safer administration of criminal justice to rely upon their evidence particularly when one of them namely Rab Nawaz is the brother of the deceased and he would not like that a stranger should be sent to gallows, whereas, the actual offender should be allowed to escape scot-free. As observed above, it will be natural on his part to name the real culprit in the given situation. Likewise, evidence of other eye-witnesses namely Sabir Hussain also stands on sound footing so as to be believed regarding the offence committed by the appellant/accused. 12. Learned counsel for the appellant had submitted that the death of the deceased occurred after ten days of the occurrence due to cardio respiratory failure and on account of septicemia. it was, therefore, urged that the appellant never intended to cause death of the deceased and the injuries caused to him allegedly by the appellant were the remote cause of his death. In that situation, it was alleged that the provisions of section 304, P.P.C. would apply to the facts of this case, even if it is proved. 13. We have considered the above aspect of the case. The location of the injuries on the deceased will show that those were fired at the vital part of his body such as lower portion of abdomen. The central part of the abdomen was also perforated as would be clear from injury No. 1 which showed that the intestines were protruding out of the wound. The appellant had used the fire-arm to cause those injuries and, therefore, his intention as very clear to kill the deceased. Secondly, the death had occurred though after ten days but it was the direct result of those injuries. It was deposed by the Medical Officer while appearing as P.W. 5 that the cause of death was haemorrhage and shock due to injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. It, therefore, ollows that the gnitude and the damage done by those injuries was sufficient to take away the life of the deceased even when he was fired at. The mere act that he had developed septicemia during the treatment would in no way lead to n inference that the injuries suffered by the deceased were of trival nature and that the death had occurred on account of negligence of the medical staff while he was being treated in the hospital. The wounds were infected while the deceased was under treatment and this was not something very unusual because the present hygienic conditions are not enviable in our hospitals. Any incidental or casual factor may make the condition of a patient worse particularly when the wounds suffered by him were of fatal nature. In these circumstances, it cannot be successfully urged that the death of the deceased occurred on account of some remote cause and not due to the fire-arm injuries inflicted upon him by the appellant. We, therefore, come to an inescapable conclusion that since injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature, therefore, the appellant cannot escape his liability under the law to face the consequences in taking the life of deceased. It was a daylight ccurrence and committed in heartless manner with the clear cut intention to kill the deceased. The mere fact that a single shot was fired would not call for any leniency to depart from the usual sentence of death under section 302, P.P.Q. The accused had achieved the object of killing the deceased by firing at him at the vital part of his body with a fire-arm and as such, even single shot had done the damage which he wantonly intended to cause to the deceased in taking his life. 14. We, therefore, come to an irresistible conclusion that the ppellant was rightly convicted under section 302, P.P.C. for committing the murder of the deceased. There is no extenuating circumstance for lesser punishment. Hence the normal sentence of death was rightly awarded to him by the learned trial Court. We, therefore, dismiss this appeal and uphold the conviction and sentence awarded to the appellant by the learned trial Court. 15. The death sentence of the appellant is confirmed 17. The Murder Reference No. 432 of 1991 is disposed of accordingly. (AAJS) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1012 Present: RAJA MUHAMMAD SABIE, J. AMIR DIN PERACHA-Petitioner versus WAJAHAT IKRAM and another-Respondents Criminal Revision No. 75 of 1996, decided on 18.11.1996. Criminal Procedure Code 1898 (V of 1898)-- -Ss. 347, 350 & 439--Offence u/Ss. 324/34--Sessions Court on receiving the case from the Court of magistrate under S. 437, Cr.P.C. passed an order of de novo trial-Challenge to--Sessions Court passed impugned order of de novo trial without applying its judicial mind and without keeping in view legal requirements of law which empowered it to proceed with trial of case on existing record-Prejudice was shown to have been caused to accused in case evidence already validly recorded by Magistrate was considered for remaining trial-Sessions Court's order for holding de novo trial was consequently set aside and it was directed to proceed with trial from stage Magistrate had sent case-Revision petition accepted. [PJA.B&C PLJ 1993 (Cr. C.) 177 ref. Sardar Muhammad LatifKhan Khosa, for Petitioner. Kh. Sultan Ahmad, for Respondents Nos. 1 and 2. Sh. Tanvir Ahmad, for the State. Date of hearing: 6.11.1996. judgment Through this petitin filed under section 439, Cr.P.C. the order, dated 11.7.1996 passed by Mr. Muhammad Akhtar Khan, learned Additional Sessions Judge, Rawalpindi, has been assailed on the ground that he without application of his judicial mind as to whether in the facts and circumstances of the case, the law required the de novo trial in the instant case, acted mechanically on the statements of the learned counsel for the parties which tantamounts to failure of the Court to exercise its jurisdiction properly for having not taken a decision whether the de novo trial was permissible under the law or not. 2. Brief facts of the case are that the complainant filed an application under section 346/347, Cr.P.C. for transfer of the case to the learned Sessions Judge on the ground that the injured/Anjum Farooq Peracha was hit on his back hone by the bullet fired by the accused Wajahat Ikram accompanied by the other co-accused. Since the lower portion of the "^body of tSieiajured was parjlysed, therefore, the case in hand, is a case of enhanced punishment^ which a Court of Magistrate Section 30 is not competent to award. The learned Magistrate sent the matter to the Sessions Court and the same was taken up by the learned Additional Sessions Judge. The statements of the accused were recorded under section-342, Cr.P.C. During the course of arguments on the abovesaid application, learned counsel for the complainant submitted that if the accused demanded retrial of the case, he has no objection to it. The accused were asked as to whether they wanted retrial of the case. They replied that if the law permits Judge without going into the relevant provisions of law and considering the arguments of the learned counsel for the parties, disposed of the matter in a mechanical manner keeping in view the statement of the learned counsel for the parties vide impugned order, 3. Learned counsel for the petitioner contends that de novo trial in the present case is not permissible and the impugned order is liable to be set aside, under section 347, Cr.P.C. reads as under:- "If in any trial before a Magistrate before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Sessions or High Court, he shall send the case to the Court of Session or High Court, for trial." Similarly section 350, Cr.P.C., which was amended by the Ordinance No. VII of 1980 provides rfs follows: - "Whenever any Sessions Judge or Magistrate after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate who has and who exercises such jurisdiction, the Sessions Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may reexamine the witnesses and recommence the inquiry or trial." 4. In support of his contention learned counsel for the petitioner has referred the following reported cases:- (1) 1984 SCMR 1345, (2) PLJ 1993 (Cr.C.) 117, (3) 1994 PCr.LJ 2482, (4) PLD 1981 SC 106, 5. On the other hand, learned counsel for the respondents as well as learned counsel for the State supported the order passed by the learned Additional Sessions Judge. Learned counsel for the respondents has relied upon 1995 SCMR 1713. 6. Arguments of the learned counsel for the parties have been heard and record perused. In the judgment referred by the learned counsel for the petitioner Rehmat v. The State. 1984 SCMR 1345 it was observed in para. 6 that:- "The contention of the learned counsel for the appellant that the learned Sessions Judge could not have acted upon the evidence recorded by the Magistrate, under section 350, Cr.P.C., is not well-placed. Exceptions in that regard have been provide by subsection 92) of section 350, Cr.P.C., which read as under:- "Nothing in this section applies to case in which proceedings have been stayed under section 346 (or in which proceedings have been submitted to a , superior Magistrate under section 39." It was also held in the said judgment that:- "The exception has been made in cases falling under sections 346 and 349, Cr.P.C. and section 347, Cr.P.C. is not included in the exception, which is enough to rebut the contention regarding the objection to act upon the findings of the Magistrate." 7. Similarly in Muhammad Aslam v. The State PLJ 1993 Cr.C. (Quetta) 177 it was held that:- "Progressive change of law displays leaning towards validating, ratifying and protecting proceedings earlier drawn by a proper forum. Main object of legislative change tends to eliminate technicalities and promote speedy disposal. No prejudice has been caused to appellants on account of Special Judge's failure to hold de novo trial." It was also held that:- "Evidence recorded by the Sessions Judge, has rightly been considered by the Special Judge," The objection of the appellant in that case was repelled. 8. The third judgment referred by the learned counsel for the petitioner and reported as Haji Sakhi Dost Jan and another v. P.N.C.B., Through Regional Director, Balochistan at Quetta and others 1994 PCr.LJ wherein in a case under Articles 5, 6 and 7 of the Prohibition (Enforcement of Hadd) Order 4 of 1979, it was held that:- "The accused persons were initially challaned in the Court of Session, while the cases were pending before the Court of Session, Federal Government transferred the cases to Special Court for Speedy Trials. Evidence in the cases were concluded by the Special Court and matter was fixed for arguments when the Federal Government transferred all the cases back to Court of Session. Accused persons, on transfer of cases back to Court of Session moved an application requesting for de novo trial on the ground that Special Court had no jurisdiction to record the evidence and the proceedings were coram nonjudice." The contention of the accused was repelled holding that:- "The proceedings recorded by the Special Court for Speedy Trials did not suffer from any legal defect or lack of jurisdiction. The Sessions Court being transferee Court had the discretion to proceed with the matter on existing record." It'was also observed that:- "The witnesses having exhaustively been cross-examined before the Special Court, no prejudice appeared to have been caused to the accused persons with regard to evidence recorded by the Special Court for Speedy Trials." The application for de novo trial filed by the accused persons was rejected by the Court in that case. 9. In the fourth judgment referred by the learned counsel for the petitioner, reported as Professor Muhammad Hanif Tahir v. The State PLD 1981 SC 106 it was held as under:- "No principle of law enjoins hearing of a case only by such Court as has taken down evidence. Even if any principle existed to contrary same taken away by amendment in section 350, Ci.P.C. Successor Court even though not having taken down evidence, held, now permitted to proceed with case without recording fresh evidence and it makes no difference whether immediate successor or successor of immediate successor howsoever disposes of cases." It was also held in the said judgment that:- "There is no principle of law that a person who has taken down the evidence alone is competent to hear the case. Anyway, the provisions in section 35 of the Criminal Procedure Code are to the contrary. In any case if it were to be assumed for the sake of arguments that there is such a principle, the same has been revoked by permitting the successor, who has not taken down the evidence, to proceed with the case without recording fresh evidence. Once it has been so revoked it makes none the difference whether the immediate successor or the successor of the immediate successor howlowsoever disposes of that case." 10. In support of his contentions learned counsel for.respondents Nos. 1 and 2 has referred the judgment reported as Zahid Hussain Shah and others v. Ghulam Murtaza Asghar and others 1995 SCMR 1713, wherein it was held that:- "High Court had no jurisdiction to interfere with the discretion exercised by the Trial Court to proceed with the case afresh and not on the evidence already recorded by the defunct Special Court for Special Trial. The counsel for the accused (petitioners) had conceded before the High Court for disposal of the case on the evidence already recorded by the Special Court and there was no decision by the High Court regrading the said legal aspect of the case. The High Court's order directing the trial Court to conclude the trial on the basis of the material already brought on the file, therefore, did not call for any interference and the leave to appeal was refused accordingly." 11. This judgment does not help the respondents in any manner and in fact it indirectly supports the contentions of the learned counsel for the petitioner. Particularly the observation/direction of the High Court that the case be decided on the basis of the material already existed on the file. 12. The provision of section 347, Cr.P.C. read with section 350, Cr.P.C. and examined in the context of the judgments referred above, makes it crystal clear that the impugned order passed by the learned Additional Sessions Judge, is illegal. It was the bounden duty of the learned Additional Sessions Judge to have examined the validity of the request for de novo trial made by the learned counsel for the defence. Although the same was not seriously opposed by the learned counsel for the complainant but at the same time it was duly of the learned Additional Sessions Judge to give positive finding whether the de novo trial was permissible under the law or in the interest of justice. Learned Additional Sessions Judge has erroneously ordered the de novo trial of the case without considering the legal provisions and the judgments referred to above on the subject. 13. It is pertinent to note here that the trial was conducted by the Magistrate, where the learned defence counsel has full opportunity to crossexamine all the prosecution witnesses. Learned counsel for the respondents Nos. 1 and 2 himself was their counsel in the trial Court also and he has not been able to show that any prejudice shall be caused to the accused, in case the evidence already recorded by the Magistrate is considered for remaining trial. The evidence recorded by the learned Magistrate is valid and will be deemed to be a part of the trial to be further conducted by the learned Additional Sessions Judge. 14. At this stage, it can safely be said that the intention of the law maker, gathered from the sections 347 and 350, Cr.P.C., clearly indicate that the Court can proceed with the trial of i!ne case on the existing record without holding de novo trial. The impugned order has been passed by not applying judicial mind and keeping in view the legal requirements of law. In these circumstances the revision petition is accepted and the impugned order is set aside. The learned Additional Sessions Judge, is directed to proceed with the trial from the stage, the Magistrate has sent it to him. Z (AAJS)
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1017 Present: muhammad asif jan, J. MUHAMMAD AKRAM-Petitioner versus STATE-Respondents Criminal Miscellaneous No. 211/B of 1996, decided on 11.8.1996. Bail- -S. 497(2)-Further Inquiry-Case of-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10/16 read with S! 420/468/471/ 342/337-A(i) PPC-Bail-Grant of-Complainant (victim) in F.I.R. accepted accused as her lawfully-wedded husband-Reasonable grounds, therefore, did not exist to believe that accused was guilty of an offence punishable with death, imprisonment for life or imprisonment for 10 years and case was one of further inquiry within meaning of S. 497(2), Cr.P.C. making him entitled to grant of bail. [P. 1018] A & B S. M. Masood Shah, for Petitioner. Miss Roshan Ara, for the Complainant. order Muhammad Akram petitioner was arrested on the 18th of April, 1996, in pursuance of a case registered against him vide first information report No. 3/96, dated 9th of January, 1996, under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 read with section 420/468/471/342/337-A(i), P.P.C., regarding an occurrence which allegedly took place on the 20th of November, 1995, at about 9.00 a.m. in the area of Alama Iqbal Town, Lahore, which is about 2 furlongs from Police Station, Gulshan-e-Iqbal, where the case was lodged after 2 months on the 9th of January, 1996 by Mst. Mukhtaran Bibi the alleged victim of occurrence. 2. In the first information report itself complainant Mst. Mukhtaran accepts Muhammad Akram petitioner to be her lawful wedded husband, therefore, reasonable grounds to believe that Muhammad Akram petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not seem to exist. However, the case against Muhammad Akram petitioner may be a case of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. which entitles him to the grant of hail. 3. Resultantly, Muhammad Akram petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of trial Court. (AAJS) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1018 Present: IFTIKHAR HUSSAIN CHAUDHRY, J. SHAUKAT HAYAT and others-Petitioners versus STATE-Respondent Criminal Miscellaneous Nos. 4614/B, 4273/BC and 2961/BC of 1996, decided on 11.11.1996. (i) Bail- S. 497 Cr.P.C.-Offence u/Ss. 324/341/148/149 pf PPC~Bail-Accused had allegedly fired at the witness hitting him on his right leg-Injury sustained by witness was a single pellet injury which was "Gayer Jaifah Mutalahimah" entailing a maximum sentence of 3 years' R.I.--Role played by accused did not bring his case within the prohibitory clause of S. 497(1), Cr.P.C.-Bail granted. IP- 10213 A Malik Muhammad Akram Khan Awan, Syed Ikhtisar Ahmad and Shahid Hussain Qadri, for Petitioner. Malik Ghulam Qadir, for the State. order This order shall dispose of Criminal Miscellaneous No. 4614/B of 1996, Criminal Miscellaneous No. 4273/BC of 1996 and Criminal Miscellaneous No. 2961/BC of 1996. 2. Criminal Miscellaneous No. 2961/BC of 1996 has been filed by Muhammad Ameer for cancellation of bail allowed to Khuda Dad, Sarfraz (since dead) and Muhammad Sher respondents by orderd, dated 2.7.1996. Criminal Miscellaneous No. 4273/BC of 1996 was filed of cancellation of bail allowed to Muhammad Ashraf and Ghulam Jillani, respondents. Criminal Miscellaneous No. 4614/B of 1996 has been filed by Sahukat Hayat, Muhammad Feroz and Ahmad Nawaz petitioners for grant of bail to them. All the matters arise out of F.I.R. No. 50, dated 8.5.1996, under sections 324/341, 148/149, P.P.C. registered at Police Station Katha Sagral, District Khushab and were heard together. 3. The occurrence took place on 8.5.1996 and F.I.R. was registered at the instance of Muhammad Ameer who stated that he had purchased a bus about 15/16 days before and the same plied between village Nali and Sargodha. According to the complainant the Bus was proceeding to Sargodha and when it reached near the Baithak Mazhar Lumbardar, the road was blocked by a log of wood at which the bus which was being driven by his son Ikhlas, stopped. According to the complainant his son Mian Muhammad was sitting on front seat of the Bus, his son Dost Muhammad was sitting on top of the bus alongwith a number of other persons. The bus was full of passengers. The complainant stepped down to remove the log, when Muhammad Feroz, Ahmad Nawaz armed with .12 bore guns Ghulam Jillani, Daood, Muhammad Mumtaz, Sarfraz, Dost Muhammad armed with sticks, Muhammad Sher, Shaukat Hayat, Sarfraz, Khuda Dad, Muhammad Ashraf and Ghulam Jillani armed with shot guns emerged from the street. Muhammad Feroz and Ahmad Nawaz raised a Lalkara and Muhammad Feroz fired first shot on Dost Muhammad hitting him on left side of neck. The second shot fired by Ahmed Nawaz hit Dost Muhammad on left shoulder and he fell on the top of vehicle. Muhammad Mumtaz poked the complainant with stick on his chest. Mian Muhammad was fired upon by Shaukat Hayat hitting on his right leg. The shot fired by Khuda dad hit Mian Muhammad on left leg. Muhammad Sher, Sarfraz, Muhammad Ashraf, Ghulam Jillani fired at passengers sitting in the bus injuring Khaliqnawaz, Muhammad Nawaz and Muhammad Nazir. Ghulam Jilani, Sanwal Khan, Daood, Muhammad Mumtaz, Sarfraz, Dost Muhammad and 4/5 others persons carrying sticks stood before the bus restraining its movements. 4. After registration of the case, the accused approached the learned Additional Sessions Judge for grant of bail. Learned Additional Sessions Judge, Khushab by order, .dated 2.7.1996 allowed bail in anticipation of arrest to Khuda Dad and Muhammad Sher. Muhammad Ashraf and Ghulam Jilani were allowed post arrest bail by order, dated 233.7.1996. The complainant filed aforementioned applications for cancellation of bail allowed to respondents whereas Shaukat Hayat, Muhammad Feroz and Ahmad Nawaz submitted application for grant of bail to them. Learned counsel for the parties have been heard at length. 5. Learned counsel for Shaukat Hayat and others submitted that the complainant had enroped a large number of persons in the incident which shows mala fides on his part. It was contended that there was a dispute between the two rival transporters over timing of buses owned by them and there was cross-firing firing due to which certain persons were injuried. It was contended that the injuries attributed to the petitioners were simple in nature and the case of the petitioners did not fall ithin the prohibitory clause of section 497, Cr.P.C., as the injuries attributed to the petitioners would entail a maximum sentence of 3 years' R.I. alone. It was contended that the case did not fall at all under section 3324, P.P.C. 6. Learned counsel for the complainant pleading for cancellation of bail allowed to accused/respondents submitted that they were attributed specific roles and they had actively participated in the incident which was pre-planned affair and the learned Additional Sessions Judge had erroneously granted pre-arrest bail to the accused-respondents and likewise grant of post-arrest bail was also unjustified and the facts and circumstances of the case were not kept in view. Opposing the prayer made by Shaukat Hayat and others, it was submitted that Muhammad Feroz and Ahmad Nawaz were owners of the bus and they had tried to force the complainant out of business and launched a concerted attack with the help of their coaccused on the complainant and his sons and they did not deserve concession of bail as the offence was heinous in nature and besides that the case of the accused also fell under prohibitory clause of section 497, Cr.P.C. Learned counsel for the State also supported the learned counsel for the complainant. 7. The occurrence took place when a bus owned by the complainant was proceeding from their village to Sargodha . The allegation is that 133 coaccused as well as 4/5 other persons whose names were not given in the F.I.R., blocked the passage of the bus and thereafter some of the accused fired at the bus hitting certain passengers and son of the complainant, when the complainant himself tried to remove the log blocking the passage. According to recorH Muhammad Feroz and Ahmad Nawaz were rival transporters and they had launched, attack on the complainant in order to restrain him from competing with them. Muhammad Feroz and Ahmad Nawaz allegedly opened attack on the complainant party. Prime facie, they had a motive to restrain the complainant or to force him out of business. hey do not deserve concession of bail as they had gathered a number of persons, had opened attack and had also caused injuries to the P.Ws. The application to their extent stands dismissed. 8. -As far as Shaukat Hayat and others are concerned, Shaukat Hayat had fired at Mian Muhammad hitting him on his right leg. Similarly, one Khuda Dad Khan field at Mian Muhammad hitting him on his left leg. The injury on the person of injured P.W. is a single pellet injury, which is Ghair Jaifa Mutlahima and entails a maximum sentence of 3 years' R.I. The role played by Shaukat Hayat, does not bring his case within the prohibitory clause of section 497 Cr.P.C. Resultantiy, he is allowed bail in the sum of Rs. 30,000 (Thirty thousands) with one surety in the like amount to the 9. As far as the prayer for cancellation of bail allowed to other respondents is concerned, it has been found that the bail was allowed to them on proper appreciation of material on record. The orders granting bails are neither arbitrary nor militate against the material brought on record. 10. The'applications for cancellation of bails are dismissed. (AAJS) Order accordingly.
PL J 1997 Cr PL J 1997 Cr.C. ( Lahore ) 1022 (DB) Present: ABDUL HAFEEZ CHEEMA AND MUHAMMAD ISLAM BHATTI, JJ. MUHAMMAD SIDDIQUE and another-Appellants Versus STATE-Respondent Criminal Appeals Nos. 19, 20 and Murder Reference No. 15 of 1994/BWP, heard on 13.5.1996. (i) Pakistan Penal Code (XLV of 1860)-- Ss. 302/120-B/149 and 148-Murder-Offence of-Conviction for- Challenge to-F.I.R. having not been recorded after deliberations and preliminary investigation, was a good piece of corroborative evidence-Ocular evidence was reliable-Accused had a motive for commission of offence-Recoveries of weapons of offence effected from accused when considered alongwith ocular evidence and medical evidence connected them with murder-Conviction maintained. [P. 1033, 1035,1036,1037] A, B, C, D, & E (ii) Mitigating circumstance- Murder-Offence of-Mitigating circumstance-Accused had killed deceased in order to vindicate family honour which made them deserve lesser penalty-Sentence of death awarded to accused was altered to imprisonment for life. [P. 1037] F Sardar Ahmad Khan and Ch. M. Ashraf Akhtar, for Appellants. Mohsan Raza Joya, for the State. Malik M. Farrukh Mahmood, for the Complainant. Dates of hearing: 28-11; 5-12-1995, 6, 9. and 13- judgment Muhammad Islam Bhatti, J.--Muhammad Siddique son of Sher Muhammad (62/63), Abdul Hakeem son of Amir Din (60), his brother Abdul Ghafoor (40), Muhammad Rafiq son of Abdul Aziz (30) all Chohan by caste, Muhammad Nawaz son of Muhammad Bakhsh (40), Khoja by caste, all the five residents of Village Ahmadpur and Allah Din son of Imam Din Chohan (55) resident of Mauza Baghban, Tehsil Khairpur, District Bahawalpur faced trial in case F.I.R. No. 229/91 registered at Police Station Khairpur Tamewali on 2.9.1991 under section 148/302/149/120-B, P.P.C. on the allegations that on the night between 1/2-9-1991 in the area of Village Ahmadpur, situate within the limits of Police Station Khairpur Tamewali, Muhammad Siddiqui, Abdul Hakeem, Abdul Ghafoor, Muhammad Rafiq and Ullah Din while armed with lethal weapons formed an unlawful assembly with the common object of causing death of Mazhar Hussain 920) son of Nazir Hussain complainant resident of Mauza Chandrani and at the same time and place all the five of them in prosecution of the common object of the said unlawful assembly committed the murder of Mazhar Hussain by firing at him and inflicting hatchet blows, after Muhammad Nawaz son of Muhammad Bakhsh accused had deceitfully decoyed Mazhar Hussain deceased to the house of Muhammad Siddique, with intent to cause his death in pursuance of criminal conspiracy hatched by him with his coaccused, to which charge they pleaded not guilty. The prosecution examined as many as 14 P.Ws. besides production of the report of Chemical Examiner and that of the Serologist in the statement of the D.D.A. to establish their guilt. All the accused were then examined under section 342, Cr.P.C. Muhammad Siddique accused produced in his defence Allah Bachaya a stamp-vendor as D.W. while Abdul hakeem accused produced certain documents in his own statement. 2. It was on the basis of this evidence that the learned Additional Sessions Judge, Bahawalpur held all the six accused guilty of the offences under section 302/120-B/149, P.P.C. All of them except Muhammad Nawaz were also found guilty under section 488, P.P.C. he convicted Muhammad Siddique, Abdul Hakeem Allah Din and Muhammad Rafiq under section 302/120-B/149, P.P.C. and sentenced them to suffer death. He also convicted them all under section 148, P.P.G. and sentenced teem to suffer R.I. for a period of three years each. He convicted Abdul Ghafoor and Muhammad Nawaz accused under sections 302/120-B and 149, P.P.C. and sentenced .them to suffer life imprisonment, keeping in view the nature of the roles assigned to and proved against them. He also convicted Abdul Ghafoor accused under section 148, P.P.C. and sentenced him to undergo imprisonment for a period of three years. All the six accused were also sentenced to pay fine of Rs.20,000 each and in default in the payment of this fine, each one of them had to suffer further R.I. for a period of one year. They were also ordered to pay Rs.20,000 each as compensation under section 544-A, Cr.P.C. to the heirs of the deceased in default of which, each one of them had to further undergo R.I. for one year. Benefit of section 382-B, Cr.P.C. was ordered to be given to all the accused if death sentences of Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq were not confirmed and to Abdul Ghafoor and Muhammad Nawaz accused in case of confirmation of the death sentences aforesaid. All the sentences were also directed to run concurrently. 3. Muhammad Siddique, Muhammad Rafiq and Allah Din have challenged their conviction and sentences by preferring an Appeal (No. 19 of 1994). Similarly Abdul Hakeem, Abdul Ghafoor and Muhammad Nawaz have assailed their conviction and sentences by filing Criminal Appeal Nb.20 of 1994. Murder Reference No. 15 of 1994/BWP seeks confirmation of death sentences awarded to Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq. Both the Criminal Appeals and the Murder Reference are being disposed of by this judgment. 4. It may be mentioned here that the occurrence in the present case took place at about 1-00 a.m. on the night between 1/2-9-1991 at a Kacha road, the site of occurrence being at a distance of six Karams from the main gate of the residential house of Muhammad Siddique accused and half a Karam from the outer wall of the said house as per Exh.P.B. (the site plan prepared by the Patwari), situated at a distance of 8 k.m. from the police station, in the area of Village Ahmadpur towards its north and the same was allegedly recorded at 2-30 a.m. vide Rapat No.37, dated 2-9-1991 on the statement of Nazir Hussain Shah father of the deceased (copy Exh.P.E.), by Madad Hussain I./S.H.O. of the said police station. Nazir Hussain narrated the occurrence in Exh.P.E. as follows:-- "I am the resident of Basti Aara Mauza Chandrani and work as a tube well operator with Sh. Abdul Rahim Zamindar pf village Syed Imam Shah. My son Mazhar Hussain remained employed as a tractor driver with Muhammad Siddique son of Sher Muhammad caste Chohan, resident of Araywali Village Ahmadpur, about one year back. During this period, suspecting that Mazhar Hussain had illicit relations with his daughter Mst. Jamila, Muhammad Siddique accused removed him from » service and was then after taking his life. Today at about Isha Wela, I came back to my house and found that Mazhar Hussain was not available therein. My wife Mst. Allah Wasai and daughter-in-law Mst. . Kaiisar Mai wife of Mazhar Hussain told me that only some time back, Muhammad Nawaz son of Muhammad Bakhsh Khoja resident of Ahmadpur had taken him out. Since Mazhar Hussain did not turn up till midnight, I got extremely worried thinking that Muhammad Nawaz, aforesaid being an employee and very special man of Muhammad Siddique, might not get him killed by Muhammad Siddique deceitfully. I, therefore, got out of my house for inquiring about my son Mazhar Hussain from the house of Muhammad Nawaz. Meanwhile I came across Riaz Ahmad son of Ghulam Farid, caste Sipra, resident of Mauza Syed Imam Shah, an employee of Sh. Abdul Rahim, who was then riding a motor-cycle. He told me that the tube-well at the Factory had gone out of order and as such I should accompany him and set it right. 1 told Riaz Ahmad about my upsetness and then accompanied him on his motor-cycle to the house of Mehr Allah Dewaya son of Allah Bakhsh Arain, a Zamindar and neighbourer. I told him about my upsetness to Mehr Allah Dewaya also hereafter all the three of us went to the house of Muhammad Nawaz in order to inquire about Mazhar Hussain. Muhammad Nawaz was not present at his house. This added to my upsetness. I, therefore, accompanied by Riaz Ahmad and Mehr Allah Dewaya, left for the Basti of Muhammad Siddique by riding over the said motor-cycle. We reached near the house of Muhammad Siddique at about 1-00 p.m. where 1 saw, in the light of motor-cycle, Muhammad Siddique armed with hatchet Muhammad Rafi son of Abdul Aziz armed with a pistol, Abdul Hakeem son of Amir Din armed with gun, Abdul Ghafoor son of Amir Din armed with Dang all Chohan by caste, Muhammad Nawaz aforesaid and Allah Din son of Imam Din caste Chohan armed with a gun, all of them catching hold of my son Mazhar Hussain. No sooner Muhammad Siddique etc. did see us than Abdul Hakeem fired straight at my son Mazhar Hussain with his gun which hit him in the left side of his chest. Then Allah Din and Muhammad Rafiq also fired at him with their gun and pistol, whereupon Mazhar Hussain fell down on the ground. When he had so fallen down, Muhammad Siddique accused gave him successive hatchet blows. I, Riaz Ahmad and Mehr Allah Dewaya went forward in order to rescue Mazhar Hussain whereupon all the accused exhorted that if you came near, you would be done to death. Feeling frightened, we receded. My son Mazhar Hussain remained convulsing and expired in a shortwhile, within our sight. The accused left him there and went to the house of Muhammad Siddique. The alarm raised by us attracted Imam Bakhsh Arain etc. to the scene of occurrence. I have come to the police station with Riaz Ahmad, on his motor-cycle for reporting the matter. Mehr Allah Dewaya and others are present at the scene of occurrence. Muhammad Siddique, Muhammad Rafiq, Abdul Hakeem, Abdul Ghafoor and Allah Din accused have in conspiracy with Muhammad Nawaz, after sending for him through the latter, murdered my son Mazhar Hussain." After recording this formal F.I.R. Exh.P.E., Madad Hussain, Inspector P.W. 14 who was then the S.H.O. al Police Station Khairpur Tamewali reached the spot, inspected the dead body of Mazhar Hussain, prepared inquest report Exh.P.D. and injury statement Exh.P.D./l. He then handed over the dead body to Muhammad Maroof (P.W. 1) for escorting "the same to the mortuary for post mortem examination. He also prepared site plan without scale Exh.P.M. He secured blood-stained earth from the spot and sealed it into a parcel vide memo. Exh.P.F. He also secured a pair of shoes Exh.P.4/1-2 which was taken into possession by him vide memo. Exh.P.G. It was Dr. Asiiiq Ali, Medical Officer, R.H.C. Khairpur Tamewali (P.W.5) who conducted the post-mortem examination on the dead body o' Mazhar Hussain deceased on 2-9-1991 and found the following injuries on h?s person :-- There was a circular entry wound on inner side of upper lip in its middle, opposite to upper inside incisor tooth. The burning and tatooing was present i» connection with entry wound. There was an exit wound on outer side upper lip circular in shape and edges were everted. First incisor tooth was broken from its root and there was clotted blood in and around the neck. Entry wound circular in shape on left side of chest 4 c.m. upward and lateral left nipple burning and tatooing present. There was exit wound 1 c.m. x 1 c.m. in the inner side of right thigh slightly upward. The edges were everted. There was entry wound 1/2 c.m. in diameter on upper edge of right knee burning and-tatooing present. It was entry wound of injury No.4. There was lacerated wound 1 and 1/2 c.m. x skin deep on outer side of left thigh 18 c.m. upward from left knee joint. Exit wound 1 c.m. in diameter on inner side of left thigh 10 c.m. upward from left knee joint, the edges were everted. There was entry wound 1/2 c.m. in diameter of injury No.7. There was burning and mlooing present. If was situated on upper edge of left on its outer side. There was entry wound on left side of glans penis burning and tattooing present corresponding exit wound on left side of glans penis. There was entry wound 1 '2 c.m. in diameter on outer side of right heal' burning and tatooing present. There was corresponding exit wound on inner side of rich! heel. It was 1 c.m. in diameter. i i Incised wound 8 c.m. x. 4 c.m. into bone deep on inner side of right upper arm 3 c.m. upward from right elbow joint. The lower end of right humrus was fractured. (12) There was incised wound 7 c.m. x 3 c.m. x muscle deep 3 c.m. upward and parallel to injury No. 11. (13) Entry wound 1/2 c.m. in diameter on dorsal surface of right elbow joint. Its exit was through injury No. 11. (14) Incised wound 8 c.m, x 4 c.m. x bone deep on outer side of lower 1/3 of left lower leg. Both tibia and febula were fractured. (15) Incised wound 7 c.m. x 3 c.m. x muscle deep on outer side of left lower leg 3 c.m. upward to injury No. 14. Thorax: Left 5th rib was fractured corresponding to injury No.3. There was a circular bone on the interior surface of pleura corresponding to 4th intercostal due to injury No.3. There was a circular hole on its medial border jusi opposite to pericordium due to injury No.3. There was also circular hole on left side of the heart and pericordium. The pleoral and paricordial cavity was full of blood due to injury No.3. The other organs were intact. On dissection hyoid bone was found intact. Abdomen: The right incisor tooth was broken due to injury No.3. Mouth contained cloned blood. There was circular hole in diaphragm and posterior surface of stomach. A pellet was found in small intestine. The bladder contained 200 c.m, urine. There was an entry and exit wound on penis. The rest of the organs were healthy. In his opinion, the death had occurred due to injury No.3 which ruptured the hean muscles and caused severe haemorrhage which was sufficient to cause death. The injuries were ame-mortem. He added that the probable time between injuries and death was immediate and between death and post-mortem about 6 to 8 hours. Exh.P.C. is the correct carbon copy of his post-mortem examination report. Exh.P.C./l and Exh.P,C./2 are the pictorial diagrams showing the location of the injuries. He also signed the inquest report Exh.P.D. and injury statement Exh.P.D./l. After the post-mortem examination, he handed over the last-worn clothes and scaled bottle containing pallets to the concerned police official. 8. It was Maroof P.W.I who produced last-worn clothes shirt P.I, Shalwar P.2 and Vest P.3 and one sealed phial containing pellets recovered from the dead body of Mazhar Hussain deceased to Sh. Muhammad Hussain, Inspector (P.W.14) which were taken into possession by the latter vide memo. Exh.P.A. Sh. Madad Hussain recorded the statements of P.Ws. under section 161, Cr.P.C. on the same day. He arrested Muhammad Siddique, Abdul Ghafoor, Allah Din and Abdul Hakeem accused persons on 11-9-1991. Muhammad Nawaz accused was arrested on 14-9-1991 while Muhammad Rafiq accused was arrested by him on 15-9-1991. While in custody, Muhammad Siddique accused led to the recovery of blood-stained hatchet P.5 on 17-9-1991 which was sealed into a parcel and taken into possession vide recovery memo. Exh.P.H. On the same day, Abdul Ghafoor accused while in custody led to the recovery of Dang P.6 which was taken into possession vide recovery memo. Exh.P. 1. These recoveries .were witnessed by Nazir Hussain complainant (P.W.8) and Iqbal Shah P.W.I 1. On 18-9-1991, Allah Din accused while in custody led to the recovery of .12 bore gun P.7 which was taken into possession vide recovery memo. Exh.P.J. alongwith its licence which recovery was witnessed by Nazir Hussain P.W.8 and Muhammad Murad Shah P.W.12. On 21-9-1991, Muhammad Rafiq accused while in custody led to the recovery of .12 bore pistol P.9 which was taken into possession vide recovery memo. Exh.P.L. On the same day, Abdul Hakeem, accused while in custody led to the recovery of . 12 bore gun without licence P.8 which was taken into possession vide recovery memo. Exh.P.K. Nazir Hussain and Allah Ditta P.W.8 and P.W. 13 witnessed these recoveries. 9. To give a brief resume of the prosecution evidence except that of the eye-witnesses, Muhammad Maroof P.W.I had accompanied the dead body to the mortuary and brought back the blood-stained clothes of the deceased alongwith one sealed phial given to him by the doctor which he delivered to the S.H.O. Maqbool Hussain P.W.3 had while posted as Muharar Head Constable at Police Station, Khairpur on 2-9-1991 received one sealed parcel containing blood stained earth and sealed phial containing pellets recovered from the dead body of the deceased from the S.H.O. for keeping them in safe custody. Similarly on 17- 9-1991, 18-9-1991 and 21-9-1991, he received sealed parcels of crime hatchet (blood-stained) .12 bore crime gun, .12 bore pistol and gun respectively for safe custody in the Malkhana. According 10 him. he delivered all these parcels to Abdul Ghaffar Constable No.736 P.W.2 on 6-10-1991 and the latter delivered them intact at the office of the Chemical Examiner and Forensic Science Laboratory, Lahore, respectively. Riaz Hussain Patwari P.W.4 had prepared the site plan Exh.P.B. on the direction of the police. Iqbal Shah P.W.I 1, Muhammad Murad Shah P.W.12 and Allah Ditta P.W. 13 had witnessed the recoveries, as stated above. Mst. Allah Wasai mother of the deceased was produced as P.W.6 for deposing thai on the day of occurrence at about Isha prayer time, she, her sons Azhar Shah and Mazhar Shall arid her daughter-in-law Mst. Kmisar Bibi were sitting in the compound of their house when Muhammad Nawaz accused came there and knocked at the door. Both of her sons Azhar Shah and Mazhar Shah went to the door. Azhar Shah came back and on being asked told her that Muhammad Nawaz Khoja had taken Mazhar Shah to Khairpur in order to show him a picture. Her husband came back to the house late in the night. He asked about Mazhar Shah on which she told him that Muhammad Nawaz Khoja had taken him to Khairpur to show him a film. Mazhar Shah did not come back wftjcft-wsiTiJaf ^'-feiM&ass 1 . MftacwMlaJtiaz SJjora P.W. came Xhete on a TBOlotcycle and took her husband. She did not know as to what happened thereafter. Azhar Hussain P.W.7 was also produced to corroborate the version of his mother about the departure of Mazhar Shah in the company of Nawaz Khoja for seeing film and not returning whereafter Riaz Sipra P.W. came to their house and his father went out with him in search of Mazhar Shah. 10. Nazir Hussain Shah P.W.8 (complainant), Riaz Ahmad P.W.9 and Allah Dewaya P.W. 10 were examined to give the eye-witness account of the occurrence. Nazir Hussain elaborated and reiterated the version of the F.I.R. with slight improvements and variation here and there. Riaz Ahmad P.W.9 also supported his version but failed to nominate Siddique, Abdul Hakeem accused and confined himself, with regard to this part of the prosecution story, to deposing that when Nawaz was not found at home, they (meaning thereby he alongwith Nazar Hussain Shah complainant and Mehr Allah Dewaya) proceeded to the house of Siddique and Rafiq accused for the search of Mazhar Hussain Shah and reaching near the house of Siddique and Rafiq, they saw Allah Din, Rafiq, Nawaz and Ghafoor accused when Allah Din was armed with a gun, Rafiq with pistol, Nawaz empty-handed and Ghafoor with Soti. According to him, Allah Din and Rafiq fired shots at Mazhar Hussain on receiving which he fell down and then Ghafoor gave Soti blow to Mazhar Hussain while in falling position. Allah Dewaya P.W. 10, however, corroborated the version of Nazir Hussain Shah complainant P.W.8 on all material points. 11. In their statements under section 342, Cr.-P.C. all the accused denied all the suggestions arising out of the prosecution evidence and in reply to the question as to why this case against them and why the witnesses had deposed against them, claimed that it was due to enmity with the complainant as well as with P.Ws. Everyone of them claimed that he had been falsely implicated at the instance of Sh. Abdur Rahim. It is interesting to note that due care was not exercised in recording their statements. All the questions remained the same and their wording was not changed with the change of the accused. Question No.6 reads as under:- "Is it a fact that on the said date and time Abdul Hakeem fired with his gun hitting on the chest of Mazhar Hussain and at the same tims Allah Din and Muhammad Rafiq fired shots at Mazhar Hussain and after he had fallen down, Muhammad Siddique inflicted hatchet blows on Mazhar Hussain causing his death in presence of eye-witnesses? This question was put in the same form and words to all of them including Abdul Hakeem, Allah Din, Muhammad Rafiq and Muhammad Siddique. Similarly question No.7 which runds as unden ts it a fact that Muhammad Siddique accused led to the recovery of blood-stained hatchet, while Abdul Hakeem and Allah Din got recovered guns and Muhammad Rafique got recovered carbine and Abdul Ghafoor accused led to the recovery of a Dang?" Was put in the same form and wording to Muhammad Siddique, Abdul Hakeem, Allah Din, Muhammad Rafiq and Abdul Ghafoor and all of them replied that recoveries were fake and planted. They all denied that they had formed an unlawful assembly and had committed the murder of Mazhar Hussain in prosecution of the common object of that unlawful assembly of which they were members. They also denied that Mazhar Hussain deceased had been serving as a traetor driver with Muhammad Siddique accused who had dismissed him on the suspicion that Mazhar Hussain had developed illegal intimacy with Mst. Jamila daughter Muhammad Siddique. They ali maintained that they were innocent and had been falsely implicated. 12. The learned counsel for the defence have raised the following pleas in support of their appeals for securing the acquittal of all the convicts/appellants:-- (i) That the F.I.R. was lodged after preliminary investigation and due deliberations and not at 2-30 a.m. as mentioned in the F.I.R. or claimed by the prosecution. For this much reliance has been placed on the statements of Azhar Hussain P.W.7, a real brother of the deceased Mazhar Hussain. According to him, they reached the police station alongwith the dead body at about 6-00 a.m. and it was there at the police station that his statement and the statement of his father were recorded. Nazir Hussain Shah also stated so towards the end of his cross-examination. According to him, his statement as well as the statement of Azhar Hussain were recorded at the police station when they took the dead body there. He added that they reached the police station at 6-00 a.m. aiongwith the dead body. (ii) That the police prepared the inquest report Exh.P.D. and injury statement Exh.P.D./I after the post-mortem examination because the sequence of injuries given in the injury statement is the same as given in the post-rnortem report which also indicates that F.J.R. was perhaps not recorded even up to 6-00 a.m. (iii) Thai the prosecution has no? been able to establish with cogent and convincing evidence that Muhammad Nawaz accused hid deceitfully taken the deceased from his house to the house of Muhammad Siddique and that as such the prosecution story is' improbable and intrinsically false. (iv) That it cannot appeal to reason and no man of ordinary prudence can believe that the accused continued waiting for the P.Ws. to turn up and then to murder the deceased in the manner claimed by the prosecution. The fact that motor-cycle was not taken into possession in order to establish that its light was in working order and that as such P.Ws. could be expected to see the accused doing away with % the deceased in the manner claimed by them has also been pressed into service. The claim of the P.Ws. (Nos.8 and 10) that they had identified all the accused and Mazhar Hussain in the light of motor-cycle and also in the light of an electric bulb has also been controverted by the defence in view of the statement of Sh. Madad Hussain, Investigating Officer (P.W.14) that he did not mention any electric light in the site plan of place of occurrence or inspection note as there was no electric light at the said place. (v) That no empties were recovered from the site of occurrence and as such the recoveries of guns and pistol cannot be of any avail to the prosecution for connecting the accused with the commission of the offence or for corroborating the ocular evidence.' (vi) That Allah Din had no relationship or sympathies with Muhammad Siddique etc. for becoming their accomplice and there was no good reason for him to join the others in the commission of the offence. (vii) That Allah Dewaya P.W. is admittedly inimical towards the accused and bore grudge against them on account of some previous criminal litigation, as admitted by him in his cross-examination and his evidence, therefore, cannot be safely relied upon because he cannot be termed as an independent and disinterested witness and also because there was .no good reason for him to join Nazir Hussain Shah complainant and Riaz for going to the house of Siddique in search of Mazhar Hussain; and (viii)That the evidence regarding motive is also lacking and there is no truth in the allegation that Mazhar Hussain deceased had been removed from service by Siddique after suspecting that he had developed some illicit relations with her daughter Mst. Jamila. For this, the learned defence counsel have referred to the statement of Azhar Hussain P.W.7 who in his cross-examination deposed that it was not known to them before the occurrence that Siddique accused removed Mazhar Hussain from service on the suspicion of his illicit relations with his daughter and that they came to know about it after the occurrence. Reference has also been made to the statement of Nazir Hussain Shah who on being crossexamined deposed that none of the accused told him regarding "the suspicion of illicit relations of Mst. Jamila and the deceased. 13. The learned counsel for the complainant has, on the other hand, defended the findings of the learned Additional Sessions Judge by making the following submissions :- (i) That the F.I.R. was lodged with promptitude without any deliberation and there is no force in the contention of the learned defence counsel that ithad been recorded after preliminary investigation or even after the receipt of post-mortem examination report. According to him, supplementary statement of Nazir Hussain Shah under section 161, Cr.P.C. was recorded and the complainant might be referring to that statement when he admitted that his statement was recorded at the police station and that a thoughtless and wanton statement made by Azhar Hussain in this behalf is of no evidentiary value because he was none to depose on this aspect of the case and his statement was obviously recorded some time later. (ii) That the sequence of the injuries in the injury statement being the same as in the post-mortem examination report is also of no advantage to the defence because it can equally be said that the Doctor might have checked up the injuries after going through the injury statement. (iii) That it is immaterial if Muhammad Nawaz accused had deceitfully taken the deceased to the house of Muhammad Siddique because the necessary details of the main occurrence have been described by the star witnesses i.e. Nazir Hussain Shah and Allah Dewaya and their testimony cannot be brushed aside on the ground that the deceitful taking of Mazhar Hussain by Nawaz has not been established beyond doubt. (iv) That the occurrence had taken place not in a house but at an open site and, therefore, it is immaterial if any electric bulb was on or not in order to enable the P.Ws. to see the occurrence; (v) That the mere fact that empties were not recovered from the site of occurrence also does not help the accused in claiming that the occurrence had not taken place in the manner described by the prosecution, because defence has not at all controverted the site of occurrence which is adjacent to the house of Muhammad Siddique accused and from where the blood-stained earth was collected by the police, besides a pair of shoes admittedly belonging to the deceased; and (vi) That the motive also stands established not only by the inference drawn from all the circumstantial evidence that the deceased was murdered near or about the house of Muhammad Siddique accused where the deceased might have gone at the dead of night to see Jamila but also from the fact that he had earlier been involved in a case of theft of revolver by Abdul Hakeem who is a close relative of Muhammad Siddique accused and had all sympathies for zealously safeguarding the family honour and respect. 14. We have very carefully and minutely gone through the evidence on record and given our anxious and thoughtful consideration to the arguments addressed at the Bar by the learned counsel and the case-law relied on by both the sides. We are not at all convinced that the F.I.R. was recorded after deliberations or preliminary investigation. Nazir Hussain Shah complainant obviously had no enmity, ill-will or motive for falsely implicating Muhammad Siddique accused and his accomplices. Had there been any such intention, he would have definitely tried to put the main-blame of doing away with his son on Muhammad Siddique because, as the prosecution evidence suggests, it was Muhammad Siddique who suspected Mazhar Hussain deceased of having illicit relations with his daughter Mst. Jamila. The fatal shot resulting in injury No.3, which was sufficient in the ordinary course of nature to cause death, could also be conveniently attributed to him but it was not done by the complainant. There is as such no convincing evidence on record to suggest that the F.I.R. was recorded after deliberations or preliminary investigation. It is, therefore, a good piece of corroborative evidence. 15. The fact that the correctness of site of occurrence has not at all been controverted by the defence also goes a long way to lend support to the prosecution evidence. Point (3) in Exh.P.B., the site plan, where the occurrence had allegedly taken place and from where the blood-stained earth was taken into possession by the police is allegedly a Kacha road, the eastern corner of which is at a distance of six Karams from the main gate of the house of Muhammad Siddique accused and hardly half a Karam from the outer wall of the said house. Riaz Hussain Patwari who prepared this site plan was not at all subjected to any cross-examination on this point. Even the Investigating Officer Sh. Madad Hussain, Inspector P.W.14 was not put a single question in this connection. It, therefore, follows that the accused did not at all controvert the claim of the prosecution that the occurrence had taken place so near rather adjacent to the ouse of Muhammad Siddique accused. Analysed in this perspective but simultaneously keeping in view that maxim "falsus in uno falsus in omnibus" has no universal application and grain has to be sifted from the chaff, we find that the ocular evidence, as contained in the statements of the complainant Nazir J Hussain Shah P.W.8 and Allah Dewaya P.W.IO, has to be relied upon. The complainant being the father of the deceased, upset as obviously he was, took alongwith him Allah Dewaya P.W.IO, a neighbourer, besides Riaz Ahmad P.W.9 who was already available having visited him in connection with the tubewell having gone out of order, and having a definite suspicion with regard to Muhammad Siddique's being annoyed with his son on account of alleged illicit relations the latter had with his daughter Jatnila, could naturally be expected to go to the side of the house of Muhammad Siddique in search of his son. Riaz Ahmad P.W.9 obviously did not fully corroborate the version of the complainant with regard to the identity of the accused and confined himself to deposing that he saw Allah Din, Rafiq, Nawaz and Ghafoor accused when Allah Din was armed with gun, Rafiq was having a pistol, Nawaz was empty-handed and Ghafoor had a Soti. He had earlier stated that on reaching near the house of Siddique and Rafiq, he had seen these persons. He added that he did not note any other person there. From his cross-examination, it is abundantly clear that he is not a truthful witness and had suppressed some material facts. He has been appearing as a P.W. in a large number of cases. He being a servant of Sh. Abdur Rahim, it was put to him if it was not a fact that Sh. Abdur Rahim goflhe cases registered through him and he deposed in those cases at his instance. He turned down this suggestion but the fact remains that he suppressed the names of Siddique and Hakeem accused for reasons best known to him. 16. The truthfulness of Allah Dewaya P.W. 10 has also been questioned by the defence mainly because he admitted at the very outset on being crossexamined, that his brother Ramzan got a case registered against Hakeem and Allah Din accused etc. under section 307, P.P.C. over a dispute of land in the year 1988 and also that he having been falsely implicated in a complaint case by the accused party of this case, he bore a grudge against them. But to our mind, these admissions do not adversely effect on his credibility, rather this part of his evidence strengthens our view that he had the courage to speak the truth. It may be mentioned here that Muhammad Siddique accused manoeuvred the execution of a document Exh.D.D. available on record (at page 53 of the paper book) on a five rupees stamp paper purporting to be an affidavit of this very witness in which he had allegedly declared and sworn that Muhammad Siddique son of Sher Muhammad, accused in this case, was not present at the scene of occurrence and that he, who was an aged person of 62/63 years, was involved in this case by the complainant because the occurrence had taken place at his house. The deponent has allegedly claimed further in his affidavit that Muhammad Siddique was totally innocent and had not participated in the commission of the offence or caused any injury. It is really interesting to note that after Allah Dewaya P.W. 10 opted to appear as a P.W. and an eye-witness of the occurrence, the defence subjected him to a lengthy cross-examination on this point. He admitted that thumb-impression Exh.D.D./I on Exh.D.D. as his own but claimed that he did not swear this affidavit and that the thumb-impressions were got affixed on the pretext of a Nikah of a girl and that a copy of his National Identity Card was got from the Cooperative Finance Corporation where he had opened an account. He denied further that he had stated in Exh.D.D. that" the accused Muhammad Siddique was not present at the spot. The defence did not feel satisfied by confining to the cross-examination of this witness alone and went to the extent of producing Allah Bachaya D.W. 1 for establishing on record that this affidavit had in fact been sworn in by Allah Dewaya. It is, however, sad that D.W.I also could not come to the rescue of Muhammad Siddique or that of the defence. He admitted in his cross.-examination that he could no identify the person who purchased this stamp paper from him. According tf him, the purchaser of this stamp paper affixed his thumb-impression in thx register but he did not know him personally. The mere fact that this stamp paper was purchased from Allah Bachaya for the execution of an affidavit in the name of Allah Dewaya son of Allah Bakhsh bearing his National Identity Card, does not in any manner establish that it was purchased by Allah Dewaya or that Exh.D.D. was sworn in by him. But one thing is clear, and that is, that the accused have themselves admitted and owned the site of occurrence which is said to be the house of Muhammad Siddique accused and the occurrence itself. 17. The claim of the prosecution that Mazhar Hussain deceased was earlier employed with Muhammad Siddique accused as his tractor driver during which period Muhammad Siddique suspected that he had developed some illicit intimacy with his daughter Mst. Jamila and he then turned him out of his house after dismissing him, has also not been seriously controverted by the defence. Although Nazir Hussain was subjected to cross-examination on this aspect of the case but no serious effort appears to have been made to dislodge this claim or to bring on record evidence to suggest that it was false. It was on being crossexamined that Nazir Hussain deposed that Mazhar Hussain had been serving Muhammad Siddique for one year whereafter his services were terminated and that none of the accused told him regarding the suspicion of illicit relations of Mst. Jamila and the deceased. Azhar Hussain P.W.7 had deposed on being cross-examined that they did not know of the suspicion of the accused regarding illicit relations of Mazhar Hussain with the daughter of Muhammad Siddique earlier and that they came to know about it after the occurrence. On being further cross-examined, he deposed that they came to know about it one month after the removal of Mazhar Shah deceased from service whereafter Mazhar Shah ever went to Muhammad Siddique accused. We are, therefore, convinced hat ( the accused had a motive for the commission of the offence, may be just to vindicate the honour of the family or may be the deceased reached the house of the accused in order to see Mst. Jamila at the dead of the fateful night where he was done to death by Siddique and his close relatives. It is also not unbelievable that the complainant and Allah Dewaya also reached the scene of occurrence just at the moment when Mazhar Hussain Shah was being done to death. We are constrained to arrive at this conclusion for the reason that no effort has been made by the defence to suggest otherwise. 18. There is no denying the factthat no empties were recovered from the scene of occurrence and the recoveries of fire-arms do not help much the prosecution in connecting the accused with the commission of the offence. But! the fact remains that Abdul Hakeem accused led to the recovery of .12 bore gunj P.8 without licence while Muhammad Rafiq accused led to the recovery of .12 bore pistol P.9 and Muhammad Siddique accused Jed to the recovery of hatchet P.5. These recoveries when considered together with the ocular evidence and the medical evidence, do help us in arriving at the conclusion that they were the persons who had done away with the deceased. The first shot which resulted in causing injury No.3 has been attributed to Abdul Hakeem whereafter the deceased might have naturally fallen down. It is abundantly clear from the statement of the complainant, who was examined as P.W.8, that the accused Rafiq also fired at him with his pistol which hit him on his mouth. Siddique accused had allegedly given him hatchet blows on his left leg and other parts of ' the body. His claim that Allah Din and Rafiq accused had also fired shots one each by their respective weapons on the deceased when he had not yet fallen 'down does not appeal to reason and his testimony in this behalf cannot be safely relied upon. Similarly, the version of Allah Dewaya that Abdul Hakeem fired the first shot which hit Mazhar Hussain on his chest, appears to be keeping in with the medical evidence but his statement that Allah Din also fired a shot which hit Mazhar Hussain in the chest and Muhammad Rafiq also fired a shot whereafter Mazhar Hussain fell down does not inspire confidence. The Court has always the onerous duty of finding out the truth lying deep under a heap of lies and applying this principle we are of the convinced opinion that the deceased had been done away with by Muhammad Siddique, Abdul Hakeem and Muhammad Rafiq accused obviously because they suspected him of having developed some illicit relations/intimacy with Mst. Jamila, a daughter of Muhammad Siddique. All of them are closely related to each other. Siddique and Hakeem are cousins while Rafiq accused is nephew of Siddique accused. 19. We are not at all inclined to believe that all the accused had been falsely implicated at the instance of Sh. Abdur Rahim for the simple reason that the accused have not brought on record any evidence to suggest as to why Sh. Abdur Rahim could be expected to involve.them all falsely and what motive had he for doing so. Similarly we are also not convinced about the participation of' Allah Din, Muhammad Nawaz and Ghafoor accused in the commission of the offence. Abdul Ghafoor accused was allegedly armed with a Dang/Soti but he did not inflict any blow therewith nor does the medical evidence indicate the presence of any such blow/injury on the person of the deceased. Allah Din belongs to a different village and has no relationship whatsoever with Siddique, Hakeem and Rafiq nor was there any occasion for him to join hands with them for doing away with Mazhar Hussain. The evidence regarding the participation of Muhammad Nawaz accused in the commission of the offence is also lacking. Even if it be believed that he had taken Mazhar Hussain from the house of the complainant outside allegedly for showing him a picture, no effort has been made by the prosecution to suggest that the complainant and the other P.Ws. had first tried to search him out on the side of the picture house. There is also "no cogent and convincing evidence inspiring confidence to suggest that Muhammad Nawaz had in fact brought Mazhar Hussain Shah to the house or to the side of the house of Muhammad Siddique after hatching a conspiracy with his coaccused. All the three of them namely Abdul Ghafoor, Allah Din and Muhammad Nawaz are, therefore, entitled to the benefit of doubt. 20. Consequently, we held Muhammad Siddique, Abdul Hakeem andJE Muhammad Rafiq accused guilty for causing the death of Muhammad Hussain. Shah. The remaining three accused are acquitted having been given the benefit of doubt. 21. This brings us to determining the quantum of punishment. We have already held above that the accused presumably did away with the deceased in order to vindicate the family honour. The question of family honour has been held to be good reason for awarding a lesser penalty in a leading judgment re: Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and also in Muhammad Afzal v. The State and another 1987 SCMR 1864. The case is, therefore, not a fit one calling for capital punishment. While convicting Muhammad Siddique, Abdul Hakeem and Muhammad Rafiq under section 302/34, P.P.C. we sentence them to suffer life imprisonment and to pay a fine of Rs.20,000 each or in default of the payment of fine to further undergo R.I. for a period of one year each. They are also ordered to pay a sum ol s.50,000 each as compensation under section 544-A, Cr.P.C. to the heirs of the deceased and in default of payment, every one of them shall suffer further R.I. for a period of two years. All the three of them shall be given the benefit of section 382-B, Cr.P.C. 22. The result is that the death sentences of Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq are Not confirmed. Murder Reference . is disposed of accordingly. The appeal filed by Muhammad Siddique, Muhammad Rafiq and Allah Din (No. 19 of 1994/BWP) is accepted to the extent of Allah Din and he is acquitted having been given the benefit of doubt. It is, however, dismissed in so far as it relates to Muhammad Siddique and Muhammad Rafiq and their conviction is upheld but their sentences of death are not confirmed and are converted to life imprisonment. The appeal filed by Abdul Hakeem, Abdul Ghafoor and Muhammad Nawaz (No.20 of 1994) is accepted to the extent of Abdul Ghafoor and Muhammad Nawaz and their conviction and sentences are set aside, they having been given the benefit of doubt but is dismissed in so far as it relates to Abdul Hakeem and his conviction is upheld. His sentence of death is, however, convened into life imprisonment. Both the appeals and the murder reference are accordingly disposed of. Order accordingly. (AAJS)
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1039 Present : KHALIL-UL-REHMAN RAMDAY, J. DOST MUHAMMAD-Petitioner versus STATE-Respondent CrI. Misc. No. 1809-B-1997, dismissed on 13.5.1997. Bail- -S. 497 Cr.P.C.--Bail-Grant of-Prayer for-offence u/Ss. 302/324/148/149 and 109 PPC-Contention that petitioner stood burdened with ineffective firing and that he was not connected with motive part of story- Indiscriminate firing had gone on in occurrence for about half an hcmr and petitioner was one of persons who being armed with a Rifle had indulged in firing of shorts-Going with Mehndi procession and armiug one-self with fire arms and then in process resorting to firing show;s reckless conduct on the part of petitioner which disentitles him to any concession or relief in equity-Petition dismissed. [Pp. 1040 & 1041] A & B 1 Sardar Muhammad LatifKhan Khosa, Advocate for Petitioner. Ch. Riaz Hussain, Advocate for State. Mr. Masood Mirza, Advocate for Complainant. Date of hearing : 12.5.1997. order The complainant's case was that six persons variously armed with ire arms, including Dost Muhammad petitioner who was allegedly armed with a 7 m.m. Rifle amounted an assault at about 9.00 p.m. on 21.11.1996; fires indiscriminately and that as a result of a shot fired by a co-accused of the present petitioner, namely, Karam Dad, Rah Nawaz deceased lost his life. It was also mentioned in the F.I.R. that the firing by the accused person continued for about half an hour. 2. According to the investigation conducted by the S.H.O. and then finalised by the D.S.P., the accused party had previous nmity with the deceased of the present case; that on the night of occurrence, the accused party was taking Mehndi in connection with the marriage of one Rab Nawaz Sipra; that Rab Nawaz deceased had told the people not to pass from in from of his house; that the Mehndi party i.e. the accused party however passed from in front of the house of the deceased while firing shots and that thereafter firing ensued between the two sides which continued for about half an hour and that as a result of the shot fired by Karam Das accused, Rab Nawaz deceased got killed. 3. The learned counsel for the petitioner contended that it had been found by the I.O. that it was the deceased who had initiated the proceedings £ by firing shots at the accused party. I have gone through the police file and no such finding exists on the record. 4. The learned counsel for the petitioner also canvassed bail for Dost Muhammad petitioner on the ground that the stood burdened with ineffec tive firing and that he was not connected with the motive part of the story. At times, persons caused of ineffective firing are released on bail not because a person accused of such a role in an occurrence is not guilty of any offence or that the was, as a matter of principle, entitled to the concession of bail but because of the possibility that such an accused person might well have been made victim of widening of the net and there being a possibility of such an accused person having been falsely implicated. If, however, there be reasonable grounds for believing that an accused person had actually participated in the occurrence and had fired shots, through K.K.F Petition dismissed
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1041 Present: raja muhammad khurshid, J. MUHAMMAD RIAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 889-B-97, dismissed on 27.5.1997. Bail- -S. 497 Cr.P.C.-Bail-Prayer for-Offence u/S 302/34 PPC-Petitioner was armed with a sickle and he accompanied his co-accused who had given fatal injuries to deceased-Deceased was yet under attack when P.W. tried to intervene to save him, but he was prevented by petitioner who assaulted him with a sickle thereby causing him injuries-On seeing this, petitioner and his other co-accused also joining hands with him, attacked injured PW after finishing deceased-As such, vicarious liability of all three accused in causing death of deceased cannot successfully be distinguished-Petition dismissed. [P. 1042] A Ch. Muhammad Aslam Sindhu, Advocate for Petitioner. Mr. Waheed Anwar, Advocate for State. Date of hearing : 25.7.1997. order The petitioner and two others namely Abdul Satar alias Tahir and Zulfiqar are arraigned for committing the murder of Liaqat Ali, a brother of the complainant namely Ramzan in an occurrence which took place on 3-10- 1996. The FIR was lodged on 7-10-1996 in which it was contended that the petitioner while armed with sickle had caused injuries to Zulfiqar Ali PW by giving him two successive blows with it while the latter tied to save the deceased when he was under attack by the co-accused of the petitioner. 2. The .bail for the petitioner is prayed on the medical ground as well as on merits. A report was called form the Medical Superintendent. Allama Iqbal Memorial Hospital, Sialkot, who reported that according to the Physician, the petitioner was diagnosed as patient of "Anxiety Neurosis" and was being given treatment which was easily possible in the .Jail. No other abnormality was seen in the petitioner. As such, he has no case for bail on (lie medical ground. 3. Coining to the merits of the case, learned counsel for the petitioner has submitted that no role is attributed to the petitioner for causing any injury to the deceased. He is only burdened with two simple njuries on the person of Zulfiqar Ali PW during the transaction. It is, therefore, submitted that the petitioner is entitled to bail in view of the principle laid down in Qaisar Vs. The State (1995 P.C.R. L.J. 1132 (Lahore) and Mumlaz Hussain and 5 others vs. The State (1996) SCMR 1125i. 4. The bail is opposed by the learned State counsel on the ground that, the facts of the reported authorities are different as in 1996 SCMR 1125 though the accused were armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the prosecution witnesses from the wrong side of their weapons. Likewise, in 1995 P.Cr. L.J. 1132 (Lahore), a question had arisen as to which of the parties was an aggressor and in that perspective, following die principle of consistency, the accused were admitted to bail holding thereby that it had become a case of further inquiry. However, in the instant case, the petitioner had played an effective role because he had attacked a witness who tried to save the life of the deceased when he was under attack of the co-accused of the petitioners, as such, the part played by the petitioner attracted the principle of vicarious liability ro link him with in the main accused: and not only that he had assaulted a P.W. 5. I have considered the foregoing submissions and find that each case has to be decided on its own merits. In the case in hand, the petitioner a us mined with a sickle and he accompanied his co-accused who had given fatal injuries to the deceased. The deceased was yet under attack when ; Zulfiqar PW tried to intervene to save him, but he was prevented by the J petitioner who assaulted him with a sickle thereby causing him injuries. On .seeing this, the petitioner and his other co-accused also joining hands with him, attacked the injured PW after finishing the deceased. As such, the vicarious liability of all the three accused in causing the death of the deceased cannot successfully be distinguished at this stage. The petitioner has, Therefore, no case for bail at present. The petition is accordingly dismissed. i K.K.F. i Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1043 [Rawalpindi Bench] Present: raja muhammad khurshid, J. MUBARIK SHAH-Petitioner versus STATE-Respondent Crl. Misc. No. 377/B-1997, dismissed on 15.5.1997. Cr.C. 1043 Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/Ss. 419/420/467/ 468, 471, 477/477-A/409/109 Pakistan Penal Code, 1860 read with S. 5(2) Prevention of Corruption Act, 1947-Petitioner being a Government Sen-ant was involved in a case of misappropriation of public money amounting Rs. 88,32,738 on account of bogus entries made by him in account books to help a gang which was operating to carry out such embazzlement-Offence of embezzlement of public money is punishable upto imprisonment for life and as such, would fall within prohibitory clause-Mere fact that petitioners is a public servant and there is no likelihood of his absconsion cannot be taken into account at bail stage-There is no extenuating circumstance so as to release petitioner on bail as he is involved in an offence falling within prohibitory clause. [Pp. 1044 & 1045] A Sardar Shaukat Hayat Khan, Advocate for Petitioner. Mr. M. Bashir Kayani, Standing Counsel for State. Date of hearing : 15.5.1997. order A case under Sections 419/420/467/468/471/477, 477 A/409/109 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 was registered against the petitioner and others as they allegedly misappropriated an amount of Rs. 88,32,738/- by preparing bogus vouchers and making false entries in the account books. The case was reported by Mukhtar Ahmad DA CMA (CO) DSP/DSOP Fund Office of the CMA <RC», Rawalpindi at Police Station FIA, Crime Circle, Rawalpindi vide FIR No. 31 dated 9.12.1996. The role played by the petitioner was that he made certain false entries in the DV register and DP sheets marked against DV No. 254 to 261 of 5/96. He also made certain false entries in the DP sheets bearing DV No. 99 and 100 of June, 96 and forged certain other entries. The part played by the petitioner facilitated disbursement and preparation of bogus cheques thereby causing loss to the Government treasury. The allegation against the petitioner is that he operated with a gang engaged in forging the Government papers and to deprive the Government Treasury of huge amounts by disbursing them under the fake names. The main beneficiary was one of the co-accused namely Aziz Akhtar. 2. Learned counsel for the petitioner has submitted that the petitioner had been implicated falsely in this case as he was not posted in the 'Officers Fund Section' where the alleged fraud and mis-appropriation had taken place; that at the relevant time, he was allegedly working in JOC Fund Section' located 400 years away from the Section which was deprived of the money through bogus cheques and forged record. It was, therefore, urged that the petitioner was wrongly nominated although he had nothing to do with the tampering with the record of the Section where lie was not posted during the days of occurrence. It was also submitted that the petitioner being a Government employee is entitled to bail as there is no likelihood of his absconsion; that mere fact that a huge amount of the Government treasury is involved in the case would not dis-entitle the petitioner to the right of bail particularly when he has not been linked with the Section where the fraud had taken place. Lastly, it was contended that detention of the petitioner in the prison is not likely to advance the prosecution case because nothing is to be recovered from him after he had been sent to the judicial lock-up and that the investigation is being prolonged on account of the involvement of the other accused for which the petitioner should not be allowed to suffer. The petitioner being a public servant, the sanction or his prosecution is yet awaited and keeping in view his alleged role, he has a case of further enquiry. To support the above points, reliance was placed on PLD. 1969 Peshawar 49, PLJ 1974 Cr. C. (Lah.) 578 titled Ashiq All vs. The State, 1977 PCr. LJ 676 (Lahore), 1978 SCMR 64 and PLJ 1997 Cr. C. (Lah.) 58. 3. The petition was opposed by the learned standing counsel for the State on the ground that the accused was nominated in the FIR to have facilitated the fraud by making bogus entries in the relevant books; that the opinion of the Hand Writing Expert was positive regarding the entries made y the petitioner in the relevant registers; that the investigation is already in progress against rest of the accused who where to be brought to the book as soon as possible; that the mere fact that the long time as to take for the conclusion of the investigation would not make a case of bail for the petitioner in view of the principle laid down in PLD 1987 Peshawar 161; that the recovery of some of the embezzled amount was effected from the brother of the petitioner at his instance which further linked him with the crime; and lastly the offence is punishable upto imprisonment, for life and as such, the bail is not. to be granted as a matter of routine in such offences. 4. I have considered the foregoing contentions and the authorities cited at the Bar. Each case has to stand on its own facts. In the instant case, the petitioner being a Government servant is involved in a case of mis appropriation of the public money amounting to Rs. 88,32,738/- on account f bogus entries made by him in the account books to help a gang which was operating to cany out such embezzlement. The entries made by him in the official record have been identified to be in his hand by the Hand Writing Expert. In such a situation, this fact, cannot be easily ignored that the petitioner was an instrumental in causing huge financial loss to the Government treasury after joining hands with a gang of embezzlers. The offence m of embezzlement of public money is punishable upto imprisonment for life and as such, would fall within the prohibitory clause. The mere fact that the petitioner is a public servant and there is no likelihood of his absconsion cannot be taken into account at this stage. It is enough to say that there is no extenuating circumstance so as to release the petitioner on bail as he is involved in an offence falling within the prohibitory clause. The petition is accordingly dismissed. (K.K.F.) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1045 Present: SHARIF HUSSAIN BOKHARI, J. MUHAMMAD ASLAM-Petitioner versus STATE-Respondent Crl. Misc. No. 2037-B-1997, accepted on 22.5.1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/Ss. 10 & 16 of Offence of Zina (Enforcement of Hudood) Ordinance. 1979-Contention that F.I.R. was registered on 25.3.1997 and petitioner was arrested on 28.3.1997 yet final challan or interim challan has not so far been submitted by police to court which is violative of section 173 read with sections 154 and 344 Cr.P.C.--Further contended that detention of petitioners has become illegal and petitioner is entitled to be released, at least, on bail-Since report/interim report was not submitted within time prescribed under Section 173 Cr.P.C. detention of petitioner in jail after period of fourteen days has become unlawful and is violative of Articles 9 & 10 of Constitution-Petitioners continued detention is held unlawful and he is released on bailPetition accepted. [Pp. 1046 & 1048] A, B & C Mr. Ghaus Muhammad Chaudhry, Advocate for Petitioner. Mian Muhammad Sikander Hayat, Advocate for Complainant. Mr. Muhammad Anwar Bhous, A.A.G. for State. Date of hearing : 22.5.1997. order The petitioner is involved in the case FIR No. 43/97 registered on 25.3.1997 at Police Station Muslim Town, Lahore under Sections 10 and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. The petitioner was arrested on 28.3.1997 and is presently confined in judicial lock-up at Camp Jail Lahore. The main contention raised by learned counsel for the petitioner is that although the FIR was registered on 25.3.1997 and the petitioner was arrested on 28.3.1997 yet the final challan or the interim challan has not so far been submitted by the police to the Court which is violatiye of Section 173 read with Sections 154 and 344 Cr.P.C. Learned Counsel for the petitioner relying on Asma Khatoon versus Syed Shabbir Hussain Shah A.C.M. & F.C.M. Court TV, Karachi West and 2 others (PLD 1996 Karachi 517) and Mooso versus The State (1996 P.Cr.L.J. 361) submits that the detention of the petitioner in the present case has become illegal and the petitioner is entitled to be released, at least, on bail. 2. S.I. M. Ayyaz Baig, Investigating Officer is present in Court. The learned A.A.G. has also appeared on Court call. The complainant is also represented by his learned counsel, Mian Muhammad Sikander Hayat, Advocate. The Investigating Officer states that the incomplete challan is ready and would be submitted to Court today. 3. The FIR was registered on 25.3.1997 and the petitioner was arrested on 28.3.1997 and is still in custody. So far the challan has not been submitted to the Court. Even today, it was stated by the Investigating Officer that only interim challan has been prepared and was to be submitted to the Court today. The fact, therefore, remains that from 25.3.1997 upto 22.5.1997 that is about two months time has passed, even the interim challan has not been submitted to the Court which is against the mandatory provisions of Section 173 Cr.P.C. which is as follows :-- "Report of Police-officer (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer incharge of the Policestation shall, through the public prosecutor. (a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and if so, whether with or without sureties, and (b) Communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given; Pr-Mded that, where investigation is not completed within a period of fourteeii days from the date of recording of the first information report unie: Section 154. the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the court shall commence the trial on the basis of such interim report, unless,.for reasons to be recorded, the court decides that the' trial should not so commence. (2> Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial. Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost. (5) Where the officer incharge of a police-station forwards a report under sub-section (1), he shall alongwit.h the report, produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other court on the date fixed for trial." 4. It will thus be seen that under Section 173 Cr.P.C. the report, in the form prescribed by the Government based on the investigation of the case has to be forwarded to the Court. However, proviso to Sub-section (1) of Section 173 Cr.P.C. mandates the Investigating Agency to complete the investigation within a period of fourteen days from the date of recording of the first information report, under Section 154 Cr.P.C. If the investigation is not completed within the stipulated period of fourteen days, the Officer- Incharge of the Police Station shall, within three days of the expiration of such period, forward to the Magistrate concerned, the interim report in the form prescribed by the Government stating therein the result of the Investigation made until then whereupon the Court may commence the trial. of the case, unless, for reasons to be recorded, the Court decides that the trial should not so commence. 5. In the present case the mandate of Section 173 Cr.P.C. has been violated by the Investigating Agency/SHO concerned inasmuch as about two months have passed since the registration of the case, the final or interim report under Section 173 Cr.P.C. has not been submitted to the Court. 6. The petitioner could be kept in custody only in accordance with the provisions of Sections 61, 62, 167, 173 and 344 Cr.P.C. Proviso to Sub section (1) of Section 173 Cr.P.C. provides that the final or interim report shall be submitted to the Court. Admittedly this procedure was not followed. Therefore, the detention of the petitioner 'after fourteen days, not being permitted by the law in this manner, is also against the mandate contained in Article 9 of the Constitution which provides that: "No person shall be deprived of life or liberty save in accordance with law". Similarly Sub-Article (2) of Article 10 of the Constitution provides that; "(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessaiy for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate". 7. It is thus clear that in the circumstances of the present case, since the report/interim report as not submitted within the time prescribed under Section 173 Cr.P.C., the detention of the petitioner in Jail after the period of fourteen days has become un-lawful and is violative of the Articles 9 and 10 the Constitution. In somewhat similar circumstances, a learned D.B. of the Karachi High Court in "Asma Khatoon versus Sycd Shabbir Hussain Shah" (PLD 1996 Karachi 517), referred to above, has held as follows :- "Applying sections 173 and 344, Cr.P.C. to this case, it is obvious that no report in terms of section 173 was submtted either, again rendering the continued custody of the accused without lawful authority". 8. In the light of the above discussion, the petitioner's continued detention is held unlawful and he is released on bail, subject to his furnishing bail bonds in the sum of Rs. 50,000/- (rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court. (K.K.F.) Petition accepted.
PLJ 1997 Cr
PLJ 1997 Cr. C.
(Lahore) 1049 (DB)
Present:
muhammad aqil mirza, ihsan-ul-haq chaudhry and abdul hafeez cheema, JJ.
RIFF AT
ASKARI-Applicant versus
STATE-Respondent
Crl. M. No. 2-M/97, dismissed on 17.2.1997.
(i)
Bail--
It is well settled that, bail is not be withheld by way of punishment-
Prayer for bail may be considered in totality of circumstances including that grant of bail was not subject to rigours of prohibitory clause when offence was committed before promulgation of new lawHowever, in appropriate cases, depending on facts of each individual case, bail can be refused in non-bailable offences even though alleged offences do not fall within prohibitory clause.
[P.
1061] F
(ii) Constitution of
Pakistan, 1973--
Art. 12-Clause (a) furnishes a guarantee that an act or omission, which was not punishable by law at relevant time could not be made punishable subsequently-It means that no offence can be created reprospectively.
[P. 1057] A
(iii)
Constitution of Pakistan, 1973
Art. 12-Court can safeguard against any punishment in violation of
Article 12 even while passing final judgment.
[P. 1059] B
(iv)
Constitution of Pakistan, 1973
-Art. 12~Matters of procedure are not covered by Article 12.
[P. 1061] D
(v)
Constitution of Pakistan, 1973--
-Art. 12-A law cannot be struck down
-on touch stone of Article 12 of
Constitution merely on ground that bailable offence under new law has been made non-bailable or existing offences have been brought within prohibitory clause for purpose of bail-In these eventualities proper course is not to challenge law but to seek bail, inter alia, on ground that grant of bail was permissible as a matter of course at. time when offence was committed.
[P. 1061] E
(vi) Constitution of Pakistan, 1973--
- Art. 12-Attachment of property is also not as a punishment, therefore, does not offend
Article 12, [P.
1061] G
(vii) Ehtesab
Ordinance, 1996--
-Argument that caretaker Prime Minister could not advise President for promulgation of
Ehtesab Ordinance, 1996Power of care-taker Prime
Minister are not restricted or curbed in any manner, therefore, if he advised, President as per demand of nation then there was legally nothing wrong with same.
[P. 1060] C
(viii)
Ehtesab Ordinance, 1996-
-S. 13(1) & 14(4)(5^-Sub-Section (1) of Section 13 and sub-sections (4) and
(5) of section 14 of
Ehtesab Ordinance are directoiy in nature and riot mandatory.
[P. 1064] I
(ix) Forum-
-Argument was that if two forums were already in existence then criminal case can be entrusted for trial to any one of thoseBut if at time of omission or commission of act there was only one forum and other came into existence after alleged omission or commission then case could only be tried in forum already in existenceHeld :
Argument is misconceived because accused has no vested right of trial in a specific forum. [P. ??] H
M/s Ijaz HuKsain Batalvi, Sh. Zia Ullah and
Malik Saeed Hassan, Advocates for Petitioners.
Attorney General of Pakistan and
Mian
Nasrutullah, Special
Attorney for State.
Date of hearing :
17.2.1997.
order
Ihsan-ul-Haq Chaudhary, J.-This is the application under section 265-K Cr.P.C. moved by Syed Rifat Askari-accused in E.R. No.
1/96.
The relevant facts are that the accused-Riffat Askary was posted as
Chairman, OGDC in the year 1994 when the quotations were invited for purchasing 8 sets Tubing Head of M-Mass Threes for Ouch Oil
Field. The tenders were opened on 23.1.1995.
The firms of the other accused (Zia Akbar
Ansari) and 2 others were cleared in the pre-qualification. Thereafter their tenders were opened. It was pointed out that the tender of M/s ABB Vecto
Grey (Pvt.) Limited Singapore was the lowest, however, Mr. Ainuddin
Siddiqui. the co-accused of Riffat Askari suggested that the tender should be divided equally between the firms of Zia Akbar Ansari-accused and that of
M s ABB Vecto Grey Singapore. Accordingly, the petitioner granted the tender to the said firms. Subsequently, on 18.11.1996 case FIR No. 23/96 was registered against the accused under sections 409/420/468/471/109
PPC read with section 5(2) of the Prevention of Corruption Act, 1947. The investigation was conducted by
Crime
Circle
FLA, Rawalpindi.
The
Investigating Agency reported that the accused/public servants are guilty of corruption and corrupt, practices with the connivance of M/s ADOS Pakistan
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1064 (DB) [Bahawalpur Bench] Present: muhammad nawaz abbas! and muhammad islam bhatti, JJ. MUHAMMAD BOOTA-Appellant versus STATE-Respondent Crl. Misc. No. 650-B-96/BWP, accepted on 17.11.1996. Bail- -S. 497 Cr.P.C.-Offence u/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with S. 9 of Control of Narcotic Substances Ordinance 1996Charas-Recovery ofBailGrant of-Prayer for-In absence of expert evidence, it is not even clear that it was in fact charas -Maximum sentence provided u/s 9(b)(iii) of Ordinance is 7 years-Principle of grant of bail in offence not falling within prohibitory clause may not strictly applicable to narcotic field, but in case which need further inquiry to ascertain nature of offence with which an accused is being charged bail in term of sub-section (2) of Section 497 Cr.P.C. is claimed as of right [P. 1068]A Syed Muhammad Tariq Shah, Advocate for Petitioner. Mr. Sajjed Hussain Sandhar, Advocate for State.
Date of hearing : 17.11.1996. judgment Muhammad Islam Bhatti, J.--The petitioner was arrested in a case under Section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with Section 9 of Control of Narcotic Substances Ordinance, 1996 registered against him vide F.I.R. No. 199/96, dated 24.8.1996 with Police Station Liaqatpur. District Rahim Yar Khan. 2. The facts briefly as disclosed in the F.I.R. are that the Police having information that the petitioner was indulging in the illegal business of selling of charas arranged purchase of 20 grams of charas from him by a decoy customer and consequently raiding party recovered 525 grams of charas from his possession, when he was busy in the sale thereof out side his house in the public street, out of which ten grams of charas was sealed into a parcel and sent for chemical examination. The petitioner was arrested and sent to judicial lock-up. He having declined bail by the learned Additional Sessions Judge, Rahim Yar Khan has filed this application before this Court for grant of bail. Ordinarily such matters are not placed before a Division Bench, but probably in view of the provisions of Section 45 of Control of Narcotic Substances Ordinance, 1996. The bail matters in the cases under said Ordinance are fixed before a Division Bench and we dispose of this application accordingly. 3. The learned counsel for the petitioner contended that the investigating officer trapping the petitioner through a decoy witness effected alleged recovery of 525 grams of charas without associating any public itness, which made the transaction doubtful. He further contended that the provisions of Control of Narcotic Substances Ordinance, 1996 having been inserted parallel to the Prohibition (Enforcement of Hadd) Order, 1979, the petitioner cannot be refused bail on the ground that offence under Control of Narcotic Substances Ordinances, 1996 providing different penalty will prevail. 4. Learned counsel appearing on behalf of the State argued that the petitioner while dealing in Narcotic drugs committed an offence under Section 9(c) of Control of Narcotic Substances Ordinance, 1996 and is not entitled to the concession of bail. He argued that the sample of the recovered charas was obtained but the report of the chemical examiner is still awaited. 5. We have heard the learned counsel for the parties at length and perused the record. This will be essential to examine the definition of charas under the above referred two penal statutes. 6. Section 2(d) of the Control of Narcotic Substances Ordinance, 1996 defines charas as under :-- "(d) "cannabis (hemp) "means- (i) cannabis resin (charas) that is, the separated resin, whether crude or purified, obtained from the cannabis plant also includes concentrated preparation and resin known as hashish oil or liquid hashish ; (ii) the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops from which the resin has not been extracted by whatever name they may be designated or known; and (iii) any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom;" The narcotic drug has been defined under Section 2(q) of ibid Ordinance as under:-- . "Narcotic drug" means coca leaf, cannabis, heroin, opium, poppy straw and fall manufactured drugs. Keeping in view the above definition of charas and narcotic drug, the basic question would arise whether resin of the cannabis plant can be identified as resin obtained from the Indian hemp plant, which has been defined charas under item 2 to the Schedule of the Prohibition (Enforcement of Hadd) Order, 1979 in the following terms- "Charas, that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulation other than those necessary for packing or transport." In the ordinary dictionary meaning, cannabis (hemp) and Indian hemp may be the same plant and resin obtained from them is called charas and this is also not deniable that resin obtained in its original form in charas for the purpose of Prohibition (Enforcement of Hadd) Order, 1979 whereas cannabis resin that is the separated resin obtained in any form is charas under Control of Narcotic Substances Ordinance, 1996. However, unless it is ascertained through the expert evidence that all cannabis and Indian hemp plant belong to the same group and all kind of charas in any form and of any origin falls within the definition of Narcotic drug, the provision of Control of Narcotic Substances, Ordinance, 1996 cannot be ipso-facto made applicable as such in each case of charas. This special law on Narcotic is only applicable to Narcotic drugs as defined therein and described in the Schedule and not to the intoxicant generally. 7. It may be pointed out that Control of Narcotic Substances Ordinance; 1996 has been promulgated not to substitute the Prohibition (Enforcement of Hadd) Order, 1979 but to control the production, processing and trafficking of narcotic drugs and psychotropic substances and to regulate the treatment and rehabilitation of narcotic addicts. This being so, a distinction is to be drawn in the object, purpose and intend of the Ordinance in question to form a definite opinion. This is not disputable that all narcotic drugs are intoxicant but all intoxicant are not narcotic drugs and if the ''.aro with its generic name is of more than one kind and all kinds ofcharas are not narcotic drugs, the charas without proper distinction cannot be treated narcotic drug as such. The penalty provided under Section 9 of the Control of Narcotic Substances Ordinance, 1996 cannot be imposed unless there is violation of provisions of Sections 6, 7 and 8 of the said Ordinance, which prohibit possession, import and export, trafficking or financing the Trafficking of narcotic drugs, psychotropic substances or controlled . substances, as the case may be. 8. From comparative study of the two statutes, it appears that the same do not deal the same subject and there being independent areas must not be mixed together and frustrate the basic purpose and object of two statutes. However, the fundamental question as to whether the Control of Narcotic Substances Ordinance has substituted the Prohibition ('Enforcement of Hadd) Order. 1979 or it impliedly repealed the same and if . so to what extent? and whether an offence punishable with different sentences, under different laws, which provision will prevail? unless are thoroughly scrutinized, it is difficult to hold that the provision of Prohibition Enforcement of Hadd) Order, 1979 in such cases has become ineffective. This being so, generally in such circumstances the statutes providing lesser penalty are given effect and, therefore, the question under which provision of law the case is to be tried and by which forum is ascertainable. 9. There will be yet another question of the effect of Section 65 of the Control of Narcotic Substances Ordinance, 1996, which needs determination. The overriding effect of this Ordinance is extendable to the matters which fall within the ambit of this special statute and before taking action under a special statute, the essential conditions provided therein to give validity must be fulfilled. There is no cavil to the proposition that recourse to the general provision of a statute for nullifying the special provision of such statute or another statute is not permissible but it is significant that applicability of a provision of law is always judged in the facts of an individual case. Therefore, without determining the basic question of the scope of Control of Narcotic Substances Ordinance, 1996, viz-a-viz a transaction, Section 65 of the said Ordinance will not be made applicable in ach case mutatis mutandis. Before taking of the cognizance by the Court under this Ordinance in a case, the provision of Section 65 of the ibid Ordinance for the purpose of ancillary matters will only take effect, if the offence in the nature of allegation on the face of it is punishable under the Ordinance in question. In the light, of above, unless it is held that a case falls under the above said Ordinance, the application of Prohibition (Enforcement of Hadd) Order, 1979 cannot be excluded by reason only of the special character of Ordinance. 10. The allegations against the petitioner are that he was found selling charas and a quantity of 525 grams thereof was recovered from him, but in bsence of expert evidence, it is not even clear that it was in fact charas. Anyhow, if ultimately, the charas recovered from the petitioner is found narcotic drug at the trial, the maximum sentence provided under Section 9(b) (iii) of the Ordinance is seven years. The principle of the grant of bail in the offence not falling within the prohibitory clause may not strictly applicable to the narcotic field but in the cases, which need further inquiry to ascertain the nature of offence with which an accused is being charged the bail in term of sub-section(2) of Section 497 Cr.P.C. is claimed as of right. 11. A Division Bench of this Court at Rawalpindi to which one of us (Muhammad Nawaz Abbasi, J.) was member in identical case (Crl. Misc. No. 657/B of 1996) vide order dated 6.11.1996 taking the similar view granted ail to the accused of the said case, who was found in possession of two k.g. of charas. 12. Without going deep into the merits of the case to prejudice the case of either party and give definite opinion about the nature of offence with which the petitioner is being charged, we find reasonable grounds for further nquiry into the question as to whether the offence allegedly committed by the petitioner, falls within the ambit of Control of Narcotic Substances Ordi nance, 1996 triable by the Special Court constituted under said Ordinance or it exclusively is to be 'dealt with under Prohibition (Enforcement of Hadd) Order, 1979, the petitioner is entitled to the concession of bail and con sequently we allow this application. The petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1068 Present: muhammad AQIL MlRZA, J. Mst. AKHTAR PARVEEN-Petitioner versus STATE-Respondent Crl. Misc. No. 292-B/97, decided on 5.3.1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 10-Zma--Allegation of-Challenge to-Contention that petitioner was found mansurating by lady doctor and there was no question of her being brought for any illicit purpose-Girl was a guest in house and F.I.R. was lodged for malafide purpose in order to disgrace accused persons-Care must be taken in complaints which are made pro bans publico with regard to commission of Zirca-Under Islam great importance has been attached to the concept of hurmat of chaddar and Char Dzwarz-Mere presence of a lady in house in company of a man without whom she is not related is no offence-Mere presence of male and female persons cannot be taken as attempt to commit zina-Close relatives of woman are proper persons on whose report a criminal case may be registered, where allegation is that she has been involved in the commission of adultery-No incriminating material has been found so far-Resultantly bail already granted is confirmed and F.I.R. is quashed. [Pp. 1070 & 1071] A, B, C & E Rai Muhammad Tufail Khan Kharal, Advocate for Petitioner. Mr. Khadim Hussain Bhatti, Advocate for State. Date of hearing : 5.3.1997. judgment Mst. Akhtar Parveen seeks bail in a case registered at Police Statioi City Jaranwala under Section 10 of the Offence of Zina (Enforcement o Hudood) Ordinance, 1979. Ghulam Abbas resident of Mohallah Islampu Toba Tek Singh informed the local police that Muhammad Ali had brought; young lady on his motor-cycle in his house from Mohallah Bohli-di-Jhok an< both of them were present in the former's house for the purpose c committing zina. In pursuance of this information the aforementioned FI] was registered by the ASI. Thereafter the ASI alongwith three constable conducted the raid on the house of Muhammad Ali and arrested Muhamma Ali and Akhtar Parveen who were present in the house. 2. The SHO present in Court, has stated that no incriminatin material has so far been collected, which may go to establish that the accuse Muhammad Ali had committed zina with the arrested lady. He informs th; when the police knocked, Muhammad Ali opened the door and the lady ha concealed herself under a cot. This is admitted position that the complainai Ghulam Abbas is not in any way related to the lady or Muhammad A accused, nor there is any allegation that the house was used as brothr house. This is also admitted that the lady was found mansurating by the la( doctor and no body saw the accused persons performing sexual intercourse. 3. Learned counsel for the petitioner has contended that the raid the instant case was conducted in violation of the Fundamental Righ guaranteed by the Constitution inasmuch as the raid resulted in trampli! the privacy of home on the one hand and spoiling the good reputation ai fair name of the petitioner, on the other. It is further submitted that t petitioner was found mansurating by the lady doctor and there was question of her heing brought for any illicit purpose. The girl was a guest in , the house and the FIR was lodged for malafide. purposes in order to disgrace the accused persons. Learned counsel has criticized the role of the police in j registering the case on the information of a wholly unconcerned person and Conducting the raid and arresting the accused persons without there being any evidence with regard to the commission af the alleged offence. 4. The SHO has informed that the FIR in fact had been registered without his information by the ASI and the raid was conducted by him because some residents of the locality had gathered near the house of the ..accused persons and in order to pacify them the raid was conducted and the accused persons were arrested. It is admitted by him that the FIR was lodged 'pro bono publico by a person having no relationship with the petitioner. 5. The dignity of man and privacy of home stand guaranteed to the citizens by way of Fundamental Right under Article 14 of the Constitution. This right must be preserved and jealously guarded. Similarly right of good 'reputation is a basic human right at par with the right to life and property, ,as held by the honourable Supreme Court, in Muhammad Akram us, Fannan (PLD 1990 SC 28). This is the foremost duty of the police to ensure that ^provisions of the Constitution, especially the fundamental rights are not violated and transgressed in pursuance of irresponsible complaints made to ;he police. Particular care must be taken in complaints which are made pro lono publico with regard to the commission of Zina, It may be observed that brivacy of home is scared not only by virtue of the constitutional command jut under Islam also great importance has been attached to the concept of 'wrmat of Chaddar and Char Diwari. It is supreme in Islam and same is the position with regard tb the right of good reputation. It must also be noted ,hat mere presence of a lady in the house in the company of a man with vhom she is not related is no offence. Such a presence of the male and emale persons cannot even be taken as attempt to commit Zina. It is infortunate that why can it not be presumed that the two can be together or purposes other than sexual intercourse. ' 6. In the instant case the complainant was not related to the girl or he male accused person. The Chastity and good reputation of a woman are precious that the same should not be allowed to be brought under cloud the complaint of unconcerned persons. It cannot be ruled out that the [legations by an unconcerned person may be motivated by personal malice r personal whims of the complainant. Close relatives of the woman are the roper persons on whose report a criminal case may be registered, where the legation is that she has been involved in the commission of adultery. The >lice in a case where allegations touching the character of a woman are veiled by unconnected person should not register the cases in routine, and any case not without prior permission of responsible senior officers. In ises where there is no allegation that anv nprsnn kaa (AAJS) Procedings quashed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 1071 Present: ALI muhammad baloch, J. MUHAMMAD ALAM-Applicant versus STATE-Respondent Cr. Misc. A. No. 12 of 1995, accepted on 22.9.1996. Criminal Procedure Code, 1898 (V of 1898)-- -S. 561-A, & 195-Offence u/Ss. 182 & 211-Criminal Proceedings- Quashmen of-Prayer for-Provisions of Sections 182 and 211 P.P.C. are similar in nature and accused could not be convicted for both sections- Since charge against applicant is that he had moved false application before police which was found false after Inquiry--In such cases section- 182 is appropriate Section, which is applicable while section 211 comes into play when false complaint or proceedings are initiated in court of law-Held : Complaint against applicant may be considered as having been dismissed for non compliance of section-195 Cr.P.C.Application allowed. [P. 1073] A, B & C 1990 P.Cr.LJ 336. Mr. Sikandar Ali Alvi, Advocate for Applicant. Mr. Issardas, Advocate for Addl. A.G. for the Respondent. Date of hearing: 22.9.1996. judgment Applicant Muhammad Alam has moved this Court for taking action u/s. 561-A Cr.P.C. for quashment of criminal case against him which has been filed on the complaint of Sub Inspector of Police Ahmed A.li Jakhrani who was SHO of P.S. Mirokhan at the relevant time. In short the facts given in the complaint of Ahmed Ali Jakhrani filed in the Court of Civil Judge & FCM Shahdadkot are that applicant Muhammad Alam Shaikh had moved an application against Muhammad Hassan, Mouj Ali, Deedar Ali, Ali Hassan Brohi, Ali Hassan Jarwar and Hazoor Bux Brohi which was forwarded by S.P. Larkana to SDPO Shahdadkot for inquiry. The SDPO conducted the inquiry and then came to the conclusion that applicant Muhammad Alam had made false allegations against his opponents mentioned in the application. On such report the S.P. Larkana ordered lodging of the complaint against the applicant Muhammad Alam under the provisions of section 182/211 PPG. On the basis of such order of the S.P. the SHO became the complainant and filed the complaint in the Court of above mentioned. The Court has taken the cognizance and framed the charge against the applicant for offence punishable u/s. 182/211 PPC. The applicant has moved this criminal miscellaneous application on the grounds that cognizance, has not been taken legally by the Magistrate and that he moved an application u/s. 249-A Cr.P.C. before the trial Court but the same was dismissed. His Revision Application moved before the Sessions Judge against the order of the trial Court was decided by V- Additional Sessions Judge, Larkana and that too was dismissed. Learned Counsel for applicant while arguing this application relie'd on the case ofHaji Muhammad & another v. Noor Hussain Alwani & others reported in (1993 P.Cr.L.J 767) wherein under similar circumstances it was held by this Court that the complaint in writing in such circumstances had to be filed by public servant concerned, or some other public servant to whom he is subordinate. In this case the application was addressed to the Superintendent of. Police and the inquiry was conducted by Sub Divisional Police Officer who found the application to be false. Under such circumstances the complaint could be filed either by S.P. or the SDPO, or anyother officer to whom both these officers were subordinate. In the case ofHaji Muhammad v. Noor Hussain the application was made to the Deputy Inspector General of Police which was found false, and the SHO of Police Station had filed a report against the applicant, in the Court of which cognizance had been taken. While deciding this case late Justice Qaiser Ahmed Hamidi came to the conclusion that the Court had no jurisdiction to take cognizance of the offence mentioned therein, unless there is a complaint in writing of public servant concerned, or of some other public servant to whom he is subordinate. Thus the proceedings against the applicant in the above cited case were quashed, as the complaint had been lodged by the SHO whereas the application had been made to Deputy Inspector General of Police. It was held that in the reported case the complaint could have filed by the Deputy Inspector General of Police, or by Inspector General of Police Sindh to whom the D.I.G. was sub ordinate. Mr. Issardas learned Advocate for Addl. A,G has however stated that since the charge u/s. 182/211 PPC has also been framed in this case the proceedings against the applicant are not illegal and cannot be quashed. The provisions of section 182 and 211 PPC are similar in nature and I do not agree that the accused could be convicted for both the sections. Since the charge against the applicant is that he had moved a false application before the police which was found false after inquiry. In such cases section 182 is appropriate section, which is applicable while 211 comes into play when a false complaint or proceedings are initiated in the Court of law. Therefore, I find that the charge against the applicant coxild be only under section 182 Cr.P.C. Therefore, the present case, in all fours in akin to the reported case of Haji Muhammad u. Noor Hussain Alwani and others. Therefore, the present complaint signed by the S.H.O. is not proper compliance of section 195 Cr.P.C., as the S.H.O., was not the -person concerned. The complaint could have been filed either the S.P. or S.D.P.O. Under these circumstances, it is held that cognizance of the proceedings against the present applicant in the Court of Civil Judge & F.C.M., Shahdadkot, has not been taken legally. However, it is observed that prosecution is not barred from filing a fresh complaint properly observing the provisions of section 195 Cr.P.C., meaning thereby that the complaint should be signed by a concerned person, which is the S.P., S.D.P.C. or any officer to whom they are subordinate as has been held in the reported case of Haji Muhammad v. Noor Hussain Alawni. In fact, the two courts below should have dismissed the complaint for non compliance of section 195 Cr.P.C., allowing the prosecution to file a proper complaint which was not done, by the trial court as well as by the first appellate court. In this view of mine, I am supported by the case of Nasim Akhtar Sufi v. The State (1990 P.Cr.L.J. 336). Therefore, I hereby order that by this order under the provisions of section 561-A Cr.P.C., the complaint against the applicant may be considered as having been dismissed for non-compliance of section 195 Cr.P.C., while the prosecution is at liberty to file a fresh complaint signed by the concerned police officer as observed above. With the above observations, this Criminal Miscellaneous Application is allowed. (B.T.) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 1074 Present: A. hameed dogar, J. MUHAMMAD SHAREEF-Appellant versus THE STATE and others-Respondents Cr. Misc. Application No. 322/96, accepted on 5.6.1996 Bail-Cancellation of-- -S. 497(5) Cr.P.C.-Offence u/S. 302/34-Cancellation of bail-Learned Sessions Judge has seemingly exercised his discretion beyond scope of his jurisdiction as it has not been carefully balanced and weighed in scale of justice and requirement of law-Case of respondents in any case does not deserve to be considered for grant of pre-arrest bail on merits and also within ambit of principles laid down by Superior Courts for grant of prearrest bail-Respondents have failed to show any malafide on the part of prosecution for their false implicationHeld : No case for bail before arrest is made out-Order of learned Sessions Judge, set aside. [P. 1079] A & B PLD 1983 SC 82, PLD 1984 SC 192,1978 SCMR 432, PLD 1980 SC 95 and 1984 P.Cr.LJ 3123. Mr. Habibullah Shaikh, Advocate for Applicant. Mr. SardarAS. Chohan, for State. Mr. S. All Aslam Jafferi, Advocate for Respondents. Date of hearing : 12.5.1996. order By this application applicant Muhammad Shareef Seeks cancellation of bail before arrest granted to respondents AM Madad, Muhammad Saleh and Wali Muhammad by learned Sessions Judge, Khairpur on 30.8.1995. The relevant facts of the prosecution case are that on £1.7.1995 at 1300 hours an entry in roznamcha was made at PP Setharja at the complaint of applicant, which was later on incorporated in section 154 Cr.P.C. book maintained at P.S. Mirwah on the same date at 1400 hours, wherein applicant stated that Haji Shah Baig is his cousin who resides about 3 KMs away from his house. On the day of incident Shah Baig had called applicant at his Otak to discuss party matters, where applicant, Mushtaque and Zulfiquar w^re discussing the party matters, when at about 9 a.m. they heard a call from outside of the Otak on which Shah Baig asked his sons Zulifquar and Munawar who went outside the Otak and found respondent Ali Madad armed with rifle, respondents Muhammad Saleh and Wali Muhammad armed with pistols and co-accused Fateh Muhammad, Gul Muhammad, Gulsher, Ghulam Farid and Muhammad Tahir armed with guns and two un-identified persons of Jamali trihe with guns standing there. Respondent Ali Madad asked Munawar about his father Shah Baig from whom they have to take their revenge. After uttering these words co-accused Gulsher and respondents Muhammad Saleh and Wali Muhammad and two un-identified accused fired from their weapons at Zulfiqar and Munawar which hit them who cried and fell down. On the cries and fire reports Shah Baig came outside of the Otak and started running towards eastern side. On seeing Shah Baig respondents Ali Madad, co-accused Gulsher, Ghulam Fareed, Gul Muhammad, Muhammad Tahir and Fateh Muhammad fired from their respective weapons at him which hit Shah Baig, who cried and fell down and died instantaneously. On the cried and fire report the applicant and Mushtaque reached there. Thereafter respondents and other accused boarded on their motor cycles and went away towards their houses alongwith their Weapons. Applicant left Mushtaque on the dead-body of Shah Baig and brought injured Zulfiquar and Munawar to Hospital at Thari irwah and thereafter he went to PP Satharija for report, wherein describing the motive he stated that there was a dispute between Shah Baig and Ali Madad and others over the matrimonial affairs since along due to such annoyance they murdered Shah Baig and have caused fire arm injuries to Zulifquar Ali and Munawar sons of deceased Shah Baig. Injured Zulfiqar subsequently succumbed to injuries and died on 23.7.95. in the Hospital. It is further mentioned in the application that an application for grant of pre-arrest bail was moved on behalf of respondents Ali Madad, ^ Muhammad Saleh and Wali Muhammad before the learned Sessions Judge, Khairpur on 27.8.95, who allowed the application and granted them prearrest bail on 30.8.1995. I have heard Mr. Habibullah Shaikh counsel for applicant, Mr. S. Ali Aslam Jafferi counsel for respondents Ali Madad, Muhammad Saleh and Wali Muhammad and Mr. Sardar Abdul Sattar Chohan appearing for Addl. A.G at length. Applicant's counsel contends that the names of respondents Ali Madad, Muhammad Saleh and Wali Muhammad find place in FIR alongwith the other co-accused namely Fateh Muhammad, Gul Muhammad, Gulsher, Ghulam Farid and Muhammad Tahir and two un-identified persons. Respondent Ali Madad, co-accused Gulsher, Ghulam Fareed, Gul Muhammad, Muhammad Tahir and Fateh Muhammad are said to have " fired from their weapons at deceased Shah Baig who died there and then whereas respondents Muhammad Saleh, Wali Muhammad, and co-accused Gulsher and two un-identified persons according to FIR fired from their respective weapons at deceased Zulifiqar and P.W. Munawar. Counsel further argues that deceased Shah Baig according to postmortem report, has received 9 fire arm injuries out of which injury No. 1 is caused by bullet which is fired from a weapons containing bullet inside and can be linked with respondent Ali Madad who according to FIR was armed with rifle. Deceased Zulfiquar as per postmortem report has received 11 lacerated punctured wounds and PW Munawar has received 7 lacerated punctured wounds. Applicant's counsel submits that the ocular evidence of eye witness and injured Munawar, gets support from medical evidence. Irrespective of this, counsel points-out that the statement of deceased Zulfiquar recorded during the time of his survival will be treated as is dying declaration. He lastly urges that there is evidence of motive and recovery of 16 empty cartridges from the place of occurrence and further submits that respondents have not been able to show any reason for their false implication or their intended arrest with the malafides. These too have neither been mentioned nor discussed by the trial Court in its bail grant order. He places reliance on the case law reported as 1978 SCMR 432, 1983 SCMR 645, PLD 1983 S.C. 83, PLD 1984 S.C. 192 and 1984 Pak. Cr. L.J. 3123. On the other hand Mr. S. Ali Aslam Jafferi respondent's counsel submits that the respondents have been allowed pre-arrest bail by the Court of Sessions on three grounds. The first ground is about delay in lodging of the FIR. According to him incident allegedly took place at 9 a.m. whereas FIR is lodged at 1. p.m. i.e. after four hours of the incident. The distance in between place of incident and police post Satharja is about 2/3 KMs therefore in view of this delay the chance of deliberation, and consultation to throw wider net cannot be ruled out. Mr. Jafferi states that the other ground taken into the consideration by the trial Court is that in view of exaggeration and false implication sanctity of FIR becomes highly doubtful when the complainant and eye witnesses state in their 164 Cr.P.C. statements that the names of two un-identified persons by caste Jamalies are given falsely in the FIR. He further argues that according to FIR 10 persons are alleged to have fired at complainant party but it is strange that the complainant and other witnesses except two sons of deceased did not receive any injury. He lastly submits that consideration for grant of bail and cancellation thereof are quite altogether arid different. Once bail was granted by the court of competent jurisdiction then strong and exceptional grounds would be required for cancellation thereof. According to him the case of the respondents is of further enquiry and it is mainly because of this reason that they are extended concession of bail before arrest by the trial Court. He refers the case law reported in Pak. Cr.L.J 1991 page 241, 1995 SCMR 1178 and 1249, PLD 1995 SC 34, PLD 1988 SC (Azad Jammu & Kashmir) 148 and 1993 Pak. Cr.L.J. 612, in support of his contentions. Mr. Sardar A.S. Chohan appearing for Addl. A.G. vehemently opposes the grant of bail before arrest to the respondents by the Court of Sessions Judge and states that the trial Court has not exercised its jurisdiction properly while granting bail and submits that it is a fit case for cancellation of bail. Honourable Supreme Court in the case of Ziaul Hassan u. The State (PLD 1984 SC 192) cancelled interim pre-arrest bail granted to the petitioner by the trial Court on the grounds that the trial Court was un aware of this aspect of the case but also the order shows a lack of awareness of the basic law about the pre-arrest bail as distinguish from the bail after arrest. The trial Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest, would be tainted with malafide which must be specifically stated. Here in this citation the contention that bail granted by the trial Court could not be cancelled under section 497(5) by the High Court after nearly 5 months, that the trial Court should have been approached in the first instance, that the recovery of mis-appropriated articles could not be considered as the valid ground for consideration of pre-arrest bail, that on merits it was not a case for interference with the discretion exercised by the trial Court in granting a pre-arrest bail has been replied by the Honourable Supreme Court that there is no rigid rule regarding the period whereafter bail should not be cancelled. It might become relevant in some cases but no hard and fast rule can be made. It depends upon the circumstances of the each case. In a given case notwithstanding the long passage of time after the grant of bail, the circumstances might justify the cancellation not only on the ground of propriety but alternately on the ground of it being duty under the law. An illegal order of bail or total lacks of the awareness of the facts or law involved are examples. In the case of Muhammad Shahbaz Khan and two other v. The State (1978 SCMR 432) referred above, the Honourable Supreme Court refused to grant pre-arrest bail on the allegations that the accused caused many injuries to the opposite parties after arming with deadly weapons though it was a case of counter version. In another case of Ghulam Rasool and 3 others v. The State (PLD 1980 S.C. 95), Honourable Supreme Court upheld the orders of two Courts below refusing bail to the petitioners on the ground that they were attributed specific role in FIR of causing injuries, though the 13 out of 18 persons accused in FIR were found false by the police. This Court in the case of Abdul Khalique v. The State and others (1984 Pak. Cr. L.J. 3123), cancelled the pre-arrest bail granted to the applicant in which the petitioners have caused fire arm injuries to four persons. I respectfully dis-agree with the law referred by counsel for the respondents as it is entirely under different facts and circumstances and has no bearing with the facts of the present case.' The court above do not normally interfere with discretion exercised in bail matters by the courts below unless the same is exercised in dis-regard of the principle governing the administration of criminal justice. Here in this case learned Sessions Judge has seemingly exercised his discretion beyond the scope of his jurisdiction as it has not been carefully balanced and weighed in the scale of justice and requirement of law. The case of the respondents in any case does not deserve to he considered for grant of pre-arrest bail on merits and also within the ambit of principles laid down by the superiors courts for grant of pre-arrest bail. The respondents have failed to show any malafides on the part of the prosecution for their false implication. In these circumstances I am of the considered opinion that in view of the above discussion and the case lav/ referred above, no case for bail before arrest is made out. Accordingly the order dated 30.8.95 of learned Sessions Judge, Khairpur granting bail before arrest to the respondents Ali Madad, Muhammad Saleh and Wali Muhammad is set aside. The respondents may be dealt with according to law by the concerned police as thought fit. (B.T.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 1079 (FB) Present: mamoon kazi, wajihuddin ahmed and mrs. majida razvi, JJ. DHANI BUX-Applicant versus STATE-Respondent Criminal Bail Application No. 6267/95, decided on 5-12-1996. (i) Constitution of Pakistan, 1973-- -Arts. 2A, 189, 201 read with Ss. 497 & 498, of Cr.P.C and Suppression of Terrorist Activities (Special Courts) Act, 1975 S. 5A (S)-Whether unreported case of Supreme Court is binding upon High Courts- Question of-Articles 189 and 201 of Constitution make declaration of law by superior courts as binding upon lowef Courts-Binding nature of dicta envisioned in these Articles is not an embellishment of personalities simpliciter but carries connotations of judicial propriety and consistency in judicial enunciations-Held : Judgment of a superior Court, on a question of law cannot be disregarded merely on account of fact it carries no reasons-Per : Wajihuddin Ahmed, J. [Pp. 1086 & 1087] C & D (ii) Constitution of Pakistan, 1973-- Arts. 189-Binding nature of judgment of Supreme Court upon High Courts-Question of-Article 189, no doubt, places an obligation on subordinate courts to follow law laid down by Supreme Court, but law laid down in earlier decisions cannot be overlooked-Observations made by Supreme Court in Ejazur Rehman's case (Criminal Appeal No. 445 of 995 an unrepoited case) cannot be regarded as binding on High Court as Supreme Court did not lay down any law in this case-(Dissenting view by Mamoon Kazi, C, J.). [Pp. 1091 & 1092] E & F (iii) Criminal Procedure Code, 1898 (V of 1898)-- -S. 497 Suppression of Terrorist Activities (Special Courts) Act, 1975 S. 5-A (8)--S. 5A(8) of 1975 enactment being limited in scope, ex facie could not displace Section 497 Cr.P.C. which had a larger scope-It only displaces that part, of subsection (1) of S. 497, which is in conflict with it- Provisos to S. 497 (1) Cr.P.C., therefore, did not stand eliminated-None of remedial powers, enjoyed by High Court under Cr.P.C. were curtailed or superseded by Act, 1975, and only modification made in exercise of those powers was that such had been made exercisable under 1975 statute by a Bench of not, less than two Judges, with all its consequences- Provisions of Ss. 497 & 498 Cr.P.C. continued to apply to bails under Act, 1975. [P. 1083] A&B 1991 SCMR 599 and 1992 SCMR 2192 ref. (iv) West Pakistan Arms Ordinance, 1965-- - S. 13Cd) read with Suppression of Terrorist Activities" (Special Courts) Act. 1975, S. 5-A (8) & (1) & (2)-Constitution of Pakistan, 1973 Art. 189- Cr.P.C. Ss. 103 & 497-Mouzer-Recovery of-Mashirs of recovery, police officials alone-Requirements of S. 103 Cr.P.C. have not been satisfied- Case pending since 21-9-1995, but not more than two witnesses have been examinedOffence punishable with imprisonment 3 years or 7 years which does not fall within prohibitory clause of section 497(1) Cr.P.C. (Criminal Appeal No. 445 of 1995) Aijazur Rehman vs. State case referred- Applicant admitted to bail. [P. 1092] G & H 1992 SCMR 2192 and 1991 P.Cr.LJ Note 275 ref Muhammad Islam Ansari, Advocate for Applicant in Crl. Bail No. 1267/95. Mr. Qayyurn Nawaz Kundi, for Applicant in Cr. Bail No. 502/1996 and 503/1996. Mr. Khawaja Naveed for Applicant in Cr. B. No. 820/1996. Mr. Farced Ahmed Dayo for Applicant in Cr. B. No. 958/1996. Mr. KM. Nadeem, Addl. Advocate General Sindh for State. Date of hearing : 13-10-1996. judgment Wajihuddin Ahmed, J.--On 17.9.1996, D.B.I, comprising Mamoon Kazi, C.J., and Majida Razvi, J., in Criminal Bail Application No. 1267/95 made reference to a Full Bench in the following terms :-- "The applicant in this case has heen charged under section 13(d) of the Arms Ordinance, 1965 for being in possession of MM-30 automatic pistol. Such offence, according to the learned counsel for the applicant, is punishable with imprisonment which may extend to three years or seven years. The learned counsel has placed reliance on an order dated (sic) passed by a Division Bench of this Court in Bail Application No. 756 of 1996 wherein bail was granted to the applicant, without even going into the merits of the case, upon the following observations made by the Supreme Court in Criminal Petition No. 140 of 1995 (Criminal Appeal No. 445 of 1995) Aijazur Rahman vs. The State :- "W T e have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prima fade, falls under section 13(d) of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven years. In either case, the offence does not fall within the prohibitory clause of section 497(1) Cr.P.C. We would accordingly allow him bail in the sum of Rs. 50,000/- with one surety to the satisfaction of the trial Court." As is evident from the observations, the Supreme Court only appears to have exercised its discretion in a particular case. But, neither it has decided any question of law nor has it laid down any rule to be followed by the High Courts in each case punishable under the said provisions of law. However, since the said order has been passed by a Division Bench of this Court, and the present Division Bench is bound by such decision, we would like this question to be decided by a larger Bench, consisting of at least three Judges. The office shall, therefore, process the file accordingly for constitution of a larger Bench." Later, on 19.9.1996, the other cases in the title were also referred to the Full Bench by the same Division Bench. In course of time, the Hon'ble Chief Justice constituted the Full Bench, comprising his lordship, myself and Majida Razvi, J. We heard these matters and reserved the same for orders on 13.10.1996. The files have come to me for writing the Order, which would deal only with the question of law referred, the rest of the controversies going to the concerned Division Bench for due determination, based on the facts of each case. The question, accordingly, which falls for consideration before the Full Bench is whether the reproduced portion of the order in the Supreme Court case of Ejazur Rehman v. The State (Criminal Petition No. 140/95 converted into Criminal Appeal No. 445/95) can be construed as deciding any question of law and lays down a "rule to be followed by the High Courts in each case punishable" under Section 13(d) of the Arms Ordinance, 1965. Alternatively, whether the Supreme Court, through the above cited case, has merely "exercised its discretion in a particular case". The learned counsel for the applicants contend that Re Ejaz-ur- Rehman lays down a rule of law whereas the learned Addl. A.G., Sindh, for the State, urges that it does not. Relying on the case of Allied Bank of Pakistan and Shujaat Hussain, 1991 SCMR 59£ and 1995 SCMR 1249 respectively, Mr. K.M. Nadeem, Addl. A.G., maintains that the grant or refusal of bail under the Suppression of Terrorist Activities (Special Courts) Act, 1975, is governed by Section 5A(8) of such Act alone and does not un reservedly entail the considerations, emerging under Sections 497 and 498 Cr.P.C. He, however, concedes that both these precedent cases pertain to bails under Section 5(6) of the Offences in Respect of Bank (Special Courts) Ordinance, 1984. Even so, relevancy of such cases arises because the language employed in Section 5(6) of the 1984 Ordinance is exactly the same as that which finds place in Section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the last mentioned enactment being applicable here. The two provisions being in Pari Materia may, therefore, imply similar incidents and for such reason the cases of Allied Bank and Ch. Shujaat Hussain can be drawn upon for interpreting the import and effect of Section 5A(8) of the 1975 Statute. These provisions run thus :-- Suppression of Terrorist Activities (Special Courts) Act, 1975. Section 5A. "(8) An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released." Offences in Respect of Banks (Special Courts) Ordinance, 1984. Section 5. "(6) An accused person shall not be released on bail by a Special Court or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released." Now the case of Allied Bank, which was decided by a Full Bench of three Judges, consisting of Nasim Hasan Shah, Rustam S. Sidwa and Muhammad Afzal Lone, JJ., Rustam S. Sidhwa, J., authoring the judgment, came up for scrutiny before a larger Bench of the Supreme Court in State v. Qaim Alt Shah, 1992 SCMR 2192, the Bench, comprising of Nasim Hasan Shah, Shafiur Rehman, Ajmal Mian, Rustam S. Sidhwa and Sajjad All Shah, JJ. In that case Rustam S. Sidhwa, J,, writing a separate note, himself came to the conclusion that Re Allied Bank required review and concluded that Section 5A(8) of the 1975 enactment, being limited in scope, ex facie, could not displace Section 497 of the Criminal Procedure Code or Sub section (1) thereof, which had a larger scope. Sub-section (8) of Section 5A of the Special Act, in such view, only displaces that part of sub-section (1) of Section 497, which is in conflict with it. The provisos to Section 497(1) Cr.P.C., therefore, did not stand eliminated and besides Section 497(2) of the Code, permitting grants of bail, where there were reasonable grounds to believe that the accused was guilty of a non-bailable offence, but it appearing to the Court that there were sufficient grounds for further inquiry into the guilty, remained in place. Separate orders in Qaim Ali Shah's case were authored by Ajmal Mian, J., with whom Sajjad Ali Shah, J., (as he then was) agreed and by Shafiur Rehman, J., with whom Nasim Hasan Shah, J., (as he then was) concurred. Ajmal Mian, J., observed that the provisions of Sections 497 and 498 of the Code continued to apply to bails under Section 5A (8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, insofar as those sections of the Code were not inconsistent with the counter part in the special law. In context, various provisions of the 1975 Statute were examined by the Hon'ble Judge in detail. Invocation of Article 2A in the Constitution of Pakistan was also made and it was held that the Courts, while construing statute law, should make efforts to ensure that the constitutional guarantees, fundamental or human rights and Islamic mandates were kept in view. A still broader base was provided in the separate order subscribed to by Shafiur Rehman and Nasim Hasan Shah, JJ. Shafiur Rehman, J., pertinent to bails, said that none of the remedial powers, enjoyed by the High Court under the Criminal Procedure Code, were curtailed or superseded by the Suppression of Terrorist Activities (Special Courts) Act, 1975, and the only modification made in the exercise of those powers was that such had been made exercisable under the 1975 Statute by a Bench of not less than two Judges, with all its consequences. Several grounds for such conclusion were cited. In Ch. Shujaat Hussain's case supra, to which Saleem Akhtar, Zia Mehmood Mirza and Mir Hazar Khan Khoso, JJ., were parties, Qaim Ali Shah's case did not come to be cited and Re Allied Bank was followed without any reservations. For our purposes the material observation appears at page 1261 of the report, which is as follows :-- "9. The criterion for grant of bail as laid down by the Ordinance is not the quantum of sentence provided by P.P.C. The bailable or non-bailable nature of an offence on the basis of punishment is a creation of Code of Criminal Procedure. This pait of the provision of section 497 being in conflict with the provisions of the Ordinance, the bail can be granted only if section 5(6) of the Ordinance is satisfied " There is, thus, an apparent conflict in the conclusion of the apex court in Ch. Shujaat Hussain's case and the observations of the same court in Re Ejazur Rehrnan, noticed and reproduced in the reference to this Full Bench. Salient features of Ejazur Rahman's case and implications arising therefrom may be noticed here : Firstly, it is a decision on Section 5A (8,) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, whereas Ch. Shujaat Hussain's case pertains to Section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance. 1984. Even though the provisions in the two sub-sections are identical, Qaim Ali Shah's case is closer in proximity to the case of Ejazur Rehman than the matter of Ch. Shujaat Hussain. Secondly, Ejazur Rehman's case has not been approved for reporting whereas the other cases have been so approved and, in fact, reported, Mr. K.M. Nadeem, Additional Advocate General, Sindh, during the course of arguments before us, therefore, somewhat loosely commented that, the pearls of wisdom in the unreported case were only meant to be consigned to the archives of the Supreme Court. This was a regrettable remark. It was also said that the reproduced observations of the Supreme Court were merely in the nature of passing observations and did not constitute law declared by the Supreme Court of Pakistan. Besides, relying on Safdar Abbas v. State, PLJ 1987 SC 602, the learned AAG argued that decisions of the superior courts in criminal matters may not, routinely, be treated as precedents. This may be so. Still, every case, decided on merits, has a ratio decidendi and I am unable to pursuade myself to conclude that the ratio in the case of Ejazur Rehman was anything other than the reproduced observation. That constituted law declared on the subject and it did not matter whether the case was certified for reporting or not. See Azam Ali v. Custodian of Ev. Property, PLD 1968 Lahore 149. Article 189 of the Constitution, reproduced below, makes no such distinction :-- "189. Decision of Supreme Court binding on other Courts. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." The reliance of the learned Additional Advocate General on Babu v. Jalaldin, PLD 1992 SC 102, to say that certification of a case for reporting is an indication whether or not the case lays down a rule of law bags the facts of that case itself, where the reported and unreported cases referred were found to be consistent. On this very question, in the case of Kamran v. State (Criminal Bail Application No. 999/96), a Division Bench, to which 1 was a party, made the under-noted comment to which I still adhere :-- "Even as to such case of Ejazur Rehman, Mr. Muhammad Sarwar Khan, A.A.G., has argued for the State that their lordships have not certified such case for reporting and, » therefore, the same does not tantamount to law declared. This is rather far-fetched. Any question of law, decided by the Supreme Court, constitutes law declared within the meaning of Article 189 of the Constitution and all courts are bound by the declaration. It is immaterial Whether a particular case has been reported or not or has been certified to be reported or not and, so long as a question of law is decided by the Supreme Court, that constitutes a declaration of law, binding on all courts, including this court. We cannot, therefore, ignore, or side-track the dictum in Ejazur Rehman's case and shall have to act thereupon." Thirdly, during the course of proceedings, it was noted that because no reasons were given for reaching the conclusion, which the Bench in the case of Ejazur Rehman reached, such could be disregarded and the following passage from the judgment of Kaikaus J. in Qaseem-ud-Din v. Province of West Pakistan, PLD 1959 Lahore 76 (93) was highlighted :-- "On behalf of the respondents, only the judgment of the Supreme Court of Pakistan in The Punjab Province v. Khizar Hayat Khan Tiwana, PLD 1956 FC 200, has been cited in which there is an observation to the following effect:- "In such matters the Courts are not to question the motives or policy of the 'legislature or to refuse to give effect to legislation merely because it appears to be harsh or unreasonable or vindictive. Their plain duty is to ascertain the intention of the legislature and to carry it out irrespective of the consequences that may ensue to a particular party." Here too there is only an observation without any discussion. I have, however, found an American case in which there is an explanation of the reason why we cannot go into the motives of the legislature. The case is Soon Hing v. P. Crowley, Chief of Police of the City of San Francisco, 113 U.S. 703, where Mr. Justice Field, delivering the opinion of the Court said :-- "The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred prevailing in the City and County of San Francisco against the subjects of the Emperor of China resident therein and for the purpose of compelling those engaged ir the laundry business to abandon their lawfu vocation, and residence there, and not for an} sanitary, police or other legitimate purpose. There if" nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the Courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the Acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be, to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile." The true reason by the motives of the legislature cannot be questioned is the impossibility of an inquiry into the motives of a large number of legislators and the chaos which would be crated if evidence were allowed to be led as to such motives. If evidence was led as to motives of the legislators, there would be an interminable inquiry with respect to the validity of every Act and it is obvious that the inquiry would be a most unsatisfactory method of ascertaining the truth." From the above, I am unable to conclude that the citation can be taken to mean that a judgment of a superior court, on a question of law, can be disregarded merely on account of the fact that it carries on reasons. A more reasonable approach would be that the learned Judge was only trying to explore the rationale behind the observation. Articles 189 & 201 in the Constitution, which make declarations of law by superior courts as binding, however, imply no such requirement. I may here be permitted to reflect that the binding nature of dicta of a superior court arises, speaking generally, not because of any superior wisdom or unqualified higher knowledge, except perhaps what comes from greater maturity and richer experience, of those adorning such a forum. Many a judges from the provincial judiciary get elevated to the High Courts and, almost invariably, Judges of the High Courts alone make to the Supreme Court. The binding nature of the dicta envisioned in Articles 189 & 201, therefore, is not an embellishment of personalities simpliciter but carries connotations of judicial propriety and consistency in judicial enunciations. This has to be jealously guarded and any complacency or laxity in approach would denude judicial pronouncements of the essential elements of certainty and predictability at a given point of time. Fourthly, while Section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is silent on the question, quantum of sentence is always relevant in criminal cases. It may, therefore, not amount to straining the language of such sub-Section beyond reasonable limits to say that considerations of quantum of sentence would conceivably still weigh in the matters of bail governed by that sub-section. In support of this conclusion; one may only refer to Sections 13, 13A and 13B in the Arms Ordinance. Such occurred consecutively. The quantum of sentences in the latter two sections was greater than in Section 13. Lately, Section 13A was re-enacted/recast per Pakistan Arms (Amendment) Ordinance, XXXVIII of 1996. The two parts of such modified section carried severer punishments. Surely, if general principles apply, as said in the case of Qaim Alt Shah, Section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, cannot be applied with similar force and indiscriminately for the grants or refusals of bails in these distinct provisions. Lastly, different Division Benches of this Court have followed the reproduced observation in the case of Ejazur Rehman in granting bails to various accused persons under Section 13(d) of the Arms Ordinance. Such, inter alia, are Muhammad Zahid v. State and Waseem v. State, Criminal Bail Applications Nos. 1106 of 1995 and 753 of 1996, respectively (Nazim Hussain Siddiqui and Agha Rafique Ahmed, JJ.), Maqbool Ahmad v. State. Criminal Bail Application No. 1248 of 1996 (Wajiduddin Ahmed and Hamid Ali Mirza, . JJ.), and Maqbool Ahmad v. State, (Criminal Bail Application No. 1276 of 1995 (Amanullah Abbasi and Dr. Ghous Muhammad, JJ.). ' Not insignificantly, in a recent pronouncement of another Full Bench (Nazim Hussain Siddiqui, Rasheed A. Razvi and Agha Rafiq Ahmed Khan, JJ.) of this Court viz. Abdul Khalil v. State, Criminal Bail Application No. 1329 of 1995 etc., the quoted observation of the Supreme Court in Re Ejazur Rehman was cited as a precedent (paras 25 and 26 of the order authorised by Nazim Hussain Siddiqui, J.). It is, therefore, to be seen as to how the observations in the case of Ejazur Rehman supra are to lie interpreted. One manner of resolving the controversy is to ask the question whether such can be construed to be laying down that, because of quantum of sentence, all cases covered by Section 13(d) of the Arms Ordinance shall automatically become amenable to grants of bail generally. In other words, to put the matter bluntly, does the order in question confer a general amnesty for seeking bails. The answer is an emphatic no. Such, it would seem, only postulates the existence of a discretionary power to grant, bails in cases covered by Section 13 of the Arms Ordinance, 1965. This is, what was, in effect, said in the case of Nuzhat Fatirna v. State, Criminal Bail Application No. 781 of 1996, by a Division Bench of this Court to which I happened to be a party. In turn, when we examine the case of Ejazur Rehman, minutely, we find that such case proceeded upon allegations, of mala fides about which the Supreme Court studiously declined to express an opinion but exercised its discretion of granting bail in the circumstances of the case, taken as a whole. Indeed, more or less, identical was the position in Mir Abbas All Abidi v. State, Criminal Petition No. 58-K of 1996, decided by the Supreme Court where the bench consisted of Ajmal Mian, Saleem Akhtar and Abdul Hafeez Memon, JJ. Such was a case under Section 13(e) of the Arms Ordinance. There the High Court had granted bail to the petitioner in the case under Sections 399/402 PPC but declined similar relief in the connected case under Section 13(e) aforesaid on the ground that it was the petitioner himself who had led the police to the recoveiy of substantial quantity of unlicensed arms from near his house. Contentions before the Supreme Court were that bail having been granted in relation to the indictment under Sections 399/402 PPC, there was no justification to refuse the same in the case under Section 13(e) of the Arms Ordinance, no witness from the public was associated in the recoveiy, inspite of the police having advance information of possible recovery and that the recoveiy was not from the house of the petitioner but from a place near such house. Bail was granted in relation to the offence under Section 13(e) ibid. Upon making the following observation:- "We would refrain from making any observation regarding the merit of the contentions raised, lest it may prejudice the case of the petitioner or the defence at the trial which is yet to begin. Suffice it to say, we find it a fit case for bail." Thus, here again, it would seem that bail was granted in the exercise of the court's discretionaiy power and upon general principles, which were recognised in the case ofQaim All Shah, in detail referred to above. Now, we come to the case, which led to the making of the present reference before the Full Bench. Such arose when an order of a Division 'I Bench of this Court in Criminal Bail Application No. 756 of 1996 was cited before D.B.I and there bail was shown to have been granted, following upon the above dictum of the Supreme Court in the case of Ejazur Rehman. That bail order, being a short one, I venture to reproduce here :-- "25.6.1996 (Perforated partly because of passing of the binding string.) The facts of the case need not be recapitulated as the same are duly available in the order of the learned Presiding Judge of the Special Court whereby the applicant was denied bail. The applicant was arrested on 25.2.1996 and has been indicted under section 13(d) of the Arms Ordinance. No witness has so far been examined in the case thereby negating the mandate in section 5-A of the Suppression of Terrorists Activities (Special Courts) Act, 1975, which requires that on taking cognizance of a case, the Special Court shall proceed with the trial from day to day and shall decide the case speedily, in no case adjourning the trial for any purpose except when necessary in the interest of justice and granting no adjournment exceeding two days at a time. Besides, the requirements of section 103, Cr.P.C. apparently, also do not seem to have been complied with inasmuch as no independent or respectable inhabitants of the locality were associated with the search, that provision having been extended to personal searches conducted under the Arms Ordinance, 1965 by some decided cases, which, inter alia, include Ashiq Hussain Shah vs. The State, 1990 ALD 20 and Zulfiqar vs. The State, 1991 P.Cr.L.J. Note 275. However, at this stage of the proceedings we need not reflect on the merits of the controversy except to the extent referred to above and would, instead, rely on two unreported cases of this Court, namely, Muhammad Zahid vs. The State, Crl. B.A. No. 1106/1995 and Waseem vs. The State, Crl. B.A. No. 753/1996, which in turn are based on the Supreme Court order in Crl. Petition No. 140/1995 (Crl. Appeal 445/1995) Aijazur Rahman vs. The State, where the following observation occurs :-- "We have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prima facie, falls under section 13(d) of the Arms Ordinance, 1965, which is punishable'with imprisonment that may extend to three years or seven years. In either case, the offence does not fall within the prohibitory clause of section 497(1) Cr.P.C. we would accordingly allow him bail and direct that he should furnish bail in the sum of Rs. 50,000/~ with one surety to the satisfaction of the trial Court." In terms of the foregoing we would admit the applicant to bail in the sum of Rs. 50,000/- with one surety and PR Bond in like amount to the satisfaction of the trial Court. Application disposed of. Sd. Wajihuddin Ahmed, J. Sd. Amanullah Abbasi, J." Necessary examination of the reproduced bail order would show that emphasis in the case was laid upon non-compliance of the principle in Section 103 Cr.P.C. and the mandates in Section 5A(1) & (2) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. However, not considering it prudent to grant, bail upon such basis specifically, the general principles and discretionary power visualised in the case of Ejazur Rehman were invoked. Having said as much, it seems to me that all that the precedent in Ejazur Rehman's case implies is the recognition of the existence of a general power to grant bail, conditioned where necessary by quantum of sentence, in matters covered by Section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act 1975, and a corresponding discretion to be modelled in the circumstances of each case. It does not, let me be clear, even though such may be on pains of repetition, confer any general amnesty or any blanket exercise of power, irrespective of the circumstances of a particular case. Mamoon Kazi, C.J.--The question relating to the interpretation of the provisions of sub-section (8) of Section 5-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975 arising from the judgment of the Supreme Court in Criminal Appeal No. 445/1995 (Ejazur Rehman v. The State) was referred to a bench of three Judges of which I am one of the members. The various issues arising in this case have been elaborately dealt with in the judgment of my learned brother, Wajihuddin Ahmed, J., which is proposed to be delivered in this case, however, I would like to add a few words of my own. The question as to power of the High Court to grant bail to a person accused of a scheduled offence was considered by the Supreme Court in Allied Bank of Pakistan Ltd. v. Khalid Farooq (1991 SCMR 599). Although, it was the effect of the provisions of Section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) which was determined by the Supreme Court in the said judgment but similar language has been employed by the legislature in the said provisions as has been employed in Section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. However, thereafter, in The State v. Syed QaimAli Shah (1992 SCMR 2192i, Section 5Ai.8) itself came for examination before the Supreme Court and as is clearly indicated by the two judgments, it was noticed therein that the provisions of Section 497(1) of the Code of Criminal Procedure were in conflict with those of the said special enactments and in such case, the former had to give way to the said provisions of the two special enactments. A more or less similar question was once against raised before the Supreme Court in Choudhry Shujat Hussain v. The State (1995, SCMR 1249) and it was again held in the said case that section 5(6) of Ordinance IX of 1984 had imposed fetters on the discretion of the Special Court to first find as a fact that, there appeared to be no reasonable ground for believing that the accused was guilty of a scheduled offence, even where the punishment provided for such offence was not severe such as death, imprisonment for life or imprisonment for a term extending to ten years. It was further observed that although the provisions of Section 497 Cr.P.C. were not completely ousted by the said provisions of the special enactments, nevertheless criterion for grant of bail in case of a scheduled offence could not be the quantum of the sentence provided for in the relevant law. However, in Ejazur Rehmaris case, bail was granted to the accused on the ground that the punishment provided for the offence with which the accused had been charged could extend only to three years or seven years, and since the case of the accused did not fall within the purview of the prohibitory clause of Section 497(1) Cr.P.C., bail could be granted to the accused. It is pertinent to point out that neither the merits of the case were considered by the Supreme Court in this case nor any reference was made to the provisions of Section 5A(8) of the Special Law. Therefore, although, discretion was exercised by the Supreme Court in the said case in favour of .the accused, it did not laydown any rule which may be followed by the High Courts or their subordinate courts. It there was any intention to make a departure from the view earlier held by the Supreme Court in the cases decided by it, reference to which has already been made herein, it would have expressed itself more explicitly. However, in Ejazur Rehman's case, the Supreme Court did not even refer to its earlier judgments on the point. This case was also noticed by Nazim Hussain Siddiqui, J., in his judgment in Criminal Bail Application No. 1329/95 and others, which were heard by a bench of three Judges of this Court, however, the question before the bench was, whether the provisions of Section 8 of the Suppression of Terrorist Activities (Special Courts) Act, relating to burden of proof, could be invoked by the Court while granting bail to the accused. Article 189 of the Constitution, no doubt, places an obligation on the subordinate courts to follow the law laid down by the Supreme Court, however, as has been pointed out earlier, the Supreme Court did not lay down any law in Ejazur Rehman's case. On the other hand, the law laid down by the Supreme Court in the earlier decisions cannot be over looked by the High Court. I am, therefore, clearly of the view that the observations made in Ejazur Rehman's case cannot be regarded as binding on this Court in terms of Article 189 of the Constitution. The bail applications pending before this Court where the applicant has been charged with a scheduled offence may, therefore, be disposed of in accordance with the principles laid down by the Supreme Court in the earlier cases, depending upon the facts of each case. Mrs. Majida Rizvi, J.--The applicant faced trial under Section 13(d) of the Arms Ordinance before Special Court-I (STA) Karachi. Bail was refused to him by such Court on 22.11.1995. Hence the present bail application. As to facts, a Mouzer was recovered from the possession of the applicant at 9.30 pm on 21.9.1995 of which he was unable to account by production of a licence. Mashirs of recovery, however, are police officials alone giving rise to a question whether or not requirements, in Section 103 Cr.P.C. have been satisfied. What is more, while the case has been pending since 21.9.1995 not more than two witnesses have been examined, the provisions of Section 5A(1) & (2) of the Suppression of Terrorist Activities (special courts) Act, 1975, requiring a day to day trial and no adjournments except in the interest of justice, notwithstanding. As to the concept of grant of bail in such-like matters and how the discretionary powers of the superior Courts can be invoked, reference may be made to the pronouncements of the Supreme Court of Pakistan in State v. Qaim Ali Shah (1992 SCMR 2192), Ejazur Rehman v. State (Criminal Petition No. 140/1995 converted into Criminal Appeal No. 445/1995) and Mir Abbas Ali Abidi v. State (Criminal Petition No. 58-K of 1996). Mention may also be made to full bench decisions of this Court in Shakeel u. State (Criminal Bail Application No. 1073 of 1995) and Abdul Khalil v State etc. (Criminal Bail Application "No. 1329 of 1995 and others). We may, likewise, further draw upon Division Bench decisions of the Lahore High Court and this Court respectively in Zulfiqar v. State (1991 P.Cr.L.J. Note 275) and Kamran v. State (Criminal Bail Application No. 999 of 1996). The case of Ejazur Rehman v. State supra, it may be added here, came up for construction before a Full Bench of this Court in Dhani Bux u. State etc. (Criminal Bail Application No. 1267 of 1995 and others) and the same, accordingly, is to be construed in line with the majority opinion in the said full bench case. In the circumstances, and briefly referring to the applicable case law j as above, we admit the applicant to bail in sum of Rs. 100,000.00 (Rupees ° u one dred thousand) with P.R. Bond in like amount to the satisfaction of r "the trial Court. ' (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1093 (DB) [Multan Bench] Present: raja muhammad sabir and M. javed buttar, JJ. MUHAMMAD RIAZ etc.--Appellants versus STATE-Respondent Criminal Appeal No. 33 of 1991, decided on 24.4.1997. (i) Witness-Interested -- -Interested witness-Evidence of interested witness can be relied upon if same is found to be natural arid inspire confidence-Court is required to weigh evidence of such witness with great care and caution-Merely because of relationship of witnesses with deceased, evidence cannot be brushed out. [Pp. 1097 & 1098] A (ii) Suppression of Terrorists Activities Act, 1975 (XV of 1975)-- Section 7, Explosive Substance Act 1908, S. 3 and Pakistan Penal Code Ss. 302/34-Murder-Offence of-Conviction for-Appeal against- Occurrence took place at midnight-It was promptly reported to police and accordingly was registeredMedical evidence is in line with ocular accountProsecution version except motive has been proved which is corroborated by medical evidence and recoveries-Question of false implication of appellants does not arise-There appears to be no reason that complainant would substitute appellants instead of real murderers of his daughterThere is no serious enmity between complainant and accusedTestimony of eye-witnesses is free from major discrepancies or contradictions-They were subjected to lengthy cross-examination but their veracity could not be shaken-They are consistent on all material points and their evidence inspires confidence-Evidence of PW-7 and PW-9 can safely be relied upon on the question of identification of appellant inasmuch they recognised him in the light of lantern plus hearing his La/&ara--Complainant and accused are related to each other- Persons related inter se can be recognised even during dark night by hearing their whispering and dialogues-Held: Prosecution has succeeded in bringing home guilt to appellant No. 1 beyond and shadow of doubt-Held : He was correctly convicted-2nd appellant who was admittedly aged 83 years of. the time of occurrence and have been indulged in ineffective firing-His false implication in this case cannot be ruled outProsecution has not been able to prove its case against him beyond reasonable doubt-He was given benefit of doubt and was acquitted. [PP. 1098, 1099 & 1100] B, D to H PLD 1995 SC 475 r>/ (iii) Suppression of Terrorists Activities (Special Courts) Act, 1975 (XV of 1975)-- -S. 7 read with Pakistan Penal Code Ss. 302/34-Murder-Offence of- Coiwiction for--Appeal against-Non Recoveiy of lantern-Effect of- Prosecution witnesses stated that lantern was burning at the time of occurrenceIt was shown to policeNon-recovery of lantern from spot appears to be just lapse-omission on part of Police officer and cannot be counted against prosecution case-Normally in villages people keep burning electronic bulb or lantern at night for safety and security measures. [P. 1098] C Sardar Muhammad LatifKhan Khosa, Advocate for Appellants. Sh. Muhammad Raheem, Advocate for Respondent. Date of hearing: 24.4.1997. judgment Raja Muhammad Sabir, J .--Appellants Muhammad Riaz, his father Mahabat and uncle Salabat were tried by learned Judge, Special Court (Suppression of Terrorist Activities) Multaii for having committed offence under section 3 of the Explosive Substance Act, 1908 and under section 302/34 PPC. Learned trial Judge convicted all the three accused for having murdered Mst. Surraya Bibi under sections 302/34 PPC and sentenced Mahabat to death while Salabat and Riaz were sentenced to imprisonment for life. All the three accused were also ordered to pay fine of Rs. 20,000/- each of in default of payment of same to suffer further R.I. for three years. It was directed that half of the fine if recovered shall be paid to heirs of the deceased as compensation under section 544-A Cr.P.C. Riaz accused was further convicted under section 3 of the Explosive Substances Act, 1908 for having caused explosion with hand grenade causing injuries to the said deceased and sentenced to death vide judgment dated 14.2.1991. I The convicts challenged their conviction and sentence by filing instant i appeal. Case is also before us for confirmation of death sentence. Both these matters shall be disposed of by this judgment. 2. The prosecution case as per F.I.R. Ex. PF is that complainant Allah Yar is resident of Chak No. 10/GH. He is cultivator by profession and has put his residence alongwith his family members in a house constructed in his land. On the night between 30/31.8.89 complainant (P.W-7) Muhammad Riaz, Ghulani Abbas, his sons, Mst. Surraya Bibi (28) his daughter and Mst. Panan his wife were sleeping in the court-yard of their house. At about midnight on barking of dogs the complainant and his sons got up and in the light of lantern saw Mahabat, Riaz and Salabat standing r outside their house in the north-east corner. They were identified by the I complainant and his sons in the light of the lantern. Riaz raising a lalkara that they had come to take revenge of their insult, threw a hand grenade which landed near the cots of the witnesses but it did not explode and whereafter Mahabat fired from his gun which hit Mst. Surrayya Bibi on chest while lying on the cot. Riaz threw another hand-grenade which exploded and injured Mst. Surayya Bibi. However meanwhile complainant, his sons and wife hand taken refuge in the room. Salabat continued firing for some time towards the witnesses while standing near the wall of the house. As a result of injuries Mst. Surrayya died at the spot. Thereafter complainant's brother Mehram and other people from the neighbouring Dera reached the spot. The accused left with their respective weapons. The motive as alleged in the F.I.R. is that Riaz accused had suspicion that Muhammad Riaz son of the complainant had illicit liaison with his sister Mst. Xaseem Akhtar who had died one year before the occurrence. It "was further alleged that the accused in furtherance of their common intention to kill Riaz attacked but he luckily escaped. 3. Ex. PF, F.I.R. was recorded bj4 (PW-10) Shaukat All Inspector/S.H.O. P.S. Abdul Hakeem at 7.35 A.M. on 31.8.1989 on the statement of Allah Yar complainant. Thereafter he reached the spot, inspected the dead body of Mst. Surraya and prepared the injury statement Ex. PB and inquest report Ex. PC. He sent the dead body for autopsy in the escort of Haq Nawaz F.C. (PW-6). He took in to possession blood stained earth vide Annexure PG: Pieces of hand grenade Ex. P-7 were taken into possession by the witness vide memo Ex. PJ. He also took into possession blood stained cot of the deceased and blood stained pillow vide memo Ex. PH. He recovered 17 crimes empties of 12 bore-gun from the spot and secured them in a sealed parcel vide memo E. PI. He seized a live hand 1 grenade from the spot and got prepared its photographs Ex. P-9 and P-10 and destroyed the hand grenade. Haq Nawaz F.C. produced the last worn clothes of deceased, shirt Ex. P-l, shalwar Ex. P-2, Dopata Ex. P-3 all blood stained and sealed phial pallet Ex. P-4 before the Investigating Officer which were taken into possession vide memo Ex. PE. He recorded the statements of Haq Nawaz and other witnesses. He arrested accused Mahabat and Salabat on 26.9.1989 and Riaz accused on 6.8.1990 after having been declared as absconder. He challaned all the three accused and submitted the challan for their trial. 4. PW-1 Dr. Muhammad Tariq Gilani, M.O. D.H.Q. Hospital Khanewal conducted the post mortem examination on the dead body of Mst. Surayya on 31.8.1989 and found the following injuries:- "1. A lacerated wound 3x3 c.m with fire arms with facture of bone (radious) wound is 2 c.rn. deep. 2. A fire arm wound about 1/2 c.m. circumference on left breast, wound is deep. 3. A fire-arm wound about 1/2 c.m. circumference or left chest 3 c.m. above the second wound. The wound is deep into viscera (lungs). 4. A fire-arm wound about 3/4 c.m. on right chest (just below) inner side of the breast deep upto viscera. 5. Multiple small abrasions (blackish) on front of chest and abdomen. 6. A lacerated wound 1/2 c.m. on right ankle outside. In the opinion of the Doctor injury No. 4 caused rapture off live, lungs resulting in haemorrhage and shock which was sufficient to cause death in the ordinaiy course of nature. All the injuries were caused by fire-arm and were ante-mortem. Duration between injuries and death was between half and one hour and between death and post mortem was 12 hours. In crossexamination the witness stated that all the injuries could not be caused by one fire-arm. 5. Eye witness account was furnished by Allah Yar complainant (PW-7) and Muhammad Riaz (PW-9). They have supported the prosecution case as narrated in the F.I.R. mentioned above. 6. Reports of the Chemical Examiner and the Serologist on the earth and origin of blood are positive inasmuch as they found that the earth was stained with human blood vide Ex. PL and PM respectively. 7. The accused while making their statements under section 342 Cr.P.C. pleaded innocence and denied the prosecution allegations ascribing enmity and previous litigation. They, however, neither produced any witness in their defence nor appeared in their defence on oath. 8. Learned trial Court believed the prosecution evidence, convicted and sentenced the appellants as stated earlier. 9. At the veiy outset learned counsel for the appellants informed us that appellant No. 3, Mahabat Khan who was found guilty of murdering Mst. Surraya with his fire-arm shot has died in the jail on 25.9.1992. On our direction, this statement has been endorsed by Mr. Naveed Rasool Mirza, Addl. A.G. on instructions received from Supt. New Central Jail, Multan. Thus the appeal Mahabat Khan has abated under section 431 Cr.P.C. and is disposed of as such qua him. 10. Regarding remaining appellants, Muhammad Riaz and Salabat, Sardar Muhammad Latif Khan Khosa, learned counsel contends that they are innocent; prosecution has failed to prove the guilt against them. It was a blind murder, the prosecution witnesses are related to the deceased and interested ones and as sucfi cannot be believed without independent corroboratioii which is not forthcoming in the instant case. He further submits that the lantern allegedly burning at the time of occurrence was not taken into possession by the Investigator which belies the version of the prosecution and even otherwise it was not possible for the witnesses to identify the accused who, as per F.I.R. were standing at considerable distance from them on the other side of the wall. In support of his pleas, learned counsel has relied upon Atta Muhammad and another vs. The State (1995 S.C.M.R. 599i. Muhammad Arhsad vs. The State (PLD 1995 S.C. 475) and Ghulam Rasool and another vs. The State (PLD 1983 Lahore 195). 11. Learned counsel'for the State has supported the impugned judgment by adopting the reasons mentioned therein. 12. We have heard the learned counsel for the parties at considerable length, gone through the judgments referred above and the evidence with their assistance. There is no force in the contention of the learned counsel that it was a blind murder. According to first informant PW- 7. he alongwith Muhammad Riaz PW. 9, Ghulam Abbas, his sons, Mst. Surrayya Bibi deceased and Mst. Panan his daughter and wife respectively were sleeping in the court-yard of their house. At about midnight between 30/31.3.1.989 on barking of dogs he, his sons and wife got up. They saw in the light of lantern Mahabat, Riaz and Salabat accused standing outside their house in the north east-corner. Riaz raised a lalkara that be prepared. They have come to take revenge of their insult. Whereupon Riaz threw a hand grenade which landed near the cots of said persons but it did not explode. Mahabat accused then fired from his gun which hit on the chest of Mst. Surrayya Bibi. Riaz accused then threw another hand grenade which exploded and injured Surrayya Bibi. In the meanwhile, PW-7, his wife, and sons rushed towards the room and took refuge therein. Salabat also indulged , in indiscriminate firing at the complainant party. On receipt of injuries, Mst. Surrayya Bibi died at the spot. PW-9 Muhammad Riaz has supported PW-7 on all the material points. The occurrence took place at midnight between the night 30/31.8.1980. It was promptly reported to the S.H.O. P.S. Abdul Hakeem which is at a distance of about 12 miles from the place of occurrence, at 7.35 on 31.8.1989 and accordingly F.I.R. Ex. PF was registered. 13. The Medical evidence furnished by PW-1 Dr. Muhammad Tariq Gilani is in line with the occular account furnished by PW-7 and PW-9. He found six injuries on the person of the deceased. Under injury No. 5 he observed Multiple small abrassions (blackish) on front of chest and abdomen". Fatal fire-arm shot is assigned to Mahabat accused who as mentioned above has since died and his appeal has abbated. In crossexamination the witness stated that all the injuries could not be caused by one fire-arm. Thus injury No. 5 appears to be on account of explosion of hand grenade thrown by Riaz accused. 14. PW-10 Shaukat Ali Inspector investigated the case. He collected from the spot peices of hand-grenade Ex. P-7 vide memo Ex. PJ. According to him, he also seized a live hand grenade from the spot and destroyed the same after taking photograph Ex. P-9 and P-10. In cross-examination he stated that he did not investigate about illicit liaison between Riaz PW-9 and Nasim Akhtar. 15. From the analysis of the evidence, we are of the opinion that prosecution version except motive has been proved by PW-7 and PW-9 qua Mahabat, deceased (now) and Riaz appellant which is corroborated by the medical evidence and recoveries. According to the F.I.R. the occurrence took lace at about mid-night etween 30/31.8.1989, and was witnessed by the said PWs. The Police Station is about, 12 miles away from the place of occurrence. F.I.R. was promptly lodged at 7.35 A.M. on 31.8.1989 mentioning names of the accused with specific roles therein. The question of false implication of the said appellants in such promptly lodged F.I.R. does not arise. Even otherwise there appears to be no reason that the complainant would substitute the said appellants instead of real murderers of his daughter. There is no serious enmity between the complainant and the accused. The testimony of eye-witnesses is free from major discrepancies or contradictions. They were subjected to lengthy cross-examination by the defence bus (???) , their (????) shalwar: They are consistent on all the material points and their evidence inspires confidence. 16. The objection of the learned counsel for the appellants that PW- 7 and PW-9 being related to deceased are interested witnesses, is without any significance. The evidence of interested witnesses can be relied upon if the same is found to be natural and inspire confidence. The Court is required to weigh evidence of such witnesses with great care and caution. The occurrence took place during the odd hours at midnight when all the peoples were sleeping. Admittedly the witnesses were residing in the same house wherein the incident took place. They were present at the time of occurrence. We have considered their evidence in the light of the above principle and are convinced that they have seen the occurrence and thus they are natural witnesses and their evidence is trust-worthy and reliable. Merely because of their relationship with the deceased, their evidence cannot be brushed aside. The authorities relied upon by the learned counsel are of no much avail to him as each criminal case has to be considered in the context, of its own facts. 17. Now coming to the next contention of the learned counsel for the appellants that the lantern allegedly burning at the spot was not recovered by PW-10, Investigator, therefore, inference may be drawn against the prosecution that it, was not burning at the time of occurrence and as such it was not possible for the PWs to identify the accused. This contention is without any substance. The first informant PW-7 stated in the F.I.R. and in his statement at the trial that lantern was burning at the time of occurrence. PW-9 also stated in his statement before trial Court that in the light of lantern he saw Riaz and Mahabat standing in north east corner of the court yard. In cross-examination this witness stated that the lantern was hanging on the wall. It was shown to the police. Likewise Investigator PW-10 in cross-examination stated that:- "The lantern was burning on the wall of the room. I did not seize the same. I did not show it in the site plan. It is incorrect that here was no lantern at the spot." Non-recovery of the lantern from the spot appears to be just lapse-omission on the part of Police Officer and cannot be counted against the prosecution case. Normally in Villages people keeping burning electric bulb or lantern in the dera or court-yard of their houses at night for safety arid security measures to avoid commission of theft etc. Moreover it is in the prosecution evidence that Riaz appellant while reaching at the spot alongwith his coaccused raised a lalkara that:- Thus the evidence of PW-7 and PW-9 can safely be relied upon on the question of identification of appellant Muhammad Riaz inasmuch as they recognized him in the light of the lantern plus hearing his lalkara. The complainant and accused are related to each other. It is established law that persons related inter se can be recognized even during dark night by hearing their whispering and dialogues. This view is fortified by the dictim laid down in Muhammad Arshad vs. State (PLD 1995 S.C, 475) referred to in para 10 above. 18. Keeping in view the entire prosecution evidence we are convinced that prosecution has succeeded in bringing home the guilt to appellant Muhammad Riaz beyond any shadow of doubt and he was rightly convicted under section 302/34 PPG and sentenced to life imprisonment plus fine of Rs. 20,000/- for committing the murder of Mst, Surrayya alongwith his co-accused Mahabat by the learned trial Judge. His conviction and sentence under this head is maintained. Likewise he was correctly convicted under section 3 of the Explosive Substance Act, 1908. However, on the question of quantum of sentence, since fatal shot is attributed to Mahabat now deceased and no serious damage was caused to the deceased or property of the complainant on accovint of explosion of the hand-grenade, we are not inclined to confirm the death sentence awarded to him and compute it into life imprisonment. Both the sentences shall run concxirrently. Benefit of section 382-B Cr.P.C. shall also be extended to him. 19. So far as third appellant Salabat concerned, he is paternal uncle of Riaz Appellant. He is alleged to have indulged in ineffective iring with his gun but the same was not recovered from him by the Investigating Officer. e was admittedly aged 83 years at the time of occurrence. It is common phenomenon in our society that in such like cases all the male members of the accused family are ropped in so that nobody is left behind to defend the case on their behalf. The participation of such an aged person in s\ich an exigence is highly improbable because in case of counter-attack from the opposite side, he would become a liability of his own companions. In these circumstances, his false implication in the case cannot be ruled out. Prosecution has not been able to prove its case against him beyound reasonable doubt. Accordingly we give him the benefit of doubt and acquit him of the charge. These are the reasons in support of our short order dated 14.4.1997 which was passed in the above terms inter alia directing the release of Salabat appellant forthwith if not required in any other criminal case. (MYFK), Orders accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lah.) 1100 [Multan Bench] Present: raja muhammad sabir, J. Malik MUHAMMAD NAZIR-Petitioner versus MUHAMMAD AAMAR BAIG etc.-Respondents Cr. Misc. No. 438/CB/1996, accepted on 24.4.1997. Bail-Cancellation of-- -S. 497 (5) Cr.P.C.-Bail-Cancellation of-Prayer for-Offence U/S. 302/34--Respondents are accused in a case under sections 302/34 PPC-Specific role is attributed to them-Eye-witnesses are supporting prosecution version-Medical evidence also shows deceased died due to injuries caused by a fire arm weapon-In these circumstances, bail granting order passed by learned Additional Sessions Judge is hereby set-aside and bail granted to respondents Nos. 1 & 2 is hereby cancelled-Petition accepted. [P. 1104] A Sardar M. LatifKhan Khosa, Advocate for Petitioner. Mr. Irshad Hussain Bhatti, Advocate for Respondents Nos. 1 and 2. Mr. Shaukat Ali Kharal, Advocate for State. . Date of hearing: 24.4.1997. Announced on: 24.4.1997. order Through this petition the petitioner seeks cancellation of bail granted to respondents No. 1 & 2 namely Muhammad Aamer Baig and Mirza Asif Baig by the learned Additional Sessions Judge, Multan vide order dated 4.3.1996 in a case FIR No. 412 dated 19.12.1995 under Section 302/34 PPC registered at Police Station Multan Cantt. lodged Malik Nazeer Awan complainant/petitioner at 2:10 AM. 2. Brief facts of the case as narrated in the FIR are that respondents No. 1 & 2 were the friends of the complainant's nephews. Some days prior to the occurrence some dispute had taken place between Mirza Aamer Baig and Asif Malik nephew of the complainant) on account of some transaction, which was subsequently patched up by intervention of Bagh AH and Mirza Ishaq Baig. The accused, however nourished grudge of the said dispute and insult. On 18.12.1995 at about 10:30 PM the complainant and his nephews namely Manzoor Sultan and Asif Malik came to Holiday Inn (Hotel) in connection with a Waleema ceremony of Tariq Sultan Maral, where respondents No. 1 & 2 were present armed with pistols. They raised lalkara that they will not spare Asif Malik today and started firing at him, who tried to take shalter of the near by building but Aamer Baig stepped forward and further fired at Asif Malik, which hit him on his belly and he fell down on the ground due to the injuries. Thereafter Asif Malik succumbed to the injuries in the Nishtar Hospital. The occurrence was witnessed by the complainant, Manzoor Sultan, Muhammad Waryam and Manzoor Ahmad. It is also stated that both the accused with their common intention killed Asif Malik. 3. After registration of the case respondents No. 1 & 2 submitted an application for pre-arrest bail, which was granted to them till 8.1.1996 to enable them to move a bail petition before the Sessions Judge, Multan, but their bail petition had already been dismissed by the learned Additional Sessions Judge, Multan on 24.12.1995. Respondents No. 1 & 2 again made an application for grant of pre-arrest bail in this Court, which was dismissed by my learned brother Syed Zahid Hussain Bukhari, the then J. on 9.1.1996 and the accused were arrested. 4. The case was investigated firstly by Rab Nawaz, Inspector/SHO Police Station Cantt. Secondly, the investigation was conducted by Haji Abdul Latif, DSP, Range Crime Branch Multan. Third investigation was conducted by Pervaiz Awan SSP Range Crime Multan. The investigation of, the above said officers was further endoursed by the DIG Multan and finally Khawar Zaman Lodhi, Inspector/SHO Police Station Multan Cantt: prepared challan against Humayon Baig, Ghulam Farid and Mehboob accused. All the investigation agencies were of the view that the accused were innocent and in fact Humayon Baig, Ghulam Farid and Mehboob have committed the murder of Asif Malik deceased. It is also asserted by the learned counsel for respondents No. 1 & 2 that the complainant had recorded his supplementary statement, wherein he stated before the police that the real accused in the present case were the aforesaid three persons, he also produced Khizar Hayat, Ahmad Nawaz and Mukhtar Hussain PWs, who also made the similar statement before Khawar Zaman Lodhi, Inspector/SHO, who prepared the chaSlan. It is also an admitted position that all the aforesaid three persons are abscondor. None of them was ever arrested. They have been declared proclaimed offenders. Respondents No. 1 & 2 have been placed in column No. 2 of the challan and after observing formalities under section 512 Cr.P.C. the same is ready for submission to the Court. f 5. The Investigating Officer after coming to the conclusion that Respondents No. 1 & 2 are innocent prepared the cancellation report in their favour but the learned Assistant Commissioner dis-agreed with the said ancellation report and vide order dated 8.2.1996 directed the police to submit the challan against the ccused/respondents No. 1 & 2 for trial by the Court of Session. Copy of the said order is attached with the file as Annexure-D. From 8.2.1996 till 10.10.1996 the challan was not submitted and ultimately on 10.10.1996 the supplementary statements were written by Khawar Zaman Lodhi, Inspector/SHO Police Station Multan Cantt. And instead of respondents No. 1 & 2, three other persons Humayon etc. were found guilty by him. Challan has not been sent to the trial Court till today in spite of a direction given by the Assistant Commission on 8.2.1996. 6. The accused/respondents No. 1 & 2 submitted an application for grant of bail on 19.2.1996, which was fixed for final hearing on 4.3.1996 before the learned Additional Sessions Judge, Multan. The petitioner submitted an application on 3.3.1996 before the learned Sessions Judge, Multan for transfer of the bail application from the Court of the Additional Sessions Judge (Mr. Muhammad Aslam Sumra) to any other Court for decision. The said application was also fixed for 4.3.1996 but before the transfer application could be decided, the bail application of respondents No. 1 & 2 was decided by the learned Additional Sessions Judge vide impugned order. The learned Sessions Judge disposed of the transfer, application as having become infructuous as the matter sought for transfer had already been decided. 7. Learned counsel for the petitioner submits that the accused are highly influencial persons. One Mirza Amir Baig, a relative of respondents No. 1 & 2, is serving in Police Department as DSP and because of his influence and that of the then MNA who is also from their brother prevailed upon the investigating agencies and got the result "of investigation in their favour. It is also submitted that the learned Additional Sessions Judge in great haste has granted bail to them although it was brought into his notice that an application for transfer of the said bail application has been submitted to the learned Sessions Judge and the same was fixed on the same day i.e. 4.3.1996. Further submits that, in normal circumstances, the learned Additional Sessions Judge should have postponed the decision on the bail application. Learned counsel also stated that the complainant and the eye witnesses have fully supported the version narrated in the FIR. The evidence collected by the investigating officers consists of statements of the eye witnesses, medical evidence motive and the other attending circumstances which fully support the prosecution version but inspite of all that the police has declared respondents No. 1 & 2 innocent. The findings of the police are not based upon any solid material justifying their innocence. S. Conversely, learned counsel for respondents No. 1 & 2 submits that all the investigating agencies found both the accused innocent and the real accused have been declared proclaimed offenders. The findings of the investigating officers have great weight while considering the application for grant or rejection of the bail. Further submits that principles for grant and cancellation of bail are different and bail granting order is not to be lightly interfered. Learned state counsel has supported the arguments of counsel for respondents. 9. I have heard the arguments of the learned counsel for the parties at length and perused the record produced by the police officer. The occurrence was witnessed by Manzoor Sultan, Muhammad Inam and Manzoor Ahmad, who are named, as eye-witnessed in the FIR. The complainant is also an eye-witness of the occurrence, which has taken place in Holiday Inn Hotel at 10:30 PM. All the eye-witnesses have supported the prosecution version. Their statements under Section 161 Cr.P.C. were recorded, wherein they have categorically stated that respondents No. 1 & 2 have fired at the deceased, who died as a result of their firing. Respondents No. 1 & 2 have been placed in column No. 2 of the challan but the Assistant Commissioner vide order dated 8.2.1996 refused to agree with the cancellation report submitted by the police. The findings of the investigating agencies are not based on sound material. The I.Os. have relied upon the evidence of some witnesses, who claimed that they were present at the time of occurrence in Holiday Inn Hotel. The police has declared respondents No. 1 & 2 innocent and involved Humayon Baig, Ghulam Farid and Mehboob in the present case as real culprits. Ipse. dixit of the police is not binding upon the Courts. 10. Learned Additional Sessions Judge, also has shown his great haste in granting bail to respondents No. 1 & 2 knowingly that the application for transfer of the bail petition is pending before the learned Sessions Judge and fixed for hearing on the same day but instead of staying off his hands, he abruptly granted bail to the accused. The judgments reported in para 4 of the impugned order are distinguishable. Every criminal case has its own facts. The identity of the accused was not in doubt. 'The occurrence was witnessed by the complainant and other eye-witnesses, and has taken place in the Holiday Inn Hotel, there were full lights at the relevant time. The FIR was lodged promptly on the same night at about 12;10 AM. There is no reason to believe that the complainant would substitute respondents No. 1 & 2 for Humayon Baig and two others. The complainant has stated on Holy Qur'an in Court today that supplementary statements dated 10.10.1996 referred by the 1.0. are absolutely incorrect and without his knowledge. He also stated that Khizar Hayat. Ahmad Nawaz and Mukhtar Hussain are neither known to them nor ever appeared before any police officer alongwith him. The alleged supplementary statements are concocted with a view to declare the accused innocent. 11. In nutshell, respondents No. 1 & 2 are accused in a case under Section 302/34 PPG. Specific roll is attributed to them. Eye-witnesses are supporting the prosecution version. The medical evidence also shows the Asif Malik died due to the injuries caused by a fire-arm weapon. In these circumstances, the bail granting order dated 4.3.1996 passed by the learned Additional Sessions Judge is hereby set-aside and the bail granted to respondents No. 1 and 2 is hereby cancelled. The petition is accordingly allowed. (K.A.B.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1104 (DB) Present: CHIEF JUSTICE NAME NOT DECIPHERABLE AND QAZI muhammad farooq, J. Mst. NOOR JEHAN-Appellant versus STATE-Respondent Cr. J.A. No. 13 of 1991, accepted on 27.9.1993. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302/201/404/34-Murder-Conviction for-Challenge to-Appellant's husband was principal accused who had enacted tragedy and there is no safe evidence of any sort against appellant to sustain her conviction-She appears to have been improperly convicted and sentenced-Appellant admittedly did not harm to deceased and confessional statement of her husband makes it manifest that initiative was taken by him and he had infact dominated her completelyPost murder role attributed to her represents role of a scared and flabbergasted housewife who mechanically and instinctively reacts to save the life of her husband-Appeal accepted. [P. 1108] A&B (ii) Confession- -Judicial confession-Retraction of-At crucial time she was under thumb of her husband and later on under thumb of police-This intriguing circumstance has made retracted judicial confession of appellant defective inherently and no corroborative piece of evidence, however, so strong it may be can remove this inherent infirmity. [P. 1108] C Mr. Sultan Shaharyar Khan, Advocate Appellant. e Mr. Ejaz Muhammad Khan, A.A.G. and Dost Muhammad, Advocate for State. Date of hearing: 27.9.93. judgment Qazi Muhammad Farooq, 3.-Mst. Moor Jehan, aged about 30/35 years, her husband Abdul Marjan, aged about 40/42 years and her mother- " in-law Mst. Sultana, aged about 50/52 years were tried by the learned Additional Sessions Judge, Bannu under sections 302/201/404/34 PPC for committing the murder of one Mumta Baz in furtherance of their common ntention, for taking away and dishonestly misappropriating four pistols, one shotgun, two Klashinkove alongwith Magazines and 47 cartridges, one Rado ~" wrist watch, one 7 MM Rifle alongwith charges belonging to the deceased nd for buying the deadbody of the deceased in th% Courtyard of their house with a view to causing the disappearance of the evidence of his murder. The learned trial Judge, vide his judgment dated 24.4.1990, acquitted Mst. I Sultana but convicted the couple under the aforementioned sections of law and sentenced them under section 302 P.P.C. to imprisonment for life with a fine of Rs. 10,000/- each or in default to suffer further two years R.I. each, under section 201 P.P.C. to two years R.I with a fine of Rs. 500/- or in default to undergo one month further R.I and under section 404 P.P.C. to two years R.I and a fine of Rs. 500/- each or in default of payment of fine to undergo further R.I for one month. All the senj^nees were ordered to run concurrently. The jail appeal of Mst. Noor Jehan convict is before us for disposal. 2. The facts of the case in brief are that on 24.8.1988 at 10.30 P.M. one Jirga Baz lodged a report at Police Station Mandan to the effect that his ' brother Mumta Baz was missing. The police togjk the investigation in hand under section 156(3) Cr.P.C. and in due course found that the deceased had some liaison with the family of the appellant and was also seen last while going to their house. The investigation yielded positive result on 25.8.1988 when the deadbody of Mumta Baz was dug out from the courtyard of the appellant's house. The appellant and her husband were arrested forthwith and the investigation reached its logical conclusion when the appellant and her husband confessed their guilt before the Assistant Commissioner, Bannu on 31.8.1988 and 30.8.1988 respectively. Their confessional statements disclose that the deceased was involved in gun running and on the eventful day had brought some Arms and Ammunition to the appellant's house and kept the same there saying that a woman from Karachi will take the same away. At about noon time the deceased fell asleep and on the initiative of the appellant's husband a plan was hatched to kill him and misappropriate the contraband articles. Resultantly, the appellant's husband dealt four danda blows on the head of the deceased as a result of which he lost his life. In the meantime the appellant's mother-in-law came there but did not learn about the incident as the dead body of the deceased was covered with a quilt. However, the appellant's husband gave her the wrist watch of the deceased, papers in regard to his motor cycle and copy of a licence which she handed over to the sister of the appellant's husband. Thereafter, they buried the dead body in their house and the appellant concealed one shotgun and four pistols in an open place outside the house and kept two Klashinkovs in the house of one Hamdullah situate in Bakhmal Ahmed Zai. 3. Autopsy on the dead body of the deceased was conducted by Dr. Nafees-ud-Din (PW-12) who found the following:- EXTERNAL EXAMINATION. 1. Whole body swollen, foul smelling and skin being peeled off from many parts. 2. Three lacerated wounds on the left temporal region in an area of 2" circumference, each one measuring about 2" x 1". 3. One lacerated wound on the left parietal bone measuring about 11/2" XI". 4. The left hemisphere of skull depressed and badly damaged. Internal Examination Abdomen: All he organs healthy, stomach also healthy and containing partially digested food material. Cranium and Spinal Cord. Skull, scalp and vertebrae injured. Membrains and spinal cord injured. Contents of thorax healthy. In his opinion the deceased had died of blunt injuries to the vital organs, haemorrhage and shock. Probable time that elapsed between injuries and death within 5 minutes and between death and PM about 3 to 5 days. 4. In order to prove its case the prosecution examined as many as 15 witnesses including Dr. Nafees-ud-Din (PW-12) who had held autopsy on the deadbody of the deceased. Saadullah Shah LC (PW-1) deposed that the Investigating Officer had got the entries of the arms licence in regard to .30 bore pistol in the name of the deceased verified form him. Kebaz Khan (PW- 2) is a formal witness who "had identified the deadbody of the deceased. Umer Zad (PW-3) stated that in his presence a police party had dug out the deadbody of the deceased from a place inside the house of the appellant's house and he had signed the recoveiy memo: Ex. PE and had also signed the recover}' memo: Ex. PE and had also signed the recovery memo: Ex.PF as marginal witness vide which a "Danda" Ex. P-l was taken into possession. Shah Sarwar (PW-4) deposed that the house from where the deadbody of the deceased was recovered was rented out by him to the appellant's husband. Muhammad Sultan (PW-5) is a formal witness who had escorted the deadbody of the deceased to the mortuary. Muhammad Shafiq (PW-6) is a marginal witness of recoveiy memo: Ex. PH vide which the motor cycle of the deceased was taken into possession by the Investigating Officer and Gul Bad Shah (PW-7) is the marginal witness of recoveiy memo: Ex. PJ vide which a Rado wrist watch belonging to the deceased was taken into possession. Muhammad Ayaz (PW-8) is also a formal witness who had drawn up the FIR Ex. PA-1/1 on receipt of the "Murasila" Ex. PA. Jirga Baz Amir Khan (PW-9) is the brother of the deceased who stated that he had set the ball rolling by making a report at the police station t at the deceased was missing. He also deposed about certain recoveries made by he police in his presence. Pervez Khan (PW-10) deposed that he had handed over the Rado wrist watch to the police which had been given to him by Mst. Teli Begum. Mst Teli Begum (PW-11) stated that Mst Sultana accused had handed over her a Note book, an arms licence and a wrist watch and after recovery of the deadbody of the deceased she had handed over the wrist watch to Pervez Khan PW and asked him to throw it away. Sher Muhammad Khan (PW-13) stated that during the days of occurrence he was posted as Assistant Commissioner, Bannu and had recorded the confessional statement of the appellant on 31.8.1988 and had also recorded the confessional statement of the appellant's husband on 30.8.1988. (PW-14) Muhammad Khan SI deposed about the manner in which he had investigated the case. Muhammad Rahim Khan (PW-15) stated that the deceased had parked his motor cycle in his shop. 5. When examined at the trial under section 342 Cr.P.C. the appellant denied the prosecution allegations and professed innocence. She also recorded her statement on Oath under section 340(2) Cr.P.C. wherein she levelled serious allegations against the police. 6. After hearing the learned counsel appearing on behalf of the appellant at State expense and the learned Assistant Advocate General assisted by Mr. Dost Muhammad Khan, learned counsel for the complainant we find that the appellant's husband was the principal accus'ed who had enacted the tragedy and there is no safe evidence of any sort against the appellant to sustain her conviction. She appears to have been improperly convicted and sentenced. 7. The appellant admittedly did no harm to the deceased and the confessional statement of her husband recorded on 30.8.1988 makes it manifest that the initiative was taken by him and he had in fact dominated her will completely. The post murder role attributed to her represents the role of a scared and flabbergasted housewife who mechanically and instinctively reacts to save the life of her husband. Her confessional statement having been recorded a day after the recording of the confessional statement of her husband does not, appear to be voluntary and in any event the portion relating to mutual consultations for eliminating the deceased has to be kept out of consideration as it is incompatible with the assertion made in the confessional statement of her husband that the idea of killing the deceased was floated by him. Besides, in her statement on Oath recorded under section 340(2) Cr.P.C. she levelled serious allegations of torture and gan-rape against the police and even if these allegations are deemed to have been exaggerated one fact stands established beyond any doubt that at the crucial time she was under the thumb of her husband and later on under the thumb of the police. This intriguing circumstance has made the retracted judicial confession of the appellant defective inherently and no corroborative piece of evidence howsoever strong it may he can remove this inherent infirmity. The appellant's retracted judicial confession thus cannot be treated at par with that of her husband particularly when apart from the aforementioned inherent infirmity it is not fully and satisfactorily corroborated in material particulars. In this context it will be pertinent to point out that the recoveries of arms and ammunitions allegedly belonging to the deceased were made after a week of the appellant's arrest without associating any witness from the public and on peculiar facts and circumstances of the case independent witnesses appear to have been excluded deliberately from factum of recovery. Besides, the arms and ammunition were recovered from an open place over which the appellant had no control and there is also no evidence on record to point out that she had kept 2 Klashinkovs with one Hamdullah. 8. For the foregoing reasons this appeal is accepted, the conviction and sentences of the appellant are set aside and she is acquitted of the charges levelled against her. She be released forthwith if no wanted in any other case. Herein above are the reasons for our short order dated 27.9.1993. (K.A.B.) Appeal accepted.
PL J 1997 Cr PL J 1997 Cr.C. (Karachi) 1109 [Circuit Court Larkana] Present: ALI MUHAMMAD BALOCH, J. MUNEER etc.-Petitioners versus ALI MUHAMMAD BALOCH, J. MUNEER etc -Respondent Crl. Bail Application No. 108/1996, dismissed on 3.9.1996. (i) Bail- -S. 497 Cr.P.C.-Bail-Granf of--Prayer tor-Offence u/S. 355, 377, 34 PPG read with S. 337-F(i) of Q/.so.s- and Diyat Ordinance-Prima fades, from medical evidence, it is clear that victim was subjected to unnatural carnal intercourse-Evidence of victim stand corroborated strongly by evidence of doctor as well as two other witnesses-Ordinarily in such cases victims do not file false cases at the cost of their reputation and honour which is considered as a stigma remembered for long time-Evidence of victim also has been held to be sufficient for conviction in such cases. [P. 1111] C & D (ii) F.I.R.- -F.I.R.-Delay in lodging-Offence u/S. 355, 377, 34 PPC and 337-F (i) Qisas and Diyat Ordinance-Delay of 14 hours in lodging F.I.R.Effect of-Explanation for delay is available in F.I.R.-Cornplainant's maternal uncle, whose advice was necessary for complainant before taking any action in such a serious situation involving honour and reputation of family, was not present at home, and on his arrival, report was immediately lodged on the next day. [P. 1110] A (iii) Words and Phrases- Word "Erectile" carries the meaning of "enlarging and hardening of the penis usually in response to sexual stimulation as defined in the chambers dictionary. [P. 1111] B Mr. AsifAli Soomro, Advocate for Applicant. Mr. Muhammad Bachal Tonyo. A.A.G. for State. Date of hearing: 3.9.96. order 1. Granted subject to all just exceptions. 2. Applicants Muneer alias Munawar All and Oshaq stand charged with commission of unnatural carnal intercourse with Abdul Qadeer. The report of the incident was registered at Police Station, Ratodero as Crime No. 82/96 on 30.5.96, Abdul Qadeer in his report stated that he was sitting at the lawn of High School, Ratodero alongwith Abdul Jabbar and Ishaque when at about sunset time the applicants took him with themselves on the pretext that they had some work with him. Abdul Qadeer was then taken by the applicants with them. At about 9.30 p.m., they reached the place known as Pir Mubarak Shah, where both the applicants tried to keep the complainant in their embraces, but on his resistance, Abdul Qadeer was given slaps and thereafter he was made to lie down on the ground by the applicants by force. His loin-cloth was removed and both applicants took turns to commit sodomy on him. Complainant raised cries which attracted Abdul Jabbar and Ishauqe but when they came near, the applicants left the complainant and ran away. The complainant then narrated the incident to the witnesses. The Witnesses brought him to his house. The maternal uncle of the complainant Sobho was not available, therefore, the complainant waited for his arrival. Next day morning on the advice of his maternal uncle, he went to the police station and lodged the report. Police sent the complaint for medical examination and certificate. Applicants were arrested and challaned who are to face the trial for an offence punishable under sections 355, 34 PPG and 337-F(i) Qisas and Diyat Ordinance. The applicants did not succeed in their bail application before the trial court. I have the learned counsel for the applicants and the learned Additional Advocate-General. The learned counsel for the applicants took pains to argue that in this case delay of 14 hours in lodging of the report and non presence of the eye witnesses at the time of actual commission of the offence, makes this case a case of further enquiry and that, therefore, the applicants be released on bail. . I do not find much force in this contention as the explanation for delay is available in the F.I.R., itself. The complainant's maternal uncle, whose advice was necessary for the complainant before taking any action in such a serious situation involving honour and reputation of the family, was not present in none, and on his arrival, the report was immediately lodged on the next day. The learned counsel for the applicants next laid stress on the fact that the rectal swabs, taken from the body of the complainant by the doctor, which were sent to Chemical Examiner for detection of semen, have been reported to be not having the stains of semen. This argument is also without substance, as semen could be present only in case of discharge, which is not necessary to prove the offence of carnal intercourse, as the explanation given in section 377 P.P.C., reads: "penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." Besides, the Medical Officer in his certificate has clearly mentioned that due to passing of stools by the complainant before his arrival at the dispensary, and having washed his private parts, it was not possible that the rectal swabs will carry the stains of semen. The last argument of the learned counsel for the applicants is that since some injuries on the person of the complainant have been certified by the Medical Officer to have been caused by blunt substance, it was a conflict between the ocular evidence and the medical evidence and that, therefore, the applicants were entitled to the grant of bail. Possibility of such superficial injuries being result of the force used against the complainant cannot be ruled out. Therefore, this argument does not cany much wait at this stage. The next argument of the learned counsel for the applicants was that the finding of the Medical Officer was not clear as regards the commission of sodomy on the complainant as according to him, the word used by the Medical Officer i.e. "erectile" was not defined as penis in the certificate. According to learned counsel for the applicants this "erectile" could mean a substance like fingers, pencils and other such things, therefore, there was no "penetration" and therefore offence under section 377 P.P.C., was not committed. I do not agree with this contention of the learned counsel for the applicants. The word "erectile" carries the meaning of "enlarging and hardening of the penis usually in response to sexual slimulation," as defined in the Chambers dictionary, besides, I find.from the order of the trial court on this very point, the trial court had summoned the Medical Officer for explaining this position about his certificate. The doctor had appeared before the trial court and had clarified that in his opinion his certificate was to the effect that sodomy had been committed and the penetration was proved. This being the case, prima facie, from the medical evidence, it is clear that Abdul Qadeer was subjected to unnatural carnal intercourse. Although the learned Additional Advocate-General appearing for the State has not opposed the grant of bail to the applicants, I find that evidence of the victim stands corroborated strongly by the evidence of the doctor as well as two other witnesses. Even otherwise, ordinarily in such cases the victims do not file false cases at the cost of their reputation and honour which in this part of the Province is considered as a stigma which is remembered for long time. The evidence of the victim alone has been held to be sufficient for conviction in such cases. Dr. Altaf Hussain Abro, the Senior Resident Medical Officer of Taulka Hospital, Ratodero who has examined the victim in this case, on the examination of the victim had found that there were abrasions and contusions seven in number on different parts of the body of complainant including his hips. There was a laceration found at 6 O'clock position at the anus of the complainant and there was found dilation of the external splinter of the victim which was tender on touch. The doctor had very clearly stated that some erectile substance had been introduced into the anus of the victim. At this stage, therefore, I do not find that doctor in his certificate has left any room fir interpretation of fcif ertificate in respect of the absence of commission of the sodomy The applicants stand charged with the offences punishable under sections 355,377,34 P.P.C., sine 337-F<i,i Qisas and Diyat Ordinance and section 377 PP.C.. carries the punishment of imprisonment for life. No grounds are made out for exercising the discretion of grant of bail in favour of the applicants, therefore, I consider that the applicants' application for bail merits no consideration and the same is, therefore, dismissed. (K.AB.. Bail rejected.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 1112 (DB) [Sukkar Bench] Present: ABDUL HAMEED DOGAR, AND KAMAL MANSOOR ALAM, JJ. FAT T !OO-Appellant versus STATE-Respondent Crl. J. Appeal No. 229/1995, allowed on 12.6.1996. West Pakistan Arms Ordinance, 1965-- -S. 13(c) read with S. 103 Cr.P.C-Unlicensed rifle-Recovery of- Conviction tbr--Challange to-Violation ot'S. 103 Cr.P.C.--Effect of-From evidence recorded at trial, admittedly neither recovery of rifle from exclusive possession of appellant, nor under his control is proved-Unlest, an accused is given an opportunity to explain circumstances appearing against him in prosecution evidence, same cannot be used against him- Not only this but alleged recovery has been effected in clear violation of rule laid down in S. 103 Cr.P.C, because this provision of law relates to search of place, under which it. is incumbent upon officer or other person about. ,.,t make search to'cail Ujj<Jn two or more respectable inhabitants of locality in which place to be searched is situated-None from locality has been joined as a witness to search of house of appellant but two police officials accompanying complainant party have made them as mashirs- Appea! allowed. [P. 1115] A & B " Mr. A.G. Shaikh, A.A.G. for State. Date of hearing: 12.6.96. udgment Abdul Hameed Dogar, J.--This Criminal Jail appeal is directed against the j dgment dated 11.4.1995 of learned Special Judge (Suppression of Terrorist Activities) Sukkur Division at Khairpur, wherehy appellant Fatho alias Fateh Muhammad was convicted and sentenced under section 13(e) of the Arms Ordinance for three years R.I. and fine of Rs. 5,000/- and in default in payment of fine to suffer further R.I. for six months. The benefit under section 382-B Cr.P.C. was extended to the appellant in computation of his sentence. The facts in brief for prosecution case are that on 5.11.1993 ASI Abdul Ghafoor Sahito of Police Station Wasti Jiwan Shah lodged FIR on behalf of the State under section 13(e) of the Arms Ordinance against appellant stating therein that on spy information he alongwith his lower staff left police station to apprehend dacoit Ghulamoon Chachar and at 9.00 p.m. law enforcing agency and SHO Mirpur Mathelo alongwith their staff also arrived at police station, then all of them left police station and went to village Ahmed Chachar. They noticed the said Ghulamoon Chachar coming out from the otak of appellant Fatho alias Fateh Muhammad, who seeing the police and law enforcing agency siicceeded in escaping away in the nearby forest. Complainant party encircled the whole village and they then entered into otak of appellant where they found six cots with beddings and saw five persons sitting thereon, who were apprehended in presence of mashir H.C. Muhammad Mithal and PC Muhammad Ramzan. On inquiry, they told the complainant party that Ghulamoon Chachar was sitting with them in the otak and on seeing them he slipped away. The apprehended five persons disclosed their names to be Fatho alias Fateh Muhammad (present appellant) Lutuf, Bahadur, Shahmir, Jammo Chachar by caste and from their personal search nothing was recovered. From the search of house of appellant, police recovered G-III rifle from "Chappar" of his house. Appellant could not produce its licence, therefore, he was arrested in presence of abovenamed mashirs and the case under section 13(e) of Arms Ordinance was registered against him. After usual investigation, the appellant was challaned under section 13(e) of the Ordinance in the court of Special Judge, Suppression of Terrorist Activities, Sukkur Division at Khairpur. A formal charge was framed against the appellant under section 13(e) of Arms Ordinance to which he did not plead guilty and claimed to be tried. The prosecution, in order to prove the case, examined ASI Abdul Ghafoor (Investigating Officer) and HC Muhammad Mithal (mashir). In the statement under section 342 Cr.P.C. appellant denied all the allegations of prosecution levelled against him and stated that he is innocent and has been involved due to political rivalry by Asghar Shah, as he voted for Noor Muhammad Lung, the rival candidate of Asghar Shah. However, he did not examine himself on oath, as required under section 340(2) Cr.P.C. but preferred to examine witnesses in defence, namely, ^Allah Bux and Moghul. With the assistance of Mr. Ahdul Ghani Shaikh, Additional Advocate General, we have gone through the entire evidence recorded at trial and in order to appreciate and ascertain the factual position it is essential to discuss the same in the judgment. The chaise was framed against the appellant on 26.1.1994, showing the particulars that on 5th Novemher, 1993 at 7.30 a.m. appellant was found in possession of one G-III rifle without licence from his otak situated in village Ahmad Chachar in contravention of provisions of Arms Ordinance and thereby committed an offence punishable under section 13(e) of Arms Ordinance. Complainant ASI Abdul Ghafoor and H.C. Mithal have deposed before the trial court that they recovered one G-III rifle from the "Chhapar" of house of appellant and they do not remember the number of rifle. In their statements both of them have stated that one .12 bore gun was recovered from "Chhapar" of otak of appellant. They, however, denied that the case has been concocted against the appellant at the instance of Asad Shah and Asghar Shah due to political rivalry with Noor Muhammad Lund, in whose favour appellant voted for in the election. The case of the prosecution brought on record through these two witnesses at the trial is contradicted both by the charge as well as statement of appellant recorded under section 342 Cr.P.C. The question No. 1 in the statement shows that on 5th November 1993 at 7.30 a.m. the appellant was found in possession of one G-III rifle without license from "Chhapar" of his otak and thereby committed an offence under section 13(e) of the Arms Ordinance. There is hardly any doubt that the learned trial court started with the trial by framing charge against the appellant with different accusation. The allegation in the charge as well as statement under section 342 Cr.P.C. was about recovery of one G- III rifle from otak of appellant, whereas the entire case of prosecution comprising of FIR, depositions of PWs Abdul Ghafoor complainant and mashir Muhammad Mithal contains the accusation that the said rifle was secured form the "Chhapar" of house of appellant. This evidence cannot be believed for the reason firstly that the learned trial court has proceeded with the trial without applying mind to the facts of the prosecution case and secondly, the alleged recovery has never been proved to have been made from the exclusive possession of the appellant. Here whatsoever evidence has been collected against the appellant is that complainant party recovered one G-III rifle from the "Chhapar" of the ouse of appellant which is in joint possession alongwith other inmates. Section 13 of Arms Ordinance reads as under:- "13. Penalty for breach of sections 4, 5, 8 to 11.- Subject to the provisions of section 13-A and 13-B whoever commits any of the following offences, namely:- (e) has, in his possession or under his control any arms, ammunition or military stores in contravention of the provisions of section 9." Since a reference to section 9 of Arms Ordinance is made it is necessary to produce said section which is as under:- "9. Unlicensed possession of arms, etc.-No person shall have in his possession or under his control any arms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby." From the evidence recorded at trial, admittedly neither recovery of rifle from exclusive possession of appellant, nor under his control is proved. Unless an accused is given an opportunity to explain the circumstances appearing against him in prosecution evidence, the same cannot be used against him. Not only this but the alleged recovery has been effected in clear violation of the rule laid down in section 103 Cr.P.C. For proper appraisal of evidence, reference be made to section 103 Cr.P.C.: "103. Search to be made in presence of witness.-- Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do." This provision of law relates to the search of place, under which it is incumbent upon the officer or other person about to make search to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated. In the present case none from the locality has been joined as a witness to the search of the house of appellant but two police officials accompanying the complainant party have been made as mashirs. It would not be out of .place to mention here that this section merely requires an honest effort of the officer incharge to secure the presence of two respectable inhabitants of locality, but apparently not even a single attempt is made to this effect. According to the F.I.R. the salaries drawn in the pay bills for the months of 2/95 and 9/95 amounting to Rs. 3915/06 in the name of Muhammad Irfanullah PTC Teacher, Government Primary School, Rahmzad Lapari were not disbursed and they were mis-appropriated by the petitioner, as an Accountant in the office of the S.D.E.O. (Male), Bannu. When the same were claimed by Muhammad Irfanullah PTC Teacher, the petitioner instead of making payment to him arranged the drawal of double salaries in the different! pay bills for the months of 10/95 and 11/95, in the name of Muhammad Irfanullah and sent to different pay centres for disbursement to dodge Muhammad Irfanullah for receiving his missing salaries and thus put to wrongful loss of the misappropriated amount to the Government exchequer. I have heard the learned counsel for the parties and perused the record of the case with their assistance. The petitioner is charged u/Ss. 409/420/468/471 PPC read with section 5(2) of Prevention of Corruption Act. Before registration of the case the petitioner deposited Rs. 1957/53, in the treasury pertaining to the pay of Muhammad Irfanullah PTC Teacher for the month of October, 1995. The evidence consists of official record which has been taken into possession by the raiding party. Thus there is no possibility of its tampering by the petitioner. The offences alleged against the petitioner are not punishable with death or imprisonment for life, and the petitioner being a Government servant is allowed bail in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate. The above are the reasons for the short order of the even date. (K.A.B.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1117 [Multan Bench] Present: zafar pasha chaudhary. J. MAZHAR IQBAL-Petitioner versus STATE-Respondent Crl. Misc. No. 396/B/1997, accepted on 14.5.97. Bail- -S. 497 Cr.P.C.-Offence u/S 10(2)/16 Offence of Zina Enforcement of Hadood Ordinance, VII of 1979-Bail-Grant of-Prayer for-Without expressing any opinion on merits of case and considering facts that abductor named in FIR and his wife were found innocent and prosecution story was found false and there is delay of more than 15 days in lodging F.I.R.--Case of he petitioner becomes that of further inquiry-Bail allowed. [P. 1118] A Syed Murtaza Ali Zaidi, Advocate for Petitioner. Raja Tariq Mehmood, Advocate for State. Date of hearing: 14.5.97. order The petitioner has sought grant of bail in case FIR No. 172/96 dated 16.7.1996 registered at "the instance of Maqbool Hussain wherein it was alleged that when the complainant was away from his house, one Mumtaz developed illicit relations with his wife Mst. Abida. About 15 days prior to the lodging of the FIR, said Mumtaz alongwith his wife Mst. Parveen abducted the complainant's various house-hold goods and valuables were found missing from the house. It is submitted that the petitioner is not named in the FIR; that the petitioner claims to be married with Mst. Abida Rani on 30.6.1996 and the marriage was registered in accordance with Muslim Family Laws Ordinance, that Maqbool complainant also claims himself to be the husband of Mst. Abida Rani and it is yet to be determined as to which of the Nikahnama is proper and genuine. It is also argued that during the investigation the prosecution version was found to be false and the alleged abductors i.e. Mumtaz and his wife Mst. Parveen were declared innocent. In view of these arguments it is submitted that the case against the petitioner has become that of further inquiiy. It is also added that challan has not been submitted so far. The petitioner is confined in judicial lock-up and is not required for the purpose of investigation any fuzther. Learned counsel appearing on behalf of the State has however opposed the prayer for grant of bail. Without expressing any opinion on the merits of the case and considering the facts that the abductors named in the FIR i.e.' Mumtaz and his wife Mst. Parveen were found innocent and the prosecution story was found false and there is delay of more than 15 days in lodging the FIR, the case of the petitioner becomes that of further inquiry. I, therefore, allow this petition and admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the trial court. (K.A.B.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1119 (DB) [Multan Bench] Present: muhammad asif jan and raja muhammad khurhsid, JJ. MUHAMMAD NAWAZ etc.-Petitioners versus STATE-Respondent Crl, Misc. No. 149-M-96 in Crl. Appeal No. 143/96, accepted on 7.10.1996. Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302/34/324-Murder-Offence of-Conviction-Challenge to-Legal heirs of both deceased have for given appellant and absconding accused in name of Allah, and have sworn affidavits to that effect-Resultantly appeal is accepted and appellant and absconding accused are set at liberty-Appeal accepted. [P. 1120] A Mr. Altaf Ibrahim, Advocate for Petitioner. Sh. Muhammad Rahseed, Advocate for Complainant. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 7.10.96. order Muhammad Asif Jan, J.--Muhammad Nawaz Shah petitioner/appellant was convicted under section 302 PPC read with section 34 PPC and sentenced to imprisonment for life alongwith a fine of Rs. 50,000/- and in case of default to further RI for 2 years. He was also ordered to pay Rs. 50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. on two counts, for having caused death of Syed Nau Bahar Shah and Waryam alongwith his brother Riaz Hussain Shah (absconder). Both Muhammad Nawaz Shah petitioner/appellant and absconding accused Riaz Hussain Shah were also convicted under section 324 PPC read with section 34 PPC and sentenced to 7 years RI alongwith a fine of Rs. 10,000/- each and in case of default in payment of fine were ordered to undergo further RI for one year for having caused injuries to Falak Sher and Alamdar Hussain Shah vide judgment/order of Mr. Muhammad Asif Khan, Judge, Suppression of Terrorist Activities Court, Multan Division, Multan, dated 23.4.1996. 2. Syed Nau Bahar Shah left behind the following legal heirs:- (i) Mst. Ghulam Jannat, mother, (ii) Mst. Nadira Bukhari, wife, (iii) Syed Amjad Hussain Shah, son, (iv) Syed Alamdar Hussain Shah, son, (v) Hina Bukhari, daughter, and (vi) Mina Bukhari, daughter, Deceased Waiyam was survived by the following legal heirs ;- (i) Sheran Bibi, wife, (ii) Zafar Abbas, son, (hi) Mst. Sulekhan, daughter, (iv) Sughran Bibi, daughter, and (v) Shamim Bibi, daughter. The above mentioned legal heirs of both the deceased have for given Muhammad Nawaz Shah petitioner/appellant and absconding accused Riaz Hussain Shah in the name of Allah, and have sworn affidavits to that effect which have been placed on record alongwith Identity Cards. The above mentioned legal heirs of both the deceased are also present in court and have reiterated the correctness and genuineness of their affidavits which is also verified by their learned counsel. The above mentioned legal heirs of both the deceased pray that Muhammad Nawaz Shah and his brother co-accused Riaz Hussain Shah (absconding accused) be acquitted. 6. Falak Sher and Alamdar Hussain Shah, the two injured witnesses are also present in court. They have also sworn affidavits, which have been placed on record. Resultantly this petition is accepted and Muhammad Nawaz Shah petitioner/appellant and Riaz Hussain Shah (absconding accused) are set at liberty unless required in any other case. (K.A.B.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1120 [D.I. Khan Bench] Present: malik hamid saeed, J. REHMANULLAH-Petitioner versus STATE etc.-Respondents Crl. B.A. No. 203/1996, accepted on 17.3.97. Bail-- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence U/S 324/34 PPC read with S. 169 Cr.P.C.Further inquiry Case ofWhen an accused of similar role has been discharged by police, obviously it creates doubt to extent of petitioner as well-No doubt opinion of 1.0. is not binding on courts, but such opinion could be given weight in reference to other factors of case--When charge of hire-assicinator against co-accused was not believed by I.O. case of petitioner also falls within ambit further inquiry-Bail granted. [P. 1122] A Mr. Dost Muhammad Khan, Advocate for Petitioner. Mr. Muhammad Khan, Advocate for State. Mr. Ghohar Zaman Kundi, Advocate for plainant. Date of hearing: 17.3.97. judgment Malik Hamid Saeed, J.--After being unsuccessful to get himself released on bail, the petitioner has come up to this Court for the same relief. The prosecution case is that on the eventful day when the complainant alongwith his brother Irshad Khan and relative Asmatullah were on their way home when they saw the accused in the F.I.R. standing near the house of Inayatullah. On the direction of Muhammad Nawaz accused, Rehman and Inayatullah fired due to which he was hit on right leg whereafter they decamped from the spot. Motive was stated to be their enmity with Muzafar Khan. Learned counsel for the petitioners submitted that co-accused attributed similar role has been admitted to bail while another co-accused Inayatullah equally charged has since been released by the police under Section 169 Cr.P.C. by accepting his plea of alibi after examining so many witnesses. He argued that case of all the three accused charged in the report as hire-assicinators have been thoroughly examined by the I.O. and there is only one entry wound on the person of the victim. He urged that one Muzafar Khan equally charged was not made as an accused and the petitioner being behind the bars for more than two years, but even his challan has not been put in Court, despite the orders of this Court dated 5.10.1996. 4. On the other hand, learned counsel for the complainant submitted that three different investigations have been conducted in the case, in first two of which Inayatullah accused was held guilty but in the third one was declared innocent by the C.I.A. police and the petitioners do not derive benefit therefrom. He argued that last investigation of the case malafidely entrusted to the C.I.A. police to get investigation conducted by a man of their choice. The eye witnesses fully support the prosecution version. He opposed the bail due to permanent imputation of an organ of the omplainant, besides that the prohibitory clause is attracted to the case. The learned State counsel adopted the arguments advanced by the complainant's counsel. Arguments on either sides considered minutely and the record reveals that the petitioner and Inayatullah accused were equally charged for effective firing at the complainant. There is only one entrance wound on the victim which could not be attributed to anyone specifically. Besides, coaccused Inayatullah has been released by the police under Section 169 Cr.P.C. and when an accused of similar role has been discharged by the police, obviously it creates doubt to the extent of petitioner as well. No doubt opinion of the I.O. is not binding on the courts, but such opinion could be given weight in reference to other factors of the case. When the charge of hire-assicinator against Inayatullah was not believed by the I.O., the case of the petitioner also falls within the ambit of further inquiry who too was assigned identical role. 7. Resultantly, this application is accepted and the petitioner is directed to be released on bail provided he furnishes bail bond in a sum of Rs. one lac with two sureties each in the like amount to the satisfaction of the trial Court. (K.A.B.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1122 [Multan Bench] Present: MUHAMMAD NASEEM CHAUDHARI, J. MUHAMMAD IQBAL etc.-Petitioners versus STATE-Respondent Crl. Misc. No. 209/1996 in Crl. Appeal No. 103/95, accepted on 26.11.96. Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302/364/34/201-Murder-Offence of-Conviction for-Appeal against- Compromise-All legal heirs are adult persons-All of then have stated before High Court about inception of compromise and have expressed that they have forgiven all convicts in the name of Almighty God-They have no objection if all convicts are acquitted as according to them it would improve their future relations and they shall be able to pass their future life in cordial manner-Appeal accepted. [P. 1123] A Mr. Altaf Ibrhaim Qureshi, Advocate for Appellants. Mr. S.M. Rasheed, Advocate for Complainant. Mirza Fayyaz-ud-Din, Advocate, for State. Date of hearing: 26.11.96. judgment On the basis of the registration of FIR No. 433 dated 11.11.1994 at Police Station Saddar Chichawatni District Sahiwal Muhammad Iqbal, Muhammad Imtiaz, Sarang and Zahoor petitioners-appellants after investigation were challaned who were tried and convicted by the Additional Sessions Judge Chichawatni District Sahiwal and sentenced to 10 years R.I. with a fine of Rs. 5.000/-, or in default in the payment of fine to further undergo for a period of 2 years R.I. under section 364/34 P.P.C. imprisonment for life and compensation of Rs. 25,000/- or in default in the pavment thereof to undergo further 6 months R.I. under section 302/34 P.P.C.. and 2 years R.I. and a fine of Rs. 2,000/- or in default in the payment of fine to undergo further 6 months R.I. under section 201/34 P.P.C. and Zahoor petitioner was also awarded the aforesaid sentences. All the sentences were directed to run concurrently. The petitioners were given the benefit of Section 382-B Cr.P.C. 2. The convicts have filed Criminal Appeal No. 103/1995. The convicts have filed Crl. Misc. No. 209/96 for permission to compromise the matter with the heirs of the deceased Mst. Jannat Bibi. The report has been called for from the Assistant Commissioner Chichawatni District Sahiwal which forms part of his record after its preparation with the help of the Revenue Officer and the co-sharers in the village. According to the report of the Assistant Commissioner Chichawatni Mst. Jannat Bibi deceased left her husband Adil and her sons Mazhar and Zafar as her legal heirs. All the aforesaid three heirs are present in Court who are adult persons. All of them have stated before this Court about the inception of compromise and have expressed that they have forgiven all the aforesaid convicts in the name of Almighty God. They have no objection if all the convicts are acquitted as according to them it would improve their future relations and they shall be able to pass their future life in cordial manner. 3. In view of the aforesaid aspect of the matter the parties have compromise, I accept the aforesaid application and allow them to compromise. Consequently Crl. Appeal No. 103/95 is accepted, the sentences and conviction recorded against the appellants are set aside and they are held entitled to be released forthwith, if not required in any other case. The Robkars shall be issued for the release of the convicts and they shall be released forthwith, if not required in any other case. Both the aforesaid Criminal Miscellaneous No. 209/96 and Criminal Appeal No. 103/95 stand disposed of. (K.A.B.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Quetta) 1139 [DB] Present: javed iqbal and raja fayyaz ahmed, JJ. MAQSOOD-Convict/Appellant versus THE STATE-Respondent Criminal Appeal No. 57 of 1997, decided on 28.5.1997. (i) Suppression of Terrorist Activities (Special Courts) Act, 1975-- -S. 7(2)-Delay in filing appeal-Condonation of-Prayer for-Delay of about three and half year in filing appeal-Reasons given not only imprudent and irrational rather inconsistent too-Held : Negligent conduct, self styled assumption of certain facts or ignorance of law or misapplication of law cannot form valid basis for condonation and delay in filing appeal against conviction. [P. 1143] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- S. 331-Convict cannot be released till he discharges liability of diyyat despite the fact that he has undergone sentenced imprisonment However he can be released on bail subject to furnishing of security for payment of diyyat under section 331(2) PPC. [P.1144]B Mr. Shaukat Rakhshani, Advocate, for the Appellant. Additional Advocate General for the State. Date of hearing: 24.4.1997. judgment Raja Fayyaz Ahmad, J.--This Criminal Appeal has been preferred against the judgment of learned Special Court constituted under the Suppression of Terrorist Activities Act, Balochistae at Quetta dated 24.11.1994 whereby the appellant has been convicted under sections 318/319 PPC (as amended) and sentenced to five years R.I. in addition to the payment of Diyat to the legal heirs of the deceased within a period of six months as notified by the Federal Government. The benefit of section 382-B Cr.P.C. has been extended to the appellant by the learned trial court. 2. The brief facts of the case are that the complainant Babul lodged a report with the Assistant Commissioner, Panjgoor on 21.9.1992 to the effect that his brother Jummal succumbed to the injuries who has been murdered by the appellant on account of enmity and his nephew son of Jummal had also been murdered. The Assistant Commissioner conveyed this information/report to the Naib Tehsildar, Gachak who registered the case under section 302 Qisas and Diyat Ordinance (Criminal Amendment) Ordinance against the appellant on the same day. Consequent upon the completion of the investigation, the appellant was put up for trial by means of challan before the learned Sessions Judge, Mekran Division at Turbat. The appellant was indicted for the commission of the alleged offence under section 302 PPC (as amended) to which he did not plead guilty whereupon the complainant namely Babul was examined as PW-1 before the learned court on 6.3.1993. Since the weapon of offence was attributed to be a kalashinkov recovered during investigation, therefore, the offence being exclusively triable by the court of Special Court (STA), the record and papers of the case were sent to the Special Court Balochistan, Quetta for trial of the offence. The denvo trial commenced before the learned (STA) court at Quetta and the prosecution examined nine witnesses in support of its case and thereupon the appellant was examined by the learned trial court under section 342 Cr.P.C. who also gave his statement on oath in disproof of the charge, and did not produce any defence evidence. 3. The back drop of the incident as per prosecution case is that the deceased and the complainant had gone on a motor cycle to attend a feast at the house of one Mulla Fiaz Muhammad situated at Gachak and on their \vay the appellant tried to fire on a rahbit with his kalashinkov which by mistake hit the deceased) who was shifted to the Hospital, Panjgoor hut succumbed to injuries so sustained by him. The complainant Babul PW-1 proved his report and admitted the fact posed to him that he was not present at the time of incident. P.W. 2 Abdul Sattar proved the fact that the appellant and the deceased attended the feast at the house of Mulla Faiz Muhammad and thereafter were going back on the motor cycle being driven by the deceased while the appellant was seated behind him (the deceased armed with a kalashinkov and the witness was following them on a motor cycle and on the way a rabbit was spotted. The appellant fired at the rabbit and in the meanwhile Murad Bakhsh also reached on the spot and they found the deceased Jummal lying injured. On their inquiry the appellant told them that he missed the target which hit the deceased who was shifted to the hospital. PW-3 Murad Bakhsh supported the version of PW-2 and deposed that the deceased was accidently hit with the bullet fired by the appellant. PW-4 Dil Murad and PW-5 Maula Bakhsh affirmed that upon receipt of information of the incident they reached at the site of the incident to whom the deceased told that he was hit by mistake with the bullet fired at the rabbit by the appellant. PW-7 Naib Tehsildar and the Investigating officer proved the site plan, the recovery memos: prepared by him and deposed about the registration of the FIR by him. PW-8 testified the recoveiy of the kalashinkov from the appellant vide recovery memo: PW-9 Abdul Rehman deposed that he too reached at the place of incident and the deceased told him that he was hit by the bullet fired on rabbit by the appellant. The appellant in his statement under section 342 Cr.P.C. denied the prosecution case and stated that he has been falsely implicated while in his statement on oath the appellant narrated the story as that of the prosecution case except to the extent that he was not armed with kalashinkov; which according to him was with the deceased who stopped the motor cycle while spotting a rabbit in the jungle on their way back after having dinner and rushed after the rabbit who was fired at by the deceased which by mistake hit on the toe of his foot which resulted into bleeding; in the meanwhile two persons reached there out of whom one was compounder who provided first aid and they all took the deceased to the hospital where he expired. The appellant further added that the kalashanikov belonged to the deceased who gave it to one Abdul Rehman. The learned trial court finally by its impugned judgment convicted the appellant under section 31&/319 PPG (as amended) and sentenced him to five years R.I. with the benefit of section 382-B Cr.P.C. plus the imposition of Diyat to be paid by the appellant with in a period of six months to the legal heirs of the deceased. 4. This appeal dated 25.8.1996 has been presented on 24.3.1997 alongwith a Miscellaneous Application No. 60/1997 seeking for condonation of the delay in filing the appeal. The appeal was admitted subject to the point of limitation by this court vide order dated 1.4.1997. The learned counsel for the appellant and the learned Additional Advocate General heard. The learned counsel for the appellant submitted that he does not press the appeal on merits rather seeks favour and indulgence of the court for granting time period to the appellant for payment 'of the Diyat amount in installments to the legal heirs of the deceased, as according to him the appellant has already undergone his imprisonment period. The learned counsel to cover up the delay in preferring appeal from being hit by the prescribed period of limitation of 30 days as provided under section 7(2) of Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) submitted that the appellant is an illiterate person was under the impression that he will be set at liberty upon serving out the sentence period and on account of poor financial conditions he could not prefer the appeal within the prescribed time. The learned Additional Advocate General controverting the contentions put forth on behalf of the appellant submitted that the appeal being time barred hopelessly is liable to dismissal as no cogent reason has been advanced for condonation of the inordinate and exceptional delay. We have considered the respective contentions convassed by the learned counsel for the parties. The reasons given by the learned counsel for the appellant by not filing the appeal within the prescribed period of 30 days are not only impmdent and irrational inconsistent too. The non filing of the appeal due to poor financial conditions; or the sentence of five years imprisonment is no ground to condone the exceptional and inordinate delay of about three and half years. On the other hand it has been submitted by the learned counsel that the appellant was under the impression to be released after serving out the sentence period and thereafter he came to know that he will not be released until the Diyat is paid. The appellant in support of this plea has not given the date of the completion of his undergone sentence nor even has shown as to when he came to know about the alleged afore-stated position. Moreover; the ignorance of law could not be an excuse by itself to condone such a long delay in filing of the appeal against conviction order and both the grounds taken for condotion of the delay are inconsistent as well. The appeal and the application appears to have been typed out on 25.8.1996 as dated which bear the signatures of the appellant's counsel and presented in the office on 24.3.1997. The application is also not supported by any affidavit nor any explanation has been offered by the learned counsel as to why the appeal was presented on 24.3.1997 since the date of its being already complete and typed out, whereas; the copy of the impugned judgment annexed with the appeal was supplied to the appellant on 22.7.1996 on his application dated 17.7,1996 while the appeal presented on 24.3.1997 by the learned counsel. 5. In appropriate cases for substantive and plausible reasons if a convict is precluded to prefer appeal within the prescribed period of limitation, such a delay could be condoned in the interest of justice, however; the negligent conduct, self styled assumption of certain facts or the ignorance of lav: or the misapplication of the law cannot form valid basis for v condonation of delay in filing appeal against Conviction. 6. The learned counsel has next contended that since the appellant has served out his sentence and was not released from jail due to the non payment of Diyat amount to which he is ready to pay in installments provided he be released from the custody. It has been stated in the application seeking for condonation of the delay that the appellant is absolutely not in a position to pay Diyat therefore, the submission of the learned counsel in this behalf appears to be not based on facts rather a half heartedly attempt to get the relief which is not permissible under the law. For convenience section 31 PPC (as amended) is reproduced hereunder:- "31. Payment of diyat.--(I) The diyat may be made payable in lump sum or in installments spread over a period of three years from the date of the final judgment. (2) Where a convict fails to pay diyat or any part thereof within the period specified in sub-section (1), the convict may be kept in Jail and deal with in the same manner as if sentenced to simple imprisonment until the diyat is paid full or may be released on bail if he furnishes security equivalent to the amount of diyat to th# satisfaction of the Court. (3) Where a convict dies before the payment of diyat or any part thereof, it shall be recovered from his estate." Under sub-section (1) of section 31 PPC (as amended) the Diyat amount is payable by a convict in lump sum or in installments spread over a period of three years as may be directed by the court, from the date of final judgment but where an appeal is not preferred, the date of the judgment of the court of original jurisdiction shall be treated to be the final judgment for the purpose of reckoning the period of three years for payment of Diyat amount in instalments if not, paid in lump sum and in other case from the date of the judgment of the court of appeal; however; under sub-section (2) of the above quoted section the trial court is competent to release a convict on bail subject to his furnishing of security equivalent to the amount of Diyat if the convict fails to pay Diyat or any part thereof within the period of three years that may be specified by the court under sub-section (1) of section 331. Provided the convict is not undergoing the awarded imprisonment. The concession of the specified period of three years for payment of Diyat in installments as provided in sub-section (1) has not been granted to the appellant by the learned trial court, therefore, on his failure to pay the Diyat he is to be kept in jail in the manner as if sentenced to simple imprisonment until the Diyat is paid provided he has undergone the sentence of R.I. awarded by the court and thereupon a convict could be released on bail by the court if the furnishes security equivalent to the amount of Diyat to the satisfaction of the court. If a convict who is liable to pay Diyat or any part thereof despite having undergone the period of imprisonment sentenced to, has to remain in jail custody as if sentenced to simple imprisonment till such time he discharges the liability of Diyat, if not earlier released of bail by the court subject to the furnishing of security for the payment of Diyat or any part thereof as the case may be within the meaning of sub-section (2) of section 31 PPC (as amended). The appellant's counsel did not offer to furnish security for the payment of Diyat as provided under the law. In the Miscellaneous Application it has been categorically stated that the appellant absolutely cannot pay the Diyat, therefore, the appellant does not deserve to be released on bail even; neither he could be exempted from the payment of Diyat due to the impugned judgment being in the field. The appellant however, in the interest of justice may if so deemed fit to approach the learned trial court to be released on bail provided he has undergone the period of awarded sentence (imprisonment) and furnishes bail bonds for the due discharge of the liability of Diyat equal to the Diyat amount to the satisfaction of the court. For the foregoing reasons, the appeal being barred by time hopelessly and meritless is dismissed. (A.R.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1144 Present: sajjad ahmad spira, J. SHER ALI-Petitioner versus STATE-Repsondent Crl. Misc. No 5284-B-1996, dismissed on 30.4.1997. Bail- -S. 497 Cr.P.C.--Bail--Grant of-Prayer for-Statutory delay-Ground of- Offence U/Ss. 302/148/149 PPC-Contention that challan against petitioner has been submitted to learned trial court on 28.6.1994 and that trial of petitioner has not concluded till date, therefore, he is entitled to being enlarged on bail in accordance with provisions of third proviso of sub-section (1) of section 497 Cr.P.C.--Petitioner was an "absconder" for a long time and as a result his co-accused was sent up for trial separately and that by the time petitioner surrendered himself to law, record of case was not available to learned trial court to try him as same was being requisitioned by superior courts i.e. High Court and Honourable Supreme Court on different occasions that had led to delay being caused in the conclusion of trial-It has been further taken notice of that petitionerhas not been vigilant enough to engage a counsel for himself or to move a petition for appointment of a counsel on his behalf by learned trial court till 14.1.1996 i.e. on the date defence counsel was appointed on his behalf by learned trial court-Therefore, High Court is of the considered view that under facts and circumstances of case provisions (b) of third proviso of sub-section (1) of section 497 Cr.P.C. cannot be invoked-Petition dismissed. [Pp. 1145 & 1146] A & B Mr. Pervaiz Inayat Malik, Advocate for Petitioner. Mr. R.A Awan, Advocate for Complainant. Sh. Ehsan Ahmed, Advocate for State. Date of hearing: 30.4.1997. order The petitioner through the present petition has sought post-arrest bail in a case registered vide FIR No. 318/89 dated 17.11.1989 under Sections 302/148/149 PPC at Police Station Sharqpur Sharif, Tehsil Ferozewala, District Sheikhupura. 2. The present petition contends for bail on behalf of the petitioner on statutory ground. The learned counsel for the petitioner submitted that the challan against the petitioner has been submitted to the learned trial Court on 28.6.94 and that as the trial of the petitioner has not concluded till date, therefore, he is entitled to being enlarged on bail in accordance with the provisions of third proviso of Sub-section (1) of Section 497 Cr.P.C. Tht said provision is reproduced hereinbelow:- "Provided further that the Court shall, except where it is o opinion that the delay in the trial of the accused has beer occasioned by an act or omission of the accused or any othe: person acting on his behalf or in exercise of any right o: privilege under any law for the time being in force, direc that any person shall be released on bail- (a) ............................................................................... (b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded:" 3. However, it has been taken notice of, as very fairly pointed out by the learned counsel for the petitioner, that the petitioner accused had not engaged a counsel for his defence till 14.1.1996, on which date the learned Trial Court had appointed a counsel to defend him; and the learned counsel has further pointed out that dh the next date of hearing i.e. 25.1.1996 the said defence counsel for the petitioner accused was not available and that, therefore, the case was adjourned to the next date of hearing. 4. Therefore, on being pointed out by the Court, that at best, the time shall start running in favour of the petitioner accused after the said date of hearing i.e. 25.1.1996 and that, as such, even without going into the details whether or not the subsequent adjournments were occasioned because of the conduct of the petitioner accused or any one acting on his behalf, the statutory period of 2 years will expire on 24.1.1998, the learned counsel for the petitioner argued that as copies of statement under Section 161 Cr.P.C. were distributed on 31.10.1995, therefore, the period between the submission of challan i.e. 28.6.1994 and the distribution of the said statement on 31.10.1995 can be counted towards the delay occasioned in the conclusion of the trial and that the benefit thereof should go to the accused petitioner as the said period between the two dates stated above i.e. 28.6.1994 and 31.10.1995 comes to 1 year 4 months and 3 days, and concluded by submitting that since the appointment of the defence counsel by the learned Trial Court on 14.1.1996, another 1 year 3 months and 16 days have expired, therefore, the sum total of the two periods highlighted comes to more than 2 years and, as such, the provisions (b) of third proviso f Subsection (1) of Section 497 Cr.P.C. can be pressed into service on behalf of the petitioner, entitling him to bail in the instant case. 5. The Court has given its anxious consideration to the contentions raised on behalf of the petitioner. In this respect special notice has been taken of the fact that the petitioner had been an "absconder" for a long time and as a result his co-accused was sent up for trial separately and that by the time the petitioner had surrendered himself to the law the record of the case was not available to the learned trial Court to try him as the same was being requisitioned by the superior Courts i.e. High Court and the Honourable Supreme Court on different occasions that had led to the delay being caused in the conclusion of his trial. It has been further taken notice of that the petitioner has not been vigilant enough to engage a counsel for himself or to move a petition for the appointment of a counsel on his behalf by the learned trial Court till 14.1.1996 i.e. on the date a defence counsel was appointed on is behalf by the learned trial Court. Therefore, the Court is of the considered view that under the facts and circumstances highlighted above, the provisions (b) of third proviso of Subsection (1) of Section 497 Cr.P.C. cannot be invoked on his behalf at this stage. 6. Therefore, for the aforestated reasons, the present petition for bail on statutory ground is hereby dismissed. (K.K.F.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1147 Present: RAJA MUHAMMAD KHURSHID, J. GHULAM ABBAS and 3 others-Petitioners versus STATE and another-Respondents Crl. Misc. No. 230-Q-1996, dismissed on 5.6.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 227 read with S. 354 and 354-A, PPC-Charge-Alteration o'f-Challenge toA court may alter or add to any charge at any time before judgment is pronounced-Mere fact that exposure to public or rendering her nude was not mentioned in F.I.R. would not take away discretion of Magistrate to amend charge if evidence comes to that effect before him-Even otherwise. F.I.R. is not an encyclopaedia so as to include each and every detail of incident reported therein-Held : Magistrate had exercised his discretion while remaining within law to amend charge after evidence to that effect had come up before him. [Pp. 1148 & 1149] A, B & C Syed Fayyaz Ahmad Sherazi, Advocate for Petitioners. Syed Fazal Hussain Jaffary, Advocate for A.G. Mr. Ashraf Bokhari, Advocate for Complainant. Date of hearing: 5.6.1997. judgment A case under Sections 37-A(ii) F(i)/354/34 PPC was registered against the petitioners vide FIR No. 241/95 registered at police station Saddar Gujrat for an occurrence which took place on 17.7.95 at about 7.30) p.m. in which Mst. Zarina Asif i.e., respondent No. 2 was assaulted by them and her shirt was shorn off. The case was sent to the Ilaqa Magistrate of trial which came up for hearing before Malik Ghazanfar Ali Awan, MIC, Gujrat who made an order on 24.12.95, whereby, he amended the charge from Section 354 PPC to 354-A, PPC. Feeling aggrieved of the aforesaid order, a revision petition was filed in the Court of Session which was also dismissed vide order dated 22.5.96 passed by Syed Ijaz Hussain Rizvi, learned Addl. Sessions Judge, Gujrat. 2. Feeling aggrieved of the above two orders, the present petition under Section 561-A, Cr.P.C. was moved for their quashment on the ground that the trial amounted to an abuse of process of the Court. In this regard, it was contended that the complainant Mst. Zarina Asif never stated in the FIR that after her shirt was torn, her person was exposed to the public. However, she made an improvement while she was examined during trial as she added in the examination-in-chief that the accused had torn her entire shirt and had stripped her naked in the public. It was, therefore, contended that such improvement should have not presented any justification for the trial Court to amend the charge so as to substitute Section 354-A, PPG for Section 354 PPC which was initially applied in the light of the contents of the FIR. It was, therefore, contended that the order amending the charge and sending up the case to the Court of Session under Section 190(3) Cr.P.C. was clearly an abuse of the process of the Court and as such, the orders passed by the learned trial Magistrate and the Court of Revision were not maintainable in the eyes of law. 3. Learned AAG has opposed this petition on the ground that the Court is competent to amend the charge in view of the provisions contained in Section 227 Cr.P.C. at any time, and that discretion has been rightly exercised by the learned trial Court after taking into account the statement made before him by the complainant as a PW. As such, there is no illegality in the orders passed by the leaned Magistrate or by the learned revisional Court so as to say that there was an abuse of the process of the Court. 4. I have considered the foregoing contentions raised at the Bar. It is clear from the provisions contained in Section 227 Cr.P.C. that any Court may alter or add to any charge at any time before the judgment is pronounced. It, therefore, follows that a discretion is vested in the Court to amend, alter or add to the charge already framed by it. In the instant case, the learned trial Magistrate took into consideration the statement made before him by the complainant as a PW in which she clearly deposed that her shirt was totally torn off by the accused persons and she was exposed in the public after she was made nude. The mere fact that explosure to the public or rendering her nude was not mentioned in the FIR would no take away the discretion of the Magistrate to amend the charge if the evidence comes to that effect before him. Even otherwise, the FIR is not an encyclopaedia so as to include each and every details of the incident reported therein. Any how, the effect of the alleged improvement can only be successfully gone into after recording the entire evidence at the time of its evaluation while deciding the case finally. Any comments on the point in issue at this stage may prejudice the trial Court. It is enough to say that the Magistrate had exercised his discretion while remaining within law to amend the charge after evidence to the effect had come up before him. As he had found after amendment of the charge that the case was triable by a Court of Session, therefore, he had rightly utilized the provision contained in Section 190(3) Cr.P.C. to send to the same to the aforesaid Court. As such, there is no fanciful or indiscriminate use of the judicial discretion by any of the Courts below nor there is any mis-use or abuse of the legal process so as to frustrate the ends of justice. The petitioner for quashment under Section 561-A. Cr.P.C. is, therefore, totally misconceived and the same is dismissed. i K.K.F.' Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1149 Present: RAJA MUHAMMAD KHURSHID, J. NASEER AHMAD and 2 others-Petitioners versus STATE-Respondent Crl. Misc. No. 2022-B/ 1997, partly accepted on 27.5.1997. Bail- -S. 497(2)--Bail--Grant of-Offence U/S. 324/34-Petitioner N and B were not attributed any fire upon victim, although they were deadly armed, as such prima fade question remains open, whether they shared common intention with petitioner Z who had caused an injury on the knee of victimBoth N and B have, therefore, a case of further inquiryBail petition to their extent accepted Petitioner Z has been attributed active role in causing fire-arm injury to victimPetition to his extent is according dismissed-Petition partly accepted. [P. 1150] A &B Ch. M.S. Shad, Advocate for Petitioners. Mr. Muhammad Akram Nasir, Advocate for State. Date of hearing: 27.5.1997. order A case under sections 324/34 PPG in registered against the petitioners vide F.I.R. No. 61/96 dated 27.2.21996 at Police Station Sadar Muridkey, District Sheikhupura, on the ground that all of them while armed with fire-arms, in furtherance of their common intention, committed murderous assault upon Muhammad Azam injured PW. Though Naseer AhmacJ. and Muhammad Bashir were shown to be armed with rifle-222 and 12 bore gun respectively, but none of them made any fire whereas their coaccused Zafar Iqbal while armed with 7 m.m. rifle caused injury to the victim on his right knee. All the three petitioners were held guilty and the Challan against them was sent to the trial Court. After the submission of Challan, re- investigation was made in which D.S.P. Saddar Circle, Muridkey, found all the three petitioners innocent whereas Amanullah another co-accused, who was since been killed in a police encounter, was held guilty to have fired at the victim. 2. Learned counsel for the petitioners has submitted that it has become a case of further inquiiy as there is difference of opinion between the Investigating Officer regarding the culpability of the petitioners; that the fire was attributed only to Zafar Iqbal whereas the remaining two petitioners were not attributed any role; that all of them were arrested in the period between June to August, 1996, and since then they are behind the bars, therefore, they are entitled to bail even on that account. 3. The bail petition is opposed by the learned State counsel on the ground that the petitioners had absconded after the occurrence and if they are admitted to bail, they are likely to abscond again. However, it was conceded that in a subsequent investigation by a D.S.P., all the petitioners were found innocent whereas in the earlier investigation, all of them were found guilty. It was accordingly prayed that since all the three petitioners snared their common intention to commit murderous assault upon the victim, therefore, they were not entitled to bail. 4. I have considered the foregoing submissions and find that Naseer Ahmad and Muhammad Bashir were not attributed any fire upon the victim, although they were deadly armed, as such prima facie the question remains open, whether the shared common intention with Zafar Iqbal who had caused an injury on the knee of the victim. Both of them namely Naseer Ahmad and Muhammad Bashir have, therefore, a case of further inquiry. The bail petition to their extent is accepted and both of them are admitted to bail in the sum of Rs. 30,000/- each with one surety each in the like amount to the satisfaction of trial Court. 5. As far as Zafar Iqbal petitioner is concerned , he has been attributed active role in causing fire-arm injury to the victim, herefore, he has no case for bail at this stage. The petition to his extent is accordingly dismissed. (K.K.F.) Petition partly accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1151 Present: SAJJAD AHMAD SlPRA, J. MUHAMMAD YAQUB-Petitioner versus STATE-Respondent Cii. Misc. No. 1008/B/1997, allowed on 12.6.1997. Bail-- ...S. 497 (2) Cr.P.C.--Bail--Grant of-Offence U/S. 10 of Offence of Zina Enforcement of Hudood) Ordinance, 1979-Petitioner has not been named in F.I.R. but he was alleged to have been seen by two prosecution witnesses, said two witnesses are not named as eye-witnesses of occurrence in F.I.R.-No identification parade has been held--Held: Case for bail of petitioner is made out under provisions of subsection (2) of section 497 Cr.P.C.-Merely because petitioner had been declared proclaimed offender pursuant to registration of case in which he was not named as an accused, shall not be bar to bail being allowed to him, if a case of same is otherwise made outBail allowed. [Pp. 1151 & 1152] A £B Mr. Muhammad Aslam Tahir-ul-Qadri, Advocate for Petitioner. Mr. Bashir Ahmad Baig, Advocate for State. Date of hearing: 12.6.1997. order The present petition contends for post-arrest bail of the petitioner in the case registered vide FIR No. 120/96 dated 1.5.1996 under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Kanganpur, District Kasur. The learned counsel for the petitioner and the State were heard at length in respect of the contentions stated herein. It was confirmed on behalf of the State that the petitioner has not been named in the FIR by the complainant, but that he was alleged to have been seen by two prosecution itnesses subsequently associated with the investigation of the case. It was further clarified that the said two PWs are not named as eye-witnesses of the occurrence in the FIR itself. It was further confirmed on behalf of the State that no identification parade has been held in respect of the petitioner, who is otherwise not named in the FIR, as stated above. Therefore, it is hereby held that for the aforestated reasons the case foi bail of the petitioner is made out under the provisions of subsection (21 of section 497 Cr.P.C". It was further confirmed on behalf of the State that the petitioner is neither a previous convict nor a hardened criminal and that he has been in the judicial custody for almost nine months. Therefore, it is hereby observed that merely because the petitioner had been declared proclaimed offender pursuant to the registration of case in which he was not named as an accused, shall not be bar to the bail being allowed to him, if a case for the same is otherwise made out. 4. For the aforestated reasons, the petitioner is hereby allowed bail in the sum of Rs. 30,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court. (K.K.F.) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1152 Present: hafeez cheema, J. MUHAMMAD HANIF-Petitioner versus MUHAMMAD TARIQ and STATE-Respondents Crl. Misc. No. 1997-B-1995 accepted on 27.5.1997. Bail-Cancellation of- - S. 497(5) Bail-Cancellation of-Bail granted on statutory ground-Offence U/Ss. 302/34-Contetion that learned A.S. Judge, has mis-directed himself in interpreting third proviso to section 497 Cr.P.C. in asmuch as it is continuous detention for over two years which entitles an accused person to the right of bail and not otherwiseRespondent once remained in jail for one year and ten months and then for one year again, as such, he failed to fulfil conditions laid down by law-There is direct allegation against respondent of firing on innocent woman and his shot proved to be fatal-Broken period of detention in jail does not appear to be helpful to him because legislature has clearly intended to taken into consideration an uninterrupted and unbroken period of two years for such a concession-Bail allowed to respondent is recalled-Bail cancelled. [P. 1153 & 1154] A, B&C Syed Zahid Hussain Bokhari, Advocate for Petitioners. Rai Muhammad Hayat Kharal, Advocate for Respondent No. 1. Mr. Tariq Shamim, A.A.G. Punjab for State. Date of hearing: 27.5.1997. order Muhammad Hanif son of Bahaar Ali Bhatti of Kotli Lai, PS Sadar Nankana Sahib, seeks cancellation of bail granted to Muhammad Tariq-respondent No. 1 by learned Additional Sessions Judge vide order dated 12.4.1995, in case FIR No. 47/92 under section 302/34 PPC. 2. The facts of the case, as alleged by the first informant, briefly, are that Mst. Shamim Bibi, daughter of Muhammad Ashiq, the real brother of the complainant, was married to Munir Ahmed son of Ahmed about 6/7 years prior to the occurrence. Munir Ahmed was already married to one Mst. Manzooran in exchange of his two real sisters, Sarwar Bibi and Zubaida Bibi who were wedded to Manzooran's brothers, Aslam and Hamza, 10/15 days prior to the occurrence there arose differences between Mst. Manzooran and her husband Munir Ahmed and Mst. Manzooran left for her parents house in any angry mood. As a retaliatory measure, Mst. Zubaida and Sarwar also left their husbands and came back to their parents. Tariq-respondent No. 1 who was sister's son of Mst. Manzooran, felt incensed and accused Mst. Shamim Bibi that she was instrumental in creating unhappy situation between Mst. Manzooran and her husband, Munir Ahmed and that he would teach her a befitting lesson. At about 6.00 p.m. on 18.2.1992 Tariqrespondent armed with carbine alongwitli other accused appeared in the complainant's house where Mst. Shamim, his wife Mst. Hafeezan and hi nephew , Muhammad Malik, were present. He fired at Mst. Shamim who had been captured by his associates. Mst. Shamim died at the spot on receipt of fire arm injuries. 3. Respondent No. 1 applied for his bail before the learned Addl. Sessions Judge, Nankana Sahib on 15.2.95 on statutory ground with the averments that he was arrested on 29.2.92 and was released on bail on 9.12.93, thus, he remained in jail for one year and ten months. Subsequently, the complainant side moved for cancellation and his bail was cancelled by the High Court vide order dated 22.2.94 (in Crl. Misc. No. 180-CB/94). Again he remained in jail from 22.2.94 to 12.4.95 when he was released on bail by the learned Addl. Sessions Judge, as such, he remained in jail for over two years and 10 months. The learned ASJ granted him bail on statutory' ground. 4. It is contended by learned counsel for the petitioner that the learned Addl. Sessions Judge, has mis-directed himself in interpreting the third proviso to section 497 Cr.P.C. inasmuch as it is the continuous detention for over two years which entitles an accused person to the right of bail and not otherwise. In this case the respondent once remained in jail for one year and ten months and then for one year again, as such, he failed to fulfil the condition laid down by law. Thus the learned Judge while granting him bail on statutory ground, has obviously travelled beyond the limits of law. Learned counsel emphatically argued that, phraseology of the third proviso makes it amply clear that it was the Continuous and Un-interrupted period of two years which clothed the accused with the right to be released on statutory ground and not otherwise, particularly in a case of this nature when death is attributed to him. According to him, the learned Addl. Sessions Judge should have been more careful in applying the law in its true perspective particularly when the High Court had once cancelled his bail. 5. It is, however, pointed out by learned counsel for the respondent that the law has provided the concession of bail on statutory ground to an accused whose trial is not concluded within the given period' and this rovision of law should be construed liberally. 6. Learned AAG argued that there have been two different views expressed by the authorities depending on facts of each case. On view is that it should be construed strictly and if the accused has not been in jail for continuous period of two years, then, he is not entitled to this concession, of course, this is to be seen with particular reference to the circumstances of each case. The other view is that if the commulative detention is more than two years, bail ought to he allowed. 7. Arguments have been heard and record perused. In this case there is direct allegation against respondent No. 1 of firing at Mst. Shamim Bibi and his shot proved to be fatal. The broken period of his detention in jail does not appear to be helpful to him because the legislature has clearly intended to take into consideration an uninterrupted and unbroken period of two years for such a concession. Authorities can, indeed, be cited on both sides. The third proviso to section 497 Cr.P.C. has been interpreted strictly as well as liberally. Reference in this behalf can be made to 1968 P.Cr.L.J. 1311, 1968 SCMR 683, 1976 SCMR 413, PLD 1977 Lahore 679, PLD 1977 SC 434, 1980 P.Cr.L.J. 323, 1983 SCMR 72, 1984 P.Cr.L.J. 1301, and 1985 P.Cr.L.J. 2190. 8. In this case , 5 to my mind, liberal construction will fail to advance the cause of justice. The correct interpretation that fosters justice shall have to be made while keeping in view the peculiar circumstances of each case. Respondent No. 1 was the sole accused whose straight fire was alleged to be the cause of death of an innocent woman. Consequently, this petition is accepted and the bail allowed to respondent No. I vide the impugned order is hereby recalled. The trial court, however, shall dispose of the matter within two months positively under intimation to D.R( J) of this Court. (K.K.F.) Bail cancelled.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1154 Preset: raja muhammad khurshid, J. muhammad' ahmad etc.-Appeiiants versus STATE-Respondent Crl. Appeal No. 498 of 1994, accepted on 4.6.1997. Prevention of Corruption Act, 1947 (II of 1947)-- -S. 5(2) read with section 34 of PPC-Illegal gratification-Case of-Mere fact Rs. l.OOO/- each was recovered from appellants would in no way them with occtirt ence because identity of aforesaid currency could not be established that it was the same money which was received by them from complainant-A suspicion about guilt of a person, howsoever strong cannot be substituted for a proof which is required to be brought on record to establish an offence against offender which undoubtedly is duty of prosecution to establish beyond any reasonable doubtAppeal accepted. [P. 1156] A Mr. Muhammad. Azam Bhour, Advocate for Appellants. Mr. Muhammad Zahid Farani, A.A.G. for State. Date of hearing: 4.6.1997. judgment The appellants were convicted under section 5(2) of the Prevention of Corruption Act, 1947, read with section 34 PPC and sentenced to undergo two years' R.I. each and also to pay a fine of Rs. 10,000/- each or in default to undergo further R.I. for six months each by Malik Muhammad Afzal, Special Judge, Anti-Corruption, Gujranwala, vide his judgment dated 22.9.1994. 2. The brief facts leading to the conviction of the appellants are that the complainant Imtiaz Baig (PW-1) alongwith a friend Muhammad Sarwar PW-4) was ravelling from Lahore to Rawalpindi for payjng homage to Imam Bari. The complainant was also accompanied by his wife, sister-in-law and a child. At about 1.00 a.m. they stopped at Chowk Gondlanwala near GTS stand, Gujranwala in order to take light refreshments. In the meantime, a police mobile occupied by a driver, two constables and a man without uniform claiming to be an A.S.I, stopped in front of their car. The man without uniform asked the complainant that he was drunk and that the women present in the car were strangers to him and demanded Nikak-Aeed from them. They were taken to the Model Town Police Station. After parking the vehicle outside the aforesaid Police Station, the A.S.I, demanded illegal gratification of Rs. 40,000/-, but when he was told that they did not have that much money, the police searched the person of the complainant and found Rs. 5,100/-, out of which they retained Rs. 5,000/- as an illegal gratification whereas Rs. 100/- were returned to them. 3. The occurrence was reported by the complainant to the Police Station Kotwali, Gujranwala. A departmental inquiry was held by Ch. Muhammad Yousaf Bajwa (PW-6), the ten S.P., C.I.A. Gujranwala, who found that the appellants were present in the aforesaid police mobile and had committed the occurrence. However, the forth person who claimed to be an A.S.I., could not be traced. The aforesaid Superintendent of Police appeared at the trial as PW-6 to depose that the Inquiry Report Ex. PK was correct and was signed by him. The present case was accordingly registered after the aforesaid inquiry against the appellants, who also led to the recovery of Rs. LOGO/- each, the amount which they had alleged received from the complainant out of Rs. 5,100/- aforesaid. Likewise, the statement of Shaukat AH H.C. (PW-7) was also recorded to show that the appellants were involved in the occurrence as, according to the police record, they were on patrol-duty in the police mobile. 4. In addition to the aforesaid circumstantial evidence, the starwitnesses i.e. the complainant Imtiaz Beg and Muhammad Sarwar were examined as PW-1 and PW-4 respectively. Both of them did not support the prosecution case by stating that the appellants were not the persons who were present in the police mobile nor their identification was established through any identification-parade. It is, thus, clear that both the starwitnesses including the complainant had exonerated all the three appellants/accused having not been able to identify them to be the same persons who were occupying the police mobile. They were cross-examined by the Police Prosecutor but without any tangible effect. The mere fact that Rs. 1,000/- each was recovered from the appellants would in no way link them with the occurrence because the identify of the aforesaid currency could not be established that it was the same money which was received by them from the complainant. Though, the departmental inquiry was held but the main culprit i.e. A.S.I., who had played the main role according to the F.I.R. by harassing the complainant and also negotiating for the bribe, was never apprehended nor brought to book by the Investigating Agency. As such, the case remains highly doubtful against the appellants particularly when the occurrence reportedly took place at Chowk Gondlanwala; whereas the police mobile was deputed for patrol-duty in the area of Chand Da Qila Sahdoki, which are two different places. A suspicion about the guilt of a person however strong cannot be substituted for a proof which is required to be brought on record to established an offence against the offender which undoubtedly is the duty of the prosecution to establish beyond any reasonable doubt. In this case, the prosecution has failed to discharge its duty to prove the case against the appellants beyond any shadow of doubt. Hence the appeal is accepted. The convictions and sentences passed upon the appellants are set aside and they are acquitted after giving them the benefit of doubt. They are on bails and shall stand discharged of the bail bonds. 5. Since the currency-Notes of Rs. 3,000/- have not been claimed by any of the appellants, therefore, those shall stand confiscated to the State. The fine, if recovered from the appellants in pursuance of the impugned judgment, would be refunded to them. (K.K.F.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1157 Present: sh. LuTFUR-REHMAN, J. MUHAMMAD SHARIF-Appellant versus STATE-Respondent Criminal Appeal No. 715 of 1980, accepted on 8.7.1997. Prevention of Corruption Act, 1947 (II of 1947)-- S. 5<2)--CorruptionCase ofJurisdictionQuestion ofCotnention that Mr. A. was incompetent to hold the office of special Judge, Anti- Corruption, and therefore, he had no jurisdiction to try appellant's case- Learned counsel for state did not dispute this contention and very frankly admitted that learned trial Judge was not competent to hold office in view of judicial verdict of Lahore High Court (1984 P.Cr. L.J. 1107)-Held : Case of appellant was tired by special Judge who was incompetent to hold officeHence, trial of appellant was without jurisdiction and as such null and void-Appeal accepted. [Pp. 1157 & 1158] A to C Hussain Chaudhry, Advocate for Appellant. Mr. S.D. Qureshi, Advocate for State. Date of hearing : 8.7.1997. judgment Muhammad Sharif (appellant-accused) while posted as Patwari Halqa Kot Pindi Das, Tehsil Ferozewala, District Gujranwala, by abusing his official position, purchased agricultural land measuring 229 kanals 18 malras of the value of Rs. 31,000/- in village Jandrata in the name of his wife Mst. Anis Akhtar. He also installed a tubewell. His assets were allegedly disproportionate to his known sources of income. This transpired during investigation conducted on the basis of a complaint (Exh. P.W. 2/1) made by Muhammad Hayat regarding purchase of 22 acres of land for a sum of Rs. 25,0007- by the said accused in the name of his wife Mst. Amin Akhtar without sanction/permission of the competent authority. After the conclusion of the trial, Mr. M. Anwar Shariq, the then Senior Special Judge, Anti-Corruption, Punjab, Lahore, vide judgement dated 26.6.1980 convicted Muhammad Sharif appellant-accused under section 5(2)47 PCA and sentenced him to 3 years' R.I. and ordered forfeiture of the said land to the Provincial Government. The learned counsel for the appellant at the very out-set referred to the case of Mahmoodul Hassan versus The State (1984 P.Cr. L.J. 1107) and submitted that Mr. M. Anwar Shariq was incompetent to hold the office of Special Judge, Anti-Corruption, and, therefore, he had no jurisdiction to try the appellant's case. In this regard para 1 of the said judgment is most relevant, which is reproduced as under :- "The upshot of the above discussion is that Mr. Muhammad Anwar Shariq, Special Judge, Punjab, having previously been prematurely retired for a cause under para 3 of the Removal from Service (Special Provisions) Regulation, 114 of 1972, the said premature retirement.amounted to removal from service effected at the instance of the Government, as contemplated in section 3(2)(b), and despite the fact that he was reinstated later, the veiy event, of his having been removed earlier disentitled him to be appointed as a Special Judge thereafter. The said Special Judge was, therefore, incompetent to hold the office and he had, therefore, no jurisdiction to try the appellant's case". 4. The learned counsel for the State did not dispute this contention and very frankly admitted that the learned trial Judge was not competent to hold the office in view of the Judicial verdict of the Lahore High Court. 5. Respectfully following the reasons and the findings given in the case of Mahmoodul Hassan, I hold that the case of the appellant was tried by the Special Judge who was incompetent to hold the office. Hence, the trial of the appellant was without jurisdiction and as such null and void. 6. In view of the above, this appeal is accepted and the conviction and sentence of Muhammad Sharif appellant is set aside. 7. In the peculiar circumstances of the case, I do not feel that a retrial is desirable. The appellant had allegedly purchased land worth Rs. 31,000/- only. The case was registered on 3.2.1997 and thus the appellant has suffered the agony of the trial and thereafter constant pressure of he pendency of the appeal for over 21 years. The retrial would be unfair. The appellant is on bail. The bail bond is discharged. (A.P.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C ( Lahore ) 1158 Present: muhammad asif jan, J. JAFFAR MAHMAND etc.-Petitioners versus STATE-Respondent Criminal Misc. No. 373-B/1997, accepted on 13-6-1997. Bail- -S. 497/498 Cr.P.C. read with Ss. 409/420/468/471 PPC S. 5(2)/47 PCA and Ss. 24, 5, 27 and 30 of Oil and Gas Development Corporation Ordinance 1961 (XXVII of 1961)--Awarding of Contract at exhorbitant prices and causing of loss of U.S. 128 Millions to national ex-chequer- Offence of--Bail applications againstOil and GAs Corporation is a legal person-Its management lies with Board of Directors which is under total Control of Central Government and may be replaced by said Government at its pleasure-It has its own regulations-Although its employees are not public servant yet by means of section 27 of Ordinance 1961, they are deemed to be public servantsOut of all petitioners none was a Member of Board of Directors-Court has to see and satisfy itself whether reasonable grounds" at least, prima facie exist for believing that ann accused has been guilty of an offence punishable with death or imprisonment for life-In order to do so, Court is bound to make a tentative assessment of case of prosecution^-If such reasonable grounds do not exist than grant of bail is rule and refusal is an exception- Documents produced by prosecution clearly indicate that decision making in matter of awarding contract was done at highest level is Prime Minister and Minister for Petroleum and Natural Resources and that petitioners did not figure any where-Presence of petitioners is not longer required by investigating agency and there is no possibility of their tampering with record if they are enlarged on bail-There was no entrustment of property in the present case as far as petitioners are concerned-Bail granted. [Pp. 1163, 1166, 1167 & 1168] A to J, N PLD 1968 SC 349, PLD 1968 SC 310, PLD 1978 SC 256 and PLD 1995 SC 34 ref. (ii) Bail- Ss. 497 & 498 Cr.P.C, read with S. 409 PPC-Criminal breach of trust- Offence of-Application for bail Against-In order to prove an offence under Section 409 PPC, it is necessary to prove that (i), that accused is a public servant, or a banker, merchant or agent, (ii) he had been entrusted with property or with dominion over property in that capacity and that (iii) he dishonestly misappropriated or converted to his own use that property or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged-There was no entrustment of property to petitioner in present case-Held : Addition of section 409 PPC snaks of malafide in order to bring the case of petitioners within prohibition contained in sub section (1) of section 497 Cr. P.C.-Bail granted. [P. 1168] K to M. Barrister Bacha Khan, with Malik Rab Nawaz Noon, Advocate Sardar Muhammad Ishaque Khan, Advocate, Hafiz S.A. Rehman, Advocate for Petitioners. Mr. Sher Zaman Khan D.A. General with Mr. Junaid Sultan Khan Asstt. Director FIA, Naseer Ahmad Asstt. Director Legal FIA, Ahmad Nawaz, Inspector, for State. Date of hearing : 13-6-1997. Ordinance 1961 (XXVII of 1961)--Awarding of Contract at exhorbitant prices and causing of loss of U.S. 128 Millions to national ex-chequer- Offence of--Bail applications against-Oil and Go's Corporation is a legal personIts management lies with Board of Directors which is under total Control of Central Government and may be replaced by said Government at its pleasure-It has its own regulations-Although its employees are not public servant yet by means of section 27 of Ordinance 1961, they are deemed to be public servants-Out of all petitioners none was a Member of Board of Directors-Court has to see and satisfy itself whether reasonable grounds" at least, prima facie exist for believing that ann accused has been guilty of an offence punishable with death or imprisonment for life-In order to do so, Court is bound to make a tentative assessment of case of prosecxition^-If such reasonable grounds do not exist than grant of bail is rule and refusal is an exception- Documents produced by prosecution clearly indicate that decision making in matter of awarding contract was done at highest level is Prime Minister and Minister for Petroleum and Natural Resources and that petitioners did not figure any where-Presence of petitioners is not longer required by investigating agency and there is no possibility of their tampering with record if they are enlarged on bail-There was no entrustment of property in the present case as far as petitioners are concerned-Bail granted. [Pp. 1163, 1166, 1167 & 1168] A to J, N PLD 1968 SC 349, PLD 1968 SC 310, PLD 1978 SC 256 and PLD 1995 SC 34 ref . (ii) Bail-- Ss. 497 & 498 Cr.P.C. read with S. 409 PPC-Criminal breach of trust- Offence ofApplication for bail AgainstIn order to prove an offence under Section 409 PPG, it is necessary to prove that (i), that accused is a public servant, or a banker, merchant or agent, (ii) he had been entrusted with property or with dominion over property in that capacity and that (iii) he dishonestly misappropriated or converted to his own use that property or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged-There was no entrustment of property to petitioner in present case-Held : Addition of section 409 PPC snaks of malafide. In order to bring the case of petitioners within prohibition contained in sub section (1) of section 497 Cr. P.C.-Bail granted. [P. 1168] K to M. Barrister Bacha Khan, with Malik Rab Nawaz Noon, Advocate Sardar Muhammad Ishaque Khan, Advocate, Hafiz S.A. Rehman, Advocate for Petitioners. Mr. Sher Zaman Khan D.A. General with Mr. Junaid Sultan Khan Asstt. Director FIA, Naseer Ahmad Asstt. Director Legal FIA, Ahmad Nawaz, Inspector, for State. Date of hearing : 13-6-1997. judgment This order will decide Criminal Misc. No. 373-B/1997, Criminal Misc. No. 374-B/1997 and Criminal Misc. No. 375-B/1997, entitled Jaffar Mehmand v. The State ; Criminal Misc. No. 381-B/1997, Criminal Misc. No. 382-B/1997 and Criminal Misc. No. 383-3/1997, entitled Najam-ul- Hassan Naqvi v. The State; Criminal Misc. No. 388-B/1997, Criminal Misc. No. 389-B/1997, and Criminal Misc. No. 390-B/1997, entitled Raheel Jalal Qureshi v. The State and Criminal Misc. No. 407-B/1997, entitled Muhammad Khalid Subhani and Nazir Ahmad Jadoon v. The State. Jaffar Mehmand, aged about 55 years, (Petitioner in Crl. M. Nos. 373-B/97, 373-B/97 and 375-B/97), was employed as an Executive Director by the Oil and Gas Development Corporation, a Statutory Corporation sit up under the Oil and Gas Development Corporation Ordinance of 1961, (Ordinance No. XXXVII of 1961). The petitioner was arrested on the 6th of January, 1997, alongwith other petitioners and also some others in pursuance of three cases registered against them vide FIR No. 2/97, dated the 5th January, 1997, under Sections 409/420/468/471 of the Pakistan Penal Code read with Section 5 subsection (2) of the Prevention of Corruption Act of 1947, at Police Station FIA/SBC/Rawalpindi. The second case registered against Jaffar Mehmand petitioner alognwith Raheel Jalal Qureshi and Najam-ul-Hassan Naqvi petitioners is vide FIR No. 3/97, dated the 5th of January, 1997, under sections 409/420/468/471 P.P.C. read with Section 5 sub-section 2 of the Prevention of Corruption Act, 1947 at Police Station FIA/SBC/Rawalpindi. The third case registered against Jaffar Mehmand petitioner alongwith Raheel Jalal Qureshi, Najam-ul-Hassan Naqvi, Muhammad Khalid Subhani and Nazir Ahmad Khan Jadoon, petitioners is vide FIR No. 4/97, dated the 5th of January, 1997, under Sections 409/420/468/471 P.P.C. read with Section 5 sub-section (2) of the Prevention of Corruption Act 1947, at Police Station FIA/SBC/Rawalpindi. 2. The case of the prosecution according to the FIR No. 2/97 is to the effect that during an inquiry conducted by the Federal Investigation Agency, Headquarter Islamabad, regarding Surface Production Facilities and H 2 s plant, it was found that a Gas Sales agreement was executed between Uch Power Ltd. and the Oil and Gas Development Corporation on the 4th of August, 1994, whereby, the Corporation udnertook to supply before the 1st March, 1997, certain amount of law BTU Gas from its Uch field to Uch Power Limited, situated at Dera Murad Jamali. Under this agreement, time, was the essence of the contract because is case of failure tosupply the said Gas within the stipulated period heavy penalties would be entailed by the Corporation. It is alleged in FIR No. 2/97, That Riffat Askari, the then Chairman of the Oil and Gas Development Corporation, who, I am told by the learned Deputy Attorney General for Pakistan, died while in custody alongwith the petitioners and also some others caused a loss by awarding the contract at exhorbitent prices to the tune of US $ 92 millions in favour of M/s Gregory and Cook and American Company whereas according to the prosecution the most reasonable estimated cost was US $ 38 millions. Thus, according to the prosecution a loss of US $ 54 millions was caused to the Oil and Gas Development Corporation. It is further alleged that Riffat Askari deceased the former Chairman of the Oil and Gas Development Corporation in connivance with others also approved acceptance of M/s Gregory and Cook for H 2 S removal plant in the sum US $ 25 millions, although this item was not included in the tender documents and M/s. Gregory and Cook alone had made an unsolicited additional offer on this account. It is finally asserted that the accused officers mis-used their official powers and provide pecuniary advantage to the Firm and, therefore, caused substantial loss to the national exchequer. 3. At this stage, it is pertinent to mention the exact positions occupied by the various petitioners in the Oil and Gas Development Corporation. Mr. Jaffar Mehmand, petitioner, was employed as an Executive Director. He is not a specialist but a generalist. Mr. Najam-ul-Hassan Naqvi petitioner in Crl. Misc. Nos. 381, 382 and 383-B of 1997) is a Geologist by profession and was employed as Project co-ordinator. Mr. Raheel Jalal Qureshi, (petitioner in Cr. M. Nos. 388, 389 and 390-B/1997) was employed as Manager Petroleum Engineering. Mr. Muhammad Khalid Subhani (petitioner is Cr. M. No. 407-B.97) was the Acting Manager (Processing), and the second petitioner namely Nazir Ahmad Khan Jadoon (petitioner in Crl. Misc. No. 407-B/97) was the Incharge of Local Procurement. 4. The second case registered vide FIR No. 3/97 relates to the setting up of Surface Production Facilities, Dehydration Plant and Gas Transport Pipelines fr6m the Uch field to the Uch Power Project, wherein, the following persons are named as accused :- (i). Riffat Askari, Former Chairman, OGDC, (ii) Jaffar Mehmand, Former Executive Director (P&S) OGDC. (iii) Ain-ud-Din Siddiqui, Former Finance Director, OGDC. (iv) Khalid Rahim GM Production OGDC. (v) Raheel Qureshi, Acting Manager (Pet. Engg.) OGDC. (vi) Najam-ul-Hassan Naqvi, Former Manager Uch Plant, (vii) M/s. Clough Engineering and others. M/s. Clought Engineering, I am informed by the learned Deputy Attorney General for Pakistan , is a concern incorporated in Australia . In this second case, registered vide FIR No. 3/97, it is alleged that the work, was awarded to M/s. Clough Engineering by accepting their bid in the sum of US $ 64 millions at excessively exhorbitent prices and a loss of US « 35 millions was caused to the national exchequer by the accused by abusing their official powers to the pecuniary advantage to the Firm. 5. The third case registered vide FIR No. 4/97, relates to the award of contract to M/s. Petrosin of Singapore and again all the petitioners are mentioned as accused persons alongewith M/s. Petrosin which I am told by the learned Deputy Attorney General for Pakistan is a concern incorporated in Singapore. According to the prosecution, the award of contract to the said M/s. Petrosin ( Singapore ) resulted in the loss of US $ 50 millions. According to the learned Deputy Attorney General for Pakistan , the total loss comes to US $ 128 Millions, while according to the learned counsel for the petitioners, the total loss allegedly worked out to US $ 106 millions. Before making an indepth examination of the allegations against the petitioners in order to find out whether reasonable grounds to believe that the petitioners are guilty of the offences allegedly committed by them, it is essential to examine the leal status of the Oil and Gas Development Corporation and its employees. The Oil and Gas Development Corporation was set up under the Oil and Gas Development Corporation Ordinance of 1961., (Ordinance XXXVII of 1961). Section 3 of the Ordinance provides that : - 3. Establishment: and incorporation : (1) As soon as may be after the commencement of this Ordinance, the Central Government shall establish a corporation to be called the Oil and Gas Development Corporation. (2) The Corporation shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Ordinance, to acquire, hold and dispose of property, both movable and immovable, and shall by the said name sue and be sued. Section 4 of the Ordinance provides that : - 4. Management :- The general direction and superinten dence of the affairs and business of the Corporation shall vest in a Board of Directors which, with the assistance of a General Manager, may exercise all powers and do all acts and thins which may be exercised or done by the Corporation. The Board shall act and commercial considerations having due regard to public interest generally. In discharging its functions, the Board shall be guided by such instructions on questions of policy as may be given to it from time to time by the Central Government which shall be the sold judge as to whether any instructions are on a question of policy or not. (4) If the Board fails to carry out any instructions given to it under subsection (3), the Central Government may supersede the Board and appoint any person or body to function in its pale until a new Board is constituted in accordance with the provisions of this Ordinance, and no such supersession or appointment shall be called in question in any Court. A bare reading of Sections 3 and 4 of the Ordinance clearly reveals that the Corporation is a legal person having its own independent legal existence and its management lies with the Board of Directors which in its own turn is under the total control of the Central government and may be replaced by the Central Government, at its pleasure and such supersession or appointment shall not be called in question in any Court. 8. Section 5 of the Ordinance provides that : - 5. Board of Directors : (I) The Board of Directors of the Corporation shall consist, of not less than three and not more than five Directors, one of whom shall be a representative of the Minister of Finance. (2) The Directors shall be appointed by the Central Government, and shall hold office during the pleasure of the Central Government. 8. Section 30 of the Ordinance empowers the Corporation with the approval in writing of the Central Government to make regulations providing for such mattes as are not provided for and for carrying out the purposes of the Ordinance and finally Section 31 of the Ordinance empowers the Central Government by notification in the official gazette to dissolve the Corporation as may be specified by the Central Government. Thus, the Corporation is a person brought into existence by the Central Government and its existence can be brought to an end at any time by the Central Government. 9. The Corporation has its own regulations made by itself and known as the Oil and Gas Development Corporation Employees (service ) Regulations of 1994. 10. Although the employees of the Corporation are not public servants stricto senso yet by means of a deeming clause contained in Section 27 of the Ordinance, they are deemed to be the public servants. Out of all the petitioners none was a Member of the Board of Directors. Mr. Jaffar Mehmand who was the Executive Director and whose duty it was to implement and execute the decisions taken by the Board of Directors which in its own turn is controlled by the Central Government. None of the petitioners including Mr. Jaffar Mehmand was a Member of the Board of Directors which consisted of the Chairman of the Board, the Director Finance, the Director Petroleum and Gas and Joint Secretary of the Ministry of Finance of the Government of the Pakistan. 11. Haji Rabnawaz Noon, Advocate, learned counsel for Jaffar Mehmand petitioner submitted that the petitioner was from the Secretariat Service of Pakistan and not a technical hand; that he was an executive Director; his job was to execute the decisions taken by the Board; that a gallop tender was called by a Committee of Experts set up by the Board; that the tenders were opened in the presence of the bidders; that the Job of the Committee was to see if the tenders was technically responsive and to accept the lowest tender; that the technical Members of the Committee certified that both these requirements had been complied with; that a unanimous recommendation was prepared by the Committee and submitted to the competent authority which was the Board of Directors consisting of the Chairman, the Director Finance, the Director Petroleum and Gas and a joint Secretary Ministry of Finance, Government of the Pakistan; that the recommendations were accepted by the Board and the then Secretary, Ministry of Gas and Petroleum, Government of Pakistan and finally that Mr. Jaffar Mehmand petitioner did not make any disbursement. Therefore, there was no entrustment of the property to Jaffar Mehmand petitioner and, thus, on the prosecution's own showing, the ingredients of Section 409 of the Pakistan Penal Code were not attracted, while the other offences allegedly committed by the petitioner did not fall within the prohibition contained in sub-section 1 of Section 497 Cr.P.C. Therefore, the petitioner was entitled to be released on bail. 12. Learned counsel relied upon the case Muhammad Sarfraz v. The State (1976 S.C.M.R. 178), and the case of Saeed Ahmad v. The State reported in 1995 Supreme Court Monthly Review 170. The contention of the learned counsel for the petitioner is that Section 409 PPG has been added with the malafide intention to bring the case of the petitioner within the prohibition contained in sub-section 1 of Section 497 Cr.P.C. and that the case of the prosecution depended entirely upon documentary evidence which was in possession of the prosecution and there was no possibility of tempering with such evidence, therefore, the petitioner was entitled to be released on bail, as was done by the Supreme Court of Pakistan in the case of Saeed Ahmad. 13. Barrister Bacha Khan, submitted that the contract in question was executed on the 4th of July 1995 in pursuance of the recommendation made by the Committee on the 21st of June 1995 with the approval of the competent authority i.e . the Ministry concerned and that Mr. Jaffar Mehmand petitioner was not involved in this entire process and, is therefore , entitled to be released on bail. He places reliance upon he case of Khalid Javed Gillan v. The State (PLD 1978 S.C. 256) and the case of Muhammad Aslam and others v. The State (PLD 1967 S.C. 539). 14. Sardar Muhammad Ishaqe Khan, Advocate, learned counsel for Najam-ul-Hassan Naqvi (petitioner in Cr. M. Nos. 381, 382 and 383-B of 1997) and Raheel Jalal Qureshi (petitioner in Cr. M. Nos. 388, 389 and 390- B of 1997) submitted that the petitioner was a geologist by profession and employed an a Project Co-Ordinator; that the petitioner was not a party to the Gas Sales Agreement which was executed on the 4th of August 1994; that there were direct instructions from the then Prime Minister of Pakistan for a gallop tender because in case of default about US $ 6,75,000/- were to be paid as penalty per day; that the contract was awarded to the lowest bidder in accordance with law; that the proposals of the Committee were only advisory and not binding upon the competent authority; that although the case were registered on the 5th of January 1997, till todate, no challan complete or incomplete has been submitted in Court which was in violation of Section 173 Cr. P.C. and, finally that reasonable ground to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not exist and the case against the petitioners may be a matter of further inquiry within the meaning of sub section (1) of Section 497; Cr.P.C. which would entitled to petitioners to the grant of bail. Learned counsel lastly submitted that the amount involved was o consideration for the grant of refusal of bail and placed reliance upon the following cases :-- 1. IjazAkhtar v. The State (1978 S.C.M.R. 64) Abdul Hayee-ud-Zafar v. The State (NLR 1983 Criminal 189). 2. Khurshid Ahmad v. The State (NLR 1978 Criminal 845). Hafiz S.A. Rehman, Advocate, learned counsel for Muhammad Khalid Subhani and Nazir Ahmad Khan Jadoon (petitioners in Cr. M. No. 407-B of 1997) submitted that Muhammad Khalid Subhani was an Acting Manager (Processing) in the Corporation while Nazir Ahmad Khan Jadoon was Incharge of local procurement; that they are not even named in the FIR; that they are not civil servants stricto senso that employees of the Corporation which has its own service regulations and, therefore, do not fall within the mischief of Section 409 of the Pakistan Penal Code. Mr. Sher Zaman Khan, learned Deputy Attorney General for Pakistan stated at the bar that the investigation as far as the present petitioners were concerned is compete, thus, on the prosecution's own showing, the petitioners are no longer required for the purpose of investigation . 17. Learned Deputy Attorney General stated that the petitioners had committed "lapses" in connivance with the former Chairman late Mr. Riffat Askari, who, according to the learned Deputy Attorney General was the "main actor". The exact argument of the learned Deputy Attorney General was that the late Mr. Riffat Askari was the approving authority and the petitioners acted in conspiracy with the said Mr. Riffat Askari. When asked to show reasonable grounds for believing the alleged conspiracy the learned Deputy Attorney General repeated the contents of the three First Information Reports. 19. The words "reasonable grounds" appearing in sub-section (1) of Section 497 Cr.P.C. are words of higher import than mere allegation or suspicion as held by the Supreme Court of Pakistan in the case of Ch. Muhammad Abdul Malik v. The State (PLD 1968 S.C. 349). The Court has to see and satisfy itself whether" reasonable grounds" atleast, prima facie, exist for believing that an accused has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years as held in the case ofNadara v. The State (PLD 1968 S.C. 310). In order to do so, the Court is bound to make a tentative assessment of the case of the prosecution as held by the Supreme Court of Pakistan in the case ofKhalid Javed Gillan v. The State (PLD 1978 S.C. 256). The case such reasonable ground do not seem to exist then the grant of bail is the rule and refusal is an exception an held by the Supreme Court of Pakistan in the case of Tariq Bashir v. The State (PLD 1995 S.C. 34). 19. The very first document produced by learned Deputy Attorney General begins by stating that "in pursuance of the directives of the Prime Minister on theeve of the ground breaking ceremony of Uch Power Plant on the 26th of April 1995, the Chairman OGDC issued instructions to issue gallop tenders for the Gas Pipelines Project and Gas Gathering Facilities." Another letter of Oil and Gas Development Corporation bearing No. C 216/95 dated March 16, 1995 begins by stating that "pursuant to the decision taken in the meeting on the 1st of March 1995, chaired by honourable Minister for Petroleum and Natural Resources the subject plants will be gallop tenders and the case will have to be finalised with month's time." Letter No. OGDC/I&P-4(24)/95-V of the Government of the Pakistan, Ministiy of Petroleum and Natural Resources, Islamabad, October 16, 1995, addressed to the Chairman, Oil and Gas Development Corporation, Islamabad, states that " the competent authority has no objection to the award of contracts for Uch GAs Transport Pipelines and Production/Surface Facilities to M/s. Calough Engineering and M/s. Gregoiy and Cook respectively". All this clearly indicates that the decision making in the matter of awarding the contract was done at the highest level i.e. the Prima Minister and the Minister for Petroleum and Natural Resources and that the petitioners did not figure any where. 20. According to the Deputy Attorney General, the most serious "lapse" of all the "lapses" committed by the petitioners and in particular, Jaffar Mahmand petitioner is that the time schedule was ignored. This argument is actually belied by documentary evidence. In particular, the letter dated the 7th of'March 1996, written by Mr. Jaffar Mahmand petitioner to the Chairman which reads as follows : - "Surface Gathering Facilities. This is the biggest project costing US $ 114 million. It was awarded to an American Company, Messrs. Gregory & Cook. They have not taken up the work at site so far because they also want the Letter of Credit to be opened first. Until last month, OGDC was not in a position to finance this project. Upon arranging the necessary funds, Gregory & Cook were immediately informed to come forward and take up the work. Extensive negotiations were held with their representatives as Gregory & Cook wanted to discuss the former of the letter of Credit and the modalities of implementing the contract. However, the single factor that has caused delay implementing this contract on the part of the contractors is their requirement to confirm the LC to be opened by Faysal Bank Islamabad by another International Bank. We have made abundantly clear to Gregory & Cook that this contract has been veiy badly delayed and we cannot afforded this any longer. This requirement is neither our responsibility nor it is a part of the contract. They must take up the work immediately. We have reached a critical stage. In case, the contractor delays this work on this or any other pretext any longer, we should not hesitate to terminate the contract and look for other alternatives. Though the next higher bidder in this case was ClouglvEngineering Group of Australia , their offer was much higher, they could be asked to come forward and match with the price of Gregory & Cook., if it is possible for them to execute this contract as well. Sd/ Chairman Jaffar Mehmand Executive Director (P & S). 7.3.1996. 21. The case against the petitioners involved lengthy investigation and examination of record which is in the possession of the State. The presence of the petitioners is not longer required by the investigating agency and there is no possibility of their tampering with the record if they are enlarged on bail. Out of all the offences allegedly committed by the petitioners, the only one which is punishable with imprisonment for life or imprisonment for 10 years, is Section 409 of the Pakistan penal Code. The other offences allegedly committed by petitioners are punishable with 7 years R.I. and, therefor, do not fall within the prohibition contained in subsection (1) of Section 497 Cr.P.C. The addition of Section 409 PPC smacks of malafide in order to bring the case of the petitioners within the prohibition contained in sub section (1) of Section 497 Cr.P.C. 22. Section 409 of the Pakistan Penal Code lays down the punishment when criminal breach of trust has been committed by a public servant, or by a banker, merchant or agent. Admittedly the petitioners are not public servants stricto senso but shall be deemed to be public servants by virtue of a deeming clause contained in Section 27 of the Ordinance which says that all Directors, Officers and servants of the Corporation shall be deemed to be public servants within the meaning of Section 21 of the Pakistan Penal Code (Act No. XLV of 1860), whether they shall also be to be deemed to be public servant for purpose of Section 409 of the Pakistan Penal Code, still remains in the grey area. 23. In order to prove an offence under Section 409 PPC, it is necessary to prove that (i) the accused belonged to one of the categories enumerated in the section and that (ii) he had been entrusted with property or with dominion over property in that capacity and that (iii) he dishonestly misappropriated or converted to his own use that property or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. On the prosecution's own showing, there was no entrustment of property in the present case as far as the petitioners are concerned. Thus, the very first ingredient for making out an offence under Section 409 of the Pakistan Penal Code, prima facie, seems to be missing. Resultantly, the petitioners are granted bail provided by they furnishing bail bonds in the sum of Rs. 1,000,000/- (Rs. One Lac) each with two sureties each in the like amount to the satisfaction of the learned Special Judge, Central (Anti-Corruption), Rawalpindi . (MYFK) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1169 Present: khalid paul khawaja, J. KHIZAR ABBAS-Appellant versus THE STATE-Respondent Crl. Appeal No. 751 of 1991, dismissed on 9.6.1997. Pakistan Penal Code 1860 (XLV of 1860)-- -S. 302--Murder--Offence of--Conviction for-Challenge toIt is well recognised principle of law that mere relationship of a witness with a parry is not enough to brush aside his testimony-Evidence of complainant, therefore, cannot be rejected on this score--PW (G) is quite an independent and disinterested witnessBoth eye witnesses are neither inimical nor interested witnesses-F.I.R. was lodged promptly-Presence of witnesses at the time and place of occurrence appears to be quite genuine and natural and, therefore, they could not be dubbed as chance witnesses-Ocular evidence and attending circumstances rule out possibility of substitution-Motive remaind shrouded in mystery- Sentence of life imprisonment upheld-Appeal dismissed. [Pp. ^ 174, 1175 & 1176] A, B, C, D, E & F Mian Aftab Farrukh, Advocate for Appellant. - Mr. Shahbaz Saeed Sajid. Advocate for State. Date of "hearing: 9.6.1997. judgment By this judgment I propose to dispose of the following three matters in which same questions of law and fact are involved:- (1) Crl. Appeal No. 751/91, Khizar Hayat vs. The State. <2) Crl. Rev. No. 399/91; Zaigam Abbas vs. Khizar Hayat and another. (3) Crl. Rev. No. 491/91, State vs. Khizar Hayat. Vide judgment dated 16.6.1991 learned Additional Sessions Judge, Jhang convicted Khizar Hayat accused under section 302 PPC for having murdered Muhammad Nawaz deceased and sentenced him to life imprisonment and a fine of Rs. 10.000/- or in default to undergo four years' rigorous imprisonment. The accused was further ordered to pay a sum of Rs. 10,000/-to the heirs of the deceased by way of compensation or in default to undergo six months' simple imprisonment. Benefit of section 382-B Cr.P.C. was also extended to him. 2. The occurrence took place on 4.3.1991 at 5 p.m on the road within the area of Mauza Jalaipur which was at a distance of 19 kilometers from Police Station Shorkot, District Jhaiig. 3. The occurrence was reported to the police by PW. 7 Zaigham Abbas son of Muhammad Nawaz deceased on the same day at 6.20 p.m through FIR Ex. PE recorded by PW. 9 Syed Munir Ali Shah Inspector/SHO. 4. The prosecution case as narrated in the FIR Exh. PE by Zaigham Abbas PW. 7, hereinafter called the complainant, is that on 4.3.1991 he came to Shorkot for shopping in connection with the Khatna ceremony of the son of his maternal uncle Ahmed Nawaz which was to take place on 5.3.1991 After doing the needful he boarded a wagon to go back to his house. The said wagon was being driven by Mumtaz Ahmed Kamlana in which Zafar Ali, Ghazanfar Abbas and Mukhtar were also sitting as passengers. When at about 5 p.m they reached Katcha Pacca stop ahead of Darbar Malang Bokhari within the area of village Jalalpur he saw his father Muhammad Nawaz going towards his house. He was being followed by Khizar Hayat accused wrapped in a Chaddar. When the wagon reached near Muhammad Nawaz aforesaid the complainant got it stopped to enable his father to board it. As soon as Muhammad Nawaz held the handle of the bus to board it Khizar Hayat accused who was close by, took out a carbine from the Bukkal of the Chaddar and fired a shot at him as a result of which the complainant's father fell down. The complainant and his con-passengers challenged the accused who succeeded in running away while firing. When the complainant attended to his father he found that he had expired. The motive for the occurrence was that Khizar accused had abducted one Mst. Shamim but she was restored to her parents on the pressure of the deceased. Some time before the occurrence she was again abducted by the accused on which tin deceased had severely reprimanded him and asked him to return the abductee. On this they had an altercation. The accused refused to return the abductee but the deceased insisted that he would get her restored to her parents at all costs. It was alleged thai the accused nursed grudge against the deceased due to the said incident-and subsequently murdered him. The investigation in this case was conducted by PW. 9 Syed Munir Ali Shah Inspector/SHO who arrested Khizar Hayat accused on 8.3.1991. On the same day while in custody the accused led to the recovery of carbine Exh. P. 8 from his cattle-shed which was taken into possession vide memo Exh. PC attested by Ghulam Shabbir PW. 5 and Zafar Ali (given up as unnecessary,). On 5.3.1991 at 9 a.m. PW. 6 Dr. Zafarullah Sheikh, Medical Officer, Tehsil Headquarter Hospital. Shorkot, conducted postmortem examination on the dead body of Muhammad Nawaz deceased aged 65 years and found the following injuries on it: 1. An entrance fire-arm wound oval in shape, diameter 3 cm x 2.3 cm on the back right side of the lower chest, 5 cm from the mid line, 14 cm from the lower end of the scapula, margins were inverted. 2. An exit wound, oval in sh pe, diameter 0.5 cm x 0.5 cm on the front of left side of the chest 2.5 cam just medial to the left nipple. 3. Another exit wound 0.5 cm x 0.5 cm just medial to injury No. 2. 7. On examination of thorax it was found that left anterior fourth intercostal space, left pleaura, medial side of the left lung were perforated. The heart and paricardium were also perforated from where three pellets were removed. The Medical Officer also found that the small intestines contained digested matter and large intestines contained faecal matter. Bladder contained 100 cc of urine. The other organs were found healthy. In the opinion of the Medical Officer death had been caused by haemorrhage and shock due to the injury which had damaged vital organs like heart and lung. All the injuries were ante-mortem. He further opined that injury (No. 1) was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was immediate and between death and postmortem examination was 12 to 24 hours. Exh. P.B is the correct carbon copy of the postmortem examination while Exh. PD/1 and Exh. PD/2 are the diagrams showing the location of injuries. 8. The accused was formally charged for Qatli Amd (intentional murder) of Muhammad Nawaz deceased. He pleaded not guilty and claimed trial. 9. The prosecution examined nine witnesses in support of its case including the two eye witnesses, namely, Zaigham Abbas complainant PW. 7 and Ghazanfar Abbas PW. 8. Zafar Ah and Mukhtar who had also been cited as eye witnesses of the occurrence were given up as unnecessary. 10. The accused in his statement denied the allegations leveled against aim and pleaded innocence. He maintained that he had been falsely implicated due to enmity with the prosecution witnesses. In defence he produced copy of the FIR Exh. PB and the school leaving certificate Exh. DC. He did not examine any defence witness and declined to make a statement on oath under section 40<2) Cr.P.C. 11. After considering the evidence on record and hearing the parties' learned counsel the learned Additional Sessions Judge convicted and sentenced the accused as stated above. 12. Feeling aggrieved the accused has filed an appeal (Crl. A. No. 751/91) against his conviction and sentence while the complainant and the State have instituted separate Crl. Revision Petitions (Nos. 399/91 and 491/91) for the enhancement of the sentence awarded to the accused. 13. I have heard the parties' learned counsel and have also goutthrough the record. 14. Learned trial court has not relied upon the prosecution evidence with regard to motive and has held that this part, of the prosecution story was not proved. In support of its findings the learned trial court has given cogent reasons which are contained in para No. 15 of the impugned judgment, I am not inclined to differ with it. 15. As regards recover of carbine Exh. P. 8 the learned trial court hs, for reasons contained in para No. 19 of the judgment, disbelieved the prosecution evidence. Since no crime empty had been recovered from the place of occurrence the recovery of the carbine in question is of no consequence. This recovery has no corroborative value. 16. Learned counsel for the accused has submitted that since the prosecution case solely rested on the testimony of the eye witnesses who were not only chance witnesses but were also inimical towards the accused and therefore, such an evidence could not form the basis for his conviction He further submitted that from the circumstances appearing on record the presence of the eye witnesses at the time and place of occurrence was highly doubtful, that the occurrence had not taken place on 4.3.1991 at'5 p.m. as alleged by the prosecution but had taken place in the early hours 5.3.1991, that there was a conflict between the ocular and medical evidence as a result of which no reliance on the ocular evidence could be placed, that the prosecution stoiy was improbable and not worthy of any credence and that, the deceased had other enemies who had caused his death but the accused had been falsely implicated on account of suspicion. 17. Learned counsel for the State and that, of the complainant have vehemently contended that the prosecution had proved the guilt of the accused beyond reasonable doubt through the testimony of reliable witnesses .and thus he had been rightly convicted by the learned trial court. They further contended that the FIR in the present case was promptly lodged wherein the accused had been nominated, the eye witnesses had been named and the manner in which the occurrence had taken place was also shown jind tliprpforp flip nnssihilitv nf substitution w;is enlirclv excluded IS. First of all I propose to determine as to where and when the occurrence had taken place. From the FIR Exh. P.E, memo Exh. P.F, the statements of Zaigham Abbas and Ghazanfar Abbas eye witnesses and Syed Munir All Shah PW. 9, the investigating officer it is established that the occurrence had taken place on the road in the area of Mauza Jalalpur from where the blood stained earth was taken into possession and where the dead body was found lying on a cot. According to the prosecution case the occurrence had taken place on 4.3.1991 at 5 p.m., whereas according to the learned counsel for the accused the occurrence had taken place sometime in the early hours of 5.3.1991. In support of his assertion learned counsel for the accused has argued that since blood stained earth was recovered from the place of occurrence on 5.3.1991 it is strongly indicated that the occurrence had taken place on the same day and that the abdominal contents of the deceased also pointed towards the possibility that he had died in the early hours of 5.3.1991. 19. It is an admitted fact that the blood stained earth was taken into possession by the investigating officer on 5.3.1991. The investigating officer has explained that immediately after the recording of the FIR he had reached the place of occurrence and had seen in the gas-light the blood on the place of occurrence i.e. the road but did not immediately take it into possession because at that time he had no container with him wherein to preserve the said blood/blood stained earth. He has further stated that he had stationed a Constable at the place of occurrence after his initial visit to the place of occurrence to guard it and on the following day he had again visited the said place and had taken the blood stained earth into possession. I have no reason to disbelieve the investigating officer on this point. He might have acted in an indolent manner by not going fully equipped to the place of occurrence for the purpose of investigation but this indolence on his part, would not destroy other evidence on record to the effect that the occurrence had taken place on 4.3.1991. As regards the abdominal contents these could not accurately determine the time of the death of a person because digestive system varies from person to person. In the present case 'the presence ot faecal matter in the large intestines and the presence of digested food in the small intestines do not necessarily mean that, the occurrence had taken plaa in the morning. An early lunch or a usual breakfast which the people living in rural areas take would also have resulted in the same abdominal position Even otherwise when there is direct and reasonably authentic evidence or the point that the occurrence had taken place at 5 p.rn on 4.3.1991 it is no safe to determine the time of occurrence on the basis of indirect evidence o an unsure nature. It is established beyond reasonable doubt that the FIR ii the present case was lodged on 4.3.1991 at 6.20 p.m at Police Station Shorko City which was at a distance of 19 Kilometers from the place of occurrence How could the FIR be recorded prior to the occurrence is a question whicl does not get and satisfactory answer from the record. It is, therefore hel that the occurrence had taken place on 4.3.1991 at 5 p.m as asserted by th prosecution. 20. The prosecution has examined two eye witnesses i.e. Zaigham Abbas PW. 7 the son of the deceased and Ghazanfar Abbas PW. 8 the brother of the tJpJ j ft (husband of the sister of the wife) of the complainant to prove the occurrence. The complainant being the son of the deceased could be described as a related witness but this cannot be said of Chazanfar Abbas PW. 8. He had no direct relationship either with the deceased or the complainant. A brother of the husband of the sister of one's wife can hard!} be called a relative. It is a well recognized principle of law that mere relationship of a witness with a party is not enough to brush aside his testimony. The evidence of the complainant, therefore, cannot be rejected on this score. As regards Ghazanfar Abbas PW he is quite an independent and disinterested witness. 21. The next question which requires consideration is as to whether the two eye witnesses are interested or inimical witnesses. It is alleged by the accused and admitted by Zaigham Abbas complainant that the latter's paternal aunt ( (^v>v ) was abducted by Mehr Amir the paternal grand father and Wali Dad maternal grand-father of the accused and that one Mehr Waryam and the paternal grand father of the accused were murdered. The complainant expressed his ignorance that the said persons had been murdered by his relatives. The abduction of Mst. Jannat Bibi and the murder of the aforesaid persons had taken place more than 60 years ago (FIR Exh. D.B in connection with the said murder was lodged on 29.1.1929) when the complainant was not yet born. Exh. D.B does not show, nor there is any other authentic evidence on record to establish that the complainant's ancestors were in any way involved in the said murder. No untoward incident took place during all this long period between the parties on account of the said two incidents. I therefore, am not persuaded to agree with the learned counsel for the accused that the eye witnesses in any way were inimical to the accused. The alleged enmity is too far fetched. It goes without saying that against Ghazanfar Abbas PW no such enmity with the accused has been brought on record. Both the eye witnesses therefore are neither inimical nor interested witnesses. 22. Now another question arises as to whether the eye witnesses in the present case were chance witnesses and whether reliance could be placed on their testimony. The occurrence had taken place on the road connecting Shorkot with Mauza Jalalpur. The prosecution case is that the two eye witnesses alongwith other passengers and relatives were coming from Shorkot to their houses in Jalalpur in a wagon after making purchases for he Khatna ceremony of complainant's maternal uncle's son which was to be held on the following day. On their way the complainant saw his father going towards the village after attending a Janaza followed by the accused. He got the wagon stopped to take his father along to the village, and when the latter was about to board the wagon the accused fired the fatal shot at him. It is true that normally the eye witnesses could not be expected to be present at. the time and place of occurrence but if it is established from the record and the attending circumstances that this story was true then one should not have any hesitation to believe their presence. In this connection the most important circumstance in favour of the prosecution case is the promptitude C with which the FIR was lodged. The occurrence took place at. 5 p.m on 4.3.1991 and on the same day at 6.20 p.m the report was made and recorded. Had not the complainant been present at the time and plea of occurrence it was impossible to report the incident so promptly when the Police Station was at a distance of 19 Kilometers from the spot. The complainant being the son of the deceased must be in a state of shock and immense grief at that time and it could not be expected that within an hour he had concocted a false story. In that promptly lodged FIR the names of the witnesses including Ghazanfar Abbas PW have been mentioned. The manner in which the occurrence had taken place is also narrated in sufficient detail. The story narrated therein does not appear to be improbable. Ghazanafar Abbas PW is a lawyer by profession and had no axe to grind against the accused. He has also supported the story contained in the FIR and therefore. I am convinced that the eye witnesses had actually seen the occurrence and were present when it took place. I have no reason to disbelieve them. Their presence at, the I) time and place of occurrence appears to be quite genuine and natural and therefore, they could not be dubbed as chance witnesses. 23. Learned counsel for the accused has submitted that a number of relatives of the complainant were present in the wagon who could have easily apprehended the accused after the incident and since the said persons including the eye witnesses did not make any effort in that regard their presence would be considered to be doubtful. Admittedly none of the PWs was armed. The accused, who was armed with a carbine had started running away from the scene of occurrence. Naturally it would have taken sometime for the witnesses to come out of the wagon and give a chase to the accused which had helped him to escape. Even otherwise when the accused was armed with a fire arm it was not easy for the PWs to give him a chase and try to apprehend him, as such this circumstance does not; discredit the eye witnesses. 24. Learned counsel for the accused has further contended that tlu: ocular evidence was in conflict with the medical evidence and therefore, in the presence of such a conflict the ocular evidence is to be rejected. According to him the deceased was fired at from a close distance and therefore, the entiy wound on his body should have blackening on the edges nd as there was no such blackening the prosecution stoiy would stand falsified. Secondly it was contended that since the accused had fired straight at the deceased the entiy wound on the latter's body should have been round in shape and not oval as described by the Medical Officer in the post mortem examination report. The aforesaid contentions have no force. Blackening on w r ound aused by a fire arm is caused when the shot is fired from a distance of 4 feet or less. In the present case the material on record does not show that the accused had fired at the deceased from such a distance. Even otherwise blackening on the wound could not have been caused because the deceased was wearing so many clothes at the time of the occurrence. Exh P.A. shows that the deceased was wearing a vest, a shirt, a woolen sweater, a jarsi, a woolen shawl ( jyfffs and a loin cloth. In this suite blackening on the wound was well high'impossible even if the shot, had been fired from a close range. As regards the shape of the wound, since the deceased at the relevant time was climbing the wagon he was at a higher level than the accused and therefore, due to this fact it could not be said thai he had been fired at straight from even height. I, therefore, find that there is no serious conflict between the ocular and medical evidence. 25. Last of all learned counsel for the accused submitted that the deceased had a lot. of other enemies and therefore, possibility could not be ruled out that he had been done to death by one of those enemies. It is true that, during the trial when the complainant was cross examined it was brought on record that the deceased had other enmities also but I am not persuaded to believe this version because the occurrence in the present case had been witnessed by reliable witnesses who have clearly deposed that it was the accused who was responsible for causing the death of the deceased In the presence of such an evidence the contention of the learned counsel is rendered untenable. Even otherwise why the complainant and the other eye witness should have falsely implicated the accused letting off the real culprit. The ocular evidence on record and the attending circumstances rule out the possibility of substitution in this ease. 26. In view of the above discussion I am of the opinion that the prosecution had established the guilt of Khizar Hayat accused and therefore, he was rightly convicted by the learned trial Court under Section 302 PPC. His conviction is upheld. 27. As regards the sentence, in the circumstances of the case when the motive had not been proved and it remained shrouded in mystery and when the accused had fired a single shot I am of the opinion that the learned trial Court had properly exercised its discretion to award lesser penalty. I am not persuaded to hold that the sentence in the present case requires enhancement and therefore, the same is also upheld. 28. The upshot of the above discussion is that the appeal of the accused and the revision petitions by the complainant and the State are dismissed. (A.P.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1177 [D.I. Khan Bench] Present: malik hamid saeed, J, Haji ABDUL RAFIQUE-Complainant/Petitionev versus INAYATULLAH and 2 others-Respondents Cr. Misc. B.C. No. 56 of 1997, accepted on 2.6.1997. Bail-Cancellation of- -S. 497< 5 (--Bail-Cancellation of-Prayer for -Offence U/Ss. 302/148/149 PPC-No doubt, no injury had been attributed to accused/respondents but as per F.I.R.. they caught bold of deceased and pushed him towards their houses at first instance and thereafter when co-accused fired at deceased and injured him. they dragged deceased towards their houses and thereafter, facilitated the commission of murderPetitioners were accompanied by co-accused who were duly armed with kalashinkoves and when they fired at. deceased and injxired him, even then accused/ respondents dragged body of deceased who was injured then-All this shows thai accused/respondents have fully participated in the commission of offence by sharing common intention and have formed unlawful assembly for" a common object that is to kill deceasedFor the purpose of bail cancellation petition, reasonable grounds do exist to connect accused/respondents with commission of crimeBail cancelled. [Pp. 1179 & 1180] A Mr. Muhammad Karim Aujum, Advocate for Petitioner. Mr. Sanaullah Khan Gandapur, Advocate. Mr. Hamesh Gul Khan, Advocate for State. Date of hearing: 2.6.1997. judgment My this order will dispose of the two petitions i.e. (i) Cr. MiSc. No. 289/96 for grant of bail to the accused-petitioners Alam Sher and Asmatullah and (ii) Cr. Misc. No. 56/97 for cancellation of bail granted to the accused-respondents Inayatullah and Ranju by the order of the learned Special Judge D.I. Khan vide his order dated 21.11.1996. 2. A case was registered at P.S. University, D.I. Khan, against the accused herein and their absconding co-accused namely Nosher and Falak Sher U/Ss. 302/148/149 PPC on the report of complainant Haji Abdul Raliq t made by him on the spot to Ghulam Shabir A.S.I, who arrived there over , telephonic message from the complainant about the occurrence. 3. The role attributed to the petitioners and respondents is that r Asmatullah. Alam Sher petitioners alongwith absconding accused Nosher, Falak Sher and Inayatullah and Ranju respondents in Cr. Misc. No. 56/97 arrived at the scene of occurrence, accused-respondents Inayatullah, Ranju and absconding accused Nosher who were empty handed apprehended the brother of complainant, deceased Muhammad Mazhar who was going in a street of the Village near a mosque. Eye-witnesses Ghulam Yasin and Muhammad Zarif were also passing in the street behind the deceased. The said three accused including the two accused-respondents Inayatullah and Ranju with absconding accused Nosher started pushing the deceased towards their houses. Accused-petitioner Asrnatullah also made some fire shots in the air while other accused petitioners Alamsher and absconding accused were going alongwith the said three accused who were allegedly un armed and pushing the deceased. The eye-witnesses Ghulam Yasin and Muhammad Zarif tried to rescue the deceased from the clutches of the accused but failed. Accused Asmatullah, Falaksher and Alamsher then started firing at the deceased who was being dragged by the above mentioned accused. The deceased then fell down but was dragged towards the houses of the accused. The said eye-witnesses informed the complainant who happened to be in the house who informed the Police on phone about the occurrence and after arrival of the police, went to the spot, where the dead body of the deceased was lying in front of the house of the accused. Motive for occurrence stated to be that few months prior to the present occurrence younger brother of the accused namely Aurangzeb was injured for which deceased Muhammad Mazhar and one Muhammad Zafar were charged. 4. Learned counsel for accused-petitioners Alam Sher and Asmatullah, Mr. Sanullah Khan Gandapur, Advocate, contended that there are five inlet wounds on the person of the deceased for which three accused have been charged including the absconding accused Falaksher and there fore no one can say with certainty that who amongst the said three is responsible for the injuries and as such a doubt has been created and benefit of which could be extended to the accused petitioners at bail stage. He further submitted that registration of case at the spot is not approved by the superior courts and further medical evidence is not in line with the prosecution case as inlet wounds are not in consonance with the version iven in the F.I.R. 5. So far as accused respondents Inayatullah and Ranju are concerned, the learned counsel submitted in view of the insignificant role attributed to respondents, their case is distinguishable from that of other accused and as they were empty handed, therefore, common intention could not be ascribed to them and further urged that as the accused-respondents are enjoying the concession of bail since 21.11.1996, so it could not be fair to cancel the same when the accused-respondents have not mis-used the concession. 6. Mr. Muhammad Karim Anjam Qasooria, Advocate/learned counsel for the complainant submits that the accused-petitioners in Cr. Misc. 1997 haji abdul rafique v. inayatullah Cr.C. 1179 (Malik Hamid Saecd, J.) No. 2S9 96 and accused-respondents in Cr. Misc. No. 56/97 are prima facie connected with the commission of crime and reasonable grounds more than suspicion to do exist to connect them with the commission of offence. All the six accused are directly charged in a promptly lodged F.I.R. Two eye witnesses Ghulam Yasin arid Muhammad Zarif fully corroborated the F.I.R. and the are simply co-villagers of both he parties nor related to complainant party neither inimical towards the accused. Circumstantial evidence and medical evidence are completely in line with the prosecution case. Injuries on the person of deceased too are in consonance with the number of accused. 7 The bail was granted to accused respondents Inayatullah and Ranju by the learned Special Judge on the sole ground that they were empty handed is highly un-justified, un-l'air and against the norms of justice in the manner the murder was committed. The accused-respondents have paiticipated in the occurrence and have facilitated the commission of offence, although they have not inflicted any injury to the deceased but at the veiy face of it. it is a case of participation and facilitation on the part of the accused-respondents. S. I have gone through the record of the case and considered the arguments advanced by the learned counsel of both the parties. 9. Accused-petitioners are named in a promptly lodged F.I.R. The two eye-witnesses named in the F.I.R. have fully corroborated the F.I.R. and further the said eye-witnesses are dis-interested witnesses being not related to deceased party nor inimical towards the accused and having equal relation that of co-villagers with both the parties. As the eye-witnesses were covillagers and above all tried to rescue the deceased from the hands of the accused, therefore, no question of mistaken identification arises in the circumstances. As per Site Plan, sufficient light was shown at the spot because two electric bulbs were taken into possession by the I.O., from the spot. Medical evidence too supports the prosecution case. Murder was committed by the accused-petitioners allegedly in a very brutal manner and as such the accused-petitioners Alam Slier and Asmatullah are prima facie connected with the commission of offence and therefore are not entitled to be released on bail, hence their bail petition is dismissed accordingly. 10. No doubt, no injury had been attributed to the accusedrespondents Inayatullah and Ranju but as per version in the F.I.R., they caught hold of the deceased and pushed him towards their houses at first nstance and thereafter when co-accused fired at the deceased and inured him. they dragged the deceased towards their houses and therefore. facilitated the commission of murder. The petitioners while catching hold of the deceased and pushing him towards their houses, were accompanied by the co-accused who were duly armed with Kalashinkovs and when they fired at the deceased and injured him, even then the accused-respondents dragged the body of deceased who was injured then. All this shows that the accused- respondents have fully participated in the commission of offence by sharing District Xarowal. for having committed the murder of one Samer Mehdi in poSice custody. 2 Pursuant to the direction vide order dated 3.4.1997 the learned Presiding Officer has submitted his parawise comments and denied having ever stated that petitioner shall he meted out. deterrent punishment. However, the report further stateb that the learned trial Court, had made an inquiry as to why one Muhammad Riaz, Head Constable No. 322/LHC, a relative of the present petitioner, who had not been arrested till date, had indulged in firing, taking into consideration the police investigation in that respect, further stating that, he has no objection to the case being transferred to any other Court. 3. Therefore, the Court had opined that, under such circumstances, no case is made out for transfer of the trial of the case against the petitioner from the Court in question whereupon the learned counsel for the petitioner had argued by pressing that "justice should not be done but should appear to have been done" is a cardinal principle of law and as the petitioner did not have faith in the learned trial Court, his case deserves to be transferred to some other Court of competent jurisdiction. In this respect, the learned counsel for the petitioner has placed reliance upon the case titled Muhammad Nawaz vs. Ghulam Kadir and 3 others (PLD 1973 S.C. 327). 4 After giving anxious consideration to the arguments advanced. the contents of the present petition and having perused the principle laid down in the case cited i.e. "what is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances; and the Court, must endeavour, as far as possible, to place itself in the position of the applicant, seeking transfer, and look at the matter from his point of view, having due regard to lus state of mind and the degree of intelligence possessed by him. Nevertheless, it is not. every incident regarded as unfavourable by the applicant which would justify the transfer of the case. The test, of reasonableness of the apprehension must be satisfied, namely, that, the apprehension must be such as a reasonable man might justifiably be expected to have" the Court is constrained to point out that the case relied upon and the relevant portion recorded above from the said judgment, in fact, goes againsl the petitioner under the facts and circumstances of the instant matter. The firing, referred to in the observation made by the learned trial Court in its report, as stated above, had taken place during the hearing of the case against the petitioner by some other persons, and the allegation is that, the said Muhammad Riaz, Head Constable, was also a member of the said party. It may be further emphasized that the target of the said firing was the 5. Therefore, it is hereby observed that the querry/observation made by the learned trial Court was very relevant. It is further observed that a senior judicial officer of the rank and status of Additional Sessions Judge is deemed to have sufficient experience and maturity to conduct and conclude the trial of the case without being influenced by any extraneous factors and that if he fails to do so andprima fade there is sufficient proof of it, it shall not only establish his incompetence and inefficiency which, of course, would call for appropriate measures to be taken in that respect by the competent Court/authority but shall make it imperative for the case to be transferred immediately. 6. However, mere observation, made or a question put to the petitioner in respect of such a heinous incident of firing directed at the Court when the trial against the petitioner was in progress, specially pursuant to police report, which had, perhaps tentatively, come to the conclusion that the firing had been made by the accused amongst whom was Muhammad Riaz, Constable, the relative of the petitioner, can in no way make 'out a case for transfer of the trial from the Court in question. It may be recorded, that the Court has fully taken into consideration the final observation stated by the Honourable Supreme Court in the judgment relied upon by the learned counsel for the petitioner i.e. PLD 1973 S.C. 327 and the relevant portion is to the effect that: "what is reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances;--. Nevertheless, it is not eveiy incident regarded as unfavourable by the applicant which would justify the transfer of the case." 6. Therefore, pursuant to the above discussion, it is hereby held that apprehension expressed by the petitioner fails to meet the test of "reasonableness" in the instant case under the facts and circumstances highlighted. Hence, the present petition for transfer, being devoid of merits, is hereby dismissed. (K.A.B.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1182 Present: SAJJAD AHMAD STPRA, J. MIRAJ DIN-Petitioner versus STATE-Respondent Criminal Revision No. 147/97, accepted on 5.fi. 1997. Criminal Procedure Code, 1898 (V of 1898)- -S. 345 read with S. 325/34 PPC-In accordance with provisions of S. 345 Cr.P.C. as offences in uuestion if compounded by persons to whom hurt has been caused case duly stands compounded by injured PWs and accused, and is hereby allowed accordingly. [P. 1184] A Ch. Nasecr Ahmed Sindhu, Advocate for Petitioner. Sh. Ehsan Ahmad, Advocate for Respondent. Date of hearing: 5.6.1997. judgment The present petitioner. Me raj Din alias Maja. having been convicted under section 325/34 PPC and sentenced to R.I. for one year and a fine of Rs. 1.000 - or in default thereof to undergo S.I. for one month, along his coaccused Muhammad Ashraf (since died), by the learned trial Court, vide judgment dated 31.5.1994, for allegedly having caused injuries on different, pans of the bodies of the complainant, Abdul Shakoor and his father Muhammad Suleman with a sola; had challenged his conviction in appeal, which was dismissed by the learned Additional Sessions Judge, Faisalabad, vide judgment dated 22.2.1997. Hence, the present criminal revision petition. 2. Brief facts, leading to the present criminal revision petition, are that on 31.12.1988 Abdul Shakoor complainant lodged a complaint Exh. PA, alleging therein that on 27.12.1988 at about 2.00 p.m. during a fight between the children of Dogars in front of his house, co-accused and real son of the present petitioner, namely, Muhammad Ashraf alias Aslam (since died) slapped his brother and on being inquired about the reason by the complainant in the presence of his father. Muhammad Suleman, the said Muhammad Ashraf alias Aslam brought a hatchet from his house and his father Me raj Din alias Maja, armed with sota, also reached there. The latter inflicted sota blows on different parts of the body of the complainant and when his father Suleman tried to rescue the complainant, he (Suleman) was also inflicted hatchet blows on his head, back and hand by Muhammad Ashraf alias Aslam accused. The alarm raised attracted Muhammad Sarwar and Anwar Ali, who rescued the victims. On the basis off the said complaint the instant case was registered vide FIR No. 719/1988. 3. After usual investigation, both the accused were challaned by the police. At the trial the prosecution had examined as many as even witnesses to prove its case. PW. 1 Abdul Shakoor was the complainant as well as an injured witness, whereas PW. 2 Muhammad Suleman was another injured witness and PW. 3 Muhammad Sarwar was an eye-witness of the occurrence. PW T . 4 Allah Bakhsh and PW. 5 Muhammad Ilyas were the witnesses of recoveries of hatchet and sota, whereas PW. 7 Haji Ghul Muhammad Sub Inspector was the Investigating Officer of the instant case. PW. 6 Dr. Shahid Jameel had medically examined the complainant and the other injured PW. 4. In their statements under section 342 Cr.P.C. the petitioner and his co-accused Muhammad Ashraf alias Aslam (since died) had denied the allegations and claimed to be innocent. They had also produced Janna DW, 1 and Nazir Ahmad DW. 2 in their defence. 5. The learned trial Court convicted and sentenced the petitioner as well as his co-accused, and in appeal, during the pendency of which Muhammad Ashraf alias Aslam co-accused, had died, the conviction and sentence awarded to the petitioner was maintained by the learned Additional Sessions Judge, Faisalabad, as stated above. 6. On the present criminal revision petition being taken up, the learned counsel for the petitioner pointed out that, as contended in Crl. Misc. 1/97 herein, both the injured PWs i.e. complainant Abdul Shakoor son of Muhammad Suleman (PW. 1) and his real father Muhammad Suleman son of Labhu (PW. 2) have forgiven the petitioner/convict, and that, therefore, the present revision petition be disposed of as the case in question stands compounded under the provisions of section 345 Cr.P.C. 7. It was directed that, the statement of the complainant Abdul Shakoor injured PW. 1 be recorded and the same duly recorded, has been signed and attested by the learned counsel for the petitioner and the State. 8. The other injured PW. 2 Muhammad Suleman, the real father of injured PW. 1 named above, has submitted his affidavit to the effect that he has forgiven the petitioner/convict, but has not put in appearance and in that respect his real son i.e. injured PW. 1 Abdul Shakoor submitted that he was seriously sick and was unable to attend the Court today. However, his affidavit has been taken into consideration, which specifically slates that he has forgiven the convict/petitioner Meraj Din alias Maja and, has further contended for his case to be disposed of accordingly. 9. Consequently, in accordance with the provisions of section 345 Cr.P.C. as the offences in question i.e. under section 325/34 PPC can be A compounded by the persons to whom hurt has been caused, the instant case duly stands compounded by the injured PWs and the accused, as recorded above, and is hereby allowed accordingly. 10. Resultantly, in accordance with the provisions of subsection 5-A> of The said section 345 Cr.P.C. read with subsection (6) thereof, the accused/revision petitioner merits acquittal. For reference, the said sub-sections (5-A) and (6) of section 345 Cr.P.C. are reproduced hereinbelow:- "(5-A) A High Court acting in the exercise of its powers of revision under section 439 (and a Court of Session so acting under section 439-A) may allow any person to compound any offence which he is competent to compound under this section. (6) The composition of an offence under this section shall have the effect of an acquittal of the accused (with whom the offence has been compounded)." 11. Pursuant to what has been stated above, the present criminal revision petition is allowed, and consequently Crl. Misc. No. 1/97 herein stands disposed of accordingly, and the conviction and sentence awarded to the accused petitioner vide judgment dated 31.5.1994, and the judgment dated 22.2.1997, whereby the appeal preferred against the same was dismissed, is hereby set aside and the accused/petitioner is acquitted of the offence charged. He shall be released forthwith if not required to be detained in any other case. (K.A.B.) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1185 [D.I. Khan Bench] Present: MALIK HAMID SAEED, J. Mst. RAMBAIL BIBI-Petitioner versus MIR ALAM and STATE-Respondents Cr. B.C.A. No. 92/1997, accepted on 18.6.1997. (i) Bail-Cancellation of-- -S. 497 (5) Cr.P.C.-Bail-Cancellation of-Prayer for-Offence u/S. 302/34 PPC-In cases involving capital punishments bail should not be granted to accused where strong reasonable grounds exist. Very arrest, of accused in chase on the spot alongwith crime weapon is sufficient and strong ground to connect him with commission of offence and as such he was not entitled to concession of bail allowed on very flimsy groundsHeld : Prima facie case exists against respondent which disentitles him to concession of bail-Bail granted is recalled. [P. 1188] A, B & C Dost Muhammad Khan, Advocate for Petitioner. S. Zafar Abbas Zaidi, Advocate for Respondent. Muhammad Khan, Advocate for State. Date of hearing: 18.6.1997. judgment This hail cancellation application is directed against the order dated 15.4.1997 of the learned Additional Sessions Judge, Lakki Marwat vide which Mir Alam Khan ccused/respondent herein, was allowed bail in case FIR No. 6, dated 13.1.1996 registered at Police Station Naurang, under Sections 302/34 PPC. 2. The prosecution case is that on 13.1.1996 Hassan Khan then injured now dead made a report in the emergency room of Civil Hospital, Naurang to the effect that he alongwith his brother Hussain Khan, after offering 'Asar' prayer on reaching Kaki Road near Hotal Mir Sulernan, the accused Mir Alam and his brother Naqibullah emerged at the scene. Under the command of Naqibullah his brother Mir Alam fired a shot with his D.B shot gun with which he (complainant) was hit and got injured. The motive for the offence was given to be a land dispute between the parties. 3. Later on the complainant succumbed to his injuries and his report, was treated as dying declaration. 4. The arguments of the learned counsel for the parties were heard at length and record of the case thoroughly examined. 5. The accused/respondent was arrested on the same day just after the occurrence in a hot pursuit alongwith a crime weapon having an empty in its chamber. The crime weapon and the empty recovered was sealed there and then and sent to arms Expert whose report is in affirmative. The accused/respondent is charged in the dying declaration (FIR) by the complainant then injured which was lodged promptly within 20 minutes after the occurrence. PW Hussain Khan brother of the deceased complainant who is named in the FIR as-an eye-witness had fully supported the contents of the dying declaration. The learned Additional Sessions Judge, Lakki allowed bail to the accused, first on the ground that co-accused Naqibullah who was equally charged in the FIR has since been placed in Column No. 2 of the challan on the plea of alibi taken by him that he was present in Lahore on the eventful day and time and secondly that by placing the same accused Naqibullah in column No. 2 by the police, the entire dying declaration had become doubtful and thirdly, that the challan of the case as not submitted to the trial Court within the prescribed period. 6. __ The perusal of the record, however, reveals that in bail pplication moved by the accused-respondent before the Additional Sessions Judge. Lakki. the complainant was not made as respondent and after the enforcement of Qisas and Diyat Ordinance, 1992 the complainant is entitled to nonce in bail petition of an accused. 7. Under Section 497 Cr.P.C. in offences entailing punishment with death, imprisonment for life or imprisonment for 10 years, bail should not ordinarily be granted unless there exists reasonable grounds for believing that the accused is not guilty of the offence charged with. The superior Conns have timely observed that the offences covered by the provisions of P.P.C. through Qisas & Diyat Ordinance, 1992, the complainant is entitled to the notice before passing any order which is favourable to the accused. In the instant case the learned Additional Sessions Judge has totally ignored this legal aspect of the case and without affording any opportunity to the complainant passed the impugned order. It is worth mentioned here that coaccused Naqibullah who was previously placed in column No. 2 of the challan in the first instance, was later on again placed in column No. 3 thereof vide order dated 25.5.1996 of the Dy. Inspector General of Police, Bannu. 8. The submission of challan within the stipulated period is no doubt the foremost duty of the police which if not performed due to some unavoidable circumstances during the investigation, the accused would not be benefieted of the lapses of the police for the reasons aforesaid. Besides, for verification of the plea of alibi taken by the brother of he accused-respondent (co-accused), the Investigating Officer had gone to Lahore and recorded statements in support of the same which took sufficient time and hence the delay in not submitting the challan within the prescribed period was occasional. Further, if the I.O./SHO is found of slackness/ignorance in not submitting the challan to the Court in time then he should be taken to the task as submission of challan under Section 173 Cr.P.C. has no relevancy with the bail matters. 9. In the instant case it is noted that, the moment the accusedrespondent got himself released on bail, the challan was put in Court within 20 clays after the bail order which gives rise to a reasonable suspicion that they delay in submitting the challan to the court was with mala fide consideration of the prosecution. The police could not be given a right to play with the rights of the people and should not be allowed to sit or the blood of the innocent persons. 10. It appears that the learned Additional Sessions Judge had not thoroughly examined the case file as the fact that the accusedrespondent was apprehended after a hectic chase by the police alongwith the crime weapon having an empty in it, had escaped his notice by giving undue weight to the proposition that no recovery of empty was made from the spot. 11. The learned counsel for the accused-respondent has vehemently stressed that as per medico-legal report there are two entry wounds on the person of the accused one on the right arm with six pellets hole having a corresponding exist. The another wound tin the pictorial was given as No. 1 While the exist is No. 2 but there is no entry wound of pellet under No. 3 in the pictorial and submitted that the medical evidence contradicts the dying declaration. Though appraisal of evidence at bail stage is not warranted under the law but apparently from perusal of the pictorial it, seems that, entry wound No. 3 is a p re-entry of the pellets of entry No. 1 and as such at this stage one cannot say that the medical report contradicts the dying declaration. 12. The learned counsel for the State also supported the arguments advanced by the accused-respondent on the stereo-type grounds that the accusedarespondent has not misused the concession of bail and further that the challan has since been put in Court. 13. In cases involving capital punishments bail should not be granted to the accused where strong reasonable grounds exist. In the instant case the very arrest of the accused-respondent in chase on the spot alongwith crime weapon is sufficient and strong ground to connect him with the commission of offence and as s\ich he was not entitled to the concession of bail allowed to him on very flimsy grounds. 14. The upshot of the above discussion is ihatprima facie case exists against the respondent No. 1 which disentitles him to the concession of bail. The impugned order dated 15.4.1997 of the learned Additional Sessions Judge, Lakki Marwat based on erroneous considerations and arbitrarily passed needs to be set aside. 15. Accordingly this application is accepted and the bail granted to he accused/respondent No. 1 is recalled. He is present in Court, taken into custody and sent to judicial lock-up to await his trial as under trial prisoner. However, since the challan has been put in Court, the trial Court shall conclude the trial expeditiously. (A.P.) Bail grantd is recalled.
PLJ 1997 Cr PLJ 1997 Cr.C.1189 (Peshawar) [Circuit Bench D.I. Khan] Present: SARDAR MUHAMMAD RAZA, J. BAHADUR KHAN-Petitioner versus AJMAL KHAN etc.-Respondents Cr. MBC No. 129/1996, rejected on 25.4.1997. Bail-Cancellation of-- / -S. 497 <5' Cr.P.C.--Bail-Cancellation of-Prayer for-Offence u/S. 302/34 PPC--One glaring aspect cannot be ignored even at this stage irrespective of plea of i7/2t>;-Distance between victim and assailants is six paces as per site-plan yet injuries sustained by deceased bore charring marks- Discrepancy between FIR site-plan and post mortem report is settled at Trial, respondent may remain on bailIt is not a fit case where interference should be done under S. 497(5) Cr.P.C. which otherwise is discretionary and not mandatory. [P. 1190] A Dost Muhammad Khan, Advocate for Petitioner. Muhammad Khan Khakwani, Advocate for State. Sanaullah Khan, Advocate for Respondent. Date of hearing: 25.4.97. judgment Ajmal Khan s/o Mir Baz Khan of Bachkan Ahmed Zai, alongwith another Khan Bahadur s/o Slier Azam, is charged for the murder of Asmatullah that took place on 19.1.1996 at 1430 hours within the limits of Bazar Xaurang, the report whereof was lodged by Bahadur Khan complainant, the brother of Asmatullah deceased at Sr. # 9 of Police Station Naurang. 2. Khan Bahadur is reported to be still absconding while Ajmal Khan was released on bail by the courts below. Through this petition, Bahadur Khan complainant seeks the cancellation of his bail. 3. It is argued on behalf of the complainant that the occurrence is witnessed by two eye witnesses the statements whereof are duly corroborated by the post mortem report, the plausible motive and the abscondence of the respondent for 14 days during which he remained absent from the school where he was posted at the time of occurrence. Further, that the plea of alibi should not have been brought into consideration at this stage. 4. The learned counsel for the respondent while duly supported by the learned State counsel that the respondent being a school teacher was available at the time of occurrence in his school and his subsequent leave for 14 days till his arrest was simply due to the charge that had been brought ^. against him, of murder. They also challenged the version of so-called eye witnesses saying that they were not present on the spot and had brought about the charge on the basis of consultation, deliberation and previous enmity between the parties. 5. It would not go into all the detailed intricacies of the case argued before me lest, I enter into making any expression yet one glaring aspect cannot be ignored even at this stage irrespective of the plea of ailibi. The distance between the victim and the assailants is six paces as per site-plan yet the injuries sustained by the deceased bore charring marks. Till this discrepancy between the FIR, the site-plan and the post mortem report is _ settled at trial, the respondent may remain on bail. It is not a fit case where interference should be done under sub-section (5) of section 497 Cr.P.C., which otherwise is discretionary and not mandatory. The application is rejected. (K.A.B.) Application rejected.
PLJ 1997 Cr PLJ 1997 Cr.C. (Pehsawar) 1190 Present: MAHBUB alt KHAN, J. AZIZ-UR-REHMAN-Petitioner versus KALA KHAN and STATE-Respondents Crl. M.Q. No. 7/96, accepted on 29.4.1997. Criminal Procedure Code, 1898 (V of 1898)-- S. 561-A-Quashment of proceedings-Prayer for-During investigation I.O. examined some witnesses and received affidavits from few other persons and came to the conclusion that case did not occur in the manner as mentioned in F.I.R. and recommended for ancellation of case and obtained an order from Ilaqa Magistrate-He also initiated proceedings for prosecution of complainant u/S. 182 PPC-Hence this petition by complainant u/S. 561-A Cr.P.C. for quashment of proceedings-Not only this that case has been reported to police within 25 minutes, complainant was medically examined by a Doctor who certified his injuries caused in skull area by a blunt object-It is not shown as how I.O. conveniently over-looked all these factors during investigation and placed undue weight on affidavits furnished by certain interest persons not even mentioned in reportHeld: Manner in which I.O. obtained orders from Magistrate for discharge of accused from prosecution case which clearly amounted to abuse of process of CourtHigh Court therefore, constrained to accept petition. [Pp. 1191 & 1192] A, B & C Sardar Muhammad Irshad, Advocate for Petitioner. Mr. Aurangzeb Mughal, Advocate for Respondent and State. Date of hearing: 29.4.1997. judgment Complainant Azizur Rehman on 13.11.1995 at 9.15 a.m. lodged a report at Police Station City, Abbottabad and charged accused-respondent Kala for injuring him on head with a stone. The complainant was examined on the same day before a doctor at D.H.Q. Hospital, Abbottabad who found:- "A lembda type laceration on the top of skull 5" above right ear bone deep." The patient was X-rayed but the X-ray report is not on file. 2. Any-how, during investigation 1.0. examined some witnesses mentioned in the report and received affidavits from few other persons and came to the conclusion that the case did not occur in the manner as mentioned in the F.I.R. and recommended for the cancellation of the case and for release of the accused under section 169 Cr.P.C. and obtained an order from the Ilaqa Magistrate. He also initiated proceedings for prosecution of the complainant under section 182 P.P.C. Hence this petition by the complainant under section 561-A Cr.P.C. for the quashment of the said proceedings. 3. I have heard the learned Counsel on behalf of the complainant, for the respondent and State. The learned advocate stated that although factum of injury caused to the complainant in skull area by a blunt object has been supported with medical evidence and by the statements recorded under section 161 Cr.P.C. of the persons named in the report, but the I.O. obtained affidavits, of some persons not mentioned in the F.I.R. and thereafter came to the conclusion on the basis of said affidavits that the occurrence was false and recommended the case to the Ilaqa Magistrate for cancellation and release of the accused under section 169 Cr.P.C. and simultaneously initiated proceedings against the complainant under section 182 P.P.C. That the case having been prima facie established from the statement of the injured person coupled with medical evidence and statements of the eye witnesses mentioned in the report the I.O. should not have thrown it out from prosecution as against the accused in a manner like this by taking into consideration affidavits of few interested persons. The learned counsel on behalf of the accused argued that the complainant after the cancellation of his case should have gone in revision before the Sessions Judge under section 435 read with section 439(A) Cr.P.C. instead of filing a petition before this Court under section 561-A Cr.P.C. for the quashment of the order in question. He further argued that order of cancellation of the riminal case for that reason is also not amenable to the revisional jurisdiction of this Court under section 435 read with section 439 Cr.P.C. and placed reliance on a Supreme Court case reported in PLD 1985 S.C. 62. This case rather supports position of the complainant side that instead of filing a revision petition before the Sessions Judge it invoked jurisdiction of the High Court under section 561-A Cr.P.C. against the order in question by relying on the case of the Supreme Court reported in 1993 SCMR 187 wherein the Supreme Court case 'Bahadur Versus State', PLD 1985 S.C. 62 was also referred. 4. Not only this that the case has been reported to the police within 25 minutes the complainant was medically examined by a Doctor who certified his injuries caused in the skull area by a blunt object. It is not shown as how I.O. conveniently over-looked all these important facts during investigation and placed undue weight on the affidavits furnished by certain interest persons not even mentioned in the report and obtained the impugned order of cancellation of the case which prirna facie seems a mala fide act on the part of the Investigation Police Officer and the manner in which he obtained these orders from the Magistrate for the discharge of the accused from prosecution of the case which clearly amounted to abuse of the process of the court and the High Court would be, therefore, fully justified in setting aside impugned order of the Magistrate under section 561-A Cr.P.C. by directing the disposal of the case on merits in accordance with law. 5. In a recent case before the Supreme Court (1997 SCMR 304) 'Muhammad Sharif and 8 others-appellants versus The State and anotherrespondents' this proposition was again considered by the Court in the light f the cases, 'Bahadur and another-appellant versus The State and anotherrespondents' PLD 1985 SC 62 and 'Arif Ali Khan and another-petitioners versus The State and 6 others-respondents' 1993 SCMR 187 and came to the conclusion that, "looking to the erosion of positive values in social set up, loss of moral direction, the development of culture of corruption, ever increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life, we find that, it would be in the interest of justice that ratio in "Arif All's case supra which tends .to counter the deterioration pervading in the society at this juncture is followed and the order passed by a sub-ordinate criminal court which clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice." 6. I would be, in the circumstances, constrained to accept this petition and pass an order according. (K.K.F.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1193 Present: dr. munir ahmad mughal, J. SARDAR MUHAMMAD-Appellant versus STATE-Respondents Crl. Appeal No. 27-J-1995, accepted on 5.5.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302/148--Murder-Offence ofConviction for-Challenge to Contention that once trial court held that murder was committed due to "Ghairat" he should have acquitted appellant instead of awarding him sentence specially when according to report of Chemical Examiner, swabs were taken away from the body of deceased (Mst. N) were stained with semenAccused appellant is none than real father of deceased (Mst. N) tatements of PW's and report of Chemical Examiner which says that vaginal swabs of deceased Mst. N were stained with semen leave no room for doubt that at relevant time deceased S was committing Zina with Mst. N deceased who was real daughter of accused-appellant-In such a situation appellant being father of Mst. N, deceased was overpowered by wave of his family honour and "Ghairat" and killed both deceased at spot- -Held: Appellant has committed no offence liable to punishment- Accused/appellant acquitted. [Pp. 1195 & 1196] A & B Mr. Dil Muhammad Tarrar, Advocate for Appellant. Mr. Irs had Ahmad, Advocate for State. Date of hearing: 5.5.1997. judgment Five person, namely, Sardar Muhammad Hanif, Zafar Iqbal, Muhammad Idrees and Abdul Mjaeed faced trial under sections 302/148 and 149 PPC for committing the qatl-i-amd of Muhammad Suleman Khan and Mst. Xaseem Bibi. The learned trial Judge vide his judgment dated 27.1.1994 acquitted Muhammad Hanif, Zafar Iqbal, Muhammad Idrees and Abdul Majeed whereas Sardar Muhammad, the present appellant, was convicted under Section 302-C, PPC on two counts and sentenced to five years R.I. on each count. As the deceased Muhammad Suleman Khan lost his life on account of his unlawful and immoral act, no compensation was ordered to be paid to his heirs. 2. The convict has challenged his conviction and sentence through this jail appeal. 3. The prosecution case as contained in the FIR, Ex. PK recorded by Inspector Shoaib Ahmad, PW. 9 on the basis of statement of Bashir Ahmad, PW. 2 is that on 29.6.1992 at about Ishawela, he alongwith Muhammad Shafi was returning to his village from his tubewell. When they reached near the sugarcane field of Maseetay Khan, they saw Suleman Khan running ahead while Sardar Muhammad armed with a hatchet was chasing and giving him hatchet blows. Suleman Khan fell down and in that condition Sardar Muhammad gave repeated hatchet blows. In the meanwhile, Sardar Muhammad caught hold of his daughter Mst. Naseem Bibi who hidden herself in the sugarcane field with untied Azarband. He started giving hatchet blows hitting on various parts of her body. Both Suleman Khan and Naseem Bibi succumbed to the injuries and died at the spot. 4. Soon after the occurrence, the appellant Sardar Muhammad armed with hatchet himself appeared before the Police and handed over the blood stained hatchet (P. 7) in his possession to the police which was taken into possession vide memo Ex. PR, 5. Inspector Shoaib Ahmad, then proceeded to the place of occurrence and inspected the dead bodies of Suleman Khan and Nasim Bibi. He prepared injury statement, Ex. PR and inquest report, Ex. PD of Suleman Khan. Similarly, injury statement, Ex. PG and inquest report, Ex. PF in respect of Nasim Bibi were also prepared. The police officer collected the blood stained earth from the spot. The Kassi P. 1 lying in the sugarcane field was taken into possession vide recovery memo Ex. PM. The police officer drafted the rough site plan of the place of occurrence as Ex. PS. From the personal search of Suleman Khan, a wrist watch, a Tasbeeh, a cap, some tablets, opium half gram and a sum of Rs. 243/- were also recovered and taken into possession vide memo Ex. PT. After recording the statements of the PWs, the officer arrested Sardar Muhammad at the spot. After the post mortem examination of Muhammad Suleman Khan, on the following day, Muhammad Ashraf, FC produced before the Inspector shirt P. 2 and Dhoti P. 3 which were taken into possession vide recovery memo Ex. PO. The said FC also produced the last worn clothes of Nasim Bibi consisting of shirt P. 4, Shalwar P. 5 and Dopatta P. 6 which were taken into possession vide recovery memo Ex, PQ. The report of the Chemical Examiner Ex. PC was received by the police officer on 2«7.7.1992 which he submitted before the DSP, CIA. The challan was later on prepared by Inspector Ali Ahmad. 6. On 30.6.1992, Dr. Mubashir Ahmad, Senior Medical Officer, Civil Hospital, Sheikhupura, PW. 1 conducted the post mortem examination on the dead body of Suleman Khan and found 12 injuries on his person including a cut throat 12 x 5 and 4 x 1 on the front of neck. The injuries were antemortem and sufficient to cause death in the ordinaiy course of nature. According to the opinion of the doctor, the cause of death was severe shock, haemorrhage and cardio respirator failure due to injuries 1, 3, 4 and 5 individually and collectively. The time between the injury and the death was immediate and the time between death and post mortem examination was within twenty four hours. I. The doctor also conducted post mortem examination on the dead body of Nasim Bibi on the same day and found 16 injuries on her person. In the opinion of the doctor, the death occurred due to severe shock, haemorrhage and cardio respiratory failure. Injuries 1, 3, 4 and 5 collectively and individually were sufficient to cause the death. The vaginal swabs of the dead body were taken and sent to the Chemical Examiner. The report of the Chemical Examiner is Ex. PC according to which the swabs were stained with semen. 8. As Ajmad All, son of Suleman Khan, deceased was dis-satisfied with the police investigation, he filed a complainant, Ex. PA under Sections 148/302 and 149 PPC in the Court of learned Sessions Judge, Sheikhupura. Accordingly an inquiry under Section 202 Cr.P.C. was conducted and the learned Inquiry Officer opined that prima facie a case under Sections 302 148 and 149 PPC was made out. Both the challan and complaint cases were tried by the learned trial Court. 9. The appellant when examined under Section 342 Cr.P.C., denied the prosecution allegations and professed innocence. In answer to the question why this case against him, he submitted as unden- "As a matter of fact on 29.6.1992 at Isha vela I was coming back from my field and when I reached near the field of sugercane owned by Maseetay Khan I heard whispering. I went inside the field and saw may unmarried daughter Naseem Bibi and Suleman Khan in a compromising position. I was armed with a hatchet at that time which I keep with me usually. I lost my control and senses. Under grave and sudden provocation, I killed both of them there and then and went to the Police Station where I narrated the whole incident and also produced the hatchet." 10. The learned trial Judge holding that the appellant committed the murder of two persons on account of "Ghariat" convicted and sentenced the appellant, as indicated above. II. Learned counsel for the appellant contended that once the learned trial Court held that the murder was committed due to "Ghairat", he should have acquitted the appellant instead of awarding him the sentence specially when according to report of the Chemical Examiner, the swabs taken from the body of Naseem Bibi (deceased) were stained with semen. The accused appellant is none else when the real father of Naseem Bibi, the deceased. 12. Learned counsel for the State did not seriously support the judgment of the learned trial Court rather conceded that he would have no objection if the sentence of the appellant is reduced to one already undergone. 13. J have heard the learned counsel for the parties at length and have gone through the record with their able assistance. The learned trial Court having come to the conclusion after appreciation of the evidence on record that the "QatT' of the deceased was committed on account of "Ghairat", has not adverted to the provisions of Sections 96, 97 and 100 of the Pakistan Penal Code, 1860 (XLV of 1860) which are reproduced as unden- "96. Things done in private defence.--Nothing in an offence which is done in the exercise of the right of private defence." 97. Right of private defence of the body and of property. - Every person has a right, subject to the restrictions contained in section 90, to defend: Firstly His own body, and the body of any other person, against any offence affecting the human body; Secondly The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass." "100. When the right of private defence of the. body extends to causing death.-The right off private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the light be of any of the descriptions hereinafter enumerated, namely:- Firstly ............................................................................ Secondly ..................................................................... Thirdly An assault with the intention of committing rape; Fourthly ..................................................................... Fifthly ............................................................................ The statements of Bashir Ahmad PW. 2 and Muhammad Shafi PW. 3 coupled with the report of the Chemical Examiner Ex. PC which says that the vaginal swabs of Mst. Naseem Bibi were stained with semen leave no room for doubt that at the relevant time Suleman Khan deceased was committing Zina with Mst. Naseem Bibi deceased who Was the real daughter of the accused-appellant. In such a situation the appellant being father of Mst. Naseem Bibi one of the deceased was overpowered by the wave of his family honour and "Ghairat" and killed both the deceased at the spot. In my opinion he has committed no offence liable to punishment. .14. Resiiltantly, I do not uphold the judgment of the learned Additional Sessions Judge, Sheikhupura and acquit the accused-appellant. He shall be released forthwith if not required in any other case. Order accordingly. (K.K.F. i Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1197 [Rawalpindi Bench] Present: muhammad naseem chaudhri. J. MUHAMMAD FAYYAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 402-B of 1997, dismissed on 30.5.1997. Bail- -S. 497 Cr.P.C.--Bail-Grant of-Prayer for-Offence u/S. 381/411 PPC-- Contention that petitioner is entitled to sail with co-accused in the same boat through attraction of rule of consistency as he (co-accused) was admitted to bail by Additional Sessions Judge, that offence u/S. 381- A/411 PPC do not fall within prohibitory clause; that recovery of car stands effected and that inspite of submission of challan trial has not been startedRule of consistency has to be followed by subordinate Court and if it has not been followed, High Court is not bound by order passed in favour of co-accused-Allegation against accused is that he alongwith his co-accused removed/lifted car from road-side which fact fortunately came to notice of owner of car who alongwith his companion and police followed petitioner/accused and he was over-poweredit means petitioner was arrested at the spot alongwith stolen car-Held : It is an exceptional case wherein rule that an accused involved in a case not falling within prohibitory clause should not be admitted to bail-Held further : Petitioner was earlier convicted and chance of repetition cannot be ruled out-Bail refused. [Pp. 1198, 1199 & 1200] A, B, C & D Malik Jawad Khalid, Advocate for Petitioner. Qazi Ahmad Naecm Qureshi, Advocate for State. Date of hearing: 30.5.1997. judgment Naveed Hussain ASI Incharge Mobile 'Gas/if Falcon No. 2, Police Lines, Rawalpindi was on 'Gashf of the area on 4.12.1996 alongwith his subordinates in official vehicle No. RIV/9082 being driven by Javed Akhtar Constable No. 4023. The vehicle reached Bilal Plaza on Bank Road at 4.00 p.m. The inamtes of the vehicle saw on person who was running fastly. He was made to stand who gave his name as Zahoor Ahmad. He informed Naveed Hussain ASI that he had parked his car No. AJKB/222 in front of Waheed Brothers (Tailors and Garments) when two persons without his permission drove the car towards the Bank Road. He (complainant) made Zahoor Ahmad and one person accompanying him to sit in the official vehicle and started following the stolen car. They succeeded in reaching near the stolen car near the office of Military Engineering Services situated on Murree Road in front of Chowk Bank Road. At that time the stolen car hit with a Mazda Bus. The stolen car was made to stand there. Two persons alighted from the same and started running who were chased and were caught on the same Bank Road. One of them named himself as Nawab Khan son of Amir Din while the other, Muhammad Fayyaz son of Fazal Ahmad. On wire-less message the Sub-Inspector posted in Police Station Cantt. Rawalpindi also reached alongwith his staff. Both Nawab Khan and Muhammad Fayyaz accused persons were arrested while Zahoor Ahmad and his companion Abdul Waheed appeared before the police. 2. The car, the Registration Book of the car and three keys of the car were taken into possession vide memo. About the occurrence crime case No. 275 dated 4.12.1996 was registered at. the instance of Naveed Hussain at Police Station Cantt. Rawalpindi under sections 381/411 PPC. On the same date stolen car was identified by Zahoor Ahmad owner and his ompanion Abdul Waheed. Muhammad Fayyaz and his co-accused were sent to the judicial lock up on 5.12.1996 by the Area Magistrate. The bail application of Muhammad Fayyaz petitioner-accused was dismissed by both the lower Courts who has filed this petition before this Court to try his luck to be admitted to bail. 3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Learned counsel the petitioner-accused has canvassed that Muhammad Fayyaz petitioner is entitled to sail with his co-accused Nawab Khan in the same both through the attraction of the rule of consistency as Nawab Khan was admitted to bail by the Additional Sessions Judge; that the offences under sections 381-A/411 PPC do not fall within the prohibitory clause, that the recovery of the car stands effected and the inspite of the submission of the challan during the month of February, 1997 the trial has not been started by the learned Senior Civil Judge/Magistrate Section 30 Cr.P.C. who is the' Flaqa Magistrate. On the contrary it has been argued by the learned State Counsel that Nawab Khan was not entitled to be admitted to bail who was arrested at the spot alongwith Muhammad Fayyaz when the stolen car was taken into possession, that even though the case does not fall within the prohibitory clause in the circumstances of the matter the exception must be taken to the rule that an accused involved in an offence not falling within prohibitory clause is entitled to be admitted to bail and that Muhammad Fayyaz petitioner-accused was earlier convicted in crime case No. 421/92 stered under section 379 PPC at Police Station Civil Lines, Gujranwala ~ about which the report has been obtained from the Superintendent Central Jail, Gujranwala. 4. In my view it is not a case for the admission of Muhammad Fayyaz petitioner to bail and in this respect I express my following reasons:- (i) Nawab Khan co-accused has not doubt been admitted to bail by the Additional Sessions Judge, Rawalpindi. However. I have to express that this Superior Court is not bound by his order so as to grant the weight to the argument addressed by learned counsel for Muhammad Fayyaz petitioner-accused that he has to sail with his coaccused in the same boat through the attraction of rule of consistency. The aforesaid rule has to be followed by the subordinate Court and if it has not been followed the High Court is not bound by the order passed in favour of Nawab Khan. As has become usual people are taking such matters in routine. Otherwise the prosecution could have proceeded against Nawab Khan for the cancellation of bail and that aspect of the matter would have also been a sort, of supervision on the working of the Additional Sessions Judge. This argument is not given the weight. (ii) It is a case of car lifting and cannot be taken lightly as required and desired by Muhammad Fayyaz petitioneraccused. It is not a matter wherein a car was taken into possession by the police while the same was standing somewhere under the custody/supervision of Muhammad Fayyaz petitioner-accused. The allegation against him is that he alongwith his co-accused removed the car from the road-side which fact fortunately came to the notice of the owner of the car who alongwith his companion followed the petitioner and he was fortunate enough to get the assistance of the police party which was on Gasht of the area. Naveed Hussain ASI alongwith the police party made the owner of the car and his companion sit in the official vehicle and followed the accused persons. The car was stopped as it hit with a Mazda Bus. Both the occupants of the car came out of the same and started running. They were over-powered by the police. It means that Muhammad Fayyaz was arrested at the spot alongwith the stolen car. In this view of the matter I hold that as rightly pointed out by the learned Counsel for the State it is an exceptional case wherein the rule that an accused involved in a case not falling within the prohibitory clause should not be admitted to bail. Such cases are quite in rife during these days and the situation having been created by jMuhammad Fayyaz petitioner-accused himself has made j me to withdraw the discretion which need not, be exercised lin his favour. order A case under section 406 PPC was registered against the petitioner on the report of one Noor Ahmad son of Wali Muhammad on the ground that the petitioner was handed over Rs. 2,00,000/- to he kept in trust hy him payment of the same to the complainant Noor Ahmad in accordance with the decision of Mehr Khuda Yar an arbitrator, appointed hy the parties namely Ghulam Murtaza and the aforesaid Noor Ahmad. The arbitrator allegedly held that Xoor Ahmed was entitled to the aforesaid amount but the petitioner refused to make the payment on the ground that he had already spent that amount and that a time of 10 days he given to him to make the payment. The complainant repeatedly demanded aforesaid amount but the petitioner but him off on false promises and ultimately refused to make the payment: hence a case under the aforesaid section was registered against him. 2. The registration of the case is challenged on the ground that the provisions of section 406 PPC were not attracted; and that matter between the parties was of civil nature, for which, a suit was filed by Ghulam Murtaza against Noor Ahmad as well as against the petitioner but the same was dismissed by the Civil Court vide its judgment dated 10.4.1996 with the observation that the legality of the award given by the arbitrator could be challenged in a petition under Arbitration Act. In pursuance of that judgment, the petition for arbitration was moved which was still pending and as such criminal action was not competent, being an abuse of legal process. Hence it was prayed that the impugned FIR is liable to be quashed. 3. After hearing the learned counsel for the parties, it is to be seen whether the institution of a criminal action amounted to an abuse of the process of Court, being in violation of the ends of justice. 4. It is pointed out during the argument that the case has already been sent for trial to the Court concerned after the conclusion of the investigation, in which, the petitioner has been found guilty. The perusal of the FIR prima facie shows that the petitioner was entrusted an amount of Rs. 2.00.000/- which he had to pay in accordance with the decision of the arbitrator. The arbitrator had given a decision, the photo copy of which is placed as Annex: 'E' at page 14 of the record of this petition. It was delivered on 12.4.1996 in which the petitioner was directed by the arbitrator to make payment of Rs. 2,00,000/- to the complainant i.e. Noor Ahmad respondent No. 3. As such it is obvious that the petitioner was prime; facie liable to pay the amount kept by him in trust vide the document executed by him to that effect. The mere fact that the parties have challenged the arbitration award under the Arbitration Act would not guillotine the FIR which has been registered on the basis of deed executed by the petitioner whereby he had expressly undertaken to keep the money with him in order to make its payment to a party in accordance with the order of the arbitrator. As such the FIR in question cannot lie killed in its iueuption particularly when a report under section 173 Cr.P.C. has already been sent to the Court concerned thereby holding that the petitioner is liable to be prosecuted for committing the criminal breach of trust under section 406 PPC. I, therefore, do not find any good ground for the quashment of the impugned FIR. 5. The writ petition being meritless is hereby dismissed. (K.K.F.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1200 Present: raja muhammad khurshid, J. ALLAY YAR-Petitioner versus STATE and 2 others-Respondents W.P. No. 13661/1996, dismissed on 4.6.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- S. 406-Criminal Breach of trust-Case of-Quashment prayer for-F.I.R. which has been registered on basis of deed executed by petitioner whereby he had expressly undertaken to keep money with him in order to make payment to a. party in accordance with order of arbitrator-As such F.I.R. in question cannot be killed in its inception particularly when a report under section 173 Cr.P.C. has already been sent to court concerned thereby holding that petitioner is liable to be prosecuted for committing criminal breach of trust under section 406 PPC-Held: There is no ground for quashment of F.I.R.-Petition dismissed. [Pp. 1201 & 1202] A Mr. Shaukat All Mehr, Advocate for Petitioner. Mr. Zafar Iqbal Chohan, Advocate for Respondent. Date of hearing: 4.6.1997. 15. The learned counsel for the appellant, the State and the complainant were heard at length and the record of the case perused with their assistance. The learned counsel argued for the acquittal of the appellant and submitted that the statement of Approver/accomplice Mukhtar Ahmed PW1 was not inculpatory and that, therefore, no conviction can be placed on his testimony. Further submitted that even the said statement of the Approver suffers from many illegalities and material irregularities because of the mode and manner of its recording, being in contravention of the provisions of Section 164 and 364 Cr.P.C. Further pointed out that the appellant's name was not mentioned in the FIR nor any suspicion voiced against him for more than two months after the occurrence and that there is no credible evidence to link the appellant with the motive set up. Further submitted that there is no eye witness account of the occurrence at all and that the alleged recoveries by themselves failed to establish the charge against the appellant. Finally, argued that PW 1 Mukhtar Ahmed approver was in fact a tuted hostile witness who had been 'reluctant to confess his alleged guilt and has obviously done so on the inducement of others as is manifest from the testimony of PW 11 Shoaib Ahmed, Inspector. 16. On the other hand, learned counsel for the State and the complainant opposed the present criminal appeal and argued that conviction can be based on the sole testimony of approver, if the same was inculpatory, as was the case in the instant matter. In this respect, emphasized that the approver PW 1 had admitted to having hit the deceased Taj Din on the back of his chest with the iron key of the peater engine P6. Further argued that a strong motive has been established against the accused and that the recovery of the said iron key of the peater engine P6 and Safa P5 fully supported the case against the appellant whereas medical evidence fully corroborated the prosecution version. 17. The entire case of the prosecution hinges on the testimony of the approver Mukhtar Ahmed PW. 1 There is no cavil with the principle laid down by the superior Courts to the effect that as a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case, but it has been further held while laying down the principle stated above, by the Honourable Supreme Court in Ghulam Qadir and another vs. The State (PLD 1959 S.C. (Pak.) 377) that, however, in the course of judicial precedents, a rule of prudence has been evolved under which it, is always insisted that there ought to be independent corroboration of an approver's, statement, on material points suggesting a link between an accused person am 1 a crime before such a statement could be accepted as a safe foundation for a conviction while further holding that he reason for the rule is obvious as there is always danger of substitution of the guilty be the innocent in such cases and it is realised that it would be extremely risky to act npto the statement of self-confessed criminal who while trying to save his own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner; and that the corrohoration required would depend on the facts and circumstances of each particular case and no hard and soft rules can he laid down in this behalf, while observing that surely one of the factors calling for consideration may be the circumstance that the approver had no ostensible motive to involve any of the accused persons falsely in the case: further holding, that does not imply any relaxation of normal standards of corroboration in such cases. The second case, relied upon by the learned counsel to support his contention that the conviction can be based solely on evidence of an accomplice, was Munawar Hussain alias Bob: v. The State (PLJ 1993 S.C. 266), however, it was held in the said case that the appellants therein were convicted not solely on the evidence of an accomplice but that the judgments in question by the learned trial Court, and Federal Shariat Court respectivley had referred in detail to corroborative piece of evidence on material particulars, while observing that in accordance with the terms of Article 16 of Qanun-e- Shahadat Order, 1984 which corresponds to Section 133 of Evidence Act? 1872, conviction can be founded on an evidence of an accomplice without any corroboration, if Court is satisfied with the truthfulness of his evidence. 18. However, the Court is constrained to observe that the above cited two judgments of the Honourable Supreme Court are of no help in opposing the present criminal appeal. For the reason that the statement of the approver/accomplice Mukhtai Ahmed PW 1 in the instant case, fails to meet the litmus"test of the statement of an accomplice that it must be inculpatory. The said accomplice had stated to the effect that he had hit the deceased Taj Din on the back of his chest with the iron key (chabi) of the peater engine to bring his statement within the ambit of it being inculpatory but in his testimony Dr. Iftikhar Ahmed PW 13 had categorically stated that no injury thus claimed was founded on the back of the deceased. The said portion of the statement of Dr. Iftikhar Ahmed PW 13 has been recorded as follows in English and in Urdu vernacular respectively:-- "No injury was seen by me on the waist of the deceased." In vernacular it is recorded as:- It shall be pertinent to point o\it at this stage that the approver Mukhtar Ahmed PW 1 had stated as follows in that respect:- "Thereafter I inflicted a key blow on back side of the chest of Taj Din (deceased)." Thereafter he states in his testimony that he had come out of the room in question to stand out side as a guard, absolving himself from any further involvement in the alleged killing of the deceased Taj Din by other alleged absconding two accused Sana Ullah and Modassarlqbal. 18. Here it may be observed that the mode and manner of recording of the statement of approver by CW2 Manzar Saeed, Magistrate 1st Class, is ighly questionable and that impression is, in fact, strengthened by the testimony of the said CW as he himself had stated that he had not recorded in Ex. Cl that statement of the accused had been recorded in the court room nor that the hand cuffs of the accused were removed before recording the said statement and had not informed the accused that he shall not be handed ver to the police after his statement. Further admitted that he had not given any note to the effect that the accused was made to understand the contents of the statement recorded. 19. To deal with the recoveries in the instant case, suffice it to say that he alleged recovery of safa P5 was not effected on the pointing out of the present appellant, and the mere recovery of a bottle smelling of liquor Pi- or the key P6 in the absence of the injury on the back of the deceased claimed to have been caused by the said key by the approver is of no avail to the prosecution. Therefore, it may be reiterated, in view of the principle laid down by the Division Bench in Muhammad Bukhsh etc. vs. The State (PLJ 1974 Cr. Cases (Lah) 38) that it is highly unsafe to base conviction on flimsy . " evidence furnished by doubtful recoveries. 20. To deal with the statement of the accomplice/approver Mukhtar Ahmed PW 1, it is, once again, observed that the part of his statement, which has been relied upon by the prosecution to claim that his statement is inculpatory as well i.e. his claim to the effect that he had hit the deceased at the back of his chest with the key of the peater engine, P6. has been totallybelied by the absence of injury of any nature, however, minor of insubstantial, renders statement only to be exculpatory, as he has otherwise stated in his testimony that he had come out of the room to stand outside as a guard when allegedly the absconding co-accused had caused the murder of Taj Din deceased, thus, totally excluding himself from the commission of the alleged crime. Hence, by his own assertion, he is not even an eye witness of the said fateful occurrence. 21. To sum it up, neither the statement of the accomplice/approver Mukhtar Ahmed PW1 is inculpatory, as his claim to have inflicted injury on the deceased, Taj Din stood belied by the Medico Legal Report Ex. PN and the testimony of PW 13 Dr. Iftikhar Ahmed, whereas the mode and manner of recording of his statement as an approver under the provisions of section 164 Cr.P.C. fully supports the contention raised on behalf of the appellant to the effect that the same suffers from legal infirmity, and as the content and tenor of his statement, as highlighted above, has raised serious doubts about his participation in the occurrence in question and even in respect of his being present at the place of occurrence and that, therefore, the inescapable conclusion drawn is to the effect that his testimony as an approver has to he ruled out of consideration. 22. To support the said conclusion, reliance is placed under the following:- (i) Federation of Pakistan vs. Muhammad Shaft Muhammadi (PLJ 1994 SC 206) wherein it has been held that an accomplice who takes part in commission of offence falls within the categoiy of a wicked person. Therefore, before acting upon his testimony, truth-fulness of it is to be verified by corroborative piece of evidence on material particulars. (ii) In Muhammad Yaqoob & others vs. The State (1992 SCMR 1983) it was held that confession of the approver should be such that it should exclude all possibility of false implication. (iii) In Abdur Rchman vs. The State (1991 SCMR 244) the dictum laid down was that statement of co-accused could not be used against the accused as he had not implicated himself and shifted the burden on the accused. 23. Pursuant to the above discussion, the present criminal appeal is hereby allowed and the impugned judgment dated 23.2.1995 is hereby set aside. Resultantly, the appellant stands acquitted of the offence charged. He shall be released forth-with, if not required to be detained in any other case. For the reasons stated above, Criminal Revision No. 206 of 1995, directed to be heard alongwith the present criminal appeal, is hereby dismissed. (K.K.F.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1202 Present: RAJA MUHAMMAD khurhsid, J. REHMAN and 5 others-Petitioners versus THE STATE and another-Respondents. Criminal Misc. No. 329/Q/1996, dismissed on 27.3.1997. Criminal Procedure Code, 1898 (V of 1898)- S. 561-A-Quashment of proceedings-Prayer for-Offence u/Ss. 440/447/148/149 PPC-It is sufficient to observe that there is genuine controversy regarding possession viz-a-viz offence of trespass as alleged in F.I.R. which can only be settled through regular trial after examining evidence of prosecution and also evidence in defence, if any-Held: It would be too early to say that present case registered was either misconceived or amounted to abuse of process of Court-Petition dismissed. [P. 1204] A & B Mr. Mansoor-ul-Islam Khan Joya, Advocate for Petitioners. Ch. Ghulam Hussain, Advocate for Respondent No. 2. Syed Fazal Hussain Jaffery, Advocate for State. Date of hearing: 27.3.1997. order This petition under Section 561-A, Cr.P.C. is filed by the petitioners for the quashment of the proceedings pending in the Court of Ch. Muhammad flyas, learned Judicial Magistrate, Nankana Sahib, District Sheikhupura initiated upon FIR No. 333/94 under Sections 440/447/148/ 149 PPC in a case registered at police station Mangtanwala, District Sheikhupura at the report of Nosherwan son of Jalal i.e., respondent No. 2. 2. It is contended in the petition that the petitioner namely Rehman is bonafide purchaser of the land in question since 30.11.93 from Mst. Rani for a consideration of Rs. 1,60,000/- vide mutation No. 245 sanctioned in his favour on the same date. He was allegedly in possession of the aforesaid land but respondent No. 2 threatened his possession, whereupon, a suit for declaration was instituted against one Mohabbat and the aforesaid Nosherwan on 24.11.94. Respondent No. 2 appeared in that suit on 4.12.94 and tried to take forcible possession of the suit land on 6.12.94 for which the petitioner approached the police but his version was not recorded. Hence, the police with malafide intention registered a case against him and others vide the impugned FIR for an occurrence which purportedly had taken place on 23.11.94. The FIR was registered on 6.12.94. The petitioner, thereupon, moved a writ petition in the High Court in which an order was made that the counter version of the petitioner be also recorded. Hence the counter version was recorded but the petitioner having not been satisfied with the investigation conducted by the police, again moved the High Court for transfer of the investigation upon which the investigation was transferred to, another Investigating Officer i.e.; to the Deputy Superintendent of Police. The counter version given by the petitioner was found false during the police investigation whereupon, he alongwith others was sent up for trial to the Court concerned. 3. In the FIR filed by Nosherwan i.e.; respondent No. 2, it was alleged that on 23.11.94 while the petitioner namely Rehman armed with Sore, his son Hadayet armed with .12 bore gun and another son namely Riaz armed with Sofa, whereas, Ashraf armed with hatchet came to his land on a tractor, driven by Wilayet son of Rehman. They ploughed the tractor over the wheat crop cultivated by the complainant in his land and desjfoyed the same and got its forcible possession. They also resorted to ineffective firing and threatened that if anybody tried to intervene, he shall be shot dead. The ccurrence was seen by Mohabbat and Ameer Ali. Some efforts were made for compromise between the parties which allegedly delayed the filing of FIR. 4. It is contended by the learned counsel for the petitioners that according to revenue record, the petitioner is in possession of disputed land, being its bonaftde purchaser for value. In this regard, reference was made to mutation No. 245 (Annexure "D"), copy of Registrar Girdawari for 24.10.1993 to 24.10.94 (ASnexure "E"), another extract from Khasra GirdaiL'ari from Kharif, 1993 to Rabi, 1995 (Annexure "F") and a petition moved by the petitioner before the Tehsildar for the verification of his possession over the land in question. That application alongwith orders of the Revenue Officer was placed on record as Annexure 'F-l'. A copy of the civil suit (Annexure "C") and written statement filed by the respondents was brought on record as Annexure "H" to show that respondent No. 2 had appeared in the court on 4.12.94 and thereafter, tried to dispossess the petitioner on 6.12.94. 5. In the light of above documents, it was contended that the registration of the case was malafide and amounted to the. abuse of legal process. It was further contended that the proceedings before the learned Magistrate were not good in the eye of law as those amounted to the abuse of process. Reliance was placed on 1994 PCrLJ 1603 (Lahore) and 1994 PCrLJ 67 (Karachi). 6. Learned counsel for respondent No. 2 contended .that the petitioner had already unsuccessfully availed the legal remedy under Section 249-A, Cr.P.C. in the Court below and hence, he could not file a petition for quashment without exhausting the other remedy such as revision against the order, whereby, his petition under Section 249-A, Cr.P.C. was dismissed. Secondly, it was contended that the authorities cited above have no analogy with the case in hand because in this case, the question of possession remains genuinely in dispute and the question of dis-possession or trespass is to be determined at the trial after examining the evidence. The complaint case filed by the present petitioner namely Rehman is also pending adjudication and hence, there being two versions regarding the same occurrence, it cannot be readily said that the case of respondent No. 2 is based on malafide or that it amounted to the abuse of process of Court. In this regard, it was contended that possession of the respondent/complainant was proved through the evidence collected by the prosecution for which,a list off witnesses had already been attached and without examining them, it cannot be said that the case was false or malafide. 1. Learned state counsel submitted that the question of possession has to be determined though it is clear that one of the petitioners namely Rehman had purchased the land as mentioned in mutation No. 245. The identification of the land is yet to be made which would be possible onif^ during the examination of the witnesses at the trial. 8. I have considered the foregoing submissions and find that there is a real controversy between the parties which needs judicial scrutiny at the trial. Even reference to the documents produced by the petitioners such as copies of Khasra Girdawari (Annexures 'E' and 'F') will show that Nosherwan son of Jalal, a co-sharer was in cultivating possession of the land in Khasra No. 20/9/10 on 24.10.73. The mutajjpn of ownership in favour of Rehman was admittedly sanctioned on 30.11.93 which means that the transaction of sale took place after the aforesaid date i.e., 24.10.93. Hence without prejudicing the merits of the case or trial before he leaned Court I below, it is sufficient to observe that there is a genuine controversy regarding i the possession viz-a-viz the offence of trespass as alleged in the FIR, hich i can only be settled through a regular trial after examining the evidence of u the prosecution and also the evidence in defence, if any. It may also be pointed out that Rehman petitioner had brought a separate complaint containing his cross-version which is also awaiting trial and hence, it would ] be too early to say that the present case registered vide FIR No. 333/94 was either mis-conceived or amounted to the abuse of process of Court. 9. The petition being meritless is dismissed. 'B.T.i Petition dismissed.
PLJ 1997 Cr
PLJ 1997 Cr.C.
(Lahore) 1205
Present:
MUHAMMAD
AQIL MlRZA, J.
Hafi'z
MUHAMMAD SIDDIQUE ANWAR-Petitioner versus
THE STATE-Respondent
Criminal Misc. No. 486/Q of 1995, accepted on 24.3.1994.
Criminal Procedure Code, 1898 (V of 1898)--
-S. 561-A-Quashment of proceedings-Prayer for-Offence u/S. 500 PPC--
Whether Magistrate can take cognizance of offence u/S. 500
PPC on police challan u/S. 173 Cr.P.C.--Question of-Case in respect of offence u S. 500 P.P.C. may be investigated by Police on direction of magistrate but trial magistrate cannot competently take cognizance of offence in pursuance of report submitted u/S. 173
Cr.P.C.-Held : Magistrate has jurisdiction to take cognizance of offence punishable u/S. 500 P.P.C. if complaint is directly filed before him by aggrieved person and not on police report-Held further
: Section 198 Cr.P.C. specifically bar taking cognizance of offence except complaint made by aggrieved person-
Petition accepted and proceedings quashed.
[Pp. 1209
& 1210] A & B
Mr.
Shazib Masood.
Advocate for Petitioner.
Mr. Masood
Akhtar Sheikh, Advocate for Respondent.
Date of hearing: 27.10.1996, judgment
FIR No. 418 dated 3.11,1994 -,vas registered at Police Station Jhang
Bazar Faisalabad at the instance of Maulana
Saeed-ur-Rehman Anwnri against
Hafi:
Muhammad Siddique Anwar, petitioner herein and some other under Section 500 PPC, on the allegation that the petitioner on account of personal animus had published a false pamphlet against the complainant in August 1994 with a view to defame him and that another pamphleT containing baseless and false allegations against the complainant was read}- to be published. The police found
Hafiz
Muhammad Siddique
Anwar and Sadiq Ali guilty of the allegations levelled by the complainant and submitted report under Section 173 Cr.P.C., whereupon cognizance was taken by the Magistrate 1st Class, Faisalabad. The accused persons moved application under Section 249-A Cr.P.C. for acquittal, inter aha, on the ground that the offence under Section 500 PPC was non-cognizable and therefore, the Magistrate had no jurisdiction to proceed in pursuance of a police challan. The learned Magistrate vide order dated 12.9.1995, however, dismissed this application after holding that the police challan. would be treated as complaint of the aggrieved person.
Haftz
Muhammad Siddique
Anwar and Sadiq Ali then filed revision petition which too has been dismissed by the learned Additional Sessions Judge Faisalabad vide order dated 30.11.1995.
This quashment petition has been filed by Hafiz
Muhammad Siddique Anwar to challenge the aforementioned orders passed by the learned Additional Sessions Judge and the Magistrate and for quashment of the F.I.R.
2.
Mr. Shah Zeb Masood, learned counsel for the petitioner has made two fold submissions. First, the offence punishable under Section 500
PPC is a non-cognizable offence and there being no permission by the
Magistrate to investigate the case, the very investigation and proceedings taken by the police are without jurisdiction. In this view of the matter, he has contended that the challan submitted by the police under Section 173
Cr.P.C. is total nullity in the eye of law with the result that the learned
Magistrate could not initiate proceedings in pursuance thereof. The second submission made by him is that by express provisions of Section 198 Cr.P.C.
a criminal court can taken cognizance of the offence covered by Section 500
PPC if the complaint is made by the aggrieved person. According to the learned counsel, it necessarily means that a criminal court can take cognizance of the offence punishable under Section 500 PPC if a complaint was directly made by the aggrieved person himself and not through a challan submitted by the police. In support of these submissions Mr. Shah Zeb
Masood, Advocate has placed reliance on the following case law :-
(i)
Haider and 13 others vs. The State
(1969
P.Cr.L. J. 598).
(ii)
Mst. Mumtaz Begum and 4 others vs.
The State
(1968
P.Cr.LJ. 97).
(hi)
Saeed
Ahmad Siddiqui vs. The State
(1983 P.Cr.L.J. 1619).
(iv)
Muhammad Aslam vs. The State
(1993 P.Cr.L. J. 205). (v)
Hussain Bakhsh vs. The State
(PLD 1963 Lahore 46).
(vi)
Maijuddin
Laskar and 13 others vs. Maulana Nurunnabi
(PLD 1965 Dacca 421).
3.
Mr. Masood Akhtar Sheikh, Advocate appearing on behalf of the respondent-complainant has submitted that the learned trial court after the submission of the challan by the police had taken cognizance of the offence, in that, copies of the statements recorded under Section 161 Cr.P.C. have been supplied to the petitioner and in these circumstances the report of the police submitted under Section 173 Cr.P.C. will be treated to be a complaint made by the aggrieved person. At any rate, he has submitted that taking cognizance on the police challan is a mere irregularity which does not vitiate the proceedings. He has placed reliance on the following case law:-
(i)
The Crown vs. NurAlam
(PLD 1955
Lahore 667).
(ii)
Muhammad Aslam vs.
The
State and another
(1980
P.Cr.L.J. 742).
4.
In order to appreciate the respective contentions raised by the learned counsel for the parties the relevant provisions of law may be taken note of. The offence of defamation covered by Section 500 PPC was initially non-cognizable under the provisions of Schedule II of the Cr.P.C. In 1964 this offence was made cognizable but by virtue of the provisions of Act 4 of 1986 this offence was again made non-cognizable. The admitted position, therefore, is that at the time when the alleged occurrence took place in 1994 the offence covered by Section 500 PPC was not cognizable.
5.
The relevant provisions which require examination are Sections 4
(1)
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1210 [Appellate Jurisdiction] Present: iftikhar hussain chaudhary, J. ARSHAD alias KAUSAR-Appellant versus STATE-Respondent Criminal Appeal No. 555/1993 & 612/1993, accepted on 13.11.199(5. Pakistan Penal Code 1860 (XLV of 1860)-- -S. 302/34/379-Murder-Offence of-Conviction for-Challenge to-- (Appreciation of evidences-Presence of-Complainant and eye-witnesses is suspect for the reasons that their testimony is not supported by medical evidence-PW5 was a way-farer and a chance witness-!'rime weapons were also recovered from appellants and their case is not distinguishable from that of co-accused who have been acquitted which acquittal has not been challenged by complainant and benefit of all factors has to go to appellants-Appeals allowed. [P. 1216] A & B Mr. Muhammad Siddique Chughtai, Advocate Mr. Muhammad Hussain Chhachar. Advocate for Appellants. Mr. Shahbaz Saeed Sajid, Advocate Mr. Hussain Ahmad Khan Kanwar, Advocates for Respondent. Date of hearing: 3.11.1996. judgment Criminal Appeal No. 555 of 1993 titled "Arshad alias Kausar vs. The State' and Criminal Appeal No. 612 of 1993 titled "Ghulam Mustafa vs. The State" arising out of the same judgment are proposed to be disposed of together. 2. Case FIR No. 240/91 u/Ss. 302, 379, 34 PPC was registered at Police Station Hujra Shah Muqeem District Okara on the report of one Muhammad Ashraf. According to first informant case FIR No. 311/90 u/S. 02. 14S. 149, PPC was registered at Police Station Hujra Shah Muqeem about 10 months prior to registration of case FIR Mo. 240/91 regarding murder of his mother Ghulam Fatima, and his brother Muhammad Aslam at the hands of Ghulam Mustafa and others. Ghulam Mustafa alongwith coaccused was challaned and he was on bail in that case. It was alleged that about 15/16 days prior to the incident, Ghulam Mustafa had asked (Muhammad Ashraf) and his brother Muhammad Arshad not to pursue the earlier murder case otherwise the consequences would follow. The first informant reported that on 14.6.1991 he alongwith Muhammad Arshad, Muhammad Sher had gone to village Ram Parshad to pay an outstanding amount of Diesel Oil and they were returning home through a pacca link road from Rajowal. His brother Arshad was ahead of them and was carrying his licenced 7 m.m. rifle with him. Muhammad Sher followed him. When Muhammad Arshad and others reached near Dhari of Muhammad Yasin at Rajowal road at 7.30 p.m. Fiaz Ahmad son of Mehmood armed with 30 bore pistol. Arshad alias Kausar (appellant) armed with 12 bore shot gun, Ghulam Mustafa son of Muhammad Din (appellant) armed with 7 m.m rifle, Ghulam Mustafa son of Muhammad Hayat armed with 12 bore pistol resident of Kharal Kalan, emerged at the spot. Ghulam Mustafa raised lalkara that complainant party, all the three brothers, be not allowed to escape and be taught a lesson for pursuing the case. Faiz fired with his 30 bore pistol hitting Muhammad Arshad in his abdomen. Ghulam Mustafa fired with rifle which shot hit Arshad near his left knee. Arshad alias Kausar fired with 12 bore shot gun hitting Arshad on his left arm and buttock. hulam Murtaza fired with 12 bore pistol which shot hit Arshad on his right leg and right knee. Muhammad Arshad fell down and on raising alarm by his brother Muhammad Sher, Sana Ullah and Shoukat Ali resident of Jan Pura, who were passing by, were attracted to the spot and also witnessed the occurrence. The accused while shouting went towards Kharal Kalan. The complainant and witnesses approached Muhammad Arshad after the accused had left the spot and found him dead. They also found that the accused had taken away the licenced rifle belonging, to the deceased. 3. All the four accused were challaned and later tried in the court of an Additional Sessions Judge, Okara. 4. The prosecution examined 10 ))ersons as witnesses to prove its case. Abdul Rehman a Deputy Superintendent of Police and Nazar Hussain Inspector of Police were examined as court witnesses. 5. Dona, PW 1 had identified the dead body of Arshad at the time of postmortem examination of the dead body. Muhammad Ashraf, the complainant appeared as PW 2 and reiterated the contents of FIR and added that accused had taken away the rifle as well as rhudar belonging to the deceased. Faqir Muhammad PW3 is a formal police witness. Muhammad Sher PW4, a brother of the deceased supported Muhammad Ashraf qua motive as well as the incident. He also deposed that, the accused had taken away chadar of the deceased. He also deposed about the motive which was to the effect that Zulfiqar, his brother had abducted daughter of Faiz Ahmad for which a criminal case was registered against Zulfiqar, Muhammad Sher, PW 4, and others and later daughter of Faiz Ahmad, accused, was restored nd later Ghulam Fatima mother of the deceased and the witness and Muhammad Aslam. brother of the deceased were murdered by Muhammad Anwar son of Faiz Ahmad, Ghulam Mustafa, Muhammad Arshad and one Abbas and others who were challaned in that case and Muhammad Arshad was witness in that murder case, due to which grievance Muhammad Arshad was murdered. Shoukat Ali PW5 stated that he alongwith Sana Ullah were returning from Qilla Sadha Singh and saw Muhammad Arshad, Muhammad Ashraf, Muhammad Sher coming from Ram Parshad and when they reached in front of Dhari of Yasin the accused armed as stated above emerged and fired at the deceased. Nawab Ali PW6 prepared site plan Ex.PC. 6. The postmortem examination on the dead body of deceased was conducted by Dr. Saugheer Ahmad PW7. He found the following injuries on the dead body: «
J. A fire arm lacerated wound 1 c.iu. x 8 c.m. going on the medial and upper part of left forearm, 2 c.m. below to left below joint. Margins of wound were inverted balckening around the wound was present CEntry wound). 2. A firearm lacerated wound 2.2 c.m. x 1.5 c.m. on the interior and upper part of left forearm. Margins of the wound were everted. (Exit wound of injury No. 1). 3. A firearm lacerated wounu .8 c.m. x 7 c.m. x in going on lateral and upper part of left thigh. Margins oJ wound were inverted. Blackning around the wound were presented. 4 A firearm lacerated wound 2.5 c.n>. x 6 c.m. on the middle and right side of abdomen, 11.5 c.m. lateral to umhlicous an 25.5. c.m. below to right supple. Intestine was coming out from the wound. Margins of the wound were everted. (Exit wound of injury No. 3.). 5. Firearm lacerated wound 1.8 c.m. x .9 c.m. x bone deep on the lateral and lower part of left knee joint. Margins of the wound were inverted. A bullet was recovered from the wound (Entry wound). 6. A linear abrasion 15 c.m. x 1.5 c.m. on the posterior and lower part of left thigh. 7. An abrasion 5 c.m. x 2 c.m. on the medial and lower part of left knee joint. 8. Bruise 11 c.m. x 1.5 c.m. on the lateral and lower part of left thigh. 9. Multiple burn wound 7 c.m. x 1.2 c.m. on the front of both testes, scrotum were swollen and lower end were black in colour. 10. A burn wound 1 c.m. x 8 c.m. on the lateral and lower part of right knee joint. According to witness death was caused by haemorrhage and shock due to injuries No. 1, 2, 3 and 4 which were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and were caused by fire arm. 7. Muhammad Yasin PW8 recorded FIR Ex. PA at the instance of Muhammad Ashraf PW2. Muhammad Sharif PW9 escorted the dead body of Muhammad Arshad to mortuary. Noor Ahmad PW10 is a formal police witness. 8. Abdul Rehman A Deputy Superintendent of Police was examined as CWl. The witness deposed that he had investigated the case under the orders of Deputy Inspector General of Police Lahore Range. According to witness he had agreed with the three investigation conducted earlier in the matter and found the accused innocent as was concluded in the earlier investigations. He also deposed that according to investigation conducted by him the deceased who was a vagabond and a criminal had illicit relations with daughter of one Roshan Kumhari and that he had opined that the deceased might have been done to death by some one else or by son of Roshan. 9. Nazar Hussain Inspector of Police appeared as CW2. He deposed that he had conducted the investigation between 25.9.1991 and 5.12.1991 and found the accused as innocent in the case. 10. After the prosecution e" ; den"e stood recorded the accused were examined u/S. 342 Cr.P.C. The., lenied the prosecution case against them and stated that they were implicated in the case on account of long standing enmity between the parties and they were innocent, 11. Learned trial Court, believed the prosecution case to the extent of Muhammad Arshad alias Kausar and Ghulam Mustafa son of Muhammad Din and held them guilty for causing Qatl-e-Amd of Muhammad _ Arshad deceased and convicted them u/S. 302-B PPC and awarded imprisonment for life to both of them. They were also given benefit of provisions of section 382-B Cr.P.C. 12. Muhammad Arshad alias Kausar filed Criminal Appeal No. 555/93 while Ghulam Mustafa filed Criminal Appeal No. 612/93 against the conviction and sentence awarded to them by learned Additional Sessions Judge, Okara by judgment dated 4.9.1995. Learned counsel for the parties have been heard in the matter today. 13. Learned coiusel for the appellants submitted that it was a night time occurrence and was not witnessed by any body. It was submitted that Muhami i^.d Ashraf complaiua'i and Muhammad Slier were allegedly accompanying Muhammad Arshad at the time of attack and motive for the incident was stated to be that Muhammad Ashraf and Arshad were pursuing the murder case against the accused and since the motive against all the three brothers was common, there was no occasion for sparing Muhammad Ashraf and Muhammad Sher who were not attacked by the assailants at the time of incident. It was argued that it was sufficient indicator of the fact that both Muhammad Ashraf and Muhammad Sher were not present at the spot. It was argued that the motive was improved at the trial and the stoiy put forward by the witnesses was belied and contradicted by the medical evidence on record. It was submitted that FIR was lodged belatedly on the next morning of the incident and no mention was made of the fact that the deceased was fired upon at his private parts or that the accused had taken away the chadar while, after registration of the case, the police found the deceased to be naked and had injuries on his private parts which were described as injuries No. 9 and 10 by the examining Medical Officer, and it was argued that omission which was 1 veiy material went a long way to support the contention of the defence that the occurrence was not seen by the compiainant or the witn^^es. It was argued that according to investigating officer only deceased had gone to the Diesel Oil Dealer and none of the witnesses had accompanied the deceased at the relevant time. It was contended that Shoukat Ali PW, according to his own showing was a chance witness and he belonged to brother hood of the deceased and as such his testimony ought to be rejected. It was submitted that there were four residential houses situated near the place of occurrence and no one frorh the lace was examined. Learned counsel further submitted that appellants and their co-accused were implicated falsely and each one of them was assigned a single shot and there was no hurdle in the way of the accused to repeat the shot and this factor too went against the prosecution. It was further submitted that recoveries were not effected from the appellants and the Investigating Officer PW 8 had exonerated the appellants as well as their coaccused. It was next submitted that case of the appellants was not distinguisttable from that of the 1 acquitted co-accused and their conviction was recorded unjustifiably. 14. Learned counsel for the complainant on the other hand submitted that motive against the accused stood proved and accused as a matter of fact were all out to eliminate the entire family of the deceased as earlier, they had murdered their mother arid brother. It was argued that opinion of the Investigating Officer or of the court witnesses did not carry any weight and at any rate was not binding on the court. It was submitted that case against the appellants stood proved beyond any shadow of doubt and conviction was recorded, in their case, justifiably. Learned counsel for the State also supported the impugned judgment and stated that the appellants were assigned the specific roles which were supported by the medical evidence and non-recovery of crime weapon was not material in the case. 15. The occurrence took place at 7.30 p.m. on 14.6.1991 on a public road. According to complainant he alongwith his brother Arshad, deceased, and a third brother Muhammad Sher had gone to a Diesel Oil Dealer at village Ram Parshad to make payment against an outstanding bill and after making the payment they were returning home on foot when they were attached by the present appellants as well as two co-accused. Each of the four assailants had statingly fired once at the deceased. The matter was reported to police next day at 6.00 a.m. and the injuries caused by each of the assailants were specifically mentioned in the 'FIR. No mention whatsoever was made of injuries received by the deceased on the private parts of his body or knee which injuries were later noticed as injuries No. 9 and 10 in the post-mortem report. The Investigating Officer, after registration of the case reached the spot and found the dead body as covered with a chadar and he was found naked. The complainant had nowhere mentioned that the accused had also made the deceased naked and had taken away chadar worn by him. Injuries No. 9 and 10 having burns were caused by fire arm from a close distance when deceased in all probability was naked. If Muhammad Ashraf and Muhammad Sher had seen the incident as claimed by them, they could not have missed this aspect of the incident particularly when the matter was reported to police after about 10 hours of occurrence. The witnesses introduced this part of the story at the time of trial and stated that the accused had taken away chadar of the deceased but no reason has been dvanced as to why this fact was not mentioned earlier. 16. The motive for the incident was that mother and brother of the deceased and the PWs were murdered at the hands of the accused and Ghulam Mustafa had asked Muhammad Arshad and Muhammad Ashraf to desist from prosecuting that case. If Muhammad Ashraf and Muhammad Sher were accompanying their brother it is not comprehensible as to why the assailants or the appellants did not launch any attack on them and spared them. The complainant or Muhammad Sher nowhere stated that at the time of assault they took shelter behind any object or had run away from the spot. This aspect of the matter as well as the reason that medical evidence contradicts original story given in the FIR, makes presence of complainant and Muhammad Sher at the place of occurrence at the relevant time highly doubtful. 17. The only independent witness produced at the trial is Shoukat AM PW5. He admittedly was a chance witness and was resident of a village situated several miles away. His testimony suffers from the same defects as ' that of Muhammad Ashraf PW2 and Muhammad Sher PW4. 18. Arshad alias Kausar appellant was alleged to have caused an injury to buttock of the deceased which was also not found by the Medical Officeront the time of post mortem examination. It has also been noticed that the witnesses tried to improve upon the prosecution case during trial and there is contradiction in the testimony of PW2, PW4 and PW5 as regards injuries attributed to present appellants particularly Muhammad Arshad alias Kausar. 19. In a case involving capital punishment the evidence brought forth by the prosecution has to be of unimpeachable character, the presence of witnesses at the spot has to be proved beyond any reasonable shadow of doubt and the ocular account has to find support from ambience of the case and has to be corroborated by all the other material brought on record by the prosecution. In the case in hand presence of complainant and other eye witnesses Muhammad Sher PW 2 and PW 4 is suspect for the reasons that their testimony is not supported by the medical evidence. Shoukat Ali PW5 . was a wayfarer and a chance witness at the most. The crime weapons were also not recovered from the appellants and their case is not distinguishable from that of the co-accused who have been acquitted from the case, which acquittal has not been challenged by the complainant and benefit of all these factors has to go to the appellants. For the foregoing reasons the appellants are given benefit of doubt and are acquitted of the charge by allowing the appeals filed by them. They may be released from jail if not wanted in any other criminal case. (A.P.) Appeals accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1217 Present: muhammad naseem chaudhary, J. MAHBOOB ALAM-Petitioner versus STATION HOUSE OFFICER, P.S. SADDAR, GOJRA DISTRICT TOBA TEK SINGH and 2 others-Respondents Criminal Misc. No. 276/H/1997, decided on 18.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 491--Mafceas corpus-Petition of--S.H.O. intimated Bailiff that no case was registered against detenu and he was not required by Police in any ease--According to daily diary arrest of detenu was not shown--Held : Detention was illegal-S.H.O. directed to pay costs/compensation in sum of Rs. 3,000/- to detenue failing which penal action will be taken against him. [Pp. 1217 & 1218] A, B, C, D & E Mr. M. Anwar Sipra, Advocate for Petitioner. Mr. Muhammad Iqbal Khichi, AAG for Respondents. Date of hearing: 18.3.1997. judgment This Crl. Misc. No. 276-H/97 titled as Mahboob Alam vs. SHO Police Station Sad\lar GoWhen they reached near the sugarcane field of Maseetay Khan, they saw Suleman Khan running ahead while Sardar Muhammad a for the recovery uf the alleged detenus namely Dilmeer, Muhammad Riaz. Muhammad Azam and Shaukat from the alleged illegal and improper custody of SHO Police Station Saddar Gojra, District Toba Tek Singh. Anjum Baluch ASI Police Station Saddar Gojra and Muhammad Tufail ASI Police Station Saddar Gojra (respondents No. 1 to 3). This petition is supported by an affidavit. 2. A Bailiff was deputed to proceed in the matter who reached Police Station Saddar Gojra at 3.45 p.m. on 15.3.1997. He disclosed his identity and took into his possession the daily diaiy. Muhammad Arif SI/SHO and Ijaz Hussain Moharrir were present there. The Bailiff searched for the four persons. Shaukat was found by him confined in the police lock-up while the remaining three persons namely Dilmeer, Muhammad Azam and Muhammad Riaz were not present. He was intimated the Dilmeer, Muhammad Azam and Muhammad Riaz were arrested by the police in some criminal case who were produced before the learned Area Magistrate for securing their physical remand but the Court discharged them. 3. The SHO intimated the Bailiff that no case was registered against Shaukat and he was not required by the police in any case. According to the daily diary being maintained in Police Station Saddar Gojra the arrest of Shaukat was not shown. 4. The plea of the SHO is that one application was received and in connection with its inquiry he called for Sd taken into possession vide memo Ex. PT. After recording the statements of the PWs, thefine Shaukat in the police lock-up. He begged pardon. 5. In view of the aforesaid aspect of the matter when no criminal case was registered against Shaukat whose arrest was not shown in the daily diary of Police Station Saddar Gojra when he was found as confined in the police lock-up by the Bailiff, I hold his detention as illegal and declare him as a detenu. Consequently he is set at liberty and can go to a place of his own choice. 6. At this stage I have to express that Muhammad Arif SI/SHO in violation of law, justice and fair play deprived Shaukat detentu of his liberty. To deprive a person of his liberty particularly in an Islamic State is a serious matter and no exception can be taken thereto. For the last one decade the Police officers take pleasure and pride in violating the human rights by taking the law in their hands and depriving the people of their liberty without legal justification. Such highhandedness on the part of police officer cannot be ignored. He must be burdened with costs as held in the case law published as Abdul Majeed vs. SHO Police Station Rohilanwali, District Muzaffargarh (1995 P.Cr.L.J. 1209 Lahore) of which I am myself the author. I, therefore, direct Muhammad Arif SI/SHO Police Station Saddar Gojra, istrict Toba Tek Singh to pay costs/compensation in the sum of Rs. 3,000/- (rupees three thousand only) to Shaukat released detentu on 25.3.1997 in the Court on which date he shall appear personally to do the needful failing which the penal action shall be taken against him as well as the recovery of the amount shall be effected from him as arrears of land revenue. He aforesaid SHO is also warned to be careful in future towards the released detenue in particular and public in general. In terms of order dated 18.3.1997 an amount of Rs. 3,000/- has been paid by Mr. Muhammad Arif SI/SHO as compensation to the detenu. This matter stand disposed of. (A.P.) Detenue set at liberty.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1219 Present: RASHID AZIZ KHAN, J. MUHAMMAD HUSSAIN etc.--Appellants versus THE STATE-'-Respondent Criminal Appeal No. 217 of 1993, accepted on 25.2.1997. Pakistan Penal Code, 1860 (XLV of I860)-- -Ss. 420/468/471 P.P.C., read with Prevention of Corruption Act (II of 1947). S. 5(2)-Appreciation of evidence-There is nothing on record to connect appellants with alleged occurrance-Only damaging statement available on record was that of Handwriting Expert-According to said witness it was only F who could be involved-Said F had already died-As far as complainant is concerned, no reliance on his statement can be placed-He has contradicted himself with complaint made before police-- Tehsildar who appeared on oath has also contradicted version of first informant-Held : Prosecution has failed to establish involvement of appellants beyond reasonable doubt-Appeal accepted. [P. 1221] A C. Muhammad Abdullah, Advocate for Appellants. , Miss Yasmin Sehgal, A.A.G. for State. Date of hearing: 25.2.1997. judgment Facts leading to filing of this appeal are that appellants Muhammad Hussain and Muhammad Shati sons of Bagh Ali alongwith others were reported against with Police Station ACE, Sialkot for offences under sections 420/468/471 PPG read with section 5(2) of Prevention of Corruption Act, 1947, After usual investigation case came up for trial before Special Judge, Anti-Corruption, Gujranwala at Lahore, who vide judgment dated 20.3.1993 found the appellants guilty under section 468/34 PPC and sentenced each of them to one year R.I. with a fine of Rs. 5,000/-, or in default of payment of fine undergo further R.I. for three months. They were also found guilty under section 471/34 PPC and each of them was sentenced to 6 months R.I. with a fine of Rs. 1,000/-, or undergo further R.I. for two months. It was, however, directed that the sentences shall run concurrently. The convicts have appealed. This judgment shall dispose of the same. 2. Prosecution story in brief as disclosed in the FIR Exh. PH recorded on the basis of complaint Exh. PA made by Muhammad Latif was to the effect that he had purchased 14 Kanal 6 Marias of land from one Mst. Iqbal Begum, wife of Muhammad Ramzan for a consideration of Rs. 50,000/, regarding which sale-deed was mutated on 6.11.1982. Subsequently the appellants with their brother Muhammad Ramzan (since dead) and Feroze Din (died after conviction) and Mst. Iqbal Begum lodged a false report with the Union Council, Ucha Kalan alleging that Mst. Iqbal Begum had died long time back and the appellants had produced some lady who personated as Iqbal Begum and got the mutation sanctioned. The applicant approached the Chairman Union Council who in league with the accused threatened him and thereafter demanded Rs. 10,000/- for effecting a compromise with the applicant. Ultimately the bargain was struck at Rs. 8,000/- which amount was accordingly paid. After registration of the case the investigation was conducted and ultimately challan was submitted in Court. The learned trial court recorded statements of 14 witnesses in all. PW-1 Muhammad Latif had got a case registered against the appellants. According to him, an application by some body was moved against him alleging that he had produced some lady who personated herself as Iqbal Begum before Tehsildar. He asserted that Mst. Iqbal Begum was alive and it was a false application therefore he filed a complaint before the Anti-Corruption Establishment. Mst. Iqbal Begum appeared as PW-2 and stated that she had sold her land on 6.11.1982 for a consideration of Rs. 50,000/- to Muhammad Latif. PW-3 Niaz Ahmad had produced deaui .; aster Exh. PC before the investigating officer. Tanveer Sultan, PW-5 stated that he was Reader to Tehsildar, Narowal and he produced documents vide memo Exh. PE. PW-6 Mian Muhammad Tufail Hayat, SHO. P.S. Nekapura, Sialkot , the then SCO/ACE, Sialkot investigated the case and at the conclusion of the investigation challaned the accused. PW-7 Muhammad Anwar was Chairman, Union Council, Ucha Kalan in November, 1983. He did not support the prosecution version therefore was declared hostile and allowed to be cross-examined by the Public Prosecutor. PW-8 Muhammad Ali, Secretary, Union Council was also declared hostile as he did not support' the prosecution case. Tariq Zaman PV7-9 was posted as Tehsildar during the relevant period. He stated that one Abdul Ghani had moved an application alleging that Mst. Iqbal Begum died in 1970 and Muhammad Latif complainant had produced fictitious lady for transfer of the land. Rana Shaukat Hayat, DSP CIA, the then CO/ACE had partly investigated the case. PW-11 Munawar Ali was Reader to Iftikhar Ahmad Hudnal, Magistrate who has since died. He identified the signatures of the said Magistrate in whose presence specimen signatures of Feroze Din appellant were obtained. PW-14 Mrs. Pervaiz Aslam, Handwriting Expert stated that signature on the question document tallied with the signatures of Feroze Din, since dead, and his appeal has abated. 3. It was contended by learned counsel for the appellants that even if absolute reliance on the evidence is placed, yet the involvement of the appellant is not borne out from the record Stated that all the witnesses have not said a single word which could establish the involvement of the appellants. Argued that no reliance on the statement of Muhammad Latif, P\V-1. complainant could be placed because at different stages he had been making divergent statements. In the FIR he stated that Rs. 8,000/- were paid to the accused persons as a consideration for not pursuing the applications against him: but in court he did not utter a single word regarding the payment of Rs. 8.000/-. Pointed out that the statement of Muhammad Latif is contradicted by the evidence of Tehsildar, according to whom one Abdul Ghani moved an application against Muhammad Latif and not the appellants. The contentions were opposed by learned counsel for the State. 4. I have heard the learned counsel and gone through the evidence with his assistance. Prosecution produced 14 witnesses in all in support of its case. All the witnesses had been read out in Court. There is nothing on the record to connect the appellants with the alleged occurrence. The only damaging statement available on the record was that of the Handwriting Expert who appeared as PW-14. According to the said witness it was only Fed ze Din who could be involved. Said Feroze Din had already died. As far as the complainant is concerned, no reliance on his statement can be placed. - Jie has contradicted himself with his complaint made before the police. The Tehsildar who appeared on oath has also contradicted the version of the first informant. In these circumstances, I hold the prosecution has failed to establish the involvement of the appellants beyond reasonable doubt. Therefore, accepting the appeal convictions and sentences of the appellants are set aside. They are on bail. Their bail bonds shall stand discharge. (B.T.) Appeals accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1221 [Rawalpindi Bench] Present: raja muhammad khurshid, J. MATLOOB HUSSAIN-Petitioiier versus STATE-Respondent Crl. Rev. No. 50 of 1997, dismissed on 14.5.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 514--Surety bond-Show cause notice issued that why surety bond be not forfeited and penalty be inflicted in accordance with provisions contained in aforesaid sectionPetitioners plea was that since accused had already been arrested, therefore, he was absolved of his surety bond and was not responsible for absence of accused on the dates prior to dates of his arrest-Accused was arrested, therefore, petitioner stood absolved of his surety bond would be hardly a correct approach to face court proceedings which could result into pecuniar penalty, or in absence of its payment might lead to an imprisonment in jailHeld: No patent or latent illegality, had been committed by learned court below while making impugned order so as to call for interference by High Court on revisional jurisdiction-Petition dismissed. [P. 1222 & 1223] A, B, C & D Raja Zulqarnain Bhatti, Advocate for Petitioner. Date of hearing: 14.5.1997. order The petitioner stood surety in the amount of Rs. 20,000/- to ensure the presence of the accused Amjad Javed in a case pending against him in the Court of the learned Addl. Sessions Judge, Gujar Khan. The accused did not appear in the Court below on 10.12.96, 22.12.96, 20.1.97 and 17.2.97 respectively for which a show cause notice was issued to the petitioner under Section 514 Cr.P.C. being his surety. It was directed in the show cause notice that since the accused has absented and has not been produced in the Court by him, therefore, why the surety bond be not forfeited and the penalty be inflicted in accordance with the provisions contained in the aforesaid Section. 2. The petitioner filed a reply to the show cause notice in which he took up the plea that since the accused had already been arrested on 26.2.97, therefore, he was absolved of his surety bond and was not responsible for the absence of the accused on the dates prior to the date of his arrest. After putting in the reply, the petitioner i.e., the surety absented which invited the present order, whereby the learned Addl. Sessions Judge taking lenient view reduced the amount of penalty to Rs. 15,000/- from Rs. 20,000/- as mentioned in the surety bond. 3. Learned counsel of the petitioner has submitted that since the accused was arrested, therefore, liability of the petitioner had ceased in respect of he surety bond given by him for his appearance in the Court. However, it was conceded that the accused had not appeared prior to his. arrest in the Court on the dates mentioned above. 4. At that time, the surety bond was admittedly in existence and it was the duty of the surety to produce the accused in the Court on those dates. Having failed to discharge that duty and without appearing before the learned Addl. Sessions Judge, Gujar Khan to contest the show cause notice except by putting in a reply that as the accused was arrested, therefore, he stood absolved of his surety bond would be hardly a correct approach to face the Court proceedings which could result into pecuniar penalty, or in the absence of its payment might lead to an imprisonment in jail. 5. Learned counsel for the petitioner has not been able to convince me that any illegality, patent or latent, had been committed by the learned Court below while making the impugned order so as to call for interference by this Court on revision jurisdiction. 6. The petition being meritless is dismissed in limine. 'K.KF.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1223 Present: malik hamid saeed, J. MUHAMMAD ARSHAD KHAN and 2 others-Petitioners versus STATE and DR. MUHAMMAD AJMAL-Respondent Cr. M. Q. No. 24 of 1996, dismissed on 3.6.1997.
Criminal Procedure Code, 1898 (V of 1898) S. 561-A-Quashment-Prayer for-Offence u/S. 324/34 PPC-Quashment is sought mainly on plea of alibi taken by petitioner-High Court in exercise of its powers u/S. 561-A Cr.P.C. cannot act as trial court so as to see genuineness or correctness of evidence on plea of a/ffof-No doubt under section 561-A Cr.P.C. High Court under its inherent powers can make such orders as may be necessary to prevent abuse of process of any court or otherwise to secure ends of justice but usually High Court does not exercise its inherent powers unless there is grave mis-carriage of justice and interference by High Court deems to be necessary to prevent abuse of process of any court or to secure ends of justice-Held: Petitioner has not been able to make out a case, where a glaring miscarriage of justice has been caused which amounts to abuse of process of Court or quashment of F.I.R. would secures ends of justice-Petition dismissed. [P. 1225] A, B & C Mr. Dost Muhammad Khan, Advocate for Petitioners. Malik Hamesh Gul Khan and S. Zafar Abbas Zaidi, Advocate for Complainant. Date of hearing: 3.6.1997. judgment This petition for quashment of the F.I.R. is the outcome of case registered vide FIR No. 231 dated 2.5.1996 at P.S. Cantt. D.I. Khan U/Ss 324/34 PPC. 2. Dr. Muhammad Ajmal complainant made a report at emergency ward in Civil Hospital D.I. Khan, wherein he charged accused-petitioners Jehangiri, Muhammad Arshad S/O Sher Shah and their two body Guards namely Muhammad Ramzan and one gunman of Muhammad Arshad 1224 Cr.C. muhammad arshad khan v. state PLJ (Malik Ham id Saccd, J.) subsequently named as Sikandar Shah for indiscriminate firing at him and his attorney Abdul Qayyum as a result of which, said Abdul Qayyum was injured while complainant Dr. Muhammad Ajmal escaped un-hurt. 3. At the very outset the learned counsel for the petitioners submitted that he is seeking quashment of the F.I.R. to the extent of Muhammad Arshad accused petitioner and in support of his contention vehemently argued that as per medico-legal report of injured Abdul Qayyum charring has been ascribed on the solitary wound sustained by the victim Abdul Qayyum while this is not the case of the prosecution as put forth in the FIR. According to the contents of FIR when the complainant alongwith his Mukhtar (Attorney) the injured came out of the officers Club, they saw two vehicles parked near the Gate of the Club and the accused-petitioners came out of their respective vehicles and started firing at the complainant and his attorney. 4. Statement of the injured witness was recorded at 8.15 P.M. i.e. after two hours of the occurrence by the I.O. wherein he attributed effective fire only to accused petitioner Muhammad Arshad and as such detracted from the version given in the FIR. The learned counsel further submitted that Medico-legal aspect of the case has totally contradicted the ocular account. The learned counsel mainly stressed on the plea of alibi agitated by the accused-petitioner Muhammad Arshad and seeking the quashment of the FIR against the said petitioner on this score as it is alleged that on the veiy day of occurrence, the petitioner has filed a private complaint U/S 506 PPC against one Dr. Babar Amin in the Court of Illaqa Magistrate Lahore and the Investigating Officer has collected the documentary evidence in this behalf, which is available on the record. In short the learned counsel is of the view that entire prosecution case is contradicted by the medical evidence and the ocular account, and therefore the FIR should be quashed to the extent of accused petitioner Muhammad Arshad. 5. Learned counsel for the respondent strongly refuted the arguments of the learned counsel of the petitioner and submitted that accused petitioner was arrested on 25.8.1996 while the occurrence is of .5.1996 and till then the accused petitioner remained absconder. Further submitted that if plea f alibi was available to the petitioner then why did he kept mum till 25.8.1996 for months ? The plea of alibi taken b the petitioner was not accepted by the Investigating Officer for three reasons:- (i) Direct Charge. (ii) Two employees of the Officers Club namely Gul Khan and Shah Jehan who were examined by the IO on the same day of the occurrence, have seen the accused petitioner in the Club just before the occurrence and PW Shah Jehan has served him with cold drink at the instance of one Zia- Ullah. iii) The said Zia-Ullah was when examined by the 1.0. he also corroborated the statement of Shah Jehan. The learned counsel strongly rebutted the plea of alibi taken by the petitioner and further rebutted the grounds taken by the petitioners' counsel for quashment of the F.I.R. 6. I have carefully considered the arguments made by the learned counsel for the parties. 7. Quashment, is sought mainly on the plea of alibi taken by the petitioner. This court in exercise of its powers U/S 561-A Cr.P.C. cannot act as trial Court so as to see the genuineness or correctness of the evidence on the plea of alibi. Quashment of an FIR would mean the close of prosecution' case and the instant petition therefore, merits outright dismissal. In the instant case the Challan of the case has not yet been submitted to the Court and the case at present is with prosecution and therefore in the circumstances no judicial proceedings have yet commenced. No occasion has yet been raised to prevent the abuse of process of the Court as contemplated in Section 561-A Cr.P.C. which reads as under:- "561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessaiy to ive effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice." The guilty and innocence of an accused requires detailed scrutiny of the entire evidence culieetgd by the prosecution after affording the opportunity to an accused to cross examine the prosecution evidence and thereafter appraisal of the material collected by the prosecution against an accused could properly be assessed. The evidence collected by the prosecution in this case is yet to be recorded and appraised. 8. No doubt under Section 561-A Cr.P.C. the High Court under its inherent powers can make such orders as may be necessary to prevent abuse of process of any court or otherwise to secure the ends of justice but usually High Court does not exercise its inherent powers unless there is a grave mis carriage of justice and interference by High Court deems to be necessaiy to prevent abuse of the process of any Court or to secure the ends of justice. 9. The upshot of my above discussion is that the learned counsel for the petitioner has not been able to make out a case, where a glaring miscarriage of justice has been caused which amounts to abuse of the rocess of Court or the quashment of the FIR would secure the ends of justice. The petition being devoid of merits is, therefore, dismissed. (K.K.F.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1226 Present: SAJJAD AHMAD SlPRA, J. MUDASSAR IQBAL-Appellant versus STATE-Respondent Crl. Appeal No. 177/1995, accepted on 3.6.1997. Pakistan Penal Code, 1860 (XLV of I860)-- S. 302/B--Murder--Offence of-Conviction for-Challenge to-Mode and manner of recording of statement, of approver is highly questionable-As per record approver/accomplice is not even an eye-witness-Recoveries doubtfulHeld: Appellant stands acquitted of offence charged. [Pp. 1233 & 1234] A, B, C, D & E PLJ 1994 SC 206, 1992 SCMR 1983 and 1991 SCMR 224 rel. Ch. Ghulam Murtaza, Advocate for Appellant. Mr. AH. Masood, Advocate for State. Mr. Munawar Hussain Chohan, Advocate for Complainant. Date of hearing: 20.5.1997. judgment The present criminal appeal assails the judgment dated 23.2.1995 whereby the learned Additional Sessions Judge, Sheikhupura, while acquitting Safdar Ali co-accused by extending benefit of doubt and releasing the approver Mukhtar Ahmed PW-1, had convicted the appellant under section 302-B PPC and sentenced him to imprisonment for life. He was al§o directed to pay compensation of Rs. 30,000/- to the legal heirs of the deceased u/s 544-A Cr.P.C. for having committed the murder of Taj Din son of Saddar Din. Criminal Revision No. 206/95 filed by the complainant for enhancement of the sentence awarded to the appellant No. 1, and against the acquittal of appellant No. 2, which was subsequently, vide order dated 4.7.94 withdrawn to the extent of appellant No. 2, directed to be heard alongwith the present criminal appeal, shall also be disposed of by this judgment. 2. Brief facts necessitating the filing of the present criminal appeal are that the complainant Meraj Din PW-3 on 2.5.1992 got recorded FIR Ex. PE/1 alleging that at 7.00 A.M. on 2.4.1992, his brother Taj Din (deceased) in this case aged about 45/46 years and gone out of house after taking his meal at 10.00 A.M. Faqeer Hussain son of Wali Muh'ammad Lambardar of the same village come to him and told that the dead body of his brother (Taj Din) was lying in is (Faqeer Hussain) uncultivated field. Mehr Din, Chowkidar, Shohab Din, Nizam Din and Faqeer Hussain were also with the complainant when he proceeded the field where the body body of his brother was laying on the southern side. They had also found an empty bottle of liquor lying nearby. There was no apparent injury on his body except some abrasion on his back. He had no enmity with any body and did not suspect any accused. 3. Muhammad Latif Baig, ASI PW-9 after recording the statement of the complainant Meraj Din Ex. PA sent the same to the police station for registration of case and himself proceeded to the place of occurrence, prepared site plan Ex. PK, took into possession the empty bottle lying near the dead body through recovery memo Ex. PF, prepared injury statements Ex. PL and inquest report Ex. PM and handed over the dead body of the deceased to Sajjad Ahmed PW-8 for post mortem examination. On 3.4.1992 Sajjad Ahmed produced before him last worn clothes of the deceased i.e. Shirt P2, Sweater P3, Chaddar P4 which were taken into possession through recovery memo Ex. PG. Four sealed Jars containing viscera were also handed over to him which he gave to the Moharrar of Police Station for onward transmission to the office of Chemical Examiner, Lahore, wherefrom on 2.5.1992 a report to the effect that poison was not detected in the visceras, was received by him. He had also recorded supplementary statement of Meraj Din wherein Modassar Iqbal, the appellant herein, Sunnah Ullah and Mukhtar alongwith two others were nominated as accused in the instant case. The accused were also arrested by him on 17.5.1992. But subsequently the investigation was transferred to Muhammad Naseem, Inspector who had interrogated the accused, recorded the statement of PWs and on 31.5.1992 on pointing out by the approver Mukhtar Ahmad PW-1 taken into ossession key of Peater Engine P6 from a Kotha belonging to Sunna Ullah vide recovery memo Ex. PJ. Safa P5 was also taken into possession vide recovery memo Ex. PF on pointing out by Sunna Ullah (ahsconder) while in police custody. He had also prepared site plan of place of recovery Ex. PK/1 and Ex. PH/1. On 10.6.1992 he had received an application through DSP (Legal) to the effect that Mukhtar Ahmed wanted to be a witness in this case whereupon after necessaiy formalities the statement of Mukhtar Ahmad Ex. PC was recorded on 15.7.1992 and thereafter the investigation was conducted by Shoaib Ahmed PW 11 who after getting prepared site plan of the place of occurrence through patwari, had prepared complete challan of the case. Subsequently, Tariq Saleem Dogar, S.P. (PW 15) had conducted the investigation and after having recorded the statements of many persons from both sides found Mukhtar, Modassar and Saha Ullah guilty. He had also directed to record the statement of the Approver. 4. At the trial the prosecution examined as many as fifteen witnesses to establish its case, whereas Zamin Abbas Inspector and Manzar Saeed, Magistrate, were examined as CW1 and CW2. Mukhtar Ahmed PW 2 who, had moved an application Ex. PB from jail, after recording his statement Ex. PC on 15.7.1992 before CW 2 MIC, Sheikhupura, was declared an Approver and had narrated the fact that on 18th of Ramzan in 1992, after Eftari, he alongwith his nephew, namely, Asif were going towards his dera when his friend Sana Ullah (absconder) in the instant case met him out of village Worn and told him the facts and circumstances of jail. When they reached Saim Nala, Pull Sandanwala, on the insistence of Sana Ullah, he after handing over the meal to his nephew Muhammad Asif, stayed with Sana Ullah who disclosed his intention to commit the murder of Taj Din as Taj Din had got wasted Rs. 25,000/- of Sana Ullah when Sana Ullah was in jail in a theft case. Accordingly, he had proceeded to his dera and Sana Ullah proceeded for his house. On the following day he had met with Sana Ullah accused (absconder) at a Barber shop in the village. Thereafter, they- had gone to Bazar Mochiwala and after having purchased sweets proceeded to an Oil Tanky. Then we had hatched a conspiracy to commit the murder of Taj Din. After about 5/6 days he had collected information about the timing of Taj Din from the Dera of Mubarik All where he used to work. Then he had proceeded to the village. Thereafter on the direction of Sana Ullah, on the next day, he reached at Oil Tanky prior to Fajar prayer, where Sana Ullah and Mudassar Iqbal accused were present. When Taj Din passed from near Oil Tanky, they had chased him and requested to take liquor with them as Taj Din was addicted to liquor, but he had refused to do so. Then they had forcibly taken Taj Din to the Dera of Sana Ullah. Taj Din was also in possession of sodium-by-carbonate. They had taken Taj Din to a room wherein a Peater Engine was installed. Taj Din had requested them to provide liquor and then to allow him to proceed, but after having turned down both the requests, Sana Ullah, now absconder, had arounded a sapha in the neck of Taj Din and he had given a key blow on the back side of chest of Taj Din in the presence of Modassar Iqbal. Then Sanaullah had asked him to stand out side as a guard. After a while, on enquiring from Sana Ullah and Modassar Iqbal as to whether the work had been done, they told that Taj Din had been done to death. Thereafter Faiyad (absconder) and Safdar Ali accused had reached there with a trolly and dead body of Taj Din was shifted to the trolly by Sana Ullah and Faiyad. The on the asking of Modassar Iqbal and others he had left, the place for his house, and on the next day he had come to know about the dead body of Taj Din having been found in the field of Faqeer Hussain. Subsequently he was arrested. 5. PW 2 Rana Muhammad Sarwar, Patwari, on the direction of the police and on pointing out by the PWs, had prepared site plan of the place of occurrence Ex. PD and Ex. PD/1 in the scale of 40 karains equal to 1 inch. 6. PW 3 Meraj Din, the complainant, had reiterated the contents of the complaint Ex. PE. PW 4 Mubarik Ali, being the employer of the deceased Taj Din, had deposed that one day prior to occurrence, when Taj Din (deceased) left him at 4.00 P.M. he had paid Rs. 25/- to the deceased for sodium-by-carbonate and powder. PW 5 Jameel had deposed that at Fajar prayer time when he alongwith Mubarik Ali son of Nazar Muhammad, was going to his Dera, they had met with Faiyad, Safdar. Mudassar Iqbal and Sana Ullah, accused, boarding on a tractor trolly and on enquired by them the accused had replied that they were having a work. At about 10.00 A.M. he came to know that Taj Din had been murdered and he had seen the dead body of Taj Din lying at the same place where the tractor trolly was standing. PW 6 Muhammad Ashraf, being the cousin of Taj Din deceased and the complainant in the case of theft, committed by Sana Ullah and his co-accused Ajmal Khan, in the house of Taj Din (deceased) had narrated the whole .story of the theft case and had further deposed that Sana Ullah while in police custody had confessed to commit the murder of Taj Din with Safa P5 that was recovered on his pointing out from the cattle-shed and taken into possession vide recovery memo Ex. PH. He is also the witness of recoveiy of key of peater engine P6 from the room of peater engine. P. W-7 Ghulam Jafer. H.C., being Moharrar, had drafted the formal FIR Ex. PE/1, on the complaint Ex. PE moved by Meraj Din. PW8 Sajjad Ahmed, Constable, had escorted the dead body of Taj Din deceased to the mortuary and after the post-mortem examination he had received the last worn clothes of the deceased from the doctor and delivered the same to the Investigation Officer. PW9 Muhammad Latif Baig, ASI had initially conducted the investigation in the instant case and brief contents of his statement have been given in the earlier parts of the judgment. PW10 Muhammad Naseem, Inspector, had also conducted partial investigation in the present case. A reference of his statement has also been made above. PW 11 Shoaib Ahmed, Inspector, had also conducted the investigation in this case in part and after getting prepar ed the site plan of the place of occurrence Ex. PD submitted incomplete challan of the case. PW 12 Ghulam Abbas being Moharrar, had recorded Rupt No. 23 Ex. PE/2 on the basis of statement of Meraj Din Ex. PE/1. 7. PW 13 Dr. Iftikhar Ahmed, M.O. on 3.4.1992 had conducted the post mortem examination on the dead body of Taj Din, brought to him by Sajjad Ahmed, Constable and Ali Ahmed, Constable and identified by Faqeer Hussain. Lumberdar, and Meraj Din and had found the following'injuries apart from a ligature mark 3cm x all around the neck: ; 1. Abraded area 20 cm x 13 cm on outer of right chest. 2. Abrasion 2 cm x 01 cm on front of left ankle extending to foot. Opinion about the cause of death was postponed and after the receipt of report of Chemical Examiner Ex. PO, death was opined to have occurred due to strangulation resulting in asphyxia and shock. According to the doctor, ligature mark was fatal and grievous and was sufficient to cause death of person in an ordinaiy course of nature. Probable time between injuries and death was immediate and between death and post mortem was 18 to 24 hours. . 8. PW 14 Muhammad Aslam Sahi, DSP, had deposed in his statement that on the basis of the material available on the file, presented before him, Modassar Iqbal, Sana Ullah, Faiyad and Safdar accused were ordered to be arrested and further investigated. 9. PW 15 Tariq Saleem Dogar, S.P., had deposed that during the investigation conducted by him, under the order of the DIG Lahore, on two occasions, he had interrogated the persons produced hy the complainant as well as the accused party and recorded their short statements. He had also interrogated the accused and had come to the conclusion that occurrence was committed by Mukhtar, Modassar and Sana Ullah accused. He had also directed to record the statement of Approver. 10. CWl Zamin Abbas, Inspector, had deposed in his statement that after investigation he had come to the conclusion that all the accused except Mukhtar accused were innocent in the instant case. CW2 Manzar Saeed, Magistrate, had got recorded the statement Ex. Cl of the Approver Mukhtar accused while in policy custody through his reader as he had injured hand on that day. He had further deposed in his statement that he had fulfilled all the legal requirements while recording the statement. He had also owned the certificate Ex. Cl/1 issued by him. 11. The prosecution had given up Akbar Ali, Faqeer Hussain Lumberdar, Mubarik Ali, Zaman Abbas and Ch. Akhtar Hussain PWs, as unnecessary and had closed its case. 12. Appellant Modassar Iqbal in his statement had denied all the allegations levelled against him and claimed to be innocent by deposing that there were two parties in the village, one was headed by his father Afzal, the brother of accused Safdar and maternal uncle of Sana Ullah (absconder) and Faryad accused was the husband of his sister's daughter and the other party was headed by one Faqeer Hussain, Lambardar of the village and there were enmity between Afzal and Faqeer Hussain and many criminal case had been between the parties in the past and that the complaint of the present case placed as pupped in the hands of said Faqeer Hussain and that on the asking of Faqeer Hussain all the accused had been involved in this false case. All the PWs hailed from the party of Faqeer Hussain Lambardar and on his instance they had deposed falsely against him. 13. At the trial, the accused in their defence has produced DW 1 Haleem Sabir, DSP, who had deposed in his statement that the investigation. conducted hy Zamin Abbas, Investigating Officer and duly approved by D.l.G. Lahore, \v;us verified by him as correct. According to the investigation conducted by the said I.O. the accused were innocent and were directed 1o be discharged from the instant case. 14. The aL'C!', sim!, however, did not recorded their statements under the provisions <>f section 340(2) Cr.P.O. 14. The learned trial Court, taking into consideration the facts and circumstances of fhe cas'i, had convicted and sentenced the appellant while acquitting Safdar Ali co-accused and releasing the Approver Mukhtar Ahmed PWl. as stHUn' above (iii) In a case of the instant nature Muhammad Fayyaz was ! earlier convicted and t;he chance of repetition cannot be ruled out. No doubt the bail cannot be refused to an -. accused as a punishment, yet I am tempted to express that an accused with the aforesaid type of credentials should remain in Jail than to be admitted to bail. 5. The challan has been submitted. It would be instructive to express that all the cases in which the challans are submitted before the - Area Magistrate(s) are fixed for hearing within a short span of period so that there is early disposal of the cases. 6. For what has been said above, I see no merit in this bail application and dismiss the same. (K.K.F.) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1234 Present: SAJJAD AHMAD SlPRA, J. MUHAMMAD YAQOOB-Appellant versus STATE-Respondent Crl. Appeal No. 349/93, decided on 20.5.1997. t Pakistan Penal Code, 1860 (XLV of I860)-- ' -S. 319 & 302-Murder-Offence of-Conviction for-Challenge to-Death of deceased, was not, result pre-planned, deliberate, intentional or wanton act of appellant, but that death of deceased had taken place at hands of appellant by accident, as appellant had been indulging in celebratory firing at time of holding of Kabbadi match that was 4aking place at relevant time in veiy field where deceased had suffered fatal injury caused by a firearm shot-Held : Appellant had been guilty of causing accidental death of deceased-Further held : Offence covered under provisions of section 319 PPC and is convicted accordingly- Appellant accused is also forgiven in the name of Allah. [Pp. 1241, 1242 & 1243] A & B Rana Ijaz Ahmad and Mian Jamil Akhtar, Advocates for Appellant. Mr. A.H. Masood, Advocate for State. Dates of hearing: 19 & 20.5.1997. judgment The present criminal appeal has been directed against the judgment dated 10.5.1993, whereby the learned Sessions Judge, Kasur, had convicted the appellant under section 302 PPC and sentenced him to imprisonment for life and a fine of Rs. 2,000/-or in default thereof to undergo S.I. for one year and had also directed him to deposit a sum of Rs. 20,000/- to be paid to the legal heirs of the deceased, Ghulam Haider, or in default thereof to suffer further S.I. for six months, while acquitting his co-accused, Yahyah of the offences charged. 2. Brief facts leading to the present criminal appeal are that the complainant Muhammad Ishaque on 3.9.1992 at. about 7.30 p.m. lodged the complaint Exh. PF/1 alleging that on that day at bout 6.00 p.m. when he and his brothers Ghulam Haider, Muhammad Ashraf and Muhammad Azam, while on their way to see the kabbadi match in a mela, used to be celebrated in their village at the Urs of Baba Sheikh Lai Shah, had reached near a tibba in the fields, all of a sudden Muhammad Yaqoob and Yahyah armed with a mouzer and a 12 bore gun respectively, emerged at their back and challenged Ghulam Haider to be taught a lesson; whereupon Yahyah accused tired an ineffective shot and to save themselves, the complainant and others sat down, but the second shot fired by Muhammad Yaqoob accused hit at the back of the head of Ghulam Haider. The noise attracted so many persons from Kabbadi fields and on seeing the said persons, the accused ran away from the spot while firing in the air. The complainant tried to shift, his brother Ghulam haider to hospital by a wagon, but he died of the injury while passing the revenue limits of village Sattoki. The motive for the occurrence, as stated in the complaint, was that 15/16 days prior to the occurrence, a kabadi match participated by both the accused from one side and one Tariq son of Ghulam Haider deceased from the other side, was held in the village, in which Tariq captured the accused persons and their annoyance resulted in a scuffle and Ghulam Haider deceased, present there, had interfered, whereupon the accused persons had threatened him with dire consequences. 3. Qutab-ud-Din SI recorded the statement of the complainant Exh. PF/1, sent it to the police station for registration of ease and himself taking up the investigation, reached the place, where the dead body was lying in the area of village Sattoki. prepared the injury statement Exh. PJ and inquest report Exh. PK and despatched the dead body to the mortuary for post mortem examination. Thereafter, he reached the place of occurrence, inspected the spot, collected the blood-stained earth, vide memo Exh. PB, and finding there a pair of shoes of the deceased P. 3/1-2, took the same into possession vide memo Exh. PC. He also prepared the rough site plan of the place of occurrence Exh. PL and recorded the statements of the witnesses. On 4.9.1992 he took into possession the last worn blood stained clothes of the deceased, shirt P. 1 and chadar P. 2, vide memo Exh. PA, got prepared the site plan of the place of occurrence Exh. PG and Exh. PG/1 from Nasir Ahmad revenue patwari and deposited the sealed parcels relating to the instant, case with the Moharrir concerned. On 14.9.1992 he arrested Yaqoob and Yahyah accused and obtained their personal remand. On 19.9.1992 he got recovered mouzer P. 4 on pointing out of Yaqoob accused from his house vide memo Exh. PD, and prepared the rough site plan of the place of recovery Exh. PD/1. On 25.9.1992 he got recovered gun P. 5 on pointing out of Yahyah from his cattle shed, vide memo Exh. PE and prepared the rough site plan of the place of said recovery Exh. PE/1. After completion of the investigation, he challaned the accused. 4. At the trial, the prosecution examined as many as fourteen witnesses to prove its case. PW, 1 Mushtaq Ahmad FC, PW. 2 Muhammad Shafique FC, PW. 3 Tasawar Ali HC, PW. 4 Suleman, PW. 5 Muhammad Mushtaq, PW. 6 Abdul Rehman, PW. 7 Ghulam Muhammad, PW. 8 Muhammad Tufail HC and PW. 10 Nasir Ahmad Patwari, being the formal witnesses, had deposed about the roles performed by them respectively, in the instant case. 5. PW. 9 Muhammad Tariq had deposed about the motive that in a kabbadi match he had participated from one side, whereas the accused persons from the other side and on his having captured the said accused, they caught hold of him and gave him fist blows, whereupon his father Ghulam Haider deceased interfered with and the accused had left the spot threatening him with consequences. 6. PW. 12 Muhammad Ishaque, being the complainant in the instant case had supported the case of the prosecution by reiterating the contents of his statement Exh. PF/1. PW. 13 Muhammad Ashraf, being an eye-witness of the occurrence had corroborated the statement, of the complainant, while incriminating Yahyah accused for having fired ineffective shots and Yaqoob accused for having effectively fired a shot hitting at the back of the head of Ghulam Haider deceased, which proved fatal. 7. PW. 13 Dr. Zohair Masood had conducted the post-mortem examination on the dead body of Ghulam Haider deceased on 4.9.1992, brought to him by Mushtaq FC and identified by Suleman PW, and had found the following injury on it:- 1. A circular lacerated wound 1.5 cm in diameter inverted margins on the middle occipital bone of the skull. On dissection, he found that the left temporal and occipital bones of the skull were extensively damaged with multiple fracture under injury No. 1. Brain cavity was full of blood and brain soft tissues were damaged under injury No. 1. A metallic bullet was found in the brain tissue. Right side of the heart was empty whereas the left side contained blood. Stomach contained semi digested food, small and large intestines contained gasses and fecal matter and bladder contained urine. In his opinion, death in this case had occurred as a result of shock and hammerhage due to injury No. 1, which was antemortem, caused by fire arm and was sufficient to cause death in the ordinary course. Probable time between injury and death was 15 minutes and within death and post mortem examination 15 hours. S. The prosecution had given up Yasin, Sali, Nazir Ahmad FC and Arif P\Vs being unnecessary, whereas Saeed PW, as having been won over and had tendered in evidence the reports of the Chemical Examiner and Fire Arms Experts, Exh. PM and Exh. PN respectively and closed its case. 9. In his statement recorded under the provisions of section 342 Cr.P.C. the appellant had denied the allegations against him and claimed to be innocent by imposing that the incident in question was the result of an accidental fire shot from some participant of the kabbadi match in the dark of night, as the persons present there were boosting the winners with firing; and that he was involved in the case falsely due to enmity. His acquitted co- accused Yahyah had also taken the same plea. The appellant had tendered in his defence copies of FIRs No. 81/86, 108/82 and 79/86, as Exh. DA, DB & "DC, but he did not get recorded his statement under the provisions of section 340(2) Cr.P.C. 10. The learned trial Court, taking into consideration all the facts and circumstances of the case, convicted and sentenced the appellant, while acquitting his co-accused by extending the benefit of doubt, as stated above. 11. Before proceeding further, the following facts regarding the instant appeal need to be recorded:- The present record of the instant appeal includes affidavits submitted by all the adult legal heirs of the deceased, except his mother Mst. Fatima Bibi, at an earlier stage of the pendency of the present appeal, contending for the disposal of the appeal on the ground that they had forgiven the appellant for the murder of the deceased Ghulam Haider, who was the husband of Mst. Hamida Begum widow, and real father of the adult children namely, Muhammad Tariq, Mst. Shakooran Bibi, Mst. Safooran Bibi and Nazar Muhammad, whereas amount of Diyat payable had been deposited in the bank accounts opened in the names of the minor children of the deceased namely, Tayyab Ali, Mst. Maryam Bibi. Musaeyab Ali and Mst. Shagufta Bibi. There is also an affidavit by the Vice Chairman of the Union Council, namely, Muhammad Ashraf, verifying that the said widow and the children of the deceased were his only legal heirs. Pursuant to the appearance of the said legal heirs and the Vice Chairman before the Court to confirm the contents of the affidavits submitted by them respectively, the Court had allowed the appeal in accordance with the provisions of section 345 Cr.P.C. read with section 323 PPC and had consequently acquitted the appellant from the offences charged and ordered that he be set at liberty, if not required in any other case. But veiy soon thereafter, a petition Crl Misc. No. 307-M/94 was moved on behalf of Mst. Fatima Bibi, the real mother of the deceased. Ghulam Haider, contending for recall of the judgment dated 1.2.1994 acquitting the accused/appellant Muhammad Yaqooh, as the same had been obtained by suppressing the existence of the said legal heir, i.e.. the real mother of the deceased, and thus the case in question not having been compounded in accordance with the provisions of section 345 Cr.P.C. because of the non-association of the said Mst. Fatima Bibi mother of the deceased, no composition of the offence could be allowed. Pursuant to the notices issued, the adult legal heirs i.e. widow, sons and daughters of the deceased, as stated above, had put in appearance alongwith the Vice Chairman, the appellant and his father, namely, Muhammad Riaz, who had played the necessary role in effecting the compromise and claiming the offence having been compounded on behalf of the appellant, and duly confirmed that the petitioner in Crl. Misc. No. 307- M/94 namely, Mst. Fatima Bibi, was the surviving real mother of the deceased Ghulam Haider. Therefore, the Court had recalled the said order of compromise-composition vide its order dated 13.10.96, while holding that the criminal appeal shall be deemed to be pending, by invoking its jurisdiction under the provisions of section 561-A Cr.P.C., as the order of acquittal had been obtained fraudulently, thus relying upon the settled principle of law that fraud vitiates the most solemn transaction and proceedings and no party is to be allowed to take advantage thereof; that the fraud cannot be sanctified or protected and eveiy Court, tribunal or authority has the inherent jurisdiction to review, the record to undo the cases of fraud; and that the Courts are competent to suo-rnoto recall orders obtained by fraud. The said principle of law has been repeatedly upheld by the Honourable Supreme Court of Pakistan and by all the High Courts of our country. In this respect reliance is placed upon the following:- Lai Din and another vs. Muhammad Ibrahim (1993 S.C.M.R. 710). Govt. of Sindh through the Chief Secretary and others vs. Khalil Ahmed and others (1994 S.C.M.R. 782), Mst. Athar Jabeen and another vs. Deputy Settlement Commissioner, Circle HI, Lahore and another (PLD 1993 Lahore 842), Ghias-ud-Din vs. Iqbal Ahmad and 5 others (PLD 1975 Lahore 780), Mahmood Anwar vs. D.C. etc. (NLR 1985 Civil 194) and Mobina Begum vs. The Joint Secretary and 2 othc.ru (1994 M.L.D. 1441). the criminal appeal being taken up for hearing, the learned coui.~. Jie appellant argued for his acquittal and in this respect empha^isc'i that the motive as set, up has not been proved, the place of occurrence stated to be the very field in which Kabbadi match was being played and there were a large number of people present, yet no independent \vitness had been produced by the prosecution to prove its case beyond reasonable doubt. Further argued that the two eye-witnesses being very close relative, their testimony could not be relied upon without independent corroboration, which was lacking, as pointed out and that furthermore, the medical evidence totally contradicts the two eye-witnesses namely, Muhammad Ashraf PW. 11 and Muhammad Ishaque PW. 12, which further weakens the case of the prosecution. Further submitted that the recoveries effected, specially the alleged weapon of offence i.e. mouzer P. 4, have no consequence whatsoever, as neither any crime empty was recovered from _the spot nor the bullet recovered from the injury to the deceased had been sent to the Ballistic Expert for his report. Finally, argued that the giving up of Azam PW, the brother-in-law of the deceased and the eye-witnesses, and non-acceptance of the prosecution stoiy in toto because of the acquittal of the co-accused Yahyah, further weakens the case of the prosecution and the benefit thereof should go to the appellant. 13. Whereas the learned counsel for the State opposed the acquittal of the appellant and submitted that the maxim "falsus in uno falsus in omnibus" is not applied in dealing with the cases in our Courts and that often the grain has to be sifted from the chaff as repeatedly held by the Honourable Supreme Court and the High Courts of our country. Further submitted that the defence had failed to prove any enmity between the parties despite having made an attempt to that effect during the cross-examination of the eye-witnesses and that, therefore, in the absence of any enmity for involving the accused/appellant in the serious case of homicide, the testimony of the eye-witnesses is an unexceptionable and in fact fully confidence inspiring that can be relied iipon to sustain the conviction of the appellant. Further argued that minor discrepancies in the prosecution case cannot lead to brushing aside the testimony of natural eye-witnesses in respect of a day time occurrence. 14. To deal with the contentions raised by the learned counsel for the appellant and the State, it my be observed at the veiy outset that the maxim "falsus in uno falsus in omnibus" is not recognised in the Courts in Pakistan and to arrive at a just conclusion, it, is bounden duty of the Court to sift grain from the chaff. In this respect, reliance is placed on recent judgments of the Honourable Supreme Court in Muhammad Ahmad and another vs. The State and others (1997 S.C.M.R. (January Part) 89) and Sheraz Asghar vs. The State (1995 S.C.M.R. 1365). Therefore, while accepting the contentions raised on behalf of the appellant to the effect that the recoveries are of no consequence for the reason stated i.e. neither any crime empty was recovered from the spot nor bullet, recovered from the fatal injury caused to the deceased had been sent, to the Ballistic Expert for his eport and further conceding that the motive set up has not been proved and the statement of PW. 9 Muhammad Tariq son of the deceased in that respect has to be ruled out of consideration as his statement under section 161 Cr.P.C. had been recorded after a delay of 15/16 days, as admitted by him during his testimony, in accordance with the principle laid down in Syed Saeed Muhammad Shah and another vs. The State (1993 S.C.M.R. 550) and Asfandyar Wali vs. The State (PLD 1978 Peshawar 38) and further accepting that the post mortem report Exh. PH and the testimony of Dr. Zohair Masood PW. 13, are not totally in conformity, as the doctor has opined that the fire shot that caused the fatal injury to the deceased may have been fired by a person from a higher hight than the hight of the deceased, as the seat of the said fatal injury, yet the Court is constrained to observe that two natural eye-witnesses' testimony i.e. PW. 11 Muhammad Ashraf and PW. 12 Muhammad Ishaque, cannot be totally ignored, nor the fact that the occurrence had taken place in day time in an open field, where a Kabbadi match was being played, especially as no rnalafide intention or enmity has been proved against the said eye-witnesses to falsely implicate the accused/appellant in a murder case, who are otherwise from their "bratheri", being distant relative, as admitted by PW. 11 Muhammad Ashraf. Hence, it is further observed that in the instant case the Court has not only to sift grain from the chaff, but even otherwise should not be deterred from rawing proper inference from the evidence and circumstances of the case as parties do not generally come out with the true stoiy, and the Court has to make an effort to arrive at a just conclusion on the basis of the evidence on the record, as held by the Honourable Supreme Court in Syed Ali Bepari vs. Nibaran Mollah and others (PLD 1962 S.C. 502). The dictum laid down in the said case has been faithfully followed by the Superior Courts of Pakistan in scores of cases subsequently. 15. The upshot of the above discussion is that while applying the principle of sifting the grain from the chaff to the testimony of the eye witnesses PW. 11 Muhammad Ashraf and PW. 12 Muhammad Ishaque, the Court is of the considered view that their testimony is reliable to the extent of holding the appellant to be responsible for causing the death of their brother Ghulam Haider deceased, but without any motive or any deliberate intention to cause his death under the circumstances highlighted i.e. that neither the appellant had any motive to cause death or bodily harm to the said deceased, nor do the evidence of the prosecution is sufficient or without any discrepancy and contradiction to prove the case against the appellant as charged. 16. To sum it up, the Court is of the considered view that the appellant was one of the persons, who had been indulging in firing their weapons at. the time when a Kabbadi match was taking place in the field, where the fateful occurrence in question had taken place and during the indiscriminate firing by the appellant a shot had unintentionally hit the deceased, thus causing him fatal injury that, had resulted in his death. The conclusion thus drawn is fully supported by the contents of the affidavits submitted by the grown-up sons and daughters, Muhammad Tariq, Nazar Muhammad, Mst. Shakooran Bibi and Mst. Safooran Bibi, and the widow of the deceased, Mst. Hamida Begum, that form a part of the record of the present appeal, as they had been made part thereof in accordance with law; and as the said legal heirs stood by the averments made in the affidavits submitted on their behalf, content of every affidavit that needs to be highlighted is to the effect that the death of the deceased was an accidenta n as the accused is always the favourite child of law, therefore, anything that has come on the record in a legal manner shall be taken into consideration to extend him the benefit thereof. The logical conclusion to be drawn therefrom is to the effect that the death of the deceased, Ghulam Haider, was not the result of pre-planned, deliberate, intentional or wanton act of the appellant, but that the death of the deceased had taken place at the hands of the appellant by accident, as the appellant had been indulging in celebratory firing at the time of the holding of Kabbadi match that was admittedly taking place at the relevant time in the veiy field where the deceased had suffered the fatal injury caused by a firearm shot. Therefore, it is hereby held that the appellant had been guilty of causing the accidental death of the deceased, Ghulam Haider, further observing to the effect that the offence thus committed is covered under the provisions of section 319 PPG. For convenient sake the said section 319 PPG and section 318 PPG, wherein the offence of accidental death i.e. Qatl-i-Khata is defined, are reproduced hereinbelow:- "318. Whoever, without any intention to cause death of, or cause harm to, a person, causes death of such person either by mistake of act or by mistake of fact, is said to commit qatl-i-khata. 319. Whoever commits qatl-i-khata shall be liable to diyat: Provided that, where qatl-i-khata is committed by any rash or negligent act, other than rash or negligent driving, the offender may, in addition to diyat, also be punished with imprisonment of either description for a term which may extend to five years as ta 'zir. Hence the appellant is found guilty of Qatl-i-khata and is convicted accordingly, while setting aside his conviction and sentence awarded under section 302 PPG, vide the impugned judgment. 17. Resultantly, pursuant to his conviction in the alternative under the provisions of section 319 PPC stated above, the appellant is hereby sentenced to the maximum punishment for the said offence i.e. R.I. for five years in addition to the payment of Diyat to the extent of the respective shares of the minor legal heirs of Ghulam Haider deceased, namely, Tayyab Ali, Musaeyab AH (sons), Mst. Maryam Bibi and Mst. Shagufta Bibi (daughters) and his surviving mother Mst. Fatima Bibi, the only adult legal heirs, who had refused to compound the case against the appellant for having caused the death of her son Ghulam Haider deceased, in accordance with law applicable, as the rest of the adult legal heirs had stood by the affidavits submitted by them earlier as stated above, which are not only the part of the record of the case, but the contents whereof: to the effect that they have forgiven the appellant in the name of the Almighty Allah without any Badl-e-Sulah and that the death of the deceased was accidental '-'>A3 Uo>b ", have been reiterated by the said legal heirs time and again before the Court. The amount already deposited in the accounts of the minor legal heirs named above shall be taken into consideration while determining the amount of D lay at that is payable to them. The total amount of Diyat payable under the law pursuant to the notification S.R.O. 614(I)/96 dated the 3rd July, 1996, issued by the Government is Rs. 2,12,664.09 (Rupees two lac twelve thousand six hundred sixty four and nine paisa only). From the total amount of Diyat of Rs. 2,12,664.09, the shares of every legal heirs are determined as follows:- 1. Mst. Fatima Bibi (mother) Rs. 35,444.00 2. Mst. Hamida Begum (widow) 22,152.50 3. Muhammad Tariq (son) 25,845.00 4. Mst. Shakooran Bibi (daughter) 12,923.00 5. Mst. Safooran Bibi (daughter) 12,923.00 6. Nazar Muhammad (son) 25,845.00 7. Tayyab Ali (minor son) 25,845.00 8. Mst. Maryam Bibi (minor daughter) 12,923.00 9. Musaeyab Ali (minor son) 25,845.00 10. Mst. Shagufta Bibi (minor daughter) 12,923.00 ,|The legal heirs mentioned at serial No. 2 to 6 have forgiven the appellant in the name of Allah without any Badal-e-Sulah, whereas the amounts of the shares of rest of the legal heirs shall be deposited in their respective accounts by taking into consideration the amount already deposited in the accounts of minor legal heirs, as directed above. 18. In accordance with the terms stated above, the present criminal appeal stands disposed of. iK.K.F.) Orders accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Quetta) 1243 [DB] Present: iftikhar muhammad chaudhary and amanullah khan yasinzal JJ. MUHAMMAD AFZAL-Appellant versus STATE-Respondent Crl. Appeal No. 124/1993, dismissed on 30.6.1997. West Pakistan Arms Ordinance, 1965- 78. 13-E--Pistol--Recovery of--Conviction for--Challenge toNominal contradiction as pointed out by learned counsel would not be of any avail unless they have shaken intrinsic value of evidence, therefore, it is held that for contradictions which are of not much importance and had not shaken intrinsic value of evidence no benefit can be given to accused- Appeal dismissed. [P. 1248] A PLD 1995 SC 46 rel. Mr. Naseern Akhtar, Advocate for Appellant. Mr. Noor Muhammad Achakzai, Addl. A.G. for State. Date of hearing: 2.6.1997. judgment Iftikhar Muhammad Chaudhry, J.--This appeal is directed against the order dated 26th May, 1997 passed by Sessions Judge/Special Judge Suppression of Terrorist Activities under Section 13-E of Arms Ordinance, 1965 whereby convict/appellant has been sentenced to 2 years RI and fine of Rs, 2,000/-and in default in the payment of fine to further undergo 2 months SI. It is the prosecution case that CIA staff headed by PW-Farid Ahmed on receipt of spy information intercepted a vehicle (pick-up) No. LS-3743 being driven by the appellant. On its checking huge quantity of narcotics was recovered from the cavities and a 30 bore pistol was also recovered from the possession of appellant, as such vide FIR No. 73/96 dated 27th April, 1996 a case under Section 13-E of Arms Ordinance was registered against him. Concerning recovery of the narcotics a seprate case was registered under Article 3/4 of the Prohibition (Enforcement of Hadood) Order, 1979. On completion of investigation challan of the former case was forwarded to the court of Sessions Judge/Special Judge Terrorist Activities; whereas challan of the case of narcotics was sent, for trial to the competent court where it is still pending for disposal. In the instant case charge was framed on 24th October, 1996 to which appellant did not plead guilty and claimed trial. The prosecution adduced the evidence of:- (i) PW-1 Muhammad Akbar. He is the witness of inventory produced by him as Ex. P/l-A and the sketch of the recovered pistol Ex. P/l-B; (ii) PW-2 Farid Muhammad SI. CIA: He prepared the inventoiy and also sent Murasla Ex.P/2-A for registration of the case; (iii) PW-3 Amanullah. On completion uf investigation he submitted the challan. Appellant was examined under Section 342 Cr.P.i 1 .. in which he denied to the prosecution case. He did not opt to make statement on oath despite of opportunity provided to him. On conclusion of trial learned Sessions Judge/Special Judge sentenced the appellant details whereof have been given hereinabove. Mr. Naeem Akhtar learned counsel for appellant contended that under Section 156 Cr.P.C. CIA Staff has not been empowered to register a case against the accused under Section 13-E of the Arms Ordinance, therefore, his trial on the basis of investigation conducted by an un authorised agency is liable to be vitiated. He relied upon PLD 1995 Lahore 606, PLD 1997 SC 408. Mr. Noor Muhammad Achakzai learned Additional Advocate General on having one through the judgments relied upon by the learned counsel conceded to the legal proposition but this opinion was that on the basis of defective investigation the trial will not be vitiated. To deal with the proposition put forth by the learned counsel it would be appropriate to re-produce hereinbelow Section 156 Cr.P.C: "Investigation into congizablc cascs.--(l) Any ofticer-incharge of a police station may, without the order of a Magistrate, investigate any cognizable case which Court having jurisdiction over the local area within the limits of such station would have power to inquire into or tiy under the provisions of Chapter XV relating to the place of inquiry or trial. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such investigation as ahove-meiitioned. (4) Notwithstanding anything contained in sub-section (1), (2) or (3), no police-officer shall investigate an offence under Section 497 or Section 498 of the Pakistan Penal Code, except upon a complaint made by the husband of the woman, or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed." Hon'ble Lahore High Court while a similar proposition opined as follows:- "Therefore. the members of the CIA Staff, irrespective of their rank and status, can investigate cases only when they have been entrusted to them by an Officerin-Charge nf the Police Station to whom they are subordinate .. in ca»u of CIA Staff, the S.P. of the District. Therefore, no nieiuLci ut" the CIA Staff has any authority or power to invehtiyute -i rase of their own motion in the absence of such an investigation having been entrusted to him by the S.P. of the District, as above mentioned. We have noticed a growing tendency in the members of CIA. Staff and the Officers-in-Charge of the C.I.A. Staffs to commence investigation of the cases of their own. This is illegal and this practice must be stopped." In another judgment recently pronounced by honourable Supreme Court in the case of "State through Advocate General Sindh vs. Bashir <% others" (PLD 1997 SC 408) same question was taken up for consideration with reference to section 156 Cr.P.C. wherein it was held that CIA personnels have no power to investigate a cognizable offence under Sub Section 1 of Section 156 Cr.P.C. Under this provision the power to investigate a cognizable offence has been conferred upon an officer Incharge of the Police Station having jurisdiction over the local area within the limits of such Police Station. The honourable Supreme Court also took note of the fact that CIA staff has been investigating the cases and submitting challans for the last several decades, but such illegal practice cannot negate an express provision of a statute. On this undertaking was given by the concerned authorities not to violate the provisions of Section 156(1.) Cr.P.C. It was further observed that in such breach of statutory provision by the functionaries will result in initiation of legal proceedings against the CIA personnels to be found guilty of such violation. However, it was further held in this very judgment that violation of Section 156(1) Cr.P.C. by committing illegality/irregularity by CIA personnel may not vitiate trial if not serious prejudice has been caused to accused person resulting in miscarriage of justice in view of section 156(2) Cr.P.C. but, that does not mean that CIA personnel should knowingly violate the provisions of law. We have tested the case in hand at the touchstone of principles enunciated by the honourable Supreme Court and following the same we are also of the opinion that under Section 156(1) Cr.P.C, C.I.A. personnel are not empowered to register or investigate into cognizable offences. However, after registration of the case by the SHO/Incharge of a Police Station it can be transferred to them by the Superintendent of Police for further investigation and on completion whereof they would return papers of investigation to the authority form whom they were received for the purposes of preparation of challan and forwarding to the Court. However as in the case in hand apparently no prejudice has been caused to the appellant by conducting investigation by the CIA, therefore, invoking curative provisions of Sub Section 2 of Section 156 Cr.P.C. it is held that trial of appellant will not vitiate. Mr. Naeem Akhtar learned counsel then argued that allegedly a 30 bore pistol was recovered from the possession of appellant and on completion of investigation challan was forwarded to the court of Special Judge Suppression of Terrorist Activities, without furnishing evidence/expert report whether the pistol recovered form the possession of appellant was automatic or semi automatic. Learned Advocate General controverted to his arguments as according to him the appellant was found in possession of a weapon which was semi automatic because challan was sent before the Special Judge, as such there was no necessity to produce the expert evidence to substantiate tbe calibre of the weapon and also to establish whether it is automatic or semi automatic. He also contended that no such objection was raised by the accused before the trial Court. Moreover he has not been sentenced adequately in accordance with law because in respect of the offences which involve recovery of non prohibited bore weapons, punishment, is 3 years. Experience tells us that the police officials at the time of recovery of crime weapons do not care to preserve them by preparing a parcel at the post as it had happened in the instant case, neither the recovered weapon, cartridges etc. are sent for the report of Fire Arm Expert in order to know the calibre and the status of the weapon. Under Section 4 of the Suppression of Terrorist Activities Special Court Act, 1975 the Special Judge is competent to tiy the offences specified in the Schedule annexed with the Act in pursuance of provisions of Section 2(B) of the Act. A careful perusal whereof indicates that the Special Judge besides trying the other offences enlisted therein is also empowered to take cognizance of the offences committed under Sections 8, 9 & 10 of the West Pakistan Arms Ordinance, 1965. In respect of cannon, grinade, bomb, rocket or light arm, heavy automatic or semi automatic weapons etc. To invoke the jurisdiction of the Special Court it is obligator}' upon the Investigating Agency to establish whether crime weapon is automatic or semi automatic or what is its calibre. In the absence of such report it becomes very difficult to determine the jurisdiction of the court. It is hoped that in future prosecution will be vigilent in preserving the crime weapon immediately after its recovery, into parcel, according to rules to ensure fair trial and they would also obtain report from the Fire Arm Expert which of course would be helpful for determining the jurisdiction of the court. Since in the instant case no specific objection was raised on the jurisdiction of the trial Court by the appellant because even if it is presumed that the pistol recovered from the appellant was neither automatic nor semi automatic still he was liable for the trial before a Court who would have either acquitted him or convicted, therefore, for such reason we are of the opinion that no prejudice has been caused to the appellant. Learned counsel for appellant with great vehemence argued that recoveiy of the pistol from appellant has been foisted upon him because he complained to the Additional Superintendent of Police Khair Muhammad Jamali on the day of incident that CIA staff had falsely involved him in the commission of offence falling under the mischief of offence under Section 13- E of the Arms Ordinance. We see no force in the contention of the learned Counsel; for the reason that he has not disputed at bar the presence of the appellant at the time when he was apprehended while driving the pick up. As far as false involvement in this case is concerned that can also not be considered because he could have produced to the said Additional Superintendent in his defence, in as much as these facts have not been asserted by him before trial court as he did not opt to make statement on oath as contemplated under Section 340(2) Cr.P.C. Learned counsel also contended that prosecution failed to produce independent civilian witnesses, therefore, the evidence furnished by the Police Officials is not worthy of credence. We enquired from the counsel whether during cross examination of the prosecution witnesses, he alleged any enmity, animosity or malafide intentions against the police? His answers was in negative. But he contended that since the CIA Staff had spy information about commission of the crime, therefore, they should have taken alongwith them civilian persons for the purposes of recoveiy. We are convinced that this contention is of no avail to him because had the police managed to bring two civilian witnesses alongwith them there would have been an objection that they are the persons who were interested in the police case as they had come alongwith them. Even otherwise the vehicle was apprehended on the road, therefore, it was not possible for the police to engage independent civilian persons. It may also be noted that in the absence of any enmity or malafide intentions by the Police Officers, to involve accused in a criminal case, their evidence cannot be brushed aside. The official witnesses irrespective of the fact whether they belong to the Police force or any other agency are as respectable as civilian witnesses, therefore, whatever evidence is given by them subject to scrutiny under the recognized principles of law, is bound to" receive same credence which is ordinarily given to the civilian witnesses. Thus the contention is repelled. Mr. Naeem Akhtar Advocate further argued that the evidence furnished by prosecution suffers from material contradictions because they are not sure whether the accused was holding pistol in his hand or it was taken out from his body during search. We have scrutinized the statement of both the witnesses, i.e., Muhammad Akbar and Farid Muhammad carefully. As far as theirsubstantial part of evidence is concerned that leads to suggest us that the vehicle which was being driven by the appellant was stopped. He pointed out the pistol towards the police. However, he was over powered and pistol was recovered. Nominal contradictions as pointed out by the learned counsel would not be of any avail unless they have shaken the intrinsic value of the evidence, therefore, it is held that for the contradictions which are not of much importance and had not shaken the intrinsic value of the evidence no benefit can be given to the accused. On the points with regard to contradictions etc. in the prosecution evidence and its evidentiary value we would like to rely upon the judgment of honourable Supreme Court, reported in PLD 1995 SC 46. Before parting with the judgment we would like to observe that while admitting the petition we issued notice to appellant to explain as to why the sentence of 2 years may not be enhanced. Notice has been contested but we are not inclined to dilate upon this aspect of the case in view of the given circumstances and the observations made hereinabove. In view of what has been stated hereinabove, we see no force in the appeal which is accordingly dismissed. Thus conviction and sentence passed by Special Judge Suppression of Terrorist Activities is up held. Copy of this judgment be sent to the Secretary Home Govt. of Balochistan and I.G. Police for necessary action with regard to observations made hereinabove. (K.K.F.) Appeal dismissed. order A case under section 406 PPC was registered against the petitioner on the report of one Noor Ahmad son of Wali Muhammad on the ground that the petitioner was handed over Rs. 2,00,000/- to be kept in trust by him payment of the same to the complainant Noor Ahmad in accordance with the decision of Mehr Khuda Yar an arbitrator, appointed by the parties namely Ghulam Murtaza and the aforesaid Noor Ahmad. The arbitrator allegedly held that Noor Ahmed was entitled to the aforesaid amount but the petitioner refused to make the payment on the ground that he had already spent that amount and that a time of 10 days be given to him to make the payment. The complainant repeatedly demanded aforesaid amount but the petitioner but him off on false promises and ultimately refused to make the payment; hence a case under the aforesaid section was registered against him. 2. The registration of the case is challenged on the ground that the provisions of section 406 PPC were not attracted; and that matter between the parties was of civil nature, for which, a suit was filed by Ghulam Murtaza against Noor Ahmad as well as against the petitioner but the same was dismissed by the Civil Court vide its judgment dated 10.4.1996 with the observation that the legality of the award given by the arbitrator could be challenged in a petition under Arbitration Act. In pursuance of that judgment, the petition for arbitration was moved which was still pending and as such criminal action was not competent, being an abuse of legal process. Hence it was prayed that the impugned FIR is liable to be quashed. 3. After hearing the learned counsel for the parties, it is to be seen whether the institution of a criminal action amounted to an abuse of the process of Court, being in violation of the ends of justice. 4. It is pointed out during the argument that the case has already been sent for trial to the Court concerned after the conclusion of the investigation, in which, the petitioner has been found guilty. The perusal of the FIR prima facie shows that the petitioner was entrusted an amount, of Rs. 2,00,000/- which he had to pay in accordance with the decision of the arbitrator. The arbitrator had given a decision, the photo copy of which is placed as Annex: 'E' at page 14 of the record of this petition. It was delivered on 12.4.1996 in which the petitioner was directed by the arbitrator to make payment of Rs. 2,00,000/- to the complainant i.e. Noor Ahmad respondent No. 3. As such it is obvious that the petitioner was prima fade liable to pay the amount kept by him in trust vide the document executed by him to that effect. The mere fact that the parties have challenged the arbitration award under the Arbitration Act would not guillotine the FIR which has been registered on the basis of deed executed by the petitioner whereby he had xpressly undertaken to keep the money with him in order t.o make its payment to a party in accordance with the order of the arbitrator. As such the FIR in question cannot he killed in its inception particularly
PLJ 1997Cr PLJ 1997Cr.C. ( Lahore ) 1249 Present: GHULAM SARWAR SHAIKH, J. GHULAM FARID-Appellant versus THE STATE-Respondent Cr. Appeal No. 1 of 1994, accepted on 8.7.1997. Pakistan Penal Code, 1860 (XLV of I860)- -S t 161 PPC read with S. 5(2) P.C.A. of 1947-Conviction/Sentence-- Chailenge to-Benefit of doubt-Charge sheet, does not find support from testimony of P.Ws--It is not a raid case; tribe money was not recovered frcrn appellantThere is serious and inordinate delay of not less than three years in lodging FIR to which no explanation-Ocular evidence suffers from material contradictions and discrepancies on the point of time, mode and purpose.of payment-Appeal accepted. [Pp. 1250 & 1251] A, B, C, D & E Sh. Naveed Sheharyar, Advocate for Appellant. Maqsood Ahmad, Advocate on behalf of State. Date of hearing: 8.7.1997. judgment . In Case No. 196 of 1993, appellant namely Ghulam Farid was tried by learned Special Judge Anti-Corruption, Gujramvala, found and adjudged guilty of an offence under Section 161 P.P.C. read with Section 5(2) of Prevention of Corruption Act 1947 and accordingly convicted and sentenced to undergo R.I. for a period of two years with fine of Rs. lO.OOO/- and in default of payment of fine to suffer further R.I. for a term of six months. It was further directed that out of amount of fine, if recovered and realized, a sum of Rs. 8.000/- shall be paid as compensation to the complainant Muhammad Riaz. 2. At the relevant time, appellant was admittedly "Patwari" of Mauza Kot Nabi Shah, Tehsil Phalia of District Gujrat, where, Consolidation Operations were carried out in the year 1989-90. Charge against him was that he demanded and accepted Rs. 8.000/- as illegal gratification from Muhammad Riaz PW. 1 for giving better land to his father namely Muhammad Khan. It was refuted. 3. To substantiate the allegation embodied therein and prove its case as many as 5 witnesses were examined by the prosecution. PW. 1 Muhammad Riaz, is complainant. PW. 2 and PW. 3 Bashir Ahmad and Muhammad Arif, were persons before whom alleged illegal gratification had been demanded and passed on PW. 4 Ashiq HusSain is a Patwari, who, produced record pertaining to consolidation proceedings, copies whereof find a mention on file as Ex. PB to Ex. PD and PW. 5 Muhammad Rafiq Shah is Investigating Officer who, recorded formal F.I.R. Ex. PF on the basis of complaint Ex. PA in the light of order Ex. PE; recorded statements of witnesses, secured copies of relevant record, obtained sanction order Ex. PG and submitted challan. In his statement under Section 342 Cr.P.C. the appellant denied all the incriminating circumstances figuring against him in the prosecution evidence and raised .the plea of false implication. He explained that as. He could not oblige the complainant, who, desired to get land from Shamlat Deh, he was falsely involved in this case. No evidence in defence was, however, led by him. 4. Terming the delay in reporting the matter as not to be fatal and believing statements of PW. 1 to PW. 3, learned trial Court convicted and sentenced the appellant as indicated and stated above vide judgment dated 21.12.1993. 5. Learned counsel for the appellant has contended that delay of not less than three years in lodging FIR cuts very root of prosecution case. According to him, non production of complainant's father Muhammad Khan, who, allegedly arranged the money as also for whose benefit all arrangements had been sorted out and that of Akbar Shah in whose "Baithak" entire show had been staged, casts a cluster of doubt upon prosecution case. Pointing out sanction order Ex. PG as to be un-dated, no recovery having been effected from appellant, no time, date, month and even year of alleged payment of money having been mentioned by either complainant or any of PWs, chain of discrepancies on various points and purpose of illegal gratification in particular; it has been canvassed that benefit of doubt, how, slight it may, he has to go to accused. Asserting that -^[prosecution story does not find corroboration from evidence adduced on record, learned counsel for the appellant has further remarked that the case is patently of such a nature to which the provisions of Section 265-K Cr.P.C. should have been extended. In support of the arguments, reliance has been placed upon Saleh Muhammad us. The State (1988 P.Cr.L. J. 653). 7. Conversely, learned counsel representing the State has maintained that due sanction had been obtained from the Commissioner for proceedings against the appellant on specific and distinct charge and the conviction and sentence neither suffer from any infirmity nor can be taken to the perfunctory any way. Also it has been impressed that the same are duly warranted by data and material on record. 8. I have piven my earnest consideration to respective contentions and scanned the record. 9. Ii is pertinent to note that very factor, of "giving better land during consolidation" affording the basis of alleged illegal gratification, as disclosed in complaint and F.I.R. Ex. PA & Ex. PF which, of course set the criminal law into motion, and charge sheet, does not find support form testimony of PWs, who, have categorically described the same as to be "for not disturbing the possession of the land". PW. 2 has added to the extent that the appellant had promised to give 33 kanals from "Chiragh". Such improvements can simply be taken to be an after though affairs and figment of imagination of complainant and prosecution witnesses. This aspect becomes all the more significant in face of hard fact that neither land fallen to-the lot of Muhammad Khan was classified by any of PWs, nor an appeal with regard thereto was admittedly preferred, be that as it may, somer-sault, in this regard, annihilates the prosecution case, renders it to be baseless, impairs it beyond repair and rather superstructure has to collapse like house of cards. 10. Undoubtedly, it is not a raid case, bribe money was not recovered form appellant, there is serious and in-ordinate delay of not less than three years to which no explanation, what to speak of plausible, stands furnished, occular evidence suffers from material contradictions and discrepancies on the points of time, mode and purpose of payment of illegal gratification and absence of Akbar Shah, owner of house, is wrapped in mist. All these factors manifestly indicate that the prosecution case has no legs to stand. It is really inconceivable as to how the appellant could show favour to complainant and even PWs, who, admittedly do not own land. Last nail in he coffin of prosecution case is put by the fact that PW. 3 Muhammad Arif could have been easily induced to become witness against the appellant as he himself had filed a complaint against him. Candid admission on the part of PW. 1 and PW. 2 that they are witnesses in another complaint against the appellant adds nothing but in suit to injury. They can conveniently be named to be interested witnesses upon, whom, no implicate reliance can be placed. 11. I agree with learned counsel for the appellant, who has categorized prosecution case as to be "cock and bull" story, which, in no way, can afford valid basis of conviction of the appellant. Same consequently is unsustainable and open to grave exceptions. 12. Upshot of the above discussion is that appeal is accepted, conviction and sentence are set aside and appellant is acquitted of the charge levelled against him. 13. He is on bail and is accordingly absolved of all his liabilities to the bail bonds submitted by him. (K.K.F.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1252 Present: MALIK HAMD SAEED, J. ZAIBULLAH-Petitioner versus SULTAN SIKANDAR and another-Respondents Crl. Misc. B/C No. 93 of 1996, decided on 10,6.1997 BailCancellation of S. 497(5) Cr.P. read with Ss. 302, 324, 148, 149 PPG and S. 13 of Arms Ordinance, 1965-Murder-Offence of-Bail applications-Acceptance of- Application for cancellation of bails-Site plan is in contradiction of with .version given in FIRAccused K was released by SHO under section 169 Cr.P.C. on personal bond, which in absence of a report of police officer U/S 173 Cr.P.C. or taking cognizance by court under section 190(l)(c) Cr.P.C. could not be interfered withHowever ccused/respondent S is on different footing-He was released on bail by Judicial Magistrate ignoring the fact that instant offence being scheduled one falls within exclusive jurisdiction of Special Court and hence, his impugned order is patently illegal-Mere allegation of use of Kalashinkov in FIR takes out case from ordinary forum to forum of Special Courts and neither Magistrate nor Session Judge could take cognizance of bail matters- Application against accused is accepted on the ground of jurisdiction- Application partly-accepted. [P. 1254] A, B & C Mr. Sanaullah Khan Gandapur, Advocate for Petitioner. Mr. Muhammad Karim Anjum, Advocate for Respondents/Accused. Mr. Muhammad Khan, Advocate for State. Date of hearing: 10.6.1997. ' judgment This common judgment shall dispose of two Cr. Misc. No. 63/96 and 64/97, as both have arisen out of one and the same incident. 2. Facts of the case giving rise to the said petitions in brief are that on the report of Zaibullah, a case FIR No. 177 dated 10.11.1995 was registered at Police Station Lakki Marwat under Sections 302/324/148/149 PPC and Section 13 Arms Ordinance to the effect that on the eventful day at 1630 hours the complainant alongwith his son named Tareenullah, Mustafa and Dainsaz, sons of Mumtaz were on their way to village Said Ali and on reaching near the lands owned by Darey Shah, accused Khanzada, Wazir, sons of Zahooruddin, Karam son of Khanzada and Momin, all armed with Kalashnikovs while Naaz armed with .303 bore rifle emerged. On the direction of Khanzada and Wazir, Karam and Momin fired at Tareenullah with which he was hit and died there and then. Motive for the offence was given to be previous firing between the parties. 3. Karam Khan accused after arrest applied for bail to the Special Judge Lakki but in vain and has, therefore, filed Cr. Misc. No. 64/97 for his release on bail. Accused Momin alias Sultan Sikandar was admitted to bail by the flaqa Magistrate per his order dated 18.1.1996 while accused Khanzada was released on personal bond by the S.H.O. concernd on 24.12.1994. The learned Special Judge Lakki had refused cancellation of bail of the said two accused on 4.4.1996 and the complainant has now filed Cr. Misc. No. 63/96 for cancellation of the bail allowed to the said two accused. 4. In the instant case, five accused are charged in all of whom two are absconding. Petitioner Karam and respondents Wazir alias Sultan Sikandar and Khanzada were armed with Kalashnikovs together with their absconding co-accused Momin while Nawaz absconder is assigned .303 bore . rifle. From the site plan six empties of .303 bore rifle were recovered while no empty of Kalshnikov was found by the I.O. Only two shots proved effective, one which hitted the deceased and the other injured the PW Damsaz. Both the injuries sustained by the deceased and the injured PW were found on posterior aspect and the Doctor had found scalp over the wound of the deceased meaning thereby that it was caused much before the time of his examination. Besides, accused Khanzada and Wazir was attributed the proverbial role of Lalkara and were armed with Kalashnikov and this fact does not appeal to mind that when both of them were armed with Kalashnikovs, then why they asked their co-accused to fire at the deceased and the injured PW. The site plan is in contradiction with the version given in the FIR, as the deceased was shown at point No. 1, injured PW. 2 at point No. 2 and both these points are situated in a wheat-crop while in the FIR it is mentioned that the deceased and the injured were being followed by the complainant and his other companions on a thoroughfare. Even points 3 and 4 attributed to complainant Zaibullah and PW Mustafa were not in the range of points 1 and 2. The places where the accused are shown in the site plan are near in distance to the complainant and PW Mustafa. The delay of four hours in lodging the report coupled with the nonrecovery of any empty from the sport, when all taken together, makes the case at present arguable for the purposes of bail. Above all, the number of inj'uries sustained by the deceased and the injured PW do not commensurate with the numbers of the accused who all are members of one family, which also brings the case of petitioner Karam Khan within the ambit of further inquiiy. He is, therefore, admitted to bail provided he furnishes bail bond in a sum of Rs. 50.000/- with two sureties each in the like amount to the satisfaction of Special Judge. 5. In so far as the bail cancellation application against Sultan Sikandar alias Wazir and Khanzada is concerned, accused Khanzada was released by the S.H.O. under Section 169 Cr.P.C. on personal bond, which in absence of a report of Police Officer under Section 173 Cr.P.C., or taking cognizance by the Court under Section 190(l)(c) Cr.P.C. could not be interfered with. Section 169 Cr.P.C. relates to cases of insufficiency of evidence to sustain the trial of the accused, or lack of reasonable grounds of suspicion to justify the forwarding of accused to a Court for trial and the function is to be performed by the Officer-in-Charge of the Police Station and none else. After submission of reporot, Court may order further investigation under Section 156(3) Cr.P.C. or may take cognizance of the case under Section 190(l)(c) Cr.P.C. or when a report is sent to him under Section 173 Cr.P.C., he may either discharge the bond or order the re-arrest of accused, but the prerogative of the Officer-in-Charge of the Police Station jj|in releasing the accused on bond u/s 169 Cr.P.C. is not to be interfered with Cr. Misc. No. 93/96 qua Khanzada respondent is, therefore, dismissed. 6. The case of accused/respondent Sultan Sikandar alias Wazir Khan is, however, on different footings from that of his co-accused. He was released on bail by the learned Judicial Magistrate ignoring the fact that the instant offence being a Scheduled one falls within the exclusive jurisdiction of the Special Court and hence his impugned order is patently illegal and was liable to have been set aside by the forum below. An uncertified copy (Placed on file) passed by the august Supreme Court in Criminal Petition No. 104/94 was presented before the Court by the petitioner' s counsel wherein it has been held that mere allegation of use of Kalashnikov in the FIR takes out the case from the ordinary forum to the forum of Special Courts constituted under Suppression of Terrorist Activities Act 1975 and neither the Magistrate nor the Sessions Judge could take cognizance of the bail matters. 7. In consequence, Cr. Misc. No. 93/96 qua respondent No. Sultan Sikandar alias Wazir Khan is accepted on the ground of jurisdiction alone being incompetently admitted to bail by the Judicial Magistrate and his impugned order date 18.1.1996 and that of the Special Judge dated 4.4.1996 are, therefore, set aside. He is present in Court, taken into custody and sent to jail to await his trial as an under-trial prisoner. He is, however, at liberty to mcve competent Court for the purpose. (MYFXi Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1255 Present: raja muhammad khurshid, J. MUHAMMAD ARIF-Petitioner versus THE STATE-Respondent Cr. Mis. No. 1761B of 1997, dismissed on 2.6.1997. Bail- -S. 497/498 Cr.P.C.-Bail-Grant of--Prayer for-Offence u/S. 302/324/ 148/149 P.P.C. read with S. 14 of Offences Against Property (Enforcement of Hadood) Ordinance 1979-Petitioner is named in FIR-- He was armed with 12-bore gun and had made firing at one of deceased alongwith co-accused-Investigating Officer challaned petitioner to face trial-Held : High Court found no extenuating ground to enlarge petitioners on bail-Petition dismissed. [P. 1257] A & B 1984 SCMR 429 and 1984 SCMR 521 ref. Mr. Najeeb Faisal Chaudhary, Advocate for the Petitioner. Mr. A H. Masood, Advocate for the State. Mian Abdul Khaliq, Advocate for the Complainant. Date of hearing: 2.6.1997. order A case under sections 302/324/148/149 PPG read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was registered against the petitioner and others for committing the murder of Muhammad Riaz, a son of the complainant Muhammad Inayat and one another namely Ahmad Yar. 2. According to the FIR, the petitioner alongwith six others, out of whom five were armed with deadly weapons like fire-arms, opened fire at both the deceased in pursuance of the motive stated in the FIR. The x petitioner is named in the FIR and a specific role is attributed to him for causing injuries to Muhammad Riaz deceased. 3. It is submitted by the learned counsel for the petitioner that there is a cross version about the occurrence according to which the complainant's side was an aggressor for which a reference is made to the registration of FIR No. 313 regarding the same occurrence on the next following day i.e. 18.8.1996 on the report of Din Muhammad, the father of one of the deceased namely Ahmad Yar. Hence it is submitted that there are two versions about the same occurrence, therefore, it has become a case of further inquiry. Secondly, it is submitted that there are four injuries on the person of Muhammad Riaz deceased, although according to the FIR five persons have made fire-arm injuries, as such, the medical evidence allegedly contradicts the ocular account of the occurrence. Lastly, it is contended that the Investigating Agency had come to the conclusion that the petitioner had reached the place of occurrence after the murders had already taken place. In this respect, reference is made to a certified copy of the report prepared under section 173 Cr.P.C. according to which the petitioner had reached the spot after the firing had finished, as such, it is contended that the petitioner is entitled to bail keeping in view the principles laid down in 1984 SCMR 429 and 1984 SCMR 521. 4. The bail is resisted by the learned counsel for the complainant and also by the learned State counsel on the ground that the FIR containing the cross version has since been cancelled after the police investigation. However,- it is conceded that a private complaint regarding this version has also been filed and is pending in the Court of Session. However, it would not give any benefit to the petitioner at this stage because the deeper appreciation about the merit 1 ? of the case cannot be undertaken at present as to which of the parties svas an aggressor. That could only be settled after recording the evidence at the trial. Lastly, it is contended that the principle laid down in the above quoted precedents is not attracted to the facts of the present case because the Investigating Agency had not advanced any firm ground to believe about the alleged innocence of the petitioner. Only the Investigating Officer had made an observation that after confronting the parties, he had come to the conclusion that the petitioner had reached the place of occurrence after the firing was over. Despite that, the Investigating Officer opted to lace the petitioner in column No. 3 of the Challan thereby prima facie holding that he is linked with the occurrence. 5. I have considered the foregoing submissions raised from both the sides. It is enouned to say that the petitioner is named in the FIR. He was armed with 12-bore gun and had made firing at one of the deceased alongwith his co-accused persons would be clear from the statements given by the eye-witnesses. Even the Investigating Officer had also opted to hold Him guilty as according to the report prepared under section 173 Cr.P.C., the Petitioner has been placed in column No. 3 instead of column No. 2 which clearly speaks that he had been sent to the Court concerned for facing the trial. The mere observation of the Investigating Officer that the petitioner had reached the place of occurrence after the firing was over would not be sufficient particularly when this opinion is based after confrontation of the parties during the investigation. But, as stated above, he had finally challaned the petitioner to face the trial. The deeper appreciation of the evidence cannot be undertaken at this stage lest it may prejudice the trial itself. There is no extenuating ground to enlarge the petitioner on bail Hence the bail petition is dismissed. (K.K.F.) Appeal accepted
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1257 Present: MlAN NAZIR AKHTAR, J. Mst. JANAT BIBI-Petitioner versus MUHAMMAD BASHIR and another-Respondents Cr. Misc. No. 1146 BC of 1997, decided on 1,7.997. Bail-Cancellation of- -S. 497(5) Cr.P.C-Offence u/S. 337-F(l) (6) PPC-Bail-Cancellation oi Prayer for-Bail application rejected by the Addl. Session Judge but aft 20 days same Judge granted bail to respondent-Held: Despite knowledge of dismissal of previous bail petition by him and in absence of any new ground same learned Addl. Sessions Judge accepted bail in violation of principles and law laid down by the superior courts in matters relating to grant of bail-Bail cancelled. [Pp. 1259 & 1260] A & B PLD 1986 SCI 73 ref. Muhammad Farooq Qureshi Chishti, Advocate for Petitioner. Ch. Muhammad Farooq, Advocate for the State. Mumtaz Ahmad Bhalwana, Advocate for Respondent No. 1. Date of hearing: 1.7.1997. order The petitioner has filed this petition under section 497(5) of the Cr.P.C. for cancellation of bail granted to Muhammad Bashir, respondent No. 1, by the learned Addl. Sessions Judge vide order dated 12.2.1997. 2. I have heard learned counsel for the petitioner, the State and respondent No. 1. Muhammad Bashir respondent No. 1 is an accused in the case registered vide FIR No. 369. dated 18.12.1996 for offence under section 337-F(l)(6) of the PPC at P.S. Jauharabad, District Khushab. He filed an application for grant of bail which was dismissed by the learned Addl. Sessions Judge on merits vide his order dated 22.1.1997. The relevant part of the order reads as under:- - "I have heard the arguments and perused the record. The complainant is a wife of the accused petitioner, therefore, the chances of false implication are very remote. The medical report, and X-ray present on the record shows that three metacarpal bones of the left hand of the complainant were fractured. It shows that the accused petitioner treated his own wife with cruelty. The challan against the accused petitioner has been submitted in the court of Illaqa Magistrate and the trial is in progress. In my view if the accused petitioner is enlarged on bail he will temper (with) the prosecution evidence, and the apprehension shown by learned counsel for the complainant in this respect appears to be genuine. The petitioner is behind the bars for a period of about 10 days, therefore, I am of the view that at this early stage of the case the accused petitioner is not entitled t;o the concession of post-arrest bail." Just after 20 days the same learned Judge granted bail to respondent No. 1, vide order dated 12.2.1997. The relevant part of the order reads as under:- "I have heard the arguments and perused the record. The injured/complainant is admittedly wife of the accusedpetitioner. The marriage bond between them still exists. The petitioner is behind the bars for a period of one month. The alleged offence does not fall within the Prohibitory Clause of section 497-Cr.P.C. In my view the petitioner is behind the baras for a sufficient period so in the given circumstances I admit him to bail subject to furnishing of bail bonds amounting to Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned trial court/Ilaqa Magistrate." It is strange that despite knowledge of dismissal of the previous bail petition by him and in the absence of any new ground the same learned Add!. Sessions Judge ventured to allow bail of respondent No. 1. The bail granting order appears to be plainly illegal and in violation of the rule laid down in Zubair's case (PLD 1986 SC 173). The relevant part of the judgment reads as under:- "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere act that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the appellant's counsel before him and that, the name had not found favour with him. It may be pointed out with great respect that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived." The question whether the learned Addl. Sessions Judge had allowed bail di^ I to some ulterior motive can be probed into on the administrative side but, one thing is clear that he has acted in violation of the principles and law laid down by the superior Courts in mattes relating to grant of bail- 3. For the foregoing reasons, this petition is accepted and order dated 12.2.1997, whereby bail was granted to respondent No. 1 by the learned Additional Sessions Judge is set aside and his bail is cancelled. He shall be taken into custody by the police forthwith and .sent to the judicial lock up. (K.K.F.) Judgment approved for reporting.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1260 Present: raja muhammad khurshid, J. MUHAMMAD ASHRAF-Petitioner versus STATE-Respondent Crl. Misc. No. 286/B-1997, accepted on 10.4.1997. Bail-- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for -Further inquiry-Ground of~ Offence U/S. 377 PPC read with S. 12 of Offence of Zina Enforcement of Hudood Ordinance-There is difference of medical opinion regarding commission of offence on the ground of capacity of petitioner to perform sexual actEven Investigating Agency rambled about application of section'12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979- Held : Case of petitioner is that of further inquiryPetition allowed. [P.1261]A Raja Muhammad Zulqarnain Bhatti, Advocate for Petitioner. Raja Imtiaz Kiani, Advocate for State. Date of hearing: 10.4.1997. ORDER A case under section 377 PPC read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against the petitioner at Police Station Gujjar Khan vide FIR No. 395 dated 16.8.1996, in which it was alleged that he had committed sodomy upon Nasir Mahmood a boy of 24 years of age after way laying him at the threat of knife. 2. The petitioner applied for pre-arrest bail which was dismissed by the learned Additional Sessions Judge, Gujjar Khan, whereafter he applied for bail to the Court of learned Judicial Magistrate as the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was meanwhile dropped by the Investigating Agency. Learned Judicial Magistrate granted bail to the petitioner on the ground that the victim was involved in similar cases in the past and that the competency of the petitioner/accused, who was 52 years of age, regarding the commission of sexual act was yet to be determined. It was also held that there was difference of opinion in the medical reports. It was observed that the Medical Officer had clearly said that the petitioner was not in a position to perform sexual intercourse whereas the Board constituted siibsequently came to the conclusion that there was nothing to suggest that the person is unable to perform sexual act. 3. A petition for the cancellation of bail was moved before the learned Additional Sessions Judge, Gujjar Khan, who accepted the same vide the impugned order and cancelled the bail granted to the petitioner by the learned trial Court. Hence this position. 4. Learned counsel for the petitioner has submitted that it was not possible for the petitioner to way lay the victim, who was a grown up boy of 24 years of age, and then to commit sodomy upon him by showing him the knife. It is for this reason that the Investigating Agency initially dropped the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but later on added the same while submitting the final report under section 173 Cr.P.C. It is contended that the victim was habitual to such like affairs and was a complainant in two cases in which the present PWs were also the PWs. later on, those cases were compromised. Hence he submitted that the conduct of the victim would show that even in this case he did not come to this Court with clean hands. Lastly, it was submitted that due to the difference of medical opinion, the benefit of bail should be given to the petitioner who is an old man. 5. Learned counsel appearing for the State has opposed the grant of bail on the ground that the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, has since been added, therefore, the petitioner has no case for bail particularly when the report of the Chemical Examiner is also positive. The opinion given by the Board allegedly suggests that there is nothing to show that the petitioner was unable to perform the sexual act. This opinion of the Board of Specialists shall over rule the opinion given by a single doctor that the petitioner was unfit to perform sexual inter-course on account of his previous history of venereal disease. The impugned order was. therefore, supported. 6. I have considered the foregoing submissions and without entering into the deeper appreciation of the case, it is enough to say that there is difference of medical opinion regarding the commission of offence on the ground of capacity of the petitioner to perform. sexual act. Even the Investigating Agency rambled about the application of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the first instance, the aforesaid offence was dropped but later on added on the same facts. The credential of the victim though not a conclusive determining factor but still can be taken into account for the limited purpose of bail at this stage. The case of the petitioner is that of further inquiiy. The petition is accordingly allowed and the petitioner is admitted to bail in the sum of Rs. 30,000/- with tone surety in the like amount to the satisfaction of trial Court/Judicial Magistrate, Gujjar Khan. (K.K.F.) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 1308 Present: ZAFAR HADI SHAH, J. RIAZUDDIN ALIAS MUNA and others-Applicants versus STATE-Respondents Crl. Misc. No. 124/1996, accepted on 24.6.1997. Criminal Procedure Code, 1898 (V of 1898)-- -Ss. 107/117 and 151 read with Section 561-A-Quashment of proceedings- Prayer forContention that proceedings under section 107 Cr.P.C. was valid for a period of one year from date of order-Further contended that period of order has already been expired as such proceedings u/Ss. 107/117 and 151 Cr.P.C. are to be quashed-Held : Impugned order was valid for one year from date of order, has outlived its legal life and has become invalid-Petition for quashment of impugned order is allowed. [Pp. 1309 & 1310] A & B Mr. Mahmood A Qureshi, Advocate for Applicants. Mr. Sayedain Zaidi, AAG and Ms Nasreen Zafar, Advocate for State. Date of hearing : 24.6.1997. judgment This Criminal Misc. Application has been filed under Section 561-A Cr.P.C. for quashment of order passed by the Assistant Commissioner and SDM Gadap District Malir Karachi dated 14th February, 1996. In the proceedings under sections 107/117/151 Cr.P.C., the Assistant Commissioner and SDM vide order referred to above called upon the applicants to show cause why personal bond should not be executed by them in the svim of Rs. 20.000/- to keep peace for a period of one year with one/two surety/sureties in the like amount and that they should keep the peace for the said term. The applicants alleged that they wanted to deposit a sum of Rs. 60,000/- in cash towards the Personal Bond but the Assistant Commissioner and SDM refused to accept the same as such they filedrevision before the learned Sessions Judge, Malir, who admitted the revision and released the applicants upon furnishing security amount of Rs. 60,000/-. The applicants have challenged the proceedings under section 107 Cr.P.C. and the impugned order referred to above on several grounds. The aforesaid Criminal Misc: Application was filed on 21.3.96 but could not be finally disposed of and came up for regular hearing today. Learned counsel appearing for the applicants submitted that the impugned order passed by the Assistant Commissioner and SDM Gadap District Malir, Karachi dated 14th February, 1996 passed in the proceedings under section 107 Cr.P.C. was valid for a period of one year from the date of the order. His further contention is that the period of the order has already been expired as such the proceedings under Section 107/117/151 Cr.P.C. are to be quashed. Learned State counsel on the basis of the record of the case did not oppose the submission of the applicants' counsel. In view of the facts of the case, petitioners' counsel Mr. Mahmood A. Qureshi relied upon the case reported in PLD 1961 (W.P.) Karachi page 118 (The State v. Shaft Muhammad and others). In this reported case, the observations were as under :-- Shafi Muhammad and others were called upon to show cause why they should not. be ordered to furnish security for being of good behaviour for a period of one year on 26th November, 1958. These persons did not challenge the police report. Their pleas were recorded and they were sent to jail. Shafi Muhammad alone appealed to the District Magistrate, his plea was accepted and retrial was ordered on 30th March, 1959. The case was transferred to another court where for 9 months the proceedings dragged on and nothing was done. It has been brought to the notice of this Court during an inspection that proceedings in this case have taken too long a time and ought to be quashed. Firstly, it appears that in this case the order to furnish security was passed on 26th November, 1958 and since then all these five persons have been in jail. The period of one year expired on November 25, 1959. In view of the above facts, the proceedings were [Hashed under section 561-A Cr.P.C. In another reported cuseNurNabi v. The State (1968 P.Cr.L.J. 131) it has been observed as under :-- "By this order dated 22nd February, 1996, the learned Magistrate had directed the petitioner to furnish a bond for the maintenance of peace for one year, but I am told that the bonds have still not been cancelled. I cannot understand this position. The power of the learned Magistrate to take security was limited to one year, and further insistence on that security is totally illegal. In the present case, the security for maintenance of peace was taken by the Magistrate for one year vide order dated 14th February, 1996. Admittedly the period of one year lias expired. In view of the aforesaid reported cases, it is held that Magistrate's powers under Section 107 Cr.P.C. for taking security for the maintenance of peace are limited to one year only. After expiry of the aforesaid period, the proceedings become invalid. In view of the above discussion, the impugned order dated 14th February, 1996 passed by the Assistant Commissioner and SDM Gadap District Malir, Karachi, which was valid for one year from the date of order, has outlived its legal life and has become invalid. The petition for quashment of the impugned order is allowed and the proceedings pending before the Assistant Commissioner and SDM Gadap District Malir, Karachi, in the case "The. State v. Riazuddin and others" are accordingly quashed, (K.K.F.) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. Lahore 1310 (DB) Present: raja muhammad khurshid and munir A. sheikh, JJ. JAVED AKHTAR-Appellant. versus STATE-Respondent Crl. Appeal No. 228 of 1996, accepted on 30.6.1997. Control of Narcotic Substances Ordinance, 1995-- -S. 9(b)--C7zaras--Recovery of-Conviction for-Challenge to-Case property was not kept in safe custody i.e. malkhana-Casr property (samples of was kept for about seven days and was not transmitted promptly to Chemical Examiner-Delay in despatch was not explained-Result and report of chemical Examiner would become unreliable on account of nexplained delay in sending material to Expert-Appellant was unrepresented by a counsel-Held : Prosecution has not been successful to prove its case against appellant beyond any reasonable doubt-Appeal accepted. [P. 1313] A. B, C & D Raja Altaf Hufssain. Advocate for Appellant. Mr. Tanq Mahmood. Advocate for State, Date of hearing : 30-6.1997 judgment Raja Muhammad Khurshid, J.-The appellant was convicted under Section 9(b) of the Control of Narcotic Substances Ordinance, 1995 and sentenced to three years R.I and a fine of Rs. 50007- or in default to suffer further R.I for six months vide, judgment dated 23.10.96 passed by Mr. Sabah Mohy-ud-Din Khan, learned Special Judge, Islamabad appointed under the aforesaid Ordinance The brief facts are that, a police party headed by Ghulam Muhammad Baqir, SI was present on G.T. Road near Sihala Mor when the appellant was seen coming from the side of Rawalpindi city. On seeing the policy party, the appellant took a back turn and started walking quickly which aroused suspicion against him. The police party gave a pursuit to the fleeing appellant and overtook him at some distance. Upon personal search, 250 gms. of Charas was found in the right pocket of the 'Salooka' worn by him under the shirt. It was in a shopping-bag. The 10 gins, of Charas was separated from the bulk and the same was sent to the Chemical Examiner for analysis The report of the Chemical Examiner was positive. 2. The learned trial Judge considering the evidence brought on record, recorded the aforesaid conviction and sentence upon the appellant after finding him guilty. The aforesaid conviction is challenged in this appeal on the ground that the SHO, who had lodged the FIR also assumed the investigation and cited all his subordinates as PWs which was allegedly unfair and illegal because a complainant was not supposed to be an Investigating Officer in the same case; that the alleged Charas was made into sealed parcel and was not. kept in proper custody; that the same was sent to the Chemical Examiner with the delay of seven days, thereby, created genuine doubts regarding its dispatch and also the report, obtained under such ciraimstances; that the appellant remained unrepresented and was unable to cross-examine the witnesses which allegedly prejudiced whole of trial; and finally the recovery of Charas from the person of the petitioner was allegedly made in violation of Section 103 Cr. P.C. as no respectable person was associated during such recovery. It was, therefore, prayed that the prosecution case remained highly doubtful and as such, no conviction could be recorded against the appellant. Learned counsel for the appellant relied upon 1997 SCMR 617 and 1997 PCr. LJ 603 (Karachi) to show that the recovery of Charas from the appellant was highly doubtful in the absence of independent recovery witnesses. 4. Learned counsel for the State, however, stated that the prosecution had proved its case against the appellant beyond any easonable doubt. In this connection, it was contended that the police employees were as good witnesses as any other person from the public if it was ot shown that they were either interested or inimical to the accused. Even otherwise, each case of recovery has to be appreciated on its attending circumstances and no hard and fast rule could be laid as to under what circumstances, a recovery should be believed or disbelieved. The mere fact that the Investigating Officer was also the complainant in the case would not make the trial illegal particularly when no prejudice has been caused to the accused/appellant during trial. 5. We have considered the foregoing submissions. First of all, it is to be seen whether the recovery in this case in presence of the police employees as good or bad in the eye of law. In this respect, no hard and fast rule of Universal application conld be laid down, as each case has to be considered on its own merits. In the instant case, the recovery was effected from the appellant while he was present on the high-way. On seeing the police party, he had taken a back turn and started walking quickly whereupon, the police party got suspicious and over-powered him at some distance after a hot pursuit. If the police party would have started looking for independent persons then it would have not been possible for them to apprehend the accused/appellant red-handed. Rather it would have given a chance to the appellant to escape scot-free instead of being over-powered with the contraband drug. In such a situation, looking for an independent person of the locality would have been a far ciy. The provisions of Section 103 Cr.P.C. would, of course apply stricto senso whenever a search is to be made in respect of a place but not at the time of personal search of a person c prehended under the given situation. In this respect, reliance can be ' placed on 1987 P.Cr.L.J. 125 (Federal Shariat Court). The appellant has, therefore, no case on this ground to expect any benefit against his conviction. However, the remaining points would call for serious attention, wherein, it is alleged that the complainant/SHO should have not investigated the case himself lest it has prejudiced the trial. In the instant case, the SHO who had become the complainant also assumed the investigation and submitted the challan against the appellant/accused. This is of course quite anomalous and could be considered to have caused nreiudice to the accused because all the witnesses in the case were subordinates to him. Even otherwise, the custody of the Charas recovered from the appellant does not appear to be creditable as Sultan Ahmad, ASI (PW.l) stated that he kept the parcels in safe custody and nobody tampered with the aforesaid parcels out of which, he handed over one parcel to Rafaqat Hussain, Constable (PW.2) on 11.3.96. The recovery was effected on 4.3.96 but it does not appear from the statement of the aforesaid witness that the case property i.e.; Charas was kept in the malkhana in safe custody. On the contrary, it reveals that it was kept in the personal custody of the aforesaid Sultan Ahmad, ASI w.e.f. 4.3.96 to 11.3.96 when the same was handed over to the aforesaid Rafaqat Hussain for its onward transmission to the office of the Chemical Examiner, Rawalpindi. It is not explained by the witness as to why it was kept for about seven days in his custody and was not transmitted promptly to the office of the Chemical Examiner. This is a serious flaw in the prosecution case which ought to have been explained but has not been done so. Likewise, the Investigating Officer who was also the complainant in the case appeared as PW.5 but did not explain about the delayed dispatch of the questioned Charas to the office of the Chemical Examiner. In such a situation, the result and the report of the Chemical Examiner would become unreliable on account of unexplained delay in sending the material to the Expert. In this regard, reliance may be placed on Muhammad Arifvs. The State 1993 PSC (Crl) 666 (Federal Shariat Court). Lastly, the perusal of the evidence shows that not a single question was put by the appellant/accused to any of the witnesses during crossexamination which was recorded as nil qua all the prosecution witnesses. It is an admitted fact that the appellant was unrepresented by a counsel and as such, was handicapped to bring out the truth through the cross-examination regarding the delayed dispatch of the incriminating material to the Expert and also to bring on record the correct information regarding the actual custody of the same during the period from 4.3.96 to 11.3.96. It would have been better, if the learned trial Judge, in such an unrepresented case, had taken care to call upon some 'Free legal aid Society' to conduct this case on behalf of the appellant to satisfy the ends of justice. However, it has not been so done, which definitely caused prejudice to the accused at the trial. 6. In view of our above discussion, we come to a considered conclusion that the prosecution has not been successful to prove its case against the appellant, beyond any reasonable doubt. As such, while giving benefit of doubt, we accept the appeal and acquit the appellant. The conviction and sentence passed upon him by the learned trial Court are setaside. The appellant shall be set at liberty at once if no more required in any other case. 1. The contraband drug shall stand confiscated to state, and be destroyed in due course. (AAJS) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. Lahore 1314 Present : SHEIKH LlJTF-UR-REHMAN, J. GHULAM HAIDER BHATTI-Appellant versus STATE-Respondent Crl. Appeal No. 553 of 1994. decided on 28.7.1997. Pakistan Penal Code, 1860 (XLV of I860)-- -Ss. 468, 471 read with S. 5(2) of Prevention of Corruption Act, 1947-- Appellant while posted as a sweeper in a medical college, got himself appointed as a Laboratory Assistant on the basis of a forged/bogus matriculation certificate-Special Judge, Anti-Corruption convicted appellant-Later on appointment of Special Judge Anti-Corruption was | declared to be illegal because he suffered disqualification as given in Section 3(2Hb) of Pakistan Criminal Law Amendment Act, 1958- Contention is that, appointment of Anti-Corruption Judge was not legal hence all proceeding conducted by said Judge were without lawful jurisdiction-Held : All proceedings conducting by said Judge were illegal and without jurisdiction but if in appellant's case a retrial is not ordered for getting a judicial verdict whether or not appellant obtained appointment on basis of forged certificate, lie will continue in service even if he really committed forgery et.c.-This would amount to perpetuating a wrong on legal technicalities which cannot be permitted as an act of court cannot prejudice any party-Appellant must face trial and prosecution . must be given an opportunity to prove its case against accusedCase remanded. [Pp. 1315 & 1316] A, B & C Mr. Muhammad Siddique Chughtai, Advocate for Appellant. Mr. ArifAli Hazoor, Advocate for State. Date of hearing : 28.7.1997. judgment This is an appeal against the judgment dated 23.10.1994 passed by Syed Ijaz Hussain Rizvi, Special Judge, And Corruption, Lahore, whereby he convicted Ghulam Haider Bhatti appellant under sections 468 and 471 PPC read with section 5(2) of PCA, 1947 and sentenced him to one year R.I. and to a fine of Rs. 35,000/- and in case of default in the payment of fine to further R.I. for 6 months under section 468 PPC and 1 year RI and to a fine of Rs. 30.000/- and in case of default in the payment, of fine to further R.I. for 5 months under section 471 PPC. Both the sentences were to run concurrently. No separate sentence was awarded under section 5(2) PCA, 1947. 2. The learned counsel for the appellant while relying upon the case of Muhammad Riaz etc. vs. The State (1996 P.Cr.L.J. 1007) submitted that the appointment of Syed Ijaz Hussain Rizvi was declared to be illegal because he suffered dis-qualification as given in Section 3(2)(b) of Pakistan Criminal Law Amendment Act, 1958. He submitted that the appointment was not legal and all the proceedings conducted by the said Judge were without lawful jurisdiction. The learned counsel for the State admitted this position to be correct. 3. There are many authorities of this Court, which have been referred in the case of Muhammad Riaz, to the effect that a person having stigma in his service career cannot be appointed a Special Judge in view of the provisions of Section 3(2(b) of Pakistan Criminal Law Amendment Act, 1958. 4. Respectfully adopting the same view, I hold that the appointment of Syed Ijaz Hussain Rizvi as a Special Judge, Anti-Corruption, was illegal and all the proceedings conducted by him in the case in hand are without jurisdiction. 5. The learned counsel for the appellant while relying upon Phul il Khan versus The State (1972 S.C.M.R. 95), Ali Muhammad versus Ata Muhammad and 4 others (1995 P.Cr.L.J. 2024), Sohail Ahmad and 6 other ersus The State and another (1995 P.Cr.L.J. 2036) and Mahmoodul Hassan versus The State (1984 P.Cr.L.J. 1107) submitted that as the appellant had suffered the agency of the investigation and trial since 1991 the re-trial would not be justified. The learned counsel for the State, on the other hand, submitted that as the appellant-accused was involved in a case of forgery of matriculation certificate for obtaining job, a re-trial was necessary. He placed reliance on the case of Ehsanullah Khan versus The State (1985 P.Cr.L.J. 1125) in support of his contention. 6. The question of re-trial of an accused is a very important, factor in a criminal trial and must always be decided after considering all the relevant, facts constituting the offence in the case. It is not simply the period which elapsed between the occurrence and the decision, but also involves the perusal of the main evidence in the case; the nature of the alleged offence and the agony or inconvenience of the trial already suffered by the accused vis-a-vis his acquittal or conviction. 7. Two important legal questions arise while solving this controversy: (i) Whether the accused was acquitted or convicted by the trial Court. (ii) The nature of the offence allegedly committed by the accused. In cases where the accused is acquitted in the first instance a re-trial is ordinarily not required. The logic behind this view is that the accused were adjudged to be innocent during the trial which was vitiated subsequently due to some legal embargo.' On the contrary in case of conviction from the trial Court, a re-trial will inter alia depends upon the nature of offence allegedly committed by him. It is not each and every case of protracted agony of trial which must end with a refusal to a denovo trial and acquitted accused must not be made to face a re-trial if he has already undergone the agony of a lengthy trial including the period of investigation etc. Once adjudged to be innocent is a very strong reason for declining a re trial. In the case of conviction, the accused is yet to establish his innocence in a duly established legal forum/Court of law. His fate rests upon the nature of the charge against him. If the offence is such that in the absence of a re-trial it would amount to perpetuate a wrong or keep the status/position of the accused under suspicion of re-trial should be ordered so that either the accused are to be cleared through a verdict of acquittal or he be sentenced to bring an end to the continuous nature of the offence. For example if some one secures a job as a medical officer in a hospital on the basis of a bogus degree, he cannot be absolved from a retrial and the genuineness of the degree must be probed, otherwise, the fate of the patients treated by him is anybody's guess. 8. Ghulam Haider Bhatti appellant while posted as sweeper in King Edward Medical College, Lahore, got himself appointed as Laboratory Assistant on the basis of a forged/bogus matriculation certificate. If a re-trial is not ordered for getting a judicial verdict whether or not the appellant obtained appointment on the basis of a forged certificate, he will continue in service even if he really committed forgery etc. This would amount to perpetuating a wrong on legal technicalities, which cannot be permitted as an act of the Court cannot, prejudice any party. The appellant must face the trial and the prosecution must be given an opportunity to prove its case against the accused. 9. In all the rulings cited by the learned counsel for the appellant except about the case of Mahmoodul Hassan the accused persons were acquitted by the trial Court as compared to Ghulam Haider, appellant, who was convicted and sentenced. In the case of Mahmoodul Hassan the retrial was not ordered probably as the conviction was simply under section 163 PPC i.e. taking gratification for exercise of personal influence with a public servant. As observed in the preceding para the offence under section 163 PPC is not of a continuous nature. The above cited cases are not applicable to the facts of the case in hand. 10. The conclusion is that the appeal is accepted and the conviction and sentence of the appellant set aside. The case is remanded to the trial Court for fresh trial according to law from the stage from where Syed Ijaz Hussain Rizvi conducted the proceedings. (AAJS) Case remanded.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1317 Present : rao iqbal ahmed khan, J. MUHAMMAD SIDDIQUE-Appellant Versus STATE-Respondent Crl . Appeal No. 523/94, decided on 16.7.1997. » Criminal Trial-- Trial and convictions by judge who was not eligible to be posted as Special Judge Anti-Corruption-Validity-Said Judge was not eligible to be appointed as Special Judge Anti-Corruption; consequently appeals are accepted and convictions of appellants set aside-But prayer that appellants be acquitted, cannot be acceded--High Court order retrial of cases denowo -Cases remanded. [P. 1318] A Mian Muhammad Hanif , Advocate for Appellant. Mr. Abdul RaufFarooqi , Advocate for State. Date of hearing: 16-7-1997. judgment Since common question is involved in Crl . Appeals No. 523/94, Crl . Appeal No. 537/94, Crl . Appeal No. 263/95 and Crl . Appeal No. 285/95, I intend to dispose of the same by this single judgment. 2. Vide above mentioned appeals, the appellants have assailed judgments dated 28.9.1994 and 16.4.1995 passed by Syed Ijaz Hussain Rizvi , Special Judge, Anti-Corruption, Lahore, on the grounds, interalia that the learned Judge was not eligible to be posted as Special Judge Anti-Corruption he having incurred disability to act as such, therefore, the convictions in the above mentioned cases are illegal and as such appeals be accepted and the appellants be acquitted. Reliance placed on Mahmoodul Hassan vs. The State (1984 P.Cr.L.J 1107) and Muhammad Riaz and 2 others vs. The State; (1996 P.Cr.L.J . 1007). 3. Precise contention raised by the learned counsel for the appellants was that the qualification prescribed for appointment to the post of a Special Judge was not fulfilled by Syed Ijaz Hussain Rizvi and as such he could not be appointed as Special Judge. My attention was drawn to Pakistan Criminal Law Amendment Act (XL of 1958), Section 3(2). Perusal of this section shows that no person could be appointed as a Special Judge unless he was qualified to be a Judge of the High Court or has been an Additional Sessions Judge or Sessions Judge and has not retired from Government service or at any time removed or dismissed from service. I was told that Syed Ijaz Hussain Rizvi had been removed from service and as such had incurred disability to act as Special Judge. 4. Learned counsel for the State conceded that Syed Ijaz Hussain Rizvi had been removed from service and, therefore, he was not competent to be appointed as a Special Judge, but he contended that the request of the appellants that they be acquitted on that ground, be not accepted rather the case be remanded for fresh decision. 5. In an earlier case reported in 1996 P.Cr.L.J . 1007, the status of Syed Ijaz Hussain Rizvi was thoroughly discussed. It was stated therein that Mr. Rizvi was appointed as Additional District and Sessions Judge on 23.8.1984 and was on probation for two years. Nevertheless, the probation period was extended for another year i.e., upto 23rd August 1987. During this period of probation, however, services of Mr. Rizvi were terminated on 19.8.1987. This termination order was then rescinded by an order dated 23 rd May, 1988. After this order was passed, Mr. Rizvi , was not accepted in the judiciary by the High Court, and, therefore, the Government took him on the executive side and posted him in the Food Department of the Province. This aspect was discussed and the case of another Special Judge who had been removed from service was also discussed that is, that of Mr. Muhammad Islam. The case of Mr. Islam was on a different footing than that of Mr . Rizvi , as the former was not on probation when he was removed from service rather he had rendered fairly a long sei -vice and had been retired prematurely, hut thereafter, the order of his retirement was recalled and thence he was appointed as a Special Judge. In the other case i.e., 1984 P.Cr.L.J . 1107, the same position pertained to the learned Special Judge namely Mr. Anwar Shariq , who had been retired and then re-instated and thence appointed as a Special Judge. So, therefore, the case of those Special Judges who had been retired from service and the case of a Special Jxidge who had been removed from service during probation period obviously cannot be equated with one another. In the case of Mr. Rizvi , two facts are apparent, one that he had not yet, completed the probationary period and removed from service; second, after the re-instatement, he did not, work even on probation as an Additional District, and Sessions Judge, rather worked on the execute side. It, therefore, follows that he had not even completed the probationary period as an Additional Sessions Judge, therefore, he could not, be considered to have been inducted in the service even as an Additional District and Sessions Judge. This aspect, I have been told, was veiy much in the knowledge of the authorities who appointed him as a Special Judge and the flaw regarding this appointment was brought to the notice of the High Court and the High Court in turn, it, is stated at the bar, informed the Government of this disability, but. the appointment was not rescinded. 6. Be that as it, may, it is manifest from the intention of the authorities, who enacted the law in relation to the appointment, of Special Judges that, only such judicial officers were intended to be posted as Special Judges who had spotless career, meaning thereby that, they were never, for any reason, removed from service and even if they were re-instated after removal they were held to have incurred the disability to be appointed as Special Judges. It, therefore, follows from the above discussion that, Mr. Rizvi was not eligible to be appointed as a Special Jtulge Anti-Corruption. Consequently the appeals are accepted and convictions of the appellants set. aside . But the prayer that, the appellants be acquitted, to my mind, cannot, be acceded to as the interest of justice requires that, the adjudication be done by a forum fully clothed with the authority to act as a Special Judge ancbwho does not suffer from any disability. Since in the above cited cases the trial of the appellants was taken up by a forum incompetent to try, I order the re trial of the cases de-novo. I, therefore, remit, the cases for decision on merits afresh. (AAJS) Cases remanded.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1320 [Multan Bench] Present: zafar pasha chaudhry, J. SHAHID ALI-Petitioner versus STATE-Respondent Crl. Misc. No. 134-B-1997, accepted on 11.3.1997. Bail- S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/Ss. 324/452 PPC-- Previous enmity-Versions contained in two different F.I.Rs.-Contention of petitioner finds support from statement made by petitioner soon after his arrest by police-Petitioners case becomes that of further inquiry- Petition accepted. [P. 1321] A Sahibzada Farooq AH Khan, Advocate for Petitioner. Sh. Gul Muhammad, Advocate for State. Ch. Pervaiz Aftab, Advocate for Complainant. Date of hearing: 11.3.1997. order Brief facts relevant for the disposal of this bail application are that an FIR No. 286/96 was registered at the instance of Mehboob Alam, under sections 324/452 PPC on the allegation that Shahid Iqbal (whose real name is stated to be Shahid Ali) came to the house of the complainant and exhorted that Aftab Ahmad should be sent out of the house which was not acceded to, on which he opened fire hitting Mst. Shagufta daughter of the complainant on her abdomen. The petitioner entered the house and started making search of Aftab Ahmad who could not be traced out. Had he found Aftab Ahmad he would have murdered him. Motive for the occurrence was stated to be that the petitioner suspected illicit relations of Aftab Ahmad with Ms?. Saima, niece of the petitioner. 2. Detailed arguments were advanced both by learned counsel for the petitioner as well as for the complainant. The main stay of the arguments advanced by learned counsel for the petitioner is that in fact Aftab Ahmad, brother of said Mst. Shagufta came to the house of the petitioner where the petitioner's aunt Mst. Nafeesa Begum had come to take Mst. Saima alongwith her because it was apprehended that Aftab would forcibly abduct Mst. Saima. After forcibly entered the house while armed with a pistol and fired two shots at Mst. Nafeesa who succumbed to the injuries there at the spot. Consequently a case vide FIR No. 287/96 was registered at Police Station City Layyah under section 302 PPC against Aftab Ahmad, where earlier FIR No. 286/96 subject-matter of the present petition was registered against the petitioner. It is added that in fact Mst. Nafeesa was murdered prior to the injuries caused to Mst. Shagufta but as Shahid Ali petitioner remained busy in removing Mst. Nafeesa to DHQ Hospital ayyah, the instant case against the petitioner was got registered by Mehboob Alam complainant by colluding with the local police. If the versions contained in the two FIRs are considered together, it becomes patently clear that the occurrence subject-matter of FIR No. 287/96 had taken place earlier and Shahid petitioner might have chased Aftab Ahmad upto his house. It is further submitted that statement of Mst. Shagufta injured is extremely important to properly appreciate and understand the true facts. Her statement under section 161 Cr.P.C. has been referred to in support of his contention. On the contrary, learned counsel -for the complainant has vehemently argued that the petitioner did not surrender soon after the occurrence and that the injuries were caused on vital part of Mst. Shagufta, therefore, he is not entitled to concession of hail. It is added that as per the record available on the file, FIR No. 286/96 was recorded prior to FIR No. 287/96. Learned counsel for the petitioner on legal plain has argued that the petitioner had been admitted to bail by the learned Magistrate, therefore, learned Additional Sessions Judge had erred in cancelling the bail allowed to the petitioner. To controvert this assertion, the complainant's learned counsel has referred to both the orders of grant of bail and cancellation of bail to point out that the order passed by the Magistrate was not just and proper, therefore, the bail allowed to the petitioner was rightly cancelled by the learned Additional Sessions Judge. 3. Without resorting to any detailed appreciation of the facts and circumstances as enumerated above, I find that, considering the versions contained in two FIRs, the contention made by learned counsel for the petitioner is prima fade not \yithout substance. His contention also finds support from the statement made by the petitioner soon after his arrest by the police. I had called for the police file and have gone through the version put forward by the petitioner at the earliest before the Investigating Officer. Keeping in view the admitted facts of the case that the petitioner's aunt Mst. Nafeesa Begum was murdered and Aftab Ahmad brother of Mst. Shagufta has been nominated as accused person and admittedly in both the cases motive for commission of the alleged offence is illicit liaison in between Aftab Ahmad and Mst. Saima niece of the petitioner. The petitioner's plea for grant of hail is not without any material or substance and cannot be denied. The case of the petitioner considered with the above said background essentially becomes that of further inquiiy. He is, therefore, entitled to concession of bail. Consequently, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 1,00,000/- (One Lac only) with one surety in the like amount to the satisfaction of the trial court/Ilaqa Magistrate. 4. Before parting with the order, it may be observed that any observation or assessment of the evidence or material on record is purely of tentative nature and the same would not affect or prejudice the case of either party during trial. (K.K.F.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Kar.) 1322 (DB) Present -. wajihuddin ahmad and mushtaq ahmad memon, JJ. M.A. ABBASI-Applicant versus STATE-Respondent, Crl. Bail Application No. 96 of 1997, dismissed on 6.2.1997. Bail-- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/S. 409/34 PPC read with S. 5(2) of Prevention of Corruption Act, 1947-Allegations made do carry ingredients of an offence u/Ss. 409/34 PPC read with Section 5(2) of PAC 1947-There appears to be sufficient material on record to sustain averments of wrong-doing on the part of several accusedRules of procedure may have, consistently, been thrown over-board, apparently, for ulterior motives-All those interested appear to have acted in unison to perpetuate illegalities at cost of institution-No lenient attitude, therefore, is deserved-Application dismissed. [P. 1328] A Mr. Aziz Ullah K. Shaikh, Advocate for Applicant. Mr. Mubarak H. Siddiqui, D.A.G. for State. Date of hearing : 29.1.1997. order Wajihuddin Ahmad, J.--The facts of the case, as gleaned from the FIR and other material placed before us, have relevance to the tenure of the applicant as President of the National Bank of Pakistan (NBP). He was appointed such President on 26.3.1995. Shortly after the appointment, viz. on 19.4.1995, in a meeting of the NBP Board, chaired by himself, he suggested that there was "a need for a sub-committee of the Board to oversee, regulate and confirm the purchase of properties exceeding Rs. 2.5 millions". Some of the members of the Board expressed reservations, apparently, concerned about parting with the powers of the Board but the applicant clarified that all approvals made by the proposed committee would be submitted to the Board for information and the Board was authorised to re-open any such question. "Finally", the NBP Board constituted the proposed sub-committee with the applicant as its Chairman and Chaudhry Sajjad Ali, Director, a representative of NESPAK and Habib Fida Ali, architect, as its three members. At the same Board meeting, it was also resolved that the referred architect would not be disqualified from taking any assignment in which "he may like to compete" though he would not participate in the committee meetings in matters where he might be having business interest. The sub-committee, so constituted, met on 9.7.1995 with the applicant in the chair, all three nominated members, including M. Ashraf Dangra, NESPAK representative, present and M. Yaqoob Vardhc, SEVP., Ibadur Rehman, SVP., Abdul Sattar, Advisoi to the NBP President on Branch Affairs and Syed Mukhtar Saeed attending. The proceedings of this meeting Ex facie smack of that of a mutual admiration society. Any way the discussion that took place may be of considerable significance in this prosecution but more than that we would not like to say at this stage. However, relevant to these proceedings, the following suggestion of the applicant, whole-heartedly supported from" the side of the NESPAK representative and consequential nomination of Habib Fida Ali may be relevant :-- "President took up the matter of Head Office front face lift with the sub-committee with a view to give it the modern look, the Head Office of the premier bank of the country deserves. Mr. M. Ashraf Dangra expressed the opinion that only one side face-lifting will not, serve the purpose but all sides should undergo face-lifting and renovation. The sub committee required Mr. Habib Fida Ali to develop concept for this facade lift. He promised to offer the concept in six weeks as he needed line to develop a proposal based on long term needs with particular emphasis on providing a suitable main entrance, based also on security considerations". In the Executive Committee meeting dated 20.9.1995 architect Habib Fida Ali presented the promised scheme for the uplift of the facade of the head office building which, according to him, was to entail a cost of approximately Rs. 60 .million. Approval to such scheme was implicitly given in such meeting and even a time schedule was deliberated upon, the applicant insisting that such be reduced from the proposed 12 months period. Approval of tender and award of work was thereupon stipulated for November, 1995. In conclusion, the applicant desired that a letter be issued to architect Habib Fida Ali within two days "regarding the approval of the scheme and adherence to the time schedule". In the Purchase Sub- Committee Meeting held on 25.9.1995, the applicant, under the head "Other Items" inquired from Fida Ali about the facade of the Head Office building and asked him to adhere to the time schedule. On 13.11.1995, again under the Chairmanship of the applicant, the Executive Committee sanctioned Rs. 4.8 million as architect's fee, adjustable "according to the lowest, tender position after receipt of tenders". Such clearly implies that Habih Fida Ali was sanctioned the fee before even the tenders were received. It was in the meeting of the NBP Executive Committee, held on 7.1.1996, which was chaired by the applicant to begin with but at a time when the applicant had left "to attend some other veiy pressing engagements" that the Executive Committee sanctioned an expenditure of Rs. 73.224 million for improvement of the front elevation of the NBP head office building, Karachi, through Messrs Alpha Aluminium Fabricators, Karachi, involving a jump of 25% or so over the estimate. It would seem that the State Bank of Pakistan objected to out-siders being put on the Purchase Sub-Committee and through a memo dated 2.6.1996 the matter was placed in the Board meeting held on 4.6.1996. In this meeting, M. Yaqoob Vardag, Habib Fida Ali and M. Ashraf Dangra, who were called in, fully supported the actions and proceedings of the Purchase Sub-Committee, including the appointment of Habib Fida Ali as the consulting architect. The Board, under the chairmanship of the applicant, approved the foregoing. At the same time, while the Purchase Sub-Committee was disbanded, Habib Fida Ali and Ashraf Dangra were requested to remain available to advise relative to the on-going and proposed Projects to the Board. It was only in the meeting of the NBP Board, held on 23.6.1996, that the expenditure of Rs. 73.224 million, approved by the Executive Committee on 7.1.1996 for improvement of the elevation of the NBP Head Office Building, was sanctioned. Significantly, such sanction came through near about the time when the project, already assigned to the contractor, was stipulated to be completed in about a month's time and when, as would be seen below. 72% payment without commensurate performance had already been on the cards. So far we have examined the background with reference to what transpired at the corporate level. We would now see as to how the ground realities were shaping in the meantime. The case of the prosecution is that in the context of appointment of Habib Fida Ali, contrary to procedure, the appointment was not made after inviting applications through the press. The appointed architect, in turn, on his own, suggested the names of three contracting firms for pre-qualification. That also was not in accordance with the rules and was objected to. Per letter dated 14.12.1995 it was suggested that the pre-qualification process should be undertaken upon inviting public applications. Habib Fida Ali, however, through his letter of the same date replied that the three contractors were chosen, as the job of the head office elevation was a specialized one and no other firm would be competent enough to undertake the same. According to the procedure of the bank, as many as a dozen distinct requirements are to be satisfied for pre-qualification of contractors. Be that as it may, as a sequence to the foregoing, the lowest tender of Rs. 67.9 million of Alpha Aluminium Fabricators, one of the said three firms, was accepted. The Executive Committee approval for Rs. 73.224 million, including architect's fee at 8%, as seen, followed on 7.1.1996. Work Order was placed with the contractor on 15.1.1996 and accepted on the same date 22.1.1996 was the scheduled date for start of work and completion time was stipulated to be six months. Moblization advance of 30% of the Project cost was to be released under the contract upon submission of a bank guarantee. The contractor submitted the bank guarantee only on 2.4.1996 and moblization advance of Rs. 20.34 million was released to the contractor by issuance of a Pay Order. On 10.6.1996 however, the contractor asked for a further advance of Rs. 28.6 million against shipping documents. In a note, dated 13.6.1996, Rafi Khan, Assistant V.P., recorded that, there was no provision in the agreement for advance against, shipping documents. The contractor was also asked to submit a statement of utilization of the moblization advance. The statement, allegedly, indicated misuse of the moblization advance to the extend of Rs. 7.5 million. A Memo dated 24.6.1996 was put up before the Executive Committee in its meeting held on 1.7.1996 and such committee, while the applicant was on ex-Pakistan leave, apparently, declined the request, for further advance the contractor. Even so, per letter dated 26.6.1996 architect Habib Fida Ali had recommended for the further advance against shipping documents upon furnishing an insurance guarantee. To top everything, upon the return of the applicant, the matter was placed before NBP Board in its meeting held on 14.7.1996, when architect Habib Fida Ali seems to have treated the case of the contractor as his own. The waiver was allowed and a further advance of Rs. 28.60 million was permitted though at the same time, upon an assurance of the architect, it was recorded that the first phase of the elevation work would be completed before 14.8.1996 (the National Day). At this stage, the contractor submitted the guarantee of East West Insurance Company for Rs. 28.6 million whereas such company was enlisted in the bank with a maximum single transaction limit of Rs. 20 million. Subsequently, without any request of the insurance company itself and upon a memo dated 19.8.1996, the applicant, apparently, gave a go-ahead for enhancement of the limit, of the insurance company to Rs. 28 million. The referred further advance payment of Rs. 28 million was released to the contractor in two tranches of Rs. 20 million and Rs. 8 million respectively. In this way, the prosecution claims, 72% advance of the total cost was effected to the detriment of the bank. As to the work executed, it, is maintained by the prosecution that the quality of glass supplied for the front elevation by the contractor does not satisfy the specifications. The contractor was noticed by the officials and the matter was taken up in the Board meeting held on 7.11.1996, where architect Habib Fida Ali brought one Shahid with him as an expert and fully endorsed the qualify supplied and work performed by the contractor. It, however, remains the case of the prosecution that the qualify of glass does not satisfy the specifications and, what is more significant, the glass fixed by the contractor is China made whereas the approved glass was to be of American origin. As already said, it has also been the case of the prosecution that 72% of the cost namely, a sum of Rs. 48.94 million was got released by the accused in relation to the contract in dispute whereas even at the stage of the last release no more than 2,0% work had been completed. Let us now examine the defence version. At the outset, it was pleaded that the applicant is a victim of political vendetta of the care-taker Government against the previous Government of the Pakistan People's Party and that the FIA was acting as a tool to oppress officers, who held high positions in the days of such Government. It has been maintained that at the time when N.B.P. Executive Committee accorded its approval to the disputed contract (7.1.1996) the accused had gone to see the then Prime Minister of Pakistan on urgent business and was not even personally present. We have, however, observed that the approval, in essentials, had already been accorded in an earlier meeting, presided over by the applicant. It is further maintained that there was nothing wrong with the disputed contract itself and that if there was anything wrong others were equally responsible. Pin-pointing, it is stated that the crucial decision in the Executive Committee meeting dated 7.1.1996 was taken at a time when the applicant had already left, for business of the State and as already said Yaqoob Vardag was in i,ha chair. Such individual is said to be a brother-inlaw of the incumbent Interior Minister in the Care-taker Government viz. Umer Afridi. Implied in the argument is a suggestion that if there was anything wrong with the contract others, including the present President of the bank namely, Abu Saeed Islahi. appointed on 2.12.1996, should also have been implicated. The gentleman last mentioned was also evidently, a member of the erstwhile Executive Committee. At this stage, we may emphasise that the concept of collective responsibility of a group may extend to all persons, constituting the group, who, knowingly and willingly, can be shown to have been parties to wrong-doing. It is on this criteria that the liability of the referred or any other participants shall be determined. The learned Presiding Judge of the Special Court (Offences in Banks' Sindh Karachi refused bail to the applicant on 12.1.1997 upon examining, in effect, all the above facts and also on the ground that investigation in the case was still continuing. As to this, Mr. Azizullah Shaikh, the learned counsel for the applicant, has urged that interim challan in the case has already been submitted and the time prescribed for submission of final challan has long since expired. Investigative process, upon the efflux of the requisite statutory period, is claimed to have come to an end. We do not know whether the learned Presiding Judge has passed any order as yet treating the interim challan as final. Even so, after such a delay, as spelled out above, while there may be nothing in law to prevent continuing the investigation, something which may go on even after submission of the final challan, the continuation of the investigation process cannot come in the way of grants of bail, if called for. When we heard the case for the first time on 21.1.1997, it was pleaded by the learned Deputy Attorney General that the elevation work of the NBP Head Office Building was conceived of by the applicant with mala fide intentions and it is in that light that the chronology of events has to be viewed. The position was denied by Mr. Azizullah Shaikh, the learned counsel for the accused. He stated that it was an on-going work, which the applicant had succeeded to and there was no element of initiation on his part. We, therefore, sent for the record. Mr. Mubarak Hussain Siddiqui, DAG, has produced the same. Such makes it amply manifest that the elevation work was poineered by the applicant in association with others. Upon the production of record, however, the plea from the side of the accused altered and it was urged that the referred work was part, of the renovation process which was going on. Be that as it may, another aspect highlighted from the side of the accused was based on a letter dated 4.1.1997, issued by the Senior Resident Engineer and Assistant V.P. (Design) addressed to the contractor <Alpha Aluminium Fabricators), which, pursuant to the contractor's letter of even date, says that the over-all average quantity of work, to date, was about 60% whereas Habib Fida Ali, consultant, (according to the letter) had assessed such work to be 60% upto 5.12.1996. As against this, the learned Deputy Attorney General has produced an addendum to such letter, issued by the same two individuals which explains their letter dated 4.1.1997 by saying that such "purely reflects the interim position of the work at site". A legal'opinion obtained by the N.B.P dated 19.12.1996 has also been shown to us by the learned DAG, which postulates that appointments of out-siders as members of N.B.P Committee does not qualify under the rules, the opinion apparently augmenting the earlier State Bank of Pakistan objection about outsiders on the Purchase Committee viz. of architect. Fida Ali and Dhangra of NESPAK. Examining the matter we are of the view that the allegations made do carry ingredients of an offence under Sections 409/34 PPC read with Section 5(2) of the Prevention of Corruption Act, II of 1947. There appears to be sufficient material on the record to sustain the averments of wrong-doing on the part of the several accused. Thus rules of procedure may have, consistently, been thrown over-board, apparently, for ulterior motives. Persons were inducted at the behest of the applicant in decision making positions. Exercise of these powers may have been conducive to wrong-doing. Architect Habib Fida Ali was sanctioned a large payment in proceedings, where he may have actively participated to his own advantage. The sanction for him came about even before the work contract was awarded. All those interested, thereupon, appear to have acted in unison to perpeturate illegalities at the cost of the institution, which they were ex facie serving. Thus 72% payment was released to the contractor before anything substantial had surfaced above the ground, in circumstances which could indicate circumvention the rules at every stage. Above all, the case may involve be latent high-handed conduct at the level of functionaries performing at the apex and it is such conduct of such-like persons, which has brought the country to its present pass. The applicant's role appears to be clear. No lenient attitude, therefore, is deserved in the case and the rule laid down in similar circumstances under the same law viz. Section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, by the Supreme Court in Shujat Hussain vs. State, 1995 SCMR 1249 applies with full force. Before parting we would like to state that we have not been a little disturbed by the manner in which the proceedings have been conducted at the Board and Committee levels of the National Bank of Pakistan, as reflected hereinabove. It seems to us that more persons, apart from those presently accused of the crime, may be involved in the offence than have been indicated so far. There may also be substance in the allegations of Mr. Azizullah Shaikh regarding the referred Yaqoob Vardag because, from the various proceedings that we have seen, he appears also to have played a pivotal role in the unpalatable affair. Surely, all such aspects would be considered before the trial commences and action in accordance with law shall follows. Above recorded were the reasons for the short order through which, on 29.1.1997, we had dismissed this Bail Application. (K.K.F.) Application dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 1331 Present: RASHID A. RAZVI, J. BAKHSHAL SHAH-Applicant versus STATE-Respondent Cii. Misc. No. 38 of 1996, accepted on 21.1.1997. Sindh Crimes Control Act, 1975-- S. 14 read with Section 561-A Cr.P.C.Quashment of proceedingsPrayer forAllegations against applicant/accused are that he is a notations and dangerous criminal; that he is habitual thief and indulge in disposal of stolen properties; he is involved in collecting "Bhung" (ransom); that criminals of far off places use to visit him and he provides them shelter and serves meals; that he also supplies them weapons for commission of crime; that he also acts as informant of dacoits and has links with notorious dacoit; that he investigates youngsters to commit crimes and always moves in public places with deadly weapons; that due to his fear and harassment, no one from public is prepared to depose against him and that his remaining at large is hazardous for public safety-S.H.O. and three police constable cited as witnesses-Held : Entire proceedings was concluded within a span of two days and during all this period applicant/accused was in police custody-Allegations made in complaint as well as in statement of S.H.O. are vague and wild in nature and lacking material particulars-Witnesses cited in complaint are all police constables of same Police Station and working under authority of same S.H.OHeld : Enquiry conducted by S.D.M/Tribunal was not in accordance with provisions of Act, 1975-Held further : Frequent resort to sub-section 3(a) to section 8 of Act, 1975, withoiit first holding preliminary enquiry under subsection (1) and (2) and without application of judicious and conscious approach to attending circumstances leads to abuse of process of law-Petition allowed. [P. 1332 & 1334] A & B Mr. Abdul Fatah Mughal, Advocate for Petitioner. Mr. Rashid Ali Shaikh, Advocate for Asstt. A.G. for State. Date of hearing : 21.1.1997. judgment Applicant is facing proceedings under section 14 of the Sindh Crimes Control Act, 1975 (hereinafter referred as the Act 1975) before the Tribunal/SDM, Mehar and therefore has filed this petition under section 561-A Cr.P.C., for quashment of the same. With this petition, applicant was not able to file certified copy of any order passed by the learned S.D.M., therefore, on 21.8.1996 he was granted exemption and the R & P was called from the Tribunal/S.D.M., Mehar. 2. On 28.7.1996 S.H.O., P.S., Thariri Mohabat filed a report under section 14/4 of the Sindh Crimes Control Act, 1975 before the S.D.M., Mehar alleging therein that there are general complaints against the applicant that he is notorious and dangerous criminal; that he is habitual thief and indulge in disposal of stolen properties; he is involved in collecting "Bhung" (ransom); that criminals of far off places use to visit him and he provides them shelter and serves meals; that he also supplies them weapons for the commission of crimes; that he also acts as informant of dacoits and has links with notorious, dacoit like. Mashooq Malano; that he instigates youngsters to commit crimes and always moves in public places with deadly weapons; that due to his fear and harassment, no one from public is prepared to depose against him and that his remaining at large is hazardous for the public safety. The S.H.O., cited himself and three other Police Constables as witnesses in support of above allegations. 3. Again on 30.7.1996 the statement of S.I.P., Muhammad Mithal Solangi, S.H.O., was recorded before the Tribunal/S.D.M., Mehar in absence of applicant when same allegations as of complaint were reiterated by him without disclosing any specific dates, nature and other details of alleged offences. On such statement, learned Tribunal passed order under section 5 of the Act, 1975 issuing non bailable warrants against the applicant who was arrested and was produced before the Tribunal on 1.8.1996. Applicant was directed to furnish surety in the sum of Rs. 25,000/- which he was not able to produce as at the relevant time he was in custody and therefore, he was remanded to the police custody by the learned Tribunal. On 1.8.1996, he was again produced before the Tribunal when formal charge was framed and he was called upon to show cause as to why he may not be required to 'execute bond with two sureties of "Zamindari class" in the sum of Rs. 25,000/- each and P.R. bond in the like amount to maintain good behaviour for a period of 12 months. Following are the contents of the said charge which was recorded as Exhibit 2 :-- "I, Muhammad Ahsan, Rana, Sub-Divisional Magistrate, Mehar to hereby charge you : 1. Buxial Shah s/o Niaz Ali Shah that you are residing within the local limits of this Court/Tribunal and habitually commit the following acts; (1) You are notorious thief, habitually receive stolen property and dispose of the same on Bhung money. (2) You frequently possess and cariy deadly weapons with an intention to create terror amongst the people of the area. (3) You are so dangerous and desperate that your further remaining at large without security is hazardous to the community. You are therefore called upon to show cause as to why you should not be ordered to execute bond with two sureties of Zamindari class each solvent in the sum of Rs. 25.000/- and P.R. bond in the like amount to maintain good behaviour for the period of 12 (twelve) months, to the satisfaction of this Court/Tribunal." 4. It is pertinent to note that Exh. 3 which is the plea of applicant recorded by the Tribunal in reply to the above mentioned charge, indicates that the applicant has pleaded not guilty and has claimed enquiiy but the entire R & P is silent whether any enquiiy was conducted except one solitary statement of S.H.O., which was recorded on 30.7.1996 prior to arrest of the applicant. It is further pertinent to note that on the same date i.e. 1.8.1996 interlocutory orders under section 8<3)(a) of the Act, 1975 was passed in the same manner as of the show-cause/charge (Exh. 2). 5. I have heard Mr. Abdul Fatah Mughal, Advocate for the applicant who has strenuously argued that the initial complaint by the S.H.O., as well as orders passed thereon by the learned Tribunal are illegal and void in as much as none of the provisions of the Act, 1975 was complied either by the S.H.O., or by the Tribunal. He has referred to case of Nasir v. The State (1996 P.Cr.L.J. 102), Asghar v. S.D.M. Mehar (1996 P.Cr.L.J. 107) and unreported case of this Court Ghulam Hussain v. The State (Cr. Misc. No. 116/1995) wherein a learned single Judge of this Court quashed the proceedings pending before the Tribunal under the Sindh Crimes Control Act, 1975 more or less, on the same ground and facts. 6. Learned counsel for the applicant has further argued that the order dated 1.8.1996 passed under section 8(3)(a) of the Act, 1975 by the Tribunal was not warranted as there was no satisfactoiy material before the learned Tribunal on the basis of which it can be concluded that there was need for adopting immediate measure for prevention of commission of any act complained. In my opinion, this plea has force in as much as the allegation before the learned Tribunal was that is an active and habitual criminal and was a man of dangerous and desperate nature. Except the bare allegation there was no other material before the learned Tribunal. The initial complaint was also silent on material particulars and other details about the applicant, therefore, his immediate detention was not necessary in order to prevent the so-called commission of act complained. Time and again, Superior Courts of Pakistan have held that such are wild and vague allegations and on such allegations neither warrants nor summons can be issued nor any person can be arrested. The law envisages that the complaint before the Tribunal should be with full details and with all material particulars. For reference see the case of Haji All Muhammad Solangi v. Tribunal/S.D.M., Nazirnabad Karachi (PLD 1980 Karachi 267) and Nazimuddin v. The State). 7. In the present case the entire proceedings was concluded within a span of two days and during all this period applicant/accused was in police custody. The allegations made in the complaint as well as in the statement of S.H.O., are of vague and wild in nature and lacking material particulars. Witnesses cited in the complaint are all police constables of the same Police Station as of the complainant and working under the authority of said complainant/S.H.O. In such circumstances, it cannot be held that the enquiry as conducted by the S.D.M/Tribunal, Mehar (Muhammad Ahsan Rana) was in accordance with the provisions of the Sindh Crimes Control Act, 1975. I would like to observe that frequent resort to subsection 3(a) to the section 8 of the Act, 1975, without first holding preliminary enquiiy under subsections (1) and (2) and without application of judicious and conscious approach to the attending circumstances leads to the same result as of the instant case which is the abuse of process of law. Detention of a person can only be allowed, if it is "necessary" as provided under the Act, 1975. 8. As a result of above discussion, I allow this petition filed under section 561-A Cr.P.C. and quash the above mentioned proceedings pending before the Tribunal/S.D.M., Mehar. (K.K.F.) Petition allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Peshawar) 1334 (DB) Present: jawaid nawaz khan gandapur & tariq parvez khan, JJ. SAJID & another-Appellants versus THE STATE & another-Respondents Criminal Appeal No. 28 of 1995 with Murder Referenced of 1995, partially accepted on 2.4.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302/337-A (ii) 34 PPC-Accused named in F.I.R. with specific role- F.I.R. promptly lodged-Conviction for-Challenge to-Three witnesses have given evidence in court which has gone unchallenged in respect of involvement of both accused appellants witnesses though related but have no enmity whatsoever to charge accused appellants-Statement of K stands on higher padetal as he is totally disinterested witness of occurrence-However, this fact cannot be left sight of that there existed no previous enmity between parties, deceased had accompanied two appellants from his house to scene of occurrence which according to admission of PW Arif Zaman is at distance of 2 to 2 furlong from spot, possibility cannot be over-ruled that during transit from house to spot, or on spot something had happened which resulted in tragedyHeld : Prosecution had proved its case against appellants beyond any shadow of doubt-Appeals partially accepted-Death sentence of both appellants committed to life imprisonment with benefit of S. 382-B Cr.P.C. [Pp. 1346, 1347 & 1348] A, B & C Mr. Muhammad Akbar Khan Swati, Advocate for Appellants. Mr. Muhammad Aslam Khan, Advocate for State. Mr. SaeedAkhtar Khan, Advocate for complainant respondent. Date of hearing : 1.4.1997 and 2.4.1997. judgment Tariq Parvez Khan, J.--riajid son of Raza Ahmed, Rukhsar Ahmed alias Jameel alias Shado son of Shoukar Zaman, the two appellants were put to trial as they were charged under sections 302/337-A(ii) 34 PPC as amended by Qisas and Diyat Ordinance, 1991. They were accused of committing 'qatl-e-amd' of Khurshid Ahmed son of Bashir Ahmed aged 17/18 years and also of causing injuries to PW Kamal Khan son of Salar Anwar Zaman, aged 19 years. 2. At the trial the prosecution produced 13 witnesses whereafter closed its case. The accused were examined under section 342 Cr.P.C. and their stand was of being innocent and total denial to the allegations of the prosecution. The accused-appellants, however, declined to appear as their own witnesses under section 340 subsection (2) Cr.P.C. nor did they produce any defence. 3. The facts of the prosecution case as disclosed in the FIR (murasila) by Arif Zaman s/o Muhammad Amin (32/33 years), a maternal uncle of deceased Khurshid Ahmed were, that on the day of occurrence i.e. 22.9.1992 at 117.15 hours he was present in the house of Bashir Ahmed, his brother-in-law, situated in Sector-I V of K.T.S (Khalabat Township). It was at that junctiire that the two appellants namely, Sajid and Jameel (Rukhsar) came in the street, called out Khursheed Ahmed the maternal nephew of the complainant and asked him that their pigeon has come to the house of Khurshid Ahmed deceased. Khurshid Ahmed (deceased) went out, followed by the complainant and informed that the pigeon of the accused-appellants had not come to their house and that there were their own pigeon. 4. It was further stated, that Khurshid accompanied the two accused-appellants while the complainant stayed behind in the house, when Chanzeb a brother of Khurshid deceased, in the meanwhile informed the complainant that Jameel and Sajid were quarrelling with Khurshid deceased, on which the complainant, went towards the Committee ground and having reached there, found that accused Jameel had caught hold of Khurshid, while Sajid was inflicting knife 'churn' blows on the person o Khurshid. Having seen the arrival of the complainant the accused left the spot and fled away. 5. The occurrence was stated to have been witnessed by Noor Nabi Shah (PW 10) and Yasar Khan (abandoned) both residents of KTS Sector- TV. It was specifically stated in the FIR (murasila) that there was no motive for the occurrence. Khurshid deceased then injured was taken to Civil Hospital K.T.S and having reached the hospital succumbed to the injuries. 6. Having learnt about the occurrence Umar Khitab IHC (PW 11) who, on the day of occurrence was posted at Police-Post K.T.S Haripur rushed to the Emergency Ward of Civil Hospital KTS and recorded the report of Arif Zaman in the shape of murasila Ex. PA/1. The injury sheet Ex. PW 11/1 and inquest report Ex. PW 11/2 were also prepared by the said I.H.C, who, handed over the dead body of Khurshid to the doctor for postmortem examination and sent the murasila to the Police Station for the registration of the case, which was accordingly registered as FIR Ex. PA. 7. Dr. Iftikhar Ahmed (PW 6) Medical Officer of Civil Hospital K.T.S. examined Khurshid Ahmed deceased who was then injured and found the following injuries on his person : 1. Stab wound 2" x 1.2" x thoraxic cavity on left upper chest with corresponding cuts on shirt and jacket handed over to police. 2. Incised wound of size 5" x 1" x muscle deep in front and lateral side of left upper are on lower l/3rd with corresponding cut on shirt handed over to police. 3. Two stab wounds 1" apart from each other each of size 1" x " x muscle deep on right upper arm with corresponding on shirt handed over to police. 4. Stab wound of size 1" x %" x reaching bone on lateral side of left upper arm with corresponding cut on shirt handed over to police. 5. Incisional mark 4" in length in front and around neck. 6. Multiple abrasion on face. 7. Incised wound of size 1" x 1/8" skin deep in front of left upper lobule of left ear. 8. Stab wound of size 1" x %" thoraxic cavity on back of the lower chest with corresponding cut on shirt and jacket handed over to police. 9. Incised wound of size %" x 1/6" skin deep on back of right loin with corresponding cut on shirt and jacket, handed over to police. As the deceased succumbed to the injuries the same evening immediately after arrival in the hospital, therefore the postmortem examination was conducted by the same doctor hut on the following day i.e. 23.9.1992 at 6.15 A.M. 8. While performing the autopsy the doctor confirmed the injuries already recorded by him in his medico-legal report which was Ex. PW 6/1. On the internal examination the doctor found thorax walls, ribs, pleaurae injured on the left side including the left lung. There was no internal abdominal injury. In the column of remarks as to the cause of death it was stated to be shock/haemorrhage caused by direct injury to left lung, Brachial and thoracic vessels caused by sharp weapon. The duration between injuries and the death was about one hour while that of death and postmortem examination about 12 hours. The doctor had proved his post-mortem examination report by exhibiting the same as Ex. PW 6/2. 9. The other prosecution evidence consists of the statements of private as well as official witnesses and their statements in brief, are re produced below for convenient references. 10. PW-1 Dr. Muhammad Irshad has medically examined Kamal Khan PW, on 23.9.1992 at 6.45 PM and has found a linear scar on the right hand of incised cut 1" x superficial x skin deep caused with sharp weapon and injury was described as simple. Duration given was 12/27 hours. 11. PW-2 Raja Muhammad Sadiq Tehsildar Haripiir has conducted test identification parade on 22.11.1992 Ex. PW 2/2. The identification parade was conducted in respect of accused Jameel (Rukhsar) throiigh PWs Arif Zaman (PW 8), Noor Nabi Shah (PW 10) and Yasar not produced). The identification was necessitated to establish the identity of accused Rukhsar who was named as Jameel in the murasila. being known by different alias namely some time Jameel, Rukhsar and sometime as Shado. Mahmood Khan I.H.C. appeared as PW-3 as witness of memo. Ex. PW 3/1 in respect of taking into possession a blood stained shirt and jacket belonging to deceased Khurshid. 12. PW 4, Iftikhar Khan was examined to prove Memo. Ex. PW 4/1 and 4/2, relating to taking into possession some blood from the spot and blood-stained 'churn' (weapon of offence) which was taken into possession on the alleged pointation of Sajid accused who, while in police custody had led the police party to effect sxich recovery i.e. 'churn'. 13. Safdar Shah FC appeared as PW-5 who has escorted the dead body of Khurshid deceased from the time of the expiry till postmortem examination and had brought, the shirt and jacket of the deceased, from the hospital and has passed on the same to the Investigating Officer. 14. PW 7 is Sajid Hussain Shah who has witnessed the recoveiy of a shirt and 'shalwaf taken into possession vide Memo. Ex. PW 7/1. Similarly he was deposed in respect of Memo. Ex. PW 4/2, pertaining to recoveiy of 'churrV and Memo. Ex. PW 7/2 which is a sketch in respect of the said 'Churri', prepared by the Investigating Officer and signed by the witness. The recoveries which were effected through the aforesaid two memos were on the pointation of accused Sajid having led the police party, \vHle in custody and were made in the presence of Sajid Hussain Shah. 15. The prosecution has produced 3 eye witnesses to furnish ocular account of the occurrence through PW 7 8 Arif Zaman a maternal uncle of the deceased Khurshid, PW 9 Kama! Khan (19 years) and Noor Nabi Shah PW 10 (49 years). 16. Arif Zaman is the complainant of the case and he has reiterated the facts, as narrated by him in the murasila by saying that at about 5.00/5.15 PM, on the day of occurrence, when he was present in the house of Bashir Ahmed his brother in law, accused Sajid and Rukhsar came, called deceased Khurshid and demanded their pigeon to which the deceased replied in the negative. He further stated that he was still in the house of his brother in law when Chanzeb (the same child was not examined by the police under section 161 Cr.P.C.) came and informed Arif Zaman about the quarrel by the two appellants with the deceased, learning which, this witness rushed towards the Committee ground and saw the occurrence as narrated by him in the murasila (FIR). This witness has made to departures from his FIR, one, by naming Jameel accused as Rukhsar and second, the induction of the name of Kamal Khan (PW 9) as an eye witness to the occurrence. This witness has stated that the deceased after having received injuries was shifted to the hospital where he died. He has also admitted having made the report Ex. PA/1 to be correct and bearing his signature. He has stated in the last para of the examination in chief that Rukhsar has also more names as Jameel and Irshad. 16. PW 9 Kamal Shah is not named in the FIR but has been named both by PW-8 Arif Zaman and PW 10 Noor Nabi Shah in their court statements as eye witnesses. The facts given by PW 9 about the main occurrence are similar to that as given by Noor Nabi Shah. He has stated that at the relevant time he was going from the house towards Municipal Committee Park and on hearing uproar was attracted to the spot and noticed accused Rukhsar catching hold of deceased Khurshid while Sajid stabbing him. This witness further stated that, he tried to effect separation to rescue the deceased from the clutches of the accused and in the said process received injury on his right hand with the 'churri'. He confirmed that during the occurrence Arif Zaman, Noor Nabi Shah and Yasar Khan also arrived and having noticed their arrival the accused ran away from the spot. He confirmed that the injured was shifted by Arif zlman to the hospital. 17. PW 10 Noor Nabi Shah, as stated above, has given the same facts as narrated by PW 9 Kamal Khan and confirmed that Kamal Khan was effecting separation and that Arif Zaman has also witnessed the occurrence alongwith Kamal Khan and Yasar Khan. He is also witness to the recovery memo Ex. PW 4/1 in respect of the taking into possession of earth from the spot. PW 11 Umar Khitab IHC is the author of murasila Ex. PA/1 and has prepared the injury sheet and inquest report of the deceased, while PW 12 Muhammad Fareed Khan Inspector has submitted challan against the accused-appellants. 18. The last witness of the prosecution is Muhammad Akram Khan the then ASHO Police Station Haripur who has appeared as PW 13. This witness, on receipt of murasila registered the case as Ex. PA by incorporating the contents therein and proceeded to the spot. On reaching there he prepared the site plan Ex. PB and recorded the statements of the PWs. He has taken into possession a shirt Ex. PI, Jacket Ex. P2 both blood stained with out marks belonging to deceased Khurshid as they were produced to him by FC Safdar Shah and in this respect prepared Memo. Ex. PW 3/1. This witness has taken into possession blood stained earth vide Memo. Ex. PW 4/1. Through Ex. PC, injury sheet in respect of Kamal Khan was prepared by him. He also sent Kamal Khan to the Medical Officer for medical examination. 19. Accused Sajid was arrested on 24.9.-1992 and similarly on the same day Rukhsar was also arrested. Accused Sajid when in police custody and in hand cuffs led the police party to the place of recovery of weapon of offence, on which 'churn' was recovered on the pointation of the accused, which was blood stained and rapped in a plastic envelop. In this respect 'churri' was given Ex. P3 while memo prepared was Ex. PW 4/2. On the recoveiy of 'churri' a sketch of 'churn' Ex. PW 7/2 was also prepared and also map of the place of aforesaid recoveiy, which was effected on 26.9.1992. 20. ] n the aforesaid date the same accused namely Sajid while still in hand-cuffs by the police and in custody had taken to his house and produced his 'shalwar' Ex. P4, shirt, Ex. P5, having blood stains and were allegedly worn by the accused at the time of the commission of the offence. Memo Ex. PW 7/1 was prepared about the taking into possession of these Clothes while sketch map of the house wherefrom the said recovery was effected in Ex. PE. All the above memos and corresponding recoveries were effected while being witnessed by the attesting witnesses who have signed the memos. 21. This witness is Jhe Investigating Officer as well, had applied for holding a test identification parade in respect of Rukhsar accused through PWs Arif, Yasar and Noor Nabi Shah. He has also sent blood stained articles consisting of earth, garments of the deceased and of the accused Sajid longwith blood stained 'churn' to the Chemical Examiner vide application Ex. PF dated 26.9.1992 and the report of the Chemical Examiner is Ex. PG. 22. After the close of the prosecution evidence the learned trial Judge examined the two accused-appellants under section 342 Cr.P.C. They denied the charge and pleaded to be innocent and stated that they have been falsely involved in this case. Accused Sajid has denied the recovery of the clothes as well as of 'churri' at his pointation. The learned trial Judge came to the conclusion that the accused-appellants are guilty of the offence and convicted and sentenced them to death. They were further directed to pay a sum of Rs. 50,000/- in equal share as compensation under section 544-A Cr.P.C. to legal heirs of the deceased and in case of non-payment of such compensation to suffer 3 months imprisonment each. 23. The judgment, of the trial court has been challenged in this appeal. We are also seize of Murder Reference sent to us. 24. Before going to the points of challenge, on which the conviction and sentence are in question, in f.lus paragraph we would like to give our own resume of evidence which is as follows. 25. The occurrence took place on 22.9.1992 at 17.15 hours near Committee ground of KTS Haripur, the report whereof, was made on the same day at 18.15 hours. The complainant of the case is Arif Zaman while the deceased is Khurshid Ahmed. The accused charged in the FIR are Sajid nd Jameel while the occurrence had been witnessed by Noor Nabi Shah, Yasar Khan and the complainant. One Kamal Khan, however, also claimed to have seen the occurrence. 26. Learned counsel for the appellants has assailed the judgment on the point of conviction and sentence and formulated the following points, according to him which are : (a) Delay in lodging the FIR. (b) Occurrence being un-seen, and so called eye witnesses are procured witnesses. (c) the eye witnesses are related to the deceased and are also chance witnesses. (d) Contradictions between ocular evidence and the medical evidence. (e) The recovery of knife (churri) on the pointation of Sajid accused-appellant is planted and so are the clothes. (f) The test identification parade should be excluded from consideration. (g) Absence of motive and in alternative, the plea that motive is inadequate. (h) Dishonest investigation. 27. Referring to the first submission in respect of, making of report the learned counsel stated that, the occurrence took place at 17.15 hours, and that the deceased was shifted immediately, in the Suzuki, to the hospital as such the delay of one hour in making the report, will cast doubt on the truthfulness and the veracity of the time of occurrence. He also referred to the medical examination conducted by the doctor in the hospital when the deceased was still alive and the time of the examination given therein is 5.10 pm i.e 17.10 hours meaning thereby, that the report was made later while the injured was examined earlier. In this respect he also referred to the non mentioning of duration of the injuries by the doctor in medicolegal report Ex. PW 6/1. Still pressing the same point the learned counsel submitted that Kamal Khan PW who was medically examined vide Ex. PW 1/1 also indicates the duration of to be 26/27 hours and as the said injured was examined on 23.9.1992 at 6.45 PM it could be calculated, that the occurrence could have taken place between 3.40 to 3.45 PM on 22.9.1992. In respect of the occurrence being unwitnessed the learned counsel submitted that the venue of the occurrence is situated at a distance of 2/3 furlong from the house of the deceased and the deceased having allegedly left in the company of the two appellants, it is not possible that. Arif Zaman (PW 8) could have witnessed the occurrence when he was still present in the house of Bashir Ahmed, father of the deceased and was informed by one Chanzeb and had come all the way long from house to the scene of occurrence. It was, in view of the learned counsel, in-conceivable, that the appellants would weight till the arrival of the complainant, so as to see the occurrence. 28. It was also argued that according to rnurasila the deceased when injured was rushed to civil hospital KTS, and having reached there, expired whereas according to the doctor the deceased was brought as injured and his medicolegal report was prepared at 5.10 pm. The time of death recorded in the column of death in postmortem report Ex. PW 6/2 is 6.30 PM while the time of report is 6.15 pm meaning thereby that it could not have been recorded as in Ex. PA/1 which reflects on the absence of complainant Arif Zaman. Adding, to the point of, crime being un-witnessed, certain portions of the statements of eye witnesses were referred. It was stated that PW 8 Arif Zaman has charged one Jameel without giving, his parentage in the FIR. We were asked to draw an inference that had the said witness present he would have correctly given the name ot Rukhsar and not Jameel. At page 49 of printed book towards the end of examination in chief this witness has categorically stated that accused Rukhsar is also known by the name of Jameel and Irshad. This portion has not heen challenged or confronted to, during the cross examination. Similarly, it was also argued that Arif Zaman has omitted, to give the name of Kamal Khan PW 9 in the FIR and it would reflect on the absence of either. In that, when we thoroughly examined the cross examination of PW Arif Zaman, he was no where confronted with the FIR about the omission of the name of Kamal Khan. Had he been so confronted he might have furnished some explanation. In these circumstances no premium can be taken by the defence for its own faults and omissions. We are conscious of the fact, that the case of the prosecution shall stand on its own footings and the prosecution is duty bound to establish his case beyond any shadow of doubt but the law, provides an equal rather better opportunity to the defence to dislodge and challenge the evidence of the prosecution through their cross examination. 29. Learned counsel for the appellants also styled all the three eye witnesses to be chance witnesses of the occurrence. Reference was made to reported judgments of PLJ 1990 (Criminal case) page 346 and PLJ 1973 (Cr. Case) page 478. No absolute rule can be laid down for disbelieving a chance witness even if one is proved to be so. The court is to see the ever all effect and the intrinsic worth of the statement of the witness. In the instant case the complainant, happens to be the maternal uncle of the deceased. He has explained his position regarding his presence in the house of Bashir, father of the deceased and then having witnessed to the first episode where the two accused visited the house of the deceased and have taken him away. The other two witnesses namely, Kamal Khan and Noor Nabi Shah have not been challenged on this ground nor questioned as to how, and what for they were present in the vicinity of the science of occurrence. 30. The presence of PW Arif Zaman and Noor Nabi Shah is fortified by the fact, that both are signatures to the inquest report. A reference to page 34 of the printed book shows their name entered by the police with their signatures in the relevant column. 31. The learned counsel also draw our attention to the medical evidence and submitted that the ocular evidence is not supported. He referred to the locale of injuries and stated that in such view of the matter the deceased, who was being held by one appellant namely Rukhsar could not have received injuries both on frontal side and back, because, in his view, in such situation all the stab wounds should have landed on the same part of the body and same side. This argument in no manner is appealing, because the deceased would definitely be struggling hard to avoid stab blows and in that process would not have remained stationery. 32. It was also argued that no evidence has been led that the accused-appellant Sajid was keeping pigeon nor about deceased that he was also in the same habit. It was also submitted that the Suzuki in which the deceased while injured was shifted to the hospital, the driver of said vehicle has not been examined. Objection was also raised that the occurrence having taken place in public place no independent person has come forward to support the case of the prosecution. It was also argued that the conduct of the eye-witnesses that they did not tiy to rescue the deceased from the clutches of the appellants, demonstrate that they were not present at the scene of occurrence. All these submissions on similar points do not go to the root of the case as these are petty matters and they close their significance, in view of direct evidence of disinterested witnesses, though related but having no animosity with the appellants. 33. The test identification parade, through which the three eye witnesses namely Arif, Yasir and Noor Nabi Shah have identified accused Rukhsar, was challenged on three grounds. Firstly, that the same was held after 2 months, secondly, that before conducting test identification parade, there were all possibilities of witnesses having seen accused Rukhsar when his remand was being taken and thirdly, on the ground that the role of accused who was put to test identification parade should have been specifically stated during the identification parade by the witnesses. Reliance was placed on NLR 1995 (Criminal Cases page 350 and 1995 SCMR 127). We are in agreement, with the learned counsel for the appellants, that the test identification parade has got no evidentiary value in this case on the grounds taken by the learned counsel for the appellants and we may add here, that there was no need for holding such test identification parade when the accused Rukhsar was named in the FIR by alias Jameel. 34. The recovery of clothes vide Memo Ex. PW 7/1 consisting of 'shalwar' P4 and shirt P5 belonging to accused Sajid and recovery of knife (churri) Ex. P3 vide recovery Memo Ex-PW 4/2 were also objected to by the appellant, on the common ground of being witnessed by people who were related to the deceased and not by the people of locality. Iftikhar Khan PW 4 has appeared to support the recovery of knife (churri) on the pointation of accused Sajid while he was in handcuffs. This witness is not related to the complainant side. He Ls resident of Sector-IV of KTS Haripur to which Sajid appellant belongs. No dent has been created in his statement from the recovery of blood stained knife (churri). 35. PW. 7 Sajid Hussain Shah is witness to the same memo, in respect of 'churri' as well as of the blood stained clothes produced by the accused while in custody, consisting of shirt and 'shalwar'. This witness is similarly not related to tjie appellants and is resident of Sector-IV of K.T.S. Haripur and when questioned about relationship he has categorically denied any relationship with the deceased party. A reference in this behalf is made to page 47 of the printed book in the last 6th line. The learned counsel stated that there was no need for the accused to keep the blood stained clothes in house. He was of the view, that after the occurrence, even if the accused was involved, he would have either destroyed the blood stains clothes or would have washed. The blood stains present on the clothes of the accused, clothes of the deceased, the blood recovered from the spot and the knife (churri.) were sent to the Chemical Examiner, whose report is available at page 12 of the printed book and is in positive. The accused in this case was arrested on 24.9.1992 while in custody in some other case and was confined in District Jail Haripur and on 26.9.1992, had led the police party for the recovery of clothes and knife. The knife was concealed and could be only in the knowledge of the accused Sajid and none else. 36. The learned counsel for the appellants, also argued that the investigation in the case is dishonest and it would reflect on the entire prosecution case. We have doubt, if this proposition is acceptable without reservations. Instances quoted about the dishonest investigation, were that the deceased while injured was taken by the relatives to the hospital where he was medically examined' at. 5.10 pm and that too, on the basis of injury sheet which could have been only prepared after the report was made Whereas according to the learned counsel the report has been made at 6.15 pm. and the occurrence has taken place at 5.15 PM. At page 50 of the printed ook it has been brought in the cross examination that the occurrence took place at about 5.00/5.15 pm and that the deceased died at about 6.00/6.15 pm. This giving of time by approximation will nullify the argument of the learned counsel for the appellants about the dishonest investigation. | In a case captioned Ashraf Khan Tareen vrs. State reported in 1995 P.Cr.L.J 313 a Division Bench of this Court has held that procedural defect r irregularities and even illegalities in the course of investigation shall not demolish the case of the prosecution. Dishonest investigation may reflect in certain cases about the genuineness of the case with background ofrnalafides or ulterior motive on the part, of the police to concoct or tailor a story, more to be fitting with the prosecution case, but there is no such, allegation in this case. 37. It was also submitted that the motive in this case, is nonexistent. The FIR has disclosed the motive in respect of the pigeon, but, the same could not be sufficient motive for killing the deceased. It was further argued that had that been the motive there was no occasion for the two appellants not to have killed the deceased then and there and that had there been any strained relation, the deceased would not have accompanied the accusedappellants from his house to the scene of occurrence. Still, arguing the point of motive the learned counsel for the appellants submitted, that even if the motive as inferable from the whole circumstances of the case is taken to be true, then, what happened on the scene of occurrence immediately preceding the fatal attack, is shrouded in mystery and therefore sentence of death awarded to appellant Sajid is not compatible with the facts and circumstances of the case. He concluded that no case has been made out as for Rukhsar (Jameel) accused. 38. Learned counsel for the complainant submitted that in this case the report has been made promptly and according to him at page 46 of the printed book the distance between the place of occurrence and the hospital i mortuary) can be covered within 10 minutes in a vehicle. He also submitted that the report has been made at 18.15 hours and time of occurrence has been given in evidence to be about 5.00/5.15 PM. He was of the view that taking into consideration the different timings as reflected in the record coupled with the opinion of the doctor about the duration of injuries in respect of the deceased and all other surrounding circumstances which include information being received by the complainant about a quarrel in the house, his rushing to the spot and seeing the occurrence would negate the assertions of the defence that there was any delay in making the report. A reference was made to the inquest report wherein PWs Arif Zaman and Noor Nabi Shah have been mentioned to be present at the time of its preparation. Replying to the arguments, that medical examination of the injured has preceded the report, shall reflect on the absence of the complainant, it was submitted that in such circumstances the normal human behaviour is to be taken into consideration and all concerned, including the doctor and the complainant shall concentrate to proper medical add to the deceased who was then injured. Reliance was placed on MLD 1995 Page 536 (page 542). 39. The learned counsel for the complainant also referred to police rules 25-35 (2) which regulates the procedure for the preparation of inquest report. This reference to the police rules was in reply to the arguments of the appellants that in the inquest report in column 'Mukhtar Hallat-e- Muqadman' the names of the accused and witnesses have been mentioned. 40. About the presence of PW Kamal Khan, the learned counsel submitted that beside he being injured, he is totally disinterested witness and no suggestion has been advanced to show that he had any motive to falsely charge the appellants. He also referred to the statement of complainant made in court where he was not confronted about the omission of the name of Kamal Khan PW 9. Reference was made to PLD 1964 SC page 26 (page 41/42) (about the non mentioning of the name of the eye witnesses). It was also argued that notwithstanding the fact that the complainant Arif Zaman and Noor Nabi Shah, are though related to the deceased but had got to no enmity with the accused and therefore substitution of the accused-appellants instead of real culprits was not possible. Reliance was placed on 1994 SCMR page 2 and 1991 SCMR 268. Meeting the arguments of the learned counsel for the appellants about contradiction between the medic.J evidence and the ocular testimony, the learned counsel submitted that there is no such contradiction, rather in the instant case the medical evidence supports the case of the prosecution. He also submitted that the witness is not supposed to give all the minor details about the occurrence, more particularly about the seat of injuries, and what is to be seen are the major facts of the case to which the eye witnesses are consistent. Reference was made to PLD 1972 Peshawar page 92, PLD 1985 Peshawar 136, and 1996 P.Cr.L.J 697. 41. Referring to the recoveries consisting of a dagger on the ointation of accused Sajid the objection raised by the counsel for the appellants was met by placing reliance on MLD 1995 page 536, 1995 SCMRage 614, PLJ 1996 SC page 811 and 1984 SCMR 1382. While relying on the bove cited judgments, he submitted that the place of concealment of the dagger was in the knowledge of the appellant Sajid and none else, the recovery has been witnessed, though, by witnesses who were related to the deceased but have got no enmity with the accused, the police official including the Investigating Officer are as good witnesses as any other independent witness in the absence of any motive for planting false recovery. 42. The so called delay of 9 days in despatching the crime articles consisted of blood stained garments of the appellant Sajid, the dagger and blood stained clothes of the deceased of which the report of the Chemical Examiner is positive. Reference was made to 1987 SCMR page 960. ' 43. Concluding his arguments the learned counsel for the complainant added, that the prosecution has brought home the charge against both the appellants wherein Sajid appellant has played .the sole of tabbing and active role committing 'qatl-e-amd' has been played by his coaccused Rukhsar. He relied on PLD 1992 Peshawar page 40,1973 SCMR 219 in support of the contention that absence of motive even if, as alleg d by the defence is ot good ground for lesser sentence. As to the identity and role of Rukhsar and his participation in the crime PLD 1995 SC 285 was cited wherein their Lordships observed that ' a person may be known by more than one name and if there is evidence that the person so named is the same who is known by different names it will not put into doubt the identity of the ccused appellant. 44. Learned counsel for the State while arguing the case on behalf of the State adopted the arguments of the learned counsel for the complainant. 45. Having heard the arguments of the learned counsel for the parties at length and after scrutinizing the evidence we are convinced that the prosecution v has proved its case against the appellants beyond any shadow of doubt. We have already made some comments about the vidence, wherein we observed that the three witnesses namely, Arif Zaman, Kamal Khan and Noor Nabi Shah have given evidence in court which has gone unchallenged in respect of the involvement of both the accused appellants for the offence they are charged with. Arif Zaman, Kamal Khan and Noor Nabi Shah are, though, related but have no enmity whatsoever to charge the accused appellants. The statement of Kama ! Khan stands on a higher padestal. as he is totally disinterested witness of the occurrence. The delay in despatching of the crime articles is of no consequences as the same is very short, and in absence of any evidence or suggestion to the Investigating Officer that the same were substituted, therefore reliance is placed on the said recoveries. As for the name of Rukhsar appears in the FIR as Jameel, has been clarified in the examine inchief of PW Arif Zaman. The defence has not brought on record any evidence that the deceased had any other enemy and even if so, the relatives of the deceased would not have charged the innocent persons instead of guilty one with whom they have got no back ground of enmity. There appears no dishonest investigation and if some irregularities which are procedural in nature are found they cannot destroy the direct testimony of disinterested witnesses. 46. Now coming to the quantum of sentence the two points raised, by the learned counsel for the appellants were, firstly, that role motive/immediate cause of attack is shrouded in mistery and secondly, that the two appellants at the time of commission of the offence were in age group 17 to 19. Youth is no good ground for lesser sentence in peculiar circumstances of the case where the deceased is himself a young boy of 17 years of age and was inflicted as many as 8 stab wounds on different parts of the body. However, this fact cannot be left sight of, that there existed no previous enmity between the parties, the deceased had accompanied the two appellants from his house to the scene of occurrence which according to the admission of PW Arif A Zaman is at a distance of 2 to 2^ furlong from the spot, possibility cannot be over-ruled that during transit from the house to the spot, or on the spot something had happened which resulted in the tragedy. As such, we partially accept the appeal of accused Sajid and would commute his death sentence to life imprisonment. Taking upto he case of Rukhsar accused-appellant, who has also been given sentence of death by the learned trial Judge we would partially accept his appeal for different reasons i.e. that he has, no doubt, actively participated in the commission of the crime and in fact has facilitated the landing of 8 stab wounds on the body of the deceased, inflicted by his co-accused Sajid but he being un-armed and having given the role of holding, is extended the benefit of lessor sentence in the above terms. 47. The accused appellants were also ordered to pay an amount of Rs. 50,000/- in equal share as compensation under section 544-A Cr.P.C. to the legal heirs of the deceased and in case of non-payment to undergo three months imprisonment each. We maintain the compensation amount, but in case of failure of payment they shall undergo six months imprisonment. Both the sentences shall run consecutively. 48. As both the appellants have since remained undertrial prisoners and thereafter convict for considerable period, we will extend them the benefit of section 382-B Cr.P.C. 49. The Murder Reference as such is answered in the negative. (B.T.) Appeals partially accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Karachi ) 1348 (DB) Present: DR. ghous MUHAMMAD AND ZAKIR HUSSAIN MlRZA , JJ. BISMILLAH KHAN-Applicant versus KAMALUDDIN and the STATE-Respondents Crl . Misc. Appl . No. 209/1996, allowed on 2.5.1997. Criminal Procedure Code, 1898 (Act V of 1898)-- S. 145(l)-Proceedings u/S. 145(l)- Quashment of-Prayer for- Contention that learned Magistrate committed illegality by taking cognizance of proceedings u/s 145 Cr.P.C . when alleged dispossession of respondent took place more than two months before passing preliminary order u/s 145(1) Cr.P.C .-Legal position is that person dispossessed could be treated as in possession on the date of preliminary order only if he had been dispossessed within two months of that date-Respondent was dispossessed on 2.9.1994-Order for registration of case after perusal of police report was passed on 14.11.1995 while order under section 145(1) Cr.P.C . was passed on 23.1.1995--Held : Application allowed and proceedings u/s 145 Cr.P.C . quashed. [P. 1349] A & B Mr. Mahmood A. Qureshi , Advocate for Applicant- Mr . Azizur Rehman Shaikh , Advocate for State. Date of hearing : 2.5.1997. judgment Dr. Ghous Muhammad, J.--The applicant has challenged in this Cr. Misc. Application under section 561 A Cr.P.C . the order dated 21.5.96 and 23.1.1995 passed by the learned 1st. Additional Sessions Judge Karachi West (in Cr. Revision No. 5 of 1996) and the learned Assistant Commissioner/SDM Harbour Karachi East (in Case No. Nil/95) Kamaluddin v. Bismillah Khan) respectively. The learned Magistrate had vide order dated 14.11.1995 under section 145(1) Cr.P.C . directed the parties to appear before him on 30.1.1995 and to file written statements. Briefly stated the facts as alleged in the application under Section 145 Cr.P.C . submitted by respondent No. 1 namely Kamaluddin in the court of learned SDM, are that on 2.7.93, his mother-in-law had purchased an open plot from one Tafazul Hussain and she invested Rs . 28,000/- for construction of three small rooms. However, the present applicant allegedly extended threats, therefore the matter was reported to the police under section 448/506 PPC and the case was registered vide FIR No. 34/96. The mother in law of respondent No. 1 died on 3.4.94 but on 2.9.94 the applicant alongwith 20/25 persons broke the lock of the house situate at Mohammadi Colony and dispossessed the respondent No. 1. The learned Magistrate obtained report from the concerned Police Station which was submitted on 30.10.94. After perusal of the police papers, the learned SDM on 14.11.94 oi'dered for registration of the case and issuance of notice to both the parties under section 145(1) Cr.P.C . The applicant being aggrieved by this order preferred Criminal Revision No. 5 of 1996 which was dismissed by the learned 1st Additional Sessions Judge Karachi West on 11.5.1996. I have heard Mr. Mehmood A. Qureshi learned counsel for the applicant, Mr. Azizur Rehman Shaikh , learned counsel for the State and perused the record. None appeared for the respondent No. 1. The sole point urged by the learned counsel for the applicant was that it is alleged that the respondent No. 1 had been dispossessed from the property in question on 2.9.1994 while notice under section 145(1) Cr.P.C . was issued to the applicant on 23.1.95 i.e. after delay of four months therefore the order/notice issued by the learned SDM is illegal and void ab initio . He further submitted that the learned Magistrate committed illegality by taking cognizance of proceedings under section 145 Cr.P.C . when the alleged dispossession of the respondent No. 1 took place more than two months before passing the preliminary order under section 145(1) Cr.P.C . The learned State counsel, conceded to the quashment of the proceedings. It would be advantageous to reproduce the operative part of the impugned order passed by the learned appellate court. "...After perusal of the said report the learned Magistrate has issued notices to both the parties for submission of written statement in respect of their claims vide order dated 23.1.1995. The perusal of the record shows that written statements were filed by the both parties. Further more the learned trial court has not passed final order regarding attachment or sealing of the said property as requires U/S. 145(4) Cr.P.C . The Trial Court has passed order U/S. 145(1) Cr.P.C . and has not done any material illegality or irregularity while passing impugned order. The case law cited by the advocate for the applicant/accused does not support his contention as the facts of the case law are distin guishable with the facts of this case. In the present case learned trial court has not taken any cognizance U/S. 145(4) Cr.P.C . nor passed any preliminary order for attaching or sealing the property but only directed the parties, to submit their written statement. So no illegal order was passed by learned Trial Court, I am of the view that since the impugned order was complied with both the parties even, after expiiy of two months therefore, Criminal Revision is not maintainable. Hence I maintain the impugned order dated 23.1.1995 and dismiss the Criminal Revision." Keeping in view the provisions of section 145(4) Cr.P.C . in my humble view the impugned order passed by the learned Appellate Court is unsustainable in law. It is not always necessary that a final order regarding attachment or sealing should be passed by the learned Magistrate which may be treated as preliminary order. The learned Magistrate in his preliminary order has to state grounds for being satisfied that there exist a dispute likely to cause breach of peace and also to direct the parties concerned to attend his court in person or by a counsel within the time to be fixed by him or to put any written statement of their respective claims in respect of actual possession of subject of dispute. It is not necessary that it should be in a particular form. The legal position is that the person dispossessed could be treated as in possession on the date of preliminary order only if he had been dispossessed within two months of that date. According to respondent No. 1 he was dispossessed on 2.9.94. Order for registration of case after perusal of police report was passed on 14.11.95 while order under section 145(1) Cr.P.C . was passed on 23.1.95. That being so, the learned Magistrate even after full inquiry would not be competent to put the respondent No. 1 in possession of the house in dispute and no useful purpose would be served by allowing the learned SDM to complete the proceedings by recording evidence. Therefore, following the law laid down in Dabendra Chandra Sarkar v. Khadaram Sangma PLD 1951 Dacca 59, Muhammad Sultan v. Allah Ditto 1976 P.Cr.L.J 95, Fazaldin v. State NLR 1982 Cr. 110, Habib Bank Ltd. v. Board of Trustees etc. 1994 MLD 751, and Haji Sher Hassan Khan v. Hidayatullah and others NLR 1996 Criminal-420, this application is allowed and the proceedings U/S. 145 Cr.P.C . are quashed. (K.K.F.) Proceedings quashed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Karachi ) 1351 Present: DR. GHOUS MUHAMMAD, J. IFTIKHAR AHMAD DAR and another-Appellants versus STATE-Respondent Crl . Appeal Nos. 121 and 133 of 1993, allowed on 30.5.1996. ( i ) F.I.R.-- -F.I.R.-Value of-F.I.R. is an important document of considerable value at the trial-It indicates what was material available when investigation commenced and what was story narrated by first informant at the earliest possible opportunity but it is not a substantive piece of evidence- It can be used only for the purpose of orroborating or contradicting first informant. [P. 1355] A (ii) Pakistan Penal Code, 1860 (XLV of I860)- -S. 302/307/34-Murder-Offence of-Conviction for-Challenge to~ Contents of F.I.R. have not been proved according to law-Both eyewitnesses have given xaggerated and improbable storyMedical evidence contradicts ocular testimony-Preparation of mashirnama of arrest is doubtful-It's an unwitnessed incident and whole story was abricated later-on by highly interested witnesses-Recovery of Churri is doubtful which was not found sufficiently stained with human blood by chemical examiner-Compliance of section 103 Cr.P.C . was not made- Appeal allowed. [Pp. 1355 to 1358] B to G Mr. Usman Ghani Rashid, Advocate for Appellant No. 1. Mr. Muhammad Ashraf Bhatti , Advocate for Appellant No. 2 .. Mr. Agha Zafir , Advocate for State. Mr. Shaukat Hussain Zubaidi , Advocate for Complainant. Date of hearing: 30.5.1996. judgment Appellants Imtiaz Hussain (a.) Kaka and Iftikhar Ahmed were tried alongwith acquitted co-accused Akhtar Ali for the offence under sections 302, 307/34 P.P.C. by the learned I-Additional Sessions Judge (South) Karachi (Mr. Muhammad Ashfaque Balouch ) who found both of them guilty and they were sentenced to imprisonment for life and to pay fine of Rs . 20,000/- or in default to suffer R.I. for 2 years. The appellants were also directed to pay compensation of Rs . 5,000/- each to the legal heirs of the deceased Muhammad Pervaiz under section 544-A Cr.P.C . failing which the same was to be recovered as arrear of land revenue. The appellants were also convicted for the offence under section 307/34 P.P.C. and sentenced to suffer R.I. for 7 years and to pay fine of Rs . 5,000/- each in case of default to suffer R.I. for one year. Both the substantive sentences were ordered to run concurrently and they were also given the benefit of section 382-B Cr.P.C . Co-accused Akhtar Ali was acquitted by the same judgment as there was no evidence against him. It is in these circumstances that the appellants have filed separate appeals under Section 410 Cr.P.C ., challenging their conviction and sentence which was awarded to them on 8th October, 1991 and I propose to dispose them of by a single judgment. The allegations against the appellants as disclosed by complainant Raja Hamid Nawaz in his statement under Section 154 Cr.P.C ., are that on 1.5.1988 at about 8.00 p.m. he came to his house which is situate at Usman Ghani Road, Mansoor Colony Karachi and while he was sitting on the shop known as Saeed Video his friend Pervaiz also came there. Pervaiz took him to the pan cabin on the same road to have pan. After taking pan when they reached on the corner of the road a car of Chaudhry Saeed , Area Councillor came and stopped near them. Four persons came out of the said car. Thereafter Pervaiz told the complainant that he was going to talk to the plumber and he went towards Usman Ghani Road . After a short while a boy came to the complainant and informed him that quarrel had taken place with Pervaiz (deceased). Complainant Raja Hamid Nawaz went there and saw that four persons who had came out of the car of Area Councillor were fighting with Pervaiz . He disclosed that appellant (Kaka) had churry in his hand. The three other culprits were unknown to him but he could identify them as one of the culprits had Ice Bepot in Manzoor Colony, Karachi . According to the complainant Kaka gave churry blows to Pervaiz the fell down. The complainant want to save the deceased but he also sustained churry injuries at the hands of Kaka on his arm and he fell down. His cries attracted many persons of the locality and they removed the complainant and Pervaiz to hospital. The culprits in the meantime ran away and the deceased also died due to injuries. The F.I.R. bearing No. 144/1988 was lodged on 8.5.1988 at 22.30 hours while the incident took place at 20.00 hours. At the trial the prosecution examined six witnesses. P.W. 1 Muhammad Yousuf is brother of the deceased. He was informed by mohallah people that his brother deceased Pervaiz had sustained injuries and was taken to Jinnah Hospital . He then went to the hospital and found his brother lying dead in the mortuary. The police inspected the dead body in his presence and he produced the memo of inspection and inquest report (Ex. 9-A and 9-B). He also received the dead body of the deceased for burial (Ex. 9-C). P.W. 2 is an eye-witness and he produced the mashirnama of vardat (Ex. 15) and arrest of the accused (Ex. 16). P.W. 3 Mushtaque Ahmed is also an eye-witness. P.W. 4 P.C. Muhammad Siddique is the process server. He produced the uri -executed warrants of P.Ws . Saifullah and Fazal Hussain . P.W. 5 D.S.P. Chaudhry Inayat Ali had submitted the challan and he also deposed that Inspector Rabbani who had investigated the matter had died. P.W. 6 Anwar Hussain acted as mashir of arrest of appellant Kaka and he produced mashirnama of hlood stained clothes (Ex. 28) of the said appellant. P.W. P.C. Muhammad Siddique is process server. He could not serve summons on complainant Raja Hamid Nawaz . P.W. 7 Dr. Jalil Qadir was Assistant Police Surgeon, Sindh Government Hospital Liaquatabad Karachi. Post mortem examination on the dead body of deceased Muhammad Pervaiz was conducted by him and he produced the post mortem report (Ex. 34). P.W. 8 S.I. Shah Muhammad had partly investigated the matter. He produced the roznamcha entry (Ex. 37) and supported the mashirnama of dead body of deceased/inquest report (Ex. 9-A, B & C). He also produced statement of injured Raja Hamid Nawaz recorded under section 154 Cr.P.C . (Ex. 13). He deposed that further investigation was conducted by Inspector Raja Ghulam Rabbani who is now dead. P.W. 9 Mirza Saleem Baig received case papers on 10.5.1988 and he partly conducted the investigation including arrest of the appellant Iftikhar on 12.5.1988. He produced mashirnama of arrest (Ex. 40) F.I.R. (Ex. 41) report of the chemical examiner (Ex. 42). P.W. Muhammad Arif was given up by the learned APP (vide statement Ex. 43). On 29.9.1991 the learned APP closed the prosecution side. Appellant Imtiaz Hussain (a Kaka in his statement recorded under section 342 Cr.P.C . denied the prosecution version and claimed false implication. Appellant Iftikhar Ahmed also alleged false implication. On behalf of appellant Kaka D.Ws . Dur Muhammad and Mushtaque Ahmed were examined. Both the appellants examined themselves on oath ( Exs . 52 and 56). I heard Mr. Muhammad Ashraf Bhatti learned counsel for the appellant in Appeal No. 131/1993 and Mr. Usman Ghani Rashid learned counsel for the appellant in Appeal No. 121/1993 and perused the case law cited by them. Mr. Agha Zafir learned counsel for the State as well as Mr. Shoukat Hussain Zubaidi learned counsel for the aggrieved person were heard at length and the record was also examined by me. Mr. Muhammad Ashraf Bhatti Advocate submitted that (a) the F.I.R. has not been proved as the prosecution failed to examine complainant Raja Hamid Nawaz who had allegedly sustained injuries and was supposed to be an eye-witness; (b) the ocular testimony is furnished by interested witnesses and they have not been named in the F.I.R.; (c) the medical evidence is also inconsistent with the ocular testimony. The nature of injuries rules out the possibility of the use of c/ mrry ; (d) there is no evidence to suggest common intention to commit murder of the deceased and the prosecution has failed to prove any motive; (e) recovery of crime weapon is also doubtful. In support of his submission Mr. Muhammad Ashraf Bhatti cited Hussain Bakhsh v. Muhammad Amir and others 1983 S.C.M.R. 800, Allah Wasaya v. The State 1991 P.Cr.L.J . 1587 Shoukat and 2 others v. The State 1981 S.C.M.R. 444, Muhammad Afzal v. The State P.L.D. 1958 (W.P.) Lahore 662, Gul Muhammad (« Gullo and another v. The State 1974 P.Cr.L.J . 400, Pervcz Ahmed v. The State 1987 P.Cr . L.J. 2391, Khalil - Convict-Appellant v. The State P.L.D. 1956 (W.P.) Lahore 840, Abdur Rashid v. The State 1975 P.Cr.L.J . 565, Dost Muhammad and another v. The State P.L.D. 1971 Peshawar 41, Haider and 3 others v. The State P.L.D. 1971 Lahore 68, Syed Azeem Shah v. The State P.L.D. 1987 Quetta 96, Muhammad Feroze v. Muhammad Arif and another 1976 S.C.M.R. 497 and MuhammadAmin and 2 others v. The State 1983 P.Cr.L.J . 2388. Mr. Usman Ghani Rashid submitted that ; (a) the prosecution has failed to produce any evidence to show that the appellants had decided to kill the deceased; (b) appellants Iftikhar Ahmed had no knowledge that the co-accused was having churry and the alleged grappling indicate that there was a sudden fight; (c) the prosecution has failed to prove the charge against appellant Iftikhar beyond reasonable doubt. Therefore he was entitled to this benefit; (d) compliance of Section 103 Cr.P.C . was not made and the mashir of arrest and recovery are common; (e) there is no reliable evidence to connect appellant Iftikhar Ahmed with the alleged offence and evidence of common intention is lacking in this case. Mr. Usman Ghani Rashid cited Muhammad Akbar and 2 others v. The State P.L.D. 1991 SC 923), Abdullah and 4 others v. The State P.L.D. 1992 SC 259, Muhammad Iqbal v. Muhammad Tahir and others P.L.D. 1985 SC 361 and Bashir Ahmed and others v. The State P.L.D. 1988 SC 86, in support of his submissions. Mr. Agha Zafir supported the impugned judgment. Mr. Shoukat Hussain Zubaidi advocate was not engaged by complainant Raja Hamid Nawaz who did not appear before the learned trial Court for a single date of hearing but in the diary it has been wrongly mentioned that Mr. Zubaidi appeared on behalf of the complainant. According to the learned counsel he appeared, "for the deceased". He supported the impugned judgment. The unnatural death of deceased Muhammad Pervaiz is not at all in dispute. The post mortem examination report (Eh. 34) was produced by Dr. Jalil Kadir , Assistant Police Surgeon, Government Hospital Liaquatabad , Karachi . He deposed than on 8.5.1988 at 10.00 a.m. deceased Muhammad Pervaiz was brought to J.P.M.C., Karachi by Muhammad Yousuf with history of assault. On internal examination the medical officer opined as follows:-- "SURFACE WOUNDS AND INJURIES" No. 1. Incised wound left thigh upper most region ante medial aspect about 1% X %" structures deep, corresponding cut in clothes present. Injury was antemortem in nature with post mortem interval approximately 3 to 4 hours. "INTERNAL EXAMINATION." Exploration of head, chest and abdomen done, found nothing significant. EXPLORATION OF WOUND" On exploration of wound on thigh it is seen that there is sharp out corresponding to external injury through skin, subcutaneous tissues, muscles, femoral vain 1/3 circumference cut and femoral artery 2/3 circumference cut, nerve completely cut." Regarding cause of death he deposed as follows : "Cardio respiratory failure due to excess haemorrhage resulting from injury sustained on his person by same sharp edged weapon." Now the crucial question is whether the appellants committed the murder of deceased Pervaiz . On this point the prosecution case rests on the occular testimony, medical evidence, recovery of blood stained clothes of appellant Kaka and crime weapon as well as circumstantial evidence. Before taking up each piece of evidence for discussion it would be relevant to observe that the F.I.R. was lodged by complainant Raja Hamid Nawaz but he was untraceable as per statement of process server P.O. Muhammad Siddique . Therefore he could not be examined. From a plain reading of the first report it appears that he had witnessed the alleged incident. The F.I.R. is an important document of considerable value at the trial. It indicates what was the material available when the investigation commenced and what was the story narrated by the first informant at the earliest possible opportunity but it is not a substantive piece of evidence. It can be used only for the purpose of corroborating or contradicting the first informant. Therefore the effect of failure of the prosecution to examine Raja Hamid Nawaz is that the contents of the F.I.R. have not been proved according to law. In such a situation when P.W.2 Muhammad Afzal and P.W. 3 Mushtaque being the eye-witnesses have not been named in the F.I.R. which was lodged promptly by the complainant who was also an eye witness, their statements are reqvdred to be evaluated on their own merits instead of keeping them altogether out of consideration. P.W. 2 Muhammad Afzal is uncle of deceased Pervaiz . He deposed that on 8.5.1988 it was 3rd of Ramzan and the time was about 8.15 p.m. He was sitting on the thalla near the place of incident on Usman Ghani road. P.W. Mushtaque was also sitting with him. At that time he heard cries that some body was fighting with Pervaiz . These two witnesses went towards that place. In his statement he further deposed that he saw that appellant Iftikhar Butt had grappled with deceased Pervaiz but in the same breath he repeated that appellant Iftikhar Bar held the deceased from his back side and appellant Imtiaz Hussain Shah (a> Kaka who was carrying a churri gave churri blows to deceased Muhammad Pervaiz in between his stomach and leg. Complainant Raja Hamid Nawaz wanted to rescue the deceased but appellant Imtiaz Hussain (cd Kaka also gave him dagger blows on the arm. This witness identified the two appellants on the spot but the third person who was giving directions to the two appellants to cause injuries to the deceased was not known to him by name. He could not identify that culprit in Court. One Akhtar was also heard saying that injuries should not be caused and they should be left alone. Thereafter Akhtar went and brought a rickshaw there. P.W. 2 as well as Akhtar and P.W. 3 Mushtaque took injured Pervaiz in rickshaw to Jinnah Hospital where the doctor on duty informed them that the deceased had expired on the way. In cross-examination he stated that the appellants had no enmity with the deceased. He admitted that the place of incident was a thickly populated area. There was also a hotel and furniture shop. Ice depot of Iftikhar Dar and shop of Akhtar were also situate there. The video shop was located at a distance of about 15 to 20 paces from the place of incident, but that was not examined by the police on 9.5.1988 although in reply to a question put by learned counsel for appellant Iftikhar he stated that S.A. Video was three ft away from the place of vardat . He denied the suggestion that he deposed falsely as the deceased, was his nephew. P.W. 3 Mushtaque Ahmed in his statement deposed that at 8.15 p.m. on 8.5.1988 he was sitting on the thalla S.A. Video alongwith P.W. Muhammad Afzal when they heard cries near by and they went towards that side. They saw that appellant Iftikhar had caught hold of the deceased from his arms while Imtiaz Hussain Shah (« Kaka who was armed with churri (knife) was giving blows to the deceased between stomach and thigh. P.W. Hamid Nawaz wanted to intervene but he was also injured by appellant Imtiaz Hussain Shah (a~ Kaka. He disclosed that accused Akhtar was standing nearby and he ordered the co-accused "they should not murder the deceased and leave him," but there was yet another unidentified person who was standing there and he ordered the appellants to finish the deceased. Since many people had gathered therefore the appellants ran away. In cross- Bxamination he stated that he and the complainant were employed in the K.E.S.C. and the deceased was also known to him since childhood as he used ;o live in his neighbourhood . He admitted the suggestion that at the time of ncident there was no light at the place of incident. In re-examination he stated that street lights were on at that time. This is the entire eye-witness account furnished by these two vitnesses . On deeper examination it is evident that both the witnesses have jiven exaggerated and improbable story. P.W.2 deposed that immediately fter the incident he and P.W. 3 as well as one Akhtar took injured in a ickshaw to Jinnah Hospital but this fact has not been disclosed by P.W.3. ' his is an important fact and could have been conveniently deposed by P.W. lushtaque had he been present at the spot. Neither Akhtar nor even ickshaw driver have been examined. It is also doubtful that three persons longwith injured could have taken the deceased in one rickshaw to hospital. ! ven if it is believed for a moment that they had actually taken the injured tleast clothes of two of them must have been stained with blood but during investigation no blood stained clothes were recovered from their persons. Furthermore according to Dr. Abdul Qadir (P.W.6) the deceased was brought to Jinnah Hospital at 9.00 a.m. by Muhammad Yousuf with history of assault. The inquest report was also prepared at the hospital by the police and the witnesses of the inquest report are Muhammad Yousuf and Abdul Wahid. Nowhere it has come on record that P.Ws . 2 and 3 had brought the deceased at Jinnah Hospital or they were present either at the time of preparation of inquest report or post mortem examination. On the contrary P.W. 1 Muhammad Yousuf who is real brother of the deceased deposed that Mehmoodabad police also came there at about 9.35 p.m. and inspected the dead body of the deceased on his pointation and then mashirnama and inquest report (Ex. 9-A & B) were prepared. After post mortem examination he received dead body of the deceased for burial. Both P.Ws . 2 and 3 were not strangers to P.W. 1 Muhammad Yousuf and without any difficulty he could have supported their statements on material points but he has not said a single word which clearly belies the claim of these two witnesses that they had seen the actual occurrence, or had removed the deceased to hospital. I am convinced that only Raja Hamid Nawaz complainant who had sustained injury was the natural eye-witness but he has also not mentioned the names of these two witnesses in the F.I.R. So far the medical evidence is concerned there is no doubt that deceased died due to respiratory failure as the result of excessive haemorrhage due to injuries sustained by him. Late S.H.O. Ghulam Rabbani who had prepared mashirnama of the place of incident also noted that blood was lying on earth in large quantity. This mashirnama was prepared in the presence of P.Ws . Muhammad Afzal and Muhammad Yousuf and indicates that the deceased was neither immediately removed from the vardat nor the two eye-witnesses took him to the hospital as claimed by them. On this aspect also the medical evidence contradicts the ocular testimony. The last important piece of evidence is recovery of blood stained clothes and crime weapon i.e. churry . The incident took place on 8.5.1988 while the appellant Kaka was arrested in the presence of same mashirs namely Muhammad Yousuf and Muhammad Afzal on 9.5.1988 at 5.30 a.m. from Pir Bukhari Mazar where he has sleeping. This place was a few miles away from his house. The preparation of mashirnama of arrest as alleged is doubtful. According to P.W.2 Muhammad Afzal it was written by Inspector Ghulam Rabbani but P.W. 3 Mushtaque Ahmed in his cross-examination deposed that the mashirnama was written by one P.C. Even otherwise the mashirnama of arrest (Ex. 16) of appellant Kaka is silent about recovery of blood stained clothes at the time of arrest but P.W. 5 mashir Anwar Hussain deposed as follows :-- "In the month of May, 1988 dated 9.5.88 at about 4 p.m. I had come to Police Station Mehmoodabad with any work for renewal of National Identity Card which was misplaced. Police had already arrested accused Kaka and he had blood trousers / shalwar on his body. Police got that shalwar removed from the body of accused Kaka and prepared such mashirnarna . I put my signature on the mashirnama . I produced the mashirnama as (Ex. 28)." It is specifically mentioned in the mashirnama of arrest (Ex. 16) that inspite of search nothing was recovered from the person of the appellant. If that was so the police could have' conveniently seized the blood stained shalwar instead of waiting of about 11 hours and then to seize that at 4.00 p.m. Is it believable that after arrest and search of the person of the appellant at the Mazar the police party did not see the blood on his shalwar ? This is quite ridiculous and least appealing to reason that after the commission of the alleged offence appellant Kaka went to his house to conseal the crime weapon and then with blood stained clothes on his body he would have gone to Mazar to sleep there. I have no doubt in my mind that at the time of incident lights were off at the place of incident and even if it is believed that the street lights were on it is highly doubtful that the culprits could have been identified by the eye-witnesses. I therefore find considerable merit in the submission of Mr. Muhammad Ashraf Bhatti when he vehemently urged that it was an unwitnessed incident and the whole stoiy was fabricated later-on by highly interested witnesses. The recovery of crime weapon as per mashirnama was made on 14.8.1988 i.e. after the lapse of about five days and it is not believable that the appellant who was in custody since 9.5.1988 would lead the police party and witnesses to his house to produce voluntarily the churri which was not found sufficiently stained with human blood by the chemical examiner. This piece of evidence is hardly of any help to the prosecution. There is also considerable force in the-submission of Mr. Muhammad Ashraf Bhatti that compliance of section 103 Cr.P.C . was not made. I have noted that even no effort at all was made to associate any independent and respectable person to act as mashir and no plausible explanation has been offered for noncompliance of this important provision of law. The up shot of the above discussion is that after having examined the entire evidence brought on record my conclusion is that the prosecution has miserably failed to prove the charge against the appellants and the impugned judgment is not sustainable in law. These two appeals were allowed by me as prayed on 30.5.1996 by a short order and it was ordered that the appellants should be released forthwith if not required in any other case. The above are the reasons for the same. (K.K.F.) Appeals allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Karachi ) 1359 Presmt : ZAKIRMlRZA, J. PERVAIZ ALI SHAIKH and another-Applicants versus STATE-Respondent. Bail Application Nos. 806 and 875/97, accepted on 17.7.1997. Bail-- -S. 497 Cr.P.C.--Bail--Grant ot'--Prayer tor-Further inquiry-Ground of- Offence u/s 420/34 PPG read with Section 5(2) Act 11 of 1947-Interim Challan which was submitted before trial Court has been treated as final which means investigation is complete-Offence u/s 420 was bailable and offence u/s 5(2) of Act II, 1947 is punishable with 7 years-It is settled law that where punishment is not transportation for life or death or 10 years imprisonment, bail becomes right of accused-Entire evidence collected by prosecution is based on documents which are in possession of prosecution, hence there is no possibility of any tampering with prosecution evidence-Beneficiary of contract, a co-accused has already been granted interim bail before arrest which was subsequently confirmed-Case calls further inquiry. [Pp. 1364 & 1365] A, B, & C Mr. Farid Ahmed Dayo, Advocate and Mr. Azizullah Shaikh, Advocate for Applicants. Mr. Rqja Qureshi, A.G. for State. Date of hearing :17.7.1997 order This order will dispose off the above all applications filed on behalf of the applicants on 4.6.1997 and 13.6.1997 respectively. Briefly the facts of the case as alleged in the FIR are that joint application was moved by Ahadullah son of Baadullah and others residents of Kotri to the ACE Kotri, and upon this application permission was given by the Director ACE for registration of the case, accordingly an FIR No. 2/97 was recorded by the Inspector, namely, Nazir Ahmed Memon SCO & ACE Kotri on behalf of the State under Section 420, 34 PPC read with Section 5(2) of Act II of 1947 against the applicants and one Abdul Sattar of M/s. Kohistani Traders Kotri. The applicant Pervaiz AH Shaikh was the Administrator of Municipal Committee, Kotri, whereas the applicant Mir Munawar All Talpur is the Ex. Minister, Local Government. During the course of inquiry it transpired that the applicant Mr. Munawar Ali Talpur who was the then Minister for Local Government, Government of Sindh approved the auction contract of Municipal Committee Kotri for the year 1996-97 in favour of M/s. Kohistan Traders (company owned by co-accused Abdul Sattar) on an offer of Rs. 52,50,000/- in contravention of the rules. It is alleged in the FIR that the official bid for the year 1996-97 was actually Rs. 59,82,000/- and according to the rules offer shall not be less than the official bid, and that the offer has to be 15% higher than the previous contractual amount. It is also alleged in the FIR that further inquiry in the matter revealed that there was another offer of the same contract in the sum of Rs. 54,00,000/- which was not considered due to mala fide reasons. The then Secretary Local Government, it is alleged had opposes the offer of M/s. Kohistan Traders, the company of accused Abdul Sattar and suggested that the offer should not be loss than the official bid and the departmental recovery should be indicated. It is also in the FIR that in addition of the documentary evidence, statements of various witnesses were recorded. In.. view of this all the accused persons have caused wrongful to the tune of Rs. 7 lacs to the Municipal Committee/Government and similar wrongful gain to themselves by allowing the contract to the accused Abdul Sattar less than the official bid, hence they in collusion with each other have committed an offence under Section 420, 34 PPC read with sections (2) Act II of 1947. The bail applications of the applicants filed on behalf of the applicants were rejected by the Special Judge Anti Corruption (Provincial Hyderabad ) on 2.6.1997. Hence these applications. I have heard respective learned counsel for the applicants and also the learned Advocate General Sindh for the State. I have perused the record and documents filed therewith. I have also gone through the orders passed by the learned Special Judge Anti-Corruption, Hyderabad . It has been contended by Mr. Farid Ahmed Dayo, the learned counsel for the applicant Pervaiz Ali Shaikh that the applicant was the Administrator of Municipal Committee Kotri and had only carried out the orders of the superiors. It has been pointed-out that the Government had laid down then policy for awarding contracts of octroi/export tax other taxes/fees, auction of collections rights for financial year 1996-97 onwards by letter No. SOIV/5 (D/96-UC (POLICY) by Government of Sindh, Local Government, Public Health Engineering Rural Department and Katchiabadis Department dated 10th March 96 and the auction had taken place in accordance with the policy laid-down as per the said letter. It is contended that committee to this effect was formed under the Chairman Ship of the Director Local Government and its members were Deputy Commissioner Dadu, Assistant Director Dadu, Administrator Municipal ^ Committee and number of attempts were made to obtain the contract to the extent of Government bid of Rs. 59,82,000/- but every time no contractor participated in the contract as such the applicant in the capacity of the Administrator had informed the director Local Government, Hyderabad on 26.5.1996. In the meantime Abdul Sattar of M/s. Kohistan Traders gave an offer of Rs. 52,50,000/- and had also deposited Rs. 3,00,000/- as supporting offer. Such information was given by Mr. Liaquat Ali Magsi, Director, Local Government Hyderabad Division, Hyderabad to the Secretary. Local Government Public Health Engineering and Rural Development Department Karachi vide his letter No. 6121 DLG/I/1048 dated 30th June 1996, copy of which was endorsed to Assistant Director Local Government Dadu and the present applicant in the capacity of Administrator Municipal Committee with certain instructions to the applicant. In this letter the case of M/s. Kohistan Traders was recommended. It is further contended that on the basis of this recommendation letter was received by the applicant dated 15th July 1996 confirming the bid of M/s. Kohistan Traders. This letter is signed by Syed Akhtar Hussain Shah Moosavi, the Section Officer-V on behalf of the Secretary. It is on the basis of this letter dated 15th July 1996 that the applicant carried out the directions and accepted the offer of coaccused Abdul Sattar. The copies of the said letters have been filed by the applicant. It is also contended by Mr. Farid Ahmed Dayo, the learned counsel for the applicant that in view of these documents no offence has been committed by the applicant. The action of the applicant cannot in any way be treated as an offence under section 420 as there is no element of cheating involved, even otherwise, this offence is bailable. The ingriedence of section 5(2) of Act II1947 do not seem to apply in this case at all. Mr. Azizullah Sheikh, the learned counsel appearing on behalf of the applicant, namely, Mir Munawar Ali Talpur has contended that his client was the Minister of Local Government at that time and no active role has been shown to have been played by him. He referred to the letter dated 10.3.1997 which lays down the policy for auctioning the contracts, he contends that at page No. 7 of this letter it is conjoined that the auction should be finalised by 30.4.1996 which was the dead line given in this respect. He has filed photostat copies of the open auctions which were held on 23.4.1996, 25.4.1996, 2.5.1996, 5.5.1996 and 5.8.1996. All these auctions were held by the committee under the chairmanship of Mr. Liaquat Ali Magsi, the Director Local Government and the other members of the committee, namely, Deputy Commissioner, Dadu, Assistant Commissioner and applicant Pervaiz Ali Shaikh. It will be observed that in every auction the bid amount was reduced by 3% as per said policy yet nobody came forward to take the contract. Even otherwise, if the applicant in the capacity of Minister had issued directions which apparently were wrong cannot be challenged. Reliance has been placed on 1993 PCr. LJ. 551. It has been pointed out that nothing has come on the record to show that the applicant who was the Minister had any link or connection with Abdul Sattar or had any knowledge if any other bid of Rs. 54,00,000/- was ever before him which he had brushed it aside). It is also contended that if the case of prosecution is that there was another bid of Rs. 54,00,000/- the loss to the Government would not be Rs. 7,00,000/- as alleged by the prosecution. Thus in this context there is inconsistency in the facts which are on the record and the FIR in as much as the quantum of loss suffered by the Government. Investigation is complete and the applicants are no more required by the prosecution for any purpose offence under Section 420 is bailable while the offence under section 5(2) of Act II of 1947 is punishable with 7 years. The evidence in possession of the prosecution against the applicants is based on documents, hence there is no likelihood of tempering with the prosecution evidence. Reliance has heen placed on 1995 SCMR 170. He urged that in these circumstances and that the beneficiary co-accused Abdul Sattar has already been released on bail by the Special Judge/Sessions Judge, Dadu. Under the circumstances the applicants are entitled to be released on bail as they have been victimised due to political revolury. Mr. Raja Qureshi, the learned Advocate General Sindh appearing on behalf of the State, opposes the grant of bail to the applicants. According to him the refernece has been made to the Ehtesab Commissioner by the Government of Sindh and in view of Section 16 of Ehteshab Ordinance, the reference by the Government to the Ehteshab is an FIR unlike the one registered under section 154 Cr.P.C. Thus this court has no jurisdiction to adjudicate upon this matter. It is true that the reference by itself takes the place of an FIR under section 154 Cr.P.C. but does not give the jurisdiction of the court, unless the matter is referred to the Ehtesab Bench which takes the cognizance. Admittedly, the matter has not been taken upto the Ehtesab Bench, consequently this court is competent to adjudicate in this matter. According to the learned AG Sindh the reference was made on 12th February 1997 by the Chairman Inquiry and Anti Corruption Establishment (S & GAD) Government of Sindh, Karachi to the Chief Ehtesab Commissioner, copy of which has been filed by the Advocate General wherein the allegations against the present two applicants and Abdul Sattar of M/s. Kohistan Traders were made. To this reference reply was sent to the Chairman by the Ehtesab Director Prosecution, Chief Commissioner Secretariat, Government of Pakistan. After examining the letter No. SO( AC 131-149/97) dated 12.2.1997 wherein queries were made from the Chairman, in respect of the reference, the reference was thus turned down by the Chief Ehtesab Commissioner. Another letter was repeated by the Chairman Anti Corruption dated 18.6.1997, informing the Director Prosecution wherein he was informed that a case has been registered against the applicants it was for them to explain why the offer of Rs. 54,00,000/- was not accepted and the lower offer of Rs. 52,50,000/- was accepted. The Director prosecution vide his letter dated 26th June 1997 returned reference with the direction that the actual loss sustained by the State Ex-Chequer may be indicated, as according to their letter dated 26th May 1997 the loss suffered by the Government would not be Rs. 7,32,300/- by accepting the bid of Rs. 52,50,000/- as against the bid of Rs. 54,00,000/-. According to the A.G. the reference is still pending before the Ehtesab Commission as such the applicants are not entitled to grant of bail. He further states that the applicant Pervaiz Ali Shaikh is an officer in Grade 17 as such he is out of the perview of Ehtesab Ordinance, which deals only with the officers of Grade 18 and above. I have carefully considered the contentions made at the bar and also the objection raised by the learned A.G. on behalf of the State. I have also gone through the authorities relied upon by the defence. For convenience sake the relevant provisions of the Ehtesab Ordinance are reproduced: S. 14 relates to the cognizance of offences etc. reads as under : (1) The court shall not take cognizance of an offence under this ordinance except on a reference made by the Chief Ehtesab Commission. (2) A reference under this ordinance shall be initiated by the Chief Ehtesab Commission (i) a reference received from the appropriate Government, or (a)" ....................................................................... " (b)" ........................................................................ S. 16 read as under : 16(1) Where a reference is made to the C.E.Com under clause (i) of Sub-section (2) of section 14, such reference shall be decided to be an information recorded under section 154 of the Code. Provided that no arrest of a holder of public office accused of an offence under this Ordinance, shall be made without the prior approval of the Chief Ehtesab Commission. Under Section 14(2) of the Ehtesab Ordinance shall take cognizance of an offence under this Ordinance only a reference made initiated by the Chief Ehtesab Commissioner. This however, does not speak that reference to the Ehtesab Commissioner would amount to the taking of cognizance by the Court (Ehtesab Bench). Siib-section (2) of the said section speaks of a reference under this Ordinance is to be initiated by the Chief Ehtesab Commissioner on a reference received from the appropriate Government. Thus reference made against the applicants by the Government to the Ehtesab Commissioner was under section 14(2) (i). Section 16 however clearly shows that the reference made to the Chief Ehtesab Commissioner under clause (i) of sub-section (2) of section 14 shall be deemed to be an information recorded under section 154 of the Code (i.e.. Criminal Procedure Code). A distinction has been made in section 16 between the effect of FIR and that under this section is that on recording of the FIR under section 154 Cr.P.C. the police can arrest the person against whom this report has been made whereas in the proviso to section 16 a restriction has been placed that 'the arrest of an official accused of an offence under the Ehtesab Ordinance is that the person named cannot be arrested without prior permission of the Chief Ehtesab Commissioner. Thus as already held above the reference made against the applicants would not debar this court from adjudicating upon the case of the applicants or to consider their bail applications. Reliance can be made on Cr. Bail Application No. 39/97 (Hakim Ali Zardari vs. The State), wherein it has been held that untill the matter has been referred for trial to the court the normal courts would continue to have jurisdiction in the matter. The reference against the applicants are still in process and the cognizance has not been taken by the Ehtesah Bench as certain queries are being made in that behalf. The contention of the learned AG, therefore, is without any force. Copies of the auction procedure have been filed which clearly shows that no-one was prepared to accept the contract as per Government bid which was being decreased every time by 3% as per policy laid-down by letter dated 10.3.1996. It has also been pointed out that finding no other alternate Mr. Liaquat Magsi, the Director Local Government Hyderabad Division informing the Secretary Government of Sindh Local Government Public Health Engineering & Rural Development Department Karachi that despite of all efforts made by the Committee of which he was the Chairman no contractor were had come forward to take the contract on the Government bid which was decreased by 3% every time. It was the director who had recommended the case of co-accused Abdul Sattar of M/s. Kohistan Traders who was willing to accept the contract for Rs. 52,50,000/- and has deposited Rs. 3,00,000/- as supporting of the offer. In reply to this letter, government accepted the bid of M/s. Kohistan Traders vide his letter dated 15th July 1996, therefore, it appears that applicant Pervaiz Ali Shaikh had accepted the bid as per instructions given to him by the above said letter dated 15th July 1996, hence the contention of the learned counsel that no offence has been committed by the said applicant has some force having support from the record produced. There is no mention of any bid having come forward to the extent of Rs. 54,00,000/- except from the queries made by the Chief Ehtesab Commissioner and from the reference made by Government. As regard the applicant Munawar Ali Talpur, the learned counsel has challenged the bonafides of the Government and has categorically stated that he has been made a victim due to the political rivolury nothing has been placed on the record to show if there was anything before him as thp Minister of Local Government inspite of the so-called bid of Rs. 54,00,000/- placed before him. No documents of approval by the said applicant has been produced. It is to be noted that according to the prosecution loss accrued by the government in accepting the bid of Rs. 52,50,000/- was Rs. 7,00,000/-. If the case of 1 prosecution was that there was a bid of Rs. 54,00,000/- as against the bid of M/s. Kohistan Traders amounting to Rs. 52,50,000/-, the loss definitely /S would not be Rs. 7,00,000/-. Thus in case where there is a dispute over the quantum of loss or accountability the case calls for further inquiry and the accused is entitled to be released on bail. It has been contended by Mr. Azizullah Sheikh that admittedly his client was Minister for Local Government and even if he had given a wrong decision as a Minister it could not be challenged. In the case (Qaim Ali Shah vs. The State), reported in 1993 P.Cr.L.J. 551, it has been observed that under the Sindh Government Rules of Business, 1986, Rule 7 which relates to the powers of the Chief Minister shows that Chief Minister may allocate to a Minister one or more Departments or part of a Department, but the Chief Minister shall have powers to pass order in any case concerning any Department without consulting the Minister of that Department. It is also provided that the Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to the Minister or Secretary of the Department. It is further provided that any order of the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Government. It has also been observed that in conducting the affairs of the Government things are often done which may subsequently be found to be wrong, but every wrong decision by the Chief Executive of the Province does not invite penal action. Admittedly, the applicant Munawar AM Talpur was Minister for Local Government, Public Health and Rural Development Department and any order passed by him would be presumed to be the orders passed by the Chief Minister/Government. Similar is the case of the applicant. Although there is nothing on the record to show that he had ever approved this bid of Rs. 52,50,000/-. Even if it is presumed that he had approved this bid and the approval was a wrong decision it could not be questioned. This authority, therefore, applies to this case. It is pointed out that interim challan which was submitted before the trial court has been treated as final which means that the investigation is complete. The offence under section 420 was bailable and the offence under section 5(2) of Act II, 1947, is punishable with 7 years. It is a settled law that where the punishment is not transportation for life or death or 10 years imprisonment, the bail becomes the right of the accused. Evidently, entire evidence collected by the prosecution is based on documents which are in possession of the prosecution, hence there is no possibility of any tampering with the prosecution evidence. In the reported case (Saced Ahmed us. The State) reported in 1995 SCMR 170, the evidence in that case entirely depended on the documents which were in possession of the prosecution and it was held that the case entirely depended upon documentary evidence which was in possession of the prosecution, hence there was no possibility of tampering with such evidence and the applicants were granted bail. Above all, the beneficiary of the contract, namely, co-accused Abdul Sattar has already been granted interim bail before arrest by the Senior Special Judge, Dadu, on 27.5.1997 which was subsequently confirmed on 30.6.1997. Accordingly, I find that the present applicants are also entitled to the grant of bail, accordingly their bail pleas are accepted and they shall be released after they furnish solvent surety, each, in the sum of Rs. 75.000/- (Rupees seventy five thousand) with PR bond in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1366 Present: ZAFAR PASHA CHAUDHRY, J. TANVEER HUSSAIN-Petitioner versus STATE-Respondent Criminal Misc. No. 3903/B/1997, accepted on 29-7-1997. Bail-- S. 497 Cr. P.C. read with Offences Against Property (Enforcement of Hudood) Ordinance No. VI of 1979 S. 17 and PPC S. 394-Bail after arrest-If an accuse person remains confined in judicial lock for more than one year in a case punishable upto 10 years, he becomes entitled to bail unless that person is shown to be hardened, desperate or dangerous criminal or involved in terrorism-Courts cannot remain oblivious of fact that law has to take its course if delay of more than one year is caused in conclusion of trialNo one can be kept in jail for sake of punishment and no body can be condemned without holding trial-Petitioner is statedly not previous convict-Petitioner has no previous history-He is not named in FIRNo test identification prade was conducted-State has not been able to show as to why delay was caused in submission of challan and subsequently even after submission of challan no progress whatsoever has been made by prosecution-Bail granted. [P. 1367] A, B & C 1997 SCMR 971, 1997 P.Cr.LJ 917 ref. Ch. Nisar Ahmed, Advocate for Petitioner. Mr. Kamal Mustafa, Advocate for State. Date of hearing : 29-7-1997. order The petitioner is required as accused person in case FIR No. 65/96 dated 27.2.1996, under section 17 of Ordinance VI of 1979 read with section 394 PPC, registered with Police Station Pasroor, District Sialkot. It is alleg ed, inter alia, that the petitioner alongwith four others committed robbery on a petrol-pump wherefrom 21 gallons of Mobile Oil alongwith a sum of Rs. 2424/- were looted. Obviously the petitioner was not, named in the FIR but his description was given therein. The case was registered on the statement of Jaffer Abbas who was employed as sale-man at the petrol pump. 2. It is submitted that the occurrence took place on 27.2.1996 and the petitioner was arrested on 21.4.1996. For a period of about 11 months no challan was submitted in the court but the petitioner remained confined in the judicial lock-up. The challan was submitted on 26.9.1996 but even then not a single witness has been examined so far despite the fact that the petitioner is in custody for the last 1 years and 4 months. It is further argued that the complainant in this case has sworn an affidavit deposing that the petitioner was not amongst the accused who committed the robbery on his petrol pump. It is also added that none of the accused persons is named in the FIR, therefore, it was incumbent on the prosecution to identify them in a test identification parade but the same was not done. Above all, the petitioner is entitled to concession of bail on statutory ground because more than one year has elapsed but the trial has not concluded. What to speak of conclusion of trial, the same has not even practically commenced. 3. The above facts reflect very sad state of affairs. Generally grievances are made that the accused persons are admitted to bail, therefore, interest of justice is frustrated. All the agencies including the prosecution are bound by law and they are supposed to act, in accordance with law and if an accused person remains confined in judicial lock-up for more than one year in a case punishable upto 10 years, he becomes entitled to bail unless that person is shown to be a hardened, desperate or dangerous criminal or involved in terrorism. Ordinarily the concession of bail is not to be extended to a person who commits the offences such like the one committed in the instant case but at the same time, the courts cannot remain oblivious of the fact that the law has to take its course if delay of more than one year is caused in conclusion of the trial and in that case the accused becomes entitled to concession of bail in view of the provisions of section 497 Cr.P.C. No one can be kept in jail for the sake of punishment and no body can be condemned without holding trial. 4. In this case the petitioner is statedly not a previous convict. The State has not been able to show as to why the delay was caused in the submission of the challan and subsequently even after submission of the challan no progress whatsoever has been made by the prosecution. In such like situation, there remains no alternate with the couit but to admit the petitioner to bail. The slackness on the part of the prosecution to examine the witnesses, particularly the State functionaries has become a common practice which needs to be curbed and checked. Learned counsel has placed reliance on the judgment reported as 1997 SCMR 971 wherein it is held that it is incumbent on the prosecution to conduct test identification parade when the accused is not named in the FIR. Reliance is also placed on the judgment reported as 1997 P.Cr.L.J. 917 wherein it has been laid down that an accused person becomes entitled to concession of bail if the trial is not concluded within a period of one year. No person has to be presumed as a desperate unless it is established from the record that he has a criminal history. It has been further observed that if some accused person is involved in some other case as well, it is no ground to hold him dangerous, desperate or hardened criminal. In the instant case the petitioner has no previous history. Confronted with this situation, learned counsel for State has not been able to controvert the various submissions made by learned counsel for the petitioner. I, therefore, accept this petition and admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs. 100,000/- with two sureties in the like amount to the satisfaction of the trial court. 5. Let a copy of this order be sent to all the Superintendents of the Police in the jurisdiction of the Principle Seat, particularly to S.P. Sialkot so as to apprise them of the interest taken by the prosecution and progress made by them towards conclusion of trial in such like cases, so that they may look into the matter and take immediate necessary steps to submit the challans expeditiously and thereafter examine the witnesses without wasting any time to avoid the situation as narrated above. (MYFK) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr. C. Peshawar 1368 (DB) Present : SARDAR MUHAMMAD RAZA, SECOND JUDGE NAME IS NOT DECIPHERABLE J. FAIZ MUHAMMAD-Petitioner versus STATE-Respondent Crl. Appeal No. 6 of 1996, dismissed on 29-4-1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- S. 417(2-A)-Orders of acquittal passed by Special Courts under Suppression of Terrorist Act, 1975-Appeal against-Whether Section 417 (2-A) deemed to have included appeals against acquittal passed by Special Courts under Act, 1975Question ofWords "passed by any Court in sub section 2-A of Section 417 Cr.P.C. refer to all courts created, existing and working under Cr.P.C. whereas Special Courts under Act of 1975 are not created under Cr.P.C. irrespective of the fact that such courts exercise certain powers and hold a procedure, specially allowed by Section 59) of Act, 1975-There is no bar in having recourse to provisions of general law when a special law is silent on a point but this course cannot be adopted when provisions of two statutes are diametrically and expressly opposed to each other. [Pp. 1370, 1371 & 1372] C & D (ii) Suppression of Terrorist Activities Act, 1975- S. 7 read with S. 5, Criminal Procedure Code. Ss. 417 (2-A) and 426- Orders of acquittal passed by Special courts under Suppression of Terrorist Activities Act, 1975-Appeal against-Whether a complainant in cases tried by Special Court, has a right to file an appeal against acquittal- -Question of-From plain perusal of S. 7 of Act, 1975, it is abundantly clear that right of appeal against a judgment of Special Court is granted to either convict, or StateNo right of appeal is granted to private complainant as envisaged by section 417 (2-A) of Cr.P.C.--At the time of initial enactment of section 7 of Act, 1975, no right of appeal was at all provided to any one except convict-It was later on realised that there was no provisions in law to check acquittals and hence right to appeal granted to Provincial Government by Special amendment-Had the Legislature intended to grant such right to complainant, it could have, with same convenience, granted the same by way of amendment, which till this date has not been made-Appeal dismissed. [P. 1370] A & B M/s Sanaullah Khan Gandapur, S. Zafar Abbas Zaidi and Dost Muhammad Khan, Advocates for Appellants. S. Saeed Hassan Sherazi, Assistant Advocate General for State. Date of hearing : 29-4-1997. judgment Sardar Muhammad Raza, J.--Twenty three appeals fixed in motion and three appeals fixed in notice given in the title are all appeals filed by complainants against the orders of acquittal passed by the Special Courts under Suppression of Terrorist Activities Act 1975. 2. The question of law that, is taken up for consideration is, if a complainant in cases tired by a Special Court under the aforesaid Act has a right to file an appeal against acquittal, in parameteria with section 417(2-A) of the Code of Criminal Procedure. 3. We had the privilege of listening to arguments at length of Mr. Sanaullah Khan Gandapur, S. Zafar Abbas Zaidi and Mr. Dost Muhammad Khan, advocate on behalf of the complainants while S. Saeed Hassan Sherazi Assistant Advocate General argued on behalf of the State. 4. For facility of reference, section 7 of the Suppression of Terro^st Activities Act is reproduced below .-- 7. Appeals from Sentences Imposed by Special Courts e.tc:(l) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, <1) (And the Provincial Government may direct any person appointed by it for the purpose 1,o present an appeal to the High Court from an order of acquittal passed by a Special Court;) but save as aforesaid and not withstanding the provision of the Code or any other law for the time being in force or of any thing having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under sub-section (1) shall be preferred to the High Court within thirty clays of the passing of the sentence (or order of acquittal, as the ease may be), and shall be heard and decided by a Bench of not, less than two Judges of the High Court (within three months). (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court. 5. From the plain perusal of the aforesaid section of the Act. it is abundantly clear that right of appeal against the judgment of a Special Court is granted to either the convict or the State, No right of appeal is granted to [the private complainant as envisaged by section 417(2-A) of the Cr.P.C.. which sub-section was inserted by Code of Criminal Procedure (second amendment) Act XX of 1994 passed on 6.11.1994, much after the promulgation of Suppression of Terrorist Activities Act. 1975. What we have gathered from such amendments in the Code of Criminal Procedure, is. That whereever the legislature wanted to extend the right of appeal, it extended the same by positive legislation and whereever it did not want to extend the right, it did not make the legislation. 6. Another important aspect of section 7 of the Act is that at the time of its initial enactment no right of appeal was at all provided to any one except the convict. It was later on realised that there was no provisions in the law to check the acquittals and hence right to appeal was granted to the Provincial Government by special amendment through Suppression of Terrorist Activities (Special Courts Amendment) Act 1975. Had the legislature intended to grant such right to the complainant, it could have, with the same convenience, granted the same by way of amendment which. tij| this date, has not been made. 7. It is altogether a different argument that, in line with the provisions of section 417 (2-A) Cr.P.C., such right should have been granted to a complainant under Suppression of Terrorist Activities Act 1975. as well. Certainly, the aforesaid right under the Code was extended to the complainant in order to bring the laws in conformity with the principles of Islam but the curious point to be noted is that, such right despite all said and done, was never extended to a complainant unless specifically legislated by the insertion of sub-section (2-A) to section 417 Cr.P.C. The same right ought, to have been extended to a complainant under the Act of 1975 but so long as it. is not granted by the legislature, the courts cannot read the same into an enactment and cannot grant the same accordingly. We would propose that the same right be extended under section 7 of the Suppression of Terrorist Activities Act 1975 to a private complainant as well by positive legislation. This would avoid discrimination and would further be in line with the spirit of the Act of 1975. 8. It was argued by the learned counsel for the complainant that the words "passed by any court" appearing in svib-section (2-A) of section 417 Cr.P.C. be deemed to have included the Special Courts as well. Having gone through the aforesaid newly inserted section (2-A), we are of the considered view that the words "passed by any court" in the said sub-section refer to all the courts created, existing and working under the Code of Criminal Procedure whereas the Special Courts under the Act of 1975 are not created under the Code of Criminal Procedure irrespective of the fact that such courts exercise certain powers and hold a procedure laid down in the Code of Criminal Procedure, specially allowed by section 5(9) of Suppression of Terrorist Activities Act 1975. The aforesaid permission under section 5(9) of the Act is only with regard to the procedure to be adopted while holding a trial and does not at all concern with a right of appeal which is substantial in nature, granted by the legislature in specific and is never to be equated with a fundamental right. 9. On the same analog}' we also do not find ourselves in agreement with the argument that such right of appeal be presumed in the light of section 5(2) Cr.P.C. This section also provides for investigations, inquires and trials to be conducted under the Code. On the other hand, the Act of 1975 carries its own provisions and the Code of Criminal Procedure too is applicable to the proceedings before a Special Court, only and only when specifically permitted, as it is so permitted under section 5 etc. of the Act. 10. While referring Maxwell on the interpretation of statutes, edition 1969, Chapter 2 Page-40, it. was contended that the provisions of section 7 of the Act of 1975 if juxtaposed to the provisions of section 417 (2- A) Cr.P.C., they tend to create a mischief and that in such a state of affairs the court should come up with an interpretation that sweeps away the mischief. This also is not a true representation of the phenomenon of mischief, seen in the light of the principles of interpretation of statutes. 11. The theoiy of miscuief conies into play only when independent appreciation of two statutes or two provisions of law tend to cause a confusion whereby some one is deprived of a right in one statute which appears to be granted in the other. In the instant case, there is neither confusion nor mischief. Right of appeal is a creation of statute. It is clearly granted in one place and clearly denied in the other. It cannot be read into the one where it is not provided. Since the time of promulgation of laws and upto the enactment of sub-section (2-A) of section 417 Cr.P.C., no right of appeal stood ever granted to a private omplainant, and if it stands not granted in a certain law even today, it should never be made a point, of confusion or mischief. 12. The State vs. Syed Qairn Ali Shah (1992 SCMR 2192) was referred before us wherein the provisions of section 426 and 497 Cr.P.C. were considered in comparison to the provisions of Suppression of Terrorist Activities Act. Having gone through the aforesaid ruling and also Pervaiz Akhtar vs. Muhammad Inayat (1995 SCMR 92) and Mst. Ncelam Nawaz vs. The State (PLD 1991 SC 640), we firmly believe that a dispute over the applicability of sections 426 and 497 Cr.P.C. to the Suppression of Terrorist Activities Act, 1975 should not be equated with a dispute over a substantial right of appeal. The suspension of a sentence under section 426 Cr.P.C. is quite close to some one's release on bail as defined by section 497 Cr.P.C. Such provision of bail is not denied in toto by the Suppression of Terrorist Activities Act, 1975 but is rather, specifically provided under section 5-A (8) of the Act of 1975, with some difference of circumstances that are required to be seen before releasing an accused on bail. 13. When the question of interpretation of the aforesaid two sections of bail in two different enactments arises, one can put a convenient interpretation to the factum of bail, sometimes favouring and sometimes disfavouring the accused, as the circumstances would require, but, such force of interpretation cannot be given to a right of appeal which is totally denied in one enactment and granted in another. It may be recalled that it is a bounty of the statute and not the grant of a court through the force of interpretation. There is no bar in having recourse to the provisions of general law when a special statute is silent on a point but this course cannot be adopted when the provisions of the two statutes are diameterically and expressly opposed to each other. 14. In Ghazi us. The State (PLD 1962 (W.P.) Lahore 662) it is explained that a right of appeal is a vested right only if it is granted by the statute and further that an appeal is not a matter of procedure so as to be taken away retrospectively. The aforesaid view only explains the same principle that the right is a matter of grant and becomes vested only when it stands granted and further that thereafter it cannot be taken away with retrospective effect. Concerning special procedure under special laws the Supreme Court in The State vs. Hamtho (1971 SCMR 686) has gone To the extent that the procedure provided by the special statute is to be followed and not the ordinary procedure under general law. This should not be equated with a right of appeal which is not. a matter of procedure and, therefore, should be adhered to with strict reference to the special law as compared to the general law. An interesting situation was faced by Skemp J of the Lahore High Court in Karam Dad vs. Emperor (AIR 1941 Lahore 414) when Karam Dad etc. came in revision against their conviction under section 411 PPC recorded by a Magistrate 1st Class who on conviction sentenced them to pay a fine of Rs. 45/- and thus deprived them of the right of appeal. It was held that right of appeal was not a natural right and it was created by statute and therefore it was inaccurate to say that an accused has been deprived of his right of appeal. What we emphatically want to bring home is that for time immemorial a right of appeal is consistently and persistently interpreted to be a creation of the statute and not to be a natural or fundamental right. 15. The upshot of what has been discussed above is that the right of appeal cannot be extended to a private complainant by reading the same into the provisions of section 7 of the Suppression of Terrorist Activities Act, 1975 when such a right is not specifically provided therein. All the appeals in motion as well as in notice, given in the title are hereby dismissed, the first 23 being in limine. 16. A copy of this judgment be sent to the Secretary to Government of Pakistan Ministry of Justice and Parliamentary Affairs (Justice Division) Islamabad with strong recommendation that section 7 of Suppression of Terrorist Activities Act, 1975 be amended so as we give right of appeal to a private complainant in order that the provisions are brought in consonance with the Injunctions of Islam, in the background of such requirement felt expedient for the enactment of section (2-A) of section 417 Cr.P.C. As innumerable persons in the shape of victims are likely to be affected for future, an early action taken in this behalf shall be in the extreme interest of justice. (MYFK) Appeals dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1373 Present: ZAFAR PASHA CHAUDHRY, J. STATE-Appellant versus MUHAMMAD ASLAM ETC.-Respondents Crl. Appeal No. 583 of 1997, dismissed on 1-8-1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 417-Read with Ss. 452/325/326/147/148 PPC-Appeal against acquittal-Trial Court had assigned various reasons justifying acquittal of respondents-If two views are possible of a case and view taken by trial court can be justified on basis of facts or on principal of law then order of acquittal is not interfered with-If statement of complainant is not supported by independent witnesses especially when they were available and were cited then benefit of doubt may be extended to accused person- Injuries on person of accused have not been explained, two independent witnesses although cited were not producedPossibility of exaggerating number of accused cannot be ruled out-Order of acquittal may not look fair and just, yet it has sanctity attached to it-View taken by trial Court cannot be treated as totally perverseOnce an order of acquittal is passed in favour of accused there arises strong presumption of innocence in his favour-Order of acquittal is not very lightly interfered with-Appeal dismissed. [Pp. 1375 & 1376] A to E 1981 SCMR 795 ref. Khawqja Shaukat Ali, Advocate with Akhtar Masud Khawaja, Advocates for State. Mr. A.K. Dogar, Advocate for Respondents. Date of hearing : 1-8-1997. judgment Through this appeal order of acquittal passed by Mr. Muhammad Aslam Magistrate 1st Class Sargodha has been challenged. Respondents No. 1 to 8 were sent up to face trial in case F.I.R. No. 6 of 1989 registered with Police Station Jhal Chakkian District Sargodha u/s 452/325/326/147/148 PPC on 9th of January 1989. The learned Magistrate on conclusion of the trial acquitted all the accused persons vide his judgment dated 11.2.1992. The grounds assigned by the learned Magistrate for acquitting the accusedrespondents as incorporated in the judgment are that Muhammad Siddiq Awan and Yar Muhammad Chowkidar were named as witnesses in the F.I.R. Both were independent because they were not related to any of the party. The prosecution did not examine either of them and they were given up on the ground of having been won over by the accused persons. The remaining witnesses were all interested because admittedly there was party faction in the village. Both the parties belong to rival factions; that there are material discrepancies in the statements made by the witnesses. As such taking stock of all these facts the learned Magistrate by extending benefit of doubt acquitted all the accused persons. 2. The learned counsel for the State assisted by the learned counsel for the complainant has argued that the occurrence has taken place in the house of the injured persons and all the injured persons supported the prosecution version, therefore, order of acquittal is not sustainable in the eyes of law. Non-examination of t\cr aforesaid witnesses named in the FIR is not fatal to the prosecution case because normally independent witnesses do not turn up to support the prosecution version on account of the pressure exerted by accused persons who in the instant case happened to the quite influential. 3. In reply the learned counsel for the respondents has argued with vehemence that even injured witnesses may not always come forward with true version of incident. In support of his contention reliance has been placed on the judgment delivered by the Hon'ble Supreme Court cited as "Said Ahmad vs. Zammured HussciJn and 4 others" (1981 SCMR 795) wherein injured witnesses had supported prosecution case but their statements were not corroborated by the independent witnesses. Their testimony was not relied upon and benefit of doubt was extended to the accused. According to the learned counsel this citation covers the present case on all fours. If it is shown that there is enmity in between the parties then their statements have to be corroborated by independent witnesses. In the present case not only independent witnesses were present, but they were quoted in the FIR and were subsequently cited in report u/s 173 Cr.P.C. None of the two witnesses were produced. The law as has been laid down in "Shah Nawaz vs. Lai Khan and two others" (1972 S.C.M.R. 286) as well as in PLD 1960 LHR 48, a DB case, wherein reliance has been placed on a judgment of Privy Council reported as A.I.R. 1936 P.C. 239, requires the prosecution to examine all the witnesses cited in the calendar and withholding any of such witness would mean that he was not, to support, the prosecution version. It has further been argued that one of the accused namely Sher Muhammad has been injured and he received injuries on his head, back and other parts of the body. No prosecution witness has stated any thing as to how and in what manner these injuries were sustained by the accused. The fact of injuries on person of Sher Muhammad has been admitted by Dost Muhammad PW. 1 and also by the investigating officer who appeared as PW. 5. Basing his arguments on these facts he placed reliance on "Lai Khan and another vs. The State" (1976 P.Cr.L.J. 1437) and submits that the present case appears to be of free fight and in that event the order of acquittal should not be interfered with. Lastly it has been argued that if in a given case two views can possibly be taken then the view taken by the learned trial court of acquitting the accused should not be interfered with. 4. I have gone through the record with the help of the learned counsel for the parties. The learned trial Magistrate has assigned various reasons justifying acquittal of the respondents. Although I am not in agreement with the learned trial Magistrate especially when he pointed out discrepancies in the statements of witnesses which are not of that significant as observed by him yet keeping in view the principle that if two views are possible of the case and the view taken by the trial court can be justified on the basis of facts or on principle of law then the order of acquittal is not interfered with. The contention raised by the learned counsel for the respondents with regard to non-production of two independent witnesses and also the fact that one of the accused person was injured during the incident and no explanation tendered by the PWs is not devoid of force. The authority cited by him i.e. 1981 SCMR 795 is applicable to the facts and circumstances of the present case. In the cited case there were injured witnesses yet their lordships obseived that mere injury on the person of the witness does not prove that he has come forward with whole truth. If the statement is not supported by the independent witnesses especially when witnesses were available and were cited then benefit of doubt may be extended to the accused person. Main reliance has been placed on this authority. It has also been added that if out of the grounds assigned by the trial court, some of them can be sustained then order of acquittal should not be set aside. May be in the present case conviction could be recorded because it is veiy difficult to discard the testimony of injured witnesses who were admittedly present at the time of occurrence and substitution of real culprits is a rare phenomena, but, if other view can also possibly be taken and that view has infact been taken, may be by showing leniency, then the order does not call for interference. Taking into account the fact that injuries on person of Sher Muhammad accused have not heen explained, two independent witnesses although cited were not produced and that possibility of exaggerating number of accused cannot be ruled out. The order of acquittal may not look very fair and just yet it has sanctity attached to it. The view taken by the trial court cannot be treated as totally perverse or not sustainable. The prosecution case suffered from some weaknesses relying on which the learned Magistrate ordered the acquittal of the respondents. As argued by the learned counsel for the respondents the possibility of free fight or aggression by the complainant party cannot be totally ruled out. Once an order of acquittal is passed in favour of accused there arises strong presumption of innocence in his favour. On account of this principle the order of acquittal is not very lightly interfered with especially when the occurrence took place about 8% years ago. 5. As a result of the above discussion I am not inclined to allow this appeal. The same fails and is hereby dismissed. (MYFK) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1376 Present: ZAFAR PASHA CHAUDHRY, J. Mst. HAMIDA BIBI-Petitioner versus SHO etc.-Respondents Cr. M. No. 50-H/1997, disposed of on 25-3-1997. Criminal Procedure Code, 1898 (V of 1898)-- S. 491, Guardian and wards Act, Ss. 12 & 25-Custody of child- Jurisdiction under S. 491 Cr.P.C. is invoked in cases of emergency when some minor is removed from custody of a person entitled to her custody and immediately relief is sought to be provided-Under section 12 & 25 of Guardian and Wards Act, Guardian Judge has ample authority to regulate custody of minor-That is real forum to determine question of custody of minor-Held, since, petition has been moved before Guardian Judge for custody of minor, petition under section 491 Cr.P.C. is not maintainable-Petition disposed of. [P. 1377 & 1378] A & B Mr. Tahir Mahmood, Advocate for Petitioner Pirzada Wall Nasim Jafri, Advocate for father of minor. Date of hearing: 25-3-1997. order The learned counsel has put up appearance on behalf of the father of minor Perveen Mai. He has produced copy of the petition moved before the learned Guardian Judge Muzaffargarh wherein the prayer for declaring him as guardian of the minor has been made. Another copy of the plaint has been placed on the file indicating that suit for grant of permanent injunction has been filed against the mother who is petitioner in the instant petition before this Court. As far as the filing of civil suit is concerned the same is not relevant for the purpose of proceedings under section 491 Cr.P.C. However filing of petition before the Guardian Judge under Guardian and Ward Act seeking a declaration as guardian has an important bearing on the petition under section 491 Cr.P.C. It is settled law that jurisdiction under section 491 Cr.P.C. is invoked in cases of emergency when some minor is removed from the custody of a person entitled to her custody and immediately relief is sought to be provided. There is no dispute with the proposition that whatever order is passed under section 491 Cr.P.C. is always tentative in nature and is meant as a stop-gap arrangement. It is always subject to the final determination of the question of guardianship or custody by the court of competent jurisdiction which is always a guardian court. Section 491 Cr.P.C. is not meant to pre-empt the jurisdiction of the guardian court or in any manner to substitute the proceedings to be conducted by the learned Guardian Judge. 2. Learned counsel for the petitioner however has raised two objections. First that according to him section 25 of the Guardian and Ward Act is not attracted to the facts and circumstances of the case because father under Islamic law is natural guardian of the minor therefore, there is no need of filing a petition for getting him declared as a guardian and secondly, the custody of the minor girl who is aged about 8/9 years is urgently sought to be delivered to the petitioner who is the mother and according to the principles of Islamic Law the mother has the first right to have the custody/Hizanat of the minor. She can be deprived of her custody only if she is disqualified on the basis of various disqualifications enumerated in the Islamic Law (Muhammadan Law). In support of his contentions the learned counsel has placed reliance on Mst. Nusrat Jehan v. Muhammad Siddiq Khan (1993 P.Cr.L.J. 522 Karachi), Mst. Nasim Akhtar versus Sh. Gulzar Ahmad (1995 P.Cr.L.J. 474 Karachi) and Ahmed Sami versus Saadia Ahmed (1990 S.C.M.R. 268). 3. I do not want to express any opinion on the submissions made by the learned counsel for the petitioner least it may prejudice the case of either party. However, it will be open to him to raise any objection including the objections observed above before the learned Guardian Judge who is already seized of the matter. It has been further submitted by the learned counsel for the petitioner that proceedings before the learned Guardian Court are unnecessarily delayed and welfare of minor daughter demands that she should be urgently delivered to the mother. The apprehension is not well founded because under sections 12 & 25 of the Guardian & Wards Act Guardian Judge has ample authority to regulate custody of the minor and he has been invested with powers of Magistrate 1st Class in that behalf. Needless to observe that thereal forum to determine the question of custody of the minor is the Guardian Court established under the Guardian and Ward Act. As observed earlier, since the petition has been moved before the Guardian Judge for custody of the minor this petition under section 491 Cr.P.C. is not maintainable. The same is disposed of subject to the above observations. (MYFK) Orders accordingly.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1378 Present: MUHAMMAD ISLAM BHATTI, J. ABBAS ALI-Petitioner versus STATE-Respondent Crl. Misc. 3267-B/1997, dismissed on 23-6-1997. Bail-Before arrest- -Ss. 497, 498 Cr. P.C. read with Ss. 406, 420 PPC-Protective bail- Petitioner was allowed concession of pre-arrest bail by Addl. Sessions Judge but after availing of the same for many days he and his co-accused failed to furnish bail bonds as directed and even to enter appearance on date so fixed-Conduct, thus played by petitioner disentitles him to concession of protective/enabling bail particularly when he has been guilty of with-holding facts and contending that he has come to know of his nomination in delayed FIR only during arguments in habeas Corpus matter-Petition dismissed. [P. 1379] A Mian Hafeez-ur-Rehman, Advocate for Petitioner. Syed Nisar Ali Shah, Advocate for Complainant. Date of hearing : 23-6-1997. order Syed Nisar Ali Shah, Advocate, counsel for the complainant has also entered appearance being available in the court room in connection with a habeas corpus petition. 2. The petitioner moved Crl. Misc. No. 727-H/1997 for the recovery of the alleged detenu Muhammad Amin which came up before this Court today. It has been claimed in the instant application inter alia that it was argued in the said matter that Abbas Ali petitioner was also nominated as Tandlianwala on 31.5.1997 under sections 406, 420 PPC. It is submitted that the Police Officer who had entered appearance in the said criminal Misc., now intends to arrest Abbas Ali. He has, therefore, moved this application for the grant of a protective bail in order to enable him to move the Sessions Court at Faisalabad . 3. The learned counsel for the complainant on the other hand has contended that the petitioner had joined his brothers Liaqat and Niaz in moving a pre-arrest bail application before the Sessions Judge, Faisalabad which application was taken up by the learned Additional Sessions Judge on duty on 2.6.1997 and all the three of them were allowed pre-arrest interim bails in the sum of Rs. 27,000/- each with one surety in the like amount each to the satisfaction of the said Court but the petitioners including Abbas Ali failed to furnish bail bonds as directed and also failed tof^t in appearance before the Court on 19.6.1997 which was the date fixed in the said case. Muhammad Baqir Inspector/SHO Police Station Tandlianwala^vho was present outside the Court room has also been sent for and heard. He has placed before me a photo copy of the application purporting to have been moved by Abbas Ali and his co-accused before the Sessions Judge and also that of the order dated 2.6.1997, referred to above, a perusal of which supports the contentions of the learned counsel for the complainant. 4. At this stage, the learned counsel for Abbas Ali petitioner wanted to confirm if this application bore the signatures of Abbas Ali. He has been shown a copy of the petition which does bear his signatures and the learned counsel for the petitioner is not in a position to deny it. 5. It is thus abundantly clear that the petitioner was allowed the concession of pre-arrest bail by the learned Additional Sessions Judge on duty, Faisalabad but after availing of the same for many days he and his coaccused failed to furnish the bail bonds as directed and even to enter appearance on the date so fixed. The conduct thus displayed by the petitioner disentitles him to the concession of protective/enabling bail particularly so when he has been guilty of with-holding the facts and contending that he has come to know of his nomination in the delay FIR only during arguments in the habeas corpus matter. The petition is liable to be dismissed and it is accordingly dismissed. 6. As requested by the learned counsel for the petitioner, the S.H.O. shall first get the petitioner Abbas Ali medically examined as and when he is apprehended and he shall not be subjected to third rate methods/torture. (MYFK) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 1380 Present: DR. GHOUS MUHAMMAD, J. HAJI alias MUHAMMAD RAFIQ-Appellant. versus STATE-Respondent Crl. Appeal No. 136/1995, accepted on 21.4.1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- S. 342-After recording statement u/s 342 Cr.P.C. appellant engaged another advocate-It is contended by learned counsel for appellant that newly engaged advocate was neither instructed by appellant to make statement (undersigned counsel does not want to examine accused on oath as defence Witness) nor he obtained his signature on said statement before submitting same in courtWith the result appellant has been condemned unheard as he was not given any opportunity to examine himself on oath or to produce his evidence in defence-Held : Denial of this opportunity amounts to denial of fair trial-Held further : It is not a mere irregularity but an illegality which is not curable u/s 537 Cr.P.C. Case remanded. [Pp. 1381 & 1382] A, B, C & E (ii) Words and Phrases- -"Fair trial." The term 'fair trial' has been variously defmed-A fair trial is a legal trial; one conducted according to rules of common law except in so far as it has been changed by statute; one where accused's legal rights are safeguarded and respected--A fair trial is a proceeding which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial-A fair trial is that which is such in contemplation of law, namely, that which law secures to party, and a fair trial before an impartial jury means one where jurors are entirely indifferent between parties- Necessary factors in a fair trial are an adequate hearing and an impartial tribunal, free from any interest, bias, or prejudiceA fair trial is one likely to accomplish full justice within human limitations-" (Corpus Juris Secundum) (vd. 88 C.J.S. ed. 1955 p. 88). [P. 1382] D Mr. Sardar M. Ishaquc, Advocate for Appellant Mr. Agha Zaftr, Advocate for State. Date of hearing : 21.4.1997. judgment This appeal is directed against the judgment dated 7.8.1995 passed in Criminal Case No. 388 of 1994 by the learned Sessions Judge Karachi West. The appellant was convicted under section 320 PPC and sentenced to suffer R.I. for five years and to pay compensation amounting to Rs. 40,000/- to the heirs of the deceased or in default to under-go R.I. for six more months. Vide report No. 16 it was reported by HC Muhammad Afzal of police control on 12.7.1994 that MLO Dr. Kaleem of Abbas! Shaheed Hospital had reported that once person namely Muhammad Taj son of Agha Khan resident of B-309 Gulshan-e-Ghazi met with an accident at Shah Paracha chowk and his dead body was brought to the hospital his brother Ghustseeb Khan. Subsequently, after investigation. A case was challaned and the appellant was tried and convicted as mentioned above. I have heard Mr. Sardar M. Ishaque learned counsel for the ppellant and Mr. Agha Zafir learned counsel for the State and have perused the record. At they very outset learned counsel for the appellant contended that appellants statement under section 342 Cr.P.C. was recorded on 15.5.1995 and he referred to the following :-- "Q. Do you want to examine yourself on oath? A. Yes Sir. Q. Do you want to lead defence? A. Yes Sir." It was further pointed out by the learned counsel for the appellant that after recording of his statement under section 342 Cr.P.C. the appellant engaged another advocate who submitted the following statement on 6.6.1995. "It is prayed on behalf of the accused above named that this Hon'ble Court be pleased to bring on record or this statement that under-signed counsel doesn't want examine the accused on oath as defence witness." It is contended by the learned counsel for the appellant that newly engaged advoca o v,as nc:?.hc" i:i" t! noted by the appellant to make the above stat<:f:K!5' - : "^nature on the said statement before submiiui io ,vith the result the appellant has been condemned unheard as he was not given any opportunity to examine himself on oath or to produce his evidence in defence. Learned counsel for the State frankly conceded that the appellant was denied a fair trial. There is considerable force in the above submissions of the learned counsel for the appellant. It is pertinent to note that in the first instance the newly engaged advocate before submitting the statement dated 6.6.1995 should have obtained signature of the appellant or he should have mentioned that the statement was being submitted under instructions from the appellant. The record shows that the appellant had signed all the relevant papers in Urdu which indicate that he is not conversant with English language and it appears that his learned counsel did not explain to him the implication of the said statement. Notwithstanding this aspect, even assuming for the sake of argument that the statement made by the learned counsel is valid, the fact remains that the appellant in response to question No. 6 had given an affirmative answer as he wanted to produce evidence in defence. Denial of this opportunity amounts to denied of fair trial. The concept of fair trial has been very aptly dilated upon as under :-- "Fair trial." The term 'fair trial' has been variously defined. A fair trial is a legal trial; one conducted according to the rules of common law except in so far as it has been changed by statute; one where the accused's legal rights are safeguarded and respected. A fair trial is a proceeding which hears before it condemns, which proceeds on inquiry, and renders judgment only after trial. A fair trial is that which is such in contemplation of law, namely, that which the law secures to the party, and a fair trial before an impartial jury means one where the jurors are entirely indifferent between the parties. The necessary factors in a fair trial are an adequate hearing and an impartial tribunal, free from any interest, bias, or prejudice. A fair trial is one likely to accomplish full justice within human limitations." (Corpus Juris Secudum) (vd. 88 C.J.S. ed, 1955 p. 88). In such circumstances in my humble view it is not a mere irregularity but an illegality which is not curable under section 537 Cr.P.C. Therefore the impugned judgment is not sustainable in law which is set aside. The case thus is remanded back to the learned trial court. However, in order to set the record straight it is directed, that the statement of the accused under section 342 Cr.P.C. be recorded afresh and retrial should commence from this stage. Thereafter the matter may be disposed off according to law. The appellant is on bail. He shall continue to remain on same bail till his appearance before the learned trial court. The appeal stands disposed off in the above terms. (K.K.F.) Case remanded.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1383 Present: MIAN NAZIR AKHTAR, J. BASHIR-Petitioner versus STATE-Respondent Crl. Revision No. 499 of 1994, accepted on 5-6-1997. Criminal Procedure Code, 1898 (V of 1898)-- -Ss. 439, 403, Constitution of Pakistan, 1973 Article 13 read with Pakistan Penal Code Ss. 302, 319, 338 and S. 13 of Arms Ordinance, 1965- Submission of challan u/s 319 PPC-Filing of private complaint u/s 302 thereafterConclusion of trial in private complaintApplication for framing a separate charge u/s 319 PPC (challan case)-Dismissal of- Challenge to-There is a private complaint case u/s 302 PPC apart from challan case u/s 319 PPC-Trial in complaint case has been concluded and if petitioner is convicted for offence u/s 302 PPC, State will not be interested to prosecute challan case-Conversely in case of acquittal in complaint case, there is every likelihood of second trial for offence u/s 319 PPC which be violative of provisions of Article 13 of constitution and section 403 Cr.P.C.-Trial Court was directed to commence proceedings in challan case u/s 319 PPC, record evidence of parties and thereafter decide two cases simultaneously so as to avoid contradictory judgments. [P. 1386] A & B PLJ 1992 Cr. C. Lah. 197, 1991 SCMR 1008 ref. Mr. M. Asghar Rokhari, Advocate for Petitioner. Malik Muhammad Aslam, Advocate for State. Ch. Ghulam Hussain, Advocate for Respondent No. 2. Date of hearing : 17-2-1997. judgment Through this revision petition the petitioner has challenged order dated 3.11.1994 whereby the petitioner's application for framing a separate charge u/S. 319 cf the PPC and recording evidence in relation thereto was dismissed. 2. Briefly stated the facts of the case are that on a report lodged by Muhammad Akram son of Rab Nawaz a case was registered against the petitioner for an offence u/S. 338 of the PPC vide FIR No. 161 dated 18.10.1992 read with Section 13 of the Arms Ordinance. After completing the investigation, the police submitted challan against the petitioner u/S. 319 of the PPC in the Court of Illaqa Magistrate. The challan was subsequently forwarded to the Sessions Court for trial. The complainant did not feel satisfied with the police investigation and filed a private complaint u/S. 302 of the PPC against the petitioner on 20.12.1992. The same was also sent to the Court of learned Sessions Judge for trial. The trial court has almost concluded the trial in the private complaint u/S. 302 of the PPC and only arguments of the learned counsel for the parties have to be heard. 3. The learned counsel for the petitioner urged that the offence u/S. 319 of the PPC is distinct one for which separate trial has to take place as per the provisions of Section 233 of the Cr.P.C; that in case the petitioner is convicted u/S. 302 of the PPC in the complaint case then the challan case may be v/ithdrawn by the prosecution but if he is acquitted then the prosecution would press for the petitioner's trial u/S. 319 of the PPC which would be violative of the rule of double jeopardy embodied u/S. 403 of the Cr.P.C; that the rule laid down in the case of "Nur Elahi vs. The. State etc." (PLD 1966 SC 708) cannot be made applicable in the present case because in that case the offence was the same i.e. 302 the PPC but there were two sets of accused persons which nessitated institution of a private complaint and that in the said factual context it was ordered that, the complaint case be tried first leaving it open to the State either to withdraw the challan case or pursue, if need be. 4. On the other hand, learned counsel for the respondent urged that the offence u/S. 319 of the PPC was a lesser one and while trying the case u/S. 302 of the PPC the Court was competent to convict the accused u/S. 319 of the PPC even without framing a separate charge. In support of his contention, he placed reliance on the judgment in the cases of'"Mushtaq Ahmad vs. The State" (PLJ 1992 Cr.C. (Lahore) 197) and "State vs. Hadi Bakhsh" (1981 SCMR 1008). 5. There is weight in the argument raised by the petitioner's learned counsel that in case the petitioner is acquitted in the complaint case u/S. 302 of the PPC then the prosecution would press the challan case and the petitioner's second trial would commence in respect of offence u/S. 319 of he PPC which would offend against the provisions of section 403 of the r.P.C. Had there been no challan case u/S. 319 of the PPC or had it been withdrawn then it might have been possible to say that while trying the case u/S. 302 of the PPC, the Court could have acquitted the accused u/S. 302 of the PPC and convicted him u/S. 319 of the PPC as it is a lesser offence. The offences u/S. 302 and 319 of the PPC are essentially "murder" though the nature of each offence changes of the consideration whether it was deliberate and intentional or unintentional one resulting from mistake of act or fact. Therefore, in a case in which there is no separate challan u/S. 319 of the PPC, the Court while trying the case for offence u/s 302 of the PPC can convict the accused u/S. 319 of the PPC even without framing a separate charge as the said offence is of a lesser gravity. This view finds support from he judgments in the cases of Hadi Bakhsh and Mushtaq Ahmad, relied upon by the respondent's learned counsel. In Hadi Bakhsh's case the principle of double jeopardy embodied in the provisions of Section 403 of the Cr.P.C. and Article 13 of the Constitution of Pakistan was discussed and applied to uphold dismissal of the State appeal filed against acquittal of the accused u/s 302 of the PPC as he was already convicted u/s 304-A of the PPC. Hadi Bakhsh accused was tried and charged for an offence u/S. 302 of the PPC but the Court convicted him u/S. 304-A of the PPC on the finding that although the gun was fired by him, he had no intention of firing at the deceased or the other persons injured in the occurrence. The convict preferred an appeal in the High Court of West Pakistan which was dismissed with the observation that the trial court had given very flimsy ground, in fact, no ground at all for reducing the offence from 302 to 304-A of the PPC. In view of the said observation, the State preferred an appeal against acquittal of the accused on the charge of murder but the said appeal was dismissed by the High Court of West; Pakistan with the following observation:- "One of the basic principles of Criminal jurisprudence is embodied in the ancient maxim "Ne.mo debet bis puniri prouno delicto" that is to say that no one ought to be punished twice for one offence". The judgment of the High Court, was upheld by the Hon'ble Supreme Court, The Court was pleased to hold :-- "Whether the respondent's acquittal on the charge of murder be right or wrong, there has to be an end to litigation in eveiy legal system, and in the instant case, on the dismissal of the respondent's appeal by the High Court, his acquittal on the charge of murder by a competent Court became final. It is true that the learned Single Judge, by whose judgment this acquittal became final, had misgivings about the judgment which he was upholding. But, he had the power to prevent that verdict from becoming final by adjourning the hearing of the appeal before him order to enable the State to decide wether it should file an appeal against the respondent's acquittal on the charge of murder. And, as I will presently show, this is precisely what Munir, C.J., had done in Sultan Mahmood's appeal when this appeal had come up for hearing before him in the Lahore High Court. But as the learned Single Judge did not follow this precedent, the result was that the judgment of the Sessions Court acquitting the respondent on the charge of murder became final, and it cannot be re-opened on the principle ofresjudicata. Additionally, in my humble opinion, it would be shocking to the judicial conscience to tiy a man for the second time for the same offence and that is what would happen if we allow this appeal. I also venture to think that a violation of this rule about double jeopardy would be shocking to the public conscience and that is why Article 13 of the present Constitution prescribes that "no person shall be prosecuted or punished for the same offence more than once." This provision is of course not available to the respondent, but this Article only embodies the maxim "Nemo debct bis vcxari pro una et eadem causa, on which the learned Judges relied. And, as observed by Broom (Legal Maxims, tenth edition, page 223) this maxim "expresses a great fundamental rule of our criminal law, which forbids that a man should be put in jeopardy twice for one and the same offence. It is the foundation of the special pleas of autrefois acquit and autrefois convict. When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in bar of a subsequent prosecution for the same offence, whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or to the consequence of the offence." In Mushtaq Ahmad's case, the accused was charged for offence u/S. 302 of the PPC but in view of the material brought on the record was convicted for the lesser offence u/S. 304-A of the PPC. His appeal was dismissed and his conviction u/S. 304-A of the PPC maintained by this Court. 6. In the present case, apart from the private complaint u/S. 302 of the PPC, there is a separate challan case u/S. 319 of the PPC. As mentioned above, the trial in the complaint case has almost concluded and if the petitioner is convicted for offence u/S. 302 of the PPC, the State obviously be not interested to prosecute the challan case u/S. 319 of the PPC. Conversely in case of acquittal of the petitioner for offence u/S. 302 of the PPC there is A eveiy likelihood of the second trial for offence u/S. 319 of the PPC which would be violative of the provisions of Article 13 of the Constitution of Pakistan and Section 403 of the Cr.P.C. Therefore, it would be in the fitness of things to keep the complaint case pending and to direct the trial court to take up the challan case at this stage and then decide both the cases simultaneously. 7. For the foregoing reason, the revision petition is accepted and the trial court is directed to commence proceedings in the challan case u/S. 319 dof PPC, record evidence of the parties and thereafter decide the two cases simultaneously so as to avoid two contradictory judgments. (MYFK) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Karachi) 1387 (DB) Present : KAMAL MANSUR ALAM AND ZAFAR HADI SHAH, JJ. FARHAN IQBAL-Applicant versus STATE-Respondent Crl. B. Appli. No. 618 of 1996, accepted on 6.5.1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Medical ground (epilepsy and ulcer of stomach)-Offence u/S.s. 302/324/353/34 read 13(d) West Pakistan Arms Ordinance 1965--Benefit of bail on medical ground would not only be available to an accused whose sickness is such that his continued detention in jail would be hazardous to his life but also to person who is afflicted with sickness which cannot properly treated within premises of jail and requirers speci lised treatment and his detention in jail is likely to affect his capacity-Jail medical officer has himself reported that proper facilities are not available in jail for treatment of diseaseHeld : Case of applicant covered by criteria laid down by Supreme Court for grant of bail on medical ground-Bail granted. [P. 1389] A 1978 SCMR 191 ref. Mr. Shaukat Hussain Zubedi, Advocate for Applicant. Mr. Habib Ahmad, AAG with Shaikh Aziz-ur-Rehman, Advocate for State. Date of hearing : 6.5.1997. order By this order we propose to dispose of Criminal Bail Applications No. 618/96, 619/96 and 620/96 all filed on behalf of applicant Farhan Iqbal seeking bail in three different but interlinked cases arising out of FIR Nos. 122/95, 123/95 and 125/95 all of Police Station Baloch Colony for the offence under sections 302/324 PPC, sections 353/34 PPC and Section 13(d) of the Arms Ordinance respectively. In the first FIR name of none of the accused is mentioned. The prosecution case as disclosed in the three FIRs is that some persons entered in the house of the sister-in-law of Hassan Kamran, the complainant in FIR No. 122 of 1995, situated in PECH Society and killed two persons and injured several others. The intruders escaped from the back door of the house but as the complainant Hassan Kamran had by that time reached the house alongwith the Police Mobile, they were chased by the police and in the resultant encounter with the police two of the accused were injured. The police succeeded in arresting four accused, including the applicant, and from the applicant a TT Pistol was recovered. As in all the three cases bail is being sought on the ground of sickness, the applicant was examined by the Special Medical Board and Neuro Physician on the direction of this Court and their report too is on the record. In support of his case, Mr. Shaukat Hussain Zubedi, the learned counsel for the applicant places reliance on the medical report of the Jail Medical Officer and few others from the Neuro Physician and the Special Medical Board constituted to examine the applicant. According to Jail Medical Officer's report, the applicant is suffering from Epilepsy and Ulcer of Stomach and requires continuous treatment but due to non-availability of proper facilities in the jail hospital his illness was ^likely to aggrevate if he remained in jail. In one of the reports from the Special Medical Board, it has been recommended that, "The Board is of the opinion that accused Farhan Iqbal son of Muhammad Iqbal may be shifted to place where his medical condition is well attended and properly managed". The last report from the Neuro Physician shows that the applicant, is suffering from epilepsy which is for the time being under control by daily does of 800 mg of Carbomazepine (Tegretol) and that he needs estimation of blood level for the medicine; it also appears from the report that although the illness is not likely to be life threatening but it requires constant medication. The illness causes periodical fits resulting in loss of consciousness, loss of memory, stiffening of limbs, frothing from mouth etc. It is argued by the applicant's counsel that the applicant needs constant care and regulation of medicine does which is not possible in the jail. He submits that when the applicant suffers from fits he requires prompt and appropriate medical attention which too is not available in jail as is apparent from the report of its Medical Officer. Mr. Habib Ahmed, AAG, opposes the bail application on the ground that the disease, according to the report, was not life threatening and therefore the applicant can take medicine while in jail too. He submits that it is only when the ailment is detrimental to life that the benefit of bail on medical ground can be allowed. He places reliance on the case of Malik Muhammad Yousufullah Khan v. The State and another (PLD 1995 SC 58). The relevant observation to which reference is made is at page 65 of the report and reads as follows :-- "The correct criteria for grant of bail to an accused in a nonbailable case, on medical ground, in our view, would be that the sickness or ailment with which the accused is suffering is such that it cannot be properly treated within the premises of jail and that some specialised treatment is needed and his continued detention in jail is likely to affect his capacity or is hazardous to his life." It appears from the above observation that the benefit of bail on medical ground would not only be available to an accused whose sickness is such that his continued detention in jail would be hazardous to his life but also lo person who is afflicted with sickness which cannot be properly treated within the premises of jail and requires specialised treatment and his detention in jail is likely to affect his capacity. In the present case the Jail Medical Officer has himself reported that proper facilities are not available in jail for the treatment of the disease with which the applicant is suffering. Having regard to the nature of applicant's sickness it would seem that his case would be covered by the criteria laid down by the Supreme Court for the grant of bail on medical ground. In this regard reference may also be made to the case ofBanaras v. The State (1978 SCMR 191). In that case, like ' in the present, the accused was suffering from epilepsy and there too, as here, the bail was opposed on the ground that he was receiving treatment in Jail Hospital. Repelling the contention the Court granted bail to the accused. The relevant portion of the order is as follows :-- "Mr. Zahoorul Haq, the learned Advocate General, Sindh as admitted that the appellant is a sick person but he has submitted that he is being treated in the Jail Hospital properly and is there since January 1978. The appellant was examined by Dr. K. Zaki Hasan, Professor of Neurology, JPMC, Karachi and Dr. Akhtar Ahmed, Assistant Professor of Neurology, Civil Hospital, Karachi. They have also found him suffering from idiopathic epilepsy. Their-recommendation is that if proper medicines are supplied to him in the hospital he may be allowed to remain there. After hearing the learned counsel for the parties, we are of the opinion that the appellant is suffering form a serious disease and he cannot have treatment of his choice in the Jail Hospital. Besides fits occur in the disease from which the appellant is suffering, and it will be difficult for the Jail authorities to look after him." For the above reasons, in our view a case for the grant of bail to the applicant on medical ground has been made out. We accordingly grant bail to the applicant in the aforesaid three cases arising out of FIR Nos. 122/95, 123/95 and 125/95 on the applicant furnishing in each case two sureties of Rs. 2,50,000/- (Rupees two lac fifty thousand) each and P.R. Bond in the like sum to the satisfaction of the Nazir of this Court. (K.K.F.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1390 Present: ghulam sarwar sheikh, J. WALAYAT-Petitioner versus STATE-Respondent Crl. Appeal No. 31/93 partly accepted on 30.7.1994. Pakistan Penal Code, 1860 (XLV of 1860)-- S. 302-Murder--Offence of--Conviction for-Challenge to-Grave and sudden provocation-Ground of-Whether case of appellant falls within ambit and compass of section 302(c), or Section 302 (b) under which appellant stands convicted and sentenced-Question of-Provisions of Sec tion 302 (c) are attracted in cases of "grave and sudden provocation"- Held : Case of appellant squarely fell under section 302(c) P.P.C. and was not covered by section 302(b) PPC-Appeal partly accepted. [P. 1392] A. B & C Asghar Alt Gill, Advocate for appellant. Bashir Ahmad Baig, Advocate for State. Date of hearing : 30.7.1997. judgment Appellant Walayat and Falak Sher were charged, for, in furtherance of their common intention, having caused intentional murder of Mst. Shamim wife of afore-said Falak Sher by inflicting Toka blows upon her person at about 7.00 A.M. on 17.11.1991 in Chak No. 283-GB, Tehsil Jaranwala, District Faisalabad falling within the area of Police Station, Satiana, while Shahadat and Mian Khan their co-accused, for having abetted the commission of offence. 2. Manner and mode of commission of crime as set up by the prosecution stands reflected by, unfolded in and gleaned out, of statement Ex. PC made by Alam Sher, brother of the deceased and reiterated by him at the trial as PW.7. 3. In his statement under Section 342 Cr.P.C., the appellant confessed to have caused the death of Mst. Shamim, but, claimed to have done the same under the sting and impulse of grave and sudden provocation. To question No. 9, therein, he maintained that :- "On the night of occurrence, I and my brother Falak Sher were present at our cattle shed. I was sent by my brother to bring the she-ass which was tethered in our house. When I reached in my linu.se, I saw Mst. Shamim deceased and one Rana alias Noor Samad a co-villager lying on a cot in the go for peeling sugarcane. On seeing the deceased in a compromising position I was suddenly provoked and in that situation I lost control of myself and caused some injuries to Mst. Shamim while Rana aforementioned succeeded in running away from the spot. Neither Falak Sher nor any other person was present at the spot. This occurrence occurred at about fajar prayer time and no one had seen it. After causing injuries I went to the village Lambardar and informed him what had happened. He made an announcement in the village Mosque whereupon all the relatives of Mst. Shamim deceased assembled and after consultation and preliminary inquiry by the police the present story of murder was cooked-up. I appeared before the police on the same day and also produced the toka." 4. Being two version case and placing both of it in juxtaposition, learned trial Court, on culmination of the trial, after passing usual phases, aarrived at the following conclusions :-- "When Mst. Shamim deceased had come to the house of her husband Falaksher she allegedly was murdered by Falaksher and Walayat accused at the abetment and conspiracy of Shahdat and Mian Khan abovesaid accused. The version made out by Walayat accused is that he had witnessed his sister-in-law Mst. Shamim deceased in a compromising position with one Rana a//as Noor Samand son of Shaman and under grave and sudden provocation and committed her murder. This version no doubt has been raised for the first time before this Court, yet, finds support from the trend of cross-examination of all the PWs and the report of the Chemical Examiner Ex. P.K that the vaginal swabs of Mst. Shamim deceased taken on 17.11.1991 were found to be stained with semen. No evidence during the course of trial has been led before me that on the abetment of Shahadat and Mian Khan accused, this occurrence took place. No active role is attributed to Falaksher. The recovery of weapon of offence has been effected from Walayat accused. There is statement by PW4 Arshad that the murder took place at Fajar Prayer time for which an announcement might had been in the Mosque leads to the conclusion that the version made out by Walayat accused is plausible and believable. Hence he is convicted and sentenced under section 302(b) PPC to life imprisonment. He is also directed to make payment of compensation under section 544-A Cr.P.C. amounting to Rs. 20,000/- to the legal heirs of Mst. Shahmim, and in default of payment of compensation he shall undergo 6 months R.I. He is present in court in custody. He be sent to Jail to suffer the imprisonment. As the prosecution has failed to prove the charge against all other accused, they are given benefit of doubt and are acquitted of the charge. Mian Khan and Shahadat accused are on bail. They are discharged of their bail bonds. Falaksher accused is in custody. He be set at liberty if not required in any other case. Toka P. 5 be confiscated in favour of the State." 5. If wake thereof, details of autopsy, injuries, recoveries and other factors need not be recapitulated particularly in the absence of any commotion by the complainant and appeal against acquitted of co-accused, as he matter stands narrowed and cut down to limited propositions; if the case falls within the ambit and compass of Section 302 (c), or Section 302 (b) PPG, under which the appellant stands convicted and sentenced, against which he has preferred this appeal. Obviously, quantum of sentence is also involved. 6. Matter stands at rest by illuminating observations made in Bashir Ahmad and two others vs. The State (1995 MLR 152 Lahore ). The State versus Muhammad Hani f and others (1992 SCMR 201), Muhammad Ibrahim vs. Sufi Abdul Razzaq and others (1997 P.Cr.L.J. 263 > and Ali Muhammad vs. Muhammad and another (PLD 1996 S.C. 274) wherein, it has been enunciated conclusively that provisions of Section 302(c) only are attracted in cases of "grave and sudden provocation". 7. Be that as it may, where prosecution evidence stands rejected in its totality, statement of accused has to be accepted in its entirety without scrutiny as held consistently by august Supreme Court. In the case reported in PLD 1952 F.C.I, it has been laid down that where the conviction is based entirely on statement of accused, same should be taken into consideration in its totality. As a necessaiy corollary, the case of the appellant squarely fell under Section 302(c) P.P.C. and was not covered by Section 302(b) P.P.C. as construed and held by learned trial Court. Fallacy in this behalf is too apparent to dilate it further. 8. Resultantly appeal is partly accepted, conviction of appellant is altered and converted from Section 302(b) to Section 302(c) PPC and sentence is reduced to seven years R.I. I do not see any legal or moral compulsion to direct payment of compensation to legal heirs of deceased in asmuch as awarding of compensation to them may tantamount to reward for act of adultery committed by their predecessor-in-interest. The appellant shall also be entitled to the benefit, of provisions of Section 382(B) Cr.P.C. (AAJS) Appeal partly accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1393 Present: zafar pasha chaudhry, J. MUHAMMAD YAQUB-Petitioner versus STATE-Respondent Crl. Misc. No. 3592/B/1997, accepted on 13.8.1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Further inquiry-Case of- Offence u/S. 3/4 prohibition (Enforcement of Hadd) Order IV of 1979 read with Anti Narcotic Substances Act, 1997 Section 51 and 7-Two ilogram heroin-Recovery of-Two senior police officers (DSPs) observed in zimni that petitioner was not involved in the commission of offence- Another DSP (third) held all three accused guilty meaning thereby that etitioner was also found to be guilty-Petitioner has been placed in column No. 2 meaning thereby he has not been challaned-Held : Offence under Anti-Narcotic Substances Act, 1997 have been made non- bailable by section 51, yet offence which is though punishable u/S. 9, bail can be granted on finding that prima facie an accused person's involvement appears to be extremely doubtful--Held further : Due to difference of opinion in police officers case of petitioner becomes that of further inquiry-Petition accepted. [P. 1395] A, B & C Mr. M. Asghar Khan Rokhari, Advocate for Petitioner. Sarfraz Hussain, Advocate for State. Date of hearing : 13.8.1997. order The petitioner is involved as accused person in case F.I.R. No. 14 of 1997 dated 18.2.1997 registered with Police Station Paikhel District Mianwali under sections 3/4 of the Prohibition (Enforcement of Hadd) Order IV of 1979. A new enactment titled as Anti Narcotics Substances Act, 1997 has been enforced. Section 51 deals with the grant of bails which is ^- reproduced as under :-- "51 .... (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2.) ... In the case of other offences punishable under this Act, bail shall not be normally granted unless the court is of the opinion that it is a fit case, for the grant of bail and against the security of a substantial amount." Section 51 is to be read alongwith Section 9 which provides punishment for contravention of Sections 6, 7 and 8. The same is also reproduced as under :-- "9, Punishment for contravention of Sections 7 and 8. Whoever contravenes the provisions of sections fi, 7 or S shall be punishable with : (a) imprisonment which may extend to two years or wiih fine or with both, if the quantity of the narcotic dm;:. psycluHropic substance or controlled substance is <: r.e hundred grams or less: ib) imprisonment which may extend to seven yearj.: \ shall also be liable to fine, if the quantity :.t narcotic drug, psychotropic substance or centrei;~;i substance exceeds one hundred grants but d>'-e? r. ' exceed one kilo gram; (c death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which 'may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b) Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life." While reading section 51(2) alongwith Section 9(b) bail is not to be normally granted to an accused person who is involved in any offence prescribed by this Act. In view of the prohibition contained in the statute the court has to be extremely caucious and careful while considering the question of bail to be granted to an accused person. According to the allegation it is alleged that Truck No. 3377-PRG was raised and during the raid two kilo grams of heroin was found. According to the allegation in the FIR one kilo gram of heroin belonged to the petitioner i.e. Muhammad Yaqoob and one kilo gram belonged to Abdur Rehman. Consequently case was registered against three persons namely Muhammad Yaqoob, Abdur Rehman and Muhammad Shafi. Muhammad Yaqoob was the driver and Muhammad Shafi was conductor the allegation contained in the FIR concession of bail could not be extended to the petitioner. However, it has been argued lay the learned counsel that investigation was conducted by two senior police officers namely Rana Qamar DSP Musakhel and Muhammad Yaqoob DSP CIA. Both the officers observed that the petitioner was not involved in the commission of offence. He has only allowed lift to Abdur Rehman who is infact owner of the heroin taken into possession. On the contrary Muhammad Yar ASI present in court submitted that although in two investigations the petitioner was held innocent yet another DSP held all the three accused guilty meaning thereby that Muhammad Shan was also found to be guilty by him. 2. I have gone through the zimni and find that while submitting the challan the last zimni was recorded by Zawar SHO who took into account he entire record and the opinion recorded by the DSP. The petitioner has been placed in column No. 2 meaning thereby that he has not been challenged. As regards Mr. Asghar DSP he has drawn inference that all the accused were guilty due to the fact that why Abdur Rehman who was carrying heroin was permitted to board the truck of the petitioner. The learned counsel for the petitioner however explained that Abdur Rehman was sitting on the tool box. He was quite visible from outside. No attempt was made by Muhammad Yaqoob to hide Abdur Rehman in his truck. 3. It is true that offence under the Anti- Narcotic Substances Act, 1997 have been made non-bailable by section 51, yet offence which is though punishable u/S. 9, bail can be granted on finding thatprima facie an accused persons's involvement appears to be extremely doubtful. In the present case the police officer as well as the SI who submitted the challan have found the petitioner to be innocent. Although the opinion has been differed by Mr. Asghar Ali DSP yet the case against the petitioner becomes that of further enquiiy, therefore, the possibility cannot be ruled out that the petitioner Muhammad Yaqoob was not a partner of Abdur Rehman and he may not be aware that Abdur Rehman was carrying antinarcotic substance. He has been in the lock up since 18.2.97 but no progress whatsoever has been shown by the prosecution. 4. In view of these circumstances and the fact that the petitioner has been held to be innocent by the Investigating Agencies successively, this petition is allowed. The petitioner is admitted to bail on his furnishing bail bond in the sum of Rs. 1,00,000/- (Rs. one lac) with two sureties in the like amount to the satisfaction of the learned trial court, Mianwali. Substantial security has been sought in view of Section 51(2) of the Act. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1396 Present: dr. khalid ranjah, J. NIAZ-Appellant versus STATE-Respondent Crl. Appeal No. 61-J-94, accepted on 25-6-1997. (i) Administration of Justice-- Balance of probability may determine a civil Us but in no circumstances be equated with proof of guilt of an accused person-If criminal Us were to be decided simply on high probabilities, it, would set, at naught rule of benefit of doubt which has by now become deep rooted in our Corpus Juris and become dominant and pivotal feature of safe administration of justice. [P. 1404] B & C (ii) Motive- Expression "Motive" has not always been used in its correct sense namely emotion which could led to act in questionIt is not to be used interchangeably with intention or design as is often done-Mere emotion may or may not lead to commission of act in question but there is no reason why it should not be treated as one of circumstances of transaction provided it is sufficiently proximate in point of time and sequence- [P. 1402] A (iii) Words and Phrases-- "Doubt and reasonable doubt"-All sorts of doubt-fanciful, strange and baseless are hardly reasonable doubts, on the basis of which any benefit might flow or courts will take into consideration-Doubts which are real, genuine, well founded, which a normal rrian with normal intelligence in given circumstances would naturally harbour, are doubts that come within fold of "reasonable doubt" entitling one to benefit thereof. [P. 1405] D M/s Asghar All Cli. and Miss Friclka Ahmad Hassan, Advocate for Appellant. Kh. Shaukat All, Advocate for State. Dates of hearing : 24 & 25.6.1997. judgment Niaz Ahmed, appellant, has heen convicted and sentenced for the murder of Mst. Shazia and also for attempt to commit suicide 1 the learned Sessions Judge, Okara vide judgment dated 23.6.1994, as under :-- "Under section 302(b) to imprisonment, for life with a fine of Rs. 20.000/- in default whereof to serve further two years R.I. under section 325 PPG to one year S.I. with a fine of Rs 2, OOO/- in default to undergo further three months S.I. The sentences were ordered to run concurrently and the amount of fine, if realized, Rs. 20.000/- were ordered to be paid to 'the legal heirs of the deceased." 2. Law was put into motion against the appellant through FIR Ex. PE lodged by Muhammad Akram as PW. 4 at Police Station. Renala Khurd, 17 Kilometers from his village Chak. No. 7,/IAL on 28.7.1993 at 9.30 a.m. wherein he stated that his house was contiguous to that of Noor Din Chohan (father of the appellant) and they were on visiting terms. On the same day at about 8.00 a.m. his sister Mst. Shazia deceased aged about 17/18 years and his brother's wife Mst. Fatima (PW.5) had gone to ease themselves in the fields. He alongwith Ali Ahmed son of Farzand Ali and Ali Muhammad son f Hakim Din also followed for cutting fodder etc. from the fields. When they reached bamboo fields of Qasim Ali alias Sohna, they heard shrieks from the corner of Bamboo fields. On hearing which ran towards the spot and saw that Niaz Ahmed, appellant, armed with a Churri had accosted Mst. Shazia and landed chhuri blow on the front of her neck. As she fell down, he gave her yet another blow hitting her on the rear portion of her neck. Thereafter Niaz Ahmed, appellant, ran away, although, they tried to catch him. However, at a short distance in the same fields, he started causing injuries to himself on his neck. On receipt of injuries, Niaz Ahmed fell down bleedings from his wounds. On reverting back to Mst. Shazia they found that she had expired. He informed the village folk and many people including the relatives reached there. The motive for this occurrence according to first informant was that Niaz Ahmed wanted the hand of Mst. Shazia for marriage but he and his family wanted to many her in their own "Bradri" and this gave him cause of offence and he had murdered Mst. Shazia and caused injuries to himself with chhuri to take his own life and was lying in a injured condition in the Bamboo fields. The occurrence was witnessed apart from Muhammad Akram (PW.4) by Ms?. Fatima (PW.5) and Ali Muhammad (PW.6) as well as by Ali Ahmed (given up). 3. After recording the FIR at the Police Station, Naseer Ahmed, Inspector (PW.8) went to the spot where he prepared injury statement Ex. PG and inquest report Ex, J'H and sent the body for postmortem alongwith application Ex. PG/1 through Bashir Ahmed, Head constable. He collected the blood-stained earth from the spot where the body of Mst. Shazia was lying and sealed the same into a parcel and took into possession the same vide memo Ex. PA. He took into possession the last worn clothes of the deceased Ex. P2 to P6 vide memo Ex. PD and also prepared the rough site plan P] and got site plan Ex. PG prepared from Muhammad Din, Patwari (since dead). He arrested the accused/appellant on 8.8.1993 and effected the recovery of churri Ex. Pi from him on 11.8.1993 from the Bamboo field of Qasim Ali and took the same into possession vide memo Ex. PB and registered a separate case under section 13 of the Arms Ordinance No. XX of 1965 against the accused/appellant. The churri being blood stained was sent - to the laboratory alongwith blood stained earth. The report of the Chemical Examiner and Serologist both in respect of the chhuri and blood stained earth were positive. The appellant had been taken to District Headquarters Hospital, Okara in an injured condition by his father Noor Din on 28.7.1993 at 12.50 p.m. where from- he was discharged on 7.8.1993. The Investigating Officer collected the postmortem report of the deceased Ex. PC and the medical report of the accused/appellant Ex. PF and sent him up for trial in the Court of learned Sessions Judge, Okara. 4. Before the trial Court, injuries on the person of Ms?. Shazia were proven through Dr. Muhammad Saeed Sial, Medical Officer, DHQ Hospital, Okara (PW.2) who found the following injuries on her person :-- (1) An incised wound 2.5. c.m. x 1 x deep going on front and right side on base of neck just above right clavical. (2) An incised wound 2 c.m. x 1 c.m. on back and base and slightly left side of the neck. In the opinion of the Doctor, injury No. 1 alone was declared sufficient to cause death in the ordinary course of nature. 5. Dr. Mehr Irshad Ahmed, Medical Officer, DHQ Hospital, Okara PW.7) deposed about the injuries of the appellant as per his medico-legalreport recorded on 28.7.1993 at 12.15 p.m. which are as follows :- (1) An incised wound 3 x % c.m. x skin deep on right side of neck. (2) An incised wound 3 x 1 A c.m. skin deep on right side of neck 4 c.m. below injury No. 1. (3) Multiple incised wound on an area 7 c.m. x 1 c.m. each measuring 4 c.m. x % c.m. x skin deep on front and left side of neck. (4) An incised wound 2 x % c.m. x skin deep on left, side of neck. This witness had sent intimation about the same to Police Station, Saddar Renala Khurd at 12.50 p.m. In his report he had stated that there was possibility of injuries being self-inflicted. However, in his crossexamination he stated that his injuries could well nigh be homicidal as well. 6. The ocular account was furnished by Muhammad Akram, first informant as PW.4. He supported his version in the FIR. In crossexamination, he admitted that he and other two witnesses namely Ali Ahmad and Ali Muhammad (PW. 6) were in possession of the "daturs" and prior to this, had never gone together for cutting of fodder. According to him shrieks were heard from a distance of 1% acres. The occurrence was surrounded by Bamboo fields wherein bamboos were growing not so thick but certainly were fairly high. He and the witnesses had seen the accused/appellant causing injuries to the deceased from a distance of three furlongs. According to him, the entire village had seen the appellant inflicting injuries to the deceased and when they chased the accused/appellant he at a distance of 5/6 furlongs caused injuries to himself. He denied the suggestion that injuries on the person of the deceased had been caused 3 to 3^ hours after the infliction of injuries on the person of Mst. Shazia. He also denied the suggestion that, injuries to the accused/appellant had been caused by him and his nephew Ali Ahmed given up). He denied the suggestion that the illicit relation between Mst. Shazia and the appellant was a matter of public knowledge and that having seen them both together in the bamboo fields, they had murdered Mst. Shazia and latter on after treking down the appellant to his house caiised him injuries also. In his cross-examination, he conceded that, he had seen Niaz Ahmed, appellant, admitted in the Hospital when he accompanied by a constable had gone to collect body of Ms?. Shazia from mortuary at 5.00 p.m. Ali Muhammad PW-6 also supported the version in the FIR and proved the recovery of clothes of the deceased as well. In his cross-examination this witness also stated that he had never gone for cutting of fodder together with other witnesses prior to the present occurrence and that they were all in possession of "dalers." He was at a distance of two "kanals" at the time of hearing of the shriek and within two minutes reached the spot. The accused had caused injuries within the view of the residents of the village. He also denied the suggestion about the illicit relation of Mst. Shazia and Niaz accused being known in the village and that having seen them together in the bamboo ields Akrain and Ali Ahmad PWs had murdered her and about 3 to 3% hours thereafter had caused injuries to the accused at his house. He stated that blood had fallen at both places where Mst. Shazia had been murdered and also where Niaz accused inflicted injuries on his person and police collected the blood-stained earth from both the places. Mst. Fatima was produced by the prosecution as PW-5. She claimed that at about 8.00 a.m., she alongwith Mst. Shazia had gone to bamboo ields for ease themselves. Niaz accused came there armed with churri, he asked Mst. Shazia to contract, marriage with him and on her refusal, he threatened to murder her and a-.so to kill himself and then give her a churri blow on the front of the neck Mst. Shazia fell down and he gave another blow on the rear portion of her neck. According to her, the accused had also caused churri blows to himself at. some distance from them. When cross-examined, she conceded that the place of occurrence was surrounded by thick bamboos and the same were spread in the entire 'kills'. She had raised alarm about injuries inflicted on Mst. Shuzia and on her alarm, many of the co-villagers were attracted to the sot alongwith Ali Ahmed and Muhammad Akram PWs. They all had come after the death of Mst. Shazia. She further stated that Akram and Ali Ahmad PWs were not, in possession of "daters" when they saw them rather they were empty handed. The point of occurrence according, to her, was at a distance of 4 kanals from the "watt." of the village. She conceded that there was rumour in the village that Ms?. Shazia had illicit relations with Niaz accused. According to her, she and other PWs had not seen any person causing injuries to Niaz nor she or other PWs were aware as to when or where the injuries were caused to him. She, however, denied the suggestion that Akram and Ali Ahmad has caused injuries both to Mst. Shazia and Niaz accused. The recovery of blood-stained earth and chhuri were proved through PW-1 Muhammad Shafi, backed up by statement of Naseer Ahmad, Inspector (PW-8) who conceded that he was aware that the accused was injured and admitted in Civil Hospital Okara and that he had postponed his arrest till 8.8.1993. He denied having collected blood-stained earth from the place of injury of the accused and described the distance between two places where the injuries had been caused to Mst. Shazia and to the accused as about 10/11 yards. According to him, the bamboo trees where the occurrence took place were thick and substantively higher. It had also come to his knowledge during the investigation that the accused and Mst. Shazia deceased had illicit relations and this fact was also in the knowledge of the parents of the deceased as well as her brother. 7. The accused/appellant in a statement under section 342 Cr.P.C. denied the prosecution case and stated as follows :-- "I have been falsely involved in this case. Akram is real brother of Mst. Shazia, deceased, whereas Ali Ahmed PW is his nephew. They committed the murder of Ms?. Shazia and falsely involved me in this case. They had committed the murder of Mst. Shazia due to the suspicion that she had illicit relations with me. I and Mst. Shazia, deceased, were standing in the Bamboo field, where Akram and Ali Ahmed PWs armed with chhuri came there and on seeing us they murdered Mst. Shazia and tried to murder me also. I fled away from the spot. After 3/3^ hours they attacked me while I was present in my house and caused injuries on my person. My father Noor Din, my uncle Jamal Din and one Maqbool intervened and saved me from their hands. Mst. Fatima PW is the real sister-in-law of Muhammad Akram complainant. Due to this relation she has falsely deposed against me. Ali Muhammad PW had a grudge against me, so he has falsely deposed against me. The PWs have given false evidence. Actually Akram and Ali Ahmed PWS murdered Mst. Shazia and tried to save their own skin falsely involving me in this case with the connivance of local police." He also made a statement on oath in this behalf. 8. The trial Court after clue appraisal of evidence declined to rely on the recoveiy of chhuri as it had not been reliably proved that it had been sent to the Chemical Examiner intact. Its recoveiy was deemed doubtful also on account of the fact that it had been effected 13 days after the occurrence from the bamboo fields. Similarly the trial Court after due evaluation of the statements of Muhammad Akram (PW.4) and Ali Muhammad (PW.6) came to the conclusion that they were chance witnesses and had been excluded by Mst. Fatima (PW.5). The trial Court had held that Muhammad Akram (PW.4) and Ali Muhammad (PW.6) were not present at the spot, and had not seen the occurrence and had been introduced subsequently to support the prosecution case falsely heavily. However, the trial Court relied on the testimony of Mst. Fatima (PW.5) and reckoned here to be a straight forward and truthful witness. The trial Court rejected the plea of the accused/appellant and found him guilty both under sections 302 and 325 PPC fdr attempted suicide. 9. It was argued by the learned counsel for the appellant that Mst. Fatima could not be treated any better than the other eye-witnesses, largely so when the person who cited her as a witness had been held by the trial Court, as false and unreliable witness. With her sole testimony in the field, the injuries on the person of the accused/appellant remain unexplained for she says that neither she nor other witnesses saw as to when and where Niaz Ahmed, appellant, was injured. It is also urged that her statement disproved the motive set up by the prosecution and lends support to the version of the accused/appellant hearing on illicit relations between him and the deceased. l 10. According to the learned defence counsel the medical evidence PW. 7-Dr. Mehr Irshad Ahmed, lends support to the version of the appellant rather than the prosecution, in as much as he admits that the possibility of injuries being homicidal could not be ruled out. The contends that even the accused/appellant did not succeed in proving his version with equal probity as the prosecution, he is still entitled to the benefit of doubt. He as relied upon The Crown v. Abdul Ghani (PLD 1956 (W.P) Lahore 300) Habibullah and others v. The State (PLD 1969 SC 127) and Ata Muhammad and another v. The State (1995 SCMR 599). 11. The learned counsel for the State, on the other hand, supports the prosecution case and relies on the reasoning advanced by the trial Court. He seeks the maintainance of the conviction. 12. I have heard the learned counsel for the parties at a considerable length and have perused the record very minutely. 13. In view of the submissions made by the learned defence counsel and the learned State counsel what emerges on appraisal of evidence is that either the occurrence happened in the manner as urged by Mst. Fatima (PW.5) first informant PW. 4 and Ali Muhammad PW.6 having been disbelieved by the trial Court or as stated by the accused/appellant in his statement under section 342 Cr.P.C. supported by his statement on oath in his own defence. The motive set up by the prosecution seemingly has not been believed either by the trial Court, as reflected from the observations in Para-24 of the judgment, which read as under :-- "As per statement of Mst. Fatima which is supported by Naseer Ahmed, Inspector (PW.8) the accused and Mst. Shazia had illicit relations. Ms?. Fatima appears to have accompanied Mat. Shazia on the pretext of easing with a view to minimize the chance of meeting between the accused and Ms?. Shazia." The motive having not been established reacts on the prosecution case and at the minimum calls for a close scrutiny of the prosecution evidence. The expression "motive" has not always been used in its correct isense, namely the emotion which could have led to the act in question. It is I not to be used interchangeably with intention or design as is often done. /\ Mere emotions may or may not lead to the commission of the act in question I but there is no reason why it should not be treated as one of circumstances of the transaction provided it is sufficiently proximate in the point of time and sequence. In case like the one in hand, it. assumes importance to better appraise the evidence to determine the acceptability or otherwise of the prosecution story of which motive is an important constituent. The finding of the trial Court, as referred to above is rx fade more in line with the version of the accused/appellant than that of the prosecution. 14. The role of the Investigating Officer is also not above board as the trial Court had held that he stage managed the recovery of chhuri and in a way created false evidence. The Investigating Officer was all along aware from day one that accused/appellant was injured and lying admitted in the Hospital. The failure on his part to arrest him or depute guard over him is a pointer in the direction of his being cognizant, of the accused side of the story a circumstance which to leans in favour of version put. forth by the accused. 15. The admitted position is that, the entire occurrence entailing injuries of deceased and the accused/appellant took place in a thick bamboo field close to the village in the morning of 28.7.1993. According to the prosecution, the appellant after inflicting chhuri blows to the deceased on her refusal to many him, also injured himself with the same weapon in a bid to commit, suicide and that blood qua both lay at the respective places of their injuries in the bamboo field. 16. The accused/appellant, on the other hand, denied the story of seeking to marry the deceased. He rather maintained that he had an affair with her and same was known to the family. They were seen together in the bamboo field and the complainant party killed her in the bamboo field and while he managed to escape, he was tracked down to his house and attacked there latter, resulting in injuries on his neck. No blood stained earth was recovered from the places where the appellant allegedly fell injured in the bamboo field. The doctor i.e. PVV.7, who appeared to prove the injuries on the person of the appellant, states that he would not rule out the possibility of these injuries being homicidal in nature, although in the medico-legal report he stated that there was possibility of the injuries being self-inflicted. 17. The postmortem of the deceased took place on the same day at about 5.00 p.m. The report disclosed presence of postmortem staining at the dependent parts of the body and the time of injuries has been given as between 6-12 hours. The trial Court as expressed doubts also in respect of the proximity of timings of the FIR and that the occurrence. The presence of postmortem staining, the ^.oximate time between the injuries and postmortem and the story of deceased going to ease herself to the bamboo fields, made it seems that the occurrence took place earlier in the morning rather than at 8.00 or 8.30 a.m. as alleged by the prosecution. Both the two eye-witnesses (PWs 4 and 6) having been discarded by the learned trial Court, the injuries on the person of the accused/appellant are left unexplained by Mst. Fatima (PW.5), the only eye-witness sought to be relied upon by the trial Court. 18. This case presents two versions. The occurrence being .susceptible of two explanations, even if one may not throw the prosecution story by the board and treat the same as probable; still the circumstances of the case when examined in the back drop of our social norms, the finding in respect of motive by the trial Court, the time and place of occurrence, injuries on the person of the accused/appellant, the version of the accused is endered equally probable. In such an event one may not have to venture and decree as to which of two versions is more probable as benefit of doubt in such a situation would necessarily accrue to the appellant. This principle is well nigh deducible from the following provisions of Qanun-e-Shahadat Order, 1984: Section 2 Clause (4)(5) and (6) Clause (4) A fact is said to be PROVED when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a PRUDENT MAN ought, under the circumstances of the particular case, to act upon the supposition that it exists. Clause (5) A fact is said to be DISPROVED when, after considering the matters before it. the Court either believes that it does not exist, or considers its non-existence so probable that, a PRUDENT MAN ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Clause (6) A fact is said not to be. proved when it is neither proved nor disproved. The above provisions of Qanun-e-Shahadat Order, 1984 provide adequate guide lines to the Courts by defining the scope of the word "Proved." This definition does not in any manner indicate that a Court may ignore all doubts regarding existence of a fact if it considers its existence of a fact if it considers its existence more probable or likely. The said provisions of Qariun-e-Shahadat, do not lay down a comparative standard of probability. It certainly enjoins that the judgment regarding probability must be that of a prudent man acting with due regard to all circumstances of the case before him. The balance of probability may determine a civil Us but in no circumstance be equated with PROOF OF GUILT of an accused person. 19. Here question arises-will a "PRUDENT MAN' especially when he sits to administer justice hold a man guilty of a crime simply a balance of probabilities arising from the matter before him. Obviously there are certain rules of prudence which at a given time are clearly and unmistakably recognized by a particular society. Some of them have gained universal and eternal recognition. The rule of giving benefit of doubt to every personwhether in Court of law or in private life is one of such rules. A man is to be declared guilty only when his guilt has been clearly proved beyond doubt-in other words when he has been definitely "found out" i.e. the finding should rest surely and firmly on the evidence produced and plain and irresistible inference drawn therefrom. If criminal lis were to be decided simply on high probabilities above, it would set at naught the rule of benefit of doubt which has by now become deep rooted in our Corpus Juris and become dominent and pivotal feature of safe administration of justice. The rule of giving benefit of doubt to an accused is jealously guarded in tents of Islam as well. For illustration sake it may be cited with and von log from TIRMIZI that: "Whenever possible, save the Muslims from the sentence (punishment). Do it, whenever you find any loophole; because it is better for the Imam (Judge) to err in acquittal than in conviction. Similarly from IBN-E-MAJA one may refer that.; "If there is any possible way of doing it. save God's creatures from conviction and punishment." and MASNAD-ABI-HANIFA too provides that; "Ward off punishment with doubts i.e. if any doubt arises, avoid conviction." Likewise in a long letter to Malik Ashtar, the Governor of Egypt, Hazrat Ali, the then Caliph of Islam wrote- "Select for your Chief Judge....one who will not decide before knowing full facts. One who will weigh with care every attendant doubt and pronounce a clear verdict after taking eveiy thing into full consideration." 20. Needless to reiterate that benefit of doubt is a salutary principle of criminal law to further justice. It is the royal road for those who seek to dispense with even handed justice with boldness and courage; but a cloak to shirkers who seek the path of least resistance; "Benefit of doubt" has nowhere been defined; nor is it capable of an accurate scientific definition. All sorts of doubt-fanciful, strange arid baseless are hardly reasonably doubts, on the basis of which any benefit might flow-or Courts will take into consideration. Doubts which are real, genuine, well founded, which a normal man with normal intelligence in a given circumstances would naturally harbour, are doubts that come within the fold of "reasonable doubt" entitling one to the benefit thereof. Such doubts are normal in a norrifal man which should never be equated with the abnormal fear of an imbecile, indecisive or a timid fellow. Very aptly an eminent Judge as expressed it thus:" it is not a , doubt of a vacillating mind that has no normal courage to decide but shelters itself in a vain and idle scepticism. State v. Sarangadhar Bahi (1972 Cut. L.T. 734 at P. 744). 21. In short whether one were to apply the rule of "benefit of doubt" in the circumstances of this case referred to above, or to invoke the doctrine that where two versions or theories of an incident are brought before the Court, the one favouring the accused and more compatible with the defence should be accepted; in either event, appeal merits to be accepted. In the circumstances, the conviction of the appellant is set aside and he is directed to be released from jail if not required to be detained in any other case. (K.K.F.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1405 Present: SAJJAD AHMAD SlPRA, J. NADIR HAYAT and another-Appellants versus STATE-Respondent Crl. Appeal No. 639/96, accepted on 4.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- S. 302/34-Murder-Offence of-Coriviction for-Challenge to- Appreciation of evidenceNumerous improvements, evasion and outright mis-statements made by two witnesses in testimony before learned trial court, make them to be a totally unreliable if not downright dishonest witness, and pursuant thereto High Court is constrained to draw only conclusion possible to the effect that eye-witnesses had not witnessed occurrence, and that, therefore and it is held by ruling out of considera tion their testimony-Entire charge against all appellants fails for the lack of any evidence in support thereof-Appeal accented. .............................................................................................. rP.__14LQlA. Mr. Inayat Ullah Cheema, Senior Advocate Mr. Ijaz Hussain Batalvi, Senior Advocate and Mr. Kh. Sultan Ahmed, Senior Advocate for Appellants. Mr. Naveed Rasool Mirza, Addl. A.G. and Miss Yasrnin Sahgal, A.A.G. for State. Dates of hearing: 3 & 4.7.1997. judgment The present judgment shall also dispose of criminal Appeal No. 651/96 filed hy Rifat Hayat and Criminal Appeal No. 792/96 filed by Ghulam Dastgir-alongwith the present Criminal Appeal filed by Nadir Hayat Khan and Muhammad Sher, as all of them impugn the judgment dated 14.7.1996, whereby the learned Sessions Judge, Khushab, had convicted the appellants under sections 302/34 PPC and sentenced each of them to imprisonment for life with a fine of Rs. 10,000/- each or in default thereof to undergo further R.I. for two years, on two counts for having committed the murder of Naveed Ahmed and Muhammad Yaqub deceased. The sentences were, however, directed to run concurrently. Criminal Revision No. 316/96, filed by the complainant, for enhancement of the sentence awarded to the appellants and directed to be heard alongwith the present criminal appeals, shall also be disposed of by this judgment. 2. Brief facts leading to the present criminal appeals and the criminal revision are that, the complainant Mehmood Hayat PW5 on 1.5.1994 at 5.30 P.M. lodged the F.I.R. Ex. PI alleging that he alongwith Malik Naveed Ahmed deceased Munshi Muhammad Yaqub deceased, Malik Muhammad Abdur Rehman and Ghulam Hussain visited the dera of Malik Naveed Ahmad where he (complainant) alongwith Ghulam Hussain and Muhammad Abdur Rehman stayed whereas Naveed Ahmed and Munshi Muhammad Yaqub went to have a round of wheat crop. At about 4.30 P.M. when both the deceased Naveed Ahmed and Munshi Muhammad Yaqub were present in their land, all the four appellants Ghulam Dastgir Rifat Hayat, Nadir Khan and Muhammad Sher, armed with guns, came to the spot and raised lalkara that Naveed Ahmed will not go alive. Thereafter Muhammad Sher appellant fired with his gun that hit Naveed Ahmed at his right arm. Rifat Hayat appellant fired with his gun towards Naveed Ahmed hitting him at this mouth and Naveed Ahmed fell down on the ground. Ghulam Dastgir appellant fired at Munshi Muhammad Yaqub hitting him at his left flank. Nadir Hayat appellant fired with his gun towards Muhammad Yaqub which hit his chest above right flank in result of which he also fell down on the ground. The complainant stated in his complaint that he alongwith Abdur Rehman and Ghulam Hussain had seen the whole occurrence and that when they reached the place of occurrence, all the four appellants decamped therefrom while firing in the air. Both the deceased Naveed Ahmed and Muhammad Yaqub succumbed to the injuries at the snot. 3. Muhammad Ashraf SI/SHO (PW11) after recording the statement of the complainant Mehmood Hayat, proceeded the place of occurrence. He inspected the spot and prepared injury statement Ex. PB and inquest report Ex. PC'of the dead body of Naveed Ahmed deceased. He also prepared injury statement Ex. PE and inquest report Ex. PF of the dead hody of Muhammad Yaqub deceased. He also prepared rough sketch of the place of occurrence Ex. PN and after taking into possession the blood-stained earth from the place of murder of Naveed Ahmed and Muhammad Yaqub vide memo Ex. PK and Ex. PL respectively, he sent the dead bodies of Naveed Ahmed and Muhammad Yaqub to mortuary for post-mortem examination, through F.C. Feroze and F.C. Ashraf, who after the post mortem examination, produced before him the last worn clothes of Naveed Ahmed deceased shirt P5, shalwar P6 alongwith a sealed phial containing pallets and a cork P7 which were taken into possession vide memo Ex. PH. Muhammad Ashraf, Constable produced before him the last worn clothes of Muhammad Yaqub deceased i.e. Chadar PI, vest P2, a pair of chappal P3/1- 2, alongwith a sealed phial containing pallets which were taken into possession vide memo Ex. PG. He recorded the statements of Feroze. Ashraf. Fes., Ghulam Muhammad and Khalid Farid PWs. On 8.5.1994 he got repared rough notes from patwari and on 9.5.1994 he arrested Ghulam Dastgir, Rifat Hayat, Nadir Hayat and Muhammad Sher appellants. On 23.5.1994, on pointing out of the appellant Ghulam Dastgir, he recovered a gun P8 alongwith two cartridges P9/1-2 which was taken into possession vide memo Ex. PJ. He after recording the statements of Eisab Khan and Noor Ahmad PWs, prepared the rough sketch of the place of recovery Ex. PJ/1. He deposited all the parcels with MHC of the police station and after completion of investigation, he challaned Ghulam Dastgir and Rifat Hayat by placing them in column No. 3 in the challan. 4. At the trial the prosecution examined as many as thirteen witnesses to prove its case. PW2 Muhammad Ashraf. Constable, had escorted the dead body of Muhammad Yaqub to the mortuary and after the post mortem examination, he had received last worn clothes of Muhammad Yaqub deceased and a sealed parcel containing pellets Ex. P4 from the Medical Officer and delivered the same to the Investigating Officer. PW3 Feroze Hussain, Constable, had escorted the dead body of Naveed Ahmed to the mortuary and after the post mortem examination, he had received last worn clothes of the deceased alongwith a sealed container 17 containing pellets and cork, from the Medical Officer and delivered the same to the Investigating Officer. He was also handed over two sealed parcels containing blood-stained earth by Muhammad Yar MHC which he delivered intact to the Office of Chemical Examiner. PW 4 Muhammad Yar, MHC, was handed over two sealed parcels containing blood-stained earth by the Investigating Officer, that he had delivered to PW. 3 for onward transmission to the Office of Chemical Examiner. PW 7 Muhammad Ayub, brother of Muhammad Yaqub deceased, had identified the dead body of Muhammad Yaqub. PWS live cartridges Ex. P9/1-2 which were taken into possession vide memo Ex. PJ. PW9 Muhammad Ishaque was the recovery witness of blood-stained earth taken from the place of murder of Naveed Ahmed deceased vide memo Ex. PK and blood-stained earth taken from the place of murder of Muhammad Yaqub deceased vide memo Ex. PL. PW10 Ghulam Qasim, Patwari Halqa, had prepared site plans Ex. PM and Ex. PM/1 at the behest of the police and on pointing out of the witnesses. The site plan was prepared in the scale of 1 inch is equal to 40 karams. PW12 Ghulam Muhammad had identified the dead body of Naveed Ahmed deceased at the time of postmortem examination. PW13 Ahmed Yar Khan, S.P., who was entrusted the investigation of the instant case by the order of the I.G. Police, Punjab, after examinatiiig the persons produced by both the parties, the other people alongwith the appellants, inspecting the place of occurrence aijd having obtained the approval form the I.G. Police, Punjab, and directed the local police to challan all the four appellants. 5. The brief contents of the statement of Investigating Officer PW 11 Muhammad Ashraf, Inspector, have already been given in the earlier parts of this judgment. 6. PW5 Mehmood Hayat complainant in his statement had reiterated the contents of the FIR lodged by him, by adding with regard to motive that there was also a dispute in respect of the ornaments taken from Naveed Ahmed deceased by Nazar Hayat son of Shahadat Khan, brother of the three appellants. PW6 Ghulam Hussain, who was an eye witness of the occurrence in question, had supported the prosecution case by stating that he was present at the spot when the appellants had committed the murder of Naveed Ahmed and Muhammad Yaqub deceased. 7. PW1 Dr. Sajjad Ahmed, Medical Officer, on 2.5.1994 had conducted post-mortem examination on the dead body of Malik Naveed Ahmed, brought by Muhammad Feroze, Constable and identified by Ghulam Muhammad and Khalid Fareed and had found the following injuries on it :- 1. Wound of entry 4 cm x 2 cm with inverted margins on the left maxillary region, 1 cm lateral to the aia of the nose. 4 cm below the left eye. The wound was surrounded by blackening and clotted blood. 2. Wound of exit ^ x % cm on the back of neck, lateral to c-7 prominence, on the left side of cervical spine. 3. A wound of entry 8 cm x 5 cm on the right cubital fossa. The margins were lacerated and flesh was exposed. Tatooing was present. 4. Multiple wounds of exit on the back of right arm. On dissection he found f,he following : "Left parietal bone was factured. Left maxillary bone was mutilated. The meninges were damaged by the pellet and the brain matter was coming out of the brain coverings. Bleeding was present in the left hemisphere of brain on section. A wound was found between 3rd & 4th ribs, right side parietal surface. There were corresponding holes in the right pleura which was damaged. Right lung was damaged due to pellet. Left and right ventricles of the heart were empty. Right brachial artery was ruptured. Stomach contained undigested food particulars. Small intestines contained chyme. Bladder contained small amount of urine and all the other organs of the thorax and abdomen were normal and healthy. In his opinion death had occurred due to massive damage to the brain as a result of injury No. 1 which was sufficient to cause death of a person in ordinary course of nature. Probable time between injuries and death was 10 to 15 minutes and between death and post mortem examination was within 24 hours. 8. On the same day i.e. 2.5.1994 at 8.00 A.M. had had also conducted the post mortem examination on the dead body of Muhammad Yaqub, brought by Muhammad Ashraf, Constable, identified by Muhammad Ayub and Muhammad Riaz, and had found the following injuries : 1. A wound of entry 2 cm x 2 cm, on left side of the abdomen, about 5 cm from the umblicus. The fat was coming out of the would. 2. Multiple small wound of entrance surrounding injury No. 1. 3. 8 small wounds of exit on the left side of the chest below the right nipple in the mid axillary line. 4. Wound of entry % x % cm, just below the right medial epicondyle of the right arms. On dissection he found the following :-- "On the right side of the thorax, multiple woulds were seen on the anterior thoracic wall. Right pleura was punctured. Right lung was damaged. Abdominal aorta was ruptured. The anterior abdominal wall was damaged by multiple wounds of entiy and axil. Peritoneum was badly ruptured. Diaphragms was damaged on right side. Stomach was ruptured and contained blood. Pancreas was damaged. Small intestines were ruptured at different places and contained chyme. Large instetine were ruptured at different cites. Liver was badly damaged. Both the kidneys were damages. Bladder contained small amount of urine. In his opinion death had occurred due to massive damage to the abdomen as a result of injuries No. 1 & 2, which were sufficiently fatal to cause death in ordinary course of nature. Probable time between the injuries and death was within 10 to 15 minutes and between death and post mortem examination was within 24 hours. 9. Since the appellants Nadir Khan and Muhammad Sher were declared innocent by Muhammad Munawar Akhtar, DSP, Muhammad Amlish Khan S.P. and Aftab Sultan SSP in their respective investigations, as such, on the application moved by the said appellants, the learned trial Court had summoned the said olice officers as Court witnesses. Muhammad unawar- Akhtar, DSP, had appeared as CW1 and deposed about the verification made by him in respect of the investigation conducted by Muhammad Ashraf, I.O. PWll wherein the appellants Nadir Hayat and Muhammad Sher were declared innocent. Aftab Sultan, SSP, had appeared as CW2 and deposed that in the joint investigation conducted by him alongwith Muhammad Amlish, S.P. under the orders of I.G. Police. Punjab, they had come to the conclusion that Ghulam Dastgir appellant was the real culprit and Rifat Hayat appellant was present with him at the spot while declaring Nadir Hayat and Muhammad Sher appellants as innocent, being not present at the time of occurrence. CW3 Muhammad Amlish, S.P., had corroborated the statement made by CW2 Aftab Sultan, SSP by adding that although Rifat Hayat appellant was present at the spot but neither he had any weapon nor he had participated in the occurrence. 10. The prosecution had given up Abdur Rehman, Muhammad Riaz, Noor Ahmed and Khalid Farid PWs, being unnecessary and after tendering in evidence the reports the Chemical Examiner Ex. PO & Ex. PP and the reports of Serologist Ex. PQ and Ex. PR had closed its case. 11. Appellant Ghulam Dastgir in his statement under the provisions of Section 342 Cr.P.C. had denied all the allegations levelled against him and claimed to be innocent by deposing that as he was about 80 years old, neither he could see nor hear anything and even he could not step forward without help. He had also deposed about the trouble of enlarged prostrate that he was suffering from prior to the occurrence in question. 12. Appellants Muhammad Sher and Nadir Hayat, in their statements under the provisions of Section 342 Cr.P.C. had also denied the allegations levelled against them and claimed to be innocent by taking the plea of alibi and had deposed that they had been falsely implicated in the present case due to a quarrel having taken place between their as well as the complainan i's women folk at the time of marriage of daughter of Mola Dad Tiwana, and just to occupy the property left by Naveed Ahmed deceased, as eposed b) Nadir Hayat Appellant. 13. Appellant Rifat Hayat, in his statement under the provisions of Section 342 Cr.P.C. had also denied the allegations levelled against him and claimed to be innocent by deposing that he had not participated in the occurrence and he had been falsely involved in this case just for taking possession of the property left by Naveed Ahmed deceased and due to a quarrel between their as well as the complainant's women folk prior to the occurrence at the occasion of marriage ceremony of daughter of Malik Mola Dad Khan. 14. At the trial the appellants have examined only one witness in their defence. DW1 Muhammad Ismail, ASI, had brought the record of S.P. Office, Khushab, before the learned trial Court alongwith the application Ex. PL moved by the complainant Mahmood Hayat. Appellant Nadir Hayat had also produced before the learned trial Court a copy of discharge order Ex. DJ and a copy of the order passed by High Court in bail application Ex. DK. All the accused, however, did not get recorded their statements under the provisions of Section 340(2) Cr.P.C. 15. The learned trial Court taking into consideration the facts and circumstances of the case, had convicted and sentenced the appellants as stated above. 16. The present three criminal appeals in question have been argued by the following learned counsel, respectively, on behalf of :-- Appellants Nadir and Muhammad Sher in Criminal Appeal No. 639/96 by Mr. Ijaz Hussain Batalvi, Senior Advocate, whereas appellants Rifat Hayat and Ghulam Dastgir in Criminal Appeals No. 651/96 and 792/96 by, Mr. Inayat Ullah Cheema, Senior Advocate and Kh. Sultan Ahmed, Senior Advocate, respectively. The said learned counsel for the appellants named above, were heard at length and the record perused with their assistance. During the hearing of the criminal appeals on the two dates i.e. on 3.7.1997 and 4.7.1997, Mr. Aftab Farrukh, Senior Advocate, was present in the Court throughout and rendered assistance to the Court in perusing the record of the case, but on taking the rostrum to make his submissions on behalf of the criminal revision petitioner/complainant Malik Mehmood Hayat, learned counsel Mr. . Aftab Farrukh, Senior Advocate, informed the Court in great embarrassment that his client has instructed him not to argue the matter and to withdraw from the case. The Court, of-course, allowed the learned counsel to withdraw from the case while recording its appreciation of his having been available to the Court throughout the hearing of the criminal appeals in question. A written application, addressed to the Court by the complainant named above, was also handed over to the Court by Mr. Aftab Farrukh, Senior Advocate, which was directed to be placed on the file of the criminal revision petition, directed to be heard alongwith the present criminal appeals. The complainant/criminal revision petitioner refused to press his revision petition although he remained present in the Court during the proceedings even after he had withdrawn his learned counsel Mr. Aftab Farrukh, Senior Advocate. The Court is further constrained to obsen'e that the learned counsel for the State, namely, Mr. Fawad Malik, Advocate, had deliberately avoided appearing before the Court to represent the State in a most unprofessional manner, despite contact, having been made with him and that, therefore, on Court's call, Mr. Naveed Rasul Mirza, learned Additional Advocate General, Punjab, and Ms. Yasmin Sehgal, learned Assistant Advocate General, Punjab, had put in appearance and duly represented and argued the case on behalf of the State. 17. The learned counsel for the appellants made their submissions n support of their respective cases in the following order : Mr. Inayat Ullah Cheema, Senior Advocate, argued first, Mr. Ijaz Hussain Batalvi, Senior Advocate made submissions thereafter and finally Kh. Sultan Ahmed, Senior Advocate, addressed the Court in support of their respective appellants. 18. Mr. Inayat Ullah Cheema, Senior Advocate, called into question to conviction and sentence awarded to his appellant Rifat Hayat and submitted that the prosecution had miserably failed to prove the charge against the said appellant by pointed out that the prosecution evidence suffered from great infirmities. Submitted that the two eye-witnesses namely, Malik Mehmood Hayat complainant PW5 and Ghulam Hussain PW6 were chance witnesses who had failed to justify their presence at the place of fateful occurrence. Further submitted that, as admitted by them, they were residents of Sargodha which was at a distance of 70 kilometers from the place of occurrence and that the material contradictions in their testimony regarding the mode and manner of their having reached to the lace of occurrence, was totally unsatisfactory and in fact, their ontradictions between the testimony of the said two eye-witnesses in that respect can only lead to inescapable conclusion that, they had not witnessed the occurrence in question. Further argued in that respect that whereas the j complainant PW5 had claimed to have arrived at village Hammoka within the fields thereof the alleged murder of the two deceased that had taken place a pay earlier, the other eye witness PW6, who happens to be a son-in- T law, had claimed to have come to Hammoka/the place of occurrence on the c veiy day of the unfortunate happening. Further emphasised that the c mutually contradictory testimony of the two eye-witnesses has totally (J destroyed the prosecution's case. To support his case further pointed out s that the alleged killing of the two deceased at points No. 1 and 2 from point d No. 3 which was stated to be at a distance of 78 karams, as recorded in the c site plan Ex. PM, being at that long a distance, the two eye-witnesses could r not have heard either the lalkara alleged or amid be in a position to state in h detail as to whose shot had hit what part of the body of the deceased. ), Further argued that according to the said site plan Ex. PM and according to the testimony of PW10 Ghulam Qasim, Patwari Halqa and as admitted by complainant PW5 during his cross-examination there was a road 7/8 feet high, between the said point No. 3 from where the eye-witnesses have claimed to witness the alleged murder of the two deceased at points No. 1 and 2, thus, raising serious doubts about their being able to witness the occurrence in question. Further stressed the fact that, according to the medical evidence i.e. post mortem report EX. PA and the testimony of Dr. Sajjad Ahmed, PW1, who had conducted the said post-mortem of the deceased Malik Naveed Ahmed, the two wounds of entry, suffered by the said deceased i.e. injury No. 1 and injury No. 3 had blackening and tetooing present which totally contradicted the testimony of the eye witnesses PW5 and PW6 to the effect that the accused had fired at the two deceased respectively from 9 and 14 karams, that being the point No. 4 from where the appellants have been alleged to have opened the fire and points No. 1 " and 2 respectively where the two deceased had been hit and killed by the alleged shots fired. Further argued that the possibility of the said two eye witnesses not having witnesses the occurrence in question is further supported by the fact that they had attributed an exit wound i.e. injury No. 3 according to medical evidence, suffered by the second deceased Muhammad Yaqub, to appellant Nadir. Finally, submitted that, as highlighted by the cross-examination of the complainant PW5, the FIR had been lodged after "" due deliberation and, as such, it had no legal sanctity and the possibility of the truth having been suppressed and innocent persons having been roped into the instant case, cannot be ruled out and that the benefit of such doubt should go to the advantage of the appellants. Further pointed out that repeated investigations had declared the appellant Rifat Hayat to be innocent by holding that he was neither armed nor did he participate in the occurrence alleged. 19. Mr. Ijaz Hussain Batalvi, Senior Advocate, submitted that the motive, as set out, was only in respect of appellant Ghulam Dastegir and had nothing to do with his appellant Nadir and Muhammad Sher; and that in fact, none had been alleged or proved against them. Further submitted that though it had been alleged that he occurrence had taken place on their instigation i.e. " " yet there was not a word of evidence to support the said allegation. Further argued that the complainant PW5 was not a truthful witness as was proven beyond a shadow of doubt by the confrontations that he had been subjected to, time and again, by his previous statements i.e. Ex. DB, Ex. DC & Ex. DD. Further submitted that the said complainant PW5 had admittedly falsely involved two other persons i.e. Khuda Bukhsh and Ghulam Muhammad in the instance case, as he had given up his allegations against, them subsequently, before the police and by withdrawing the private complaint filed against them and was not willing even at the time of the recording of his testimony to press it again as is evident from his testimony before the learned trial Court. Further argued that the role/injury attributed to the appellant Nadir was totally belied by the testimony of PW1 Dr. Sajjad Ahmed and the post-mortem report Ex. PD, as already emphasised before the Court as the said injury attributed was an exit wound. The learned counsel vehmently stressed that the false implication of his appellant was because of the quarrel of the ladies of the two sides at a marriage ceremony as complainant PW 5 had stated in his earlier statements Ex. DB, Ex. DC & Ex. DD by which he had been confronted time and again during his testimony which, in fact, totally demolished the case of the prosecution as charged. Further emphasised that the appellants Nadir and Muhammad Sher had no interest in the village Hammoka wherein occurrence had taken place admittedly being from a village that was 100 miles from the place of occurrence and that the two appellants namely, Nadir and Muhammad Sher are employed in Bata Shoe Company at Lahore and Market Committee, Jauharabad respectively. Further pointed out that the said two appellants had taken up a plea of innocence on the basis of alibi right from the first day and that the said plea had been proved to be true in repeated investigations that had led to the discharge of the said two appellants from the instant case by the police. 20. Kh. Sultan Ahmed, Senior Advocate, contended for the acquittal of his appellant Ghulam Dastegir by, in the first instance, adopting the arguments advanced on behalf of the other appellants to assail the conviction and sentence vide the impugned judgment. Submitted that the criteria that has to come into play to judge whether or not the prosecution had proved its case beyond a reasonable doubt against the appellant, has to be primarily based on the sufficiency and truthfulness of the eye witness account as rendered by the complainant PW5 and PW6 respectively. Argued that the serious contradictions in respect of mode, manner and time of their arrival at the place of occurrence in the testimony of the said two eye-witnesses lead to only one inescapable conclusion that the said two PWs had not witnessed the occurrence at all and in this respect further referred to the confrontations that the complainant PW5 had been subjected to specially, vide Ex. DB, Ex. DC and Ex. DD that leads to the only conclusion that their testimony has to be ruled out of considerations and that, therefore, the testimony of the said two eye-witnesses being totally unreliable and of doubtful veracity, the prosecution is left with no legs to stand upon and the entire prosecution's edifice built upon their frail, false, contradictory and dishonest testimony, has to fall flat on its face. Thus, rendering the instant case to be of an unwitnessed occurrence and that the benefit thereof should go to the accused by resulting in their acquittal in the instant matter. Further argued that it stands established by the admissions of the complainant PWS himself, that he had falsely implicated Khuda Bukhsh and Ghulam Muhammad and that, therefore, the possibility of false implication in respect of the other accused, cannot be ruled out. Further argued that FIR Ex. PI had no legal sanctity as the complainant PWS had admitted during his cross-examination that he had reported the case on behalf of Mst. Rukhsana, the widow of the deceased Malik Naveed Ahmed and had further admitted to have stated before the police, as was established by confronting him with Ex. DC that he wanted the other appellants to be implicated in the instant case even if they were not involved because of quarrel amongst the females. Further submitted that the complainant PW5 was totally inimical to appellant Ghulam Dastgir as he was the husband of his step sister who was, alongwith other siblings inherited their father's property thus, totally disinheriting the appellant Ghulam Dastgir. Further pointed out that the motive, as set out, has not been proved and that, in any case, there were two different versions in respect thereof and in this respect further pointed out^that kila No. 1 of rectangle No. 355 was in possession of appellant Ghulam Dastgir as is evident from the testimony of Patwari, Ghulam Qasim PW10 and the admission of complainant PW5 himself and further argued that the possibility of the appellant Ghulam Dastgir's involvement for the reason that the occurrence had occurred in the said kila, cannot be ruled out. Further relied upon the post-mortem report Ex. PD of deceased Muhammad Yaqub and argued that the eye-witnesses had not witnessed the occurrence by pointing out that the said deceased could not have suffered injuries from a shot fired from 12 bore from a distance of 9 or 14 karams as the pellet injuries in question were by controlled aperture "which is possible only from 3 feet", further laving stress upon the said injuries having been caused with "Full dispersal" of the pellets having taken place which would have been in that case if the shot had been fired from 9 or 14 karams as claimed by the said two eye-witnesses. Further argued that the said medical evidence further contradicts the ocular evidence as the injuries No. 1 and 2 suffered by Muhammad Yaqub deceased could have been caused by a person standing at a much lower level than the deceased as the entry and the exit clearly shows that the shot had entered and exited thereof taken place in an oblique mariner. The learned counsel concluded by reiterating that because of the persons on 7/8 feet high road in between the place of occurrence and the point at where the witnesses had been present, the occurrence in question could not have been seen by them. 21. On the other hand, the learned for the State argued for maintaining the conviction and sentence of the appellants by pointing out that grain has to be shifted from the chaff as the maxim 'falsus in uno falsus in omnibus' is not applicable in the criminal proceedings in our Court while appraising the evidence of the prosecution witnesses. However, Mr. Navid Rasul Mirza, learned Additional Advocate General, was constrained to state that the balckening and tetooing of the injuries suffered by the deceased Malik Naveed Ahmed was not possible from 9 karams or 14 marlas. Mst. Yasmin Sehgal, the learned Assistant Advocate General, submitted, on a Court's question, that the case of the prosecution shall stand and fall upon the appraisal and acceptance of the testimony of the two eye-witnesses i.e. the complainant Malik Mehmood Hayat PW5 and his son-in-law Ghulam Hussain PW6. 22. The testimony of the said two eye-witnesses shall be dealt with exhaustively. However, it needs to be emphasized that the contradiction in prosecution's case highlighted, by referring to the post-mortem report Ex. PA to the effect that the deceased Malik Naveed Ahmed had suffered injury o. 1 that was a wound of entry that had blackening and clotted blood in injury No. 3, a wound of entry that had tetooing, raises serious doubts about the prosecution case that the said injuries had been caused by a 12 bore gun shot fired from a distance of 9 karams or 14 karams, and similarly the. nature of injury suffered by the second deceased Muhammad Yaqub reveals that it could not be caused from the said distance. It is further observed that the claim of the two eye witnesses i.e. PW5 and PW6 to have witnessed the killing of the two deceased at points No. 1 and 2 that were at a distance of 78 karams from point No. 3, was highly doubtful as there was, admittedly, a road in between that was 7/8 feet high. 23. The entire' testimony of the two eye-witnesses i.e. the complainant PW. 5 Malik Mahmood Hayat and PW. 6 Ghulam Hussain has been gone through very carefully ,by the Court; and after having given its anxious consideration to every aspect of the arguments advanced for and against upholding the conviction and sentence awarded to the appellant's by the impugned judgment, the Court is of the considered view that the testimony of the said two eye-witnesses suffers from such grave discrepancies and fatal contradictions, in addition to dishonest improvements and lack of corroboration by the medical evidence and other material on the record, that it can come to the only logical conclusion possible to the effect that the said two eye-witnesses are not the witnesses of the occurrence in question, and that, therefore, the Court is of the further considered view that the prosecution evidence on the record fails to prove the charge against all the appellants. To support the conclusion drawn, it shall ! be pertinent to deal with the testimony of the two eye-witnesses at length and to reproduce the relevant portions thereof hereunder. 24. First and foremost contradiction in the testimony that needs to be highlighted is as to how both the eye-witnesses claimed to have been present at the place of occurrence. In this respect, the complainant PW. 5 Malik Mahmood Hayat had to state as follows :-- "On 1.5.1994 I alongwith Naveed Ahmad deceased his Munshi Muhammad Yaqoob deceased, my son Abdul Rehman (given up PW) and my son-in-law Ghulam Hussain (PW.6) drove in the car of Naveed deceased to his dera from village Hamoka." whereas the other eye-witness PW.6 Ghulam Hussain, resident of Cheema Colony, Sargodha City, stated in his examination in chief, as follows :-- "On 1.5.1994 I alongwith Mahmood Hayat (complainant PW.5) Abdul Rehman (given up PW) Naveed Ahmad and Muhammad Yaqoob deceased persons went to Hamoka. Again said went to the dera of Naveed Ahmad in his car from village Hamoka." The said eye-witness PW.6 was time and again confronted in the following manner that totally demolishes his testimony :-- . (i) "I appeared before Ahmad Yar Khan S.P. Crimes in police station Jauharabad on 7.8.1994 and made a statement before him. I did not state before him that on 30.4.1994 I was present at Sargodha when on the following day, i.e. 1.5.1994, I alongwith Naveed Ahmad deceased, Abdul Rehman (given-up PW) Malik Mehmood Hayat (complainant PW.5) and Munshi Muhammad Yaqoob came to village Hamoka. (Confronted, so recorded in Exh. DF). (ii) I also did not state that I had come from Sargodha alongwith them in one car (again confronted with Exh. DF where it is so recorded). (iii) It is correct that I also appeared before Aftab Sultan SSP Special Branch Faisalabad in his office at Faisalabad on 15.11.94 and made a statement before him. I did not state before him that on the day of occurrence I alongwith Naveed Ahmad deceased, Malik Mehmood Hayat PW, Abdul Rehman and Yaqoob went to Hamoka. (Confronted where it is so recorded in Exh. DG). (iv) I did not state in the above statement that Mst. Talaat sister of the deceased and Mst. Rukhsana were also with us when we went to village Hamoka. (Confronted with Exh. DG where it is so recorded)'." 25. What has been reproduced above is in fact virtually the entire crucial testimony of this witness, which clearly establishes that he not only contradicts the version stated by PW.5 regarding their coming to the t/era/place of occurrence together alongwith the deceased, but further establishes that he is not a reliable witness of unimpeachable integrity. Therefore, it is hereby held that his testimony fails to advance the case of the prosecution in any manner and in fact deserves to be ruled out of consideration. 26. The complainant PW. 5 Malik Mahmood Hayat is the star witness of the prosecution, but as is evident from what is being reproduced hereinbelow from his testimony before the learned trial Court, he is a witness of doubtful credentials, as he is not only admittedly inimical to appellant Ghulam Dastgir, but as brought out during his cross-examination, had deliberately and dishonestly implicated innocent persons in the instant case i.e. appellants Nadir and Sher, but had also made an unsuccessful attempt to falsely implicate two other persons i.e. Khuda Bakhsh and Ghulam Ahmad. Furthermore, he was confronted time and again to highlight his dishonest motive for falsely implicating some of the appellants, in addition to highlighting the fact, as admitted by him during his crossexamination, that he had reported the case in question at the behest of his daughter Mst. Rukhsana the widow of the deceased Naveed Ahmad and that thus the possibility of his accepted dictation in that matter from others and resultantly, the FIR have been lodged after due deliberation and with the intention of roping in innocent persons cannot be ruled out, the benefit whereof has to go to the accused/appellants in accordance with the established principle of law that every doubt arising has to be resolved in favour of the accused. The testimony of the said complainant PW.5 was rendered of questionable authenticity pursuant to his confrontations time and again as highlighted hereinbelow :-- (i) "The present case was investigated by Ahmad Yar Khan S.P. Crimes Lahore. It is correct that I appeared before him on 7.8.1994 in police station Jauharabad and made a statement before him. I did not state before him that on 1.5.1994 I alongwith Naveed deceased, Yaqoob deceased Malik Abdul Rehman and Ghulam Hussain PWs. had come from Sargodha on a car driven by Naveed Ahmad deceased with belonged to him and from Sargodha had come straight to the dera. (Confronted with Exh. DB where it is so recorded). (ii) I did not state before the police that I had reported the matter to the police at the instance of Mst. Rukhsana, on 24.5.1994 before Muhammad Ashraf SHO in his office. (Confronted with Exh. DC where it is so recorded). (iii) I did not state in the above statement that if the said two accused who had been shown as present at the spot at the instance of Mst. Rukhsana are innocent, they may be shown and challaned as abetters but should not be got discharged. (Again confronted with Exh. DC where it is so recorded). (iv) I did not state before Munawar Akhtar on 24.5.1994 that the other accused were although not present at the spot but were concerned in the scuffle of females and therefore, may be challaned for abetment. (Confronted with Exh. DP where it is so recorded). (v) I did not state in the FIR that the shot fired by Nadir Khan accused hit Yaqoob deceased on the right chest above the right flank. (Confronted with FIR Exh. PI where it is so recorded). (vi) When Nadir and Muhammad Sher accused were not sent up by the police, I made an application to the Court to summon them as accused. I did not state in the above application that the shot fired by Nadir Khan hit Muhammad Yaqoob on his face. (Confronted with the certified copy of the said application Exh. PE where it is so recorded). (vii) I had stated in the FIR Exh. PI that initially the motive was that Nadir Khan, Muhammad Sher accused, Rifat Hayat accused and their brother Nazar Hayat got mutated the land of Naveed deceased in the name of their mother deceitfully. (Confronted not so recorded in FIR Exh. PI)." 27. As is evident from the perusal of the above stated portions of the testimony of the complainant PW.5 Malik Mahmood Hayat, numerous improvements, evasion and outright mis-statements made by him in his testimony before the learned trial Court, makes him out to be a totally unreliable if not a downright dishonest witness and pursuant thereto the Court is constrained to draw the only conclusion possible to the effect that the said eye-witness PW.5 Malik Mahmood Hayat had not witnessed the occurrence in question, and that, therefore, it is hereby held by ruling out of consideration his testimony and the testimony of the only other eye-witness namely, Ghulam Hussain PW.6, as stated earlier the entire charge against all the appellants fails for the lack of any evidence in support thereof. 28. At this stage, the Court wishes to record its unhappiness in the manner that the prosecution put up the instant case for trial, thus, perhaps, for the reasons stated hereinabove, had been instrumental in letting the real culprit escape the just punishment that he deserved for the heinous crime committed; further observing that because of the palpably false statements made by the two eye-witnesses, the probability of the real culprit being amongst the accused charged herein having escaped punishment, cannot be ruled out either but the entire burden thereof has to rest on the shoulders of the prosecution and its above named witnesses, as under the facts and circumstances highlighted above, the only result possible in accordance with law was that of acquittal of all the appellants. The said observations and the conclusion drawn is fully supported by the dictum laid down by the Honourable Supreme Court in Ilahi Bux vs. The State (1982 S.C.M.R. 57), which is as follows "Appreciation of evidence-Possibility and even probability existing as to real culprit being among assailants named by eye-witnesses-Proecution however choosing to put up a false version before Court and witnesses also going out of their way and deliberately making palpably false statements- -Trial, held, has to result in acquittal." 29. Pursuant to the above discussion, the present Criminal Appeal No. 639/96 filed by Nadir and Muhammad Sher appellants and the connected Criminal Appeals No. 651/96 and 792/96 filed by Riffat Hayat and Ghulam Dastgir appellants, respectively, are hereby allowed and the impugned judgment set aside. Resultantly, all the appellants stand acquitted of the offence charged. They shall be released forthwith, if not required to be detained in any other case. 30. Criminal Revision No. 316/96 directed to be heard alongwith the present criminal appeal is dismissed accordingly, but a detailed order in that respect, nevertheless, because of special circumstances of the case, has been recorded therein, vide order of even date. (K.K.F.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lah.) 1420 Present: raja muhammad khurshid, J. CHIRAGH MASIH-Petitibner versus STATE-Respondent Crl. Misc. No. 3999/B/ of 1997, accepted on 18.8.1997. Bail-- -S. 497 Cr.P.C. Bail-Grant of-Prayer for-Further inquiry-Case of- Offence u/s 302/34 PPC-Petitioner was empty handed at the time of occurrence and had done nothing except that he raised lalkara that deceased be done to death-On this point, there is some difference between eye-witnesses and witnesses examined by Investigating officer-Some of them have supported plea of alibi that petitioner was away at the time of occurrence from place of occurrence as he had gone to house of his daughter in order to give her Christmas gift-As such, circumstances re vealed would make it a case of further inquiryQuestion of vicarious liabi lity shall remain open so as to be settled at trial after examining evidence of prosecution and also that of defence-Petition accepted. [P. 1421] A Mr. Rafique Ahmad Bajwa, Advocate for Petitioner. Mr. A.H. Masood, Advocate for State. Date of hearing : 18.8.1997. order A case under Sections 302/34 PPC was registered against the petitioner and his two sons namely Mehna Masih and Eida Masih for the murder of Mehtab Masih on 24.12.96 at about 4.00 p.m within the area of Rao Kahnwala, Police Station Raja Jang, District Kasur. 2. The report about the occurrence was lodged by Mst. Sheedan Bibi i.e.; widow of the deceased. She contended in the FIR that there was a dispute of about 4 Marias of land between the deceased Mehtab Masih and his brother Chiragh i.e; the petitioner. Allegedly, there were altercations between the two sides on several occasions which ultimately led to the unfortunate present occurrence. She further deposed in the FIR that Mehna Masih and Eida Masih while armed with pistols fired at the deceased at the exhortation of their father i.e; Chiragh Din, the present petitioner. 3. Learned counsel for the petitioner has submitted that the petitioner was not present at the place of occurrence as had gone to his daughter's house in Green Town, Lahore for giving her Christmas gift. In that context, some witnesses were examined by the Investigating Officer who also supported the version that the petitioner was not present at the place of occurrence. One of the PWs namely Panju Masih son of Labbu Masih also supported the aforesaid version. On the basis of aforesaid statements, the Investigating Officer namely Riaz Ahmad, ASI finally concluded on 8.3.97 that the petitioner was not present at the time of occurrence but he was sent upto to face the trial as the complainant side insisted that he was one of the murderers of the deceased. As such, it is contended that it has become a case of further enquiry. Secondly, it is argued that the petitioner being an old person of about 60 years of age, only a proverbial lalkara was attributed to him, which is a usual practice in such like cases to involve the head of the family allegedly in order to bring maximum harm to the order side. 4. Learned counsel appearing for the State opposed the bail petition on the ground that there was no proverbial lalkara but was allegedly a command from the father to his sons to kill a person with whom, the etitioner had a motive over the dispute of 4 Marias of land. Secondly, it is contended that the deeper appreciation about the participation of the petitioner in the occurrence cannot be undertaken at this stage. It is enough to point out that the eye-witnesses have implicated the petitioner by deposing that he was present at the place of occurrence and had exhorted his sons to take life of the deceased. It was, therefore, submitted that the petitioner was equally and vicariously liable alongwith his sons and does not deserve to be released on bail at this stage as the offence is punishable either with death or imprisonment for life. As such, it is contended that the bail in such cases is not to be granted as a matter of routine and since there is no extenuating circumstances, hence the petitioner has no case for bail. 5. I have considered the foregoing submissions. It is true that deeper appreciation about the merits of the case cannot be undertaken at this stage lest it may prejudice the trial. It is an admitted fact that the petitioner was empty handed at the time of occurrence and had done nothing except that he raised lalkara that the deceased be done to death. On this point, there is some difference between eye-witnesses and the witnesses examined by the Investigating Officer. Some of them have supported the plea of alibi that the petitioner was away at the time of occurrence from the place of occurrence as he had gone to the house of his daughter in order to give her Christmas gift. As such, the circumstances revealed above would make it a case of further enquiry. The question of vicarious liability shall remain open so as to be settled at the trial after examining the evidence of the prosecxition and also that of the defence, if so produced. 6. In view of the above situation, the petition is accepted and the petitioner is admitted to bail in the sum of Rs. 50,000/- with a surety in the like amount to the satisfaction of the learned trial Court. Needless to say that if the petitioner mis-uses the concession of bail, the aggrieved party may have right to apply for the cancellation of the bail. 7. Disposed of with the above observations. 8. Copy dasti. (K.K.F.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1422 (DB) Present : KHALID PAUL KHAWAJA AND MUHAMMAD NAWAZ ABBASI, JJ. SAJID IQBAL-Petitioner versus MUKHTAR AHMAD etc. and the STATE-Respondents Crl. Misc. No. 3943/BC/96, dismissed on 30.6.1997. Bail-Cancellation of- S. 497(5)-Bail-Cancellation of-Prayer for-Resondents/accused being under custody for a continuous period of about two years and ten months without conclusion of trial were allowed bail-Challenge to~ Respondents/accused were granted bail after a lapse of a period of one year and 10 months from their arrest and during their detention only three witnesses could be examined in more than one year and since then trial is at the same stage-Respondents have no contribution in delay- Earlier delay on their part lost efficacy to be considered a ground for cancellation of bail-Petition dismissed. [P. 1425] A Mr. Allah Bakhsh Gondal, Advocate for Petitioner. Mr. Azam Nazir Tarrar, Advocate with respondents No. 1 and 2. Mr. Badar Munir Malik, Advocate for State. Date of hearing: 30.6.1997. order Muhammad Nawaz Abbasi, J.--Respondents No. 1 and 2 namely Mukthar Ahmad and Mehboob Elahi are facing trial for the charge of murder before the learned Special Court No. Ill, Lahore constituted under Suppression of Terrorist Activities Act, 1975. The respondents being under custody for a continuous period of about two years and ten months without conclusion of the trial were allowed bail by the learned Judge, Special Court vide order dated 15-8-1996. The petitioner being aggrieved of the order of release of the respondents on bail has moved this petition under Section 497 (5) Cr.P.C. for cancellation of their bail. 2. Briefly, the facts in the back ground are that a case for the allegation of committing murder of Bashir Ahmad and Khalid was registered against respondents No. 1 and 2 and others named in the FIR under Section 302/34, 148/149 PPC through FIR No. ,112/93 dated 10-10-1993 with Police Station Qadirabad, at the instance of the petitioner. Mukthar Ahmad was arrested on 24-10-1993 whereas Mehboob Elahi was taken into custody on 2-11-1993. 3. During investigation 12 other persons named as accused in the FIR were discharged. The respondents having found involved in the case were challaned to face the trial before the Special Court. The charge having framed on 22-10-1994, evidence of three prosecution witnesses was recorded on 5-6-1995. 4. The above said discharge order of 12 accused was challenged by the petitioner through filing a petition under Section 561-A Cr.P.C. before this Court, which was disposed of with the observation that the petitioner could file a private complaint. Consequently, a private complaint was filed by the petitioner on 16-10-1995 against the said 12 persons but only four were summoned as accused. This order in the private complaint was challenged by the accused summoned therein before this Court and proceedings in the case before the trial Court were stayed vide order dated 5-8-1995. 5. T'le case was pending for arguments on the question whether trial against ihe respondents No. 1 and 2 could proceed independently to the private complaint and in the meanwhile the Special Court No. IV having ceased functioning, the respondents No. 1 and 2 moved an application for grai 't of bail before the Special Court No. Ill at Lahore when the case was at the "idence stage. The learned trial Judge allowed them bail on statutory ground on 15-8-lb:-»6. The present application for cancellation of bail of respondents No. 1 and 2 was moved before this Court on 8-9-1996. 6. Learned counsel for the petition contends that respondents No. 1 and 2 having obtained successive adjournments during the period from 2-8- to 13-3-1995 caused delay of about 8 months in the trial and further 6 adjournments were obtained by the defence during the period from 20-12- to 15-8-1996. He contended that after dismissal of first bail application n the statutory ground on 20-12-1995 with the observation that respondents were responsible for the delay in conclusion of the trial, the said ground was not available to them. He placing reliance on Akhtar Abbas versus The State (PLD 1982 SC 424), Ashiq Hussain and others versus The State (1989 SCMR 392), Shouki alias Shoukat and another versus The State and another (1984 SCMR 613) and Syed Waqar ul Hassan versus The State (1988 P.Crl. L. J. 2010) submitted that the delay in conclusion of trial being attributable to the respondents No. 1 and 2, they were not entitled to the grant of bail. , 7. Learned counsel appearing on behalf of respondents No. 1 and 2 contended that the delay was occasioned due to the filing of a petition under Section 561-A Cr.P.C. before this Court by the petitioner against the discharge of the remaining accused named in the FIR and the stay of the proceedings in the connected complaint pertaining to the same occurrence. He argued that delay in the trial was not exclusively caused by an act or omission of the respondents and that the same was either on the part of complainant himself or the accused in the private complainant. He with reference to Panjal versus The State (1990 P.Crl. L.J. 2051-Karachi) and Rashid Ahmad and Two Others versus The State (1994 P.Crl. L. J. 801) argued that the learned Special Court has committed no error while granting bail to respondents No. 1 and 2 on statutory ground. 8. We have heard the learned counsel for the parties at length and also perused the order sheet of the trial Court placed on record. After receipt of challan by the Special Court at Gujranwala, the case was adjourned for 28-11-1993 for appearance of the accused but in the meanwhile, the case was transferred to the Special Court No. IV, Lahore and the accused were summoned by the said Court for 14-12-1993. The copies of the documents were supplied to the accused on 10-1-1994 and the case was adjourned to 25- 1-1994 for framing charge but it could not be framed till 27-11-1994 due to arious reasons and-mainly on the request of the respondents and their counsel. During this period about 12 adjournment were exclusively obtained by the defence. The case having fixed for the prosecution evidence the witnesses did not appear on two consecutive dates. The formal witnesses were present on 13-2-1995 but their statements could not be recorded for non-availability of the defence counsel. Thereafter the case was adjourned for four times because of the non-presence of the prosecution evidence and on 5-6-1995 the statements of the three witnesses were recorded and the ase was adjourned to 25-6-1995 for remaining evidence. On which date, the petitioner moved an application for staying the further proceedings -in the case till his petition under Section 561-A Cr.P.C. before this Court was not disposed of. Consequently, the trial could not proceed till 20-12-1995 and thereafter the proceedings without any legal bar remained suspended. Manifestly the following three major factors were the cause of delays-CD Adjournments obtained by the defence on various grounds and non-availability of the prosecution evidence on some dates. (2) The private complainant and filing of petition by the petitioner in the High Court, and (3) Stay of proceedings by the High Court on the petition of accused in private complaint. 9. The calculation of time constituting delay caused at the instance of the defence is not the intention of law. The Courts have to ascertain whether the delay was due to the act or omission of the prosecution or hether the accused were responsible for the fatal delay. 10. The Hon'ble Supreme Court of Pakistan in Akhtar Abbas versus The State (PLD 1982 SC 424) and Ashiq Hussain and Three others versus The State (1989 SCMR 1580) observed that without calculating the amount of delay caused by the defence it was to be seen that in what manner the fmalization of the trial was delayed by an act or omission of the accused to disentitled him for grant of bail. In present case most of the time consumed in the disposal of the petition under Section 561-A Cr.P.C. for quashment of the discharge order before this Court and in the petition by virtue of which the order dated 61-10-1995 of summoning the co-accused of the respondents in the private complaint was challenged. Undoubtedly, respondents contributed in the delay in conclusion of trial but they were not the only party responsible for the delay la nnalization of the trial. The act of their coaccused in complaint and the complainant would not be ignorable to deprive them of benefit of bail. The adjournments due to non-availability of defence counsel cannot ipso facto be construed a justification for delay trial. The refusal of bail on the ground that delay was caused due to the non availability of the counsel or that accused obtained adjournments to engage counsel, unless is found an intentional act to prolong the trial deliberately, withholding concession of bail under third proviso to Section 497 Cr.P.C. on such ground would be an act to deprive an accused from engaging a counsel of his choice and punish him for absence of his counsel due to other professional business. 11. The respondents were granted bail after lapse of a period of one year and 10 months from their arrest and during their detention only three witnesses could be examined on 5-6-1995 and since then the trial is at the same stage. The respondents have no contribution in the delay after said date and consequently this delay of more than two years being not attributable to them, the earlier delay on their part lost efficacy to be considered a ground for cancellation of bail. 12. The challan case against the petitioner is pending with the private complaint and admittedly after grant of bail further delay in the trial being no attributable to the respondents, they, in the circumstances, are entitled to remain on bail. 13. The Courts do not enjoy discretionary power to refuse bail on statutory ground under third proviso to Section 497 (1) Cr.P.C. if the other conditions are fulfilled as the bail on statutory ground is a right of an accused subject to the third proviso to Section 497(1) Cr.P.C. Similarly, if a person is not entitled to be granted bail on statutory ground, the Coxut cannot in its discretion extend such benefit to him. The bail granted on statutory ground as a result of the mixed responsibility of delay caused by the parties in the conclusion of trial, in absence of any strong circumstances dis-entitling the respondents to remain on bail is not interferable. 14. For the foregoing reasons, we dismiss this application with the direction to the trial Court if there is no legal bar, efforts shall be made for conclusion of the trial within three months. (K.K.F.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1426 Present: RAJA MUHAMMAD KHURSHID, J. FAZALUR REHMAN-Petitioner versus THE STATE-Respondent Crl. Misc. No. 4050/B of 1997, admitted on 19-8-1997. Bail-- -S. 497/498 Cr. P.C. read with Ss. 302, 201 of Pakistan Penal Code, 1860 and S. 10 of the Offence of Zina (Enforcement of Hadood) ordinance, 1979-Bail-Grant of--Prayer for-Further inquiry-Case of-Only role ascribed to petitioners is that he helped the principal accused to remove the dead-body of victim to nearby grave yard-There is no allegation that he was either present at the time of murder of deceased or had participated in any manner to take her life, therefore, it will become a case of further inquiry, particularly, when there is only allegation that he helped the principal accused to remove dead-body. [P. 1427] A Mian Muhammad Ilyas, Advocate for Petitioner. Mr. Iqbal Hussain, Advocate for State. Date of hearing : 19.8.1997. order The petitioner and his co-accused AzharMahboob are involved, in a case under section 302, 20] PPC read with section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 registered at. Police Station Saddar Wazirabad. Out of them the petitioner has applied for bail on the ground that there is no allegation that he had either committed Zina-Bil-Jabar with the deceased Mst. Naseem Tahira, a girl of about 10 years nor that he murdered her. The only allegation against the petitioner is that he had removed the dead body in a gunny bag from place of occurrence to the grave-yard after joining hands with the principal accused namely Azhar Mahboob. Secondly it is contended that the offence under section 201 PPC is at, the best made out against the petitioner which does not fall within the prohibitory clause and is bailable. Lastly it is contended that there is no direct evidence involving the petitioner in the case except that a joint confession was made by the petitioner and his co-accused Azhar Mahboob before Abdul Razzaq and Fazal PWs. The aforesaid joint confessional statement was bad in the eye of law as it was not in the words of the petitioner. 2. The bail application was opposed On the ground that the petitioner had joined hands with the co-accused who was guilty of he commission of heinous offence and since there was last-se^en evidence removing the dead body by the petitioner and his co-accused to the graveyard, therefore, there was sufficient proof to link him with the occurrence. 3. I have considered the above submissions and find that according to the joint confessional statement the principal accused namely Azhar Mahboob had stated that on 4.8.1996 at about 4.00 P.M. he had forcibly taken away the deceased Mst. Naseem Tahira aged about 10 years to is "Baithak" while she was passing through the street. After taking her to the "Baithak" she was subjected to Zina-bil-Jabar. She tried to raise alarm whereupon the aforesaid accused strangulated her to death with her "Dopatta". After the death of Mst. Naseem Tahira the aforesaid accused closed the door of his "Baithak" and played the deck loudly. During the night he with the help of his "Phophizad" i.e. the petitioner, removed the dead body of the deceased from his "Baithak" to the grave-yard known as "Joori Shah". 4. It follows from above confessional statement that Azhar Mahboob is the principal accused in committing the murder of the deceased after committing zina-bil-Jabar. The only role ascribed to the petitioner is that he helped the principal accused during the following night to remove the dead body in a gunny bag to the nearby grave-yard. Though he was also seen by two other witnesses alongwith the co-accused while removing dead body in a gunny bag, but there is no allegation that he was either present, at the time of murder of the deceased or had participated in any manner to take her life, therefore, it will become a case of further inquiry, particularly when there is only allegation that he helped the co-accused to remove the dead body as fore-said. The petition is, accordingly allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of trial court. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Karachi ) 1428 Present: ZAFAR HADI SHAH, J. JlIMMA-Applicant/Accused versus THE STATE-Respondent Cr. Bail Application No. 789 of 1997, dismissed on 25-6-1997. Bail-- -S. 497 Cr. P.C. read with S. 10(3) of offence of Zina (Enforcement of Hadood Ordinance) 1979-Bail-Grant of-Prayer for-If the grounds were raised and rejected at the first hail application the same cannot be made the basis of subsequent bail application-Accused has been clearly implicated by two others daughters of complainant-One of the daughter had given birth to an illegitimate child due to Zina-bil-Jabr committed upon her by accusedApplication dismissed. [P. 1429] A, B & C Mr. Sada Hussain D. Hisbani, Advocate for Applicant. Mr. Iqbal Ahmad Qadir, Asstt. A.G. for State. Date of hearing: 25.6.1997. order The applicant/accused is facing trial under Section 10(3) Zina EHO 1979 under FIR No. 93/1996 P.S. Sukhan, Malir Karachi. The facts of the case are that the complainant Nabi Bux sent a written complaint to SSP Malir alleging therein that he is father of four daughter, out, of whom his one daughter namely Rubina was subjected to Zina-bil-Jabr by applicant/accused Jumrna due to which she became pregnant. The complainant for this reason got her married with the applicant/accused but the said accused even after this marriage subjected his another daughter to illicit intercourse due to which she also became pregnant. He also kept an evil eye over his two other daughters. As he is a diabetic and paralysis patient, he cannot do anything against the applicant/accused. This application of the complainant was incorporated iu FIR on 31.10.1996 by Sukhan Police Station who conducted the investigation, during the course of which they came know that the second daughter of the complainant had given birth to an illegitimate child, who however, expired subsequently. I have heard the learned counsel appealing for the applicant/accused, who argued that here is no evidence of the offence of Zina having been committed by the applicant/accused and the two daughters of the complainant have not corroborated the statement of the complainant. He further argued that the 4th daughter of complainant namely Rubina had not supported the prosecution stoiy. The wife of the accused/applicant namely Rubina has filed an affidavit in Court today denying the allegations made by the complainant in the FIR. The learned State counsel submitted that this affidavit at this stage has no value and that Ms?. Rubina who is wife of the accused is an interested witness even otherwise the facts stated in the affidavit can be testified by her as a witness during the trial of the case. Further the learned counsel for the State referred to the statement of the other two daughters of the complainant recorded under section 161 Cr.P.C. wherein both the them have specifically implicated the accused/applicant. The learned State counsel further argued that on behalf of the applicant/accused previously also an application for bail was moved which was dismissed by the Sessions Judge by order dated 21.12.1996 which order was not challenged before this Court. Pie further argued that the second bail application filed by the applicant/accused before the Sessions Judge, contained the grounds which were available to him at the time when the first bail application was filed. The learned State counsel has relied upon PLD 1986 S.C. 173 (The State vs. Zubair and 4 others) wherein the lordships of the Supreme Court in para 8 of the report observed that: "It might be useful to mention here that the second or the subsequent, bail application to the same Court shall lie only on a fresh ground namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not, taken or was not, pressed, it, cannot, be considered as a fresh and made the basis of any subsequent bail application," The order dated 11.3.1997 passed by the Sessions Judge dismissing the second bail application clearly mentions that the grounds raised by the learned defence counsel in this bail application were discussed and rejected by him. Considering from both the angles that if the grounds were raised arid rejected and/or those grounds were not taken which grounds were available at, the time of first bail application, the same cannot be made the basis of this subsequent bail application. In the present, case the applicant/accused has been clearly implicated by the two other daughters of the complainant and that it is also on record that one of the daughter namely Mst. Noor Jehan had given birth to an illegitimate child due to Z'ma-bU-Jabr committed upon her by the accused. In view of the above discussion I do not see any merits in this bail application which is accordingly dismissed. However. I direct the trial Court to expedite the matter and to get, the report of the chemical examiner at the earliest and try to dispose of the case within 6 months. The applicant so advised may file a fresh hail application after the report of the chemical examiner is received. Application stands dismissed. (AAJS) Application dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1430 Present: malik hamid saeed, J. ZIL-E-HUSSAIN SHAH etc-Petitioners versus ASIF JAN etc.-Respondents Criminal Revision No. 11 of 1996 dismissed on 2-7-1997 Criminal Procedure Code, 1898 (V of 1898)-- -S. 198-A read with Ss. 500/501/502 PPC-Prosecution for defamation against public servants in respect of their conduct in the discharge of public functions-Repeal by Ordinance XXVII of 1981 of Act XXV of 1974 whether has any impact on S. 198-A.Cr.P.C.-Question of-Act XXV of 1974 was completely repealed by Ordinance XXVII of 1981 but the court is constrained to hold that Ordinance XXVII of 1981, on the strength of which Act XXV of 1974 was repealed having no impact on the various additions, deletions and amendments brought in various enactments and laws through act XXV of 1974-Amendments/additions which have been made in original Acts, have become part and parcel of respective Acts and by repeal of Act XXV of 1974 same are not effected and, therefore, repeal by Ordinance XXVII of 1981 of Act XXV of 1974 has no impact on S. 198- A.Cr.P.C. which would be treated very much alive and available on statute book with its full force. [P. 1433] A Sanaullah Khan Gandapuri, Advocate for Petitioners. Dost Muhammad Khan and Rustam Khan Kundi, Advocate for Respondent No. 1. Sanaullah Shamim, Advocate for Respondent No. 2. Saeed Hassan Shami, A.A.G. for State. Date of hearing : 2-7-1997. judgment By way of this revision petition, order dated 22.9.1996 passed by the learned Additional Sessions Judge D.I. Khan is impugned whereby the cognizance of a complaint under Sections 502/501/500 PPC filed by the learned Public Prosecutor on behalf of the complainant was taken. 2. Facts of the case are that one Asif Jan S.I. Police filed a complaint through Public Prosecutor D.I. Khan in the Court of Additional Sessions Judge D.I. Khan under Sections 500/501/502 PPC against the petitioners for defaming him through print media. 3. The petitioners resisted the factum of taking cognizance of the complaint by the learned Additional Sesssions Judge on the ground that ection 198-A Cr. P.C. has since been repealed and further that proper sanction for prosecution has not been obtained. 4. The learned Additional Sessions Judge D.I. Khan, however, was not impressed by the objections taken by the petitioners and held that the omplaint has been filed by the learned Public Prosecutor after getting a legal sanction from the Solicitor to Govt. of NWFP vide letter No. 3(5)/95/6458 dated 27.9.1995 and therefore fully complied with the equirements enumerated in Section 198 Cr. P.C. The learned Additional Sessions Judge further was not in agreement with the learned counsel for the petitioners that by repeal of Act XXV of 1974, Section 198-A Cr.P.C. is no more existed in the Stiitue books. The learned lower Court as such took the cognizance of the complaint and hence the present petition. 5. M/s. Sanaullah Khan Gandapur advocate for the petitioners; Mr. Dost Muhammad Khan advocate assisted by Rustam Khan Kundi, advocate for respondents arid the learned Assistant Advocate General argued the case in favour of their respective parties. 6. The learned counsel for the petitioners vehemently argued that Section 198-A Cr.P.C. was inserted/added in Pakistan Criminal Procedure Code 1898 by Act XXV of 1974 which reads as under :- SECTION 198-A CR. P.C. "PROSECUTION FOR DEFAMATION AGAINST PUBLIC SERVANTS IN RESPECT OF THEIR CONDUCT IN THE DISCHARGE OF PUBLIC FUNCTIONS". (1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the PPC (Act XLV of 1860) is alleged to have been committed against the President, the Prime Minister , a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions, A Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor. (2) Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to accused of the offence alleged to have been committed by him. (3) No complaint under subsection 91) shall be made by the Public Prosecutor except with the previous sanction, (a) in the case of the President or the Prime Minister or a Governor, or any Secretary to the Government authorized in this behalf by the Government in this behalf, (b) in the case of a Federal Minister or Minister of State, Chief Minister or Provincial Minister or any Secretary to the Govt : authorized in this behalf by the Govt : concerned; (c) in the case of any public servant employed in connection with the affairs of the Federation or of a Province of the Government concerned. (4) No Court of Session shall take cognizance of an offence under subsection (1) unless the complainant is made within six months from the date on which the offence is alleged to have been committed. (5) When the Court of Session take cognizance of an offence under subsection (1), then, notwithstanding anything contained in this Code, the Court of Session shall try the case without the aid of jury or assessors and in trying the case shall follow the procedure prescribed for the trial by Magistrate of warrant cases instituted otherwise than on a public report. (6) The provision of this section shall be in addition to, and not in derogation of those of section 198 Cr. P.C." It is further submitted that the said Act XXV of 1974 was completely repealed vide Ordinance XXVII of 1981 (Published in PLD 1982, .Central Statutes). He argued that even if under the protection of saving clause in Ordinance XXVII of 1981, i.e. Section 7, the remedy could be availed of the saving clause, even the under Section 198-A Cr.P.C., a complaint could only be filed by a Public Prosecutor after getting a proper sanction from the Government. 7. In the instant case, the complaint in question was no doubt signed by the Public Prosecutor, but it was submitted by the respondent Asif Jan though through Public Prosecutor but the same has not been drafted or submitted by the Public Prosecutor and further it could only be filed after obtaining sanction of the Provincial Government. In the case in hand, sanction of Government is not obtained and mere authorisation order issued by the Solicitor to Govt. of NWFP would not be sufficient to be treated as sanction order from the Government. 8. I have concisely considered the contentions of the learned counsel for both the sides and have perused the record and have dilated upon the various provisions of the law with their valuable assistance. 9. Ordinance XXVII of 1981 is minutely taken into consideration, whereby Act XXV of 1974 was completely repealed, but, I am constrained to hold that Ordinance XXVII of 1981, on the strength of which Act XXV of 1974 was repealed having no impact on the various additions, deletions and amendments brought in various enactments and laws through Act XXV of 1974. The amendments/additions which have been made in the original Acts, have become part and parcel of the respective Acts and by repeal of Act j XV of 1974. the same are not effected and, therefore. I am of the view that repeal by Ordinance XXVII of 1981 of Act XXV of 1974 has not impact of Section 198-A Cr.P.C. which would be treated very much alive and available on Statute Book with its full force, 10. If the legislature wanted to omit Section 198-A Cr.P.C. from the Statute Book, it could be easily done by a specific repealing Act/Ordinance. The list schedule containing various enactments which have been repealed through said Ordinance XXVII of 1981, also contains the Electricity Amendment Ordinance 1979, besides other enactments but the amendments incorporated through the said Ordinance in the Electricity Act are still operative with full force and the same are being applied by the concerned authorities and fully acted upon by the Courts. The Act XXV of 19874 has also substituted the words "imprisonment for life" in place of words "Transportation for life" in different proviso/parts of Sections 497, 498 and 512 Cr.P.C. which still firmly holds the filed. Thus the proposition convassed by the petitioners' side is entirely misconceived arid misplaced. 11. The index and purpose behind the Ordinance XXVII of 1981 is one and the same which is given also in the West Pakistan Repealing Ordinance XVIII of 1970, preamble to which is as follows :- "Whereas it is expedient that the enactments specified in the Schedule which are spent or have otherwise become unnecessary or have ceased to be enforced otherwise than by expressed specific repeal should be expressly and specifically repealed". The language of this preamble gives and conveys an idea clearer than crystal that the sole object of the amendments, Acts/Ordinances incorporating amendments in the main Statue is that their status is that, of carriers of certain statutes and when this purpose is achieved after the amendments are incorporated into the body of the main statute, then these statutes becomes spent, dead and excised one and do not serve any further purpose and for this very reason this become essential for the legislature to strike it away by removing it; from legislation in the shape of repealing and revising Acts/Ordinances. 12. So for the required sanction of the Government under Section 198-A Cr. P.C. for filing of complaint before the competent Court of law is concerned, learned counsel for the respondents stated that though the authorisation to file the complaint before the Court: had duly been given by the Solicitor to Govt, : of NWFP to the learned Public Prosecutor which is in fact a sanction from the Government, but even then a separate sanction order for prosecution of the complainant has been solicited from the Secretary to Law Department, Govt. : of NWFP and the same would be available within a seek's time and will be placed on the record of the case for satisfaction of the petitioners. 13. In the circumstances, the revision petition having no merit is hereby dismissed. (K.A.B.) . Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1434 Present: DR. KHALID RANJAH, J. LIAQUAT ALI and another-Appellants versus STATE-Respondent Crl. Appeal No. 102/94, dismissed on 3.7.1997. (i) Constitution of Pakistan, 1973-- Art. 10-Art. 10 of constitution renders it fundamental right of an accused person to be informed as soon as may be after his arrest, grounds for such arrest and to consult and be defended by a legal practitioner of his choice. [P. 1442] A (ii) Criminal Trial-- Murder--Offence ofConviction forChallenge toEven when defence version does not appeal to reason would not mean that prosecution story be accepted out right--Prosecution is not supposed to take advantage of snags in plea of accused-Similarly if a specific plea taken up by accused fails, he does not become disentitled to benefit of any other exception or doubt emerging out of circumstances of case. [P. 1445 & 1446] C (iii) Criminal Trial - Murder-Offence of-Conviction tor-Challenge to-Where suggestion given on behalf of accused is accepted by witnesses same tantamount^ to proof of facts suggested. [P. 1447] D (iv) Qunun-e-Shahadat Order, 1984 Art 27Statement of an accused person immediately after occurrence in a way releyantjact within meaning of Article 27 of Qunun-e Shahadat as such there can be no legal bar in bringing it on record as an admissible fact. [P. 1443] B PLJ 1973 Kar. 157. Sardar LatifKhan Khosa, Advocate for Appellants. Mr. R.R. Anwar, Advocate for Complainant. Mr. Ghulam Hussain Malik, Advocate for State. Dates of hearing: 1 and 3.7.1997. judgment Liaqat All and Muhammad Akram, appellants, were found guilty under section 302/34 PPC by the learned Addl. Sessions Judge, Sheikhupura vide judgment dated 27.2.1994 and sentenced to imprisonment for life and to pay a fine of Rs. 25,000/- each or one year R.I. in default. They were also directed to pay Rs. 20,000/- each as compensation to the heirs of the deceased under section 544-A Cr.P.C. Niamat Ali, co-accused, however, was acquitted by the same judgment-Liaquat Ali and Niamat Ali are brothers inter-se and Muhammad Akram is brother-in-law of Liaquat. 2. While appellants seek to challenge their conviction and sentence, complainant is agitating against acquittal of Niamat Ali as well as awarding of lesser sentence to the appellants by the trial Court. Both the appeal and criminal revision are, therefore, being taken up together. 3. Muhammad Siddique lodged a report, with Ferozewala Police Station on 19.5.1990 that his neice Mst. Hanifan Bibi was married to Nazir Hussain son of Haji Nawab and lived at Sheikhupura. His nephew Farman being a college going student lived with her as well. Haji Nawab had given 28 acres of land to Niamat acquitted co-accused and had also his tractor to him on installments. The said land was being cultivated by both the brothers namely Niamat Ali and Liaqat Ali. On the asking of Haji Nawab, Farman (PW. 5) had come down to his village, Mubarikpura to collect both lease money and tractor installment from Niamat AJi at his house. At that time Liaquat and his brother-in-law, Muhammad Akram were also present there. Niamat Ali started abusing Farman as to who was he asked for the money he owned to Haji Nawab. Farman also abused back, whereas Niamat, Liaquat and Muhammad Akram started beating him. On hearing the alararn, Muhammad Shafi (uncle) and Q\irban Ali brother of Farman Ali came to the house of Niamat Ali and got him released. Muhammad Shafi told them that it was stranged that on one hand they were not paying lease money arid the tractor installment, and the other hand they were out to fight on the demand being made and dared them that he would see to it how they withheld the payment of lease money as well as the tractor installment. Having said this, Muhammad Shafi came to his house alongwith his nephews Farman Ali and Qurban Ali. At about 3.30 p.m., however, when he first informant, his brother Muhammad Shafi, Muhammad Inayat nd Farman Ali were present in their Haueli putting fodder to the cattle, they heard the cries of Bachao-Baehao raised by his brother Murad Ali. They came out to the Havcli and saw Niamat Ali, Liaquat and Muhammad Akram armed with 12 bore guns and they were beating up Murad Ali with butts of their guns and were saying that they will not spare. Muhammad Shafi and Muhammad Inayat and will teach them a lesson for asking for payment of lease money and the tractor installment on behalf of Haji Nawab. Muhammad Shafi moved forward to rescue Murad All whereupon Niamat Ali fired with his gun hitting Muhammad Shafi on his chest towards the left side. The first informant, his brother Muhammad Shafi, nephew Qurban Ali and Inayat ran in order to enter the Haveli of Muhammad Shafi and when the later was about to close the door, Liaquat fired with his gun hitting Muhammad Shafi on the "Pat" (explained latter that the word in the FIR was "Pait" or not Pat. The pellets also hit on the door of the Haveli. Muhammad Akram fired with his gun hitting Muhammad Shafi on his chin towards the left side near the collar bone. Muhammad Shafi fell down in the Deorhi of the Haveli and expired. Niamat Ali, Liaquat Ali and Muhammad Akram, filed away towards their houses while firing. Muhammad Siddique leaving the dead body of Muhammad Shafi in the care of Inayat left to inform the police. It was on the basis of this statement, of Muhammad Siddique that FIR Ex. PC/1 was reduced into writing. 4. In the course of investigation, the Investigating Officer recovered five crime empties (Ex. P3)/105) from the spot and took the same into possession vide memo Ex. PE on 19.5.1990. Liaqat Ali led to the recovery of his gun P. 4 which was taken into possession vide memo Ex. PF and Muhammad Akram led to the recovery of his gun P. 5 and took into possession vide memo Ex. PC also on .12.6.1990. According to the report of technical services Ex. PN, three of the crime empties loaded with gun P. 5 of Muhammad Akram and after the completion of the investigation, all the three accused/appellants were sent up for trial. They were charged for murderous assault on Murad Ali and also for committing the murder of Muhammad Shafi. 5. The prosecution case before the trial Ccmrt rested mainly on the ocular account furnished by Muhammad Siddique (PW. 4) Farman Ali 'PW. 5) and Qurban Ali (PW. 6). They supported the version of the FIR and Farman Ali also explained that in the initial fight between him and Niamat Ali he had given Danda blow on he head of Niamat Ali, accused. As the doctors were not able for deposition, Syed Sajjad Hussain (PW. 7) proved both postmortem report, of Muhammad Shafi, deceased, and the medicolegal report of Murad Ali. According to the postmortem report Ex. Ph. Muhammad Shafi had received the following injuries on his person :- (1) A fire arm wound of entry 1.5 c.iu 1.5 cm at left side of chin making an exit wound 2 c.i.n, > 2 c.m. on right scapular region 7 c.m. from mid line. (2) A tire-arm wound of entry 1.5 c.m. x 1.5 c.m. on front of left chest mid clavicular region. (3) Two fire-arm wounds of entry each 1.5 c.m. 1.5 c.m, in area 6 c.m. x 2 c.m. on front of left, chest mid part. (4) A fire-arm wound of entry 1.5. c.m. x 1.5 c.m. on front of right side of abdomen upper part. Four pellets removed form under the skin of back of chest. Visceral injuries discussed else where. (5) An abrasion with blackened base 1.5 c.m. x 1 c.m. on front of right shoulder joint. According to the postmortem examination/report injuries No. 1 to 4 individually were sufficient to cause death in the ordinary course of nature. Whereas according to medico-legal report Ex. PI Murad Ali PW had suffered following injuries on his person :- (1) Contusion 7 c.m. x 4 c.m. at. left lumber region back and outer aspect. (2) Contusion at back of left fore-arm lower part 2 c.m. x 2 c.m. (3) Contusion at back of left wrist 2 c.m. x .1 c.m. (4) Contusion at right top of shoulder 4 c.m. x 3 c.m. (5) Contusion at right buttock 7 c.m. x 4 c.m. (6) Contusion at back of left thigh upper part 6 c.m. x 4 c.m. Injury No. 3 was kept under observation for X-ray while rest of the injuries were declared as simple. All the same were caused by blunt means. 6. The steps taken in i,he course of investigation were deposed by Ghulam Asghar (PW 10) S.I, and Ghulam Rasool, Inspector, CIA (PW 11). The first version of Liaquat A!i and Muhammad Akram, accused as put to P.W. 11 and admitted by him was to the effect-that the story about the recovery of leave money and tractor installment was incorrect. In fact, the fight had initiated over a quarrel with the children and in that process Qurban, Farrnan, Muhammad Shafi etc. had caused injuries to Nianrat Ali. As a result of which he had become unconscious. Thereafter his son Zubair Mehmood ran to the house of his maternal uncle Akram and paternal unde Liuqat Ali and informed them that Muhammad Shafi had killed his father. Hearing this, M.uhaimnad Akram etc. came there armed with guns and started firing and that Muhammad Shaft etc. also fired and that Muhammad Shafi expired after having been injured as a result of fire-short. 7. At the close of the prosecution case. Niamat Ali PW denied participation in die occurrence in the occurrence in the following terms :- 'As a matter of fact there was no dispute about the payment of lease money or about the payment of instalments of the tractor. The com lainant or the eceased had no concern with that amount. The occurrence was the result, of quarrel between the children of our party and the complainant. I was attacked by the deceased, Qurban and others when I was present inside the haucli situated in the village and was given beating by sofas. I started bleeding and fell unconscious. I was empty handed. I did not cause any injury to any one. 1 was medically examined. I also produced my medico-legal report before the police. The PWs have falsely deposed against me on account, of their enmity with us and on account of their relationship with the deceased." Liaquat Ali, on the other hand, taken the plea of self-defence to the exclusion of both Muhammad Akram and Niamat Ali. In his statement under section 342 Cr. P.C. the stance taken by him is reproduced as follows :- "As a matter of fact there was no dispute about the payment of the installments of tractor. The complianant or the deceased had no concern with that amount. The occurrence was the result of quarrel between the children or our party arid those of the complainant. My brother Niamat Ali was attacked by the deceased. Qurban and others when he was present inside the havcli situated in the village and was given beating by so/as. Niamat Ali started bleeding and hue and cry was raised. We received an information that my brothei- Niamat Ali had died as a result of attack by the opposite party. On receiving this information 1 armed with a gun came to rescue ruy brother. The complainant party also attacked me, Muhammad Shafi. deceased, resorted to tiring. His other companions who were also armed with tire-arms started firing. I, in exercise of right, of my self-defence and in defence of my brother also Fired. During the course of firing Muhammad Shall, deceased, also received injures, most probably at the hands of his own partymen. Had I not acted in exercise of my right of self-defence and in defence of my brother Niamat Ali, he and I might have been killed at the hands of the complainant party. Actually the complainant was the aggressor and it, is they who had initiated the aggression. We have also taken this plea before the 1.0. during the investigation which was found correct. The PWs had falsely deposed against us on account, of their enmity with us and relationship with the deceased." This statement, was also adopted by Muhammad Akram, appellant. 8, Dr. Fayyaz Ahmed Butt, Medical Officer, appeared as DW. 1. He deposed about the injuries on the person of Niamat Ali and described them as follows :- (1). A lacerated wound 2 c.m. x 3 c.m, skin deep on frontal region of head towards left side. (2) An abrasion 1 c.m. x 1 c.m. in the mid line on lower part of back of chest. (3) Swelling 6 c.rn. x 4. c.m. on lower part of right side of back of chest. (4) Swelling 6 c.m. x 6 c.m. on right ankle joint (front side) extending upto dorsal part of right foot. According to him when he examined the patient he was not unconscious and had come walking on his own legs without any support. In ultimate analysis all the injuries were simple. 9. Learned counsel for the appellants argued that the prosecution had failed to prove the motive set up by it.. Haji Nawab was the best person to depose in this behalf. He neither appeared before the police nor before the "Court. Haji Nawab had son also. None of them hat appeared either to explain the circumstances related to, land holding leasing out of the same to Niamat Ali etc. and sale of the tractor and collection of the lease and sale proceeds. He submitted that there being no medical report qua Farman Ali, the story that he was beaten up in the house of Niamat is also open to doubt. He relied heavily on the fact, that the trail Court has also not relied on the motive part of the story of the prosecution and in this behalf referred to Para 33 of the judgment of the trial Court. He insisted that the prosecution having failed to prove the motive set up by it, would react, on the entire prosecution case and render the Court to treat the testimony'of witnesses with caution. According to the learned defence counsel, the trial Court has disbelivecl the witnesses in respect, of the murderous assault on Murad Ali as all the accused have been acquitted of the charge under section 307/34/PPC. Similarly, the prosecution evidence iias not carried conviction with the trial Court either in the matter of participation of Niamat Ali. accused in the main occurrence. The trial Court, while expressing doubts about participation of Niamat Ali has observed in Para - 34 of the judgment as follows :- "Since Nianuit. Ali accused had been injured prior to the main occurrence and since no recovery seems to have been effect from him and since injuries on the person of the deceased from their very nature do not appear to be of three shots and could be easily the result of two fire shots, therefore, it can be said that the prosecution has been unable to prove beyond reasonable doubt that Niamat Ali accused had actually fired at Shafi deceased or that he had the common intention with the co-accused the maintaining that there is nothing exceptionable about the above finding of acquittal in respect of Niamat Ali and this renders the whole prosecution case doubtful and the defence version of acting in self-defence presented through Liaquat's statement under section 342 Cr. P.C. merits to be accepted. Moreso. as the accused had raised their plea at the very outset of the investigation and their stance was consistent throughout. This fact would also lend credence to their plea before the trial Court. According to him, PW. 4 Muhammad Siddique was' a person of criminal propensities. The story regarding the motive set up by him had been rightly disbelieved. He had made improvements to render his testimony consistent with the medical evidence. He had duly conceded that the accused/appellants had set up their plea at the very outside before the police and the same had been reduced into writing by PW. 11 as their first version. First informant PW. 4 had not explained the injuries on the person of Niamat. Ali and that, the explanation for injuries of Niamat Ali furnished by PWs. 5 and 6 was belated. He canvassed that the testimony of PWS should not be accepted and there was no corrohoraiion on the file worth the name to warrant acceptance of the testimony of the eye-witnesses. According to him, the defence version was more plausible and consistent with the injuries of Niamat Ali which had been suppressed by the prosecution and that it. was Liaquat Ali alone who had acted in self-defence and caused injuries to Muhammad Shall, deceased. In the alternative, lie submitted that Liaquat Ali, .accused, when informed that his brother Niamat Ali had been killed and on seeing his bleeding and unconscious, he was bound to have lost control of himself and his action of shooting Muhammad Shafi amounted to act under grave and sudden provocation punishable at, the maximum by sentence upto seven years. lo. The learned, counsel for the complainant argued that the finding of the learned trial Court, regarding giving henefil of doubt to Niamat Ali was a laboured exercise. He was named in the FIR. He had a cause . and fired at the deceased in his chest and the part, assigned to him was duly corroborated by the postmortem report. The finding his acquittal was in no sustainable. The accused had launched murderous assault on the deceased to wreak vengeance. As per their own showing they are atleast Liaquat. had come after hearing about the injuries caused to Niarnat and it was thereafter that incident of firing had taken place resulting in death of Muhammad Shafi. In the circumstances the accused had committed wilful murder and were thus liable to be awarded normal sentence of death It was further argued that the accused/appellants had not taken the plea of grave and sudden provocation nor the same was spelt out from the attending circumstances of the case. The plea taken was essentially of right of self-defence and that too to the extent of Liaquat AH, appellant, Neither of the please taken up the defence, although, mutually exclusive was relatable to the admitted circumstances of the case 11 According to him, whereas Liaquat, accused, admits his presence. Ur iicipation of Akram is established beyond doubt from the matching ui the thiee empties with the gun recovered from him and also from thfe suggestions put by the defence and admitted by PW. 11. The learned counsoi further submitted that the accused cannot be allowed to make much capital out their first version as the same was belated and possibility of its being a counseled plea could not.be ruled out and it was not totally consistent with their statements under section 342 Cr. P.C. He submitted that the version of an accused could not be brought on the file through suggestions made in this behalf to the Investigating Officer. Particularly where the version of the accused is in a natuie of plea of selfdefence or of grave and sudden provocation if put the Investigating Officer would be rendered m-admissible as it would amount, to eliciting confessional statement of an accused recorded by an Investigating Officer Such an assertion could only be proved hv he accused iike any other fact through the process of primary evidence, be it statement on oath of the accused himseii under section 340(2) Or P.C or through his defence witnesses Statement of the Police Officer narrating as to what, was said to him hv an accused was inadmissible and the Court could not take t.he same into account 12. As far as the adrnissibility of first version of the accused is concerned it is difficult to ascribe to the view of the learned counsel of the complainant It has been a consistent view of this Court that, the prosecution should itself bring out the same, rather than concealing it. In Ham! vs. Emperor (AIR 1942 Lahore 37). the defence wished to bring a copy of statement made by Hasil to the police on record during the Sessions trail to highlight that the occurrence was sudden and un-premeditated in order to earn him lesser penalty The learned Sessions Judge refused this request, on the ground that this statement amounted to confession made to the Police Officer and was, therefore, inadmissible in evidence the learned Sessions Judge while holding so relief on sec. 25 of the Evidence Act (Article 38 of Quanun-e-Shahadat) which lays down that no confession made to the Police Officer shall be proved as against a person accused of any offence. It was ruled in appeal that the above prohibition applied to confession sought to be proved as against the accused but could not apply to such statement on which the accused himself wished to rely in connection either with his conviction or his sentence. It was also held that in cases where two versions of the same incident were being put forward it was of a greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity. In this case at the appeal stage. Court permitted the counsel for the defence to go through the statement made by Hasil to the police, Hasil-appellant, in this case, had stated before the Police that he killed the deceased because he had seen him and his wife sitting and talking together. The Court held that it was the duty of the presecution to bring out any evidence which may assist in arriving at a correct decision and such a statement of the accused should have been brought out, in the Sessions trial as a relevant fact. On the basis of this statement, the Court converted death sentence into life treating the occurrence as sudden and un-permeditated. This view was reiterated in Muhammad Yaqoob v. The State (PLD 1969 Lahore 548). This Court at the appellate stage summoned the Investigating Officer to verify the counter-version which the appellant had taken during the investigation. 13. The word Investigation has been defined in section 4< 11 Cr. P.C. to include all the proceedings under the Code for collecting of evidence conducted by a Police Officer. Obviously, the phrases "collection of evidence" cannot be confined to such evidence which favours only the prosecution. Section 160 Cr. P.C. while spelling out the powers of Police Officer to require attendance of witnesses in he course of investigation does not make any distinction either between the witnesses in favour of the prosecution and the defence. Under section 161 Cr. P.C. a Police Officer conducting investigation can examine any person supposed to be acquainted with facts and circumstances of the case, orally or reduce the same into writing. Hereto no distinction is drawn between the statement in favour or against the accused. Similarly, sections 162 and 163 Cr. P.C. also refer to statements made to Police Officer in the course of investigation, in sreneral terms, both for and against an accused. In short, the law does not make any distinction in the matter of recording of statements made in favour of .the accused or the prosecution in the course of investigation. A Police Officer as a pu lic functionary is expected to act fairly, honestly and without bias to either party. The law disfavour his arbitrary exclusion of evidence produced before him in favour of the accused. 14. The interest of an accused is also adequately safe-guarded by the Constitution of Islamic Republic of Pakistan. 1973. Article 10 of the Constitution renders it fundamental right of an accused person to be informed as soon as may be after his arrest, the grounds for such arrest and to consult and be defended by a legal practitioner of his choice. The Courts have always jealously protected this right of the accused. In Moti Lai's cast; (AIR 1954 Raj. 241) it was observed that a person arrested has a right to consult legal practitioner of his choice from the moment of his arrest and also to have purposeful interview with him out of the hearing of the police or jail staff, though it may be within their presence. If the police were not, to record the version of the accused or evidence sought to be adduced by him, it would amount to frustrating the Constitution guarantee set out in Article 10 of the Constitution. Duty is cast upon an Investigating Officer to record the version of the accused in eveiy case if presented. He is not supposed to just become a tool in the hands of the complainant. As a public servant he is called upon to investigate the case strictly on merits with utmost neutrality. In a case where there is a counter-version of an incident and if the same is put before him at the earliest stage, it should be duly recorded as the Courts have always given it slue weight in the light of the attending circumstances. A note of cair , m the same view was duly given in Qasim's case. (1995 MLD 749). 15. it, may a'so be added that the statement of an accused person immediately after ;,he occurrence is in a way relevant fact within the meaning of Artie: j 27 of Qanun-e-Shahadat and as such there can be no legal bar in bringing ii; on record as an admissible fact. In a Karachi case, Ghularn Hussain v. The State (PLD 1973 Kar. 157) the appellant while retracting from his judicial confession warranted to show that the same was word for word reproduction of the statement made before the police and he wanted to highlight this fact by cross-examining the police officer in order to discredit his judicial confession. The learned trial Court did not permit this, holing that the statement made by the accused before the police was not admissible. Mr. Justice Dorab Patel following Basil's case observed that the appellants' statement, in the police diary was not in any way hit by section 162 of Cr. P.C. It was further observed that section 375 Cr. P.C. conferred extraordinary power on the Court to enable it to do justice and while exercising this power court would not, in any manner by tramelled by section 162 Cr. P.C. Similarly it was held that section 165 of Evidence Act (Article 160 of Qamm-e-Shahadat), costs a duty on the Courts to do justice and in discharging this obligation, the Courts' power is not to be affected by restraints of Section 162 Cr. P.C. Dorab Patel J., maintained relying on Privy Council (AIR 1935 P.C, 36) that version of the accused could not be shut out from being received in evidence, could spell out the fact that his judicial confession was verbatim reproduction of the earlier confessional statement recorded by the police to established that the latter confession was inconsequential. I, therefore, hold that the first version of the accused of whatever nature can be brought on record through cross-examination by putting the same to the Investigating Officer, it would certainly be. a safer course in dispensation of complete justice in an adversary system. 17. The learned trial Court has given cogent reasons fot not accepting the motive set up by the prosecution and has rightly extended the benefit of doubt to Niamat Ali, accused, the reasons given are as follows - "It is not body's case that Niamat Ali accused was injured during the main occurrence. However, the motive incident as described by the prosecution does not inspire confidence, if Farman Ali PW had been given beating in the house of Niamat Ali, accused, he should have been injured but admittedly he did not get himself medically examined. Furthermore, if Farman Ah had been abused and had given beating by the accused, it was the complainant party which also could have the motive because it were they who had been actually insulted The fact remains that the actual incident which had taken place before the main occurrence is shrouded in mystery and the prosecution has been unable to prove the motive in this case Witnesses have staled that in order to save Murad Ali, PW. Shafi deceased moved forward whereupon Niamat Ali, accused, fired with the gun 12 bore which hit Shafi deceased in his chest towards the left side and that Shafi, deceased, Muhammad Siddique, Qurhan and Muhammad Inayat PWs who were empty handed ran towards the haveli to save themselves,, The question arises as to why Shafi deceased had not fallen down after being hit in the chest at the hands of Niamat Ali, accused and as to how did he manage to run to the door of the haveli in order to save himself. The prosecution has not shown any trial of blood as well between the two pints i e where Shall deceased was hit in the chest and the door of the haveli. Admittedly no weapon of offence was recovered from Niamat Ah, accused. Admittedly Niamat Ali accused had been injured prior to the main occurrence and it si no body's case that he was injured during the main occurrence. Accmding to I)W. 1-Dr. Fayyaz Ahmed Butt who had medically examined Niamat Ah accused on 21.5.1990 at 4.30 p m. and there was four injuries on the person of Niamat Ah accused. The learned defence counsel has pointed out that during the investigation the presence of Niamat Ali accused at the time of occurrence was not proved. However, as the opinion of police arrived at during the investigation is not relevant, therefore, 1 am not propaied to look to that aspect of the matter, although the investigation is a circumstance which can be considered by the Court. Since Niamat Ali accused had been injured prior to the main occurrence and since no recovery appeal's to have been effected from him and since the injuries on the person of the deceased from their very nature do not appear to be of three shots and could be easily the result of two fire shots, therefore, it can be said that the prosecution has been unable to prove beyond reasonable doubt that Niamat Ah accused had actually fired at Shafi deceased or that he had the common intention with the coaccused." The reasoning being well founded, the revision petition filed by the complainant to the extent of seeking his retrial would not be warranted. 18 As far as the case of the appellants is concerned, the testimony of the eye-witnesses certainly merit carefully scrutiny. Although there is no pre-existing rancour or animus between the parties, yet the prosecution witnesses do not seem very candied while narrating the back-drop of the incident relatable to and leading to the fight between Farman Ali (PW. 5) and Niamat Ali, acquitted accused. Likewise their testimony being doubtful in respect of the involvement of Niamat. Ali accused would put the Court on caution qua the other accused On a synthesis of the evidence of the prosecution and the accepted suggestions of the defence, the following is the sequence of the events Niamat Ah, accused, got injured at the hands of the complainant party thereafter Murad Ah PW got injured allegedly by the accused party and in sequel thereto the incident entailing death of Muhammad Shafi occurred, leaving fire marks on the plank of the door of his 'door of his "deori". 19 The prosec~' cl - Ai case in brief is that after Farman PW had beaten Niaz Ah. All the accused caught hold of Murad Ali son of the accused in front of the house of the deceased and started beating him and when the deceased came forward to rescue took protection behind door of the Deori which bore the fire shot marks. 20. The defence version on the other hands is that after Niamat Ali had been injured by the complainant party, his son took message to the accused and Liaquat Ali alone armed with a gun came there and resorted to firing to save himself and also Niamat Ah as according to him, at that time Muhammad Shafi deceased armed with fire-arms had also started firing. Niamat Ali having been injured in his own house and Liaquat have come after getting information of the same and resorting to firing at Shafi in front of his own house does not give him the right of self defence or that of his brother Niamat who had been left, in an injured condition by the complainant party. Resorting to firing resulting in death of Muhammad Shafi was thus an act of retaliatory aggression on the part of the accused. 21 Even when the defence version does not appeal to reason would not mean that prosecution story be accepted out right. The prosecution is not supposed to take advantage of snags in the plea of the accused. Similarly if specific plea taken up by the accused fails, he does not become disentitled to the benefit of any other exception or doubt emerging out the circumstances of the case. However, in the attending circumstances of this case, it would be difficult to hold that the accused might have acted is under grave and sudden provocation on the pretext that on seeing a brother injured and bleeding, one was bound to loose self-control and react as sharply as the accused did in the case in hand. 22. A similarly situation arose in Sohavi's case reported in 1969 SCMR at page 375. The Hon'ble Federal Court of Pakistan held that where a person came on the seen after incident of beating was over, the plea of grave and sudden provocation could not, be made available to him as an act to wreak vengeance was different from an act under grave and sudden rovocation. In the case of Muhammad Idris (1974 SCMR 339), it was held that as an accused himself had not seen the beating given to his uncle, he could not plead grave and sudden provocation. Similarly in Alt Zaman 's case (1988 SCMR 1474), beating had been caused to mother of the accused. This naturally infuriated and provoked him and he resorted to firing resulting in the death of deceased. Here also the Court had denied the benefit of grave and sudden provocation. Applying the dictum settled in the above referred case. I hold that killing of Muhammad Shafi did not take place in a scenario of grave and sudden provocation. 23. Now I will take up the question whether both the appellants or one of then is liable for the murder of Muhammad Shafi. Liaquat All, appellant., maintains that he alone was responsible for the occurrence and Muhammad Akram had not participated in the firing. The prosecution, however, insists to the contrary. The PWs not having been relied qua the participation of Niamat Ali, one would have look for corroboration of a nature which would satisfy a judicial mind beyond reasonable doubt about the participation of each of the accused. Regarding Liaquat Ali, of course, he oes not challenge his participation, rather he justified it Therefore, no corroboration is needed as far as he is concerned. However, as far as Muhammad Akram is concerned, there is strong evidence of recovery of three crime empties matching with the gun recovered from him. This evidence has not been seriously challenged by the defence except for contending that since Five empties were recovered and only three matched with the gun of Akram, the other two must be presumed to be those fired by the deceased. The fact that two empties did nut match with the gun recovered from Liaquat be-seapk for the fact that the recovery of empties and the guns were not foisted and there was no over-reaching by the prosecution in this behalf. 24. Another fact which can be treated as a corroborative circumstances is that the incriminating suggestions put forth by the defence arid accepted by PW. 11. The same read as follows :- "The occurrence had taken place on account of quarrel relating to the children and that at that time Niamat All was present in this havcli and when the quarrel between Qurban, Farnian, Muhammad Maalak and Muhammad Shafi etc. had taken place and when Niamat Ali was injured at the hands of Muhammad Shafi etc. and became unconscious, his son Zubair Mehmood rant to the house of his maternal uncle Akram and paternal uncle Liaquat Ali and informed them that Muhammad Shafi etc, had killed his father whereupon Muhammad Akram etc. came there armed with guns 12 bore and started firing and that Muhammad Shafi etc. also fired and that Muhammad Shafi expired after having been injured as a result of a fire-shot." 25. The participation of Muhammad Akram is vividly spelt out in the above suggestion s put by the learned counsel of Muhammad Akram as first version of the accused. Where the suggestion given on behalf of the accused is accepted by the witnesses the same tentamounts to proof of the facts suggested. It was so laid down by this Court in Sher Ali Khan v. The State (PLU 1985 Cr. C. Lahore 13). Liaquat Ali does not. deny his participation and the aforesaid two factors are adequate circumstances to corroborate the testimony of the eye-witnesses in respect of the part assigned to both the appellants for having fired and killed Muhammad Shafi with common concert. Needless to add that medical evidence indicating more than one shot on the body of the deceased also lands support to the participation of both the accused/appellants. However, as the motive of the occurrence has been held to be shrouded in mystery, their sentence does not merit enhancement. Under these circumstance, it is field that the conviction and sentence of the appellants is ordered to be maintained. Both the Criminal Appeal as well as the Criminal Revision fail and are accordingly dismissed. The appellants an; on bail. They be taken into custody to serve out the remaining purl ion of sentence. K.K.F. Appeal dismissed.
PLJ 1997 Cr
PLJ 1997 Cr.C.
(Karachi) 1448
Present.
dr. ghous muhammad, J
Breg. (Retd)
ASLAM HAYAT QURESHI-Applicant versus
THE STATE-Respondent
Cr. Bail Application No 966 of 1997, dismissed on 27-6 1997.
Bail-
---S 497 Cr P C -Bail -Grant of -Prayer tor-Offence u/S 409/420/109 of akistan Penal Code, 1860 read with section 5(2) Prevention of
Corruption Act, 1947--Applicant presently confined at Army
Cardiovascular Institute and on last date of hearing it was ordered that he should not be removed till the announcement of Court order There was no material on record to show that applicant/accused was entitled to a discretionary relief due to any serious heart or other ailments Earlier order recalledInvestigating agency would he at. liberty to deal with accused in accordance with law-Application dismissed, [P 1453] A
Mr. Abdul Hafeez
Pirzada. Advocate for Applicant
Mr Akram Ahamd
Ansari.
D.A.G. for State.
Date of hearing : 27.6.1997 order
This order will dispose of bail application submitted on behalf of
Brig. (Retd) Aslam Hayat Qureshi, involved in Crime No.
6/1997 registered at P.S. FIA. SBC Karachi, for the offences under section 409/420/109 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 (Act No. II of 1947). Earlier, ha was granted protective bail by this court on 26 5 1997 However, application for bail before arrest was rejected by the learned trial court on 13.6.1997.
Thereafter, he was taken into custody by the FIA State
Bank Circle, (Rawalpindi), while presently he is admitted at the Army
Cardiovascular
Institute, Rawalpindi.
The FIR pertaining to this case was lodged on 16.4 1997 by the
Assistant Director Allah Warrayo of FIA SBC Karachi wherein he has alleged as follows .
"Consequent upon Enquiry No. 46/96 of
FIA, State Bank Circle Karachi, it transpires that on 29.6.1995 M/s Rustal
Trading Limited 2 RUE
Thalber, P.O. Box 1509, 211
Geneva-I made an offer for purchase of 50,000/ Tons of 100% broken Rice of US
$ ISO/ P M.T and another offer for the purchase of 50 OOO/- Tons of Basmati Pak 7 Rice (« US $ 350/- P M.T This offer was placed in the 238th meeting of the Board of Directors of
RECP held on Wednesday the 5th
Julv.
1995 at Head Office Karachi The Board examined the proposal of M/s
Rustal Trading Ltd & resolved to accept the price US $ 150/- P.M.T. for 40,000/
Tons of 100% broken irri/Basmati Rice & US $ 390/- P.M.T. for 40,000,'
Yoncl Basmati Pak-7 Rice respectively which was subsequently on the same date approved by the Ministry of Commerce The
Officers of RECP
&
Ministry of
Commerce iucontravention of the decision of Economic Coordination Committee of the
Cabinet decided to sell Rice to M/s Rustal Trading Ltd without calling tender on a low price in order to provide pecuniary advantage of M/s Rustal Trading Ltd and
Corresponding Loss to
RECP/Government In fact the price should have been field on the basis of prevailing price of Rice in the International Market at the relevant time which was
US $ 215/- PMT and US $ 425/ PMT respectively Hence, the Officers of RECP, Ministry of
Commerce and the buyers that are M/s Rustal Trading Ltd in collusion with each other and infurtherance of their common criminal intention by violating the rules on the subject and neglecting the price of Rice in the International Market caused a heavy wrongful loss to the RECP/Government, & corresponding wrongful gains to the beneficiaries to the tune of US $ 40/ Lacs approximately or Rs. 16/- Crores
Pnrna facie a criminal case under section 409/420/109 PPC r/w Section 5(2) 47 PCA is made out and is registered against the accused persons namely 1) S.M. Ishaque Ex-Chairman RECP 2)
Muhammad
Ali
Abbas, Director (Admn) Secretary RECP 3) Kamil Saeed
Khan, G.M (S&P)
RECP 4) AR Sial Technical Director
RECP 5) Aftab Mernon, Director Finance 6)
Brig (Retd.) Ikram Nabi, Director Commercial RECP 7) Ghulam Abbas
Soomro, Director
Commercial RECP 8) Abdul Karim
Ansan Joint Secretary Ministry of Commerce 9) Ghulam
Rasool Manager
(Export) RECP 10) Brig (Retd) Aslarn
Hayat Qureshi, Ex-Secretary Ministry of
Commerce 11)
Sarwar Abbas unknown. Representative of M/s Rustal
Trading Ltd, 12) Riaz
Laljee of M/s Rustal Trading Ltd
The case against the above named accused persons is accordingly registered as they in then respective official capacities abused their official position by betraying the trust reposed upon them by the Federal
Government as they with the active colloboration of co accused of M/s. Rustal
Trading Ltd. committed the offence as stated
A case is accordingly registered against, all the accused persons and the investigation is taken up by the undersigned "
Learned counsel for the applicant Mr.
Abdul Hafeez Pirzada/has submitted that: -
(a) the applicant is a Retired Brig, of Pakistan Army and has served the Government of Punjab as Secretary Services and
General
Administration
Department, Commerce
Secretary Government of Pakistan and
Chief Secretary
Punjab therefore it is a case of political victimisation as he has been involved in a false case with mala fide intention and ulterior motive :
(b) the principal characters who had taken the decision of sale of rice are the members Board of
Directors RECP and the applicant being the Federal Commerce Secretary had only accorded a formal approval. He is neither a beneficiary nor has gained anything out of the alleged transaction ;
(c) the co-accused, Riaz
Laljee.
and
Sarwar
Abbas, the representative of M/s Rustal Trading Ltd were are the actual beneficiaries are still absconders but the remaining co-accused named in the
FIR were granted interim anticipatory bail by this Court. Therefore following the rules of consistency the applicant/accused is also entitled to bail.
Mr. Ikram Ahmed Ansari, learned D.A.G., while opposing the bail application submitted that RECP is a government controlled body and the applicant/accused being the Federal Commerce Secretary had to ensure that the
Government funds are not squandered. He also relied on
Sajjad Hussain v.
The State
PLD 1997
Karachi 165 wherein I (Dr. Ghous Muhammad J) had observed as under :-
'While following the above principles it would also be relevant, to consider that, our nation is overwhelmed with an avalanche of corruption under whose weight it is being relentlessly crushed. Man. philosophers have said, is born kinocent, it is the institutions of society that, spoil him.
Whatever the trust in the observations, we seem to have institutionalised corruption. The bloody putrescence of the virus oozes out of every pore of the body politic and every segment of national life, lie it Government, politics, business, law. medicine, health or education. The landmark judgment of the
Hon'ble Supreme Court reported as
AI-Je'had Trust through RaiTKul
Majalt.icieei> Habib-ui-Wahah-ul-Khairi and others v. Federation of Pakistan and others
PLD 1996 SO 324 (popularly known as
(he
Judges' i:ase> has raised hopes that the Courts will now play a -significant role in eradicating corruption and other social evils. Therefore it.
is humbly submitted that in such a situation a more pragmatic approach than has been the case so i'ar on the parts of the
Courts is needed at the investigation as will as bail stages of corruption cases, because if the Courts show almost motherly lenienc\ towards people accused of high corruption then it would be impossible to successfully investigate and help bringing the culprits to book or to check the ever increasing cancer of corruption."
I have heard Mr. Abdul Hafeez Pirzada.
learned counsel for the applicant, and Mr. Ikram Ahmad Ansari. learned D.A.G.
for the State, and have perused the police papers and record.
The order in the case of
Sajjad Hussaut
(supra) was challenged in the Supreme Court. However in the Supreme Court after arguments, the learned counsel withdrew the criminal petition for leave to appeal (See Cr.
P.L.A. No. 17/1997 dated 11.2.1997, unreported).
The contention of Mr. Abdul Hafeez
Pirzada that the appellant/accused did not apply his mind and approved the decision of the
Board of R.E.C.P. "in a routine manner", hardly comes to the rescue of the accused. As a state functionary the said applicant was not supposed to grant any blind approvals. He had to apply his conscious niiiul. default whereof confirms dereliction of duty coupled with endorsing a wrong already committed by the co accused. Failure to apply one's conscious mind can hardly absolve an incumbent with regard to propel' dispensation of his duties. It was pointed out by Mr. Ikram Ahmed Ansari that the Economic
Coordination Committee of the Cabinet had decided in July. 1994 that rice upto 50.000/- M.T. quantity could not be sold without calling tenders and summary on this subject for consideration of
Economic Coordination
Committee with the approval of the then Minister for Commerce had been floated by the applicant/accused himself on 16th July. 1994 as Additional
Secretary/Incharge Ministry of Commerce
Government, of
Pakistan which was ultimately approved by the said Committee. Thereafter on 21st, July. 1994 the policy decision was communicated to the RECP by Mr. Sajjad
Akhtar.
Deputy Secretary Ministry of Commerce Government of
Pakistan for further action. Therefore it can lie safely inferred that when he received the resolution of the RECP for approval the applicant/accused was well-aware of the above decision which he should have followed in letter and spirit instead of treating the matter, "in a routine manner". This argument is factually demolished since the appellant had himself prepared the .summary to the E.C.C. of the Cabinet dated 16.7.1994 under his own signature. It would also be relevant to observe the following important circumstances which are borne out from the record :-
(a) the offer in question of
M/s. Kustal Trading Ltd. was received in RECP at Karachi on 5.7,1995 : (.hi the meeting of Board of Directors/RECP was held in RECP Office at Karachi on the same day i.e. 5.7.1995:
PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 1461 Present: ali muhammad baluch. J. GHULAM HUSSALV Applicant versus THE STATE and others--Respondents Cr. Misc. Application No. 462 of 1995, accepted on ,'i! -4-1997. Criminal Procedure Code, 1898 ( V of 1898)-- S. 561-A--QueshmentProceeding of--If case against applicant is allowed to go to trial, cannot result in conviction, held ends of justice in such cases require that proceedings should be quashed. fP. 1466] A Mr.A.O. Halcpota, Advocate for Applicant. Mr. Sh. Aziz-ur-Rehman, Advocate for State. Date of hearing : 21.4.1997. judgment By this application under Section 561-A Cr. P.C". applicant Giuliani Hussain has prayed for quashment of a criminal case pending against him in the Court of Addl. Sessions Judge, Malir, Karachi . 2. The facts of the case relevant to this application in short are that, on 27.2.1994 Anwar Ahmed Khan, S.H.O.. P.S. Gadap, Karachi , reported that when he alongwith Syed Ghazanfar Ali Kazmi. A.S.I.P. and some other members of his staff were busy in checking the vehicles at the Army Check Post at Toll Plaza , a vehicle with three persons riding in it was checked. 71 Kgs., of heroin concealed in 71 cloth bags, covered with plastic cover, beanny a particular stamp, were found laying concealed in a secret compartment between the two rear sets of that vehicle. Memo of t.he recovery nf the said heroin was prepared in presence of A.S.I. Syed Ghazanlar All. P.C. Muhammad Din and P.C. Khair Muhammad The vehicle was taken into possession and the persons riding in t.he vehicle were arrested. They are Abdul Mannan, Karamat Hussain and Bakhtiar All. The case was registered for an offence punishable under Sections 3. 4 of Prohibition (Enforcement of Haddl Order, 1979. On interrogation the accused disclosed that the heroin originally belonged to other persons, namely. Hanif Gul. Raidar. Basliir Ahmed Malik and some others, who were living in House No A/187. Block- 17, Federal B. Area, Karachi and that some quantity of heroin was also available in that house. The police thereafter on the same day raided the house No. A/187 and arrested Arshad Zarnan, Gul Qavnm Shah. Jamshed Khan. Nawaz Khan, and also recovered about 7 Kgs. of heroin powder from the house and seized a car standing in the house. The police after investigation has, however, produced a challan of the case, in which the accused Abdul Mannan, Karamat Hussain and Makhtair Ali are shown as accused while the present application Ghulam Hussain, who is an Assistant Excise Officer in the E'xcise Department. Government of Sindli. was shown as absconder. The applicant on knowing that he has been shown as absconder surrendered himself in the ..Court" of Sessions Judge and was granted pre-arrest bail and thereafter was facing the trial. He moved an application under Section 265-K, which was rejected. Thereafter the present Or. Misc. Application under Section 561-A Or. P.O. has been filed. 3. The contention of the applicant Ghulam Hussain was that in fact the Excise Police on an information that a huge quantity of heroin was being brought to city had laid a trap on Super Highway on 26.2.1994 at about 6.00 a.m. which continued up to about 3.30 p.m. when the vehicle coming to Karachi was spotted by the Excise Police. The Excise Police tried to stop that vehicle but the driver did not stop. The vehicle w f as given a chase and finally when the vehicle reached at Toll Plaza near Karachi , the excise Police captured ii and two persons sitting in the vehicle were arrested and handcuffed on the spot. Before the Excise Police could further proceed in the matter, the Army Personnel, who were performing their duties at the Check Post, at Toll Plaza, intervened and took the custody of the handcuffed men as well as the vehicle from the ciistocly of the Excise Police and on discovering that, heroin was concealed in the vehicle, they took it on themselves to he the persons who discoverer! the heroin and calling the police of Gadap Police Station, they got the case registered as disclosed above. Tins happened on 27.2.1994 in the early hours of the day i.e. 3,00 a.m. 4. After about 2 weeks i.e. on 16.3.1904 Gadap Police produce'] the arrested accused, namely, Abdul Mannan, Karamat Hussain and Bakhtiar Ali before a Magistrate First Class, who recorded their confessional statements. In the confessional statements of the accused, they disclosed thai they had started their,journey from Peshawar wlierefrom they were brineinir the heroin in the vehicle for the delivery iu Karachi in Bungalow Xo. A-1ST. Block 17, F.B. Area. Karachi. They were checked and delected at the Toll Plaza at the Army Check Post. They also stated thai some distance-prior to their reaching Toll Plaza at "Khathore More' a car met them winch. according to the accused, belonged to Excise Police and that ii had come to disclosed that as soon as they stopped their vehicle at the Army Check Post at Toll Plaza, the car said to he belonging to Excise Police and said to be driven by the present applicant, sped away and thus they were captured by the staff at the Army Check Post. 5. Thus, on the basis of the three confessional statements of the accused the applicant was challaned in the case. However, the story does not end here. On the same day i.e. 27.2.J 994 the Excise Department claimed that they were deployed on Super Highway on 26.2.94 from 6.00 a.m. on the spy information that such vehicle was likely to arrive. On 26.2.94 at 3.30 p.m. when they noticed the vehicle and they signaled it to stop, the vehicle did not stop. The chased it and when they succeed in stopping it near the Check Post at Toll Plaza, they arrested the two persons sitting in the vehicle and handcuffed them and wanted to proceed further when the Army Personnel intervened and took away the vehicle and the persons arrested by them. This fact was communicated by the applicant in writing to the irector General, Excise & Taxation Department, Karachi , through a letter dated 27.2.1994. On the basis of such information, the Secretary. Excise & Taxation Department. Mr. Masood Alain Rizvi wrote a D.O. letter to Mr. Afzal Ali Shigri, the Inspector General of Police Sindh. Karachi, telling him that the efforts of the Excise Department in detecting the vehicle with heroin had been hijacked and belittled by the Police Department, who had registered the case at the instance of the Army and taken over the detected vehicle. The Inspector General of Police on receiving such letter had also communicated to the Deputy Inspector General of Police by enclosing a copy of such letter, but it. appears that since the Gadap Police and produced a challan before the trial Court no further action could be taken by the Police nd the matter was left in the Court to be decided. 6. he main contention of the learned counsel for the applicant is that there is absolutely no evidence of any kind against, the applicant, worth is involvement, as tated by the police except the judicial confessions of the three co-accused, which too were recorded after two weeks of the arrest. The contention further is that the police having failed to collect, .any other evidence which may he corroborated by the confessional statements, it cannot be said that the case against the applicant can result into conviction. The argument of the learned counsel for the applicant is that if the prosecution case as it stands, is taken to be true, still it; cannot result into conviction of the applicant as the confessional statements of the co-accused alone cannot be made basis of conviction of the applicant. The learned State Counsel has endorsed the view of the learned counsel for the applicant, and candidly conceded that this is a tit, case where the proceedings against the applicant, should be quashed by exercising powers under Section 561 -A Cr. P.C. as he had scrutinized the entire police file and had found that, excepting the word in the confessional statements of the co-accused, there was no further evidence of any nature against the applicant to find his implication in the case. 1. I have given due consideration to the arguments of the learned counsel and have also gone though the confessional statements of the three accused, the 161 statements of the members of the police party, who are said to be present at the time of the incident at the Army ("beck Post near Toll Plaza, in whose presence three applicants were said to be arrested by the police alongwith the vehicle, where from the heroin was recovered. In the confessional statements, all he three accused stated that, as soon as their vehicle had stopped at the Army Check Post and they were approached by the police party and the Army Officers, the applicant had introduced himself as Excise Inspector to the Army and the Police personnel and disclosed that he had discovered the vehicle in dispute on the spy information and that he was taking the vehicle with himself but thereafter since the police and the Army Personnel took over the vehicle he escaped from there and did not stay there. This part of the story is missing from the statements under Section 161 Cr. P.O. of P.Ws. P.O. Khair Muhammad, P.C. Muhammad Din and A.S.I.P Syed Ghazanfar Ali Kazmi, who are the main witnesses of the police and were examined according to the record on 27.2.1994 during investigation by S.H.O. Anwar Ahmed Khan of P.S. Gadap. None of these police witnesses in their 161 statements have disclosed of the presence of the applicant or any Excise Inspector with a car or the escape of any such person from that place on refusal by the Army Personnel and police personnel to allow him to take away the vehicle. 8. It is apparent hat investigation has been completed and whatever evidence is available with he prosecution has been disclosed. The learned State counsel on the basis of such position has conceded that this is a fit case for quashment of the proceedings against the applicant. 9. As regards the evidence of the co-accused in their confessional statements against the applicant the Federal Shariat Court in the case of Arif Nawaz Khan & 2 others vs. The State, reported in PLD 1991 Federal Shariat Court, page 53 has held that under Islamic jurisprudence, the confessional implicates the maker thereof, but not, the co-accused even hough the maker has implicated himself as the co-accused, unless there is other proof against the co-accused. It has been held in this case that such confession is considered as 'Quarinah" < ^-^^ ' ie - a circumstantial evidence, and it can be made basis for conviction only when it is corroborated by other independent evidence. While giving reasons for such conclusion the learned author of the judgment Mr. -Justice Tanzilur Hehman, as he then was, had held that the accused confessing his crime becomes "Fasiq" and ceases to be 'Ad/7' and thus his evidence is not acceptable against co-accused unless corroborative by other independent evidence. Ii was also held that such evidence is akin to corroboration evidence and. therefore, cannot be the sole basis of conviction. 10. Thus, it is necessary to find out in this case if there is any other evidence against the applicant excluding the judicial confession of the coaccused. Neither the record shows the presence of other independent evidence against the applicant nur tin- learned counsel for the State is aware of its inspite of his having sought instructions from the investigating officer. No doubt, there is an allegation which, if believed, could constitute an offence against the applicant. Whether under such circumstances in presence of the allegations which, if believed, could constitute an offence, the proceedings at the pre-mature stage as in present case ought to be quashed ? The answer to this question is found in the case of Mxt. Hamida vs. The Stare & another, reported in PLD 197.'i Karachi 478. the judgment of which was delivered by Justice Tufail Ali. A Rehman, the then Chief Justice of this Court. In order to appreciate the view of the learned Judge, paragraph No. f> of the above judgment is ((noted here verbatim : "5. It, was argued before me by the learned counsel for the respondent No. 2, Mr. Muhammad Sulaiman Qureshi and the Assistant Advocate-General who appeared for the State that so long as there is an allegation which, if believed, could constittite an offence. I ought not to quash such proceedings at the premature stage but allow them to go to trial the result depending upon the appreciation of the evidence that is recorded at the trial. Now while I agree that, the most usual case which would call for quashment under section 561-A of the Cr. P.C. would be a case whether the allegations themselves may constitute no offence at all, that section in its own term does not stage anything of the kind. Indeed as I understand that section purports to give no new powers to the High Court, but re-affirms an inherent power already existing "to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Obviously to permit a prosecution to continue upon allegation which do not constitute an offence can only be an abuse of process but it does not I think follow that whenever such an allegation exists, however, flimsy the evidence which supported it and however transparently dishonestly the allegation is made the Court must stand by and allow obviously innocent person to suffer all the agonies of a trial often prolonged in the matters. I cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassment, of the accused persons whose acquittal is in the way certain ami that this would be an abuse of the process of the Court and that in any event under Section 561-A in order to quash the- proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the force of a trial which can result, in an acquittal only." 11. As already discussed in the case of Arif Nawaz Khan, the confession of the co-accused without presence of any supporting evidence cannot be made basis of conviction. I hold that if the case against the ^applicant is allowed to go to the trial, cannot result in conviction. Hence the ends of justice in suchcase require that such proceedings should be quashed. 12. Yet another case is the case of Mst. Zaitoon uk . The State & another, reported in 1979 P.Cr.L.J. 279, wherein when an opinion was formed that the charge was not likely to succeed and the accused was found to be entitled to be acquitted, the continuity of the proceedings in such case was found to be an exercise in futility and the case against the applicant was quashed. 13. In the case of Pir Mazharul Haq vx. The tate reported in 1992 P.Cr. L.J. 1910, a division bench of this Court, consisting of Justice Xasir Aslam Zahid,, the then Chief Justice of this Court, and Justice Nazi in Hussain Riddiqtii, it was held that the confession of co-accused after the promulgation of Qanoon-e-Shahadat Order, 1984, which was a proof against the person making it but as against the persons, who were being tried jointly for the same offence, it was taken into consideration as "a circumstantial evidence'. It was held in the above case that in the absence of any other evidence available with the prosecution at that stage no conviction can be sustained. 14. As such I am clear in my mind that if the case against the applicant is allowed to remain on record, it will not enhance interest of justice in any manner. Rather I feel that it will result into abuse of the process of the Court as possibility of conviction of the applicant in such circumstances of the case is lacking. Under these circumstances, this Cr. Misc. Application under Section 561-A Cr. P.O. is accepted and it is ordered that the proceedings against the applicant, are hereby quashed. (AAJS) Petition accepted.
PLJ 1997 Lahore 1466 PLJ 1997 Lahore 1466 [Bahawalpur Bench] Present: MllHAMMA!) NASKEMClIArrmRI, J. Mst. RAZIA SHAHEEN-Petitioner versus STATE-Respondent Criminal Misc. No. 502-B of 1997, accepted on 17-7-1997. (i) Criminal Procedure Code, 1898 (V of 1898)- -Ss. 154 + 498-A-Police Rules 1934. Rule 24.r>--QaiKin-o-Shahdat order. 1984-Art. 158-Const.iut.ion of Pakistan . 1973 Articles 4 Hi and 2.5Hi-- Sealing of FIRWehther or not FIR can be sealedQuestion ofThere is no provision empowering any authority to seal FIR registered against accused person! s)~FIR is sealed so that, adverse party is put to inconvenience whose honour and prestige is placed at stake--It is due to this conduct, of police that superior courts exercise discretion to admit accused to pre-arrest bail even though a copy of FIR is not. annexed and only number of FIR with year and police station is mentionedIf FIR of any case, is sealed: remaining FIR's of same Register comprising 200 pages shall have also to be sealed which is not practically possible-No accused can be allowed inequitable treatment by sealing his FIR while keeping FIRS of others as open to their reachHeld : FIR canuot by seald by police itself and/or at, the direction of any executive authority of any rank. ' [Pp. 14fi9. 1470 & 1471] B to F (ii) Bail-- -S. 498 read with S. 497 Cr.P.C. and Pakistan Penal Code Ss. 420/468/471-Bail before arrest-Sections 468 and 471 PPC not cognizable-Police had not obtained and warrant or permission from Area Magistrate to- register or investigate case under these sections, while an offence under Section 420 PPC is bailable-There would be no alternative but to accept bail applicationQualification for appointment as school teacher was simple graduationSince petitioner a female is admittedly having qualification of M.A. whose marks have been verified as 441 instead of 451 as shown in her result card-It can safely be expressed that afore-said verification is not a source of wrongful gain by etitioner/accused or any wrongful loss to complianant-Case of etitioner has become that of further inquiryShe is a female and her case is also covered by Proviso (1) to sub section 1 of Section 497 Cr.P.C.-bail allowed. [P. 1471 & 1472] G to K 1991 P.Cr. L.J. 2418, PLJ 1996 Cr. C. 799 rrf. (iii) Lahore High Court Rules and orders-Volume III-- -RIe 14-Jurisdiction of High Court, for hearing Bail application directly-In exceptional cases, application for pre-arrest bail can be moved direct.!}' before High Court as provided in Note II rule 14 chapter X of Lahore High Court, Rules and orders Volume III. though ordinarily bail application of every nature is to be moved lief ore and disposed of by Court, of original jurisdiction. [P. 1468] A Syed Munau'ar Hitusain Naqvi, Advocate for Petitioner. Mr. Shabbir Ahit>ed Afghani, A.A.G. for Respondent. Date of hearing : 17-7-1997. judgment Mst. Razia Shaheen petitioner is the accused of crime case No. 396/97 registered at. P.S. City Bahawalnagar under sections 420/468/471 PPC at the instance of Deputy Commissioner Administrator Bahawalnagar Public School Bahwalnagar. 2. Apprehending her ;)rrest Mst. Razia Shaheen has filed this petitioner for her admission lu pre-arresl hail. :;. This petition \,i,s field on I 1-7-1997 when the petitioner took up tin' stand that the Fiist Information Report had heen sealed and neither a ropy of the' same is available nor has heen made available to her inspite of the requests.-'efforts made thereof. However, she came to know the number of the FIR. 4. On 11-7-19:17 Mst. Sliaheen petitioner was admitted to interim pre-arrest hail. 5. It, would he proper to express at this stage that ordinarily bail application of every nature is to be moved before and disposed of by the Court of original jurisdiction. However, in exceptional cases the application can he moved before the High Court as provided in Note II rule 14 Chapter X . of the Lahore High Court Rules & Orders Volume III. Since the contention of the petitioner was. which is also correct, that the Deputy Commissioner is the complainant of the case, the matter was taken up directly by this Court for disposal in accordance with law. 6. FIR No. 396 dated 4-7-1997 was registered at Police Station City Bahawalnagar under sections 420/458/471 PPC on the written complaint of the Deputy Commissioner/Administrator Bahawalnagar Public School Bahawalnagar wherein it was alleged that Mst. Razia Sliaheen daughter of Chaudhry Abdul Ghafoor and heen serving as the teacher in the Bahawalnagar Public School Bahawalnagar since 17-4-1994 whose result card of M.A. (Economics) was got verified from the Controller (Examinations) Islamic University Bahwalpur who has reported that the same was tampered with and that she being a 3rd Divisioner posed herself to he a 2nd Divisional 1 in M.A. (Economics). Formal FIR was registered on the basis of letter No. BPS/43 dated 4-7-1997. 7. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General for the State and gone through the record. Learned counsel for the petitioner argued that the copy of the FIR was not made available to the petitioner which was sealed without any justification which is enough to make out the mala fides of the prosecution case as the same has arisen a suspicion about its correctness. He added that he offences under section 468/471 Pakistan Penal Code being not cognizable and the police had not. obtain any warrant or permission from the Area Magistrate to register or investigate the case under the said sections, the petitioner, who is an education female, is entitled to he admitted to prearrest bail especially when section 420 PPC' is bailable. He added that on the written request made by the Deputy Commissioner Bahwalnagar the Controller of Examinations Islamia University Bahawalpur intimated tha Mst. Razia Sliaheen and secured 441 marks instead of 451 marks mentioned on her Result, Card which was not enough to implicate the petitioner as the maximum qualification for the teaching job she obtained was simple graduation and tJius no wrongful gain was acquired by her. He added thai due to the tiling of the writ petition against her removal by the petitioner. the matter has been taken in (lie aforesaid manner tu police to put the pressure against her. On the contrary the learned Assistant Advocate General argued that the petitioner had secured 441 marks while in the result card she has shown 451 marks and for that reason she was liable under section 420/468/471 PPC who. as such, is not entitled to lie admitted to prearrest bail. He, however, admitted that the qualification to secure the teaching job against which Mst. Kazia Shaheen was appointed was simple graduation. He added that the First Infoimation Report was not sealed and was available, a copy of which was not procured by the petitioner. 8. First of all I would like to dispose of the controversy about the Sealing of First Information Report registered against an accused. Learned counsel for the petitioner has shown me the Form submitted before the Area Magistrate whereby the written request was made for the supply of the copy of the FIR and it was written twice on the same that, the copy of the FIR was not sent to the said Couit. Anyhow, at present the copy of the First Information Report has been produced in Court. This difficulty is always faced when the First Information Report is got registered by the executive authorities holding high pedestal. Muss fuss amanat.es whenever such a situation arises. It would be better to give the verdict as to whether or not the First Information Report can be Sealed. A perusal of Chapter XIV of the Code of Criminal Procedure inclusive of section 154 about the information in cognizable cases has made out that there is no provisions empowering any authority to seal the First Information Report, registered against the accused persons! sk It would be convenient to reproduce as under Rule 24.5 contained in Chapter XXIV of the Police Rules 1984 :-- "24.5. First Information Report Register. (I) The First Information Report Register shall be a printed book in Form 24.5(1) consisting of 200 pages and shall be completely filled before a new one is commenced. Cases shall bear an annual serial number in each police station for each calendar year. Every four pages of the register shall be numbered with the same number and shall be written at the same time by means of the carbon copying process. The original copy shall be preseiTed in the Police Station for a period of sixty years. The other three copies shall be submitted as under :- (a.) One to the Superintendent of Police or other gazetted officer nominated by him. (b) One to the Magistrate empowered to take cognizance of the offence as is required by Section 157, Code of Criminal Procedure. (c) One to the complainant--unless a written report in form 24.2(1) has been received in which case the check receipt prescribed will be sent." 9. In the aforesaid clause (c) the written report in Form 24.2d> pertains to written reports by village Headman (Lambardars). 10. In this regard it is also proper to reproduce as under Section J58 of Qanun-e-Shahadat Order, 1984 : 158. Production of documents. A witness summoned to produce a document shall. if it is in his possession or power, bring it to Conn. notwithstanding any objection which there may he to itsproduction or to its admissibility. The validity of any objection shall be decided on by the Court. (2) The Court, if it sees fit, may inspect the document. unless it refers to matters of state, or take evidence to enable it to determine on its admissibility. (3) If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks tit. direct the translator to keep the contents secret, unless the document is to be given in evidence, and, if the translator disobeys such direction, he shall be held to have committed an offence under Section 166 of the Pakistan Penal Code Act (XLVof 1869). 11. This section is relevant with respect to the controversy bem disposed of because where a person is directed to produce some document. he must produce it and notwithstanding of the fact that it is privileged document. If the privilege is claimed then it is for the Court to determine whether the document of the kind in respect of which privilege should be allowed 01 not. The Court may to that end inspect that document. It can safely be deduced that the FIR which is to be maintained according to Para 24.5. Chapter XXIV of the Police Rules 1934 cannot be retained a privileged document even before the matter is brought to the notice of the competent Court as it is legal right of the complainant or the accused to get copy of the FIR either from the Police Station or from the office of 'he- Superintendent of Police or his authorised person or from the Court of the Area Magistrate. Without being disrespectful to any concerned or -un concerned person in the matter I have to express that the FIR is -sealed that the adverse party is put to inconvenience whose honour and prestige ^ placed at stake as according to Section 49K-A of the Code of Criminal Procedure without a copy of the FIR an application for pre-arrest bail cai.r. be filed. It is due to its conduct, of the police that the superior Courts Court of Session exercise the discretion and jurisdiction to admit the accuse-': to pre-arrest bail even though a copy of the FIR is not annexed and only the number of the FIR with the year and the Police Station is mentioned. 12. Since theie is no provisions in the substantive or procedural law of the country sealing the First' Information Report, I hold that the First Information Report cannot be sealed by any authority. It shall not be out of place to express that the original copy has to be preserved in the police station for a period of sixty years which is part of the register consisting of 200 pages. If the First Information Report of any case, ordinary or sensational, is sealed; the remaining First Information Reports of the same register comprising 200 pages shall have also be sealed. It is not practically possible and also would not be taken in good tastes especially when an accused cannot be deprived of the justice of the Court and according to the provisions of Section 498-A Code of Criminal Procedure he cannot enter the oital of the Court for his admission to pre-arrest bail without copy of the First Information Report. In the instant matter the number and the date-of First Information Report came to the knowledge of the petitioner and the same was entered in the petition under disposal and for that reason in the circumstances of the matter the temporary relief was granted to her. 13. An other aspect of the matter cannot be lost sight of which is to this effect that according to Article 4(1) of the Constitution it is the right of every citizen to "enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen where ever he may be and of any person for the time being within Pakistan'. Moreover equality of citizens inie.r se has also to play the vital role in this regard. Article 25(1) of the Constitution reads as under :- 25(1) All citizens are equal before law and are entitled to equal protection of law. 14. In view of the aforesaid aspect of the matter no accused can be allowed inequitable treatment by sealing his FIR while keeping the FIRs of the others as open to their reach. In short I hold that the First Information Report cannot be sealed, by the police itself and/or at the direction of any executive authority of any rank. This controversy is answered in the aforesaid manner. 15. With respect of the merits of the matter, I have to rely on the dictum enunciated in Ghulam Qasirn «/m,s Muhammad Qasim & other vs. The State (1991 P.Cr. L.J. 2418) wherein it has been commanded that the offences under Sections 468 and 471 Pakistan Penal Code being no cognizable as the police had not obtained any warrants.or permission from the Area Magistrate to register or investigate the case under these sections, while an offence under Section 420 Pakistan Penal Code is bailable, there would be no alternative but to accept, the bail application. The aforesaid ruling has also been followed in Muhammad Azam vk. The State (PLJ 1996 Criminal Cases (Lahore) 799 (Multan Bench). In the instant matter the complaint was sent to the police by the Deputy Commissioner as the Administrator Bahawalnagar Public School Bahawalnagar who had not passed the executive order in his capacity as the Magistrate of the District being the representative of the State. As such through the attraction of the aforesaid rulings the petitioner-accused is entitled to be admitted to prearrestbail. 16. The qualification for appointment as school teacher in Bahawalnagar Public School Bahawalnagar was and is simple graduation. Since the petitioner is admittedly having the qualification of M.A. (Economics) whose marks have been verified by the Controller nf Examinations Islamia University Bahawalpur as 441 instead of 4f>l as shown in her result card. She was a gradiiate at the time of her joining the service as a school teacher. She passed her M.A. (Economics) Examination during the year 1985 and obviously did her graduation two years prior to that, while she obtained the job during the year 1994. As such it can safely be expressed that the aforesaid verification of the Controller of Examinations Islamia University Bahawalpur is not. a source of wrongful gain by Mst, Razia Shaheen petitioner-accused or airy wrongful loss to the complainant to the deteriment of the affairs and welfare of the Bahawalnagar Public School Bahawalnagar. It shall not be out of place to express that according to the University Calendar "errors and omissions are to be' accepted", meaning thereby that the University Authorities may be at fault in the matter of making the entry in the result card. This power of correction has been kept open by the University. The degree is issued afterwards, while the result card is issued just after the announcement of the result of the examination. It is a matter of common knowledge that the convocations are not being onducted by the Universities and Colleges and for that reason the aforesaid verification of the marks by the Controller of Examinations Islamia University Bahawalpur is not enough to strengthen the case of the prosecution against the petitioner-accused which as such has become that of further inquiry. She is a female and her case is also covered by the Proviso (1) to sub-section 1 of Section 497 Come of Criminal Procedure which principle is also attracted to a matter of p re-arrest bail. In the circumstances I hold that it is a tit case to admit Mst. Razia Shaheen to pre-arrest bail than to remit her to jail. 17. For what has been said above, I accept this application and admit Mst. Razia Shaheen petitioner-accused to pre-arrest bail in the sum of Rs. 5.000/- with one surety in the like amount to the satisfaction of the learned Area Magistrate Bahawalnagar. This order shall he got executed by the petitioner, as directed above, within a period of 20 days failing which this order shall become infructuous and she shall be liable to face the legal consequences. (MYFK) . Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1473 Present: muhammad naseem chaudhry, J. ABDUL QADEER QAMAR and others-Petitioners versus STATE-Respondent Crl. Misc. No. 212-Q of 1997, dismissed on 31.7.1997. Criminal Procedure Code, 1898 (V of 1898)-- -Ss. 561-A, 190, 347, 227 Pakistan Penal Code Ss. 298, 298-A and 295(O- Use of derogatory remarks in respect of the Holy Prophet (P.B.U.H.)- Submission of Challan U/S 298-A PPC-Conclusion of trial under said charge-Application for amendment of charge from section 298-A PPC to 295-C PPC-Acceptance of-Case sent to Session Judge for re-trial- Quashment petition against-Under section 227 Cr.P.C.-Any court may alter or add to any charge at any time before judgment is proneunced- Trial Magistrate at the time of writing final judgment, came to conclusion that offence prima facie falls under section 295-C PPC and not under section 298-A-After expressing his opinion he had no alternative but to proceed under section 347 Cr.P.C. and to send case to court of session as an offence under section 295-C PPC is triable by Court of session- Magistrate has rightly not proceededIn the complaint allegation is about the use of derogatory remarks in respect of the Holy Prophet (P.B.U.Hi and not about Holy Personages, hence, opinion expressed by Additional Sessions Judge is legal, valid and operative-Petitioners are liable under section 295-C PPC and triable by court of session-Petition dismissed. [Pp. 1476. 1477 & 1479] A to G 1980SCMR402re/: Khawaja Sarfraz Ahmed, Advocate for Petitioners. Nemo for Respondent. Date of hearing: 31.7.1997. judgment Hakeem Iqbal Ahmad complainant submitted the application before the SHO Police Station Sharaqpur, District Sheikhupura on 28.10.1988 with the allegation that on Tuesday when it was the Day of Eid-i-Milad-im-Nabi some young persons belonging to Qadiani religion including Ashfaq, Tanveer and Shahbaz were pasting the pamphlets of Qadiani religion in Sharaqpur City preaching and professing their faith. The sentiments of the persons who read the pamphlet were injured. Maqsood Ahmad, Ahmad Sabir AH. Sh. Muhammad Habib and Sh. Ashraf Ali went to the houses of the aforesaid boys who entered into arguments and they came back. On that date (28.10.1988) inside New Gate Sharaqpur in front of the shop of Jamil Potseller there were present Maqsood Ahmad, Sh. Ahmad Sabir All ar.d Sh. Muhammad Habih. The aforesaid Ashfaq and another person arrived and again started professing about the fath of their religion and invited them to their house who intimated them that Abdul Qadeer, preacher of their religion, was present in their house who would satisfy them. They -.vent to their house where the faith of Qadiani religion was professed and propagated. In the meanwhile, he (complainant), Mahmood-ul-Hassan. Hafiz Naeem-ur-Rehman and Sh. Jamil Ahmad also reached there. Hafiz Xaeemur-Rehman and Mahmood-ul-Hassan stressed about the truthfulness of the Religion of Islam, but the preacher of the Qadiani religion misinterpreted the Islamic Religion who used derogatory language in respect of the Holy Prophet Muhammad (peace be upon him). They asked him to refrain frorr. doing so and also from removing the Kalma "they had written in front of the house' who refused in the matter. According to him Abdul Qadeer preacher of Qadiani religion, Ashfaq and Shahbaz used the derogatery sentence that "all what you consider (have the feelings) about Mirza Ghulam Ahmad they say the same about Muhammad (peace be upon him)." The complainant prayed for taking the legal action in the matter. On the basis of the afoi e=^id complaint formal FIR No. 399 dated 28.10.1988 was registered under section 298 PPr at Police Station Sharaqpur. Diwtrict Sheikhupura. A perusal :" trie file has made out that the case was half heartedly investigated by the ponce and the challan for the prosecution of the accused namely Abdul Qadeer. Shahbaz and Ashfaq Ahmad under section 298-A Pakistan Penal Codt '.'.as submitted in the Court of the Area Magistrate Police Station Sharaqpur '.vac charged the accused persons on 9.7.1991 under section 298-A Pakistan Penal Code. The Area Magistrate recorded the statements of Hakeem Iqbal Ahmad PW-1. Maqsood Ahmad PW-2, Mahmood-ul-Hassan PW-3 and Hafiz Naeem-tir-Rehman PVV-4. However, the Investigating Officer was not examined. Abdul Qadter, Ashfaq Ahmad and Muhammad Shahbaz accused persons were examined under section 342 of the Code of Criminal Procedure who denied the version of the prosecution case. Abdul Qadeer Qarnar appeared as his own witness in defence on solemn affirmation under section 340(2) of the Code of Criminal Procedure on 27.3.1994. 2. It was on 17.10.1994 that Hakeem Iqbal Ahmad complainant filed an application before the trial Magistrate that the accused persons were prinia facie liable under section 295-G Pakistan Penal Code and that the charge may he amended. This petition remained pending while the trial continued. This application was disposed of on 14.3.1995 by the trial Magistrate who expressed that derogatory remarks were expressed about the Holy Prophet Muhammad (peace be upon him) and the instead of section 298-A Pakistan Penal Code, the accused were prima facie liable under section 295-C Pakistan Penal Code. Expressing about the nonexistence of jurisdiction to hear the case prima facie falling under section 295-C Pakistan Penal Code, the trial Magistrate sent up the same to the learned Sessions Judge, Sheikhupura as contemplated under section 190(3) of the Code of Criminal Procedure. 3. The matter came up before Mr. Ijaz Mahmood Chaudhri, Additional Sessions Judge, Sheikhupura who expressed the opinion that the aforesaid order dated 14.3.1995 was not a speaking order and passed the order to send back the file to the trial Court to adjudicate upon the matter on the basis of the material available on the record. He placed the matter before the learned Sessions Judge, Sheikhupura vide order dated 16.5.1995 for passing the necessary orders. Vide order dated 21.5.1995 learned Sessions Judge, Sheikhupura sent back the file to the Court of Mr. Muhammad Siddique Civil Judge/Magistrate 1st Class Ferozewala for further proceedings in the light of the reference made by Mr. Ijaz Mahmood Chaudhri, Additional Sessions Judge, Sheikhupura. 4. Thereafter the trialMagistrate wrote a detailed order comprising five pages and expressed the view that the accused persons are prima facie. liable under section 295-C Pakistan Penal Code and that the trial could be conducted by the learned Court of Session at Sheikhupura. Consequently he sent up the case to the learned Sessions Judge as contemplated under section 190(3) of the Code of Criminal Procedure. 5. The learned Sessions Judge, Sheikhupura entrusted the matter to the learned Additional Sessions Judge, Sheikhupura. On 18.12.1995 the accused persons made the application before the learned Additional Sessions Judge wherein they expressed that the trial was concluded and arguments were heard by the Magistrate 1st Class and that the trial Magistrate had committed an illegality in making a reference of the case to the Court of Session without deciding the same with respect to the charge framed under section 298-A Pakistan Penal Code. It was prayed that the matter may be sent back for recording the judgment for the alleged commission of the offence under section 298-A Pakistan Penal Code. 6. At present the case is on the file of Rana Zahid Mahmood Additional Sessions Judge, Sheikhupura. Before the learned Additional Sessions Judge it was contended that the trial after the framing of the charge under section 298-A of the Code of Criminal Procedure Was concluded and the same should have been disposed of by the trial Magistrate who could not alter the charge and could not send up the case to the Court of Session. After hearing the parties learned trial Court expressed the view that a perusal of the recitals of the First Information Report has made out the prima facie. existence of the charge under section 295-C Pakistan Penal Code, that were was no lacuna in the order passed by the trial Magistrate under section 347 of the Code of Criminal Procedure who had expressed that the case has to be tried by the Court of Session and that thereafter he has rightly passed the order under section 190(3) of the Code of Criminal Procedure whereby he has sent up the case to the Court of Session. 1. Feeling aggrieved the petitioners-accused have filed this petition under section 561-A of the Code of Criminal Procedure for the quashment of the proceedings conducted by the Magistrate 1st Class and also the proceedings pending before Rana Zahid Mahmood Additional Sessions Judge, Sheikhupura. According to the petitioners "they believe in the prophethood of Rasool-i-Pak and also believe that he is Afzal-ur-Russal and that. Holy Quran is a revealed Book". They maintained that they are being vexed since long. 8. I have heard the preliminary arguments. The contentions of the learned counsel for the petitioners are that after the conclusion of the trial the charge framed under section 298-A Pakistan Penal Code could not be altered/charged and no.opinion could be expressed by the trial Magistrate 1 st Class about the prirna fade attraction of section 295-C Pakistan Penal Code and that the case could not be sent up in terms of section 190(3) of the Code of Criminal Procedure to the Court of Session. He laid the emphasis that the petitioners-accused are the Qadianis and are being vexed for the last about one decade against whom a false case has been got registered and that it being a matter of abuse of process of law the proceedings are liable to be quashed in toto. 9. I do not agree with the learned counsel for the petitioners. At this stage it would be proper to reproduce as under section 227 of the Code of Criminal Procedure: - "227. Court may alter charge. --(1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused." 10. A bare reading of the aforesaid section 27 of the Code of Criminal Procedure has made me to express that the Court has the power to add or to alter/change a charge. My feeling is that at the time of the writing of the final judgment the trial Magistrate came to the conclusion that the B offence prim a--facie falls under section 295-C Pakistan Penal Code and not under section 298-A Pakistan Penal Code. It would be convenient to refer to the command made in the ruling published as Nadir Shah us. The State (1980 SCMR 402) that the Court can alter the charge and proceed accordingly before pronouncement of judgment. . In the instant matter the trial Magistrate, after expressing his I opinion about the pnma-facic attraction of section 295-C Pakistan Penal ~ Code had no alternative but to proceed tinder section 347 of the Code of < 'riminal Procedure which reads as under:- "1)47. Procedure when, after commencement of trial, Mut;intrate finds ru.s-r should be tried by Court of Session or signing judgmem,, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Session or High Court, for trial." 10. Legally section 347 of the Code of Criminal Procedure applies when after commencement of trial and before the announcement of the final judgment the Magistrate finds that, the case should he sent to the Sessions Court. When the trial Magistrate had expressed the aforesaid opinion obviously he had to proceed under section 190(3) of the Code of Criminal Procedure keeping in view the punishment under section 295-C Pakistan Pakistan Code whereby the punishment provided is death or imprisonment for life and also the fine. Under section 190(3) of the Code of Criminal Procedure "a Magistrate taking cognizance of a case under subsection (1) of section 190 of the Code of Criminal Procedure of an offence trial exclusively by a Court of Session shall without recording the evidence send the case to the Court of Session for trial". When section 347 and section 190(3) of the Code of Criminal Procedure are read together the Magistrate 1st Class, Ferozewala is held to have proceeded in accordance with law. 11. For the sake of academic discussion which is also linked with the dispute in hand, I would like to touch at this stage an other provision of law whereby a Magistrate can lay of his hands about the disposal of a case. In this regard section 346 of the Code of Criminal Procedure is reproduced as under:- "346. Procedure of Magistrate in cases which he. cannot dispose of.-(l) If, in the course of an inquiry or trial befor a Magistrate in any district, the vidence appears to him to warrant a presumption that the case is one which should be tried or sent for trial to the Court of Session or the High Court, by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature to the Sessions Judge or to such other Magistrate, having jurisdiction; as the Sessions Judge directs. (2) The Magistrate to whom the case is submitted may, if, so empowered, either try the case himself or send the case for trial to the Court of Session or the High Court." 12. The provisions of section 346 apply where the offence committed is apparently one which the Magistrate is not competent to try keeping in view column 8 to Schedule-II of the Code of Criminal Procedure as in the instant, case as according to Column 8 to Schedule-II concerning section 295- C Pakistan Penal Code an offence under section 295-C Pakistan Penal Code is triable by the Court of Session (which shall be presided over by a Muslim) ecause the punishment is death or imprisonment for life and fine. The case is hand is of the said category and the Magistrate has rightry not proceeded. If a Magistrate is personally interested in matter as provided under section 556 of the Code of Criminal Procedure he shall submit the case with a brief report explaining his position to the Sessions Judge and can send the file to him. Likewise if it is a case of tender of pardon to an accomplice the District Magistrate or a Sub-Divisional Magistrate after tender of pardon sub-section (.1) of section 337 of the Code of Criminal Procedure shall not hear the case. Under section 482 of the Code of Criminal Procedure where the Court considers that a case of contempt falling under section 480 Code of Criminal Procedure should not be dealt with by him due to the circumstances mentioned in section 482 of the Code of Criminal Procedure, lie shall fonvard the case to an other Magistrate having the jurisdiction to try the same. Lastly under section 487 of the Code of Criminal Procedure except a> provided in. sections 476, 480 and 485 of the Code of Criminal Proceduie no Judge of a Criminal Court or Magistrate other than a Judge of a High Court shall try any person for any offence referred to in section 195 of the Code of Criminal Procedure when such offence is committed before himself or in contempt of his authority or is brought under his notice as such Judge or Magistrate in course of a judicial proceedings. Obviously the wisdom behind is that the same person should not decide a matter which he may have already prejudged. 13. The upshot of the aforesaid discussions is that the Magistrate 1st Class proceeded correctly keeping in view the procedural law and had no ~i^,.Tia±i Kuttosand un the case to the Court of Session ^ .Sheikhupura a~ contemplated under section lauia, ^ me oud c of-Cri"iai Procedure. 14. Now I would take up the matter whereby the Additional Sessions Judge has, vide order dated 15.7.1997, decided to proceed with the trial. The learned Additional Sessions Judge, Sheikhupura has affirmed the order passed by the Magistrate 1st Class regarding sending up the case to the Court of Session and I have approved his view. Thereafter there is no justification to take an exception to the view expressed by the learned Additional Sessions Judge about the prima-facie attraction of section 295-C Pakistan Penal Code. It would be convenient to produce as under section 295-C Pakistan Penal Code:- "295-C. Use of derogatory remark etc., in respect of the Holy- Prophet (P.B.U.B).-Whoever by words, either spoken or written, or by visible representation, or by any imputation. innuendo, or insinuation, directly or indirectly, defiles the , sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine". 15. Section 298-A Pakistan Penal Code deals with the use of derogatory remarks etc. in respect of Holy Personages i.e. the sacred nameisi of any wife (Ummul Mumineen), or members of the family (Ahle-bait). of the Holy Prophet (peace be upon him) or any of the righteous Caliphs (Khulafa-e-Rashideen) or companions (Sahaba) of the Holy Prophet (peace be upon him). Thus the recitals of the complaint have to be considered by the Court at the time of the formulation of the charge. In the complaint (FIR) there is rather no mention about the Personages narrated in section 298-A Pakistan Penal Code. In the complaint the allegation is about the use of derogatory remarks in respect of the Holy Prophet Muhammad (peace be upon him) and the opinion expressed by the learned Additional Sessions Judge in his order dated 15.7.1997 is held to be legal, valid and operative who has to hold the trial keeping in view Column 8 to Schedule-II of the Code of Criminal Procedure. 16. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of the matter and discussion is' that the learned Additional Sessions Judge has passed the correct order dated 15.7.1997. The petitioners are prima facie liable under section 295-C Pakistan Penal Code triable by the Court of Session. No doubt the matter is pending since long, yet I have to express my view that the same has to be disposed of in accordance with law by the Court of competent jurisdiction keeping in view the nature of the alleged accusation and obviously has to be established independently by the prosecution in accordance with law. 17. Finding no force in this petition, I dismiss the same in limine. 18. At this stage I have simply express my surprise that the matter is lingering on since long. The case remained pending before the Court which had no jurisdiction to try the same. The trial Magistrate simply acted on the wrong opinion of the Investigating Officer mentioned in the challan ndictment and charged the accused persons under section 298-A Pakistan Penal Code even though there was' no allegation of use of derogatory remarks in respect of Holy Personages mentioned therein. Rather he conducted the trial in a perfunctory manner. Now the case is at present in the Court of Rana Zahid Mahmood, Additional Sessions Judge. Sheikhupura. I would refer to Chapter 24 Part-B, Lahore High Court Rules and Orders Volume-Ill and would emphasis that the sessions trials should be given seriousness which they deserve and that the same can be disposed of through adopting the method/procedure mentioned in the aforesaid Chapter. The trial Court shall fix this case day to day and on the relevant day(s) it shall not crowd the cause-list. The summer vacations for the year 1997 to be availed by the learned Additional Sessions Judge are just in the offing. Keeping in view all the aspects, I direct Rana Zahid Mahmood Additional Sessions Judge, Sheikhupura to finally decide/dispose of the case till 30.9.1997 under intimation to the Registrar of this Court. (MYFK) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1480 Present: RAJA MUHAMMAD KHURSHID, J. KHAN MUHAMMAD-Petitioner versus ZAFAR ABBAS LUK SI/SHO-Respondent Crl. Misc. 103-H/1997 disposed of an 19.8.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 491-Habeas petition-Petition to the extent of A and B has become int'ructuous because they are involved in a criminal case in which they are on physical remand from a court of competent jurisdiction-Xone of detenus namely R, M and Mst. S are required by police in any case or inquiry-As such they were set at. liberty-An inquiry was directed to be held by SSP in respect of statement made by Mst. S that she was kept apart from male detenus and was dishonoured by SHO respondent beside being subjected to illicit inter-course-Petition disposed of ~Pp- 1481 & 1482] A to C Sardar Muhammad Anwar Ahmad Khan, Advocate for Petitioner Mr. Ali Ahmed Awan, Advocate for Respondent. Date of hearing: 19.8.1997. judgment This habeas petition was filed by the petitioner for the recovery of Rustam Ali, Asad Abbas, Bahlak, Maqsood and Mst. Salma Bibi who -.vene allegedly taken into illegal custody on 11.8.1997 at about 6.00 P.M. from the Dera of one Ex. MPA. Lateron Asad Abbas and Bahlak were allegedly involved in a case registered under section 395 PPC at the report of one Muhammad Mukfaiar. The remaining detenus namely Rustam Ali, Maqsood and Salma Bibi were, however, kept in illegal detention. They were recovered by the Bailiff while they were present at the Police Station. 2. The Bailiff has reported that Asad Abbas and Bahlak were found in the police lock up and on inquiry police officials informed him that both of them were involved in the above referred case on the supplementary statement of the complainant recorded on 11.8.1997 in which they were not only named but also identified. They were arrested on the aforesaid date and produced before the Illaqa Magistrate on 13.8.1997 and their physical remand was obtained from 13.8.97 to 17.8.1997. The SHO has also submitted that the remand has been extended upto 20.8.1997 in respect of the afore-said two detenus. 3. Learned counsel for the petitioner has submitted that involvement of Asad Abbas and Bahlak in the above referred case is not only malafide but mis-conceived as they were not named in the FIR but were lateron implicated through a supplementary statement of the complainant obtained a day latter than the registration of the case. It is submitted that the arrest of the afore-said persons has become illegal. 4. I have considered the above submissions and have also gone through the record and the report of bailiff which clearly indicates that both the aforesaid persons namely Asad Abbas and Bahlak have been arrested in a case registered under section 395 PPC on 11.8.1997 and their physical remand was obtained on 13.8.1997 which continues and is to end on 20.8.1997 when they will be again produced before the Illaqa Magistrate. In that event it cannot be readily said that the detenus have falsely been implicated nor his question can be readily settled being the question of fact while dealing with this petition of Habeas corpus. The afore-named detenus if so aggrieved may avail the proper remedy in accordance with law. 5. Now coming to the other three detenus namely Rustam Ali, Maqsood and Mst. Salma Bibi, all three of them contended before the Bailiff that they were taken into custody on 11.8.1997 and thereafter were placed under illegal detention by the concerned police officials. Out of them Mst. Salma Bibi made a statement before the Bailiff that she was kept apart from the other detenus and was subjected to illicit intercourse. She has also repeated her aforesaid statement in this court today. 6. S.H.O. Police Station Khurrianwala District Faisalabad has, however, denied that he had detained Mst. Salma Bibi or two other detenus namely Rustam Ali and Maqsood as they contended before the Bailiff. In this regard the SHO has further submitted that he never dishonoured nor committed illicit intercourse with the afore-said Salma Bibi which according o him is a false allegation. He has also submitted that he never arrested Rustam, Maqsood and Salma Bibi nor they were brought to the Police Station as alleged by them in their statements before the Bailiff. In this regard the S.H.O. has also contended that the aforesaid Rustam Ali, Maqsood and Mst. Salma Bibi had come to the reporting room of the Police Station only a minute earlier than the raid of the Bailiff, with a complaint that their daughter was married at Khurrianwala and her in-laws, used to mal-treat her and also prevented her to meet her parents and other relatives. However, this version is denied by the afore-said three detenus. 7. I have considered the afore-going act and find that the petition to the extent of Asad Abbas and Bahlak has become infructuous because they are involved in a criminal case in which they are on physical remand from a court of competent jurisdiction. There are two versions regarding the arrest of three detenus namely Rustam, Maqsood and Mst. Salma Bibi. According to them they were taken into illegal custody by the Police Station Khurrianwala on 11.8.1997. Whereas according to the police they had voluntarily visited the Police Station in order to lodge some complaint against the in-laws of a woman who was related to them and had been married at Khurrianwala. These two versions cannot be readily ascertained and require further probing to find out as to which one of the parties is at fault. At the moment it is clear that, none of the detenus namely Rustam, Maqsood. and Mat. Salma Bibi are required by the police in any case or inquiry. As such all three of them are set at liberty to move to any place of their choice. Regarding two contradictory versions taken up by the parties, it will be in the interest of justice that there should be some inquiry by a senior police officer to find out whether Hustum, Maqsood and Mst. Salma Bibi were actually taken into custody on J 1.8.1997 or they had gone to the police station of their own as contended by the police official of police station Khurrianwala. Likewise an inquiry would be called for in respect of the statement made by Mst. Salma Bibi that she was kept apart from the male detenus and was dishonoured by the SHO of the said Police Station besides being subjected to illicit intercourse. The matter is accordingly referred to the S.S.P. Faisalabad for holding an inquiiy himself or through some senior officer, not below the rank of DSP and to send copy of the findings of the said inquiry to the Deputy Registrar (Judicial) of this court within one month for further necessary action, if required. 8. The petition is accordingly disposed of with the above observation. (MFYK) Orders accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1482 Present: AMJAD ALI, J. Malik SABIR HUSSAIN and FAZAL MAALIK-Appellant " versus STATE-Respondent Crl. Appeal No. 710 and 760 of 1993, decided on 9.7.1997. Pakistan Penal Code, 1860 (XLV of 1860) Ss. 489-B and 489-C--Using and possession of Counterfeit currency-note Offence of-Conviction for-Appeal against-Whisking away from spot is a clear indication that appellant was in knowledge that he was using counterfeit currency-note-At the time of his arrest, he was found to be in possession of Rs. 376/- genuine currency-notes-He has purchased only 200 grams of red peppers for which he presented a forged currency note of Rs. 100/- while he was in possession of currency notes of smaller denomination which he had intentionally not usedThese facts clearly prove that appellant was fully aware of fakeness of currency-note which he was using for purchase of red peppers-As regards F accused/ appellant, he has not brought any thing on record to show his enmity with police or M appellant-Statements of complainant and PWs are quite convincing to prove that counterfeit, currency-notes were recovered from person of F appellant-, and he had not denied recovery of said notes-There appears no force in his contentions that counterfeit currency of Rs. 19,300/- in Rs. 100/- denomination was planted upon him by co-accused or police-Any how there is a quite force in his contention that he could not be convicted under section 489-B PPC as he had not used forged currency notes nor there is any evidence that he was involved in trafficking or selling counterfeit currency-In this connection, there is no ther evidence in support of such allegation except, appellant Malik Sabir Hussain, Co-accused-Hence in case of F appellant provision of section 489-B PPC could not be invoked, his conviction under-section 489-B PPC set aside but conviction under section 489-C maintained-Quantum of sentence in case of M reduced to 7 years from life imprisonment as he was not a previous convict and had fully cooperated with police in apprehension of person from whom he had allegedly receive a fake currency-note. [Pp. 1485, 1486, 1487 & 1488] A to H Mr. M.A. Zafar, Advocate for Appellant Malik Sabir Hussain. Maqsood Ahmed, Advocate for State. Date of hearing: y. 7.199?. judgment This judgment will dispose of two appeals, namely Criminal Appeal No. 710/-1993 (Malik Sabir vs. The State) and Criminal Appeal No. 760/93 (Fazal Maalik vs. The State) filed by the two convicts against the judgment, dated the 1st November, 1993, passed by the Additional Sessions Judge, Toba Tek Singh, convicting and sentencing them under sections 489-B and 489-C of the Pakistan Penal Code. 2. Briefly, the facts giving rise to these appeals are that on the 18th January, 1993 at 9.00'a.m., Malik Sabir Hussain appellant in Crl. Appeal No. 710/1993, purchased 200 grams of red peppers from Muhammad Boota, the complainant and paid the price thereof in the form of one hundred rupee currency note (P-l) which was found to be counterfeited, Malik Sabir Hussain thereupon ran away from the spot leaving behind the said counterfeit currency-note and a photo copy of his National Identity Card. The incident was witnessed by Haji Muhammad Ramzan son of Muhammad Saleem and Muhammad Aslam son of Fazal Muhammad residents of the mohallah who also endorsed that if was a counterfeit currency note. Consequently, the matter was reported to the police and accordingly a case vide FIR No. 8/93, dated 18.1.1993 was registered against the appellant at Police Station Pir Mahal, District Toba Tek Singh, under section 489-B of the Pakistan Penal Code. During the investigation, Malik Sabir Hussain referred to involvement of Fazal Maalik, the appellant in Crl. Appeal No. 60/93, who was arrested on 22.1.1993 while alighting from a bus at the Pir Mahal Bus Stand. On his personal search, genuine currency notes of Rs. 100, Rs. 10, and Rs. 5, demonination (P-200 to P-202) amounting to Rs. 555/- were recovered. He was also found in possession of counterfeit currencynotes (P-2 to P-194) of Rs. 100/- denomination. 3. Malik Sabir Hussain appellant was charged under section 489 B of the Pakistan Penal Code, while Fazal Malik was charged under sections 489B and 498C of the Pakistan Penal Code. Mian Abdul Latif, Additional Sessions Judge, Toba Tek Singh, who tried the case found both the accusedappellants guilty of the aforesaid offences and accordingly by his order, dated 1.11.1993, convicted them under section 489B of the Pakistan Penal Code and sentenced them to life imprisonment and fine of Rs. 25,000/-each and in case of default in payment of the fine, they were required to undergo further rigorous imprisonment for four years. Fazal Maalik appellant was also convicted under section 489C of the Pakistan Penal Code and sentenced to 7 years rigorous imprisonment and a fine of Rs. 25,000/-. In case of default in payment of fine, he was further required to suffer 1 year RI. Both the sentences were, however, ordered to run concurrently. The convicts were also given the benefit in the sentence of imprisonment available under ection 382B of the Criminal Procedure Code. Both the convicts have filed separate appeals against the said order of the learned Additional Sessions Judge assailing their conviction and sentence. 4. With the minor variations, generally the facts as narrated in the preceding paragraphs are admitted and the appeals had been filed mainly on the legal plane. Mr. M.A. Zafar, Advocate, learned counsel for Malik Sabir Hussain appellant contended that Malik Sabir Hussain was not aware that he was presenting a counterfeit currency note to Muhammad Boota the complainant, for purchase of 200 grams of red peppers. In order to disclose his identity and to prove himself a genuine customer who had no knowledge of P-l being a counterfeit currency-note nor had any intention to use such currency, he had himself presented copy of his National Identity Card (PI/A) to the complainant. In support of these contentions, he referred to the tatement of complainant who appeared as PW3 wherein he had denied a suggestion during cross-examination that the copy of the Identity Card had been given to him by Malik Sabir Hussain himself. On the other hand, Muhammad Ramzan PW4 had, during cross examination, stated that the aid copy was fallen when Malik Sabir Hussain had ran away from the place of occurrence. On the basis of the statements of the complainant (PW3) and Muhammad Ramzan (PW4), a witness of the occurrence, learned counsel for the appellant contended that for conviction of a person under section 489B of the Pakistan Penal Code, it is essential that such person should either 'sell to, or buy or receive from, any other person, or otherwise traffic in or use as genuine, any forged or counterfeit currency-note or bank-note knowing or having reasons to believe the same to be forged or counterfeit'. It was thus contended that no doubt the appellant could be said to have used a counterfeit currency-note of Rs. 100/- denomination (P-l) by presenting it to the complainant for purchase of red peppers, but certainly he had no knowledge of note (P-l) being a counterfeit one. The presentation of the copy of the National Identity Card is also a clear proof of his lack of knowledge of the same being not a genuine currency-note. In this context he placed reliance upon Hamid Ali and another vs. State (AIR 1961 Tripura 40) wherein it was held that under section 489B and 489, guilt is fastened on the ground of knowledge or reason to believe so that a reasonable man must be convinced in his mind that note with which he was dealing was a forged one. He also referred to Hassan vs. State (1984 PCr.LJ 1281 Karachi) in which similar view was expressed. 5. The aforesaid statements of the complainant (PW3) and Muhammad Rarnzan (PW4), an eye witness of the occurrence, are however not in conflict with each other nor these prove that Malik Sabir Hussain appellant had himself produced the copy of his Identity Card (PI/A) to disclose his identity. It is the claim of the appellant Malik Sabir Hussain that the counterfeit currency-note (PI) was given to him by Fazal Maalik appellant as a price for poultry purchased from him. He had however, not given the details of the items of the poultry said to had been purchased by Fazal Maalik nor any evidence was led in support of these contentions, particularly when Fazal Maalik accused had categorically denied that the aforesaid counterfeit currency-note was given by him to Malik Sabir Httssain. Both the complainant and Muhammad Ramzan (PW4) who is an eye witness of the occurrence have claimed that when the complainant informed Malik Sabir Hussain appellant that PI was a counterfeit note, he ran away from the spot. In this connection, the appellant had himself admitted in his statement recorded under section 342 Cr.P.C. that he had left thg place because the complainant Muhammad Boota and PWs tried to apprehend him for taking to the police station. This whisking away from the spot is a clear indication that he was in the knowledge that he was using a counterfeit currency-note. Further, at the time of his arrest he was found to be in possession of Rs. 376/- genuine currency-notes of the denomination of Rs. 100/-, Rs. 50/-, Rs. 10/ and Rs. 5/-. He had purchased only 200 grams of red peppers for which he presented a forged currency note of Rs. 100/- while he was in possession of currency-notes of smaller denomination which he had intentionally not used. The appellant had also admittedly led to apprehension Fazal Maalik accused-appellant who had according to him given the counterfeit currency-note (PI) to him. Fazal Maalik was also found to be in possession of substantial amount of counterfeit currency-notes. 6. These facts clearly prove that Malik Sabir Hussain was fully aware of fakeness of the currency note (Pi) which he was using for purchase of red peppers. In view thereof, the learned Additional Sessions Judge had rightly convicted him under section 4.HQB of Pakistan Penal Code for knowingly using the counterfeit currency-note. 7. As regards Criminal Appeal 7fiO/9.'5 filed by Fazal Maalik Fazal Maalik appellant's arrest, was not made on the pointation of Malik Sabir Hussain but, in fact Fazal Maalik was already in police custody since the 16th January, 1993, and was falsely implicated in the case According to the appellant the countev-feit ctirrency-notes <P2 to P 194) were actually recovered from Malik Sabir Hussain who had in, connivance with the police got those planted upon him. Fazal Maalik appellant contended that he had only come to Pir Mahal to see Gul Zaman, Chowkidar for obtaining a job. According to Fazal Maalik appellant, on 16.1.1993 while he was coming from Peshawar via Rawalpindi , Faisalabad and Rajana. the police intercepted the wagon and searched all the passengers travelling in the wagon. During this search, he had certain altercation with police party whereupon in connivance with the co-accused, he was falsely implicated in the present case. In this respect, he referred to plan Ex-P-I prepared by Muhammad Akram ASI showing place of arrest of Fazal Maalik appellant. In the said plan the date under the signatures of Muhammad Akram ASI is scribed as 18.1.1993. It was, therefore, urged that on the other hand police has falsely shown the date of arrest of Fazal Maalik being 22.1.1993. This discrepancy according to the learned counsel for the appellant clearly indicates the falsehood of the prosecution case. It is, however strange that when Muhammad Akram ASI who had appeared as PW7. no suggestion of any altercation with Fazal Maalik was put to him. As regards the date of 18.1.1993 specified on Ex- PL/PI, PW7 has clearly stated that, this date was inadvertently mentioned therein. Fazal Maalik has also not, brought anything on the record to show his enmity with the police or with Malik Sabir Hussain appellant who is said to had planted a large number of counterfeit currency-notes upon him. On the other hand, the statement of complainant Muhammad Boota (PW3), Muhammad Ramzan (PW4), Munir Ahmad ASI and Muhammad Akram ASI (PW7) are quite convincing to prove that counterfeit currency-notes (P2 to P194) were recovered from the person of Fazal Maalik appellant. 8. The learned counsel representing Fazal Maalik also pointed out that the said recovery was bad in the eye of law as the provisions regarding search as contained in section 103 of the Code of Criminal Procedure were not adhered to. In support of his contentions, the learned counsel referred to Muhammad Ameen vs. The State (1990 PCrLJ 84) and Ali Asghar vs. The State (1992 PCrLJ 1913) wherein late Justice Qaisar Ahmad Hamidi had held that at the time of search respectable persons of locality should be present. In the present case, however, the circumstances are distinguishable. Here the police had not gone to the bus stand for making search of Fazal Maalik, but to apprehend him on the charge of delivering counterfeit currency-note (PI) to Malik Sabir Hussain accused. It was only at the time of his arrest that he was found in his person a substantial amount of counterfeited currency. It is true that some of the passengers should have been asked to witness the said recovery but it is also in the common knowledge that the people generally avoid to become witness particularly those travelling to other places. The inventories Exh-PK and Exh-PL contain the compete detail of genuine and fake currency notes recovered from the person of Fazal Maalik. Both these inventories hear the signatures of Munir Ahmad ASI and Muhammad Arshad constable hefore whom such recoveries were made. The total value of genuine currency-notes recovered from Fazal Maalik appellant is Rs. 525/- and that of counterfeit currency is 19,300/-. This is a substantial amount, and as pointed out by the learned counsel for the State this was a huge amount and could not be planted by the police. It is | also clear from the record that Fazal Maalik has not denied the recovery of counterfeit currency, but has simply claimed that it was planted upon him by co-accused Malik Muhammad Sabir. As pointed out earlier Fazal Maalik has not shown any enmity with co-accused Malik Sabir Hussain. Naturally, he had not pointed him at random as a person who had given him a forged currency note (PI) who happened to be in possession of a large sum of fake currency. In his statement, Fazal Maalik had claimed that at the time of his arrest, the police had searched all the passengers of the wagon. Meaning thereby that the police was genuinely looking for a person involved in dealing of counterfeit currency. He admittedly hails from North-West Frontier Province and claimed to had been coming to Pir Mahal in search of job through one Gul Zaman. But the said Gul Zaman was no produced to substantiate his claim. In view thereof, there appears no force in the contentions of Fazal-Maalik appellant that counterfeit currency of Rs. 19,300 <P2 to 194) in R.s. 100'- denomination was planted upon him by the coaccused or the police. 9. Nevertheless, there is quite a force in the contentions of the learned counsel representing Fazal Maalik appellant that the appellant could not be convicted under section 489 B of the Pakistan Penal Code as he had not used the forged currency nor there is any evidence that he was involved in trafficking or selling of counterfeit currency. In this connection, only Malik Sabir Hussain appellant had pointed out that Fazal Maalik had given the currency-note P-l to him. There is no other evidence in support of such allegation. Hence, in the case of Fazal Maalik appellant, the provision of section 489B of the Pakistan Penal Code could not be invoked. 10. As regards the quantum of sentence in the case of Malik Sabir Hussain appellant under section 489B PPC certainly appears to be harsh. He is not a previous convict and had fully cooperated with the police in apprehension of the person from whom he had allegedly received a fake currency-note. On his pointation Fazal Maalik appellant was apprehended. The latter was also found in possession of a substantial amount of counterfeit currency. In view thereof, sentence of life imprisonment is reduced to 7 years RI and fine of Rs. 25.000/- as already ordered by the earned Additional Sessions Judge, Toba Tek Singh. In case of default in payment of the amount of fine, the imprisonment of 4 years is, however, reduced to one year. 11. In the case of Fazal Maalik appellant, the conviction and sentence under section 489B PPC is set aside. The sentence of 7 years rigorous imprisonment and fine of Rs. 25.000/- awarded under section 489C of the Pakistan Penal Code and in case of default in payment of fine of Rs. 25,000/- the term of imprisonment of one year is, however, maintained. Both the appeals are accordingly accepted partly to the extent specified above. The appellants will be entitled to the benefit of section 382 B CrPC as already ordered by the trial Court. The counterfeit currency-notes P-l to P- 194 as directed by the trial Court shall be destroyed under the supervision of a responsible officer of the State Bank of Pakistan, while the genuine currency-notes recovered from both the accused-appellants shall be confiscated in favour of the State. (MYFK) Appeal partly accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1488 Present: ZAFAR PASHA CHAUDHRY J. RAFAQAT ALI etc.-Petitioner versus STATE-Respondent Cr. Misc. No. 2941-B of 1997, dismissed on 21.8.1997. Bail- -S. 497 Cr.P.C.-Bail application already dismissed by High Court whether second bail application on ground of opinion of I.O. maintainable when such opinion had earlier been consideredQuestion of--Learned single judge had expressed independent and definite opinion after going through entire Police opinion after going through entire Police record- Even if for sake of argument, it is accepted that observation was made by I.O. that it could not be determined as to which of accused is responsible, same cannot hold filed, because opinion of I.O. was available on file and had in fact been considered-Police opinion may be relevant to decide bail application, but same cannot be held to be binding on court-Held: Second bail application was not maintainable in circumstances-Petition dismissed. [P. 1490] A, B & C Mian Muzaffar Ahmad, Advocate for Petitioners. Ch. Riaz Hussain, Advocate for State. Mr. M. Iqbal Bhatti, Advocate for Complainant. Date of hearing: 21 8.1997. order The petitioners are required as accused persons in case FIR No. 249/95 dated 15.11.1995. under section 302/148/149 PPC, registered with Police Station Batapur. Lahore on the statement of Shafqat Ali complainant. 2. Earlier a Bail Application (Cr. Misc. No. 2434-B/96) was moved in this Court by five accused persons namely Niabat Ali. Rafaqat Ali, Tanvir Ahmad, Muhammad Asif and Muhammad Fayyaz. The petitioners in the present application figured at Sr. No. 2 and 4 of the previous application. Said application was heard and disposed of by my learned brother Khalid aul Khawaja, J. (as his lordship then was) on 19.11.1996. A detailed order was passed considering almost all the aspects of the case. It was thereafter observed that the petitioners were entitled to the concession of bail. Their application was, therefore, dismissed. 3. The petitioners of course can move a fresh application but the grounds already urged and considered previously cannot be reiterated. Also any ground which is available to the petitioners, if not urged would mean that the same was not pressed and no fresh application can be moved on the ground available to the petitioners on the previous occasion. Learned counsel when confronted with the situation, submitted that after disposal of the previous application, a new ground.accrued to the petitioners, therefore, the present application was repeated. According to the learned counsel, fresh investigation was taken up by Major Mubashir, S.P. Cantt. Lahore and he came to the conclusion that there was cross firing from both the parties and as such it could not be determined as to which of the accused person was responsible for the murder. I called for the police file and examined the same. It is true that Major Mubashir conducted the investigation and he has also appeared before my learned brother Khalid Paul Khawaja, J. (as his lordship then was) on 3.11.1996. He undertook to definitely conclude the investigation within a week's time. The case was adjourned to 10.11.1996. On 10.11.1996 it was observed on the statement of Rehmat Ali S.I. that investigation had been concluded and the petitioners therein (which include the present petitioners as well) had been found guilty. Since the court time was over, the case was adjourned to 19.11.1996. On that date a detailed order was passed by his lordship. In para 4 my learned brother after discussing the facts and circumstances of the case quite elaborately, came to the conclusion that the petitioners were not entitled to concession of bail. Para 4 is reproduced:- "All the petitioners are named in the FIR. They had actively participated in the occurrence and had resorted to indiscriminate tiring as a result of which Babar Butt deceased lost his life. Six crime empties of 12-bore matched with the gun recovered from Rafaqat Ali accused. Five crime empties of the same bore matched with the gun recovered from Tanvir Ahmad accused. Four crime empties matched with 8-MM rifle recovered from Muhammad Asif while six out of 19 empties of 222-bore matched with the rifle recovered from Muhammad Fayyaz. In this way the ocular evidence also finds corroboration from independent source. The version of the accused to effect that the complainant party was the aggressor has been disbelieved by the "X Investigating Agency. From the material collected during the investigation it is shown that the petitioners alongwith their accused were sitting in ambush and had launched a murderous assault on the complainant party which resulted in the death of Babar Butt deceased. Since the petitioners had actively participated in the occurrence, I am of the view that they are not entitled to the concession of bail in this murder case. Their bail application is dismissed." 4. Learned counsel for the petitioner has tried to argue that the learned Judge did not correctly perceive or appreciate the record available at the time. According to him the 1.0. had observed that it could not be determined conclusively as to which of the accused had committed the murder. Therefore, the observation by the learned Judge that the police did not arrive at a definite conclusion is tantamount to misconceiving the record. I 'am unable to uphold the contention for the reason that if the learned counsel found that the order was not proper, then he would have assailed the same before the higher forum i.e. Hon'ble Supreme Court. The contention raised has no force also for the reason because my learned brother had expressed an independent, and definite opinion after going through the entire police record. Even if for the sake of argument it is accepted that an observation was made by the I.O. that it could not be determined as to which of the accused is responsible, the same cannot hold the field because my learned brother has expressed an opinion which is not in line with the I.O. It is evident, from perusal of para 4 (supra/ of the order that the observation has been made after assessing the relevant facts and circumstances. The police opinion may be relevant to decide the bail 3 application but the same cannot be held to be binding on the court. 5. The present application moved for the reason that fresh ground by way of opinion expressed by Major Mubashir has become available to the petitioners is wholly misconceived. The perusal of Zimni No. 35 and 36 recorded by Major Mubashir on the police file indicates that the opinion had been expressed on 7.11.1996 whereas the order dismissing the previous application was passed on 19.11.1996. It means that, opinion of the I.O. was available on the file and had in fact been considered. Therefore, second application (the present application) is not even maintainable. The petitioners are not entitled to concession of bail. The application is dismissed. (B.T.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1491 Present: zafar pasha chaudhry, J. MUHAMMAD NAEEM-Appellant versus STATE-Respondent Criminal Appeal No. 708 of 1989, accepted on 13.8.1997. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- S. 302-Prosecutions, failure to explain for not sending empty to Laboratory before recoveiy of rifle-Effect-According to post mortem report only one injury was received by deceased-Even then possibility of presence of one empty at place of occurrence is extremely remote--No plausible explanation has been tendered by prosecution for not sending empty to Laboratory before recovery of rifle-Held: Possibility cannot be ruled out that empty was fired from rifle and thereafter sent to Laboratory to obtain favourable result is not without substance. [P. 1497] B (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302-Murder-Offence of-Convietion for-Challenge to-Recovery- Unfortunately face and other parts had been eaten up by dogs and birds- According to Doctor, dead body could not be identified from physical features-With view to show that dead body was that of K recoveiy of I.D. card, shoes, handkerchief, etc. has purportedly been made, but recovery does not inspire confidence and it is veiy hard to believe that recoveries as stated by prosecution were in fact made during investigation-Shoe which was identificed by cobbler statedly belonged to deceased but its recovery is stated to be effected from house of deceasedIf shoe is recovered from house of deceased, then appellant cannot be connected with recoveiy in any manner-Held: Explanation of Prosecution that same had been stated on account of some slip of tongue is hardly acceptable because invariably benefit of doubt should be extended to accused person. [Pp. 1497 £ 1498] C & F (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 302-Murder-Offence of-Convietion for-Challenge to-Whether evidence of last seen sufficient to hold conviction-Question of-Evidence of last seen is not veiy convincing for the reason that nn hnHv has s deceased near place of occurrence-Even if it is presumed that some witness saw that deceased and appellant proceeded from home together, evidence of last seen shall not be sufficient to hold appellant guilty and unless deceased is seen immediately before occurrence and same were near place of occurrence, evidence becomes insignificant. [P. 1497] D (iv) Recovery- Recoveiy of empty cartridges from place of occurrence after many days- Whether believable-Question of-In recovery memos Ex-PB and P.C., date of preparation has been altered to 4.3.1988-Visibly some other date had been mentioned earlier which has been erased and new figure (4) has been entered-Prosecution would have, strong evidence in its favour relating to recovery of rifle and matching of empty with rifle recovered from appellant but whole record suffers from number of weakness and infirmities e.g. as observed above recovery memos themselves are doubtful-Held: It is not believable that empty would have remained present at place of occurrence for such a long period and appellant would have known that same lies buried in mud. [P. 1496] A Mr. Masood Mirza, Advocate for Appellant. Khawaja Shaukat Mahmood, Advocate for State. Date of hearing: 13.8.1997. judgment This appeal is directed against the judgment dated 7.10.1989 passed by learned Additional Sessions Judge, Sargodha whereby Muhammad Naeem appellant was convicted and sentenced as imder:- Conviction Sentence. (i) U/S. 302 PPG Imprisonment for life and a fine of Rs. 10,000/- or in default in payment thereof to undei'go further R.I. for one year. He was also directed to pay Rs. 2,000/- as compensation u/s 544 Cr.P.C. to the heirs of the deceased or in default to suffer R.I. for six months. (ii) U/S. 404 PPC Two years' R.I. and a fine of Rs. 1,000/- or in default, of payment thereof to undergo R.I. for 2 months. (iii) U/S. 201PPC Tow years' R.I. and a fine of Rs. 1,000/- or in default to undergo R.I. for two months. All the sentences were ordered to run concurrently. Benefit of section 382-B Cr.P.C. was also extended. 2. Brief facts of the prosecution case as disclosed from the FIR (Ex. PA) lodged by Ghulam Muhammad, father of the deceased are that his son Muhammad Khan (deceased) was present at his Dera on 8.6.1988 alongwith the complainant and one Ahmad. At about Peshi Wela, Naeem appellant who had previous acquaintance with his son, asked him to select a buffalo which the deceased intended to purchase. Khan Muhammad deceased took Rs. 9,000/- alongwith him and accompanied the appellant. He informed the complainant that he will return in the evening. Four days passed but the deceased did not turn up. The complainant inquired from the appellant on which he was informed that the deceased had left for another village and he was not aware of the same. The complainant contacted one Hafeezullah who alongwith him met Bahawala and Asadullah who informed them that they had seen the deceased in the company of the appellant. The appellant was stated to be carrying a gun and both were proceeding towards Bulhaywala. At the time of last seen the deceased was wearing a white coloured shirt, a blue coloured Chadar and had a Desi Joota in the feet. Suspecting some foul play, the complainant lodged the FIR (Ex. PA) on 28.6.1988 at Police Station Sillanwali, district Sargodha wherein it was also stated that the deceased was carrying his National Identity Card with him. 3. The investigation was taken up by Muhammad Aslam Ghori Inspector/SHO P.S. Sillanwali (PW. 19). He inspected the place of occurrence and conducted preliminary investigation. He arrested the appellant on 1.7.1988 and on his pointation recovered one empty (P. 2) on 4.7.1988 which was secured vide memo. Ex. PB. On the same day the appellant led to the recovery of National Identity Card (P. 4), handkerchief (P. 5) and four currency notes of the denomination of Rs. 500/- each (P. 6/1-4) which were taken into possession vide memo Ex. PD. On the same day recovery of Chadar (P. 3) and pair of shoes (P. 1/1-2) were taken into possession from the place of occurrence vide memo Ex. PC. On 10.7.1988 the appellant to the recovery of rifle (P. 7) from his residential house which was lying on a cot underneath the beddings. The same was secured vide memo. Ex. PF. He got formal site plan prepared from Liaqat Ali Patwari (PW. 8) in duplicate vide memo Ex. PE aid PE/1. On 31.7.1988 the I.O. visited P.S. Massan District Jhang and the MHC handed over to him Qamecz <P. Si of the deceased. He also procured Inquest Report (Ex. PH), Post. Mortem Examination Report (Ex. PI) of the deceased and copy of FIR No. 58 dated 16.6.1988 registered at P.S. Massan with regard to finding of the deadbody of the deceased, vide memo Ex. PK. on 1.9.1988 he prepared incomplete challan against the accused and the same was submitted in court. Shirt (P. 8) was identified by the witnesses to be that of Khan Muhammad deceased at P.S. Massan. On conclusion of the investigation the appellant was sent up to face trial in the court of Malik Mumtaz Ahmad, Additional Sessions Judge, Sargodha. The learned trial court convicted and sentenced the appellant as detailed above. 4. The prosecution with a view to establish the guilt of the accused/appellant, examined 20 witnesses in all. Ghulam Muhammad (PW. 1) who stated about abduction of his son Khan Muhammad deceased. Asadullah (PW. 2) is a witness to the last seen who saw the deceased going alongwith the appellant. Sardara (PW. 3) is a cobbler who stated that the shoe which was recovered by the' police had been prepared by him for Khan Muhammad deceased. Muhammad Nawaz (PW. 4) is a witness to the recovery of empty cartridges from the place of occurrence as well as that of shoes of the deceased. Muhammad Panah s/o Khizar Hayat (PW. 5) and Rehamtullah (PW. 7) are the witnesses of extra-judicial confession made by the appellant before them confessing his guilt of having killed the deceased by causing fire-arm injury to him. Ahmad (PW. 6) is a witness who as present with the complainant when Khan Muhammad deceased was taken alongwith him by the appellant. Liaqat Ali Khan Patwari (PW. 8) is the draftsman who prepared the site plan. Shaukat Hayat ASI (PW. 9) and Amanat Masih Constable (PW. 10) are formal witnesses. Muhammad Panah s/o Noor Muhammad (PW. 11) is a witness of recovery of rifle (P. 7) from the house of the appellant. Zulfiqar (PW. 12) is a witness who saw the deadbody lying alongwith the canal bank which was being eaten by the dogs and crows etc. He informed the police at P.S. Massan District Jhang. The police accompanied him to the lace of occurrence and dispatched the deadbody to the Civil Hospital for Post Mortem Examination. The deadbody was wearing the shirt stained with blood and covered with dust. In cross-examination he stated that none of the relatives identified the deadbody of the deceased in his presence when he happened to be present there. Riaz Hussain (PW. 13) is a formal witness who carried the deadbody. Ahmad Bakhsh (PW. 14) is the police ASI. His statement is formal in nature except that he was handed- over the last worn shirt of the deceased by the doctor and he onward handed over the same to Abdul Majid S.I. On receipt of Post Mortem Report he registered FIR No. 58 on 16.6.1988 with P.S. Massan under section 302 PPC. PW. 15 is Dr. Tafhim Hyder Kazmi from BHU Pir Kot, District Jhang. He conducted Post Mortem Examination on the deadbody on 13.6.1988 and noted the following injuries on his person:- 1. A circular entrance wound 3 c.m. x 3 c.m.. on the front and middle of the chest. 2. An exit wound with lacerated margins 10 c.m. to 14 c.m. on the back and this was communicating with injury No. 1. Skull was intact. Vertebrae of the thorasix were missing. Membrane, brain and spinal cord were decomposed. Ribs No. 4, 5 and 6 and the chest wall were partially decomposed. Pleuras were punctured at the site of injury an partially decomposed. Larynx and Taclease were partially decomposed. Right lung was partially decomposed and lacerated on the right side due to injury No. 1. Left lung was partially decomposed. Paricardium, heart and blood vessels were partially decomposed. The contents of abdomen were intact and partially decomposed. The contents of intestine in stomach could not be differentiated. External genital was lacerated. In the opinion of the doctor, death was the result of fire arm injury which was sufficient to cause death in ordinary course of life. The injury was ante-mortem. Probable time between injury and death was immediate whereas between death and post portem about 10 to 15 days. During the cross-examination it was admitted that flesh of the face had been eaten up and decomposed. One could not identify the features of the deadbody. Fayyaz Mahmood Constable (PW. 16) and Muhammad Yar H.C. (PW. 17) are the formal witnesses who complete various formalities. Abdul Majeed S.I. (PW. 18) and Muhammad Aslam Ghauri (PW. 19) conducted the investigation. Various acts performed by them during the investigation have been narrated above. Abdul Majid (PW. 20) was posted as SHO at P.S. Massan on 16.6.1988. He searched for the heirs of the deceased whose deadbody had been recovered. Report of Fire Arm Expert was tendered by the learned P.P. as Ex. PM and closed the prosecution case. In his statement under section 312 Cr.P.C. the appellant denied the various allegations levelled against him. In answer to question No. 13, as to why this case was registered against him, he stated that due to party faction in the village. He declined to appear as his own witness in defence. 5. Learned counsel for the appellant has argued that the prosecution has failed to establish the guilt of the appellant which obviously hinges on the circumstantial evidence but the facts and circumstances available on the record do not in any manner connect the appellant with the commission of the alleged crime. According to him the appellant is "Imam JVIasjid" and he is a pious and noble man enjoying respect in the locality. He has been implicated merely on the basis of suspicion and party faction in the village. Some suggestions were put to show that he had given a 'Fatwa' against some influential people who by availing of the chance of recovery of an unidentified deadbody got the appellant implicated in the present case. It is further submitted that the deadbody was absolutely unidentifiable. Various articles allegedly taken into possession such as shoe of the deceased, his I.D. Card, shirt and handkerchief etc. have been in fact planted. No such recovery as alleged was effected. As regard shoes, he says that the same were stated to have been recovered from the house of the deceased himself. Recoyeiy of the shoes from the house of the deceased does not in any manner connect the appellant with the commission of the offence. He has also pointed out that there are some important and significant interpolations in the record e.g. entires of memo of recovery of currency notes (Ex. PD) have been changed form Rs. 400/- to Rs. 500/- each. Similarly the dates on the recovery memos Ex. PB & PC have been erased and interpolated which is visible even to a naked eye. As such an attempt has been made to implicate the appellant in the commission of the crime. As regards recovery of currency notes and rifle from the appellant, he says that, an empty was allegedly recovered on 3.7.1988 but the same was dispatched to the Forensic Science Laboratory on 10.7.1988. On 10.7.1988 the rifle (P. 7) had also been recovered which was subsequently dispatched on 17.7.1988. The empty which had allegedly been recovered on .3.7.1988 was shown to have been kept in Malkhana upto 10.7.1988 i.e. the date on which the rifle was allegedly recovered. These dates indicate that on 10.7.1988 even according to the prosecution itself, both rifle and empty were in the custody of police together. The possibility of firing a shot from the rifle and procuring the empty cannot be ruled out and in fact the same as done. It has also been argued with vehemence that it is unbelievable that the empty would have remained on the place of occurrence till 3.7.1988. The murder according to the prosecution was committed on 8.6.1988. How an empty could remain present on the place of occurrence for a period of about 25 days and how the appellant would have known that the empty was still lying there. In fact a crude attempt has been made by the prosecution to connect the appellant with the murder of the deceased. It has also been argued that the statements made by the prosecution witnesses are discrepant and the discrepancies are of the nature which render the testimony of the PWs as unacceptable. Lastly it was been argued that the evidence of extra-judicial confession is totally unacceptable. Both the witnesses testifying the extra-judicial confession do not belong to the village of the appellant and they were not in a position to extend any help on account of which the so-called confession was made before them. It has been further contended that their statements are not all convincing because after the confession was made before them the appellant was allowed to go by the witnesses and no attempt was made either to report the matter to police or hand over the appellant to police who according to them had confessed his guilt for having committed an offence entailing capital punishment. Learned counsel for the State has although opposed the prayer made in appeal yet has not been able to controvert any of the submissions made by the learned counsel for the appellant. 6. I have considered the arguments and gone through the evidence carefully. It is true that in recovery inemos Ex. PB and PC, the date of their preparation has been altered to 4.7.1988. Visibly some other date had been mentioned earlier which has been erased and new figure (4) has been entered. Prosecution would have a strong evidence in its favour relating to the recovery or rifle and matching of empty with the rifle recovered from the appellant but the whole record suffers from a number of weaknesses and infirmities e.g. as observed above the recovery memos themselves are doubtful. It is not believable that the empty would have remained present at the place of occurrence for such a long period and the appellant would have known that, the same lies buried in the mud. Apart from that according to the Post Mortem Report only one injury was received by the deceased. Even then possibility of presence of one empty at the place of occurrence is extremely remote. The contention that the empty and the rifle were together with the police and the possibility cannot be ruled out that the empty was fired from the rifle and thereafter sent to the Laboratory to obtain the favourable result, is not without substance. No plausible explanation has been tendered by the prosecution for not sending the empty to the Laboratory before the recovery of the rifle. 7. Admittedly the deadbody was decomposed at the time of its recovery. Unfortunately the face and other parts of the body had been eaten up by dogs and the birds. According to the doctor, the deabdody could not be identified from the physical features. With a view to show that the deadbody was that of Khan Muhammad deceased, recovery of I.D. Card, shoes, handkerchief etc. has purportedly been made but the recovery does not inspire confidence and it is very hard to believe that the recoveries as stated by the prosecution were in fact made during the investigation. The shoes which was identified by the cobbler statedly belonged to the deceased but its recovery is stated to be effected from the house of the deceased. If a shoe is recovered from the house of the deceased, then the appellant cannot be connected with that recovery in any manner. The explanation of the prosecution that the same had been stated on account of some slip tongue is hardly acceptable because invariably the benefit of doubt which is the present case is quite substantive, should be extended to the accused person. The evidence of last seen is also not very convincing for the reason that no body has seen the deceased near the place of occurrence. Even if it is presumed that some witness saw that the deceased and the appellant proceeded from the home together, the evidence of last seen shall not be sufficient to hold the appellant guilty and unless the deceased is seen immediately before the occurrence and some where near the place of occurrence, the evidence becomes insignificant. In this respect the opinion of the doctor regarding the intervening time in between the death and the Post Mortem Examination can also be taken into account. The Post Mortem was conducted on 13.6.1988 whereas death is stated to have occurred 10/15 days before the examination. According to the doctor's observation death would have been caused some where between 29.5.1988 and 3.6.1988. Although the time period given by the doctor is subject to variation and one or two days can be added or subtracted from either side. Even then the date of murder of the deceased which is stated to be 8.6.1988 does not in any manner correspond with the prosecution version. The deceased left the house on 8.6.1988 and his murder would have been committed definitely after that date which could be 9th or 10th or so but in any manner it could be 29/30-5-1988 or even 3.6.1988. The time gap is significant and on this score as well the benefit has to be extended to the accused person. In the Post Mortem Report the doctor has noted laceration on the external gentials which although has not been adverted by the learned trial Judge or even by the learned counsel for the appellant but the same is not without significance. If the laceration is ante-mortem, then the possibility that some injury was caused to the genitals cannot be ruled out. Ordinarily injuries are caused on the genitals especially when some one is suspected of having committed some immoral offence. Injuries are caused on the gentials with a view to insult and disgrace the accused and also to take revenge. In the present case no such allegation even remotely had been made that there was any suspicion against the accused person. The prosecution has also suggested a motive that the deceased carried Rs. 9,000/- with him and the possibility of his doing to death with a view to grab money may not be unlikely but the same does not appear to be probable especially when the appellant happens to be 'Imam Masjid' and has no criminal history to be described. Any person having a position in the society as that of the appellant would not ordinarily commit murder of one as of his acquaintance to grab the money of Rs. 9,000/-. The probability is further reduced when the father of the deceased as well as other witnesses knew that the deceased was accompanying the appellant while having money with him. Although learned counsel for the State has submitted that all the circumstances taken together connect thft appellant with the commission of the offence but after considering and making analysis of the entire facts and circumstances of the case, I am not able to accept this submission. The evidence of extra-judicial confession is not acceptable on the face of it. There does not appear any reason to the appellant to have made a confession before two persons who do not belong to his village and would not in any manner extend any help to him. The extra-judicial confession becomes still further unacceptable when the deadbody was not even identifiable and the same was not even detected for a number of days. The conduct of the witnesses deposing about extra-judicial confession also casts serious doubt on their veracity. If they were so honest and law-abiding then why they did not hand over the appellant to the police or at least a report must have been made by them to the police. Neither of the two was done. The mere fact that the appellant has not been able to point out any enmity against these witnesses is not by itself sufficient to rely upon their evidence which suffers from inherent defects. 8. After having considered and discussed the entire evidence and the circumstances of the case, I am of the view that the prosecution ha snot been able to discharge its onus and has not been able to prove the guilt of the ippellant bjeyond any shadow of doubt. Resultantly, this appeal is accepted, ;he conviction and sentences of the appellant are set aside and he is icquitted of the charges against him. He is already on bail. He is discharged
f the bail bonds furnished by him B.T.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1499 [DB] [Multan Bench] Present: rao iqbal ahmad khan and zafar pasha chaudhri, JJ. Mst. ZAINAB-Appellant versus THE STATE-Respondent M.R. No. 482 of 1992 and Cr. A. Nos. 7 and 8 of 1993, decided on 3.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- S. 302-Murder-Offence of-Conviction for-Challenge to-Prosecution has successfully discharged its onus by proving guilt of appellants beyond any shadows of doubt which is based on ocular account furnished by independent witnesses, evidence of recoveries of incriminating articles and blood stained clothes supported by medical evidence and motive- Held : Trial court was right in convicting appellants u/S. 302 PPC. [P. 1506 & 1507] A, B & C Ch. Muhammad Yaqui} Khan, Advocate for Appellant. Ch. Akhtar Masud, Advocate for State. Date of hearing: 18.6.1997. Announced on: 3.7.1997. judgment Zafar Pasha Chaudhry, J.--Faqir Hussain alias Faqira and Mst. Zenab were tried by learned Additional Sessions Judge, Layyah for the murder of Muhammad Ramzan, who vide judgment dated 23.12.1992 convicted them under section 302 PPC for Qatle Amd and sentenced each of them to death and also ordered to pay compensation of Rs. 10,000/- each to the heirs.of the deceased or in default to suffer six months' R.I. Mst. Zenab has filed Cr. Appeal No. 7/93 against her conviction and sentence from jail while Faqir Hussain has filed Cr. Appeal No. 8/93 against his conviction and sentence also from jail. The learned trial court has also sent a reference under section 374 Cr.P.C. for confirmation of the death sentences. This judgment will dispose of both the appeals as well as the Murder Reference. 2. The prosecution case in brief as emerges from the FIR (Ex. PH) recorded on the statement of Muhammad Bakhsh (PW. 9) brother of Muhammad Ramzan (deceased) was that Muhammad Ramzan deceased was married to Mst Zenab appellant who developed illicit relations with Faqir Hussain alias Faqira appellant (hereinafter called as Faqira). About one year prior to the. occurrence, Mst. Zenab eloped with Faqir Hussain appellant. A case was got registered against both of them who were challaned and subsequently a compromise was effected. Faqir Hussain agreed to pay Rs. 20,000/- as compensation to Muhammad Ramzan deceased. On account of this grudge, on the night intervening 12/13-11-1991 after Isha prayer time, Muhammad Ramzan deceased told the complainant that he in the company of his wife Mst. Zenab was going to the house of Faqir Hussain to receive the agreed amount of Rs. 20,000/-. The complainant was asked to follow him. The complainant alongwith Atta Muhammad (PW. 101 and some other persons followed them. When they were about 12/13 Kararns from the house of Faqira, they heard the report of fire shot and cries from inside the house. They rushed towards the place of occurrence and witnessed in the light of the lantern and torch that Mst Zenab had taken Muhammad Ramzan deceased into her clasp on the back. Faqira was holding hatchet in one hand and a pistol in the other, who inflicted various hatchet blows on the head of the deceased. The complainant as well as the witnesses were threatened that in case they came near, they will not be spared. Faqira made his escape good alongwith his pistol while threw the hatchet in his room. Mst. Zenab also tried to decamp but was over-powered. Muhammad Ramzan had succumbed to the injuries. It was further alleged that on account of the illicit liaison in between Mst. Zenab and Faqira, Muhammad Ramzan was murdered as a result of a plan to eliminate him from their way. A number of inhabitants were attracted to the scene of occurrence but Faqira could not be traced or apprehended. 3. After the occurrence, Muhammad Bakhsh (PW. 9) lodged FIR (Ex. PH) with Police Station Kot Sultan, District Layyah on the same night at 12.45 a.m. which was recorded by Ghulam Qadir S.I. (PW. 12). After recording the FIR, the said S.I. proceeded to the spot, prepared injury statement (Ex. PC) and inquest report (Ex. PD) and dispatched the deadbody of Muhammad Ramzan to the mortuary for Post-Mortem Examination. He took into possession blood stained earth which was made into a sealed parcel and secured under memo Ex. PJ. Blood stained hatchet (P. 7) was taken into possession from the place of occurrence and secured vide memo Ex. PK. Its sketch Ex. PK/1 was also prepared. One empty cartridge (P. 8) was secured from the place of occurrence vide memo Ex. PL. Lantern (P. 9) was taken into possession vide memo Ex. PM while torch (P. 10) was taken into possession vide memo Ex. PN. Some female apparels were also taken into possession alongwith Identity Card (P. 24) vide memo Ex. PP. Mst, Zenab was present at the place of occtirrence while clad in blood-stained clothes. She was arrested and her blood stained clothes Qameez (P. 11), Shalwar (P. 12) and Dopatta (P. 13) were taken into possession vide recoveiy memo Ex. PO. After the post-mortem the last worn clothes of the deceased were taken in possession vide memo Ex. PQ. Mst. Zenab was sent to judicial lock up. Faqira was arrested on 19.11.1991 from General Bus Stand, Layyah. On 20.11.1991 while in custody, he led to the recovery of pistol (P. 1) loaded with five cartridges (P. 2 to P. 6) which were taken into possession vide memo Ex. PG. Site plan of the place of occurrence depicting the relevant points was prepared as PG/1. Subsequently scaled site plan in triplicate was got prepared from the Patwari vide memo Ex. PB, PB/1 and PB/2. Marginal notes were given on the same by the I.O. He got Faqira medically examined as according to him, he was injured. He conducted the investigation and on completion of the same, submitted challan in court against both the appellants. 4. The prosecution to establish its case produced Dr. Faqir Hussain as PW. 1 who examined Faqira appellant on 19.11.1991 i.e. 16 days after the occurrence and found the following injuries on his persons:- 1. A septic lacerated wound 2 c.m. x 2% c.m. x skin deep. Puss was coming out from the wound on left guide of fore head. 2. Blackening blow the left eye 3 c.m. x 2 c.m. 3. Old healed abrusion on outer surface of left below joint. 4. Old healed abrasions on outer surface of left elbow joint. 5. An old lacerated wound 1 c.m. x 1 c.m. on the right side of the skul 10 c.m. above the right ear. 6. A lacerated wound around the middle joint of right index finger. In the opinion of the doctor, all the injuries were simple caused by blunt weapon with a probable duration of 4-7 days. Dr. Muhammad Sadiq Ansari (PW. 3) conducted post-mortem Examination on the deabdody of Muhammad Ramzan deceased and found following injuries on his person:- 1. Incised wound 16 c.m. x 8 c.m. bone badly crushed. Brain matter coming out from wound on the left side of head and face below the pina of left ear. It extends upto the neck. 2. Incised wound 5 c.m. x 1 c.m. x bone deep on the left side of the head 4 c.m. above the injury No. 1. 3. A hole 1 c.m. x 1 c.m. (wound of entry) of fire arm on the lateral aspect of left upper arm. 4. Hole 1 c.m. x 1 c.m. (wound of exit of fire arm) on the medial aspect of upper arm. 5. Contusion mark 4 c.m. x 3% c.m. on the left nipple. All the injuries were found to be ante-mortem. Injuries No. 1 and 2 were caused by sharp-edged weapon whereas injuries No. 3 and 4 were caused by firearm: Injury No. 1 was grievous and dangerous and sufficient to cause death in the ordinary course of nature. The remaining injuries were declared as simple. Death was caused instantaneously whereas post-mortem was conducted after 12 to 20 hours. Ex.PC is the Post Mortem report whereas Ex. PC/1 and PC/2 are the pictorial diagrams. \Ws. 2, 4, 5, 6, 7 and 11 are formal in nature. Allah Bakhsh (PW. 8) is a witness of recovery of pistol (P. 1) alongwith cartridges (P. 2 to P. 6). He attested the recovery memo Ex. PG. Muhammad Bakhsh (PW. 9) is the complainant as well as an eye-witness. He is brother of Muhammad Ramzan deceased and made statement deposing about the facts he narrated in the FIR which have been detailed above. Atta Muhammad (PW. 10) is an eye witness of the occurrence. He supported the statement of Muhammad Bakhsh PW. 9. He also attested the various recoveries which were effected from the place of occurrence by the I.O. which have been described above. Ghulam Qadir S.I. (PW. 12) is the I.O. The investigation conducted by him and the recoveries/seizures made by him have been narrated above. The A.D.A. tendered in evidence the report of Chemical Examiner (Ex. PR) and that of Serologist (Ex. PS) and closed the prosecution evidence. 5. Faqira appellant when confronted with the prosecution version, denied the same while making his statement under section 342 Cr.P.C. He denied the recovery of pistol at his instance and to a question as to why the witnesses have deposed against him and why he has been implicated in the present case, he came forward with the following plea:- "Muhammad Ramzan, Muhammad Bakhsh and Muhammad Hanif had illicit relations with my sister and when my mother checked them, she was murdered by Hanif, but case was registered against me. Later on, a case for abduction of Mst. Zenab was got registered against me falsely. For the aforesaid enmity, I have been falsely implicated in this case The aforesaid persons wanted to kill me and to the same and Muhammad Ramzan (deceased) had come to my house who gave me beating and in self-defence, I killed him." Similarly Mst. Zenab appellant in his statement under Section 342 Cr.P.C. was asked to explain as to why the witnesses have deposed against her, whereupon she made the following statement:- "I had married with Ramzan (deceased) voluntarily so was not liked by the complainant party. Muhammad Bakhsh complainant (brother of my husband) wanted the hand of my daughter Mst. Fatima (aged 12/13 years) which I refused because the complainant party did not like me. Muhammad Bakhsh and Ramzan gave me beating, so I went to my parents's house alongwith my children, whereafter I was involved in a false Hadood case in which I was acquitted. I am mother of fourteen children and all my children were snatched and I was falsely involved in murder case due to the aforesaid enmity. I am innocent." 6. I has been argued on behalf of the appellants that the prosecution version is not plausible and does not appeal to reason; that Faqira accused would not be holding hatchet in one hand and pistol in the other; had the appellant intended to kill Muhammad Ramzan, he could have veiy easily done the same with the fire arm he was carrying; it is not possible to cause injuries with the hatchet as well as pistol while holding both of the weapons in both hands; that the witnesses have deposed only with egard to injuries nflicted on the deceased with hatchet but no witness has seen the causing of fire arm injuries to the deceased which were found by the doctor during post mortem examination, therefore, this negates that the witnesses had seen the occurrence; that the occurrence seems to have taken place in the manner .' different to that as stated by the witnesses; that the role attributed to Mst. j. Zenab appellant of having held the deceased in her clasp from back, does not seem to be possible because according to prosecution, Faqira was armed with pistol and in that even any fire shot aimed at the deceased could have caused damage to Mst. Zenab as well; that there was no occasion for Mst. Zenab to hold the deceased in her clasp; that the motive as alleged by the prosecution that Mst. Zenab in the company of her usbai d Muhammad Ramzan had gone to the house of Faqira to receive the amount of compensation agreed by him during Punc.hayat, seems to be only a made up stoiy otherwise it is not acceptable that the deceased would have taken Mst. Zenab alongwith him who according to him had illicit relations with Faqira and they would ot have chosen to visit the house of Faqira at night time after Isha and that too without arming themselves, that according to the prosecution, enmity between the deceased and the appellant was admitted, therefore, it is not acceptable that Muhammad Ramzan would have visited the house of Faqira at night time; that the injuries on the person of Faqira appellant have not been explained by the prosecution which indicates that the occurrence has taken place in a manner different to that as stated by the PWs; that the defence version as put forth by Faqira appellant, if kept in juxtaposition with that of the prosecution version, the defence version seems to be more plausible and acceptable. On the other hand, learned counsel appearing on behalf of the State has defended the conviction and sentences awarded to the appellants by the learned trial Court. 7. We have given our anxious thought to the contentions raised by learned counsel for the parties. We have also gone through the record and perused the evidence both oral as well as documentary minutely. With a view to examine the prosecution evidence, we have to take into account certain admitted facts i.e. the murder has taken place in the house of Faqira appellant; the deceased was done to death on account of hatchet blows received by him on his head; the blood stained clothes which were smeared with blood at the time of occurrence were removed from the person of Mst. Zenab which strongly indicate that Mst. Zenab was present at the time of occurrence; the motive to eliminate the deceased has been described by the PWs right from the time of lodging the FIR; there is not only oral deposition but also documentary evidence in the form of registration of case against the appellant; the occurrence took place after Isha prayer on 12.11.1991; the matter was reported at the police station which is located at a distance of 12 miles from the place of occurrence at 12.45 a.m. with extreme promptitude; in such a short interval there was no possibility of any deliberations on the part of the complainant to flasely implicate the accused persons; the prosecution witnesses have fully supported the case as disclosed in the FIR by the complainant; and the medical evidence in substance supports the prosecution case. 8. While analysing these factors and by considering the prosecution as well as the defence versions, the fact that the murder took place in the house of Faqira appellant and that the appellant was present at the time of commission of murder, it cannot be believed that any one .else other than Faqira appellant could be responsible for commission of the murder. His subsequent conduct to abscond from the place of occurrence and apprehension of Mst. Zenab from the place of occurrence has been supported by the I.O. The fact that Mst. Zenab was arrested from the pla'ce of occurrence, furnishes strong circumstantial evidence to believe the prosecution stoiy. Had the appellant not been responsible for the murder the arrest of Mst. Zenab at the place of occurrence was not in any manner possible. The recovery of blood stained clothes worn by Mst. Zenab at the place of occurrence also lends strong corroboration to the prosecution witnesses that she was present and had participated in the commission of the crime. Although the prosecution story that Faqira appellant was carrying both pistol and hatchet looks a bit odd in the first instance but if examined minutely by keeping in mind the statements of the PWs that they heard the report of fire-shot and rushed to the place of occurrence and witnessed that hatchet blows were inflicted on the head of Muhammad Ramzan deceased, it is clarified that firstly the fire arm injuries were caused but they did not prove fatal and then Faqira appellant took up hatchet and inflicted blows on the head of the deceased. It is quite obvious that on receipt of fire arm injuries the victim i.e. Muhammad Ramzan deceased must have tried to escape, yet Mst. Zenab caught hold of him from the back and facilitated Faqira to inflict injuries with hatchet on his person. Obviously when the deceased was in the clasp of Mst. Zenab it was not safe to commit murder with fire arm lest it may have harmed her as well. This version of the occurrence if examined by keeping in view the statements of the PWs, gets strengthened and has to be believed because when the wintesses saw the occurrence, the appellant was armed with hatchet and inflicted hatchet blows on the head of the deceased and Mst. Zenab was holding him from the back. Viewed from that angle, the contention that the prosecution version does not seem to be plausible that the assailant would have carried pistol as well as hatchet simultaneously pistol as well as hatchet simultaneously, stands repelled. As observed above whenever a certain situation or version is analysed certain undeniable facts cannot be ignored as in the present case the death occurred in the Kptha of the appellant and Mst. Zenab Bibi's clothes were blood stained. Moreover the prosecution version on the face of it may have looked improbable to the defence but if probed into minutely the same is not impossible and in fact the occurrence took place in the manner as observed above. The prosecution version that the witnesses have no enmity to falsely implicate the appellants can also not be ignored as why the witnesses should falsely implicate the appellants when they did not gain anything and as such had no motive to falsely implicate them. The fact that the witnesses have seen the occurrence is abundantly proved from the fact that the FIR was lodged promptly and when the I.O. visited the spot Mst. Zenab was there and the statements of the witnesses were recorded there at the place of occurrence. 9. The plea taken up by Faqira appellant in his statement under section 342 Cr.P.C. that a number of persons came there and committed the murder of Muhammad Ramzan is not acceptable for the reason that sufficient evidence has come on the record to show that Faqira appellant, and Mst. Zenab had illicit liaison in between and carrying on for quite some time. The presence of Mst. Zenab in the house of Faqira eliminates-the presence of other persons who could have possibly mounted assault and committed his murder. As such presence of Mst. Zenab is very significant. - If she was present then no one else could be present over there with her connivance as stated by the prosecution. Otherwise it was not possible that in the presence of Mst. Zenab, other assailants would have come and tried to commit the murder and they would have brought Mst. Zenab alone with them. As regards the defence version, the stand that in fact Faqira was aggressed upon and according to him a number of persons came to his house who committed his murder is not acceptable by keeping in view so-called injuries on his person. Any assailant who according to him was more than one would have done much more damage to the victim than alleged by the appellant. These injuries could have possibly be caused during the scuffle took place between him and Muhammad Ramzan which is fortified by the fact that Muhammad - 4 Ramzan had to be held in Japha nd was done to death. It cannot be accepted that these injuries had been caused by arty enemy and on account of those injuries the appellant had a right of self-defence to kill Ramzan. 10. The prosecution has also assailed the acceptability of motive. The argument that it cannot reasonably be accepted that Mst. Zenab would have taken the deceased alongwith her to receive the amount of compensation from Faqira, learned trial Judge has also made observation that accompanying of Mst. Zenab with Ramzan to the house of Faqira does not seem to be probable but the learned counsel for the appellants as well as the trial Judge has not taken note of the fact that it had been proved as a fact that Mst. Zenab and Faqira had illicit relations between them which was widely known and that on account of registration of case, Faqira had a strong grievance against the deceased. Both of them had intention to eliminate him. It is quite possible that Mst. Zenab would have prevailed upon Muhammad Ramzan to accompany her to receive the amount and the poor victim would have accompanied her by falling prey to the confidence demonstrated by Mst. Zenab. Any how the fact remains the Mst. Zenab and Ramzan both were present in the house of Faqira at the time of commission of the murder. Sometimes the facts are stranger than fiction. Examined by keeping in view the background and all the ambient facts and circumstances of the case, the motive does lend support to the prosecution case. 11. The up-shot of the entire discussion is that the prosecution has successfully discharged its onus by proving the guilt of the appellants beyond any shadow of doubt which is based on ocular account furnished by independent witnesses, evidence of recoveries of incriminating articles and blood stained clothes supported by medral evidence and motive. The learned trial Court was, therefore, right in convicting Faqira appellant under section 302 PP( '". The conviction and sentence to the extent of Faqira as awarded by the learned trial court is upheld and maintained. 12. As regards Mst. Zenab appellant, the prosecution has adduced same evidence against her as well but. the learned trial Judge omitted to advert <o me important legal aspect. Section 308 PPC which has been incorporated on account of Qisas & Diyat Ordinance provides a different sentence to a convict than that under section 302 PPC. Section 308 PPC deals with cases of Qatl-i-amd not liable to Qisas, which is reproduced as under:- "308. Punishment in qatl-i-amd not liable to qisas, etc.~(l) Where an offender guilty of Qatl-i-amd is not liable to qisas under section 306 or the qisas is not enforceable under clause (c) of section 307, he shall be liable to diyat: Provided that, where the offender is minor or insane, diyat shall be payable either from his property or by such person as may be determined by the court: Provided further that where at the time of committing qatl-i-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realise the consequences of his act, he may also be punished with imprisonment of either description for term which may extend-,to fourteen years as ta'zir. Provided further that where the qisas is not enforceable under clause (c) of section 307 the offender shall be liable to diyat only if there is any wall other than offender and if there is no wali other than the offender, he shall be punished with imprisonment of either description for a term which may extend to'fourteen years as ta 'zir. (2) Notwithstanding anything Contained in sub-section (1) the court hav'ng regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as ta'zir." The third proviso of this section unambiguously lays down that if Qisas is not enforceable under section 307 PPC, the offender shall be liable to diyat only if there is any Wali other than the offender. If there is no Wali other than the offender, he shall be punished with imprisonment with either description which may extend to 14 years as ta'zir. The third proviso of section 308 PPC read with section 307 PPC when applied to the facts and circumstances of the present case, Mst. Zenab appellant was admittedly wife of Ramzan deceased at the time of occurrence. The offender Mst. Zenab is amongst the L.Rs of Ramzan deceased as sharer and as such comes within the definition of wali. Her case, therefore, will be covered by section 308 and 307 PPC. Under sub-section (2) of section 308 PPC, the appellant can be punished with diyat as well as with imprisonment for a term upto 14 years as ta'zir. Our view is fortified by the law laid down by the Hon'ble Supreme Court in the case of Khalil-ur-Zaman vs. Supreme Appellate Court (PLD 1994 SC 885) wherein a husband had killed his wife and the sentence nf death under section 302 PPC awarded by the learned Judge, Special Court for Speedy Trial was upheld be the Hon'ble Supreme Appellate Court. Their lordships of the Supreme Court observed that section 302 PPC was not applicable and the offence was covered by Sections 307 and 308 PPC. Sections 305 and 306 PPC were also referred. Respectfully following the law laid down by the Hon'ble Supreme Court the conviction and sentence of Mst. Zenab appellant under section 302 PPC is held not maintainable. The same is set aside and she is convicted under section 308(2) PPC. The sentence provided is diyat plus 14 years imprisonment. Mst. Zenab has acted in extremely cruel as well as immoral manner as she betrayed the confidence of wife and murdered her husband. As such no extenuating circumstances are available to extend any concession to her. She is, therefore, sentenced to 14 years R.I. She shall also pay diyat the minimum amount of which has been fixed as 2.20,000/-. 13. The up-shot of the above discussion is that Cr. Appeal No. 8/93 is dismissed, the conviction and sentence awarded to Faqira appellant by the trial court is upheld and maintained. As regards Cr. Appeal No. 7/93, the same is dismissed but for the modification in conviction and sentence, as mentioned above. The death sentence of Faqir Hussain alias Faqira appellant is confirmed. The death sentence of Mst. Zenab is not confirmed., (A.P.) Death sentence not confirmed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1508 Present: ZAFAR PASHA CHAUDHRY, J. HAMEEDA BIBI-Petitioner versus S.H.O., P.S. RANGPUR and others-Respondents Criminal Misc. No. 50/H of 1996, dismissed on 25.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 491 read with Section 12 & 25 of Guardian and Wards Act~Habeas Corpus-Petition for-Recovery of minor-Under section 12 and 25 of Guardian and Wards Act a Guardian Judge has ample authority to regulate custody of minor and he has been invested with powers of Magistrate 1st Class in that behalf-Real forum to determine question of custody of minor is Guardian Court-Held: Petition u/s 491 Cr.P.C. is not maintainable-Petition dismissed. [Pp. 1509 & 1510] A Mr. Tahir Mahmood, Advocate with Petitioner in Person. Pirzada Wali Nasim Jafri, Advocate for the Father of Minor. Ferhat Rasool, SI in Person. Date of hearing: 25.3.1997. order The learned counsel has put up appearance on behalf of the father of minor Perveen Mai. He has produced copy of the petition moved before the learned Guardian Judge Muzaffargarh wherein the prayer for declaring him as guardian of the minor has been made. Another copy of the plaint has been placed on the file indicating that suit for grant of permanent injunction has been filed against the mother who is petitioner in the instant petition before this Court. As far as the filing of civil suit is concerned the same is not relevant for the purpose of proceedings under section 491 Cr.P.C. However filing of petition before the Guardian Judge under Guardian and Wards Act seeking a declaration as guardian has an important bearing on the petition under section 491 Cr.P.C. It is settled law that jurisdiction under section 491 Cr.P.C. is invoked in cases of emergency when some minor is removed from the custody of a person entitled to her custody and immediately relief is sought to be provided. There is no dispute with the proposition that whatever order is passed under section 491 Cr.P.C. is always tentative in nature and is meant as a stop-gap arrangement. It is always subject to the final determination of the question of guardianship or custody by the court of competent jurisdiction which is always a guardian court. Section 491 Cr.P.C. is not meant to pre-empt the jurisdiction of the guardian court or in any manner to substitute the proceedings to be conducted by the learned Guardian Judge. 2. Learned counsel for the petitioner however has raised two objections. First that according to him section 25 of the Guardian and Wards Act is not attracted to the facts and circumstances of the case because father under Islamic law is natural guardian of the minor therefore, there is no need of filing a petition for getting him declared as a guardian and secondly, the custody of the minor girl who is aged about 8/9 years is urgently sought to be delivered to the petitioner who is the mother and according to the principles of Islamic Law the mother has the first right to have the custody/Hizanat of the minor. She can be deprived of her custody only if she is disqualified on the basis of various disqualifications enumerated in the Islamic Law (Muhammadan Law). In support of his contentions the learned counsel has placed reliance on Mst. Nusrat Jehan v. Muhammad Siddiq Khan (1993 P.Cr.L.J. 522 Karachi), Mst. Nasim Akhtar versus Sh. Gulzar Ahmad (1995 P.Cr.L.J. 474 Karachi) and Ahmed Sami versus Saadia Ahmed (1990 S.C.M.R. 268). 3. I do not want to express any opinion on the submissions made by the learned counsel for the petitioner lest it may prejudice the case of either party. However, it will be open to him to raise an objection including the objections observed above before the learned Guardian Judge who is already seized of the matter. It has been further submitted by the learned counsel for the petitioner that proceedings before the learned Guardian Court are unnecessarily delayed and welfare of minor daughter demands that she should be urgently delivered to the mother. The apprehension is not well founded because under sections 12 and 25 of the Guardian and Wards Act. Guardian Judge has ample authority to regulate custody of the minor and he has been invested with powers of Magistrate 1st Class in that behalf. Needless to observe that the real forum to determine the question of custody of the,minor is the Guardian Court established under the Guardian and Ward Act. As observed earlier, since the petition has been moved before the Guardian Judge for custody of the minor this petition under section 491 Cr.P.C. is not maintainable. The same is disposed of subject to the above observations. (AAJS) Petition disposed of
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1510 Present: MliMTAZ ALI MlRZA, J. NAWAZ KHAN--Petitioner . versus THE STATE-Respondent Crl. Misc. No. 601/B of 1997 in Cr. Appeal No. 124 of 1995, accepted on 19.8.1997. Criminal Procedure Code, 1898 V of 1898)-- S. 426-(l~A(c)-Suspension of sentence-Prayer for-Statutory delay- Ground of-Offence u/s 302/34 Pakistan Penal Code, 1860-Whether statutory period prescribed by Code has or has not .been elapsed since filing of appeal against conviction-Question of-Conviction was recorded on 21.6.1995 and petition was filed on 26.6.1997 i.e. after expiry of two years-As per office report appeal of petitioner is not likely to be fixed for hearing in near future-Sentence suspended-Petition accepted on statutory ground. " [P. 1511] A Ch. Muhammad Iqbal, Advocate for Petitioners. Mr. Khalid Mahmood Mughal, Advocate for State. Date of hearing: 19.8.1997. order Through the instant petition under Section 426 (l-A)(c) Cr. P.C. suspension of sentence awarded to the petitioner by the learned trial Court is sought on statutory ground till the disposal of the main appeal. 2. The facts forming the background of the instant petition are that the petitioner was tried by Syed Ijaz Hussain Gillani, learned Sessions Judge, Attock, and was convicted under Section 302(b) PPC and was sentenced to life imprisonment with the benefit of Section 382-B Cr. P.C. He was further ordered to pay Rs. 20,000/- as compensation to the legal heirs of the deceased, in default whereof he was to undergo E.I. for six months. Having been sp convicted, the petitioner preferred an appeal being Crl. Appeal No. 124/95 on 5.7.1995 against his conviction and sentence. 3. Through Crl. Misc. No. 669/B-96 the petitioner earlier sought the suspension of sentence awarded to him by the learned trial Court before this Court. The said Crl. Misc: was, however, dismissed by may learned brother S.M. Zubair J., on 20.10.1996. The present petition (Crl,. Misc. No. 601/B- 97) for suspension of sentence has been moved on statutory ground. 4. Mr. Khalid Mahmood Mughal, Advocate, learned counsel appearing on behalf of the State has opposed the instant Crl. Misc. for suspension of sentence on statutory ground on the ground that the earlier petition moved by the petitioner has been dismissed by this Court on merits vide order dated 20.10.1996 and that the petition for suspension of sentence having been so dismissed on merits, the present petition did not lie and merits out right dismissal. 5. I have considered and evaluated the submissions of the learned counsel for the parties. True it is, that the earlier petition moved by the petitioner for suspension of the sentence had been dismissed by this Court vide its order dated 20.10.1996 on merits. However, the present petition seeking suspension of the sentence has been moved on statutory ground and the earlier dismissal of the petition made for a similar relief could not stand in the way of this Court. Reliance for this view is placed on judgment reported as Liaqat and another vs. The State (1995 SMR page 1819). The only point urged in support of the present petition for suspension of sentence is the statutory ground contemplated by Section 426 (l-A)(c) Cr. P.C. which is to the effect that an Appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of this conviction. In this view of the provisions of the Criminal Procedure Code what has to be seen is only the fact as to whether the statutory period prescribed by this provision of the Code has or has not elapsed since the filing of the appeal against conviction. Now in this case conviction was recorded on 21.6.1995 and the present petition was filed on 26.6.1997 i.e. after the expiry of two years. With a view to examining as to whether the appeal filed by the petitioner against his conviction was likely to ixed for hearing in the near future, I had sent for a report from the ffice. The said report has been received and states that according to the routine, the appeals filed in the year 1994 were being fixed for hearing and that the petitioner's appeal was filed in 1995. The report, thus, made by the office indicates that the appeal of the petitioner notwithstanding the expiry of the statutory period of two years is not likely to be fixed for hearing in the near future. I am, in this view of the situation, inclined to accept the petition moved by the petitioner on the statutory ground. The same is accordingly accordingly accepted, the sentence of the petitioner is suspended and he is allowed to be released on bail provided he furnished a bail bond in the sum of Rs. 2 lacs with two sureties in the like amount to the satisfaction of the learned trial Court. (AAJS). Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 1512 Present: HAMID ALI MlRZA, J. RIAZUDDIN and another-Petitioners versus THE STATE-Respondent Criminal Misc. Application No. 396 of 1996, allowed on 21-3-1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 561-A-Quashmnt of proceedings-Prayer for-Offence u/s 188 PPC Contention that SDM has taken cognizance on the basis of challan submitted by Police and there has been no compliant as required under section 4(h) Cr. P.C.-Further contented that u/s 195 sub-section (1) (a) "no court shall taken cognizance of any offence punishable under sections 172 to 180 of Pakistan Penal Code, except on complaint in writing of public servant concerned or of some other public servant to whom he is subordinate"-Accordingly, proceedings before S.D.M. were not legal and amounted to abuse of process of law-Held : Continuation of proceedings before S.D.M. would amount to abuse of process of law consequently same are quashed. [Pp. 1513 & 1514] A & B Mr. MahmoodA. Qureshi, Advocate Applicants. Sh. Aziz-ur-Rehman, Advocate for State. Date of hearing : 21.3.1997. judgment This is an application under Section 561-A Cr.P.C. for quashment of proceedings State, u. Riazuddin and another in a Case No. 88/96 registered under Section 188 PPC as per FIR No. 113/96 of P.S. Malier City Karachi pending before SDM Malir Karachi. Brief facts of the case are that on 6-8-1996 one Head Constable lodged FIR No. 113/96 under Section 188 PPC at P.S. Malir stating therein that he alongwith other police constables was on patrolling duty in private suzuki when he received information that some persons were issuing receipts and were receiving money from the business men in Bakra Piri when the SDM Gadap had imposed ban upon issuance of any receipt and collection of money under Section 144 Cr. P.C. in the area. The said Head Constable Muhammad Ilyas alongwith his party reached the spot and apprehended the Applicants and registered the case against them. After usual investigation th» police submitted the challan before the SDM Gadap where the applicant moved an application under Section 249-A Cr. P.C. for acquittal of the applicants but no order was passed thereon therefore the applicants have approached this Court as the said proceedings before the said Magistrate amounted to abuse of process of law. The contention of learned counsel for the applicants is that SDM Gadap has taken cognizance on the basis of challan submitted by the police and there has been no complaint as required under Section 4(h) Crj P.C. He further submits that under Section 195 Sub-Section (l)(a) "no Court shall take cognizance of any offence punishable under Sections 172 to 180 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate", accordingly, the proceedings before the S.D.M. were not legal and amounted to abuse of process of law. Learned counsel has placed reliance upon Yar Muhammad and 12 others vs. The State (1988 P.Cr. L.J. 2156, Karachi ); Ghulamullah vs. The State (1993 P.Cr. L.J. 1307 Karachi );. Hqji Tooti Bashar vs. The State (1993 P.C.R. L.J. 1448 Karachi ); Syed Abdul Rehman Shah and 25 others vs. The Sate (1996 P.Cr. L.J. 483 Peshawar ); Mubashir and others vs. The State (1994 P.Cr. L.J. 2496 Lahore ) and Sanaullah vs. The State (1994 P.Cr.L.J. 2552 Lahore ) in support of his contentions. Learned counsel for the State concedes the legal position that proceedings could not be taken before SDM on the basis of challan submitted by the police. The State counsel submits that cognizance could be taken only on the compliant to be lodged by District Magistrate or any other person authorised by him. Section 195(1) (a) runs as under : " (1) No Court shall take cognizance : (a) of any offence punishable under section 172 to 180 of Pakistan Penal Code except on the compliant in writing of the public servant concerned or of some other public servant to whom he is subordinate." Learned Judge in Chambers in Yar Muhammad and 12 others vs. The State (188 P.Cr. L.J. 2156) has observed at page 2158 as under :- "Although section 188 has been made cognizable, but three is no amendment in section 195, Cr.P.C. and, therefore, the cognizance could only be taken on the complaint filed by the person concerned or by the person to whom he was subordinate. In the case of Sharif and 4 others v. The State PLD 1975 Lah. 1215 it was observed : "I feel at although the police is empowered to investigate the case and file a challan in the Court of Magistrate, a compliant within the meaning of section 4(h), Cr. P.C. is necessarily to be filed, before the learned Magistrate can take cognizance of the case. It appears that, as in so many other cases where amendments in the Penal Code or the Criminal Procedure Code have been made after the partition, the amendment in Schedule II of the Cr. P.C. making an offence under section 188, P.P.C. cognizable, was made in huriy overlooking the necessity for making a corresponding amendment in section 195(l)(a), Cr.P.C. The result is that a Magistrate cannot take cognizance of a case under section 188, P.P.C. unless and until the concerned officer files a complaint before the learned Magistrate" and the proceedings were, therefore, quashed." In the rest of reported cases cited by learned counsel for applicants same view has been taken and it has been held that the proceedings could not be initiated by way of challan at the instance of police officer and the same amounted to abuse of process of law. In the circumstances the continuation of the proceedings before the S.D.M. would amount to abuse of process of law consequently the same are quashed and this criminal miscellaneous application is allowed. (AAJS) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1514 Present: amjad ALI, J. SARDAR MUHAMMAD-Petitioner versus STATE-Respondent Crl. Revision No. 155 of 1997, accepted on 25.7.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 439-Offence u/s 10 of "Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Pre-arrest interim bail-Surety to accused-Standing of- Abcondence of accused-Forefeiture of surety bond and direction to deposit Rs. 25,000/- in Court-Challenge to-It is clear from suety bond tendered by petitioner that he had responsibility for conduct and appearance of accused in Court till 8th January, 1997 (1st date of appearance after interim bail)-Petitioner cannot be held responsible for absence of accused from Court from anjc subsequent dateOrder of forfeiture of surety bond and for deposit of Rs. 25,000/- passed by Additional Sessions Judge is not sustainable, therefore, set aside- Petition accepted. [Pp. 1515 & 1516] A & B 1993 MLD 541 rtf. Ch. Mumtaz Ahmed, Advocate for Petitioner. Malik Mateen Khokhar, A.A.G. for State. Date of baring: 25-7-1997. judgment Sardar Muhammad, the present petitioner, stood surety for one Muhammad Saleem son of Ghulam Haider resident of Pippliwala, District Gujranwala, who was admitted to pre-arrest interim bail on 22-12-1996 till 8-1-1997 for a sum of Rs. 50,000/- by the Additional Sessions Judge, Gujranwala, in a case registered against him under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide FIR No. 462/96, dated 16-7-1996, at Police Station, Sardar Gujranwala. 2. The Said Muhammad Saleem appeared before the Court on 8-1- 1997 when the case was adjourned to 15-1-1997. The order for interim bail was also extended till that date. On 15-1-1997 Muhammad Saleem appeared before the Court and the case was adjourned to 22-1-1997. On the said date, however, Muhammad Saleem did not appear before the Court whereupon proceedings against the petitioner were initiated under section 514 of the Code of Criminal Procedure. The security bond of the petitioner. was consequently forefeited by the order of learned Additional Sessions Judge, Gujranwala, dated 8-4-1997, and the petitioner was directed to deposit a sum of Rs. 25,000/- in the Court within a period of one month. 3. The petitioner has assailed the said order of the learned Additional Sessions Judge, through this revision petition claiming that he had stood surety of the accused for his appearance in the Court till 8-1-1997 whereafter he was not responsible for his appearance or abstention on the subsequent dates. 4. I have heard the learned counsel for the petitioner and Malik Mateen Khokhar, the Assistant Advocate-General and have also examined the surety bond submitted by the petitioner before the learned Additional Sessions Judge, Gujranwala . It is clear from the surety bond tendered by the petitioner .before the learned Additional Sessions Judge that he had taken responsibility for the conduct and appearance of Muhammad Saleem accused in the Court till the 8th January, 1997. The learned counsel for the petitioner has relied upon Abdul Hafiz vs. The State (1993 MLD 541) where, in an identical case, the learned Single Judge of this Court had held that a surety could not be held responsible for absence of the accused for a date for which the surety had not undertaken for his production in the Court. 5. Malik Mateen Khokhar, learned AAG, referred'to Muhammad Sharif and another vs. The State (1994 SCMR 690), wherein the Supreme Court had refused leave to appeal to the surety whose surety bond was forefeited because of absence of the accused for over 8 months. The learned AAG, however, conceded that from the said citation it is not clear if the surety in the said case had taken the responsibility for appearance of the accused uptil a particular date or for throughout the proceedings. The case of Abdul Hafiz referred to above is on all fours with the facts of the present case. The petitioner as stated above had clearly given surety for the conduct and appearance of the accused Muhammad Sajeem in the Court till 8-1- 1997. In this respect, the relevant extract of the surety which is in vernacular is reproduced below :- 50,000/ & &J 50,000/ In view of the above undertaking, the petitioner cannot be held responsible for absence of the accused from the Court from any subsequent date. The learned Additional Sessions Judge, Gujranwala , had therefore, erred in making the petitioner liable for non-appearance of the accused on the ,0 subsequent dates after 8-1-1997. In view thereof, the order of forfeiture of surety bond and for deposit of Rs. 25,000/- in the Court, passed by the learned Additional Sessions Judge, on 8-4-1997, is not sustainable and is, therefore, set aside. 6. Before parting with the case, it may be observed that generally printed forms of surety bonds are submitted by the accused and their sureties at the time of their admission to bail. These printed forms which are available in the market are accepted mechanically without examining the entries made therein. The courts and authorities accepting these forms should ensure that these bonds clearly specify the dates, including extended dates for interim bails or proceedings for which surety should be made liable for appearance of the accused. 7. The revision petition is accepted accordingly. (MYFK) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 1517 Present: abdul hameed dogar, J. GHULAM and others-Appellants versus STATE-Respondent Criminal Appeal No. 72 of 1996, decided on 1.4.1997. (i) Pakistan Penal Code, 1860) (XLV of 1860)-- Ss. 302/149 & 148-Murder-Offence of-Conviction for-Challenge to- Accused was nominated in F.I.R. with specific role of having caused gun shot injuries to deceased which was fully supported by eye-witnesses- Ocular testimony was corroborated by medical evidence as well as by evidence about motive-Conviction and sentence of accused were upheld in circumstances! [Pp. 1520, 1521 & 1522] A, B & C 1968 SCMR 1361; 19^84 SCMR 930; 1985 SCMR 95; 1991 SCMR 1601 and PLD 1976 Lah. 1403 ref. (ii) Pakistan Penal Code, 1860) XLV of 1860)-- Ss. 302/149 & 149--Murder~Offence of-Accused was not nominated in F.I.R.-Neither Mashirnama of arrest of accused nor that of indentifiction parade had been brought on record-Magistrate who had held identification parade and police officials who had arrested accused had not been examined by prosecution-Evidence regarding holding of identification parade having not been put to accused in his examination under S. 342, Cr.P.C. could not be used against him-Accused acquitted. [Pp. 15 2 & 1523] D, E & F 1968 SCMR 1361, 1991 SCMR 1601; PLD 1955 FC 129 and 1969 SCMR 777 ref. 1984 SCMR 930; 1985 SCMR 95 and PLD 1976 Lah. 1403 dist. Sardar Muhammad Ishaq, Advocate for Appellant. LiaqatAli Shar, A.G.-G., for the State. Date of hearing : 28.2.1997. judgment This appeal arises form the judgment, dated 23-5-1996 of learhed 1st Additional Sessions Judge, Khairpur by which he convicted the appellants under sections 302 read with 148 and 149, P.P.C. and sentenced them to suffer R.I,, for imprisonment for life and to pay d fine of Rs. 10,000 each or in default to suffer further R.I. for 1 year. They were also convicted under sections 147 and 148, P.P.C. and sentenced with imprisonment for 2 years and fine of Rs. 2,000 each and in default to suffer R.I. for 2 months more. The fine if recovered was ordered to be given to the legal heirs of deceased under section 544-A, Cr.P.C. Both the sentences were ordered to run concurrently and the appellants were also provided a benefit of section 382-B, Cr. P.C. in the computation of their sentence. The facts forming the case of the prosecution are that on 16-8-1985 complainant Muhammad Rafique lodged the case at Police Station Ahmedpur alleging therein that on the same day he alongwrth his father Ameer Bux went to supervise their lands and P.Ws. Khair Muhammad, Ghulam Mustafa Sandelo and Chaneesar Khoso were also present in their adjacent lands and it was at about 7 a.m. when Ameer Bux father of complainant went towards the garden of P.W. Khair Muhammad. It is further mentioned that at that movement 5 armed persons emerged there from the garden of Sher Muhammad allegedly gave Hakals to the father of the complainant and asked him that he will not be spared and subsequently they fired direct at him. Complainant as well as P.Ws. identified them to be Sattar son of Ghulam Muhammad, appellant Muharam son of Meero with guns, Mukhtiar alias Mukhi son of Ghulam with revolver, Meero son of not known and one unidentified person with pistols. These four identified persons were Langah by caste and were resident of Balochistan. , Complainant and P.Ws. came running towards the Wardat and raised cries on which the above 5 persons ran inside the bananas garden of Sher Muhammad. Complainant found his father dead having sustained fire-arm injuries on this chest and other part of the body. On the cries as well as fire, reports P.Ws.. Qasim, Ghulam Hyder and others also arrived at the Wardat who were appraised the above facts. About motive complainant has alleged 'that 4/5 years ago the above nominated accused were residing in this village and co-accused Sattar had levelled the allegation of Karap on his wife with Ghulam Shabbir complainant's cousin and they then migrated from complainant's village to Usta Muhammad and had expressed that they will take revenge. 1After usual investigation police put up challan against 'co-accused Meero, Mukhtiar, Sattar and appellants Muharam and Ghulam. During the pendency of trial accused Mir Muhammad expired and proceedings against him were abated whereas co-accused Mukhtiar and Sattar were declared absconders. Charge was framed against the appellants under the abovementioned sections to which they pleaded not guilty and claimed trial. Prosecution in support examined P.W. No. 1 Dr. Ghulam Nabi, who has produced post-mortem, P.W. 2 Muhammad Rafique, who has produced the F.I.R., P.W. 3 Khair Muhammad, has produced his 164, Cr.P.C. statement, P.W. 4 Ghulam Mustafa, who has produced his 164, Cr. P.C. statement, P.W. 5 Qasim. P.W. 6 Chaneesar who have produced their 164, Cr. P.C. statenv. nts P.W. 7 Ghulam Hyder, P.W. 8 Qurban AH, who have produced tlu> MaKhirnama of Wardat, inquest report, Mashirnama of recovery an«; . nest, P.W. 9 Ayaz Ahmad, P.W. 10 Abdul Kareem and P.W. 11 Ghulam All, iho learned A.P.P. gave up P.W. 12 Ali Asghar, who has produced the receipt. Lastly A.P.P. closed the side. The appellants in their statement under section 342, Cr.P.C. at trial denied the allegations of the prosecution and claimed innocence. They neither examined themselves on oath nor led any evidence in their defence. Appellant Ghulam in his statement has stated as under :- "Mst. Basran is my niece, I have given the hand of Mst. Basran to grandfather of complainant. The husband of Mst. Basran was expired prior to this incident, Mst, Basran demanded share of property of her husband from complainant party through me. On which they were annoyed and extended threats for the dire consequences so only this incident took place. Which was quite unseen till recovery of dead body from corpse-bearer. Thereafter, with consultation of police, complainant involved me and other co-accused falsely, in this case. It is on the record that accused (deceased) Mir Muhammad was admitted in the Sandeman Provincial Hospital, Quetta from 12-8-1985 to 21- 8-1985 (date of incident). Prior to this incident till today I used to reside in village Ahmedpur near to complainant party, Complainant parly knows me very well. I produce photo copy of N.I.C. No. 439-30-123039, dated 23-4-1997 and admission slips of deceased Mir Muhammad and medical certificate issued by Medical Officer Dr. M.S. Hashmi, Professor of Medicines, Bolan Medical College, Quetta as Exhs. 25 to 29 respectively. I am innocent and pray for acquittal." The trial' Court after framing the points for determination and appraisal of the evidence, convicted and sentenced the appellants. Mr. Sardar Muhammad Ishaque learned counsel for appellants and Mr..Liaqat Ali Shar, A.A.G. have been herd at length. Learned counsel for the appellants argued that in fact incident is unwitnessed one and the presence of eye-witnesses at the place of incident is unnatural and not convincing as it 'is not supported by any independent witness. He further contended that there are such material contradictions in the statements of the prosecution witnesses and also inconsistt .icy in ocular and medical evidence that a inference can easily be drawn about the genuineness of the case of the prosecution. He next submitted that investigation of the case has been madfe dishonestly and neither empties were collected from the spot and sent to Ballistic Expert nor blood-stained earth was seized and sent to chemical examiner so much so the recovery of crime weapon was also not affected from the appellants, therefore, the appellants are entitled to the benefit "of doubt. He argued that P.W. Chaneesar has been incorrectly termed to be an independent witness by the trial Court actually he is not an eye-witness and if this statement is taken in consonance with the statements of other P.Ws., it becomes clear that he has not seen the incident. He lastly contended that appellant Ghullam has heen substituted as an accused at the place of one unknown culprit. It is quite unbelievable that the complainant and the P.Ws. identify appellant Muharram and other accused near relative of appellant Ghullam but do not identify him creates serious doubt about the presence and identification of appellant Ghullam. His identification has not legal value as neither memo, of identification parade is produced in evidence nor concerned Magistrate is examined at the trial, even no question about holding of identification parade and picking up the P.Ws. has been asked from appellant Ghulam in his statement under section 342, Cr.P.C., therefore, his statement has got no' value in the eye of law as an incriminating evidence has not been put to him in his statement. In support of contentions he relied upon the following caselaw :-- (1) Hazratullah and another v. The State 1968 SCMR 1361; (2) Muhammad Iqbal v. The State 1984 SCMR 930; (3) Shaikh Muhammad v. Ghulam Muhammad and others 1985 SCMR 95; (4) Munawar Hussain alias Asghar Ali v. The State 1991 SCMR 1601; and (5) Muhammad Farooque and 2 others v. The State PLD 1976 Lah. 1403. Mr. Liaqat Ali Shar, A.A.-G. vehemently opposed the contentions raised by appellants' counsel and stated that ocular evidence furnished by complainant Muhammad Rafique and eye-witnesses Khair Muhammad, Chaneesar and Ghulam Mustafa, is supported by medical evidence and the injuries on the body of deceased are fully in consonance with the number of the accused in the case. He argued that appellant Muharram is not only identified and nominated in the F.I.R. with a specific role of firing from gun at deceased Amir Bux but has been fully implicated by complainant and the above witnesses in their respective statements and there is sufficient evidence collected against him for proving his conviction. About appellant Ghullam he has contended that his name is not mentioned in F.I.R. and is implicated on the evidence of identification parade which is defective and has no objection if his appeal is accepted. I have anxiously attained to the arguments addressed by the learned counsel for the appellants and State. I feel persuaded to agree with the contentions of learned A.A.-G. and find that appellant Muharram is not only nominated in F.I.R. with a specific role of firing from gun at deceased Ameer Bux but all the eye-witnesses mentioned above have fully implicated him saying that he was armed with gun and had come in the company of co-accused Sattar, Mukhtiar, Meero and one unidentified person later on identified to be appellant Ghullam and caused gun shot injuries to deceased Ameer Bux. The above ocular evidence is fully corroborated by the -medical evidence and P.W. Ghulam Nabi the medical officer in his deposition has disclosed the presence of 5 wounds of entry and exit over the body of deceased Ameer Bux and the cause of death is shown to be the result of fire-arm injuries. In order to further appreciate the ocular evidence of eye-witnesses, it is necessary to discuss the relevant portions of the depositions of these witnesses. Complainant Muhammad Rafique in his examination-in-chief has stated that deceased was his father and about 3/4 years back at about 7 a.m. he alongwith his father had gone to visit their crop and he was standing in the fields whereas his father wen to the garden of Khair Muhammad Sandilo and at that time P.Ws. Khair Muhammad, Ghulam Mustafa and Chaneesar were also standing there and 5 accused persons namely Sattar, Mukhtiar, Meero and appellant Muharram and one unidentified person emerged from the bananas' garden of Sher Muhammad Sandilo. Accused Sattar and appellant Muharram were having guns whereas accused Mukhtair with pistol and Meero and unidentified person with revolvers. Accused Sattar hurled abuses to his father and all the accused including appellant fired at him directly, which hit on his chest and other parts of the body and subsequently died. On the cries of the father and witnesses and fire-arm report P.Ws., Qasim and Ghulam Hyder Khoso also arrived at the Wardat. Complainant in his deposition has categorically stated about the motive for the murder saying that about 4/5 years prior, accused Sattar was residing in his village and had leveled allegation of Karap of his wife with Ghulam Shabbir his cousin. They had shifted to Jacobabad side and has taken the revenue of Karap from complainant's father Ameer Bux as the alleged Karo was his nephew. P.Ws. Khair Muhammad, Ghulam Mustafa and Chaneesar in their respective depositions have stated the similar facts on the factum of incident and the motive fully implicating appellant Muharram with the commission of offence. Though all of these witnesses have been cross-examined at length by the defence counsel but their evidence has not been shattered at all. This all shows that the case against appellant Muharram is fully established by the above ocular as well as medical evidence and there seems to be no justification to allow his appeal and set aside his conviction and sentence. In case of Muhammad Farooque and 2 others v. The State PLD 1976 Lah. 1403 and Muhammad Iqbal v. The State 1984 SCMR 930, Lahore High Court as well as Honourable Supreme Court have held that the mere absence of enmity against witness held not sufficient to bring home charge of murder if evidence of such witnesses is found to be inherently unreliable. I respectfully disagree with the facts and circumstances of these cited cases which are distinguishable from the facts of the present case as in this case appellant Muharram has not been able to prove that the witnesses are false and unreliable. The case of Shaikh Muhammad v. Ghulam Muhammad and others 1985 SCMR 95 is not applicable with the facts of the present case as the cited case is about the appeal against acquittal. The case of Hazratullah and another v. The State 1968 SCMR 1361 also is not applicable with the facts of the case in hand and is entirely on different facts and circumstances. In these circumstances, the appeal in respect of appellant Muharram is dismissed, conviction and sentence passed against him by trial Court is maintained. So far appellant Ghullam's case is concerned, he was not nominated in F.I.R, though he is said to be near relative of other accused. He was picked up in the identification prade by complainant Muhammad Rafique and P.Ws. Khair Muhammad, Ghulam Mustafa and Chaneesar. In their respective statements though complainant and P.Ws. Khair Muhammad and Ghullam Mustafa have stated that they picked him up in the identification parade arranged before Magistrate to be the accused in the case but P.W. Chaneesar in his examination-in-chief has said that appellant Ghulam was put to identification by the police at the police station. He has further stated that, appellant was not put to identification before any Magistrate in his presence. Admittedly neither Mashirnama of arrest of appellant Ghulam nor that of identification parade have been brought on record nor the Magistrate holding the parade was examined at trial. So much so the police officials who arrested him and got his identification parade before the Magistrate has also not been examined. In this statement under section 342, Cr.P.C., this incriminating piece of evidence of arranging of identification parade has not been put to him, therefore, the same cannot be considered as evidence against the appellant Ghullam. In case ofMunawar Hussain alias AsgharAli v. The State 1991 SCMR 1601, Honourable Supreme Court has set aside the conviction and acquitted the accused on the ground that the circumstances of the last seen evidence was not put to accused when he was examined under section 342, Cr.P.C. In case of Abdul Salam Mola v. Crown PLD 1955 FC 129 it has been held as under :- "Compliance with section 342 of the Criminal Procedxire Code is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply." In the case of Din Muhammad v. Crown 1969 SCMR 777; it has been held by Honourable Supreme Court that circumstances from which inference adverse to accused sought to be drawn should be put to accused when he is questioned under section 342. Cr.P.C. For the foregoing reasons I am convinced that the prosecution has not been able to prove case against appellant Ghullam, he is awarded the benefit of doubt. His appeal is allowed. Conviction and sentence in his respect is set aside and is accordingly acquitted. He shall be released forthwith if not, required in any other case. (K.K.F.) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1523 Present: raja muhammad khurshid, J. MEHR ELLAHI-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 288/B of 1997, decided on 28.4.1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/S. 302/324/34 of Pakistan Penal Code, 1860-Accused was named in promptly lodged F.I.R. with a specific role-Eye-witnesses had implicated accused in the occurrence and deceased in his dying declaration had also done the same- Deeper appreciation of merits of case could not be undertaken at bail stage-Evidence so far collected by prosecution had, prima facie, linked accused with murder of deceased and his vicarious liability along-with his co-accused could not be overlooked even at bail stage-Offence falls within prohibitory clause of S. 497(1), Cr.P.C. and there was no extenuating circumstance in favour of accused-Bail disallowed. [P. 1524] A Malik Rab Nawaz Noon, Advocate for Petitioner. Sardar Muhammad Ishque, Advocate for the Complainant. Raja Muhammad Ayub Kiani, Advocate for the State. order A case under section 302/324/34, P.P.C. Vas registered against the petitioner and others vide F.I.R. No. 371, dated 25.9.1996 at Police Station Waris Khan, Rawalpindi on the ground that in furtherance of common intention, the petitioner and his co-accused committed the murder of Bahadur Ali on 25.9.1996 at about 10-45 a.m. The F.I.R. was lodged by the father of the deceased namely Haji Maljinood Akhtar on the same day at about ll-50a.in 2. According to the F.I.R.. the petitioner had caught hold of the deceased and had given him kick and fist blows while his co-accused Shaukat Ali and Azmat Chhuri blows to him. 2-A. Learned counsel for the petitioner has submitted that the Chhuri blows to the deceased are attributed to the co-accused who are sons of the petitioner; that a wider net is thrown to implicate the petitioner falsely in this case; that no motive existed against the petitioner; that post-mortem report did not reveal that any kick or fist blow was given to the deceased; and that in view of above facts, it has become a case of further enquiry. The bail was accordingly prayed for the petitioner, 3. Learned counsel for State assisted by learned counsel for the complainant contended that the petitioner was named in the F.I.R. and a specific role has been attributed to him; that the F.I.R. was promptly lodged; that the occurrence was committed in broad daylight and hence, there was no doubt regarding the participation of the petitioner. In addition to that, it was contended that there was ho enmity between the parties for the false implication of the petitioner in the case. Lastly, it was submitted that the deceased had given statement to the Investigating Officer before his death in which he had nominated the petitioner as one of his killers. It was, therefore, submitted that the petitioner had no case for bail on merit. 4. I have considered the above submissions and find that the petitioner is named in the promptly lodged F.I.R. and a specific role is attributed to him. The prosecution has relied upon the eye-witnesses who have also implicated the petitioner in the occurrence which is further supported by the alleged dying declaration made by the deceased before his expiry. The deeper appreciation about the merits of the case cannot be undertaken at this stage. The evidence so far collected by the prosecution prima facie links the petitioner with the murder of the deceased and his vicarious liability alongwith his co-accused cannot be overlooked at the present stage of case. Needless to say that the offence falls within the prohibitory clause being punishable with death or imprisonment for life. There is no extenuating circumstance, the petition being meritless is dismissed. : (AAJS) - Bail disallowed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1524 [DB] Present: qazir muhammad farooq and tariq parvez khan, JJ. FAQIR ALI-Appellant versus STATE-Respondent Criminal Appeal No. 211 of 1995, decided on 28.5.1997. (i) Dying Declaration-- -Murder-Offence of-Dying declaration-Status-Conviction can be based solely on dying declaration if it rings true and is corroborated by some independent source. [P.1529]B (ii) Pakistan Penal Code, 1860 (XLV of I860)-- -S 302/34~Murder~Offence of--Apprecia1»on of evidence-Delay in lodging F.I.R. was not explained-Dying declaration made by deceased in an injured condition being not above board-Despite accused allegedly having used a pistol in the commission of offence, no empties or spent bullets were recovered from spot-Eye-witness was a typical chance witness and he being closely related to deceased and belied by medical evidence his statement did not carry any weight-Motive and abscondence of accused both being pieces of corroborative evidence were, in circumstances, of no avail to prosecution-Accused acquitted. [Pp. 1529, 1530, 1531 & 1532] A, D, E, F, G & H 1986 SCMR 823; PLD 1986 Pesb, 141 and PLD 1986 Pesh. 160 ref. (iii) Police Rules, 1934-- -Rr. 25 & 21-Dying declaration-Rule 25-21 Police Rules, although are not mandatory, but still provide safeguard to exclude all reasonable possibilities of fabrication. [P. 1530] C Mr. Rasool Khan Khattak, Advocate for Appellant. Mr. Raiz Ahmad Khan, A.A.G. for the State. Mr. Mushtaq Ahmd Qureshi, Advocate for the Complainant. Date of hearing: 28.5.1997. judgment Tariq Parvez Khan, J.--Appellant Faqir Ali son of Zawar Hussain aged 19/20 years resident of Chakar Kot Bala, District Kohat, stands convicted vide Judgment, dated 15.6,1995 of learned Additional Sessions Judges, Kohat. He, on being found guilty under section 302/34, P.P.C. has been sentenced to imprisonment for life with a fine of Rs. 40,000 in default of "--- payment of fine to undergo further two years' R.I. Half of the fine if recovered is to be paid to the legal heirs of the deceased as compensation amount under section 544-A, Cr.P.C. The benefit of period during which the appellant remained as under-trial prisoner has also been extended under section 382-B, Cr.P.C. 2. Crime is said to have been committed on 29.7.1990 at Digar Qaza Wela, the report whereof was made on the same date at 24.00 hours (midnight). The complainant now dead is Kausar Ali son of Yusuf Ali aged 50 years who, while in injured condition has reported the matter to Khial Zamir, A.S.I, in Liaqat Memorial Hospital (L.M.H.) Kohat. 3. The report of Kausar Ali, which later became dying declaration on his death was recorded as Exh. P.A./l, the contents whereof are briefly given below:- "Mst. Gul Bibi who is my daughter-in-law is residing with her father Zawar Hussain due to strained relations. I, in order to see my grand-daughter Mst. Nasim Fatima < generally go to the house of my daughter-in-law and through one of my small sons I call Nasim Fatima and take her along for walk. Today as well I had called out Mst. Nasim Fatima through my son Qaisar Abbas from her house and had taken her for walk. Having reached Imam Bara adjacent to the shop of Mohib Ali, Zawar Hussain and Zakir Hussain sons of Abid Ali came there and caught hold of me. Irshad Hussain son of Ahmad Faqir Ali of my village was also present. - Zawar Hussain ordered his son Faqir, do not wait and fire with Tamacha at him'. Faqir Ali fired two shots with his Tamacha as result of which I was hit on my right and left leg on different parts. I got injured and fell down. Accused decamped after the occurrence. Motive is that my daughterin-law Mst. Gul Bibi had been retained by her father Zawar Hussain in his house." 4. After recording the report, Khial Zamir, A.S.I, who was then H.C. in Police Station Ustarzai prepared the injury sheet Exh. P.C. of Kausar Ali and referred the injured to the doctor for medico-legal opinion which opinion is Exh. P.C./I and is reproduced below:- D.O.A.: 29.7.1990. Arrival: 11-45 p.m. Detail of injuries. The patient is drowsy. Semi-unconscious. B.P. 80/60 MMHG. Pluse 120 per minute. (1) Entry wound at anteriomedial aspect of right thigh size 1/8" x 1/8". (2) Exit wound at lateral aspect of right thigh, size 1/4" x 1/4". (3) Entry wound on front of left knee joint, size 1/8" x 1/8". (4) Exit wound on medial side of popleteal fossa size, 1/4" x 1/4". (5) Entry wound on interiomedial aspect of left thigh size 1/8" x 1/8". (6) Exit wound on posterio medial aspect of left thigh size 1/4" x 1/4". Adv. (1) X-Ray advised, right and left thigh. (2) X-Ray left knee joint AP and lateriol view. Kind of weapon: F.A. Kind of injury: Grievous. Duration 6-7 hours." 5. The Investigating Officer despatched the Murasila (Exh. P.A.) to the police station for registration of the case, which was accordingly incorporated in the police station as F.I.R. No. 191 as Exh. P.A./l. On reaching the spot, blood-stained earth was recovered and taken into possession vide Memo. Exh. P.D. in the presence of marginal witnesses. Site plan Exh. P.B. was prepared on the pointation 01 Irshad Hussain P.W. while on spot the Investigating Officer received a shirt (P. 2), Shalwar (P. 3) belonging to Kausar AM deceased and prepared Memo. Exh. P.G./l in this respect. During house search on 30.7.1990 of one Mumtaz Ali, accused Zakir Hussain was arrested alongwith shot gun single barrel which was taken into possession. Zawar Hussain accused was also arrested from his house on the said date. Faqir Ali appellant, however, could not be arrested. As such warrant of arrest under section 204, Cr.P.C. and later proclamation notices under section 87, Cr.P.C. were obtained against him. 6. The injured was originally treated in L.M.H. Kohat but as his condition deteriorated he was finally shifted to C.M.H. Rawalpindi, where he died on 2C.8.1990. in this respect the death summary was placed on file as Exh. P.K. alongwith photo copies of all other relevant documents of his stay and treatment in C.M.H. 7. Accused appellant Faqir Ali was arrested on 23.12.1990 when his pre-arrest bail was not confirmed by the learned Sessions Judge, Kohat. The blood-stained articles consisting of earth and garments of the deceased were sent to the Chemical Examiner whose report is Exh, P.R. 8. On completion of investigation complete challan was filed against all the three accused. Their case was sent up for trial to the Court of learned Sessions Judge, Kohat who entrusted the same for disposal to Additional Sessions Judge. The charge was framed on 16.9.1990 in which the appellant and the other accused pleaded not guilty and claimed trial. 9. To prove the case, the prosecution produced ten witnesses. P.W. 1. Mst. Asra Jan widow of deceased Kausar Ali appeared to reiterate the charge against the appellant and others in confirmation of the accusation made by her deceased husband. Zarwali Khan, A.S.I. (P.W. 2) submitted complete challan against the accused in the capacity of S.H.O. Police Station Ustarzai and has also placed on record the report of the Chemical Examiner. Akhtar Ali D.F.C. (P.W. 3) was entrusted the service of warrants and execution of the proclamation notices. Akhtar Munir (P.W. 4) is witness to Memo. Exh. P.C. in respect of shotgun recovered from the possession of Zakir Hussain. Jan Sher (P.W. 5) is another police official who has altered the section of law from section 307 into 302, P.P.C. on 21.8.1990, having received the information about the death of Kausar Ali. Daftar Ali P.W. 6) is formal witness to Memo. Exhs. P.D. and P.D./l pertaining to the recovery of blood-stained earth and garments. P.W. 7 Dr. Munim Shah, Medical Officer, L.M.H. Kohat has examined the deceased while in injured condition and has prepared his report which has been reproduced in the earlier part of this judgment. P.W. 8 Hawaldar Muhammad Aslam from Pakistan Army is a Nursing Assistant posted at C.M.H. Rawalpindi who has brought on record Exh. P.K., the death summary, prepared by Dr. Khaqan Jehangir Janjua. As, the said doctor was not available and this P.W. being conversant with his handwriting and signature has also proved the contents of Exh. P.K. P.W. 9 is Khial Zamir, A.S.I, who during the days of occurrence was Head Constable and has recorded the Murasila/ 'dying declaration and later conducted the entire investigation. The last witness Irshad Hussain (P.W. 10) has furnished ocular account of the occurrence by claiming that it was Zawar Hussain and Zakir Hussain who caught hold of the deceased Kausar Ali and Zawar Hussain then asked Faqir Ali to fire, who accordingly made two shots at Kausar Ali as result of which he got hit and fell to the ground. According to this witness the injured was taken to C.M.H. Kohat for treatment and after having obtained first aid was then shifted to L.M.H. Kohat in order to make the report before the police and later on was shifted to C.M.H., Rawalpindi where he died. 10. The learned trial Court after the close of the prosecution evidence examined the accused appellant and two co-accused namely Zakir Hussain and Zawar Hussain. Their plea was of total denial. The learned Additional Sessions Judge feeling convicted of the evidence led by the prosecution came to the conclusion that Faqir Ali appellant was guilty of the offence under section 302/34, P.P.C. while the other two accused were extended the benefit of doubt and were acquitted. 11. The appellant has assailed his convicted and sentence and in that the l arned counsel for the appellant argued that there is inordinate delay in lodging the report. He also contended that the investigation is dishonest and that the Murasila (Exh. P.A.) recorded by Khial Zamir (P.W. 9) is a fabricated document because according to the defence the deceased while taken to the hospital at L.M.H. Kohat was unconscious and incapable of making a statement. It was also argued that the so-called dying declaration is not only false, fabricated but also is not corroborated from any independent source and that in fact the same is contradicted by the medical evidence. Highlighting this argument it was submitted that the deceased in the so-called dying declaration has categorically stated that he was fired at with two shots by the appellant whereas per medical report there were three entry wounds of the same dimension and at different parts of the body and on no hypothesis location of three injuries could be explained to be the result of two shots. It was also submitted that the doctor namely Dr. Munim Shah (P.W.7) has in very expressed words stated that the deceased while injured as brought to him at 11.45 p.m. and at that time he was semi-unconscious. The doctor has also stated in the cross-examination that the deceased while injured was incomplete shock and hence was unable to answer any question. 12. Criticizing further, the learned counsel submitted that no post mortem has been conducted in this case and in absence thereof the cause of death is not known. He also referred to the evidence of P.W. Irshad Hussain and submitted that he being the sole witness and closely related to the
deceased his presence on the spot has not been reasonably explained. It was also contended that the sole witness of the prosecution who appeared in support of the dying declaration has put the so-called declaration in doubt by admitting a suggestion to the effect that the deceased while injured and when being taken to the hospital was moaning and was not able to make conversation. Lastly he submitted that mere abscondence cannot be taken as corroboration of guilt unless there is other cogent reliable evidence through which an accused could be connected with the commission of the offence. 13. The learned Assistant Advocate-General assisted by counsel for the complainant while refuting the arguments of the appellant submitted that the so-called delay in lodging of F.I.R. has been explained in the dying declaration itself because the deceased while injured was first taken to - C.M.H. Kohat and thereafter to L.M.H. It was also submitted that there is no serious enmity between the parties rather they are closely related, hence in the absence of animosity the delay in lodging the report, if any is never considered fatal and cannot react on the case of the prosecution. It was submitted that the dying declaration is supported by medical evidence as fire-arm injuries were found on the person of the deceased and also that another independent witness namely irshad Hussain (P.W. 10) has appeared and testified on oath confirming the fact as deposed to by the deceased in his F.I.R. They, were of the view that the venue of the occurrence cannot be disputed as blood was recovered from the spot. Replying to the dishonest investigation, it was stated that in the absence of any malice on the part of the police no dishonest intentions can be attributed to the investigation. In their view the prosecution has established its case beyond shadow of doubt by proving the dying declaration duly supported by medical evidence and finding corroboration from the testimony of Irshad Hussain coupled with motive and abscondence. 14. We have heard the arguments of learned counsel for the parties and have carefully scrutinized the whole evidence. The occurrence took place on 29.7.1990 at Digar Qaza Wela. In the month of July the approximate time of Qaza Asr prayer would be round about 7.00 p.m. and if taken from this angle there is a delay of five hours. It is the case of the prosecution that the deceased while injured was immediately shifted first to C.M.H. Kohat and then to L.M.H. and rightly so because the kith and kin of the injured would like to take him as quickly as possible to the nearest and better hospital for treatment. In these circumstances there appears to be delay in making the report which has not been explained. 15. The dying declaration, no doubt can be made the sole basis of conviction provided it rings true and is corroborated by some, independent source. In this case this dying declaration is defective both in the form as well on facts. The deceased while injured was first taken to the C.M.H. no . attempt appears to have been made to record the statement then, he was available at 11.45 p.m. in L.M.H. Kohat as the doctor examined him at this time, yet no statement was recorded by the doctor. It was only at 12.00 hours (midnight) when Khial Zamir (P.W. 9) appeared at the scene and recorded the report that too in the presence of Irshad Hussain (P.W. 9) as is evident from the statement of Irshad Hussain itself. The deceased remained alive for sufficient long time as he has died on 20.8.1990 that is after about more than 20 days of the occurrence. No attempt appears to have been made by the Investigating Agency to record the statement of the deceased during this period in the presence of any doctor or a Magistrate. The sanctity which normally attaches to the dying declaration is backed by the proposition that generally a dying man out of fear of God thinking his death to be imminent speaks truth but such proposition cannot be generalized in the social set up and the moral values as are prevailing today. In order to wash of all possible tampering/fabrication on the part of the Investigating Agency the Legislature has taken precautions and has laid down the procedure for recording of a dying declaration. In this respect a reference to Police Rules of 1934 appearing under Chapter XXV under the heading of Investigation Rules 25-21 is reproduced below: - "25-21. Dying dedarations.-(l) A dying declaration shall, whenever possible, be recorded by a Magistrate. (2) The person making the declaration shall, if possible, be examined by a Medical Officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement. (3) If no Magistrate can be obtained, the declaration shall when a gazetted Police Officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the Police Department and with the parties concerned in the case. (4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more Police Officers. (5) A dying declaration made to Police Officer should, under section 162, Code of Criminal Procedure, be signed by the person making it." As observed, no such attempt has been made during the entire investigation to comply with the aforesaid rules which are, though not mandatory but still provide safeguard to exclude all reasonable possibilities of fabrication. 16. Dr. Munim Shah (P.W. 7) has received the patient at 11.45 p.m. and at that time the blood pressure recorded was 80 x 60 MMHG while pulse 120 per minute. The patient was noticed to be drowsy and semi-unconscious. (There appears to be some mistake in the paper book that we have and also in the original case file of the learned Additional Sessions Judge in respect of the statement of Dr. Munim Shah about the condition of the patient. What is recorded in his statement in Court is "the patient is drowsy, seems unconscious" so is recorded in the paper book). We have checked the original medico-legal report (Exh. P.C. /I). It is "semi" and not "seems". 17. Dr. Munim Shah (P.W. 7) has admitted in the crossexamination without reservations that the injured was in complete shock and was unable to answer any question. This factual position has not been challenged by the prosecution at the trial by re-examining the doctor. This statement is not part of his opinion but is factual observation because from this statement it appears that questions were asked by the doctor to which the deceased then injured could not reply. The matter does not end here. The sole witness appeared in support of this dying declaration namely Irshad Hussain (P.W. 10) who has also categorically admitted the fact that the eceased while injured and being taken for treatment was not able to make conversation. From this discussion of ours, when there it overwhelming evidence led by the prosecution itself about the condition of the injured, that at the relevant time namely at 11.45 p.m. when the doctor was examining him and even earlier than that when Irshad Hussain (P.W. 10) was accompanying the injured to the hospital the deceased was incapable of talking. How it became possible that at 12.00 (midnight) when the Investigating Officer reaches the hospital the injured gained all such powers under his command to make a detailed dying declaration even describing the parts of body on which he was hit. This dying declaration as such is not above board and is to be taken out of consideration. 18. Irshad Hussain (P.W. 10) has already been dealt with while discussing the dying declaration. Admittedly he resides at a distance of 150 paces from the place of occurrence and has tendered no plausible explanation as to why and how he happened to be present at the crucial time on the spot. A bare reading of his examination-in-chief would show that as if he is narrating the facts of the occurrence in second form. He has nowhere said that he was present at the scene of occurrence nor he has claimed to have seen the occurrence. May be, it is an omission on the part of the learned Public Prosecutor or the counsel for the complainant while leading this witness at the trial. Otherwise too this witness is belied by the medical evidence as according to him, the accused-appellant fired two shots while there are three entiy wounds on the person of the deceased. It is there in the statement of the Investigating Officer that when he reached the spot this P.W. was not present there and was called by him. This witness when asked a question in the cross-examination has stated that he was called by the Investigating Officer at 2.30 a.m. (night). On the one hand he claims to be present with the injured in the hospital and on the other in his house at his village. His sister is married to Kausar Ali deceased which makes him a related witness and keeping in view the background of the strained relationship between the parties he can be termed as an interested witness. No empty or spent bullets were recovered from the spot although according to this witness the accused appellant has used a .30 bore pistol. It is a question of common knowledge that a pistol when fired ejects empties. Except bare statement of this witness we do not find any corroboration of his testimony. He being closely related, is belied by the medical evidence and when he could not furnish any explanation about his presence, he can be termed as a typical chance witness and his statement does not carry any weight. 19. Having reached the conclusion that the dying declaration is doubtful and so is the statement of Irshad Hussain (P.W. 10) the motive and abscondence are of no avail to the prosecution both being pieces of corroborating evidence and not evidence in itself. The period of abscondence is also not that long. However, applying the case-law as laid down by the august Supreme Court of Pakistan in a case reported as Taj Muhammad vs. Pesham Khan and others 1986 SCMR 823 and two judgments of this Court delivered in cases titled Ghulam Habib v. State PLD 1986 Pesh. 141 and Obaidullah and another v. State PLD 1986 Pesh. 150, where it has been held that abscondence by itself is no evidence. The two co-accused who were also charged alongwith the appellant stand acquitted and no appeal against their acquittal has been filed nor a revision. 20. Having considered the entire case of the prosecution, from all dimensions, that is dying declaration, the ocular account and the so-called corroborative evidence, we- in our mind are left with no doubt to say that the prosecution has miserably failed to bring home the charge against the appellant. Consequently, we set aside the judgment of conviction and sentence awarded by the learned Additional Sessions Judge, Kohat, dated 15.6.1995, accept the appeal and acquit the appellant. Vide our short order, dated 28.5.1997 we have directed that the appellant be set at liberty if not required in any other case and we have also dismissed the revision for enhancement of the sentence. Above are the detailed reasons in support of' our aforesaid short order. (AAJS) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1534 Present: GHULAM SARWAR SHEIKH, J. NAEEM-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 299-B of 1997/BWP, decided on 19--5-1997. Bail- -S. 497 Cr.P.C.--Bail--Grant of--Prayer for-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11-Prosecution was seemingly equipped with sufficient material in different shapes to connect accused with commission of offence-Tentative assessment did not lend any support to contention that ease required further inquiry-Accused appeared to have shown great highhandedness and reasonable grounds existed to believe that he had committed a non-bailable offence falling within prohibitory clause of S. 497(1), Cr. P.C.-Bail declined. [Pp. 1536] A, C & D 1995 PCr. LJ 488; 1989 PCr. LJ 667; 1985 SCMR 195; PLD 1988 SC 621; PLD 1985 Kar. 27 and PLD 1994 SC 65 ref. (ii) Bail- S. 497(2) Cr.P.C.-"Sufficient grounds for further inquiry"--Meanings~ Clause "sufficient grounds for further inquiry" appearing in S. 497(2), Cr. P.C. means that question should be such which has nexus with result of case and may show or lead to show that accused is not guilty of offence with which he is charged. [P. 1536] B PLD 1994 SC 65 ref. Mian Amir Ahmad, Advocate for Petitioner. Mr". Mohsin Raza Joya, Advocate for the State. order Heard. 2. Petitioner alongwith his mother and sister is facing trial of a case under section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station City Ahmedpur, East vide F.I.R. No. 377 of 1996 dated 24-12-1996. allegedly for abduction of Mst. Aliya, daughter of complainant, in order to subject her to illicit intercourse. 3. Concession, asked for. hub be< j ::> Haiined on the pleas that there is a delay of about 4 days in lodging the F.I.H. without any plausible explanation; the petitioner remained in police custody on physical remand for about 14 days, but, no recovery has yet been effected from him, he is in judicial lock-up for the last 3-1/2 month and is not a hardened criminal and no more required by police for enquiry, complainant herself is not an eye witness; prosecution witnesses are her tenants and in any event, alleged abductee has not been recovered from the petitioner, case falls within the ambit of "further inquiry". Reliance has been placed upon Muhammad Hussain v. The State (1995 PCr. LJ 488), Nasir v. State (1984 MLD 1582) and Ghulam AH v. The State (1989 Per. LJ. 667), in support of the contentions, reiterating aforesaid pleas. 4. It has been opposed and resisted with the assertions that abductee if of tender age, petitioner is sufficiently connected with the crime and the same falls within prohibitory clause of section 497, Cr. P.C. 5. According to subsection (2) of section 497, Cr.P.C. where there are reasonable grounds for believing that the accused has committed a nonbailable offence, but there, are sufficient grounds for further inquiiy into his guilt, the accused shall, pending such inquiry, be released on bail. While interpreting above provisions in the case ofArbab All v. Khamiso and others (1985 SCMR 195), it was held by august Supreme Court that bail can be llowed in a case otherwise allegedly falling nder the prohibition contained in subsection (1) of section 497, Cr. P.C. when there are sufficient grounds for further inquiry into the guilt of the accused, but only, on the condition when the Public Officer or the Court at any stage of investigation, inquiry or trial, as the case may, comes to a definite conclusion that there are no reasonable grounds for believing that the accused the committed a nonbailable offence. Without such finding bail cannot be allowed under sub section (2) on mere ground that there are sufficient grounds for further inquiry. In Azmat Ullah Khan v. Bazi Khan and another (PLD 1988 SC 621), illuminating observations are to the effect "mere possibility of further inquiiy which exists almost in every criminal case, is no ground for treating the matter as one under section 497(2), Cr. P.C. Such a question also came up for examination before learned Divisions Bench in the case of The State v. Aziz alias Abdul Aziz (PLD 1985 Kar. 27). It was held in this case that, the question of further inquiry would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiiy into the matter for the purpose of grant or refusal of bail." 6. In the instant case, prosecution is seemingly equipped with sufficient material in different shapes to connect the petitioner with the commission of offence with which he stands charged. Tentative assessment of the same, at this juncture, does not lend any support to the cause of petitioner as reasonable grounds exist for believing that he has committed a non-bailable offence of the nature, which, falls within prohibitory clause. 7. Be that as it ma'y, provisions of section 497(2), Cr.P.C. are neither attracted nor entailed to the facts of case against the petitioner nor the same can come into play or pressed into service. As enunciated in Shah Zaman v. The State (PLD 1994 SC 65), "now what will constitute a sufficient ground for further inquiry, would depend upon peculiar facts of the case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not take a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. in that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged." Sake is totally lacking in the instant case, which appears to be of great high-handedness, allegedly, shown by the petitioner. 8. In these circumstances, he cannot be taken to be entitled to the concession asked for on the pleas including of "further inquiry" advanced on his behalf. Application, accordingly, merits rejection and is hereby turned down. (AAJS) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C. (Quetta) 1536 (DB) Present: MR muhammad nawaz MARRI & amanullah khan yasinzai, JJ. Haji BISMILLAH KHAN-Petitioner versus ABDUL ZAHIR and 2 others-Respondents Crl. Revision No. 38/1996, Crl. Revision No. 131/1996, Crl. Revision No. 161/1996, Criminal Appeal No. 131 of 1996, Criminal Acquittal Appeal No. 161 of 1996 and Criminal Revision No. 38 of 1996, dismissed on 17.3.1997. (i) Motive-- Whether motive not convincing-Question of-Suffice it to observe that all eye witnesses have corroborated each other on question of motive and stated that deceased had seriously injured S prior to incident-To avenage same appellants alongwith absconding accused attacked upon complainant party-This piece of evidence was not shaken in cross examination nor defence has been able to negate same-Held: There is no force in argument regarding motive. [P. 1545] A (ii) Pakistan Penal Code, 1860 (XLV of I860)-- -S. 302(c)/149~Murder-Offence of-Vicarious liability-Question of-After going through evidence it is observed that appellants alongwith accused A were armed with lethal weapon like Kalashnikov and other two accused came armed with pistols to abduct complainant party-Appellants could have inferred that abduction of complainant could further lead to firing and even to extent of murder-Appellants at no stage disassociated themselves from other absconding accused rather they stayed at place of incident and did not resist killing of deceased persons-Suffice it to observe that appellants came to place of incident alongwith absconding accused who had weapons with them-They could have inferred that abduction could lead to murder-Held: They are vicariously liable and trial court had rightly convicted appellants u/S. 302 P.P.C.-Appeals dismissed, [Pp. 1546 & 1548] B, C & D PLD 1961 West Pakistan ( Lahore ) 1, PLD 1991 SC 923 and 1992 SCMR 1983. Mr. Azizullah Memon, Advocate for Appellant Haji Bismillah, Mr. M. Zafar, Advocate for Appellant Abdul Zahir & another, AG & Mr. Azizullah Memon, Advocate for State. Mr. Ehsan-ul-Haq, Advocate, for Haji Allah, Dad and others, Advocate General for State. Date of hearing: 17.3.1997. judgment Amanullah Khan Yasinzai, J.--The above Criminal Appeal No. 131 of 1996, Criminal Acquittal Appeal No. 161 of 1996 and Criminal Revision No. 38 of 1996 have arisen out of judgment, dated 25.6.1996 passed by learned Additional Sessions Judge, Pishin, whereby he has convicted appellant Gul Baran and Abdul Zahir under section 302(c), P.P.C. for the murder of deceased persons Baud Shah and Muhammad Raza and sentenced to 14 years' R.I. and fine of Rs. 1,00,000 each and in default to further undergo one year's simple imprisonment. Both the appellants were also sentenced to 7 years' R.I. and a fine of Rs. 50,000 and in default thereof to furthfer undergo 6 months simple imprisonment, under section 324, P.P.C. for injuring Bismillah, Obaidullah and Ahmed Shah. While respondent No. 1 Haji Allah Dad in Criminal Acquittal Appeal No. 161 of 1996 was acquitted. The appellants Gul Baran and Abdul Zahir have filed Appeal No. 131 of 1996 against their conviction. Complainant Haji Bismillah Khan has assailed the acquittal of Haji Allah Dad by filing Criminal Acquittal Appeal. The complainant has also filed Criminal Revision for enhancement of sentence of appellants Gul Baran and Abdul Zahir. Since Criminal Appeal No. 131 of 1996, Criminal Acquittal Appeal No. 161 of 1996 and Criminal Revision No. 38 of 1996 have arisen out of the same judgment, therefore, same are being disposed of through this common judgment. Brief facts are that a case under sections 302, 324, 147, 148, 149, 365 and 511 P.P.C. read with section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance was registered at Chaman Police Station on 7.5.1994 at 8-00 a.m. at the report of Haji Bismillah vide F.I.R. No. 61 of 1994. It is alleged in the F.I.R. that he (complainant) left his house at 7.30 a.m. in his Land Cruiser alongwith his brothers Daud Shah, Muhammad Raza, Ahmad Shah and Obaidullah towards College Colony to see off Hqjis. At about 8-00 a.m. on reaching telephone exchange Abdul Ali, Muhammad Khan, Musa, Waris, Abdul Hakeem, Zahir alongwith six/seven other persons stopped them, and tried to abduct them on gun point. On resistance Abdul Ali and his two accomplices opened fire with klashnikov and pistol as a result Daud Shah died on the spot, Muhammad Raza died in Charnan Hospital and Ahmed Shah received injuries on his right foot. The accused persons took away the Land Cruiser of complainant and made their escape good. The motive was that last year deceased Daud Shah had fought with Shah Muhammad nephew of Abdul Ali and had seriously injured him. To revenge the same accused had attacked complainant party on the day of incident. The prosecution in support of its case examined 15 witnesses. P.W. 1 Haji Bismillah Khan complainant lodged report (Fard-e-Bayan) (Exh.P./1-A) on the basis of which F.I.R. (Exh.P.13/F) was lodged. He narrated the incident as mentioned in the report. He stated that the. accused persons wanted to kidnap them on resistance Abdul Ali fired at Daud Shah with Kalakof who died on the spot. Shah Muhammad fired at Haji Muhammad Raza who died in the hospital. Ghaffar fired at Ahmed Shah who was injured; Gul Baran was pulling him. Allah Dad hit him with the butt of klashnikov. Abdul Zahir fired at him which missed and has narrated the taking away of their . vehicle and motive, and identified the appellants. P.W.2 Obaidullah an eye-witness he has given account of the incident as narrated by P.W.I with slight variations and identified the appellants. P.W.3 Ahmed Shah was injured and received bullet injuries. He has supported P.W.I and P.W.2 on material points with minor discrepancies and also identified the appellants. P.W.4 Akhtar Jan,, a passer-bye and an eye-witness of the incident, and has almost narrated the same facts as stated by P.W.I, P.W.2 and P.W.3 and identified the appellants. P.W.5 Muhammad Amin H.C. In his presence Land Cruiser (Art.P.I) of the complainant was taken into custody by S.H.O. vide recovery memo. (Exh.P.5/A). P.W.6 Dr. Akhtar Muhammad. He examined P.W.I Haji Bismillah, issued medical certificate (Exh.P.6/A) P.W.3 Ahmed Shah issued (Exh.P.6/C), examined deceased Daud Shah and Haji Muhammad Raza. Issued certificates (Exh.P.6/B), (Exh.P.6/C), respectively. P.W.7 Haji Abdul Zahir is a witness to recovery memo. Exh.P.7/A and Articles P.2 to P.44. He is not a material witness. P.W.8 Zainuddin, A.S.-L In his presence the S.H.O.. took blood stained shirt of deceased Muhammad Raza, vehicle belonging to accused, two empties of Kalakof, two empties of .30 bore pistol, one empty of .30 bore pistol, one live cartridge, blood-stained turban of appellant Gul Baran, one waist coat vide recovery memos. (Exh.P.8/A) to (Exh.P.8/H) and Articles P.45 to P.60. P.W.9 Nazar Hussain, Naib-Tehsildar, Chaman. In his presence identification parade of suspects Abdul Ghaffar and Abdul Jabbar was held vide (Exh.P.9/A) who were not identified. P.W.10 Muhammad Iqbal, Inspector Fire-arms, Forensic Science Laboratory examined the empties and issued certificate Exh.P. 10/A. P.W.ll Syed Abdul Jabbar carried out chemical test of blood-stained clothes of deceased and turban of appellant Gul Baran and issued certificate Exh.P.ll/A. P.W.12 Matiullah, Tehsildar, Charnan. In his presence identification of appellant Gul Baran was held, who was identified by P.W.I Bismillah. He issued Exh.P.I2/A. P.W.13 Syed Ikram Hussain Zaidi, S.-I./S.H.O., Police Station Chaman, initially investigated the case, recordefl the F.I.R. (Exh.P.13/A). Recorded statements of P.Ws. Took into possession blood-stained clothes of deceased persons, turban (stained with blood) of appellant Gul Baran. Prepared sketch and recovery memos. etc. from Exh.P.13/A to Exh.P. 13/F and Exh.P.8/A to Exh.P.8/B. P.W.14 Muhammad Shakir. In his presence identification of suspects Abdul Jabbar and Abdul Ghaffar was held vide Exh.P. 14/A. P.W.15 Wali-ur-Rehman. He also investigated the case. He took Shalwar and waist coat of deceased Daud Shah vide recovery memos. Exh.P.8/A and Exh.P.9/A. He arrested appellant Abdul Zahir, submitted challan Exh.P. 15/A and Exh.P. 15/B. Statements of appellants Gul Baran, Abdul Zahir and accused Allah Dad were recorded under sections 342 and 340(2), Cr.P.C. They all together denied the prosecution version and stated that'they had been falsely implicated. Haji Allah Dad produced two witnesses in his defence. D.W.I Juma Gul and D.W.2 Amanullah who stated that on the day of incident Allah Dad was al Quetta. Gul Baran produced D.W.3 Muhammad Afzal in his defence who, stated that at the time of incident Gul Baran was in the flour mill at Chaman. Learned Additional Sessions Judge, Pishin after hearing the parties on the basis of above evidence passed the judgment under appeal in the above terms. We heard Mr, M. Zafar, Advocate for the appellants Abdul Zahir and Gul Baran. Mr. Azizullah Memon, Advocate for complainant, Mr. Ehsan-ul- Haq, Advocate for acquitted accused Allah Dad, Raja Rab Nawaz, Advocate for the State. With the help of the learned counsel we have gone through the evidence and have also heard lengthy arguments addressed by the learned counsel for the parties and the learned counsel appearing for the State. Mr. M. Zafar, Advocate learned counsel for the appellants Gul Baran and Abdul Zahir has argued as follows:-- (1) That the learned trial Court while convicting the appellants Gul Baran and Abdul Zahir, has not given any reason. (2) The presence of the appellants has not been established. (3) There was no ground to establish the presence of Gul Baran and Gul Baran has been convicted on the basis of his blood-stained Turban. (4) No identification parade of Gul Baran was held soon after his arrest. The identification parade held at a belated stage is not reliable. (5) The case of the acquitted accused Allah Dad i$ pn the same footing as that of convicted appellants and there is no distinguishing features. » (6) The learned trial Court while convicting the appellants has not referred to common object. Even otherwise section 149 is not attracted. (7) Motive as putforth by the prosecution is not convincing. (8) The time of incident as alleged by the prosecution is in conflict with the medical certificate; according to prosecution the incident took place at about 8-00 O'Clock and according to the medical certificate P.W.I and P.W.2 were brought at about 7-30 to the hospital. Mr. Azizullah Memon, Advocate, learned counsel for the complainant opposing the appeal and in support of criminal acquittal appeal against Abdul Zahir and in support of criminal revision for enhancement of sentence has urged as follows : (1) The motive for committing the offence has been fully established by" the prosecution witnesses. (2) Appellants and acquitted accused were members of an unlawful assembly; irrespective of the role attributed to them, they are liable to be convicted under section 302/149, P.P.C. and be awarded maximum punishment. (3) Ocular testimony of P.W.-l to P.W.4 supported by medical evidence of P.W.6 and corroborated by P.W.8 is sufficient to grant maximum punishment to the appellants and acquitted accused. (4) It is not possible for the prosecution witnesses to give minute details and explain the role of each accused separately and in detail in such like fights. (5) Identification parade of appellant Gul Baran was not necessary as P. W. 1 did not know his name and he was otherwise familiar to him and all the P.Ws. have identified him in the Court. (6) As far as acquittal of Allah Dad is concerned, the trial Court has erred that eye-witnesses have not supported each other. He has been involved by all the eye-witnesses and his presence with an active role is established. (7) Minor variations of timing in the medical certificate and F.I R. .will have no adverse effect. Learned Court has believed the medical certificates. Mr. Ehsan-ul-Haq, Advocate appearing for Allah Dad supporting.the judgment to the extent of acquittal of Allah Dad argued as follows:-- (1) That Allah Dad has been rightly acquitted as there are material contradictions in the statements of P.Ws. regarding his role and presence. (2) That there is presumption of double innocence in favour of the acquitted accused unless very strong circumstances exist acquittal cannot be converted by the appellate Court. Mr. Raja Rab Nawaz, Advocate, learned counsel appearing for the State has adopted the arguments of Mr. Azizullah Memon, Advocate and also prayed for conviction of Allah Dad and enhancement of sentences of appellants Gul Baran and Abdul Zahir. Adverting to the argument of Mr. M. Zafar, Advocate, learned counsel for the appellants that presence of Gul Baran was not proved and the identification parade was not reliable and since the identification period was held after 12 days of the incident as such no reliance could be placed on the so-called identification parade, the learned counsel urged that appellant Gul Baran was arrested on the day of the incident. No reason has been given by the prosecution for holding identification parade after a delay of 12 days, the learned counsel argued that appellant Baran has been convicted by the trial Court only on the basis of the recovery of his blood-stained turban at the time of his arrest. The main contention of the learned counsel was that Gul Baran was falsely roped in and there was nothing against him. As regards the identification parade, the trial Court has also not believed it. We are of the opinion that there was no need of holding identification parade as the complainant P.W.I did not say in his statement that he did know the accused persons but merely said he was not familiar with the name of accused persons. In this behalf reference may be made to the statement of P.W.I Haji Bismillah who stated that Gul Baran was pulling him. The other eye-witnesses have confirmed his presence in the place of incident and properly identified him in the Court. They were not shaken in cross-examination. Since the appellant was familiar to the eye-witnesses, there was no need for carrying out his identification parade. In this regard reliance is placed on the following cases: (1) Muhammad Yousaf Zai v. The State PLD 1988 Kar. 539. (2) State v. Farman Hussain PLD 1995 SC 1. In the former case a Division Bench of the Sindh High Court made the following observations regarding identification parade : "We may observe that there is no legal requiretaent to the effect that there should be an identity test of an accused person. If the eye witnesses can identify the accused before the trial Court that is enough. In the present case the appellant had visited Karimabad Branch of the Bank not only at the time of opening of the account but had also visited five times while withdrawing the amount of Exh.2/F through five cheques during the period from 5-9-1984 to 17-9-1984 whereas'the identification parade was held on 3-12-1984 and the evidence of the above witness was recorded in December, 1985." In the latter case the Honourable Supreme Court of Pakistan held as under: "A distinction is to be made between a case in which witness has had only a fleeting glimpse of the accused who happened to be stranger and a witness who had known the accused previously or who had met the accused several times. In the former case the Court insists upon having proper identification parade whereas in the latter case the identification parade can be dispensed with as the witness can identify the accused even in the Court." Coming to the second argument of the learned counsel that the case of the acquitted accused Allah Dad is on the same footing as that of the convicted appellants and there are no distinguishing features, the learned counsel argued that the trial Court has erred in convicting the appellants since the same role has been attributed to them as to the acquitted appellant. In this regard arguments of Mr. Azizullah Memon, Advocate, learned counsel appearing for the complainant and Mr. Ehsan-ul-Haq Advocate appearing for Allah Dad are also referred. Mr. Azizullah Memon, Advocate while arguing Criminal Acquittal Appeal No. 161 of 19% said that the presence of Allah Dad was established by the eye-witnesses and regarding his role there are no material contradictions. Learned counsel further argued that since Allah Dad was the member of an unlawful assembly and his presence was established at the place of occurrence irrespective of the role attributed to him he'is liable to be convicted under section 302/149, P.P.C. Mr. Ehsan-ul-Haq, Advocate learned counsel appearing for Allah Dad argued that the trial Court had rightly acquitted Allah Dad as there were material contradictions in the statements of eye-witnesses regarding his role. Secondly, he argued that there is presumption of double innocence in favour of Allah Dad. He has been acquitted by a Court of competent jurisdiction and very strong and exceptional evidence would be required for interference in the same. Regarding the role of Allah Dad, P.W.I stated that he was holding klashnikov and hit him with the butt. The said version of P.W.I has not been supported by the other witnesses and most important the medical certificate of the complainant does not corroborate his statement regarding the role of Allah Dad. The learned trial Court has given valid reasons for acquitting Allah Dad. After going through the statements of the eye-witnesses we are of the opinion that trial Court has rightly acquitted Allah Dad giving him benefit of doubt and no exceptional ground exists for convicting him. In this regard reliance is placed on the case Ghulam Sikendar and another v. Mamraiz Khan and others PLD 1985 SC 11 wherein the then Chief Justice Muhammad Afzal Zullah has formulated following principles on the question in issue:- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-- . (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conversion when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, till found guilty, the accused is innocent: and two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second assumption and will also thus loose the first one if on points haying conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well-known principle of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court will not interfere with acquittal merely because on re appraisal of the evidence it comes to conclusion different from that of the Court' acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional closes on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in thfese cases in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light should be found wholly as artificial; shocking and ridiculous." We are, therefore, of the view that on the basis of material on record, the trial Court rightly acquitted Allah Dad. We decline, therefore, to interfere with the acquittal of Allah Dad and, therefore, acquittal appeal against him is dismissed. Coming to the argument of Mr. M. Zafar, Advocate, learned counsel for the appellants that the motive putforth was not convincing; suffice it to observe that all the eye-witnesses have corroborated each other on the question of motive and stated that deceased Dawood Shah had seriously injured Shah Muhammad prior to the incident. To avenge the same the appellants alongwith the absconding accused attacked upon the complainant party. This piece of evidence was not shaken in the cross-examination nor defence has been able to negate the same. As such there is no force in the argument of Mr. M. Zafar, Advocate regarding motive. As regards contradiction in the time of lodging the P.I.R. and the time in the medical certificate, it is held that as argued by Mr. Azizullah Memon, Advocate, learned counsel for the complainant that minor variations in the timing of the P.I.R. and in the medical certificate are of no consequence. Mr. M. Zafar, Advocate, learned counsel argued that in the F.I.R. the time of lodging of F.I.R. is shown as 8-00 O'clock and in the medical certificate of injured Ubaidullah P.W.2 and Bismillah the time of his admission in the hospital is 7-30. The learned counsel -argued that from the difference in timing at hospital it appears that the prosecution has not come with the actual facts of the case. He tried to argue that in actual two incidents took place. One at 7-30 and the other at 8-00 O'Clock. We see no force in the said argument as the P.Ws. are consistent in their statement and even the defence has not suggested that there were two incidents. It is observed that in such like cases, it is not possible for the prosecution to give minute details of each and every incident and describe the role of each and every accused person individually. So, the variation of time in the F.I.R. is of no consequence; l, Now coming to the last argument of Mr. M. Zafar, Advocate, learned counsel for the appellant that the learned trial Court has convicted the appellants under sections 302(c) and 324, P.P.C., he argued that admittedly the appellants did not kill the deceased persons. They were killed by absconding accused Abdul All and Shah Muhammad and even injury caused to P.W. Ahmed Shah is attributed to accused Abdul Ghaffar. As such they cannot be held responsible for the death of the deceased persons and the trial Court has not convicted the appellants under section 149, P.P.C. The learned counsel for the complainant Mr. Azizullah Memon, Advocate argued that the appellants in furtherance of their common object formed an unlawful assembly. He further argued that irrespective of the roles attributed to them they are liable to be convicted under section 302(c)/149, P.P.C. Learned counsel for the appellants further argued that from the statement of prosecution witnesses the appellants alongwith the absconding accused came to abduct the complainant party and the appellants had no intention to murder the deceased persons neither they shared the object/ intention of killing the deceased persons and further that they were not aware of the intention of absconding accused Abdul AH, Shah Muhammad and Abdul Ghaffar. As such they cannot be punished under section 302, P.P.C. The trial Court has only convicted the appellants under section 302(c), P.P.C. and has not dilated upon the common object. Learned counsel further argued that there is no proof of common object. The prosecution has not established the same before the trial Court. As such their conviction under section 302, P.P.C. is not sustainable under the law. The arguments advanced by Mr. M. Zafar, Advocate are not tenable. Though the trial Court has not dilated upon the object but he has discussed the evidence and has convicted the appellants on the ground that they were accomplices of absconding accused Abdul Ali and helped him in the commission of the offence. After going through the evidence it is ^observed that' the appellants alongwith accused persons came to the place of incident. Absconding accused Abdul Ali was armed with lethal weapon like kalakov and other two accused came armed with pistols to abduct the complainant party. The appellants could have inferred that the abduction of the complainant could further lead to firing and even to the extent of murder as it did in this case. The appellants at no stage disassociated themselves from the other absconding co-accused rather they stayed at the place of incident and did not resist the killing of the deceased persons. In this regard reliance is placed on the following cases: (1) Case of Niamatullah and others v. The State PLD 1961 (W.P..J Lah. 1. (2) Muhammad Akbar and 2 others v. The State PLD 1991 SC 923. (3) Muhammad Yaqoob v. The State 1992 SCMR 1983. (1) In the said case accused persons formed an unlawful assembly and armed with weapons lodged an attack on the opposite party only 19 injure them and in the course of the attack one of the persons died from the complainant party. It was held as under:- "Section 149 of the Pakistan Penal Code has two parts one dealing with liability for offences which are committed in prosecution of the common object of the unlawful assembly and the second dealing with liability for those offences which the members of the assembly knew to be likely to be committed in prosecution of that object. The distinction between the two parts of the section has been brought out in several authorities and we may refer here to Rehman Samail and others v. Emperor AIR 1939 Lah. 245 and Parmeshar Din v. Emperor AIR 1941 Oudh. 517 in which the Lahore authority was followed. The relevant observations of their Lordships of the Lahore High Court may be reproduced as follows- 'Once an assembly has become unlawful then all things done in the prosecution of the common unlawful object of that assembly are chargeable against every member thereof. The liability of every member extends not only to the acts intended by all to be done but also to those offences which are likely to be committed in achieving the common object'. 'We are in respectful agreement with these observations. We consider that to attract the constructive liability incurred under section 149 of the Pakistan Penal Code, it is not necessary to show that the offence committed was identical with the common object of the unlawful assembly nor is it an essential requirement for such liability that the offence committed must in every case be directly and' immediately connected with the prosecution of the common object of the unlawful assembly. The second part of the section would clearly come into play where the offence was such as the members of the assembly knew to be likely to be committed in prosecution of the object. When deciding the question of constructive liability in section 149 of the Pakistan Penal Code it is necessary to consider the effect of both the parts of the section, the second part being of a wider import than the first'. In the present case we have found that the appellants formed themselves into an unlawful assembly and they were variously armed with Takwas, Dangs and one of them was carrying a spear. They deliberately launched an assault on the deceased and his companions when they were sitting in the house of Lashkar P.W. In all seventeen injuries were . inflicted on the deceased and forty-four on his companions. Most of the injuries to the deceased were on his head or the adjoining parts of the body with the result that his skull bones were fractured. It appears to us, therefore, that whatever the common object of the unlawful assembly formed by the appellants each of them must be burdened with the knowledge that death was likely to be caused in an assault carried out with such deadly weapons." (2) Muhammad Akbar and 2 others v. State In the said case, all the accused persons came to the house of deceased Hameeda with the intention to commit Zina with her. On resistance they kept on insisting for Zina and deceased resisted the same. On her persistent refusal, one of the accused persons sprinkled kerosine oil on the deceased and then put her on fire. It was argued that the accused persons had only intention to commit Zina with, her and had no intention to kill her and further it was argued that the other 2 accused who had no intention of burning the deceased cannot be held liable for _murder. It was held by the Honourable Supreme Court as under: -- "From the abovereferred cases it is evident that a joint action by number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C. However, it may be pointed out that section 34, P.P.C. contemplates an act in furtherance of common intention and not the common intention simplicitor and that there is a marked distinction between a similar intention and common intention and between knowledge and common intention. It may also be observed that mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability but there should be some strong circumstance manifesting a common intention. Generally common intention inter alia precedes by some or all of the following elements namely common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even at the. spur of the moment or during the commission of the offence as pointed out hereinabove. Conversely common intention may undergo change during the commission of offence." (3) Ch. Muhammad Yaqoob and others v. The State In this case persons formed an unlawful assembly and murdered six persons. Honourable Supreme Court held as under:- "Even if we were to exclude section 34, P.P.C. section 149, P.P.C. would be very much attracted to as once the accused were told that the object of bringing the deceased at the place of Wardat was to kill them, they instead of dissociating themselves remained at the place of Wardat to carry out above unlawful common object and, therefore, they had become members of an unlawful having common object and hence each of them would be vicariously responsible for the act of the other members of the assembly." Applying the above principles in this case we hold the appellants guilty under section 302(c)/149, P.P.C. As far as the arguments of the learned counsel for the appellants Mr. M. Zafar, Advocate are concerned, we are not convinced from the arguments that the appellants are not guilty of, section 149, P.P.C. Suffice it to observe that the appellants came to the place of incident alongwith the absconding accused who had weapons with them. They could have inferred that the abduction could lead to murder, as such they are held vicariously liable, under section 302(c)/149, P.P.C. Now coming to the argument of Mr. Azizullah Memon, Advocate, learned counsel for the appellants regarding quantum of sentence, we feel that after thorough appraisal of the evidence, the trial Court had rightly convicted the appellants under section 302(c), P.P.C. We are not inclined to enhance the sentence of the appellant. We hold that the appellants were rightly convicted under section 302(c), P.P.C. for 14 years' R.I. and fine of Rs. 1,00,000 each. In case of default thereof to further undergo R.I. for one year; and under section 324, P.P.C. (as amended) for seven years' R.I. and a fine of Rs. 50,000 each in case of default to further undergo six months' S.I. Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. is extended to them. With the above observations, Criminal Appeal No. 131 of 1996, Criminal Revision No. 38 of 1996 and Criminal Acquittal Appeal No. 161 of 1996 are dismissed. (B.T.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1549 (DB) Present: raja muhammad khurshid and sheikh amjad ali, J. MEHMOOD KHAN-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 231-B of 1997, decided on 14-5-1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Pakistan Penal Code (XLV of 1860), S. 302/.364/365/34-Accused had been linked with killing of deceased by eye-witnesses as he alongwith other co-accused had abducted deceased, removed him in a Pick-up and then took his life-Finding of one of Investigating Officers regarding accused being innocent was of no avail to accused at bail stage, particularly when prosecution had collected sufficient evidence against him and had sent him to face trial-Deeper appreciation of evidence was not possible as compared to eye-witness account of occurrence, lest it might prejudice trial-Bail refused. [P. 1550] A M. Fayyaz Ahmad Khawaja, Advocate for Petitioner. Mr. Tariq Mahmood, Advocate for the State. Sardar Muhammad Ishaq Khan, Advocate for the Complainant. order The petitioner is involved in a case registered under section 302/364/365/34, P.P.C. at Police Station Bhara Kahu, Islamabad , for the murder of Amjad Mahmood, on the report of Khalid Mahmood. 2. The petitioner had applied for bail on the ground that he has been declared as innocent by one of the Investigating Officers; that the medical evidence contradicts the ocular acc9unt of the occurrence; that due to divergent opinion of the Investigation Officers, it has become a case of further inquiry; and that the story of the prosecution is doubtful and unrealistic because no motive is attributed to the petitioner. 3. Learned counsel for the petitioner has submitted that the petitioner was found innocent by the D.S.P., on 10-7-1996 after recording the statements of a number of persons who spoke about the innocence of the etitioner; that according to the ocular account of occurrence, the petitioner while armed with 30-bore pistol had fired at the deceased, but no such injury was found on his person nor any such weapon of offence was recovered from the possession of the petitioner; and that the motive was also not attributed to the petitioner, hence due to the divergent opinion of the Investigating Officers, the petitioner was entitled to bail as it had become a case of further inquiry. 4. Learned counsel for the complainant assisted by the learned State counsel submitted that the petitioner was involved in a case which was based on promptly lodged F.I.R., hence there was no question of any substitution or false implication. Though one of the Investigating Officers declared the petitioner as innocent, but he was ultimately challaned to face the trial on the basis of the statements of the eye-witnesses recorded during the investigation; that reliance of the D.S.P. on the statements of such persons who were not cited as witnesses cannot be considered qua the innocence of the accused in comparison to the statements of eye-witnesses, who had offered themselves to support the prosecution case at the trial; that the petitioner had allegedly absconded after the commission of the offence and remained at large for about one month and under such circumstances nonrecovery of the weapon of offence would not make any difference for the limited purpose of bail particularly when there is sufficient material on record to link him with the occurrence; that there was no enmity between the parties so as to implicate the petitioner falsely in this case; and that the antecedents of the petitioner were also stated to be dubious as he had been nvolved in ifferent offences for which twelve case were registered against him, the particulars of which were placed on record. 5. We have considered the foregoing submissions and find that the petitioner is named in the promptly lodged F.I.R. He has been linked with the killing of the deceased by the eye-witnesses as he alongwith other coaccused had abducted the deceased, removed him in a Sazuki Pick-up and then took his life. The mere fact that one of the Investigating Officers had found him innocent would be of no avail to the petitioner at this stage particularly when the prosecution had been able to collect sufficient evidence against him and has decided to send him up for facing the trial. The deeper appreciation such as medical evidence is not corroborative of the eye witnesses or the recovery of the weapon of offence has not been effected, would not be possible as compared to the ocular account of occurrence at this stage lest it may cause prejudice to the trial. The petitioner has no case for bail at present. The petition is accordingly dismissed. (AAJSi Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1551 Present: sajjad ahmad sipra, J. QAMAR-UZ-ZAMAN and another-Petitioners versus THE STATE-Respondent Criminal Miscellaneous No. 1338-B of 1997, decided on 12-5-1997. Bail- -S. 497(1), third proviso Cr.P.C .-Bail-Grant of-Prayer for-Pakistan Penal Code (XLV of 1860), S. 302/148/149-Statutory delay-Ground of- Total period for the two adjournments sought hy accused was only 63 days which even after deduct in same out of 1038 days elapsed since detention of accused, delay of 975 days could be attributed to prosecution for its failure to conclude trial-Contention that trial having been commenced and testimony of five formal prosecution witnesses having been recorded, accused could not be released on bail, had no force as right of accused to be enlarged on bail under third proviso to S. 497(1), Cr. P.C. being a statutory right could not be denied under discretionary power of Court to grant bail-Accused were neither previous convicts nor hardened, desperate or dangerous criminals were entitled to bail on statutory ground. [Pp. 1552, 1553 & 1554] A, B, C, D, E & F PLD 1989 SC 585; PLD 1995 SC 49 rel. Rana Muhammad Arshad Khan, Advocate for Petitioners. Mr. Abbas Mirza , A.A.-G. for the State. Sardar Khuram LatifKhosa , Advocate for the Complainant. order The present petition contends for post-arrest bail of the petitioners on the statutory ground in the case registered vide F.I.R. No. 209/94 dated 20-5-1994 under section 302/148/149, P.P.C. at Police Station Thikriwala , District Faisalabad. 2. It was contended on behalf of the petitioners that more than two years, in fact 1038 days till date, having elapsed without the trial of the petitioners and their co-accused having been concluded, and that the delay so occasioned i.e. to the extent of more than two years, cannot be attributed to the petitioners. Further argued that, out of the delay occasioned the period that can be attributed to the petitioners by way of allowing time to engage a counsel or because of non-availability of their counsel comes to only 63 days and that even if the said number of days are deducted from the total period of 1038 days that has lapsed till date without the trial in question being concluded, eve then that has lapsed till date without the trial in question being concluded, even then the petitioners are entitled to bail as of right under the statutory provisions of law i.e. (b) of the 3rd proviso to subsection (1) of section 497, Cr.P.C . 3. The learned counsel for the State and the complainant opposed the present petition and argued that the delay in the conclusion of the trial had occurred because of the conduct of the petitioners. To examine the case on the statutory ground, the learned counsel for the parties brought to the notice of the Court specific dates of adjournment to determine the question whether or not the petitioners are entitled to bail on the statutory ground of delay so far occasioned in the conclusion of the trial under the provisions of law stated above. 4. To support their argument that the delay in the conclusion of the trial had occurred because of the conduct of the petitioners, the learned counsel for the State and the complainant emphasised that the period lapsed between the dates of hearing mentioned hereunder can be attributed to the petitioners, and the said contentions were dealt with as follows :- (a) Firstly, it was pointed out that the trial in question remained stayed from 27-11-1995 to 9-6-1996 pursuant to the High Court's order dated 14-11-1995 passed in Criminal Miscellaneous No. 428-Q of 1995 preferred by the petitioners against the order passed by the learned Trial Court on an application filed by the complainant. The said learned counsel further pointed out that the said quashment petition was withdrawn by the petitioners on 2-6-1996, but conceded that nothing adverse had been stated in the said order of withdrawal against the petitioners. Therefore, it is hereby held that the delay thus occasioned by the restraining order dated 14-11-1995 passed by the High Court in a matter initiated by the complainant, cannot be attributed to the petitioners, as the invoking of a Court's jurisdiction and proceedings pursuant thereto, ipso facto, cannot be made the basis for impugning the conduct of the party concerned, unless it was expressly and specifically so held by the Court. (b) Secondly, period of 11 days from 23-11-1996 to 4-12-1996 was wrongly pressed to be attributed to the petitioners on the ground that they had applied for copies of the statements, as it was conceded on behalf of the State that the learned trial Court had allowed the said request and directed for the copies of the statements in question to be provided to the accused/petitioners while adjourning the cas . (c) Similarly, a period of 29 days form 10-3-1997 to 9-4-1997, cannot be attributed to the petitioners, as the learned trial Court itself had adjourned to proceedings; as was the case between 24-4-1997 to 7-5-1997 because the Presiding Officer of the learned trial Court was on leave. (d) Only twice, as pointed out by the learned counsel for the State and the complainant and duly conceded by the learned counsel for the petitioners, i.e. for 38 days between 11-7-1996 to 19-8-1996 and for 25 days between 15-2-1996 to 10-3-1997, the petitioners were allowed adjournments on the ground that, in the first instance they wanted to engage a counsel and on the second occasion their learned counsel was absent. But the total period for the said two adjournments comes to only 63 days. Therefore, even after deducting the said period out, of 1038 days elapsed since the detention of the petitioners, the delay of 975 days can be attributed to the prosecution for its failure to conclude the trial of the petitioners/accused, which duly makes out a case for their bail on the statutory ground, as contended herein. 5. At this stage, the learned counsel for the State and the complainant pointed out that the testimony five formal P.Ws . stood recorded, and that, therefore, at this juncture, the petitioners may not be admitted to bail. However, the dictum laid down by the Honourable Supreme Court in the case reported as Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) can be invoked to rebut the said argument. In the case referred to, it was held that when an accused person becomes entitled as a right to bail, it cannot be withheld on the ground of practice prevailing to the effect that when a murder case is fixed for hearing, ordinarily, the bails of the accused are not decided on merits and the matters are left to the discretion of the learned Trial Court; because the said practice is relatable to the exercise of discretion while the grant of bail is relatable to the exercise and grant of right. Further support was sought in the instant case by placing reliance upon Zahid Hussain Shah v. State (PLD 1995 SC 49), as the said case directly deals with the bail on the statutory ground. Therein it was held as follows : - "The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr. P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C . is not left to the discretion of the Court but is non-rolled by that provision. The bail under the 3rd proviso to section 497(1), Cr.P.C . can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on this behalf. The bail under the 3rd proviso to section 497(1), Cr.P.C . can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr. P.C. In all other cases the Court must grant bail." It was confirmed on behalf of the State that the petitioners are neither previous convicts, nor are they, in the opinion of any Court, hardened, desperados or dangerous criminals. 6. Therefore, pursuant to the above discussion it is hereby held that the petitioners are entitled to bail on the statutory ground under the provisions of (b) to 3rd proviso to subsection (1) of section 497, Cr.P.C . 7. Consequently, the petitioners are hereby allowed bail in the sum I of Rs . 50,000 each with two sureties each in the like amount to the p satisfaction of the learned trial Court. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1554 Present: RAJA MUHAMMAD KHURSHID, J. NAZIR AHMED-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No. 355-B of 1997, decided on 6.5.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Pakistan Penal Code (XLV of 1860), S. 406/420 read with Emigration Ordinance (XVII of 1979), S. 18/22-Trial of accused had commenced but same was delayed on account of non-availability of his counsel-Any comment on merits of case was likely to prejudice ultimate findings to be given by trial Court-Bail was disallowed to accused with direction to Trial Court to conclude trial within six weeks-Petition dismissed. [P. 1555] A Mr. Shamshad Ullah Cheema, Advocate for Petitioner. Syed Mazhir Naqvi, Advocate for the State. order A case under sections 406 and 420, P.P.C. read with section 18/22 of the Emigration Ordinance (XVIII of 1979) was registered against the petitioner as he cheated the complainant, a student of B.A. by holding out a promise that he would take him to Hong Kong . Instead of sending him to Hong Kong, he was taken to Thailand where he was deserted by the petitioner and his brother who had also accompanied him upto that country. The complainant was never sent to Hong Kong as per alleged promise. 2. Learned counsel for the petitioner has requested for bail on the ground that the case is false and is motivated by previous litigation and enmity between the parties; that the offences under sections 406 and 420, P.P.C. do not fall within the prohibitory clause; that section 22 of the Emigration Ordinance, 1979, is added dishonestly although it is not attracted to the facts of the present case; and that the petitioner is behind the bars for the last over one year andas such he is entitled to bail even on statutory ground. 3. Learned State counsel has submitted that the petitioner has already been charged for the aforesaid offences by the learned trial Court, but the trial has not yet concluded because on a number of dates, learned counsel for the petitioner was not available although the witnesses were in attendance. Secondly, it is contended that the offence under section 22 of the Emigration Ordinance, 1979, falls within the prohibitory clause and that the bail in such cases is not to be granted in routine. 4. I have considered the foregoing contentions and have also gone through the certified copies of the orders passed by the learned trial Court produced by the petitioner alongwith this petition. The charge in this case was framed on 7-10-1996. Thereafter, the case was adjourned thrice on account of the adjournments sought by the learned defence counsel. As such, the observation made by the learned trial Court that the trial was delayed on account of the non-availability of the learned defence counsel appears to be well-founded. Since the trial of the case is in progress, therefore, any comment on the merits of the case is to be avoided lest it may prejudice the ultimate findings to be given by the learned trial Judge. The petitioner has, therefore, no case for bail at this stage. The petition is dismissed with the direction to the learned trial Court that the trial will be concluded within six weeks on the receipt of this order. A report to that effect shall be sent to the Deputy Registrar (J) of this Court. (AAJS) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1556 Present: raja muhammad khurshid, J. ANCHAN ALI MIRZA-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No. 399-B of 1997, decided on 9-5-1997. Bail--Pre-arrest-- -S. 498 Cr.P.C .-Bail-Pre-arrest-Grant of-Prayer for--Pakistan Penal Code (XLV of 1860), S. 109/409/34 read with Prevention of Corruption Act (II of 1947), S. 5 (2)-Pre-arrest hail- Heuge loss of Rs . 5.04 million was alleged to have been caused to National Bank on account of collusion between accused and President of Bank-Despite case having been registered four months back accused was yet at large, no imminent danger of arrest seemed to exist particularly in view of lethargy and inaction on part of Agencies for bririging culprits to book in accordance with law-Even otherwise, case having been registered at Karachi, Courts at Karachi were appropriate forums for considering relief prayed for-Prearrst bail could not be granted indiscriminately or as matter of routine until and unless some mala fides were shown on the part of police- Senior Officials of Bank who had lodged F.I.R. had apparently no malafide intention against accused-Anticipatory bail was declined. [Pp. 1557 & 1558] A & B 1973 P.Cr . LJ 661 and 1989 PCr . LJ 2152 ref. Raja Muhammad Bashir , Advocate for Petitioner. Muhammad Bashir Kiani , Standing Council for the State (on Court's call). order A case under section 109/409/34, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, was registered against M.B. Abbasi , the then President of National Bank of Pakistan and others at the report of Sai Muhammad, Vice President Co-ordinance and Business Development Wing, National Bank of Pakistan, R.H.Q.S., Islamabad, vide F.I.R. No. 1 of 1997 dated 21-1-1997 at the Police Station F.I.A./CBC, Karachi. 2. The brief facts are that the petitioner is an owner of a building in Islamabad which was hired by the National Bank of Pakistan at the exorbitant rent of Rs . 5.04 million thereby causing wrongful loss to the Bank and wrongful, gain to the owners who were alleged to be the relatives of an ex-M.N.A. of the defunct National Assembly. 3. Learned counsel for the petitioner has sought pre-arrest bail on he ground that the demised property was situated in Islamabad; that the agreement had taken place at, Islamabad; and that the payment was made at Islamabad, therefore, the registration of the case at Karachi was only on account of the mala fide of the F.I.A. As such, it was prayed that since the F.I.A. was in hot pursuit of the petitioner to arrest him in this case, therefore, he should be admitted to pre-arrest bail so that he may approach the Court of competent jurisdiction at Karachi . Reliance was placed on uhammad Amin v. The State (1973 PCr . LJ. 661 ( Karachi ) and Ch. Allah Ditta v. The State (1989) PCR. LJ. 2152.) 4. Learned Standing Counsel has opposed the pre-arrest bail on the ground that the authorities cited at the Bar are not applicable to the facts of the present case because the Courts at Karachi have the jurisdiction to deal with the matter as the case has been registered there. Even otherwise, on merits the petition was opposed on the ground that pre-arrest bail is to be granted only in such cases where the police acted in a mala fide manner or wanted to procure the arrest with ulterior motive. In the instant case, the complainant was alleged to be a senior employee of the National Bank of Pakistan to which wrongful loss was allegedly caused. The offence being punishable uptil imprisonment for life, pre-arrest bail should not be granted as a matter of course. 5. I have considered the foregoing submissions from both the sides and find that huge loss of Rs . 5.04 million is alleged to have been caused to the National Bank of Pakistan on account of some collusion between the petitioner and the then President of the Bank namely M.B. Abbasi , The case was registered on 21-1-1997, but strangely enough the petitioner has come up with this petition today i.e. 9-5-1997 after about four months of delay. Nobody from the Investigating Agency arrested him but suddenly he felt "apprehension of the arrest at the hands of the F.I.A. Conversely, the inefficiency of the Investigating Agency is also manifest because though the case was registered four months ago, but its accused were yet at large. If the petitioner could not be arrested in four months, there seems to be no imminent danger of his arrest even now particularly when lethargy and in action is rampant among the Agencies for bringing the culprits to book in accordance with the law of the Land. Even otherwise, the case was been registered at Karachi and the Courts at Karachi would be the appropriate forum to move for the relief prayed in this petition. The objection raised by the learned counsel regarding the Courts at Karachi can be well-settled if raised before those fourms . At the moment, pre-arrest bail is not to be granted indiscriminately or as a matter of routine until or unless there is some mala fide on the part of the police. In the instant case, the report was lodged by a senior official of the Bank who, of course, has apparently no mala fide intention to bring the culprits to book. 6. In view of the above situation, I do not find it a good case for the grant of anticipatory bail to the petitioner. The petition is accordingly dismissed. (AAJS) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1558 (DB) Present: raja muhammad khurshid and sheikh amjad ali, JJ. MUHAMMAD MUSHTAQ-Petitioner Versus STATE-Respondent Criminal Miscellaneous No. 441-M of 1996 in Criminal Appeal No. 114 of 1988, decided on 5-5-1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 382-B-Pakistan Penal Code (XLV of 1860), S. 302-Benefit of S. 382-B, Cr. P.C.-Availability-Death sentence awarded to accused had been converted into imprisonment for life on account of General Ammenstry Order-Sentence of accused having not been reduced by any decision of Court, was not entitled to benefit under S. 382-B, Cr.P.C .- Petition dismissed. [Pp. 1558 & 1559] A & B 1995 SCMR 671 ret. Nemo for Petitioner. Qazi Ahmad Naeern Qureshi , Advocate for the State. order The petitioner was convicted under section 302, P.P.C. for the murder of Muhammad Akram by a learned Additional Sessions Judge, Rawalpindi and sentenced to suffer death and a fine of Rs . 30,000 or in default three years R.I. vide his judgment dated 31-8-1988. He field appeal against the aforesaid conviction and a reference was also made under section 374, Cr. P.C. by the learned trial Court for confirmation of the death sentence. The reference of confirmation was accepted, whereas, the appeal filed by the petitioner/appellant was dismissed by this Court vide judgment dated 13-5-1991. In the meantime, the death sentence awarded to the petitioner was converted into imprisonment for life by the Executive . Authorities on account of General Amnesty Order dated 7-12-1988. Now the petitioner has prayed through this jail petition that he should be given benefit under section 382-B, Cr. P.C. 2, Learned counsel for State has relied on 1995 SCMR 671, titled Noor Muhammad alias Noora v. State to urge that the petitioner is not entitled to benefit under section 382-B, Cr.P.C because the sentence of death was cummuted to imprisonment for life by the Executive Authorities under General Amnesty and not by any decision of the Court. 3. On going through the aforesaid authority cited at the Bar, we find that petitioner is not entitled to the benefit under section 382-B, Cr. P.C. as his sentence was net reduced by any decision of the Court. The petition is accordingly dismissed. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1559 (DB) Present: raja muhammad khurshid and sheikh amjad ali, JJ. MUHAMMAD IDREES-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 135-B of 1997, decided on 39-4-1997. Bail- -S. 497 Cr.P.C .-Bail-Grant of--Prayer for--Control of Narcotics Substances Ordinance (VI of 1995), S. 9-Prohibitory clause--Application- -8 kgs . of Charas -Recovery of-Offence with which accused was charged was punishable with death or imprisonment for life and fine of not less tijan one million rupees and same fell within prohibitory clause of S. 497V.I), Cr. P.C.-Trial of accused had already commenced and he had sought three adjournments in order to engage counsel-Petition dismissed. [P. 1560] A & B Sardar Abdul Raziq Khan, Advocate for Petitioner. Raja Saeed Akram , A.A.-G. for the State. order A case under section 9 of the Control of Narcotic Substances Ordinance , 1995 is registered against the petitioner as 8 Kgs . of charas was recovered from him while he was present near the shrine of Saint Gharib Ali in order to sell it ( canabis ) to his customers. The 100 gins, of charas was separated as a sample and sent to the Chemical Examiner for analysis. The report of the Chemical Analyst was in positive. He applied for bail to the trial Court which was dismissed. 2. Learned counsel for the petitioner has sought bail on the ground that no independent person from public was associated during the recovery of the drug from the possession of the petitioner and as such, there was violation of section 103, Cr.P.C .; that the recovery was mala fide ; that the case was registered at the report of Muhammad Saeed Inspector, C.I.A. who also assumed the investigation which made the whole proceedings unlawful ab initio ; and finally that the petitioner is behind the bars for more than eight months and as such deserves his release on bail. 3. The bail was opposed by the learned counsel appearing on behalf of the State on the ground that even the police employees are good witnesses as independent person do not come forward to become witnesses; that there was no mala fide on the part of the police; and that the investigation was conducted fairly and challan has already been sent to the Court where the trial is in progress, 4. We have considered the foregoing submissions and find that a huge quantity i.e ; 8 Kgs . of charas was recovered from the petitioner who was alleged selling it. to his customers. The charas (cannabis resin) is a narcotic drug as defined in section 2(d) and (s) of the Ordin nce (ibid). This prima facie brings the case of the petitioner within the ambit of clause (b) paragraph (iii) and clause (c) of section 9 of the Narcotic Substances Ordinance, 1997 which is punishable with death or imprisonment for life and fine not less than one million rupees, as such, the offence falls within the prohibitoiy clause. The petitioner has not case for bail, particularly when the trial has already commenced and the petitioner has sought three adjournments in order to engage his counsel. 5. The petition being meritless is accordingly dismissed. (AAJS) Bail refused.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1560 Present: GHULAM SARWAR SHEIKH, J. FAYYAZ AHMED-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 81-B of 1997/BWP, decided on 7-5-1997. Bail- - S. 497Cr.P.C.-Bail-Grant of-Prayer for-Offence of £ina (Enforcement of Hudoorl) Ordinance (VII of 1979), Ss. l6/l-0(2)--Female co-accused during proceedings of suit for restitution of conjugal rights filed by accused had described herself to be legally wedded wife of accused- Genuineness or otherwise of Nikahnarna could not be commented upon at bail stage lest it might prejudice case of either party-Case against accused being of two versions, he was entitled to bail-He was in jail for last ten months and his trial had not yet started-Bail allowed, [P. 1561] A, B & C 1989 MLD 643; 1992 PCr. LJ 1928; 1993 PCr. LJ 963 and NLB1985 Cr. LJ. 215 ref. Mr. Muhammad Afzgl Pansota, Advocate for Petitioner. Ata Muhammad Baloch, Advocate for the State. order Heard. 2. Petitioner and Mst. Salsoom Bibi are facing trial of a case under sections 16 and 10(2) of Offenct of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered at Police Station City Chishtian vide F.I.R. No. 196 of 1996, dated 27-5-1996. 3. Concession of bail has been claimed on the pleas that the petitioner is innocent, no nwe required by police, there is delay of about 1/1-2 months in lodging F.I.R, same is indicative of mala fide of complainant party, co-accused stands enla-ged on bail and the petitioner is behind the bars for the last ten months With reference to photo-copy of Nikahnama and statement of Mst. Kasoom Bibi during proceedings of suit for Restitution of Conjugal Righs, case, at the best, has been described of two versions. Accordingly, grant (f bail has been urged on the strength of Murad v. The State (1989 MLD 643, Shahid Iqbal and another v. The State (1992 PCr. LJ 1928), Muhammad lahid and another v. The State (1993 PCr. LJ 963) and Tauqir Hyder v. Thi State (NLR 1985 PCr L.J. 215.) 4. It has been resistd and opposed vigorously on the plea that delay, if any, is of little significatici and that Mst. Kalsoom Bibi has categorically denied and refuted her Nikd with the petitioner. 5. Documents annaxed with the petition reveal that Mst. Kalsoom Bibi had described hersel to be legal wedded wife of petitioner during proceedings of a suit for Restitution of Conjugal Rights resorted to by etitioner, 'it is not propei to comment upon genuineness or otherwise of same and Nikahnama, leslit may prejudice the case of either party. In any event, fact remains that tie case is patently of "two versions" and in such eventuality, petitioner is eititled to bail on the principal of law enunciated in authorities referred to abo'e and galaxy of rulings on the point. 6. Be that as it ray. trial has tot yet started, inasmuch as, it is not known as to how long, vould it take, to commence, what to speak, of conclusion thereof. Admitedly the petitioner is in continuous detention for the last 10 months. As uch he canaot be allowed to incarcerate for an indefinite period. 7. Application coisequently i> allowed and the petitioner is admitted to bail in the sum of Rs. ,00,000 wiii two sureties each in the like amount to the satisfaction of leamd trial Cout. (AAJS) Bail allowed.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1569 [DB] Present: muhammad naseem chaudhri & rao iqbal ahmad khan, JJ. QUATB-UD-DIN alias QUTBA etc.-Appellarits versus STATE-Respondent Crl. Appeal No. 958 of 1996, accepted on 18.9.1997. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 399/402--Criminal Procedure Code (V of 1898), S. 13-Preparation to commit decoityAppreciation of evidence-Secret information is said to have been obtained from some informant by InspectorHowever, no search warrant was obtained from any competent court who could not enter house even u/s 47/48 of Code of Criminal Procedure as neither convicts were fugitives of law nor any other person if required to be arrested was present, in house-Further, no effort was made by him to join any person from public keeping in view mandatory provision of S. 103 of Code of Criminal Procedure-All Police Officers of all ranks are respectable' personsHowever, law has to take its own course-Since recovery of weapons has not been established by prosecution to commit decoity especially when no evidence has been produced to make out hearing of any type of conversation amongst convicts that they were making preparation to commit decoity-Held: Prosecution has failed to stablish case-Appeal accepted. [Pp. 1572, 1574 & 1575] A, B & C (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 399/402-Appeal against conviction and sentence-Whether benefit of acquittal has to be granted to non-appealing convicts-Question of-Held: No appealing convicts are also entitled to be acquitted due to acceptance of appeal preferred by convicts. [P. 1575] D 1985 SCMR 662, PLD 1991 S.C. 447 ref. Mr. Tariq Pervaiz Malik, Advocate for Appellant. Mr. Nqjam-ul-Hssan Gill, Advocate for State. Date of hearing: 18.9.1997. judgment Muhammad Naseem Chaudhri, J.--This appeal is directed against judgment dated 14.10.1996 passed by Ch. Zahoor Hussain Judge Special Court No. IV Suppression of Terrorist Activities, Lahore whereby he convicted and sentenced Qutab-u-Din alias Qutba son of Muhammad Tahir resident of Dera Natawana Hafizabad Road District Sheikhupura, Muhammad Yousaf alias Pindiwal son of Hassan Muhammad resident of Chak No. 89/EB Babuwala District Sahiwal and Abdullah alias Dulla son of Maulvi Muhammad Arshad resident of near Railway Station Kala Khatai Tehsil Ferozewala District Sheikhupura as well as Muhammad Fayyaz alias Fayyaju son of Muhammad Mushtaq resident of Jandiala Sher Khan District Sheikhupura, Ghulam Rasool alias Pappu son of Ghulam Muhammad resident of Noor Mohallah Qadirabad District Kasur and Shaukat alias Liaqat son of Muhammad Rafique resident of House No. 21 Street No. 6 Ayyub Chowk, Jhang whereby each.of them was convicted and sentenced to R.I. for a period of five years and to pay a fine of Rs. 20,000/- or in default of its payment to further R.I. for a period of six months under section 399 Pakistan Penal Code. 2. it is proper to express that Qutab-ud-Din alias Qatba, Muhammad Yousaf a//as Pindiwal and Abdullah alias Dullah have preferred this appeal while the remaining three convicts with the aforesaid particulars have not preferred the appeal through any learned advocate or through the Jail authorities. 3. The facts giving rise to this appeal are narrated in complaint Ex. PA drafted by Akbar Ali Inspector C.I.A. City Kotwala Lahore (P.W. 1) in Abadi Alipur on 18.2.1996 at 8.15 P.M. on the basis of which Muhammad Masood S.I. (not produced) Police Station Badami Bagh prepared of formal F.I.R. Ex.PA/1 bearing No. 42 dated 18.2.1996 under section 402 P.P.C. Akbar Ali Inspector C.I.A. (P.W. 1) mentioned in Ex.PA that on 18.2.1996 in the company of Ghulam Rasool ASI and eleven other subordinates of Police epartment he was on 'Gashf, for the arrest of fugitives of law, on official vehicle No. LHP 4207 being driven by Mazhar Hussain Constable. He was present outside the Lorri Adda when he received the secret information from an informant that Muhammad Fayyaz alias Fayyaju, in all six persons, who were involved in cases of dacoity at different places were residing near railway line Kachi Abadi Alipura Badami Bagh in a rented house who would be usy in making preparation to commit the dacoity in the evening and that they could be arrested if the raid was effected. On that he reached the aforesaid house after constituting a raiding party and apprehended the six aforesaid persons namely Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal, Abdullah alias Dulla, Muhammad Fayyaz alias Fayyaju, Ghulam Rasool u/ias Pappu and Shaukat alias Liaqat. He took into . possession 222 bore rifle P-l alongwith 10 cartridges (having no marks of Exhit) vide memo Ex. P from Muhammad Fayyaz alias Fayyaju convict. He took into possession 30 bore pistol P-2 from the possession of Ghulam Rasool alias Pappu vide memo Ex. PC. He took into possession gun P-6 from the possession of Qutab-ud-Din a//a.s Qatba vide memo Ex. PD. He took into possession 30 bore revolver Ex. P-8 from the possession of Muhammad Yousaf alias Pindiwal vide memo Ex. PE . He took into possession rifle Ex. P- ~ 4 vide memo Ex. PG/1 from Shaukat alias Liaqat. All the aforesaid memos were attested by Ghulam Rasool ASI (P.W. 2) and Abdul Ghafoor ASI P.W. (not produced). However, Abdullah alias Dulla was empty handed. He prepared rough site plan Ex. PF of the area and the house where the appellants and other convicts were preparing to commit dacoity. He sent complaint Ex. PA through Ghulam Nabi Constable and as expressed above, formal FIR Ex. PA/1 was prepared. 222 rifle P-l was sent to^the Forensic Science Laboratory Lahore from where report Ex. PG was received that the same was a semi-automatic weapon. After completing the investigation the challan was submitted in the trial Court. 4. The aforesaid appellants and the remaining three convicts were charged on 9.9.1996 under sections 399/402 P.P.C. who pleaded not guilty thereto and claimed to be tried. It is pertinent to mention that throughout the aforesaid appellants and the other convicts were not represented by a learned advocate. 5. Akbar Ali Inspector C.I.A. Kotwali Lahore (P.W. 1) and Ghulam Rasool A.S.. I. stood in the witness box and supported the prosecution case. During their cross-examination they denied the suggestion that a false case was registered against the accused persons who were the labourers in the Sabzi Mandi. When examined under section 342 of the Code of Criminal Procedure the convicts took up the plea that they have been falsely roped in. They maintained that they were not living in the house which they had not obtained on rent and they were arrested from different places. They denied the alleged recoveries of the arms. Neither they produced the defence evidence nor they appeared in the witness box under section 340(2) of the Code of Criminal Procedure on oath in their respective defence. The aforesaid judgment of convict was recorded against all the persons tried by the trial Court, out of whom Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal and Abdullah alias Dulla have preferred this appeal which has been resisted by the State. 6. We have heard the learned counsel or the appellants as well as the learned counsel for the State and gone through the record before me. The main contentions of the learned counsel for the appellants are that, as mentioned in the complaint Ex. PA, there was no case past history of any convict about his involvement in cases of the instant nature, that the recovery of the weapons was violative of section 103 of the Code of Crimina Procedure as no person from the vicinity was joined in the recovery proceedings while there is no explanation for their non-joining a even though sufficient time was available to the raiding party and that the owner of the house has not been produced in evidence to make out that all the convicts or any of them and obtained the house on rent from him. On the contrary the contention of the learned State counsel is that there is no previous animosity of both the Police Officers against the appellants and other convicts and that the prosecution has established the guilt of the appellants beyond any shadow of doubt through the statements of Akbar All Inspector (P.W. 1) and Ghulam Rasool AST (P.W. 2). 7. We are of the view that, the prosecution has failed to establish the recovery of the weapons from the appellants and other convicts. The secret information is said to have been obtained from some informant by Akbar Ali Inspector (P.W. 1). However, no Search Warrant was obtained by him from any competent Court, who could not enter the house even under Sections 47/48 of the Code of Criminal Procedure as neither the convicts were fugitives of law nor any other person if required to be arrested was present in the house. Further no effort was made by him to join any person from the public keeping in view the mandatory provisions of section 103 of the Code c Criminal procedure. All the Police Officers of all the ranks are respectable persons. However, the law has to take its course. 8. This is the proper stage to refer to letter dated 20.8.1990 addressed by the Registrar, Supreme Court of Pakistan, Rawalpindi to the Inspector General of Police, Punjab, Sindh, N.W.F.P and Balochistan, a copy of which was sent to all the District and Sessions Judge in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. For the proper appreciation the aforesaid letters are reproduced in toto as under: - "J.B. 32-R(S)/88-SCJ" SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20, 1990. From The Registrar, Supreme Court of Pakistan , Rawalpindi . To (Ij The Inspector-General of Police, Punjab, Lahore . (2) The Inspector-General of Police, Sindh, Karachi . (3) The Inspector-General of Police, N.W.F.P. Peshawar. (4) The Inspector -General of Police, Baluchistan, Quetta . Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police officers concerned t when appearing before the Court are of ten unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned. 2. The Court has also directed in this context that the Courts should also examine two aspect of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence. 3. It is requested that the above orders of this Court should be brought to all concerned for strict compliance. Sd /- (M.A. LATIF) LAHORE HIGH COURT, LAHORE No. 17712-Genl/l-G Dated Lahore the 20th Dec. 1990. From The Registrar, Lahore High Court, Lahore . To All the District and Sessions Judges, in the Province of Punjab . Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Sir, I am directed to forward herewith a copy of letter No.-J.P. 32-R(S)/88-SCJ, dated 20.8.1990, received from the Registrar, Supreme Court of Pakistan, Rawalpindi , on the subject noted above, for information and strict compliance by all concerned. Your Obedient Servant. Sd /- Deputy Registrar (Admn), for Registrar. Endst: No. 17713 Genl/l- G, dated Lahore the 20th December, 1990. A copy is forwarded for information to:- The Registrar, Supreme Court of Pakistan, Rawalpindi , with reference to his letter No . J. P. 332- R(S)/88-SCJ, dated 20.8.1990. Sd /- Deputy Registrar (Admn) for Registrar." 9. There is no explanation for not associating the witnesses of the recovery from the public available at the time of the alleged recovery. A perusal of site plan Ex. PF has made out that the place of recovery was surrounded by different houses. The raid/recovery was planned well in advance but there is no evidence to make out that why the Inspector, CIA did not Associate the witnesses of the public in this case. As such the alleged recovery of the weapons has not been established through the statements of Akbar Ali Inspector (P.W. 1) and Ghulam Rasool ASI (P.W. 2) who were members of the police force. An important aspect of the matter is that even though it is narrated in the complaint Ex. PA that there was past history of involvement of the appellants and other convicts in cases of dacoity, no evidence in this regard has been produced and, as such, this fact has not been established. Since the recovery of the weapons has not been established by the prosecution there cannot be any question of making preparation to commit dacoity especially when no evidence has been produced to make out the hearing of any type of conversation amongst the convicts that they were making preparation to commit dacoity. It can safely be termed that the making of preparation would also include the hatching of the conspiracy which important fact is missing in the persecution case. In view of the aforesaid findings the stand of the appellants has to be given the height which is to this effect that all the convicts did not live in the house and that they were arrested from different places. We, therefore, hold that the impugned judgment cannot be sustained. 10. For what has been said above, we accept this appeal, set aside the impugned judgment and acquit Qutab-ud-Din alias Qatba, Muhammad Yousaf alias Pindiwal and Abdullah alias Dulla appellants. They are undergoing their sentences in Central Jail Lahore and shall be set at liberty forthwith, if not required in any other case. 11. At this stage learned counsel for the appellants prayed that nonappealing convicts-accused may also be acquitted as equitable treatment has to be afforded to alMhe persons who were tried and convicted, out of whom three appellants preferred the appeal who have been acquitted. Learned counsel for the State scrupulously conceded in this regard. We would refer to the dictum enunciated in Mohabat Ali and another versus The State (1985 SCMR 662) wherein it has been held that where the prosecution has failed to establish the case against the accused (appellants) and the conviction of the convicts-accused has been set aside, the same benefit has to be granted to £) the non-appealing convicts and they were ordered to be acquitted. In Waqar Zaheer versus The State (PLD 1991 Supreme Court 447) one of the two accused who had not appealed against his conviction was also given benefit of acquittal in line with the rale laid down by the Supreme Court of Pakistan in Mohabat Ali and another versus The State (1985 SCMR 662). We would also refer to Article 25 of the Constitution of the Islamic Republic of Pakistan which provides that all citizens are equal before law and are entitled to equal protection of law. 12. In view of what has been expressed above, we held that the three non-appealing convicts namely Muhammad Fayyaz alias Fayyaju, Ghulam Rasool alias Pappu and Shaukat alias Liaqat are also entitled to be acquitted due to the acceptance of the appeal preferred by the other convicts (appellants). We, therefore, set aside the judgment under appeal in toto and acquit Muhammad Fayyaz alias Fayyaju, Ghulam Rasool a//as Pappu and Shaukat alias Liaqat non-appealing convicts as well. They shall be set at liberty forthwith, if not required in any other case. 13. It shall not be out of place to express that the trial Court did not record its judgment about the charge framed under section 402 Pakistan Penal Code as the same is not a Scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975. There is no need to express in this regard in this judgment. (B.T.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1576 Present: muhammad naseem chaudhri, J. MUHAMMAD ANWAR-Petitioner versus STATE-Respondent Cr. Misc. 3327/B-96, accepted on 13.8.1996. Bail- -S. 497 Cr.P.C .-Bail-Grant of-Prayer for-Pakistan Penal Code (XLV of 1860), 161/406 read with Prevention of Corruption Ret (II of 1947), S. 5(2)-Statement of witness who willingly offered and paid illegal gratification to public servant, whose job is not done should be viewed with cautionPractically, in case required and desired relief would have been procured by Complainant, he would have kept quiet-Held: This aspect of matter has stolen eminence to hold that involvement of petitioner is of further inquiry-Bail allowed. [P. 1577] A & B Malik Waqar Salcem , Advocate for Petitioner. Syed Muhammad Ashfaque , Advocate for State. Date of hearing: 13.8.1996. judgment Ghulam Rasool complainant made an application before the Circle Officer Anti-corruption Mandi Baha-ud-Din with the allegation that Muhammad Anwar Patwari Halqa Mauza Kadhar received an amount of Rs . 20,000/- as illegal gratification from him in the presence of Muhammad Aslam and Bati PWs with respect to the attestation of a mutation of gift. The mutation was entered. Afterwards it was found that the mutation fee was not paid and the mutation was not sanctioned. After holding the inquiry the Circle Officer Anticorruption Establishment Mandi Baha-ud-Din registered Crime case No. 2 dated 3.4.1996 at. the instance of Ghulam Rasool under sections 161, 406 PPC and under section 5 of the Prevention of Corruption Act, 1947. Muhammad Anwar Patwari petitioner-accused was arrested on 19.6.1996 in this case whose bail plea has been rejected by the learned Special Judge Anticorruption, Gujranwala . He has filed this petition for his admission to bail. 2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Syed Muhammad Rafique Shah Circle Officer Anticorruption Establishment, Gnjrat has brought the police file and on the query made by this Court has expressed that neither the physical remand of Muhammad Anwar Patwari was obtained nor nay amount, has been recovered. At the veiy out-set I would express that the attraction of section 406 PPC can safely be held that of further inquiry on the short observation that an amount of Rs . 20,000/-was not paid in trust to Muhammad Anwar Patwari by Ghulam Rasool complainant according to whom this amount was allegedly paid as illegal gratification. In my view the statement of a witness who has willingly offered and paid the illegal gratification to a public servant whose job is not done should be viewed with caution at this stage. Practically in case the required and desired relief would have been procured by Ghulam Rasool complainant, he would have kept quiet. This aspect of the matter has stolen the eminence to make me hold that the involvement of Muhammad Anwar petitioner is that of further inquiry and I am inclined to admit him to bail. 3. I, therefore, accept this application and admit Muhammad Anwar Patwari petitioner-accused to bail in the sum of Rs . 20,000/- (rupees twenty thousand only) with one surety in the like amount to the satisfaction of learned Special Judge Anticorruption, Gujranwala with the direction to appear on eveiy date of hearing as and when required by the trial Court failing which learned trial Court may cancel his bail. 4. Copy dasti subject to payment of usual charges. (B.T.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C . Lahore 1577 [DB] Present: MUHAMMAD NASEEM CHAUDHRI & RAO IQBAL AHMAD KHAN, JJ. GUL NAWAZ-Appellant versus STATE-Respondents Criminal Appeal no. 721 of 1995, accepted on 15.9.1997. ( i ) Criminal Procedure Code, 1898 (V of 1898)-- S. 103-Recovery witnessed by Police-Credibility-Police officers of all ranks are respectable persons-However, law has to take its own course. [P. 1580] A ( ii
Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- -S. 8-Criminal Procedure Code (V of 1898), S. 103-Arms Ordinance (1965) S. 13-Recoveiy of Klashnikov from appellant-Conviction and sentence-Challenge to-There being no plausible explanation in not associating witnesses of recovery from public available at time of alleged recovery it is enough to make out. that alleged recovery of illicit arms from appellant, is false and concocted-Held: Recovery of illicit arms attributed to appellant has no legal force so as to make him criminally liable for charge framed against him-Appeal accepted. [Pp. 1582 1583] B & C Mr. Amir Muhammad Joya , Advocate for Appellant. SyedAli Raza , Advocate for State. Date of hearing: 15.9.1997. judgment Muhammad Naseem Chaudhri , J.--This appeal is directed against judgment dated 18.10.1995 passed by Ch. Tajammal Iqbal Kamboh , Judge Special Court, Suppression of Terrorist Activities, Faisalabad- Sargodha Divisions at Faisalabad whereby he convicted and sentenced Gul Nawaz appellant son of Gulbaz caste Pathan aged 35 years resident of village Tani Khel Dakhli , Kamar Mashani District Mianwali to undergo R.I. for a period of 7 years and to pay a fine of Rs . 50,000/- or in default of its payment to undergo further R.I. for a period of one year U/S. 13 of the Arms Ordinance, 1965. 2. The facts giving rise to this appeal are contained in complaint Ex. PB drafted by Shafqat Ullah S.l /SHO Police Station Dawood Khel District Mianwali (P.W. 2) on the basis of which Khan Amir Moharrar ASI (P.W. 1) prepared the formal F.I.R. Ex.PA/1. According to the recitals of complainant Ex. PA Shafqat Ullah SHO (P.W. 2) in the company of Ahmad Khan A.S.I. (P.W. 3), Sikandar Khan (P.W. given up), Nisar Ahmad Constable No. 346 and Khan Muhammad Constable No. 801 was going towards Pull Kala Bagh in official vehicle No . MI 9677 being driven by Muhammad Khan driver at . 30 p.m. on 3.7.1989. They reached near howk Mari Indus. They saw one person holding the klashnikov in his right hand who was in a wagon. He was none else than Gul Nawaz appellant son of Gulbaz who was apprehended. The S.H.O. (P.W. 2) recovered kalashnikov PI, bag P2 and bandolier P3 and containing 4 spare magazines P4 to P 7 all loaded with live cartridges PI to P 7 which contained in all live cartridges P8/1-214. The aforesaid articles were takeh into possession by the S.H.O. vide memo Ex. PB attested by Ahmad Khan ASI and Sikandar ASI (given up). Gul Nawaz appellant could not produce any Ikence or permit, to keep the klashnikov PI and the cartridges P8/1-214 under his possession. He arrested Gul Nawaz . He drafted complaint Ex. PA and sent the same to Police Station Dawood Khel for registration of the formal FIR where Khan Amir ASI (P.W. 1) prepared ormal FIR (Ex. PA/1) bearing No. 92 dated 3.7.1989 under section 13 of the Arms Ordinance, 1965. Site Plan Ex. PC was prepared by Shafqat Ullah S.H.O. (P.W. 2). After completing the investigation the challan for the prosecution of Gul Nawaz appellant was submitted before the trial Court. 3. Gul Nawaz appellant was charged under section 13 of the Arms Ordinance, 1965 for keeping the unlicensed aforesaid arms mentioned in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975 for which trial Court was competent to hold the trial. He pleaded not guilty thereto At the trial the aforesaid three P.Ws belonging to the Police Department appeared in the witness-box and supported the prosecution case. Shafqat Ullah S.H.O. (P.W. 2) and Ahmad Khan A.S.I. (P.W. 3) deposed unanimously, when cross-examined, that they did not remember as to whether they entered the fact of their departure from the Police Station in he Daily Diary. It occurs in the c oss -examination of Shafqat Ullah S.H.O. (P.W. 2) that he did not note the Registration Number of the Wagon, that, some passengers were present, in the said Wagon but he could not give their number and that he had not noted the names of the driver, conductor and the passengers of the said Wagon as it left Indus Mari Chowk after dropping Gul Nawaz accused. He stated that he mentioned in complaint Ex. PA that Gul Nawaz alighted from the Wagon. When confronted with complaint Ex. PA it was not recorded that Gul Nawaz alighted from Wagon. He admitted that Naz Cinema and Toll Tax post were situated on both sides of the road and just close to the place of recovery. He stated that he had not shown the main gate of the Cinema and its boundaiy wall in the Site Plan Ex. PC. He stated that he had not cited any employee of Toll Tax Post as a witness in the case. He stated that he could not recover the fare Ticket from the accused after his personal search. He denied the suggestion that he had recovered the case property from the Wagon parked at Chowk Mari Indus after its passengers had gone for refreshment in naz Cinema, that he went to the Cinema to trace out the owner of the illicit arms and that in his absence the driver drove away the Wagon. Ahmad Khan ASI (P.W. 3) denied the suggestion that he as well as Sikandar Khan (P.W. given up) were neither present with Shafqat Ullah S.H.O. nor klashnikov etc. were recovered in their presence. He denied the suggestion that in order to show the efficiency of the police, fake recovery was shown and also prosecution version was concocted. 4. After hearing the parties the trial Court gave the weight to the statements of the P.Ws by expressing that the Police Officials were credible and good witnesses for recovery whose statements have established that the illicit arms (Ex. PI), spare magazines and live cartridges were recovered from Gul Nawaz appellant. Consequently the appellant was convicted as narrated above. Hence this appeal which has been resisted by the State. 5. We have heard the learned counsel or the appellant as well as the learned State counsel and gone through the record before me. Learned counsel for the appellant argued that according to complaint Ex. PA Gul awaz appellant was sitting in the wagon while Klashnikov PI was in hand which is unnatural type of conduct placed by the police before the trial Court as it cannot be expected that, unlicensed klashnikov would openly be displayed in the aforesaid manner. He dded that the registration number of he vehicle was not noted by the S.H.O. who also did not obtain the respective name of the driver, the conductor and all the passengers. He magainted that even the Fare Ticket was not taken into possession by the S.H.O. He canvassed that no independent person as required under section 103 of the Code of Criminal Procedure was joined at the time of the recoveiy of the illicit arms when memo. Ex.PB was prepared especially .when the post of collection of Toll Tax and the Cinema were close to the place of recovery. He continued that it was a false case which was coined and cooked up by the police to show the fake efficiency. On the contrary learned State counsel argued that Gul Nawaz appellant alighted from the bus who was apprehended and over-powered by the police and that there was no occasion to get the registered number of the vehicle as well as the names of the driver, conductor and the passengers. According to him the persons present at the post for collection of Toll Tax were not joined as the public is not willing to help the police in such matters and that the Police Officers being respectable persons are as good witnesses as witnesses from the public. 6. We are, however, of the view that the assertions raised by the learned counsel for the appellant have to prevail. It is not recorded in the F.I.R. that Gul Nawaz appellant, was overpowered when he alighted from the Wagon and the driver drove the same immediately. P.W. 2 was confronted with Ex. PA who stated that he had mentioned in complaint Ex. PA that Gul Nawaz alighted from the Wagon. However, when confronted it was not mentioned that the accused alighted from the Wagon. This aspect of the matter has to play the vital legal role to adversely affect the prosecution case. In the F.I.R. it is narrated that klashnikov was in the hand of the appellant while he was sitting in the Wagon and the remaining illicit arms were in bag P2 which were taken into possession. This type of conduct of an accused as projected by the prosecution is unnatural and cannot be expected which has to steal the eminence for the purpose of his exoneration. The important aspects are that the registration number of the vehicle was not noted by the S.H.O. who also did not inquire about the names of the driver, the conductor and all the passengers. The independent witness in the form of the driver and the conductor were available. There is no explanation on the record to make out that the driver of the vehicle, its conductor and the persons working at the post for the collection of Toll Tax were asked by the police to join the investigation and to witness the recovery memo who did not agree to the same. Rather it is not the case of the prosecution. All the Police Officers of all ranks are respectable persons. However, the law has to take its course. To exemplify the confession of an accused person before any Police Officer of any rank about a case triable by the trial Court or by the court of general jurisdiction is in admissible in evidence in view of Article 38 of the Qanoon-e- Shahadat Order, 1984. In view of the availability of the independent persons at the spot at the alleged time of the alleged recovery of the illicit arms and in the absence of any explanation about their non-joining or non-participation, the alleged recovery of the illicit arms can safely he held to be violative of law and section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 shall not play the legal role'against GUI Nawaz . At this stage I have to express that the Registrar, Supreme Court of Pakistan, Rawalpindi addressed a letter dated 20.8.1990 to the respective Inspector General of Police Punjab, Sindh , N.W.F.P. and Baluchistan , a copy of which was sent toall the District and Session Judges' in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in toto as under:- "J.B. 32-R(S)/88-SCJ" SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20 ,1 990. From The Registrar, Supreme Court of Pakistan , Rawalpindi . To (1) The Inspector-General of Police, Punjab, Lahore . (2) The Inspector-General of Police, Sindh , Karachi . (3) The Inspector-General of Police, N.W.F.P . Peshawar. (4) The Inspector -General of Police, Baluchistan, Quetta . Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are of ten unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned. 2. The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cumum !« there a plausible explanation for not associating witnt.HHeH from thu public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied ^ Sd /- (M.A. LATIF) LAHORE HIGH COURT, LAHORE No. 17712-Genl/l-G Dated Lahore the 20th Dec. 1990. From The Registrar, Lahore High Court, Lahore . To All the District and Sessions Judges, in the Province of Punjab . Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Sir, I am directed to forward herewith a copy of letter No. J.P. 32-R(S)/88-SCJ, dated 20.8.1990, received from the Registrar, Supreme Court of Pakistan, Rawalpindi , on the subject noted above, for information and strict compliance by all concerned. Your Obedient Servant. Sd /- Deputy Registrar ( Admn ), for Registrar. Endst : No. 17713 Genl /l- G, dated Lahore the 20th December, 1990. A copy is forwarded for information to:- The Registrar, Supreme Court of Pakistan, Rawalpindi , with reference to his letter No . J. P. 332- R(S)/88-SCJ, dated 20.8.1990. Sd /- Deputy Registrar ( Admn ) for Registrar." 1. The aforesaid directions issued by the Registrar, Supreme Court of Pakistan have to be complied with by all the Police Officers of all the ranks and they cannot be ignored thereof. I have to express that this Court is also bound to follow the instructions 'mentioned in the aforesaid letter dated 20.8.1990. If the directions contained in the aforesaid letter are not complied with, the recoveiy of the instant nature need not be given the legal weight and legally the accused involved in the matter shall derive the legal benefit. There being no plausible explanation in not associating the witnesses of the recoveiy from pubic available at the time of the alleged recoveiy it is enough to make out that the alleged recoveiy of illicit arms from Gul Nawaz appellant is false and concocted. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the recoveiy of the illicit arms attributed to Gul Nawaz appellant has no legal force so as to make him criminally liable for the charge framed against him who, as such, is entitled to be acquitted. 8. For what has been said above, we accept this appeal, set aside the impugned judgment and acquit Gul Nawaz appellant. He shall be set at liberty forthwith, if not required in any other case. (B.T.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. (Karachi) 1583 Present: zakir hussain mirza and rasheed ahmed razvi, JJ. THE STATE-Appdlant versus MUHAMMAD HASHIM SHER-Respondent Criminal Acquittal Appeal No. 194 of 1995, decided on 23rd April, 1997. (i) Criminal Procedure Code (V of 1898)- -S. 419 & 417-Acquittal-Appeal against-Certified copy of judgment or order which is challenged in appeal should accompany the Memorandxim of Appeal in order to enable Court to know that what accompanies Memorandum of Appeal is a true transcription of original judgment or order. [P. 1584] A (ii) Criminal Procedure Code (V of 1898)-- -S. 417 & 419-Limitation Act (IX of 1908), S. 5-Acquittal-Appeal against- Certificed copy of impugned judgment not filed with Memorandum of Appeal-Status-Fililng of appeal against acquittal of accused by State without certified copy of impugned order was only a formal submission of ppeal-Filing of certified copy of said order after expiry of period of limitation amounted to preferring of appeal beyond limitation-Neither any application under S. 5 of Limitation Act, 1908 had been moved nor any formal request had been made by prosecution for condonation of delay-Appeal having not. been properly instituted and also being barred by time hence dismissed. [P.1585] B AIR 1955 All. 473 and PLD 1954 Bal. 33 ref. Ghulam Nabi Sommor, A.A.G for the State. order This is an acquittal appeal field by advocate-General, Sindh on behalf of the State under section 417, Cr. P.C. This acquittal was filed on 14- 9-1995 against the order of learned Sessions Judge, Sanghar, dated 15-3- 1995. ON 27-11-1995. On 27-11-1995 office has raised tow objections, firstly how this acquittal appeal is within time and, secondly, certified copy of judgment to be s filed. Till this date on certified copy of impugned judgment is filed. On 12-11-1995 at the request of Mr. Suleman Habibullah, appearing from Advocate-General, one weeks time was granted. Again on 17-1-1996 A.A.G., Sindh was granted time to study the law of limitation. Lastly, on 19- 2-1997 one months time was allowed to meet the office objections. 2. We have heard Mr. Ghulam Nabi Soomro, A.A.-G. for the State. The learned A.A.-G. is not able to show how the appeal could be considered in absence of a certified copy of the impugned judgment and how this appeal was in time although sufficient time was taken by him. 3. Section 419, Cr. P.C. provides as under :-- 419. Petition of appeal.--Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against." 4. A plain reading of the section would show that the filing of the certified copy of the judgment or the order, which is being challenged by way of an appeal should accompany the memorandum of the appeal. The purpose, however, is that the Court, to whom the memorandum of appeal is presented should be in a position to known that what accompanies the memorandum of appeal is true transcription of the original judgment. This means that the appellant should satisfy the Court or should prove to the satisfaction of the Court that the copy accompanying the memo, of appeal reproduces correctly what is contended in the original judgment. In absence of such qualification "certified", "authenticated" or "granted by the Court": it cannot be said that the word "copy" in the section 419, Cr. P.C. means certified copy. In the instant case, however, only a photostat coy of the judgment has been field and the learned A.A.-G. did not even care to file a certified copy of the impugned judgment. 5. The other crucial objection, which has been pointed out by the office is that of the limitation. The State, as already mentioned, had been taking time for studying the point of limitation, but it has miserably failed to satisfy this Court that the appeal is within time. No distinction has been made in the law between Government and the private individual and in the eye of law both stand on the same footing. Admittedly, this appeal has been field by the State against the acquittal of the accused in case of State. Muhammad Hashim. Thus, it was the duty of the State to bring this appeal within time. The non-filing of such copy without any satisfactoiy explanation would render the appeal as not property filed and comes within the mischief of article 157 of the Limitation Act. Even after filing of the photostat copy of the impugned judgment no application for condoning the delay under section 5 of the Limitation act was moved disclosing the inability of the state for filing the copy of the impugned judgment. Thus, it would appear that this appeal seems to be time-barred. Reliance in this regard can be placed on a D.B. decision reported in U.P. State v. Christopher Tobit AIR 1955 All. 472. 6. The question now would arise whether this delay could be condoned. As already mentioned no request was made by the State by way of application or otherwise to condone the delay as such the delay comes in the way of the appellant which cannot be condoned in circumstances. Reline can be placed in a case Crown v. Fazal Karim PLD 1954 Balochistan 33 wherein it was held that under section 5 and Article 157 of the Limitation Act the appeal against the acquittal preferred beyond six months' the delay cannot be condoned, without sufficient cause. In this case, no reason for delay has been specifically given. At the time when the appeal was presented without the certified copy of the order it was only a formal submission of the appeal on 14-9-1995. Subsequent filing of the certified copy after 24-11-1995 would amount to preferring of the appeal after the period of limitation. Although, this Court has jurisdiction to extension when no reason is given for the delay in submission of this appeal. Moreover, neither an application under section 5 of the Limitation Act has been moved nor formal request has also been made for condoning the delay. In the circumstances, we do not find that the appeal has been properly preferred and the same is also time-barred. Hence, it is dismissed. (K.K.F.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1585 Present: MUHAMMAD NASEEM CHAUDHRI, J. 'MUHAMMAD INAYAT etc.-Petitioners versus MUHAMMAD ASLAM and another-Respondents Criminal Misc. No. 18/Q-1997, accepted on 22.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 561-A-Pakistan Penal Code (XLV of 1860), 324, 337-A ( i , ii), 337- ( i , ii)/148/149/109 Recording of preliminary statements by Reader of Court instead of Magistrate- Quahsment of Proceedings-Prayer for~Reader of court cannot assume role of Magistrate exercising powers of any class-Justice has to be administered by Presiding Officer of Court and in whole of scheme of Criminal Procedural law reader has not been directly empowered to record statements of PWs or to write/announce judgment etc.-Held : Preliminary proceedings and impugned order about summoning of petitioners as accused is illegal and without lawful authority which is not curable u/s 537» Cr.P.C .-Petition accepted. [Pp. 1586 & 1587] A, B, C & D 1987 P.Cr.LJ . 2299 Lahore , PLD 1995 Lahore 261. Mr. Abid Saqi , Advocate for Petitioners-accused. Ch. Bashir Ahmad Gujjar , Advocate for Muhammad Aslam Respondent No. 1-Complainant. Date of hearing: 22.9.1997. judgment Muhammad Aslam respondent No. 1 filed the complaint for the prosecution of the petitioners-accused under sections 324, 337-A( i , ii), 337-F( i , ii)/148/149/109 PPG in the Court of Rai Zafar Abbas Magistrate Section 30, Hafizabad (respondent No. 2). The preliminary statement of Muhammad Aslam complainant-respondent No. 1 as well as the preliminary statements of Muhammad Ishaque PW-2, Muhammad Aslam PW-3, Saif Ullah PW-4, Muhammad Pannah PW-5 and Jahangir PW-6 have been recorded which are in the hand of the Reader of the Court and have been signed by the aforesaid Magistrate Section 30, Hafizabad . Expressing that the evidence could not be recorded by the Reader of the Court and that there being no certificate about the reason of inability of the trial Magistrate to record the statements of the PWs the petitioners-accused have filed this criminal misc. petition for the quashment of the proceedings conducted by the trial Court. This petition has been resisted by Muhammad Aslam respondent No. 1- complainant. 2. On 26.3.1997 M. Dawood Ahmad Reader of the trial Court appeared when he as well as the learned counsel for Muhammad Aslam respondent No. 1 admitted that the preliminary evidence was written by the previous Reader of the Court and was not in the hand of the learned Magistrate. A perusal of the record has made out that the trial Magistrate did not record the reason of his inability in the matter of scribing the preliminary statements of the PWs . 3. I have heard the learned counsel for the contesting parties and gone through the record before me. Relying on Munshi Ahmad and others vs. Maulvi Abdul Hannan (1987 P.Cr.L.J . 2299 Lahore) and Tahir Javed and others vs. Abdur Razzaq and others (PLD 1995 Lahore 261) learned counsel for the petitioners-accused argued that the evidence recorded by the Reader of the Court could not form the basis of the summoning of the petitioners as the accused. " On the contrary learned counsel for Muhammad Aslam respondent No. I/complainant laid the emphasis that the preliminary statements of the complainant, and the PWs could be recorded by the Reader f the Court as there is no bar in the Code of Criminal Procedure in this regard and that section 355(3) of the Code of Criminal Procedure stood attracted when the fulfledged trial was under process after formulation of the charge. In my view the reasoning adopted by the learned counsel for the petitioner has to prevail and the aforesaid rulings relied upon by him are applicable to the instant, matter. I would express that the fact of the matter is that a Reader of the Court cannot assume the role of a Magistrate exercising powers of any class. The justice has to be administered by the Presiding Officer of the Court and in whole of the Scheme of the Criminal Procedural Law the Reader has not been directly empowered to record the statements of the PWs or to write/announce the judgment etc. etc. Muss fuss is emanating ahout the poor working of the subordinate Courts. It is alleged that in the absence of the Presiding Officers the evidence is recorded by the Readers. There is no material on the record to make out in the instant matter that preliminary evidence was recorded under the supervision of the Presiding Officer, Unfortunately the trend of such type of working is increasing alarmingly and it has laid down the foundation of injustice in most of the subordinate Courts. Finding support from the aforesaid wealth of the case law relied upon by the learned counsel for the petitioners which pertains to the working of the trial Court at, the initial stage of the recording of the preliminary evidence, I hold that the preliminary proceedings and the impugned order about the summoning of the petitioners as the accused are illegal and without lawful authority. Such an illegal working of the trial Court is not even curable under section 537 of the Code of Criminal Procedure. 4. For what has been said above, I accept this criminal misc.. petition, declare the proceedings conducted by the trial Court .as without lawful authority and illegal, set-aside the impugned order dated 19.2.1996 summoning the petitioner as the accused and remand the case to the Area Magistrate to proceed further in the matter in accordance with law who shall record the preliminary statements of the complainant and the PWs with his own hand and shall proceed further in accordance with law. 5. Muhammad Aslam respondent No. I/complainant shall appear before the Ilaqa Magistrate on 2.10.1997 so that the matter is taken up by him on that date. In case the judicial file is not with the present Ilaqa Magistrate the same stands transferred to his Court who shall proceed further after procuring the same from the Court where it is lying. (B.T.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C. ( Lahore ) 1587 (DB) Present: MUHAMMAD NASEEM CHAUDHRI AND RAO IQBAL AHMED KHAN, JJ. MUHAMMAD YAR and others-Appellants versus STATE-Respondent Cii. Appeal No. 168 of 1993, decided on 10.9.1997. Pakistan Penal Code, 1860 (XLV of 1860)- -Ss. 302/34/109/120-B-Murder-Offence of-Conviction for-Appeal against-With material on record, presence of PW 3 and 4 (eye witnesses) stands established-It is a general reluctance that people do not want to appear as witnesses-Mere fact that presence of witnesses is not mentioned in site plan aiid places where they were alleged to be present were not shown in site plan would not invalidate their testimony-FIR was promptly lodged-Legally testimony of an interested witness can sustain conviction if found free from doubtSo statements of both said witnesses inspire confidenceNumber of injuries on person of each of five deceased has established that, weapons narrated in FIR and seen by eye witnesses were used during occurrenceDefence has not been able to make doubtful statement of Medical officer who conducted post-mortem of dead bodies-There is long standing enmity between parties and motive has rightly been given weight by trial court-Prosecution has rightly established its caseQuantum of punishment against M and Z was held to be justified, hence, their appeals were dismissedHowever, to the and extent of A, M and N. Appellants, appeal accepted and impugned judgment set aside as solitaiy statement of PW-13 is not enough to make out alleged abetment against, them-Appeal partially accepted. [Pp. 1599 to 1605] A to M NLR 1992 Criminal 238. PLD 1980 SC 317 & 1986 P.Crl.J. 3019 Quetta ref. Syed Ehsan Qadir, Advocate for Appellant Muhammad Nawaz. m/k Raja Muhammad Anwar, Iftikhar Ahmed Mian, Mrs. Nasira Jave.d Iqbal and Munccb Iqbal, Advocates for Appellants. Malik Muhammad Sule.wan Awan, Advocate for State. Sardar Muhammad Latif Khan Khosa and Mr. Ghous Muhammad Chaudhri, Advocates for Complainant. Dates of hearing: 8.9.1997, 9.9.1997 and 10.9.1997. judgment Muhammad Naseem Chaudhri, J.--An occurrence took place on 6.7.1991 at 9.30 a.m., in front of Alaf Mohallah, Rabwah within the area of Police Station Rabwah, District Jhang wherein five persons namely Haji Muhammad Sarfraz, Musarrat Abbas, Zahoor Ahmad, Khizar Hayat and Ahmad Ali Machhi were murdered. The investigation of the case was condxicted. The challan was submitted. The appellants-convicts namely Muhammad Yar son of Wali Muhammad, Yara alias Allah Yar son of Shahu, Zafar alias Zafar Abbas son of Rahrna, Ahmad son of Muhammad all Rahuka Lali by Caste and residents of Khai, Tehsil Chiniot, District Jhang, Mian Ahmad son of Mian Amir, Caste Lali, resident of Shamlat, Tehsil Chiniot, District. Jhang, Muhammad Nawaz son of Muhammad Bakhsh, Caste Bhatti, resident of Peer Ranjha, Tehsil Chiniot, District Jhang; three proclaimed offenders-convicts namely Tahir Ahmad alias Tahiri son of Muhammad Yar, Barkhm'dar alias Barkha son of Muhammad and Muhammad Hayat alias Fauji, all Rahuka Lali by caste, residents of village Khai, Tehsil Chiniot, District Jhang; acquitted accused namely Manzoor Ahmad son of Ghulam Hussain, Muhammad Hayat son of Rehina and Khizar Hayat son of Rahma, all Rahuka Lali by caste and residents of village Khai, Tehsil Chiniot, District Jliang and acquitted accused namely Ahmad Sher son of Sikandar Khan, Caste Bhatti, resident of Chak No. 138 Tehsil Chiniot, District Jhang were tried by Mr. Shafique Ahmad Butt, Judge, Special Court No. 1 for Suppression of Terrorists Activities, Rawalpindi Division, Rawalpindi. Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji proclaimed offenders were tried in -absentia who as required by law were provided the assistance of the Advocates. 2. The aforesaid persons were charged under sections 302/34/109/120-B Pakistan Penal Code. 3. As expressed above, Manzoor Ahmad son of Ghulam Hussain, Ahmad Sher son of Sikandar Khan, Muhammad Hayat son of Rehma and Khizar Hayat son of Rehma were acquitted. The proclaimed offenders namely Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji were convicted in absentia alongwith the appellants. (iv) Barkhurdar alias Barkha (in absentia). (v) Muhammad Hayat alias Fauji son of Khan (in absentia). 5. The aforesaid convicts who faced and defended the trial in person have preferred criminal appeal No. 168/93 being disposed of through this judgment. 6. However, the proclaimed offenders namely Tahir Ahmad alias Tahiti , Barkhurdar alias Barkha and Muhammad Hayat alias Fauji have neither appeared before the trial Court in accordance with law nor preferred the appeal(s). 7. The facts of the prosecution case, giving rise to this appeal, ar contained in FIR Exh. PK recorded by Younas Ali SI PW-17 at Police Station Rabwah, District Jhang on 6.7.1991 at 10.15 a.m., at the instance of Liaquat Ali complainant PW-3 son of Haji Muhammad Sarfraz deceased and real brother of Musarrat Abbas deceased. According to Liaquat Ali complainant PW-3 he was resident of village Walla Police Station Barana and was a Zimindar by profession. They had enmity with Muhammad Yar convict son f Wali Muhammad due to murders. The cases were pending in the Court. On that day (6.7.1991) he (Liaquat Ali complainant PW-3), Sher Muhammad PW-4 son of Laal, Khizar Hayat PW son of Ch. Sultan and Muhammad Khalid PW son of Haji Muhammad Hayat (both given up) were in car No. LEO/897 while his father Haji Muhammad Sarfraz alongwjth his real brother Musarrat Abbas deceased, Khizar Hayat, deceased son of Wali Muhammad and Ahmad Ali Machhi deceased was in car No. SLC 4141 being driven by Zahoor Ahmad deceased. They were coming back after attending the Court of the Additional Sessions Judge, Chiniot. Car No. SLC 4141 was ahead of his car No. LEO-897. They reached 'Adda Nalka' in front of Mohallah Alaf, Rabwah at 9.30 a.m., when a white coloured Toyoto Corolla car crossed his car and reached car No. SLC 4141. The third car crossed car No. SLC 4141 from which a burst was fired at Zahoor Ahmad driver" (deceased) who lost his eye and could not control the car which went towards the left 'Kacha' side of the road and stopped. From the white coloured car which was without number emerged the convicts namely Muhammad Yar son of Wali Muhammad, Tahir Ahmad alias Tahiti proclaimed offender, Barkhurdar alias Barkha proclaimed offender, Zafar son of Rahma each armed with kalashinkov and Yara son of Shahu armed with a mouser. They went running towards the car of his father Haji Muhammad Sarfraz. '"Muhammad Yar convict fired a burst which hit his father Haji Muhammad Sarfraz on the backside of his head. Tahir Ahmad alias Tahiri proclaimed offender fired at his brother Musarrat Abbas on the back of his head. Zafar convict-proclaimed offender fired a burst which hit the right side of abdomen of Khizar Hayat deceased sitting on the back seat on the right side of the car. Barkhurdar alias Barkha (Proclaimed offender-convict) fired a burst hitting Zahoor Ahmad deceased on the left side of his head. Yara son of Shahu fired -i'rom his mouser which hit Ahmad Ali Machhi who was sitting on the back seat which hit his neck. Thereafter the aforesaid convicts started indiscriminate firing on all sides of car in which his father and others were sitting. His father Haji Muhammad Sarfraz, his brother Musarrat Abbas, Khizar Hayat, Zahoor Ahmad and Ahmad Ali Machhi expired there and then and the car was badly damaged. The firing attracted many persons who could not interfere due to fear. The licensed gun of his father Haji Muhammad Sarfraz was picked by Tahir Ahmad alias Tahiri (convict). Thereafter all the aforesaid convicts (assailants) effected the firing in the air, sat in their car and raced towards Sargodha Road . According to Liaquat Ali complainant PW-3 he left Slier Muhammad PW-4 as well as both the given up PWs namely Muhammad Khalid and Khizar Hayat with the deadbodies - and came to the Police Station who prayed for taking the legal action. 8. From the Police Station Rabwah Younas Ali SI Investigating Officer (PW-17) alongwith the police party immediately reached the place of occurrence which is at a distance of one kilometer from the said Police 'Station, He took into his possession the five dead bodies of Haji Muhammad Sarfraz, Musarrat Abbas, Khizar Hayat, Ahmad Ali Machhi and Zahoor Ahmad. He prepared the respective injury statement and inquest report pertaining to each of the deceased and sent the deadbodies to mortuary in Civil Hospital , Lalian under the escort of Khan Muhammad Constable PW-,. 6. He made the spot inspection and prepared the Spot Inspection Note. He prepared rough site-plan Exh, PZ. He took into possession 98 crime empties of kalashinkove and two empties of pistol vide, memo Exh. PP attested by Amir Ali PW-10 and Manzoor Ali PW (given up). He sealed the empties into a separate parcel. He took into possession blood-stained five pieces of mat from beneath the respective seat of the deceased persons vide memo Exh. PQ to Exh. PU. He took into possession car No. SLC 4141 vide memo Exh. PV. He got prepared 13 photographs P-28/1-13 from Ahmad Zaman Tanveer Photographer PW-16 arid took the same into his possession vide Exh. PY. Last, worn clothes of the deceased persons were produced before him by Khan Muhammad Constable PW-6 after the postmortem examination which were taken into possession vide Exh. PL. He handed over the sealed parcels to Faqir Hussain Moharrir/Head Constable PW-7. 9. He recorded the statements of the other eye-witnesses on 6.7.1991 who supported the complainant. He recorded the statement of Malik Muzaffar Abbas PW-13 under section 161 of the Code of Criminal Procedure who stated before him on 6.7.1991 that he was a supervisor in Fauji Foundation Sugar Mills Circle Lalian, that Ahinad accused son of Amir was a contr¬tor of sugar-cane, that on 5.7.1991 he had gone to the house of Ahmad accused when he was told that Ahmad had gone to the house of Zahoor Ahmad Lali, Advocate (accused since discharged) whereupon he went to the house of the said Advocate. In the 'Baithak' of Zahoor Ahmad Lali, Advocate were sitting Ahmad Sher accused (since discharged) son of Ahmad Hayat, Manzoor Hussain accused (since acquitted) and Ahmad convict son of Amir. In the meanwhile Muhammad Yaf convict also arrived. They started talking. Muhammad Yar convict asked from Zahoor Ahmad Lali, Advocate about him (Malik Muzaffar Abbas PW) when the said Advocate told him that he had arrived to meet Ahmad convict and that was not objectionable matter. Thereafter Zahoor Ahmad Lali asked about the programme for the murder of Sarfraz Lali deceased and warned them that if Saiiraz Lali would not be murdered, none of them should feel secure. On that Muhammad Yar, Ahmad Sher and Manzoor Hussain intimated him about different programmes made by them. Thereafter Zahoor Ahmad Lali,. Advocate told the other persons that oarfraz Lali had to go to the Court of Additional Sessions Judge on 6.7,1991 unarmed and they chalked out the programme to murder him on 6.7.1991. The tea was served and thereafter the aforesaid persons left. them. He continued that he went to the house of Haji Muhammad Sarfraz Lali in Mauza Walla to inform him about the programme chalked out against him unfortunately he had gone out-side. On the next day he went to Chiniot for the aforesaid purpose but Haji, Muhammad Sarfraz Lali had left, the Court after attending the same and later on he came to know at 10.25 a.m., about the murder of Haji Muhammad Sarfraz Lali, Musarrat Abbas and three other persons within the area of Police Station Rabwah. According to him the aforesaid five persons were murdered with the abetment of Zahoor Ahmad Lali, Advocate, Ahmad Sher (both discharged accused) as well as Manzoor Hussain (acquitted accused) and Ahmad (convict). The statement of Ahmad Yar PW-11 was recorded by the Investigating Officer on 7.7.1991 wheh he stated that he carried on the business of sale and purchase of cattle alongwith Abdul Ghani. He was on business terms with Ahmad Sher Bhatti (acquitted accused) son of Sikandar Khan. On 5.7.1991 he went to Ahmad Sher Bhatti (acquitted accused) alongwith Abdul Ghani in the evening and due to the advent of night stayed with him. At 8.00 p.m. Muhammad Yar convict, Barkhurdar alias Barkha proclaimed offender-convict, Muhammad Nawaz Bhatti convict alongwith two other persons arrived in one car. Muhammad Hayat, acquitted accused, Ahmad convict son of Muhammad, Muhammad ' Hayat alias Fauji (proclaimed offender-convict). Khizar Hayat (acquitted accused) son of Rahma arrived there in an other car. Ahmad Sher Bhatti was present in his house who wrs called by Muhammad Nawaz convict. At that time Muhammad Yar convict addressed Ahmad Sher Bhatti (acquitted accused) that the time had arrived to murder Haji Muhammad Sarfraz and others who had given shelter to the persons who had murdered his brother Muhammad fiarfraz and others would be murdered on the next day. The demanded for weapons as promised earlier. Thereafter Ahmad Sher Bhatti went to his house and brought one mouser, one uppish gun, one kalashnikove and on bag wherein perhaps were the cartridges from his house and handed over to Muhammad Yar and others. Thereafter Muhammad Nawaz and Ahmad Yar addressed Muhammad Yar and others that after murdering their enemies what they would do about their enemies? Whereupon they were intimated that thereafter was the turn of their enemies. The prisons left in both the cars. Muhammad Nawaz Bhatti convict and Ahmad Sher went to their house. Much of the night had passed. Earlier in the morning they went to Haji Muhammad Sarfraz in Mauza Walla to inform about the conspiracy hatched against him but they had gone to Chiniot. Thereafter they came to know in Lalian that Haji Muhammad Sarfraz, Musarrat Abbas and their three companions had been murdered in Rabwah. Shamma PW-12 was examined on 9.7.1991 by the Investigating Officer under section 161 of the Code of Criminal Procedure who deposed before him that on the night falling between 5/6.7.1991 he was watering his land in Mauza Khai at. 3.00 a.m. when he saw the light of a car. He was having a lanterin with him. He went, near the car and saw that Muhammad Yar son of Wali and Barkha son of Muhammad each armed with kalashinkove alighted from the car. Three persons remained sitting whom he could not. identify due to darkness. Muhammad Yar and Barkha went to the house of Manzoor after meeting him. He started his work of watering land. After half an hour Muhammad Yar, Barkha and Manzoor arrived back. Muhammad Yar told Manzoor that on the next day was the date of hearing when he must arrived as the work would be done. Thereafter they went away. 10. Dr. Muhammad Sharif Medical Officer Rural Health Centre, Lalian, District Jhang PW-1 conducted the post-mortem examination on the respective deadhodies of Haji Muhammad Sarfraz, Musarrat. Abbas, Zahoor Ahmad, Khizar Hayat and Ahmad Ali Machhi on 6.7.1991. He found seventeen injuries on the person of Musarrat Abbas deceased, twenty two injuries on the person of Khizar Hayat, deceased, nineteen injuries on the person of Zahoor Ahmad deceased eight, injuries on the person of Ahmad Ali Machhi deceased and seventeen injuries on the person of Haji Muhammac Sarfraz deceased. According to him the cause of death was interna haemorrhage and other injuries on each deadbody. He issued respective post-mortem report Exh. PA, Exh. PE, Exh. PF, Exh. PG and Exh. PH ir respect of the aforesaid deceased persons. Mumtaz Hussain PW-5 identifiec the deadbody of his father Khizar Hayat at the time of post-morten examination. Sher Muhammad PW-4 identified the deadbodies of Haj Muhammad Sarfraz, Mnsarrat Abbas, Zahoor Ahmad and Ahmad Al Machhi. 11. Tahir Ahmad alias Tahiri (convict-proclaimed offender) wa arrested on 2.9.1991 while he was sleeping on a Charpai. The kalashinkov P-17 and 15 live bullets P-lS/1-lf) were taken into possession by Younas A' SI vide memo Exh. PN attested by Muhammad Inayat Ullah PW-9. P-17 and P-18/1-15 were sealed into a parcel and handed over to Muhammad Sharif Moharrir/Head Constable PW-14. Ahmad Sher (acquitted accused) son of Sikandar was also arrested while sleeping when pupish gun P-19 alongwith rounds P. 20/1-18 were taken into possession vide, memo Exh. PO attested by Muhammad Inayat Ullah PW-9. Physical remand of Tahir Ahmad alias Tallin (convict-proclaimed offender) was obtained who while under police arrest led to the recovery of rifle P-15 with live cartridges P-16/1-3 from the roof of a mosque situated in grave-yard within the area of Mauza Dawar which was taken into possession vide memo Exh. PM attested by Falaksher PW-8. 12. The sealed parcels were handed over to Khan Muhammad PW-6 who delivered the same in the office of the Chemical Examiner and the Fire Arm Expert. 13. On 17.6.1992 Muhammad Rasheed SI PW-15 arrested Muhammad Nawaz convict. Abid Hussain Shah Sherazi Draftsman PW-2 prepared site-plan Exh. PJ and Exh. PJ/1 on the pointness of the PWs on which the notes and drawings with blank ink are in his hand which have been signed by him and the notes with red ink are in the hand of Younas Ali SI PW-17 signed by him. 14. Muhammad Yar accused was employed in Allied Bank Circle Dffice, Faisalabad who took up the plea of alibi and defence hat he was iresent in his office on 6.7.1991 at 9.00 a.m. while the occurrence took place it a considerable distance of 40 kilometers at Rabwah at 9.30 a.m. In this egard Younas Ali SI PW-17 visited the Circle Office, Allied Bank, Faisalabad m 14.10.1991 and inspected the Attendance Register. He did not give weight o the said plea of alibi. After completing the investigation he submitted the hallan. 15. Tahir Ahmad alias Tahiri accused was arrested on 2.9.1991 /ho, however, absconded afterwards from a hospital. 16. Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and luhammad Hayat alias Fauji became the fugitive of law who did not appear ispite of the proclamations. The trial was started by the trial Court. Syed ttkhar Ali, Advocate was appointed to defend Tahir Ahmad alias Tahiri. liss Tahira Kaleem, Advocate was appointed to defend Barkhurdar alias arkha. Mr. Muhammad Basharat. Ullah Khan, Advocate was appointed to efencl Muhammad Hayat alias Fauji proclaimed offenders. 17! The trial Court charged the accused persons under sections )2/34 Pakistan Penal Code on five counts, 301/109 Pakistan Penal Code id 120-B Pakistan Penal Code. 18. At the trial the aforesaid PWs stood in the witnesses box and ipported the prosecution case. In his cross-examination Dr. Muhammad larif Medical Officer PW-1 stated that all injuries except 4 on the person of Haji Muhammad Sa'rfraz deceased had been caused from the front side. He also deposed about the location of the injuries on the persons of the other deceased. Abid Hussain Sherazi Draftsman PW-2 stated that the car of the PWs was not mentioned in the site-plans prepared by him. He stated that he did not mention the names of all the accused persons except Tahiri accused. Liaquat Ali complainant stated that one Khan was murdered and false case of his murder was registered against his father Haji Muhammad Sarfraz, Musarrat Abbas and others which were under trial. He also mentioned the close relations of the accused persons. He denied the suggestion about his absence from the spot. Sher Muhammad PW-4 admitted about the registration of some cases against, him from 1954 to 1968 but claimed to be a councillor afterwards and stated that he contested the election of Chairmanship of Union Council against Liaquat Ali complainant. Younas Ali Si/Investigating Officer deposed in detail the facts of the investigation. The Assistant District, Attorney tendered in evidence report Exli. PA/1 of the Chemical Examiner and report Exh. PB/1 of the Serologist, according to which the rubber mat and rubber dust were respectively stained with blood and human blood. He also produced report Exh. PC/1 of the Technical Services, Crime Branch Punjab, Lahore making out the positive observation about the use of the crime empties from the kalashinkove. 19. When examined under section 342 of the Code of Criminal Procedure all the accused persons tried by the trial Court stated about their non-participation in the occurrence and claimed to be innocent. All the accused tried by the trial Court did not appear on oath in their respective defence. Muhammad Yar convict-appellant produced the defence evidence. 20. Mr. Atta Ullah Niazi retired DSP DW-1 stated about the investigation of one murder case during the year 1985 against Haji Muhammad Saif raz deceased of this case. Aslam Raza Officer Grade-I, Allied ank DW-2 stated that on 6.7.1991 Muhammad Yar accused remained in the Bank Circle Office, Faisalabad from 9.00 a.m. to 1.00 p.m. as he was employed there. He referred to page 60 of the Attendance Register and produced a photostat of the same as Exh. DP. He stated that the Attendance Register was signed by the Assistance Vice President. In rebuttal he denied the suggestion that the Register was not properly being kept. He added that after page 60 there'was no entiy in the Register as a new Register was maintained. Muhammad Sharif ASI Police Station Lalian DW-3 produced photostat Exh. DQ pertaining to the entries in the Register and Exh. DR pertaining to the cases registered against Shera alias Sher Muhammad son of Lala. In his cross-examination he admitted that the cases against Shera alias Sher Muhammad were registered from 23.4.1954 to 23.6.1968. Muhammad Ismail Constable DW-4 proved Exh. DS, copy of wireless message sent immediately after the occurrence containing the facts of arrival of two cars, the occurrence and the departure of one car to Sargodha . 21. After hearing the parties learned trial Court convicted the aforesaid appellants and the three aforesaid proclaimed offenders as narrated above while Manzoor Ahmad son of Ghulam Hussain, Ahmad Sher son of Sikandar Khan, Muhammad Hayat son of Rahma and Khizar Hayat son of Rahma were acquitted. 22. Feeling aggrieved the aforesaid six appellants who appeared during the trial and were convicted have preferred this appeal which has been resisted by the State as well as by the complainant. We have heard the learned counsel for the parties as well as the learned State Counsel and gone through the record before us. 23. To simplify and make easy this lengthy matter it would be proper to express that the prosecution has projected and led the evidence thereof to establish the following factual and legal aspects to connect the appellants and the proclaimed offenders-convicts with the occurrence: - (a) Evidence with regard to the actual occurrence wherein Muhammad Yar son of Wali Muhammad, Zafar son of Rahma, Yara son of Shahu, Tahir Ahmad alias Tahiri (proclaimed offender) son of Muhammad Yar and Barkhurdar alias Barkha (proclaimed offender) son of Muhammad Yar participated as the assailants. Evidence of abetment of the murders under sections 302/109 Pakistan Penal Code deposed by Malik Muzaffar Abbas PW-13 against, discharged accused namely Zahoor Ahmad Lali, Advocate and Ahmad Sher son of Muhammad Hayat, as well as against acquitted accused Manzoor Hussain son of Ghulam Hussain and appellants Mian Ahmad son of Mian Amir and Muhammad Yar son of Wali Muhammad. (c) Evidence of criminal conspiracy falling under section 120-B Pakistan Penal Code through the statements of Ahmad Yar PW-11 and Shamma PW-12 against Muhammad Yar, Muhammad Nawaz, Ahmad son of Muhammad appellants, Muhammad Hayat. alias Fauji (convict-proclaimed offender) as well as Khizar Hayat and Ahmad Sher (acquitted accused) and the statement of Shmma PW-12 against Muhammad Yar appellant, Barkhurdar o//as Barkha (proclaimed offender-convict) and Manzoor Ahmad acquitted accused. 24. First of all the actual occurrence is analysed and dissected at this appellate stage. The prosecution evidence in this regard rests on the following ingredients: 1. Occular evidence. 2. Medical Evidence. 3. Motive. 4. Recovery of crime empties P-21/1-98 of Kalashinkove and ciime empties P-22/1-22 of mouser taken into possession vide memo Exh. PP, kalashinkove P-17 and bullets P-18/1- 15 recovered from Tahir Ahmad alias Tahiri proclaimed offender at the time of his arrest and rifle P-15 alongwith crime empties P-16/1-3 said to have been recovered at the instance of Tahir Ahmad alias Tahiri proclaimed offender while under police arrest vide memo Exh. PM read with report Exh. PC/1 of the Technical Services Crime Branch, Punjab, Lahore . 5. Taking into possession of blood-stained mats vide memo Exh. PQ, Exh. PR, Exh. PS, Exh. PT and Exh. PU as well as damaged car No. SLC 4141 vide memo Exh. PV wherein the deceased persons were travelling and were murdered. 6. Photographs P-23/1-13 taken into possession vide memo Exh. PY. 25. First of all we take up the occular evidence alongwith the medical evidence. Since the trial Court has placed the reliance upon the same, legally it is for the learned Advocates for the appellants to make doubtful the prosecution case or to establish that the same is false. Learned counsel for the appellants argued that, the following facts are enough to make out that both Liaquat Ali complainant PW-3 and Sher Muhammad PW-4 were not present at the spot and that their testimonies do not merit, to be relied upon:- (i) Only the inmates of one car bearing No. SLC 4141 wherein the deceased persons were sitting was hit while neither car No. LEO 897 was damaged nor its inmates namely Liaquat Ali complainant, PW-3, Sher Muhammad PW-4, Khizar Hayat and Muhammad Khalid PWs (both given up> were injured and that even this car was also not taken into possession. (ii) Both Liaquat Ali PW-3 and Sher Muhammad had no business to go to Chiniot and to return back so as to reach at. the spot as they were not accused of the murder case. (iii) The copy Exh. DS of the log book of wireless Post Saddar Chiniot, District Jhang. Two cars arrived from Chiniot to Rabwah when on one car the firing was effected through Kalashinkove from Toyota Corolla white coloured car whereby five persons were murdered and that the car was going towards Sargodha which may be checked. He maintained that only two cars were there and thus the presence of car No. LEO 897 alongwith its inmates i.e. the eye-witnesses stood eclipsed. (iv) No independent person from the public has been produced to establish the prosecution case. (v) None of the eye-witness namely Liaquat Ali PW-3 and Sher Muhammad PW-4 as well as both the given up PWs attested any memo of recovery after the occurrences. (vi) In the rough site-plan Exh. PZ prepared by the Investigating Officer just after the occurrence at the time of the spot inspection and in the site-plan Exh. PJ prepared on 14.7.1991 by the Draftsman neither the names of the PWs, the assailants/convicts nor the names of the deceased persons are incorporated and indicated. Further presence of both the cars of the complainant party and the car of the assailants have not been shown therein. (vii) The criminal murder case against Haji Muhammad Sarfraz deceased, his son Musarrat Abbas deceased and others was transferred from Chiniot to Jhang by the Lahore High Court, Lahore before 6.7.1991 and in this regard the referred to copy Exh. DO of order dated 27.6.1991 passed by the Additional Sessions Judge, Chiniot and copy Exh. DO/1 of the order passed by the Sessions Judge, Jhang on 6.7.1991. According to him in order dated 27.6.1991 (Exh. DO) learned counsel for the accused persons of that case which included Haji Muhammad Sarfraz deceased and Musarrat Abbas deceased undertook to intimate them and some of the accused persons appeared on 6.7.1991 (on the date of occurrence) before the Sessions Judge, Jhang. He added that there was no occasion for the deceased persons to go to the Court of the Additional Sessions Judge, Chiniot. 26. The aforesaid points i-iii raised in defence by the learned counsel for the appellants need not be given the weight as it has rightly been canvassed by the learned State Counsel as well as by the learned counsel for the complainant that it, is a case of long standing enmity. After tiring upon five persons who died at; the spot within the car and were not even allowed to emerge from the same, it was the natural conduct of the assailants to leave the place immediately. The car of the assailants had crossed the car wherein the eye-witnesses were sitting and after the occurrence of the instance heinous nature particularly when Haji Muhammad Sarfraz and Musarrat Abbas accused of the murder case had lost, their lives there was no occasion for the assailants to fire at the eye-witnesses travelling in car No. LEO 897. It is a matter of common observation and knowledge in our Province that in murder cases wherein the parties have long standing enmity the relatives and other persons accompany both the parties for protection and safeguard. Thus it, matters nothing if PWs 3 and 4 were not facing the trial. No effort has been made to get requisitioned the record from the office of the Registration Officer, Chiniot. situated in front, of the Court of the Additional Sessions Judge, Chiniot. It would have been better for the defence to have requisitioned the record in the matter and in case of non-availability of the record in the matter Sher Muhammad PW-4 could easily be disbelieved. The issuance of wireless message contained in copy Exh. DS is also of no help to the. appellants to make us hold that both the eye-witnesses were not present. This is a message to check the car which had left the place of occurrence towards Sargodha. It was not issued to project that there were only two cars at the spot, one damaged by the assailants who committed the murder of the five inmates and the other wherein the assailants were sitting and had gone to Sargodha. There was no need to mention the third car. With the material on record in the matter the presence of Liaquat Ali and Sher Muhammad sye-witnesses (PWs 3 and 4) stands established and the aforesaid objections raised in the matter have failed to muster the desired effect. 27. So far as the argument of the learned counsel for the appellants that the people from the vicinity have not figured in the witness-box to support the prosecution case, we have to express that during these days such an argument is devoid of legal force. The witnesses in these days generally refrain to join the investigation and to appear as witnesses to give evidence against the offenders by running the risk of their lives at the hands of the accused persons. It is a general reluctance that the people do not want to appear as witnesses. It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted with many on-lookers around while the assassins are allowed to operate without, any hindrance who succeed in making good the escape from the scene without impunity. It is one aspect of the matter. We are in full agreement with the learned counsel for the complainant who laid the emphasis that" the occurrence is not of that type that in any Mohallah or in any village the same took place. It was on the road going from Chiniot to Sargodha that the car of the deceased persons was stopped on the 'Kacha' side of the road and within few minutes the occurrence finished. The presence of any person at the spot at the time of occurrence cannot be expected. Due to the gruesome murder even the persons near the spot must have run away which should be the natural conduct and thus only Liaquat Ali and Sher Muhammad PWs-3 and 4 have rightly been held to be the natural witnesses who saw the occurrence. The non-appearance of any person from the vicinity in the special circumstances of this gruesome occurrence is not all fatal to the prosecution case. 28. The fact that none of the eye-witnesses has attested any memo of recovery at the initial time of investigation is of no legal help to the appellants and has not damaged the prosecution case. It was a gruesome and sensational occurrence wherein five persons lost their lives. The condition of Liaquat Ali complainant PW-3 who is closely related to two deceased persons can well be imagined. Sher Muhammad accompanied the dead-bodies to the mortuary who identified the dead-bodies and after getting recorded his statement before the Police he left to the Rural Health Centre, Lalian. This aspect of the matter has failed to shatter the prosecution case. 29. Now we take \jp rough site-plan Exh. PZ and other site-plan Exh. PJ prepared by Abid Hussain Shah Sherazi Draftsman PW-2. Relying on Mehar Ali and others vs. the State (1968 SCMR 161) it was argued by the learned counsel for the appellants that the omission to indicate in site-plan the position of the eye-witnesses at the time of occurrence would reflect on the possibility of the witnesses not being present at all at the spot at the time of occurrence. We have all the respect of the observations and the aforesaid findings. However, we have to express that afterwards different view has been expressed in the ruling published as Mst. Shamirn Akhtar vs. Fayyaz Akhtar etc. (NLR 1992 Criminal 238). It has been held by the Supreme Court that the site-plan of occurrence is not a substantive piece of evidence. It has been commanded in Ali Sher vs. the State and three others (PLD 1980 Supreme Court 317) that the omission to indicate the position of the eye witnesses in the site-plan would not lead to the inference of such witnesses being not present particularly when the presence of such witnesses at the spot at the time of occurrence is natural in circumstances of case. This ruling was relied upon in the ruling published as Nauroz vs. The State (1986 P.Cr.L.J. 3019 Quetta) wherein it was held that the mere fact that the presence of the witnesses is not, mentioned in the site-plan and the places where they were alleged to be present were not shown in the site-plan would not invalidate their testimony and that, this can be at the most an omission on the part of the Investigating Officer. At this stage I am tempted to express that with the passage of time enormous laxity stands inculcated in the disciplined force of police by its members and it is a clear instance of that nature. It is a pity that, it, is not. being realized by the Police Officers that they have to perform an important dvity. In view of the wealth of the aforesaid case law the fate of a case cannot, be handed over to an Investigating Officer or to a Draftsman who through intentional negligence and laxity may proceed in a recalcitrant manner and the prosecution case is shattered thereof. Such a working can obviously be deprecated being violative of law and against legal ethics as well as Islamic Injunctions. The FIR was promptly lodged and in case the witnesses, the accused and the cars have not been indicated in the site-plan that is of no adverse effect to the prosecution case. We, therefore, discard this assertion adopted by the learned counsel for the appellants. 30. Last objection is about the transfer of the case from the Court of the Additional Sessions Judge, Chiniot to the Court of the Sessions Judge, Jhang by the High Court,. It has been argued by the learned counsel for the appellants that due to the undertaking given by the learned counsel for the deceased persons in the order dated 27.6.1991 (copy Exh. DO) both Haji Muhammad Sarfraz and Musarrat Abbas accused could not, be expected to go to Chiniot on 6.7.1991 as they had to go to the Court of the Sessions Judge, Jhang where their co-accused namely Mumtaz Hussain son of Mahmand Khan. Nawaz and Mumtaz sons of Ghuas Muhammad appeared in the relevant case. It would he a palpable error to agree with him in view of the argument of the learned State Counsel that there is no material on the record to make out that both Haji Muhammad Sarfraz deceased and his son Musarrat Abbas were served for 6.7.1991 for appearance before the Sessions Judge, Jhang. The undertaking given by their learned Advocate in order dated 27.6.1991 (Exh. DO) is net enough in the matter to make out that they had to go to Jhang and not, to Chiniot. Without their service in the matter the 'objection and argument, adopted by the learned counsel for the appellants need not be given the weight especially when during these days the accused persons coin different, ways to effect delay in the conclusion of the trial of murder cases. In view of our long experience in the judicial field it can safely be expressed that in matters in which no work has to be done as in the instant relevant matter due to transfer of the case from Chiniot to Jhang, the matter is taken up early in the morning. Further the sessions cases are taken up after 11.00 a.m. This is the reason that Haji Muhammad Sarfraz and Musarrat Abbas got the information early in the morning at Chiniot and started for their home. It was the month of July, 1991. The occurrence took place at 9.30 a.m. at a short distance from Chiniot. The matter was taken up on 6.7.1991 by the Sessions Judge in routine and due to the occurrence the co-accused had come to know about the murder of Haji Muhammad Sarfraz and his son Musarrat Abbas. As such the transfer of the other relevant case from Chiniot to Jhang in the aforesaid circumstances and with the aforesaid reasoning shall not make the prosecution case weak or non-existent qua the assailants-appellants. 31. Learned counsel for the appellants argued that Liaquat AH PW- 3 is an interested witness being the son and brother of deceased persons namely Haji Muhammad Sarfraz and Musarrat Abbas respectively who as well as Slier Muhammad were the chance witnesses and it is not safe to rely upon their statements. They added that both PW-3 and PW-4 are admittedly inimical towards the appellants and it is not safe to rely upon their statements especially when many criminal cases were registered against PW 4. On the contrary learned State Counsel and learned counsel for the complainant laid the emphasis that in the circumstances of the matter both the eye-witnesses are the natural witnesses and the only fact that the cases were registered and pending earlier between the accused persons on the one side and the eye-witnesses on the other side would not diminish the value of their statements. We do not agree with the learned counsel for the appellants. Legally the testimony of an interested witnesses can sustain conviction if found free from doubt. Independent corroboration cannot at all always be insisted upon as it. may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witnesses have spoken the truth. As held supra the presence of bol fi the I'V\ s at. the spot was natural. Mere enmity due to the registration and pendency of the earlier criminal eases is not fatal. If such an argument is given the weight then in cases of the instant nature if the assailant party has to face the same fate as the deceased persons have met and the witnesses are none else than their relatives such a game can continue and eveiy time the adverse party shall be getting the order of acquittal. We discard this argument and hold that the statements of both the eye-witnesses inspire the confidence. We would be glossing over an important aspect of the matter by expressing that the occurrence took place at 9.30 a.m. during summer season on 6.7.1991. There is no doubt about the initial criminality and identity of the assailants-appellants. The occurrence took place on the highway. The assailants made good their escape. The registration of criminal cases (Exh. DR) against Sher Muhammad PW-4 from 1954 to 1968 would not make him discreditable witness due to lapse of more than two decades when at present he is leading a different life. Hence we believe the prosecution version. 32. The medical evidence has rightly been believed by the trial Court and there is no justification to discard the same as desired by the appellants on the score that the eye-witnesses need not be believed being false. We have already believed the eye-witnesses. The assailants were in the white Toyota Corolla which crossed car No. LEO 897 wherein the PWs were sitting and from the said white Toyota Corolla burst was fired which hit the right eye of Zahoor Ahmad deceased who was driving car No. SLC 4141 wherein the deceased persons were sitting/travelling. The car of the assailants was on the right of car No. SLC 4141 and there is the injury No. 1 on the right eye of Zahoor Ahmad driver as shown by the Medical Officer (PW-1) in the post-mortem report Exh. PG. The number of injuries on the person of each of the five deceased has established that the weapons narrated in the FIR and seen by the eye-witnesses were used during the occurrence. The defence has not been able to make doubtful the statement of he Medical Officer (PW-1) who conducted the post-mortem examination of the five deadbodies! The cumulative effect of the aforesaid state of affairs, analysis of evidence and discussion would be that the trial Court has rightly believed the occular evidence and the medical evidence against the assailants. 33. At this stage learned counsel for Muhammad Yar appellant canvassed about his plea of alibi on the strength of Attendance Register showing the presence of Muhammad Yar in Circle Office, Allied Bank, Faisalabad on 6.7.1991 from 9.00 a.m. to 1.00 p.m., who produced in evidence Exh. DP, photostat of relevant page No. 60. According to him the Register was relevant and admissible under Article 49 of the Qanoon-e- Shahadat Order, 1984 pertaining to relevancy of entiy in public record made in the performance of duty. He argued that before Younas Ali Si/Investigating Officer the plea of alibi was taken up and the same was not an after-thought affair during the trial. He added that it was Saturday on 6.7.1991 and being half-working day Muhammad Yar appellant remained present from 9.00 a.m. to 1.00 p.m. We hold a different view on the basis of the reasoning adopted by the learned trial Court as well as by the learned adverse counsel and that also through the support, of" the statement of Aslam Rana Officer Grade-I, Allied Bank DW-2 in the cross-examination. There is nothing on record to make out that as to why there was no entry on page 60 after the date of 9.7.1991 and why the new Register was maintained. It is pertinent to mention that the Register was checked by Younas Ali SI on 4.10.1991 who made the endorsement against the relevant entiy pertaining to Miihammad Yar appellant. This page could be used during the remaining days of ihe month of July, 1991 i.e., from 10.7.1991 onwards. The aforesaid aspect is enough tc make out that the Attendance Register is of no help to Muhammad Yar accused with respect to the plea of alibi agitated by him. it would not be out of place to express that it is a matter of common knowledge observation that si ch type of Registers are maintained in routine and even the Officers who sot corner towards the subordinates coining late on a day. Further, the Assistant Vice President of the Allied Bank, Circle Office, Faisalabad did not vigure in the witness box who being the competent authority was in a better position to help Muhammad Yar conviction. Thus the non-appearance of the Assistant Vice President has made us to drawn an adverse presumption against Muhammad Yar convict. The plea of alibi, as such, has not been established and has rightly been discarded by the trial Court. MOTIVE. 34. The motive has rightly been given the weight by the trial Court. The canvassing made by the learned counsel for the appellants that the motive Is a double edged weapon and the chance of false accusation cannot be ruled out has failed to touch our sense of appreciation. There is long standing enmity between the parties and it can safely be held that the aforesaid adnv'tted position will prove to be corroborative piece of evidence against the appt%nts. 35. The i ?covery of the crime empties and the kalashinkove with bullets coupled with report Exh. PC/1 of the Technical Services as well as the recovery of the mats supported by the reports of the Chemical Examiner and Serologist have connected the assailants with the occurrence. In this regard learned counsel for the appellants have not been able to point out any material factor to make use discard this ingredient of the prosecution case. 36. As such against the assailants namely Muhammad Yar son of Wali Muhammad Zafar alias Zafar Abbas son of Rahma and Yara son of Shahu (appellants) as well as against Barkhurdar alias Barkha and Tahir Ahmad alias Tahiri both proclaimed offenders-convicts the prosecution has established its case who have rightly been held to be criminally liable in the matter of this gruesome occurrence wherein five persons were murdered. CONVICTION UNDER SECTlQN_3Q2/lQ91Pa 37. In this respect we are in full agreement with learned counsel for the concerned appellants that the solitary statement of Malik Muzaffar Ahbas PW-13 is not enough to make out the alleged abetment against the convicts-appellants especially when the star person about the abatement was Zahoor Ahmad Lali, Advocate who alongwith Ahmad Sher son of Ahmad Hayat was discharged during the investigation. If the statement of Malik Muzaffar Abbas PW-13 has not been given the weight at that initial time there is no justification to hold the attraction of section 302/109 PPC against the aforesaid concerned convicts-appellants. Further, on the same evidence only Mian Ahmad appellant son of Mian Amir has been convicted while Manzoor Ahmad son of Ghularn Hussain was acquitted after fulfledged trial. As expressed above Zahoor Ahmad Lali, Advocate and Ahmad Sher son of Ahmad Hayat who were ascribed the same role were discharged. In view of the aforesaid aspect of the matter we do not agree with the learned State Counsel who argued that. Ahmad appellant son of Amir has rightly been convicted under section 302/109 Pakistan Penal Code. In view of the aforesaid reasoning we hold that the conviction recorded under section 302/109 PPC cannot be sustained and we set-aside the same. CONVICTION UNDER SECTION 120-B PAKISTAN PENAL CODE. 38. About the conviction recorded under section 120-B Pakistan Penal Code that a conspiracy was hatched there are the statements of Ahmad Yar PW-11 and Shamma PW-12. Learned counsel for the concerned convicts has rightly pointed out that Ahmad Yar PW-11 claimed to be present at the relevant time at. the relevant place alongwith Abdul Ghani PW wuo was examined by the police and way given up. Thus Ahmad Yar PW-13 as not been corroborated on the aforesaid fact by any person including Abdul Ghani. His solitaiy statement in the matter has failed to muster the desired effect. The statement of Ahmad Yar was also recorded on 7.7.1991 and not on 6.7.1991 and keeping in view t.he nature of the aforesaid fact it can safely be expressed that he was introduced afterwards and it. was also the reason that Abdul Ghani did not support him as he was not produced. The statement of Shamma PW-12 in the matter is also of the same nature as section 120-B Pakistan Penal Code and set-aside the conviction to that extent. 39. At this stage we would express that Shamma PW did not hear anything about the deceased persons and that is enough to discard his statement as expressed above. However, even though Allah Yar heard about the fact that the conspiracy was hatched in his presence and Malik Muzaffar Abbas PW-13 heard about the abetment, both of them did not inform Haji Muhammad Sarfraz deceased during his life time. They have given the respective explanation that they could not inform as Haji. Muhammad Sarfraz had gone to Chiniot and thereafter they had started from Chiniot. An important aspect to be considered is that Allah Yar PW-11, Shaman PW- 12 and Muzaffar Abbas PW-13 did not inform Liaquat Ali complainant even after the occurrence and before the recording of their statements. They did not inform the Investigating Officer in this regard before recording of their respective statement. We have made a perusal of the police file which is silent in this regard. This missing link in the aforesaid alleged factums of alleged attraction of section 302/109 and section 120-B Pakistan Penal Code has made us to hold that the same were coined and cooked afterwards and is an overdoing on the part of the police officer. The mention of abetment in FIR Exh. PK need not be given the weight as Zahoor Ahmad Lali, Advocte was got discharged during the investigation. In view of the aforesaid reasoning as well, the conviction of the appellants to that extent is liable to be set-aside and we pass an order accordingly. 40. For what has been said above, we dismiss this appeal to the extent, of appellants namely Muhammad Yar son of Wali Muhammad, Yara alias Allah Yar son of Shahu and Zafar alias Zafar Abbas son of Rahma. Keeping in view the number of assailants, who were five, we hold that the assailant appellants are liable under section 302/149 Pakistan Penal Code even though charge under section 148/149 Pakistan Penal Code has not been framed by the trial Court. In view of gruesome occurrence wherein five persons were intentionally murdered by the assailants, we hold that the quantum of punishment against them is justified. 41. However, to the extent of Ahmad son of Muhammad, Mian Ahmad son of Mian Amir and Muhammad Nawaz son of Muhammad Bakhsh we accept this appeal, set-aside the impugned judgment and acquit them. Muhammad Nawaz appellant is present today on hail whose bail bond is cancelled and surety, discharged. The appellants namely Ahmad son of Muhammad and Mian Ahmad son of Mian Amjr shall be set at liberty forthwith, if not required in any other case. (MYFK) Appeal partially allowed.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1606 (DB) Present: abdul hafeez cheema and javaid buttar, JJ. MUHAMMAD ASHRAF-Petitioner versus THE STATE-Respondent Cr. Misc. No. 4285/B of 1996, accepted on 1.12.1996. Bail- S. 497 Cr. P.C.--Bail--Grant of-Prayer forOffence under Ss. 148/149/ 216/324/353- P.P.C. read with S. 13 of Arms Ordinance, 1965, Sections 4/5 of Explosive Substances Act and S. 4-C of Anti-Terrorist Act- Involvement of accused not shown in any other case-No injury has been ascribed to him or to any one of police officials or any other public man-He is in jail since registration of case and does not appear to have been produced before any court so far-Bail allowed. [P. 1607] A Mr. Ijaz Ahmed Chaudhry , Advocate for the Petitioner. Kh . Shaukat All, Advocate for State. order Abdul Hafeez Cheema , J.--Case FIR No. 192/95 was registered at P.S. Sarah, District Sialkot at the instance of Muhammad Yar Inspector/SHO of the Police Station, under sections 324/353/148/149/216 PPC read with section 13 of the Arms Ordinance, XX of 1965, sections 4/5 of the Explosive Substances Act and section 4-C of Anti Terrorist Activities Act, against the petitioner and a few others. 2. The facts of the case, as revealed by the FIR, briefly, are that police received an intelligence report that some Proclaimed Offenders had gathered at the Dera of the petitioner who was serving them with fcod and drinks. A raiding party was constituted by the SHO and raid was accordingly conducted on the aforesaid Dera . On seeing the police party, the P.Os resorted to firing with their Klashinkoves and other weapons. The Police respondent and as a result of exchange of firing, Fahim Ijaz P.O. was killed and the present petitioner was hauld up with his Klashinikove . He is under arrest since registration of the case i.e. 16.12.1995. 3. The bail plea of the petitioner was rejected by the learned presiding Officer of Special Court (STA) vide his order dated 1.9.96. 4. It is submitted by learned counsel for the petitioner that since after his arrest he was not produced before any competent court, as such, his detention is visibly illegal any he should be freed forthwith. It is further pointed out that, in fact it was the petitioner who had informed the police of the arrival of the P.Os who had forcibly came to his Dera and had asked him on gun point to serve them with eatables. He had per force their dictates and the police party without any warning and without any resistance from the victim of this case opened fire and it was with a view to ensure that the petitioner might not lodge any complaint against them for their wanton and uncalled for firing at his Dera that he has been hauld up; that he has been attributed no injury whatsoever to any one. 5. Learned state counsel has, however, opposed the bail on the grounds that he is named in the FIR which was promptly lodged; that special role has been ascribed to him and in case he is released on bail. 6. Arguments have been heard and record perused. Record does not show petitioner's involvement in any other case besides this one. No injury has been ascribed to him to any one of the police officials or any other public man. He is in jail since after the registration of the case and does not appear to have been produced before any court so far. In this view of the matter, we are inclined to admit the petitioner to bail in the sum of Rs . 200,000/- (two lacs ) with two sureties each in the like amount to the satisfaction of the trial court. (TAT) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1607 Present: IFTIKHAR AHMAD CHAUDHRY, J. ABDUL SHAKOOR SAQI-Petitioner Versus STATE-Respondent Cr. Misc. No. 5229/B of 1996, decided on 3.12.1996. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence under S. 295-A P.P.C. & S. 16 Maintenance of Public Order Ordinance, 1960-Language used by accused in his letter found indicative of sloppy reverence to his "Peer" and not derogatory qua Holy Prophet (P.B.U.H.) or Hazrat Ali (May Allah be pleased with him)-Bail allowed. [P. 1608] A Mr. Muhammad Nawaz Mian, Advocate. Mr. Ghulam Akbar Sial, Advocate for State. Ch. Muhammad Hussain Chachhar, Advocate. order Petitioner is accused in case FIR No. 959/96 dated 15.5.1996 under section 295-A PPC and 16 of Maintenance of Public Order Ordinance, registered at P.S., Saddar Jhang. 2. One Umar Daraz reported the matter to police relying upon a letter written by the petitioner to one Syed Sana Ullah Shah and alleged that the petitioner had used derogatory language about Holy Prophet (peace be upon him). The petitioner was arrested and has sought to be released on bail. 3. Learned counsel for the petitioner submitted that the perusal of the letter shows that the petitioner did not use any derogatory language against the Holy Property and as a matter of fact a few lines were read out of context to allege that insolence was caused by the petitioner to Holy personages of Islam and that no offence under section 295-A PPC and section 16 MPO was made out. 4. Learned counsel for the state has candidly supported the plea of the petitioner and submitted that an over-all reading off the letter would reveal that the petitioner had tried to glorify his Peer and otherwise had not used objectionable language. Learned counsel for the complainant, however, submitted that the petitioner is used to employing objectionable dialectic with others and has been a source of trouble in the area and did not deserve concession of bail. 5. Learned counsel for the parties have been heard at length and the material on the basis of which the petitioner is being proceeded against is also seen. No doubt, the letter written by the petitioner is indicative of sloppy reverence qua "Peer" but the same does not appear to he derogatory qua the Holy Prophet (PBUH) or Hazrat AM (May Allah be pleased with him). The petitioner as such is allowed bail in the sum of Rs. 50.000/- with one surety in the like amount to the satisfaction of Judicial/Illaqa Magistrate of Police Station concerned. 6. However, it may be observed that in case the petitioner is found to be employed in irrelevant language against the Holy Personages of Islam, the learned lower court shall be at liberty to recall the bail allowed to the petitioner by this court. (TAF) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1608 Present: sharif hussain bokhari and khalid paul khawaja, JJ. GHULAM HUSSAIN-Petitioner versus STATE-Respondent Crl. Misc. No. 4455-B of 1996, decided on 28.10.1996. Bail-- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for--Offence under Ss. 342/109/ 148/149 P.P.C. read with Section 13 of Arms Ordinance, 1965 and Section 5 of Explosive Substances Act, 1990-Allegation against accused that he abetted commission of offence yet to be established-It is a case of further inquiry-Bail allowed. [P. 1610] A Raja Ijaz Ahmad Khan, Advocate for the Petitioner. Syed Fazal Hussain Jaffri, Advocate for the State. Hakim All, S.I. with record. order Sharif Hussain Bokhari, J.--The petitioner is involved in the case FIR No. 458, dated 7.9.1996, registered at the instance of Mumtaz Ali son of Muhammad Shafi of Peoples Colony, Faisalahad, under sections 324/109/148/149 PPG. Section 13 of the Arms Ordinance, 1965 and Section 5 of the Explosive Substances Act, 1990. The allegations in the FIR are that the alleged occurrence tool place at 8.45 P.M. 6.9.1996, in which 13 persons including the petitioner are involved as accused persons. The petitioner was arrested on 8.9.1996 and is in judicial lock-up. The petitioner applied for bail but the same was refused by the learned judge. Special Court Suppression of Terrorist Activities, Faisalabad, vide order dated 22.9.1996. 2. According to the FIR when the complainant alongwith Sadaqat Ali and his nephew Muhammad Moaza and Muhammad Zikria were, in a .car, going to their house from the office, the accused person, namely, Zohaib armed with Kalashinkov, Dilshad Butt empty handed, Hamad armed with hand grenade and one unknown accused person remedy with pistol came there on two motor-cycles and that in a car. The accused Sohail, Javed Butt armed with Kalashinkove and tow unknown persons armed with pistols, also came there. Sohail Handed over a rocket-launcher to Dilshad Butt who fired two shots from the same towards the complainant and his companions. Hammad accused threw a hand-grenade on them but the same did not explode. The other accused started indiscriminate firing. As result of the rocket-launcher blast the complainant and Sadaqat Ali sustained tow injuries each. 3. We have perused the record produced by Hakim Ali, Sub Inspector and heard Syed Fazal Hussain Jaffri, learned counsel for the state. According to the medical report Mumtaz Ali and Sadaqat Ali have received injuries by blunt weapon. 4. It is alleged in the FIR that the accused have committed this offence at the instigation of Zubair Butt. Khawaja Ghulam Hussain, Khawaja Ramzan and Khawaja Ahmad Hassan. It is not the case of the prosecution that the petitioner was himself present at the spot and in any manner participated in the alleged offence himself. On the contrary the FIR contains the following allegation against the petitioner:- 5. The petitioner has allegedly abetted the offence. However, the case of the alleged a better/conspirator falls on different footings and accordingly the considerations for grant of bail to a better/conspirator are also somewhat different. In this view we are fortified by the following observations of the Hon'ble Supreme Court of Pakistan in "Syed Amanullah Shah versus The State" (PLD 1996 SC 241):- "There can be no two opinions that the case of a conspirator or a better not present on the spot stands at lower footing than the case of the accused instigation his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abutment/investigation/conspiracy/iema; needless to say when parties are inimically dispersed, the possibility of false implication of opponent is very much there." 6. On the basis of the allegations made in the FIR the involvement of the petitioner as an abetter in commission of offence is yet to be established, therefore, the petitioner's case is at least of further inquiry. In A such circumstances, we against get the benefit from the following passage of the aforesaid judgment of the Hon'ble Supreme Court: - "So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such situation, it would be better to keep an accused person on bail then in the jail, during the trial." 7. In the light of the above discussion, we think that the case against the petitioner is that of further inquiry and, therefore, the petitioner against whom allegation of abetment alone. We, therefore, allow him bail subject to his furnishing bail bonds in the sum of Rupees One Lac (Rs. 100,000/-) with one surety in the like amount to the satisfaction of the learned trial court. This petition stands disposed of. (TAF) Petition disposed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1610 Present: raja muhammad khurshid, J. NAZIR AHMAD-Petitioner versus KHALID PERVAIZ etc.-Respondents Crl. Revision No. 349 of 1996, decided on 28.1.1997. Bail- -S. 540 read with Article 3 of Qanoon-e-Shahadat Order, 1984-Child witness-Injured during occurrence hut was not fit to make a statement soon after occurrenceShe recovered late onWhether Mst. M. should be allowed to be examined as a court witnesses in view of provisions contained in section 540 Cr. P.C. read with Article 3 of Qanoon-e- Shahadat Order, 1984-Held : Request made at a belated stage would not take away jurisdiction nor would adversely effect discretion to be exercised judicially by the court-Mere fact that police did not cite her as a witnesses does not take a>vay power of court to examine any person u/s 540 Cr. P.C. which car. be exercised in appropriate cases. [Pp. 1612 & 1613] A fh ^'zitiam Murtaza Khan, Advocate for the Petitioner. Mr. Mazhnr Iqbat Shandu, Advocate for the Complainant. Syed Fazat Hussain Jafer, Advocate for the State. order This criminal revision directed against order dated 15.10.1996 passed by the learned Additional Sessions Judge, Sheikhupura whereby he dismissed application under section 540 Cr.P.C. moved by the complainant for summoning Musarrat Bibi a girl of about 10 years of age. The learned Additional Sessions Judge while disir.ssing the application observed that Mst. Musarrat Bibi was hardly about 8 /ears of age at the time of occurrence and perhaps due to that reason. Police: did not record her statement under section 161 Cr.P.C. that the complainv applied for examining the witness after the lapse of more than three years as a court witness which if examined may cause prejudice to any of the partie 3. Finally it was held that it was not safe or necessary to examine Mst. Musarrat Bibi for fair disposal of the instant case. '2. ilie order of the learned Addi ional Sessions Judge is challenged on the ground that mother and brothers of aforesaid Musarrat Bibi were murdered during the night of occurrence, vl;ile she was also injured during the transaction alongwith her another brot her Muhammad Nadim. It was, therefore, submitted that the evidence of M t. Musarrat Bibi was necessary to bring her version about the occurrence on record. It was further submitted that the learned trial court did ct take care to satisfy itself whether Mst. Musarrat Bibi though a child w, ness was competent enough to enter the witness box to testify about the facts of the case as required by Article 3 of Qanoon-e-Shahadat Order 1984. It was urged that the learned trial court should have examined the aforesaid young girl Mst. Musarrat Bibi in order to assess her competence to testify by putting her questions as to whether who could give rational answers to those questions. how r ever. nothing of this sort was done and the request for examining her as a court witness was rejected straightway. 3. The learned counsel for the defence opposed the petition on the ground that examination of Mst. Musarrat Bibi was neither useful nor ne cessary because she was also injured and was not fit to make a statement at the relevant time. Hence her name was not included in this list of witnesses. 4. I have considered the foregoing submissions and find that name of Mst. Musarrat Bibi is mentioned in the F.I.R. and she was also injured during the occurrence. Her presence thereof, cannot be doubted in any manner. The mere fact that she was unable to make statement soon after the occurrence on account of her njuries would not dis-entitle her to make he statement whenever she was fit to testify. It appears that the investigating Officer acted with negligence not to ascertain at a subsequent time to find out whether Mst. Musarrat Bibi was fit enough to make the statement or that she was a competent person to testify bout the occurrence, although she was of very young age. It was the duty of the Investigating Officer to put her questions after she had become fit to make the statement in order to assess whether she was competent witness to enter the witness box. However, no such attempt was made. The question would, therefore whether Mst. Musarrat Bibi should be allowed to be examined as a court witness in view of the provisions contained in section 540 Cr.P.C. read with Article 3 of Qanoon-e-Shahadat Order, 1984. The former section gives wide powers to the court to examine any person if it is felt that the examination of such person shall advance the interest of justice. The mere fact that the name of such person did not occur in the list of witnesses would not prevent the court to exercise the foresaid legal jurisdiction. Similarly the request for examination made at a belated stage would not take away the aforesaid jurisdiction nor would adversely effect the discretion to be exercised judicially by the court concerned. There is no doubt about it that Mst. Musarrat Bibi was a veiy young girl at the time of occurrence but that buy itself would not ipso facto render her incapable to become a witness though Article 3 of the order aforementioned says that all persons shall be competent to testify unless the court considers that they were prevented from understanding questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Since the learned trial court did not take into account the provisions of he aforesaid Article while deciding whether the witness be examined or not, therefore, the impugned order is not sustainable in the eye of law. The mere fact that police id not cite her as a witness does not take away the power of the court t.o examine any person under section 540 Cr.P.C. which can be exercised in appropriate cases. In the instant case though Mst. Musarrat Bibi is not mentioned in the list of witnesses, but her name figures in the FIR and also in the report under section 173 Cr.P.C. submitted to the court. She was also medically examined and her medicolegal report shows that she suffered 8 injuries during the occurrence. In such a situation and being an inmate of the house where the occurrence took place, she is most important witness to be examined at the trial and her examination would definitely advance the interest of justice. 5. The impugned order is set aside and this petition is accepted. It is directed that trial court shall examine Mst. Musarrat Bibi in the light of the provisions contained in Article 3 of the Qanoon-e-Shahadat Order, 1984 to make an assessment whether she is competent witness being possessed with faculty of answering the questions put to her in a rational manner. If the court comes to the conclusion that the aforesaid witness can give rational answers to the questions put to her and that she is otherwise competent witness to testify, then she shall be examined as a court witness under the provisions of Section 540 Cr.P.C. The parties are directed to appear before the learned trial court on 16.2.1997 (TAF) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr.C. (Lahore) 1613 Present: MIAN NAZIR AKHTAR, J. MAZHAR ABBAS-Petitioner versus THE STATE-Respondent Crl. Misc. No. 548-B of 1997, decided on 3.3.1996. Bail- -S. 497(2) Cr. P.C.-Bail-Grant of-Prayer for-Offence of Qutali-amad as defined in S. 308 PPC committed by a minor who was of 13 years at the time of commission of offence-Question of age to be determined at trial- Case of further inquiry-Bail allowed. [P. 1616] B Pakistan Penal Code, 1860 (XLV of 1860)-- S. 299(a>-Adult-Meaning--Adult means person who has attained the age of 18 years within the meaning of this section. [P. 1615] B Sycd Ihtasham Qadir. Advocate for the Petitioner. Cli. Kiaz HuKsain, Advocate for the State. ordkh Maxhar ALbax PHiti,,; Mazhar Hussain in the FIR) bcoks Lai 1 in umi three others vide FIR No. 273 dated 26.7.1996 for offences U/S 302/34/452 of the CPC at P.S. Kot Moman, District Sargodha. 2. According to the allegations made in the FIR, the petitioner was armed with a gun, forcibly entered the complainant's house alongwith the co-accused and fired at Safdar Hussain causing injuries on his right flank who died at the spot. He also gave injuries to Mst. Sardaran Bibi with the butt of the gun. Ammer co-accused fired at Akhtar Hussain, as a result of which, he also died at the spot. 3. The petitioner's learned counsel contends that as per the fi dings recorded by the DSP vide Zimini dated 20.11.1996, the petitioner was not armed and did not cause any injury to anybody; that the petitioner was about 13 years old at the time of commission of the offence; that even in case of conviction, he can be sentenced to payment of Diyat alone and that the case is one of further inquiry. On the other hand, learned state counsel opposes bail on the ground that the petitioner has been named in the FIR; that a specific role has been attributed to him: that, he iired at Safdar Hussain, as a result of which he died at the spot and that the petitioner as per the police record is 16 years old. 4. As regards the finding recorded by the DSP in favour of the petitioner that he was neither armed nor caused injuries to any body does not appear to be based on sound material. He has primarily based his opinion on failure of the complainant party to state on oath or Qasam/Niyan that the petitioner was amied and had fired at Safdar Hussain and had also given butt blows to Mst. Sardaraii. ^Hs mode of investigation and recording of a finding in favour of an accused person wa' deprecated by this court in a number of cases but the investigating officer are blindly resorting to the same method. The conventional mode of Qasam/Niyan may b° helpful only for moral certainty regarding participation or non-participatiou of the accused in the occurrence but cannot form the sole basis for a finding of guilt or innocence in his favour unless substantiated by some other evidence on the record. In the present case, the finding recorded by the DSP does not seem to be based on any sound material and cannot be preferred over the eye witness account furnished by Muhammad Sharif, complainant. Mst. Sardaran, Muhammad Akram, Abrar and Baqar Khan, therefore, the petitioner cannot take advantage of the finding of innocence recorded by the DSP in his favour. 5. The second contention raised by the petitioner's learned counsel that the petitioner is entitled to bail on the ground of minority appears to have weight. As per the petitioner's school leaving certificate his date of birth is 21.7.1983. Counted from the said date. His age at the time of occurrence (which took place on 26.7.1996) was 13 years and 5 days. The school levying certificate was issued on 30.3.1991, long before the present occurrence and can be relied upon. 6. By virtue of the provisions of Section 306 of the PPC Qatle-e- Amad is not liable to Qisas in the following three cases:- (a) When an offender is minor or insane: Provided that, where a person liable to qisas associates with himself in the commission of the offence with a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas; (b) When an offender causes death off his child or grand child, how low-so-ever; and (c) When any wall of the victim is a direct descendant, how low-so-ever, of the offender" Under section 299(1) of the PPC a "Minor" means a person who is not an "adult". The definition of "adult" originally contained in Qisas and Diyat Ordinance (Ordinance VII of 1990), enforced on 5.9.1990, was as ' under:- "Adult means a person, being a male who has attained the age of 18 years, or being a female the age of 16 years, or has _ attained puberty whichever is earlier." The above definition remained unchanged in there subsequent Ordinances i.e. Ordinance No. 1 of 1991, enforced on 4.1.1991 (PLD 1991 Central) Statutes page 208). Ordinance No. XVIII of 1991, enforced on 27.4.1991 (PLD 1991 Central Statutes page 277), Ordinance No. XXX of 1991, enforced on 24.8.1991 (PLD 1991 Central Statutes page 521). The last mentioned Ordinance, lapsed and was substitute by Ordinance No. IV of 9112, enforced on 22.4.1992 (PLD 1992 Central Statutes page 176). For the first time the definition of the word "adult" under section 2899(a) of the PPC t "~ - - was modified as under:- "Adult means a person who has attained the age of 18 years." Thus the remaining part of the definition embodied in the original Ordinance VII of 1990 and the subsequent three Ordinances was omitted. The new definition of "adult" remained unchanged in the following Ordinances enforced from time to time:- "Ordinance X of 1992, enforced on 30.7.1992 (PLD 1992 Central Statutes 262). Ordinance XVII of 1992 enforced on 19.11.1992 (PLD 1993 Central Statutes 70) Ordinance IV 1993 enforced on 17.3.1993 (PLD 1993 Central Statutes 226). Ordinance XII of 1993, enforced on 15.7.1993 (PLD 1993 Central Statutes 334). Ordinance XXXIX of 1993, enforced on 10.11.1993 (PLD 1994 Central Statutes 27). Ordinance XVII of 1994, enforced on 8.3.1994 (PLD 1994 Central Statutes 229). Ordinance LXIII of 1994, enforced on 25.10.1994 (PLD 1995 Central Statutes 175). Ordinance LVI of 1995. enforced on 31.5.1995 (PLD 1996 Central Statutes age 387). Ordinance XCIX of 1995. enforced on 12.9.1995 (PLD 1996 Central Statutes 798). Ordinance V of 1996, enforced on 11.1.1996 (PLD 1996 Central Statutes 965). Ordinance LII of 1996, enforced on 2.5.1996 (PLD 1996 Central Statutes 1391). Ordinance LXXX of 1996, enforced on 12.8.1996 (PLD 1996 Central Statutes 1870). 6. In the present case the occurrence had taken palce on 26.7.1996 when Ordinance No. LII of 1996 held the field. Therefore, the question of the petitioner's penal liability and the sentence had to be determined on the basis of provisions of sections 299, 302, 306 and 308 of the said Ordinance. 7. As per the School Leaving Certificate the petitioner was 13 years old at the time of commission of the offence. Hence he was a minor under section 299(1) read with S. 299(a) of the PPC. By virtue of S. 306 of the Penal Code the petitioner being a minor was to liable to Qisas for Qatle-e-Amad. However, he can be awarded imprisonment for a period of 14 years after a finding by the trial court that he had attained sufficient maturity and was able to realise the consequences of his act. It is so provided under the second priviso to section 308 of the Code which reads as under:- "Provided further that where at the time of committing qatle-e-Amad the' offender being a minor, had attained sufficient maturity or being insane, had a lucid internal, so as to be able to realise the consequences of his act, he may also be punished with imprisonment for either description for a term which may extend to fourteen years as tazir." The question whether the petitioner had attained sufficient maturity at the relevant time is a question of fact which can be suitably determined by the trial court after recording evidence. Therefore, the matter qua the petitioner's guilt in the light of tin- second proviso to section 308 of the code requires further probe and inquiiy. Hence, at this stage the petitioner deserves concession of bail under the provisions of section 497(2) of the Cr.P.C. in this connection I am t'nri.itied bv a Full Bench Judgment of this court in the case of Muhammad Ashraf vs. The State (PLD 1991 Lahroe 347). Prima facie, on a finding of guilt for Qatle-e-Amd, the petitioner can be awarded the sentence of payment of Diyat as laid down under section 308 of the PPC therefore, the offence will not fall under the prohibition of section 497 of the Cr.P.C. This view finds support from the judgment in the case of Usman Ali vs. The State (1996 P.Cr.L.J. 166) passed by my learned brother Muhammad Aqil Mirza, J. The relevant part of the judgment read as under:- "Respectfully following the dictum laid down in the aforequoted judgment of the Supreme Court. I am of the view that the petitioner in the present case being 16 years and a few months of age is a minor and he cannot be awarded capital punishment. Whether or not he had attained sufficient maturity so as to be able to understand the consequences of his act and thus liable to Ta'zir, is a matter of further inquiry which shall be decided by the trial court after recording the evidence at the trial. Therefore, his case does not fall within the mischief of the prohibitory clause of section 497 Cr.P.C. Till such time that it is held that he was sufficiently mature to understand the consequence of his act and hence liable to Ta'zir, he will be deemed to be liable to the punishment of Diyat only." 8. For the foregoing discussion the petition is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- (rupees fifty thousand) with two sureties, each in the like amount to the satisfaction of Judicial Magistrate, Bhalwal. (TAF) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Lahore ) 1617 Present: muhammad naseem chaudhri, J. MUHAMMAD SIDDIQUE-Petitioner versus ABDUL WAKEEL and another-Respondents Crl . Misc. No. 5726/BC o 1996, decided on 18.2.1997. Bail Cancellation of-- -S. 497 (5) Cr. P.C.--Bail-Cancellation of-Prayer for-In case an accused is admitted to bail on the ground of ailment his bail cannot be cancelled afterwards even in case he has recovered after treatment unless there are other circumstances, viz. that accused has misused concession of bail, becomes fugitive of law etc. [P. 1618] A Ch. Ghulam Murtaza Khan, Advocate for Petitioner. Ch. Muhammad Azam Bhaur , Advocate for Respondent No. 1. Syed Saeed Ahmad Tirmizi , Advocate for the State. judgment Muhammad Siddique petitioner got recorded FIR No. 142 dated 25.7.1995 at Police Station Wahndo , District Gujranwala under sections 302/324/148/149 PPC with the allegation that Abdul Wakil respondent No. I/accused fired at his wife Mst . Sughran Bibi with a gun who expired and also made the murderous assault on Muhammad Iqbal while his eight coaccused also accompanied him who roited after forming an unlawful assembly. The cause of occurrence is stated to be the return of some loan amount. Abdul Wakil petitioner was admitted to bail vide order dated 12.9.1992 on the ground of sickness as he was held by the Medical Officer to have fallen a victim to 'hernia' and required surgery. The petition filed before the Additional Sessions Judge for the cancellation of the bail was dismissed. Hence this petition with the same desire. 2. I have heard the learned counsel for the parties as well as learned state counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that a false and factitious certificate was issued by the Jail Medical Officer. This aspect of the matter need not be given the weight as Abdul Wakil Petitioner after this release on bail, was admitted on 7.10.1996 in DHQ Hospital , Gujranwala who was operated upon on 9.10.1996. Learned, counsel for respondent No. I/accused has rightly pointed out that due to the aforesaid operation of Abdul Wakil accused the order about his admission to bail on medical ground was justified. He also rightly expressed that in case an accused is admitted to bail on the ground of ailment his bail cannot be cancelled after wards even in case he has recovered after treatment unless there are other circumstance (s), viz. that the accused has issued the threats, misused the concession of bail, become fugitive of law etc. etc. in the instant matter no such assertion has been made in the application under disposal for the cancellation of bail allowed to Abdul Wakil respondent No. I/accused. The present position is that the copies of the documents mentioned under section 265-C Criminal Procedure Code have been delivered to the accused and the trial has commenced. Hence in such a state of affairs it would not be proper to cancel the bail allowed to Abdul Wakil respondent No. 1. 3. Finding no force in this petition I dismiss the same. (TAF) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C. (Peshawar) 1619 Present: JAWAID NAWAZ KHAN GANDAPUR, J. BAHISTI KHAN--Petitioner versus THE STATE-Respondent Cr. Appeal No. 190 of 1996, decided on 15.4.1997. Criminal Procedure Code, 1898 (V of 1898)-- -S. 103-Recoveiy of illicit arm duly supported by evidence-Although witness of recovery memo admitted that no elder from locality was associated during recovery yet as nothing was brought on record to show that he was biased witnessTestimony of P.W. 2 in the circumstances, cannot be discarded. [P. 1621] A Mr. Saeed Baig, Advocate for the Appellant. Mr. Sohail Akhtar, Advocate for the Respondent. judgment On 10.9.1995 the Police Party headed by Mr. Amatullah, I.H.C. Police Station, Thall (PW. 1) was on gasht of the Ilaqa. At about 11.15 hours a Flying couch coming from Miran Shah side was stopped by it for checking purposes. The appellant, Bahisti Khan armed with a rifle (7.62 bore), sitting in the said vehicle was deboarded. On demand he failed to produce any licence/permit to show that he was in lawful possession of the same. He was accordingly apprehended. The rifle alongwith magazine containing 25 rounds, was taken into possession vide. Recovery Memo: Ex. P.C. The murasila (Ex. P.A./l) was scribed which was dispatched to the Police Station were FIR (Ex. P.A) was registered on its basis. 2. After conducting the usual police investigation complete challan against the appellant was submitted in the trial court. In order to prove its case the Prosecution produced as many as three P.Ws. The statement of the appellant was recorded U/S 342 Cr.P.C. wherein he stated that he was innocent and falsely charged. He refused to be examined as his own witness and to produce any evidence in the his defence. 3. After the conclusion of the trial the appellant was found guilty and thus convicted U/S 13 Arms Ordinance and sentenced to undergo 3 years R.I. He was also sentenced to pay a fine of Rs. 5,000/- or in default hereto to undergo further R.I. for 6 months. Case property was confiscated in favour of the state. 4. Aggrieved by the said verdict of the trial court, the appellantcaused has come to this court for the redress of his grievance by filling this appeal. 5. Mr. Saeed Baig, advocate, learned counsel for the appellant and Mr. Suhail Akhtar, Advocate, learned counsel for the State present and heard. Record of the case perused. 6. According to the learned counsel for the appellant, the appellant was innocent and had been falsely implicated in the present case. He further contended that it was for this reason that no independent witness was produced though, according to the prosecution, quite a few persons were available at the time of the recovery. He submitted that in the circumstances the Police Party had violated the mandatory provisions of section 103 Cr.P.C. and, therefore, the recovery was illegal and could not be made the basis conviction. The learned counsel for the appellant, therefore, prayed that by accepting this appeal the judgment recorded by the judge, Special Court. Hangu be set aside and that the appellant be acquitted. 7. On the other hand, the learned counsel for the State contended that the question of complying with the provisions of section 103 Cr.P.C. did not arise in the circumstances of the case because the appellant was found during the time when the Police party was on gasht. He stated that the appellant has failed to bring on record any material to suggest, even remately, that the Police official had any enmity or ill will towards him which prompted them to involved him falsely in the present case. He stated that the appeal was without any substance and serves dismissal. 8. It may be stated at the out-set that the fate of this case hinges on the testimony of P.W. Amatullah I.H.C. Police Station, Thall. When in the witness-box he stated, on oath, that he handed the Police party which was on gasht of the Ilaqa.on 10.9.1995. He stated that during the "Gasht" a Flying couch, on it way from Miran Shah, was stopped for checking the smuggling o arms. The appellant was found sitting in it duly armed with a Kalashinkov. He was debarred from the Flying couch and was required to show that the was in lawful possession of the weapon in question by providing valid licence/permit. Since the appellant did not have nay licence/permit for keeping the Kalashinkov, therefore, he was arrested. According to him it was he who had prepared Recovery memo. Ex. P.C. and took the rifle, alongwith magazine and rounds into his possession, that thereafter he scribed the murasila (Ex. P.A/1) and sent the same to the Police Station where the present case registered vide. FIR (Ex. PA) recorded by P.W. 3 Lai Farid. ASI Police Station. Thall. He further contended that he then carried out the Investigation of the case and recorded the statements of the appellant as well as the P.Ws U/S 161 Cr.P.C., that the Kalashinkov and ammunition was also dispatched for the Expert opinion. Vide, his application Ex. P.K., that according to the result, (Ex. P.K./l) the Kalashinkov was of foreign origin. He further stated that on completion of the investigation he submitted that case file to the SHO, concerned. 9. P.W. 1 was thoroughly cross-examined. However nothing could be brought on record to suggest that he had any enmity/enmosity or ill-will towards the appellant which promoted him to implicate the appellant in the present case falsely. No reason exists and none indeed has been made out to establish that P.W. 1 had planted the Kalashinkov (an expansive weapon of foreign origin) on the appellant, especially when he had no apparent motive to do so. P.W. 1, however, admitted that he had not prepared the site-plan and that the murasila (Ex. P.A/1) was silent in respect of the name of the D.F.C. who took the same to the Police Station for the registration of the case. 10. Having gone through the testimony of P.W 1, I am of the view that it stands un-shattered. 11. Muhammad Iqbal, N. 1400, Police Station, Thall was examined as P.W. 2. He stated, on oath, that he had witnessed the Recovery Memo. (Ex. P.C.) vide: which the I.O. (P.W. 1) had recovered the Kalashinkov alongwith a magazine, having 25 rounds in it, from the possession of the appellant. According to him the Recovery Memo, was correct and was correctly signed by him. This witness was also cross-examined. In his crossexamination he admitted that no elder from the locality was associated to witness the recovery. In cross-examination he stated that he had signed the Recovery Memo as its marginal witness after it was prepared by the I.O. (P.W. 1). The contention of the appellant's counsel that P.W. 2 was not a truthful witness has no force inasmuch as nothing was brought on ecord to show that he was a biased witness. The testimony of P.W. 2 in the circumstances, cannot be dis-carded. 12. Lai Farid ASI Police Station Thall deposed as P.W. 3 According to him after the receipt of the murasila Ex. P.A/1 he register the Fir Copy Ex. P.A. which was correct and correctly bore his signature. In his crossexamination nothing was brought on record to suggest that he was not a truthful witness. 13. After having gone through the evidence produced by the prosecution, in minute detail, we are of the considered view that the Prosecution had proved its case against the appellant beyond reasonable oubt. We therefore hold that the appellant was rightly convicted/sentenced by the Addl. Sessions Judge/Judge Special Court , Hangu. 14. This appeal is without any substance and is accordingly dismissed. (AAJS) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr.C . ( Peshawar ) 1622 Present: malik hamid saeed, J. Mst . TAIBA BIBI-Petitioner versus ABDUL LATIF-Respondent Criminal Misc. B.C. No. 109 of 1996, accepted on 26.6.1997. Bail- Canellation of-- -S. 497(5) Cr. P.C.--Bail-Cancellation of-Prayer for-Offence U/s. 302/34- PPCMedical evidence is in line with version given by complainant who is a solitary' witness of incident-There is no enmity between parties and after commission of crime, accused/respondents had gone into hiding for an unexplained sufficient period-Delay per se in lodging report, if any, is immaterial in given circumstances and there exist sufficient ground for believing that accused/respondents are guilty for commission of crime- Discretion exercised in their favour by allowing bail to them is arbitrary, fanciful and liable to be interfered with. [Pp 1622 & 1623] A Mr. Muhammad Karim Anjum , Advocate for the Petitioner. S. Zafar Abbas Zaidi , Advocate for the Respondent. Mr. Shaukat Hayat Khan, Advocate for the State. judgment Mst . Taiba Bibi through this application filed under Section 497(5) Cr.P.C . seeks the Cancellation of bail granted to the accused/respondents No. 1 & 2 in case FIR No 17, dated 1.2.1996 registered at Police Station Mulazai , under Sections 302/34 PPC by the learned Sessions Judge, Tank (Camp at D.I. Khan) on 21.4.1996. 2. According to the FIR on the eventful day the complainant alongwith her husband was present in her house when for outside someone called to come out, upon which no sooner her husband opened the door, she heard a report of fire shot with which her husband was hit. When she rushed to him she saw accused/respondents armed with Kalashinkoves coming towards her husband for more offering at him. On reaching him, her husband breathed his last. The motive was stated to be a land dispute. 3. The learned counsel for the petitioner vehemently argued that the petitioner vehemently argued that the accused-respondents were directly charged for the offence committed in a hroad day light and they remained fugitive from law for sufficient unexplained period. The accused/respondent Amin Shah is the real brother of deceased Amanullah and question of false . charge does not arise at all. From the spot 13 empties of 7.62 bore were recovered out of which one spent bullet from the wall in firing range and another spent bullet from the court-yard of deceased's house were found. According to Postmortem report, the deceased had sustained two injuries with corresponding exit wounds and the medical evidence is thus in conformity with the contents of the FIR. It was argued that the inordinate delay in lodging the report was, therefore, immaterial in the given circumstances. He went on to argue that the grounds which prevailed with the learned Sessions Judge in allowing bail to the accused/respondents, are flimsy as complainant is widow of the deceased having no enmity with the accused-respondents nor it was ever alleged by the accused side and hence the question of consultation and deliberation would not arise because if it were so, then some eyewitnesses to the occurrence would have been cited and the report would have been lodged in some different manner. The supplementary statement of the widow/complainant was recorded on the same day of the occurrence wherein she stated that there is no male member in her house which is situated at a distance from the village where she had gone to inform the relatives of the deceased about the occurrence and there after the complainant went to Police Station in the company of relatives which obviously consumed sometime in arranging vehicle etc. 4. As per site plan the house of the deceased is situated at a distance of 1-1/2 Furlong for the village. The contention of the learned Sessions Judge that as per Postmortem report the stomach of the deceased was shown healthy which he termed as empty is irrelevant at this stage being pre-mature : Besides, as the Kalashnikoves have been used in the commission of offence therefore, the offence falls within the ambit of Special Court and the learned Judge below was required to have dealt with the petition for bail in his capacity as special judge but the impugned order shows that he has signed the same as Sessions Judge, Tank (Camp at D.I. Khan) which is also illegal under the Suppression of Terrorist Activities Act, 1975. Reliance in this respect can be placed on cases reported in 1996 SCMR 1023, NLR 1993 (Cr.) 232 & 490 and NLR 1996 (Cr.) Peshawar 298(D). 5. The learned counsel for the accused/respondents supported the impugned order of the learned Sessions Judge, Tank (Camp at D.I. Khan) while the learned counsel for the State opposed the same. 6. I have anxiously considered the arguments advanced at the bar by either side and thoroughly scanned the record with their valuable assistance. 7. I do agree with the submissions made by the learned counsel for the petitioner that the grounds which prevailed with the learned Sessions Judge/Special Judge Tank (Camp at D.I. Khan) in allowing bail to the accused/respondents are based on erroneous considerations. The accused/respondents are directly charged in broad day light occurrence and accused/respondent Amin Shah is the real brother of deceased Amanullah . The medical evidence is in line with the evasion given by the complainant who is a solitary witness of the incident. There is no enmity between the parties and after commission of the crime, the accused/respondents had gone into hinging for an explained sufficient period. The delay per se in loading the report, if any, is immaterial in the given circumstances and there exist sufficient grounds for believing that the accused/respondents are guilty for the commission of the crime. The discretion exercised in their favour by allowing bail to them is arbitrary, fanciful and liable to be interfered with. 8. Accordingly this application is accepted and the bail granted to the accused/respondents by the learned Sessions Judge. Tank (Camp at D.I. Khan) per his order dated 21.4.1996 is recalled. They are present in court, taken into custody and sent to judicial lock-up to await their trial as undertrial prisoner. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1624 [Rawalpindi Bench] Present -. raja muhammad khurshid, J. MUHAMMAD SIDDlQUE-Appellant versus TARIQ MAHMOOD ALAM KHAN ETC.-Respondents Criminal Misc. No. 959/B-C of 1996, dismissed on 5-3-1997. Bail-Cancellation of-- -S. 497(5) Cr. P.C.-Bail-Cancellation of-Prayer for-Offence U/s. 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance 1979-Age ol abductee 20 years Nikah & validity of registered Nikahnama not disputed-Case of further inquiry-Order of granting bail did not suffer from any patent illegality nor found perverse or arbitrary-Cancellation refused. [P. 1625] A Mr. Muhammad Amin Jan, Advocate for the Petitioner. Mr. Sana Ullah Zahid, Advocate for the Respondents. Mr. Amjad Hameed Ghauri, Advocate for the State. order A case under section 10/11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against respondents Nos. 1 to 3 and two others vide FIR No. 181 dated 3,10.1996 at. Police Station, Secretariat, Islamabad for the abduction of Mst. Shabana Siddique a daughter of the petitioner. 2. The aforesaid respondents applied for pre-arrest bail which was granted by Mr. Baqar Ali Rana, learned Additional Sessions Judge, Islamabad Vide his order dated 17.10.1996 on the ground thatMst. Shabana aforesaid and the principal accused Tariq Mahmood claimed to have married vide a registered Nikah Deed. 3. This petition is moved with the prayer that pre-arrest bail granted to the respondents be cancelled because they could not be admitted to anticipatory bail only because it was a case of further inquiry. In this connection, it was urged that investigation should have been allowed to take its usual course, so that the validity or otherwise of the Nikah claimed by the espouses should have also been investigated and considered on its merits. 4. The petition was opposed by the respondents on the ground that since a valid Nikah was claimed by the spouses, therefore, there was no ground to recall the bail granted to them by the learned Additional Sessions Judge, Islamabad. 5. I have considered the foregoing contentions raised at the Bar. The abductee had filed an affidavit in which she had sworn that she was not abducted by the respondents and that before any sexual intercourse could take place between her and the principal accused Tariq Mahmood they were validly married vide a registered Nikah Deed. According to the record her aged is bout 20 years, and prima facie, she is sui juris to enter into any contract of marriage. The authenticity of the nikah Deed was also investigated and the Investigating Officer had come to the conclusion that it was a genuine document, but the complainant side was adamant that Nikah was invalid as it had taken place without participation of a Wali from the side of bride. 6. In view of the above situation, it has rightly been observed by the learned Additional Sessions Judge that it was a case of further inquiry. The impugned order does not suffer from any patent illegality nor it is perverse or arbitrary. This petition is therefore, dismissed. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1626 Present: SH. MUHAMMAD ZUBAIR, J. JAVED-Petitioner versus THE STATE-Respondent Criminal Misc. No. 5957/B of 1996, dismissed on 26-3-1997. Bail- -S. 497(1) Cr.P.C.-Prohibitory claufee-Bail-Grant of-prayer for-Offence under S. 302, 324, 353, 34 PPC-Bail sought on ground inter alia that the accused not named in FIR at time it was lodged but subsequently he was named as accused as such accused was entitled to bail-Held: Petitioner is a nominated accused in FIR on the basis of information divulged to complainant by co-accused--According to FIR petitioner and co-accused opened fire to police partyHence in the presence to this material there exist reasonable ground to believe that petitioner is involved in a case which falls within prohibitory clause of S. 497(1) Cr.P.C.-Bail refused. [P. 1627] A Mr. M. S. Shad, Advocate for the Petitioner. Mr. A.H. Masood, Advocate for the State. order The petitioner, who is involved in a case under Sections 302/324/332/353/34 PPC and 13/20/65 A.O. Arising out of FIR No. 275/96 dated 12.6.1996, registered at Police Station A-Divisioii, District Sheikhupura, seeks to be admitted to bail. 2. Briefly, according to the FIR, the complainant alongwith other police officials was on patrol duty in a vehicle No. 9624/MNK. When he reached near the house of Sh. Muhammad Zia, Civil Lines, he found three persons in suspicion. The complainant in order to check them, stopped the vehicle. Muhammad Amin constable No. Disembarked from the vehicle and stepped forward to check those persons while the other was still coming out of the vehicle All the three persons, suddenly started firing on the police party which hit Muhammad Amin, constable, on his face, who fell down. The complainant and the other police officials shot on the accused to surrender but the accused persons kept on firing and fled towards the stadium, who were followed by the police and in the stadium, one of the accused was hit by the fire of the police and two other accused fled away in the storm. One of the accused who was injured was found to be Mushtaq. Resident of Lakho Dire. Lahore , who told the name off the other accused as Javed and Yasin. Muhammad Amin, constable, later on died of the injuries, so was one of the accused Mushtaq. 3. Learned counsel for the petitioner contended that the petitioner is not a nominated accused, only the alleged co-accused of the petitioner Mushtaq at the time of his death disclosed the name of the petitioner to the police officer. The petitioner was never put to test identification parade and the petitioner is not a previous convict. The police has involved the petitioner falsely in this case. The version given in the FIR is against the medical evidence, as after receiving so many injuries, Mushtaq deceased was not competent to make any stage as mentioned in the FIR. The statement made before the police is not admissible in the eye of law. The recovery of the weapons at the instance of the petitioner is fake and manipulated and it gives no corroboration to the police version and placed reliance on NLR 1983 CRL. 25, PLD 1972 SC 277, 1980 SCMR 784, 1994 P.Cr. LJ 511 and NLR 1982 Crl. 693. 4. Learned counsel for the state, assisted by the Police Officer, has opposed this bail application on the ground that the police had apparent no enmity against the petitioner, it is the co-accused Mushtaq deceased who gave information about the petitioner. In the police encounter, one constable died and there was firing between the accused person and the police party and at the spot, so many crime empties found which gives credence version to the FIR. During the judicial inquiiy conducted by the Assistant Commissioner, the version of the Police found correct; hence prima-facie there exits reasonable ground to believe that the petitioner is involved in a case with falls within the prohibitoiy clause. 5. I have heard the learned counsel for the parties and have perused the record. 6. Admittedly, the petitioner is a nominated accused in the FIR, on the basis of the information divulge to the complainant by Mushtaq deceased, co-accused of the petitioner. The co-accused of the petitioner namely Yasin is PO, and according to the contents of the FIR in a police encounter, the petitioner and co-accused opened fire to the police party; hence in the presence of this material referred above, there exist reasonable ground to believe that the petitioner is involved in a case which falls within the prohibitory clause. The contention of the learned counsel that the principle off vicarious criminal liability is not, applicable to the facts of this case, requires deeper appreciation of evidence and the material, which exercise cannot be undertaken at this stage which is summaiy in nature. The cases law relied upon by the learned counsel for the petitioner is distinguishable; hence no case for the grant, of bail is made out and this petition is dismissed accordingly. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1628 [Rawalpindi Bench] Present: raja muhammad khurshid, J. Mst. SAFDAR JAN-Appellant versus THE STATE-Respondent Criminal Revision No. 8 of 1997, decided on 5-3-1997. Criminal Procedure Code, 1898 (V of 1898)- S. 540-Witness when to be summoned as court witness-Object of Section 540 Cr.P.C. is to advance the interest of justice and not to grant any premium to any of parties to fill up lacunas-Mere fact that there is some flaw in prosecution case, would not justify summoning of a witness under section 540 Cr.P.C. [P. 1630] A Malik Muhammad Nawaz Khan, Advocate for the Petitioner. Sardar Muhammad Ishaq Khan, Advocate for Respondent No. 2. Sardar Abdul Raziq Khan, Advocate for the State. judgment This Revision Petition is directed against the order dated 18.1.1997 passed by the learned Sessions Judge, Rawalpindi whereby an application moved by the petitioner/complainant under Section 540 Cr.P.C. was dismissed wherein a prayer was made for summoning one Abdul Aziz as a prosecution witness. 2. The brief facts are that Mst. Safdar Jan i.e. the petitioner lodged a report with the police Station, Civil Lines, Rawalpindi on 25.9.1995 in which she claimed that her daughter Mst. Rehana was married about 1 years prior to the occurrence. The aforesaid Mst. Rehana was allegedly maltreated by her in-laws and had made complaint to her parents on several occasions whenever she visited them during that period. About 2 months prior to the occurrence a compromise had taken place between the parties, on the basis of which, Mst. Rehana occurrence, two sons of the petitioner namely Abdul Aziz and Muhammad Zubair went to the house of their sister Mst. Rehana to see her and to tell her that her elder brother Abdul Majid was suffering from fever. The husband of aforesaid Mst. Rehana i.e. accused in this case restrained her to visit her parents house. At bout 10.00 PM during the night the complainant learnt at her house that her daughter Mst. Rehana had committed suicide by shooting herself. The complainant thereupon reached the house of in-laws of Mst. Rehana alongwith her daughter Mst. Rubina Hameed and other relatives and found dead body of Mst. Rehana lying one the Palang (Cot). She thereupon lodged the aforesaid report in which she expressed her strong suspicion that her daughter was done to death by her son-in-law namely Zulfiqar accused with the help of his brother Muhammad Azad, sister in Law Mst. Jamila and his father Muhammad Khan. The aforesaid accused Zulfiqar was challenged and the case was sent for trial to the court of Session. The prosecution evidence was partly recorded when the present petition was moved by the complainant that her son Abdul Aziz in whose presence the accused had restrained the deceased to visit her parents house be called as a court witness as he was never allegedly cited by the police in the calendar of witnesses although his evidence was material for the fair disposal of the case. 3. ine learned Sessions Judge however, dismissed the application on the grounds that the aforesaid witness never appeared before the police during investigation nor he was cited as witness in the calendar submitted with the report under section 173 Cr.P.C. The learned Sessions Judge also held that it was not made clear in the petition nor it was shown as to how the evidence of Abdul Aziz was necessary. On the contrary it was held that this petition was made in order to delay the trial of the case. In this connection it was observed by the learned Trial Judge that trial commenced about 4 months prior to the moving of the application but nothing was done during that period nor any step was taken during the investigation to see that the aforesaid witness is produced before the Investigating Officer and is name is included in the calendar of witnesses. 4. The learned counsel for the petitioner has submitted that delay in making the application cannot clog the course of justice. In fact the court should exercise its discretion liberally in order to see that substantive justice is done in the matter before it. In this context it was alleged that evidence of Abdul Aziz was necessary to satisfy the ends of justice because it was in his presence that the accused restrained deceased to visits her parents house in order to see her ailing brother. It was allegedly the starting point of the trouble between the parties which ultimately led to the occurrence. It was, therefore, urged that non-appearance of the aforesaid witness before the Investigating Officer or omission of his name from the calendar of witnesses would not, stand in the way of the trial court to exercise its discretion under section 540 Cr.P.C. 5. The petition was opposed by the respondents on the ground that the court had not to fill in the lacunas of the prosecution, evidence. In the instant case Abdul Aziz never appeared during the investigation nor he was keen enough that his name should be included in the calendar of witnesses. As such he was never claimed by the prosecution as a witness to the occurrence although his name figured in the FIR for an incident in which the accused had allegedly restrained the deceased to visit her parents house. It was, therefore, submitted that there was no merit in the application because the examination of Abdul Aziz as a prosecution witness at this stage would prejudice the respondents/accused and would amount to filling up the lacunas in the prosecution case. 6. I have considered the foregoing contentions raised from both sides. The object of section 540 Cr.P.C. is to advance the interest of justice and not to grant any premium to any of the parties at the trial in order to fill up the lacunas. The prosecution never considered Abdul Aziz as a material witness nor Abdul Aziz himself thought to become a witness in the case because he never appeared during the investigation nor he got his statement recorded regarding the incident of altercation, between the accused and the deceased on the fateful day. It was for that reason that the police did not cite him as a witness while submitting a report under section 173 Cr.P.C. The attitude of the complainant for citing him as witness also appears to be luke warm because a long silence was adopted when he failed to appear during the investigation and his name was not included in the calendar of witness while submitting challan to the court for trial. The complainant side also remained silent for about 4 months after commencement of the trial, which showed that no sanguine effort was made to get Abdul Aziz examined as a witness. The question of delay therefore, cannot be ignored under the situation. Even otherwise it has not been shown as to how the examination of Abdul Aziz was essential or without his examination the ends of justice shall not be satisfied. The mere fact that there is some flaw in the prosecution case, would not justify summoning of a witness under section 540 Cr.P.C. The impugned order does not suffer from any legal infirmity nor it is arbitrary or capricious. As such there is no ground for interference with the impugned order on the revisional jurisdiction of this court. This petition is accordingly dismissed. CI. Misc. No. 66-M/97. Since the main petition has been dismissed, this application is also disposed of accordingly. (AAJS) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1630 (DB) [Rawalpindi Bench] Present: raja muhammad khurshid, muhammad nawaz abbasi, J. Mst. SHAH AZIZAN-Appellant versus THE STATE-Respondent Criminal Appeal No. 149 of 1992 & Murder Reference No. 376 of 1992, ecided on 3-3-1997. (i) Witness-Child- Child witness-Status-It is true that if evidence of a child witness inspires confidence then there is no need to seek any corroboration but rule of prudence still insists that such corroboration should be sought to rule out any chance of mis-carriage of justice. [P. 1635] A (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- Ss. 302 and 201-Murder-Offence of-Conviction for-Challenge to-On the basis of evidence of eye-witness that accused was present at the time of murder but she did not participate in the murder of deceased but she helped co-accused in removing his dead body the court acquitted her from charge of murder but her conviction under S. 201 PPC maintained- Sentence of co-accused of death reduced to imprisonment for life. [P. 1637] B Mr. Galried Francis, Advocate for the Appellant. Mr. Amjed Hameed Ghauri, Advocate AAG for the Respondent. judgment Raja Muhammad Khurshid, J :--The brief facts are that on the night between 5th and 6th of March, 1990, Dil Khurshid was done to death in the area of village Khairpur at a distance of 6 miles from police station Kallar Kahaar, District Chakwal. The report about the occurrence was lodged by Khaki Jan, son of the deceased on 6.3.1990 at 11.30 a.m. It was contended in the report by the complainant that his mother Anwaran Begum had died about three years prior to the occurrence. He married Shah Azizan accused about two months prior to the resent murder. Mst. Shah Azizan was daughter of his maternal uncle Ajaib Khan who had since died. The aforesaid Shah Azizan was living with the complainant in a house in which the deceased Dill Khurshid was also residing alongwith his other children. The complainant was working as a loader at a truck in those days. He came to his village after about ten days and learnt about the murder of his father at about 10.00 a.m. on that day. He went to the spot and saw the dead body of the deceased lying in the field of Ghulam Murtaza of the same village. The blood was coming out from the left removal region of the dead body. He left Muhammad Afsar son of Anar Khan of his village at the lace of occurrence and started for lodging the report to the police station, but at Karooli More, he came across the Inspector/SHO of Police Station Kallar Kahart. He enacted the occurrence to the Inspector in which be contended that Mst. Shah Azizan was not kepting good character and had illicit liaison with Ajaib Gul Accused who was related to him as his paternal uncle. Ajaib Gul accused had also allegedly beaten the deceased one year back on account of those illicit relations but due to close relationship, no report was lodged with the police station about such beating. The complainant expressed his strong suspicion that the deceased was murdered by both the accused namely Ajaib Gul i.e. his paternal uncle and Mst. Shah Azizan i.e. his wife. 2. Both the accused were charged under Sections 302/34 PPC for committing the murder of the deceased and were further charged .under Section 201 PPC for deliberately causing the dis-appearance of the evidence regarding the murder of the deceased with intention to screening themselves from the legal punishment. They were tried by Mr. Azhar Hafeez Sheikh, learned Sessions Judge, Chakwal, who vide his judgment dated 15.9.1992 convicted both the accused/appellants under Sections 302/34 PPC and sentenced Ajaib Gul appellant to death and a fine of Rs. 50,000/- or five years R.I. in default of payment of such fine and that Mst. Shah Azizan appellant was sentenced to imprisonment for life and a fine of Rs. 10,000/- or one year R.I. in default of payment of such fine. Both the accused/appellants were further convicted under Section 201 PPC and sentenced to seven years R.I. and a fine of Rs. 10,000/- each or in default of payment of such fine to suffer One year R.I each. The fine imposed upon them under Section 302/34 PPC, if recovered, was directed to be paid to the heirs of the deceased Dil Khurshid as compensation under section 544-A, Cr.P.C. 3. Both the appellants have challenged their convictions and sentences passed by the learned trial court on the ground that reliance was wrongly placed on the eye-witness namely Umar Sultan who was never named in the FIR as a witness besides being a child witness having no capacity to enter the witness box being at the threshold of his youth. Another objection was raised against the aforesaid only eye-witness that since he was a young child, therefore, his evidence was not only tutored but also maneuvered to implicate both the accused falsely in this case, that the recoveries of the "wahola" and other article such as blood stained earth from the alleged place of occurrence i.e.; house of the deceased and also from the heat field showed that the occurrence had taken in some different manner as some .unknown killer finished the life the deceased but the present story was later on invented to trap both the appellant with ulterior motive. The medical evidence was also stated to be contradictory to the ocular account of the occurrence and as such, the case of the prosecution was highly doubtful and smacked mala fide action on the part of the complainant and the police. 4. Learned counsel for the appellant while pressing the aforementioned points referred to the statement of the solitary eye-witness namely Umar Sultan whose age was about 10 years at the time when he entered the witness box. The occurrence had taken place 2 years prior to his evidence in the court and as such mathematical calculation will show that he hardly 7 years of age when he allegedly happened to see the occurrence. It was, therefore, urged that such type of young body cannot make a rational statement regarding the occurrence nor he would be considered as a competent witness under the law. In this connection, it was alleged that the learned trial judge did not satisfy himself to find out that the witness was actually intelligent enough to testify as conditioned by Section 3 of the Qanun-e-Shahadat Order, 1984. In this regard, it was alleged that the learned trial judge should have put few questions and obtained answers from the witness to find out that he understood the questions put to him and had given rational answers to those questions and that he was aware of the sanctity of his evidence as attached to it by the Holy Quran and Sunnah; and that his statement shall be true and not false; and that he (the witness) knew about difference between truthfulness and false-hood. Only after satisfying in those points, the learned trial judge should have proceeded to record the statement of Umar Sultan. Since no sxich questions were put nor the answers were obtained, therefore, the evidence of Umar Sultan was liable to be excluded. Likewise, it was contended that the recovery of "wahola" was doubtful as no independent person of the locality was associated with its recovery nor it was got determined that the blood found on it belonged to the deceased by sending it for analysis with the blood recovered from the place of occurrence that, both the bloods had the same grouping. The medical evidence was allegedly lacking in this case because Dr. Khalid Mehmood who had conducted the post mortem examination was not, available at the time of trial as he had gone abroad and there was no prospect of his early return to Pakistan . As such, Arshad Saleem, Dispenser, DHQ Hospital , Chakwal entered the witness box as PW. 10 who deposed that he had been working with Dr. Khalid Mehmood and was in a position to identify the hand-writing and signatures of the aforesaid doctor. He had been seeing the aforesaid doctor's writing and signing the documents while being posted with him. He identified that the injury statement Exh. Pk and the inquest, report Exh. PK were signed by him (doctor) and that the post mortem examination report Exh. PN and its pictorial diagram of the injury Exh. PN-1 were in the hand of the aforesaid doctor who had signed the same. It was, therefore, contended that since the medical officer was not available and cross-examination cnuld not be conducted upon him, therefore, the accused were prejudiced in their case in hand. Lastly, it was contended that no overt act was attributed to Mst. Shah Azizan for the murder of the deceased nor did she play any active role in such a artless occurrence, therefore, there was no justification for her conviction under Section 302 PPC. Finally, it was contended that infect the deceased was done to deathly by some unknown assailants and his dead body was discovered from a field after the announcement from the mosque on the loud-speaker. As such, the case of the prosecution was allegedly doubtful from its very inception but the police had wrongly roped both the accused in order to cover up a blind murder to save their own skin. 5. Learned state counsel contended that, the evidence of the child witness cannot be ignored if it inspires confidence about its truthfulness, or even if otherwise appears to be rationally and intelligently given at the trial. The deceased was the real brother of Ajaib Gul, whereas, his co-accused Mst. Shah Azizan was his paternal niece and was also married to his son Khaki Jan i.e.; the complainant. In such a situation, there was no likelihood that Umar Sultan, though son of the deceased, would falsely implicate his real paternal uncle and his real cousin Mst. Shah Azizan who also happens to be his sister-in-law being wedded to his brother Khaki Jan. The motive is also there as was deposed by Khaki Jan PW that the deceased restrained Ajaib Gul accused to discontinue having illicit liaison with Mst. Shah Azizan who was not only his niece being sister of his deceased brother but also a family honour. This led to some beating by Ajaib Gul to the deceased but the matter was not reported to the police being a family affair. This motive has allegedly been proved by Khaki Jan PW. The evidence of Umar Sultan (PW.6) was supported by the circumstantial evidence such as motive, recovery of blood stained "Wahola" at, the instance of Ajaib Gul and that there was no other hypothesis showing the innocence of the accused or that they have been substituted; or that the murder was committed by some unknown offenders. It was, therefore, alleged that the prosecution has been successful to prove its case at the trial and as such, the conviction of the appellants were rightly made by the learned trial court. 6. We have considered the foregoing submissions and find that there was only one eye-witness namely Umar Sultan who was about 7 years of age at the time of occurrence, though he had attained 10 years of age when he entered the witness Box. It is true that his name is not given in the FIR as a witness but the same is not an exhaustive document so as to contain the mounts details. The aforesaid witness was child at the time of occurrence. Perhaps no body would have thought if to name him as a witness nor he himself had come up immediately to say that he had seen the occurrence may be out of fear or shock following the tragic killing of his father. However, when the grief subsided to some extent and he found himself secure, he came up with the statement that his father was done to death by the accused persons during the unfortunate night; and to that horrible spectacle he had unfortunately seen. The mere fact that the learned trial judge did riot put question nor did he bring them on record alongwith answers of the witness would not make the evidence of Umar Sultan Unworthy of reliance particularly after going through the statement, he had made in the court and the way he patently stood up to the cross-examination conducted upon him. There is nothing in the statement, recorded in the court which may suggest that either he was not understanding the questions or that he had given irrelevant replies or that he had given irrelevant replies nj^that he had made incoherent statement about the occurrence. On the contrary, it appears that he entered the witness box with full responsibility and exhibited normal intelligence and demeanor while in the witness box. In such a situation, the mere fact that there is botching on record to show that the questions were put to him to find out whether he could give proper answers to them, would not dis-qualify him as a witness, particularly when there is a note of learned judge that the witness seemed to be quite intelligent and competent to give evidence. That note would be enough in the given situation to come to the conclusion that Umar Sultan (PW-6> was not only a competent witness but also a natural witness as he was residing in the same house were the murder had taken place and was sleeping in the same room where the ghastly tragedy was enacted. He clearly deposed that he had seen Ajaib Gul accused giving "Wahola" blow on the left temple of his father who started writing and died at the spot. This occurrence was seen by him while a lamp was burning in the room and as such there was no problem, of identification of the accused persons who were also the family members. Although the witness got frightened on seeing the bloody scene but it would not be unusual because any one of that age would get scared on seeing such cruel act being committed by one brother against the other brother to take his life. The transitoiy silence on the part of this witness could be understandable becaiise he was threatened by the accused that he would be given similar treatment as was given to his father if he tried to raise the alarm. It is true that if the evidence of a child witness inspires confidence then there is no need to seek any corroboration but the rule of prudence still insists that such corroboration should be sought to rule out any chance of mis-carriage of justice. In this case, the corroboration is provided by the motive given by Khaki Jan who is also a most relevant witness in the case, he is closely related to both the accused and it is not possible for him to state falsely against them nor there is any thing on record to show that there any enmity or ill-will between the two sides so as to substitute the appellants for the actual killers. The recovery of "Wahola" is also a veiy firm and reliable piece of evidence to support the statement of Umar Sultan PW who clearly deposed that "Wahola" was used by Ajaib gul to take the life of the deceased. The aforesaid "Wahola" was blood stained having human blood on it as determined by the report of the Chemical Examiner and the Serologist. It is thus, clear that Umar Sultan, though a child, coiild be relied upon because the evidence given by him is supported by the circumstances of the case. The recovery of blood stained "Wahola" and the locale of injuries given in the post mortem examination report which correctly tally with the seat of the injuries given by the only eye-witness namely Umar Sultan. Hence there is a genuine ring of truth in the evidence given by Urnar Sultan which could not be shaken by intelligently conducted cross-examination to which he was subjected. Under this situation, it is to be seen whether the evidence of Umar Sultan should be accepted or not. There is no general rule of universal application that in no case should the evidence of a child witness be believed. Each case depends upon its particular facts and circumstances. The evidence of a child witness before it, is acted upon should, however, be subjected to a close and careful scrutiny. The boys of the age-group between 7 to 10 are considered to be the best witness for the advantages which are: love and hatred, ambition and hypocrisy, considerations of religion and rank, of social position and fortune, as yet unknown to them; it is impossible that preconceived opinions, nervous irritation or long experience should lead them to form erroneous impressions; the mind of the child is but a mirror that reflects accurately and clearly what is found before it. The brain of a child is veiy sensitive, clear and pure so as to imprint any event, impression and incident succinctly, simply and truly like a pure and ripple over a clear and transparent surface of water. Though these imprints may sometime get abjured through external influence whether designed or accidental but those are not likely to lose the value of truth. As such, a child witness becomes a veiy strong and reliable witness if supported by other circumstances of the case. In the case in hand, Umar Sultan is supported by the circumstances that he being a resident of the same house where the murder took place, was a nat iral witness to be event; that there was no ground that he would falsely implicate any of the two accused who are not only his bold relations but being closely associated with him; admittedly there is no enmity between the two sides; that the recovery of blood stained "Wahola" at the instance of Ajaib Gul accused carrying human blood on it provides a circumstance to support the ocular aqctmnt of the occurrence of Umar Sultan that the murder was committed with the said "Wahola"; that the seat of injury indicated by the witness substantially tallies with the injury given by the medical officer in the post mortem report; and that the motive of the occurrence which has been given by dis-interested witness namely Khaki Jan (PW.5) who too had no enmity with the accused side nor he had any reason to falsely implicate them in the case. It, therefore, follows that the statement of Umar Sultan i.e.; the only eye-witness of the case, though a child, can be accepted to advance the interest of Justice. As such, the prosecution has successfully proved the case against both the accused from the evidence on record. 7. The defence version of total denial is not convincing in any manner. Ajaib Gul accused has deposed in his statement upon oath under section 340 (2) Cr.P.C. that he had no dispute or enmity with Umar Sultan or Khaki Jan PWs which further shows that those witnesses had no occasion to involve him falsely in this case Earlier to that, the accused Ajaib Gul had stated in his statement under Section 342 Cr.P.C. that the deceased was involved in many criminal cases. The complainants in those cases in order to save their skins allegedly got him falsely involved in this case. This explanation of the accused is in no way convincing because he had nor brought anything on record about details of those cases or the complainants of such cases. Even otherwise, the eye witness namely Umar Sultan and PW Khaki Jan are not likely to become instrumental in involving him in a false case particularly when he admitted that he had no dispute or enmity with them. Naturally, such persons would not like to become tools in the hands of others to involve their own close relatives in a case of murder. The accused examined Lai Khan as DW. 1 but his statement in no way advances the defence version because, for the first time he was introduced at the trial and had never been produced before the police nor he had volunteered to join the investigation to depose in favour of the innocence of the accused persons. As such, there is no substance in the defence version to create any loophole in the case of the prosecution which stands established beyond any reasonable doubt. 8. Before we finally part with the judgment, it is to be seen as to what offence is actually committed by Mst. Shah Azizan accused. It is in the evidence of the eye-witness that though she was present but she did not participate in the murder of the deceased. However, she helped her coaccused i.e. Ajaib Gul in removing the dead body from the place of occurrence to a field in order to screen his offence. As such, her case alongwith her co-accused will fall under Section 201 PPC but she cannot be held responsible nor it can be safely said that she had a common intention with Ajaib Gul accused to murder the deceased. As such, Mst. Shah Azizan is acquitted of the charge of murder of the deceased. Her conviction and sentence under Section 302 PPC awarded to her by the learned trial court is set-aside and her appeal to that extent is accepted. However, she is equally responsible for the commission of offence under Section 201 PPC and her conviction alongwith conviction of her co-accused under the aforesaid Sections maintained but their sentences are reduced to a period which they have already undergone. The sentence of fine awarded to both the accused/appellants is also reduced from Rs. 10,000/- to Rs. 1000/- each and in default of the payment of the reduced fine, they shall further suffer R.I. for one month each. Their appeal is dismissed qua the charge under Section 201 PPC with the above modification in the sentence. 9. The conviction of Ajaib Gul accused/appellant is maintained under Section 302 PPC but his sentence is modified and reduced from death to imprisonment for life. The sentence of fine as awarded to him by the learned trial court shall be maintained and fine, if realized, shall be paid to the heirs of the deceased as compensation under Section 544-A Cr.P.C. as directed in the impugned judgment. The benefit of section 282-B, Cr.P.C. is extended to the appellant/accused Ajaib Gul. His appeal is accordingly dismissed with the above modification in the sentence. 10. The death sentence is Not confirmed. 11. The Murder Reference No. 376 of 1992 is disposed of accordingly. (AAJS) Order accordingly.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1638 [Rawalpindi Bench] Present: IJAZ NlSAR, J. NASIR KHAN-Petitioner versus THE STATE-Respondent Crl. Misc. No. 679-B of 1996, decided on 24-9-1996. Bail-- -S. 497 Cr. P.C.-Bail-Grant of-Prayer for-Offence under Art. 3/4 of Prohibition of (Hadd Enforcement) Order 1979-Bail granted on considerations that investigation was not conducted by a duly authorized officer and that person of the accused was no more required for the purpose of investigation. [P. 1639] A Syed Asghar Hussain Sabzwari, Advocate FIR the petitioner. Mr. Ajmed Hussain Ghori, Advocate for State with Habib Ullah S. I. judgment Ijaz Nisar, J.--Nasir Khan son of Qadir Khan petitioner seeks bail in case FIR No. 218 dated 5.6.1995 registered under Article 3/4 off the Prohibition (Enforcement of Hadd) Order, 1979 and section 9-B of Control of Narcotics Substances Ordinance, 1995 at Police Station Ganj Mandi, Rawalpindi. 2. The Prosecution case is that Mehmood Akhtar AST, CIA Staff. Rawalpindi on receipt of a secret information raided the house of the petitioner and recovered 185 grams of heroin from his person. On his further isclosure 440 grams of opium and 110 grams of charas were also recovered from a room of his house. 3. Out of 185 grams of the allegedly recovered heroin 20 grams was sent to the Chemical Examiner, likewise, 50 grams each of charas and opium was sent for chemical examination. 4. Bail for Nasir Khan petitioner is urged on the grounds that the case is based on false allegations and the offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 not having been committed at a public place was non-cognizable and the police officer was under on obligation to obtain orders of Magistrate before entering upon the investigation. Furthermore, no respectable inhabitant of the locality was associated to witness the search. 5. The competency of Mehmood Akhtar, ASI, CIA staff, Rawalpindi to search, arrest and investigate the case under the Control of Narcotics Substances Ordinance, 1995 is also challenged. 6. Section 19 of the Control of Narcotics Substances Ordinance, 1995 does not empower any police official below the rank of sub Inspector of Police to enter, search, seize and arrest without warrant any person for an offence under the said Ordinance. But in the present case the search, seizure and arrest had been made by Mehmood Akhtar who was an ASI of CIA staff. There is yet another legal flaw in the Investigation conducted by an officer of the CIA Staff. It was held by a Division Bench of Lahore High Court. Lahore in Iftikhar Ahmad Demi vs. The State (PLD 1995 Lah. 606) that members of , x the CIA Staff, irrespective of their rank and status cannot investigate cases unless Superintendent of Police of the district entrusts the investigation to them which was not done in this case as there is no material to show that Mehmood Akhtar ASI, CIA staff had been so authorized by the Superintendent of Police. 7. All the recovery witnesses who attested the alleged recovery were either officials of the Excise of the Police Department. 8. Non-association of respectable inhabitants of the locality in the search and recovery is another important aspect which cannot be ignored in the absence of any special reasons therefore. 9. Furthermore, sending an insignificant quantity of the narcotics alleged to be recover also appears to be unjustified. Only 20 grams of heroin out of the total quantity of 185 grams of the allegedly recovered heroin was sent to the Chemical Examiner. 10. Since the quantity of narcotics and intoxicants determines the forum and quantum of sentence under various laws and there is no quantity of sample fixed under the law to be supplied for analysis to the Public analyst as is fixed by Rule 46 of the West Pakistan Pure Food Rules, 1965, it would be appropriate that the seizing Authorities retain l/3rd quantity of the narcotics/intoxicants allegedly recovered with them and sent rest of the 2/3rd to the Public Analyst, for test and examination for determination of the proper forum for trial and the quantum of sentence that may be awarded to the accused if found guilty of the offence under various laws on the subject. Keeping in view the fact that the investigation was not conducted by a duly authorized officer and that the person of the petitioner is no longer required for the purpose of investigation, we admit him to bail in the sum of Rs. l.OO.OOO/- (One lac) with two sureties in the like amoiint to the satisfaction of the learned trial court. (AAJS.) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1640 V Present: MUHAMMAD ASIF JAN, J. MUHAMMAD FAISAL-Petitioner versus THE STATE-Respondent Crl. Misc. No. 1136-B of 1997, decided on 2-4-1996. Bail-- -S. 497 Cr. P.C.--Bail--Grant of-Prayer for-Further inquiry-Offence U/s. 302 PPC--Contention that accused lost control over his senses when he saw his sister in a compromising position and under sudden provocation killed her sister and her paramourHeld Plea of grave and sudden provocation in such circumstances is available in Quarnic injunctions contained in verse 34 of Surah-an-Nisa-". A husband; father: and, the brothers are supposed to guard life and honour of females, who are inmates of house and when anyone of them finds a trespasser. committing "Zina" with a woman of his family, then murder by him whilst deprived of self-control will not amount to "Qatl-i-arnd" liable to "Qisas because deceased in such a case is not a "Masoom-ud-dum"~Prima facie, reasonable grounds to believe that petitioner is guilty of an offence punishable with death or imprisonment for life do not seem to existBail granted. [P. 1641] A Syed Zahid Hussain Bokhari, Advocate for Petitioner. Mr. Javed Iqbal Awan, Assistant Advocate General. order Muhammad Faisal, petitioner, aged about 20 years was arrested on the 27th of November 1996, and, is in jail eversince awaiting trial, in pursuance of a case registered against him vide FIR No. 498/96, dated 25 th of November 1996, under section 302 of the Pakistan Penal Code at Police Station, Bhikhi of District Sheikhupura, regarding an occurrence, which took place on the 25 of November 1996. at, 4 a.m. in to bouse of Muhammad Faisal petitioner, which is in the area of Feroze-Wattuan of Police Station Bhikhi of District Sheikhupura, where, the FIR was lodged on the same day at 1.45 P.M. by Muhammad Ashraf, brother of Mansha deceased. 2. Admittedly, the occurrence took place inside the house of Muhammad Faisal petitioner early in the morning on the 25th of November. 1996, in which two young persons namely; Mansha aged about 32 and Mst. Naila Bibi, aged about 16, a sister of Muhammad Faisal petitioner, were done to death. It is also in the FIR that Muhammad Faisal petitioner all along suspected his sister Mst. Naila Bibi deceased of having an illicit liaison with Mansha deceased. 3. The learned Assistant Advocate General has read out the final report submitted by the investigating officer under section 173 of the Code of Criminal Procedure, which is to the effect that :-- "Muhammad Faisal petitioner found his sister Mst. Naila Bibi deceased in a compromising position with Mansha deceased, that he lost control over his senses and under sudden and grave provocation killed both Mansha and Mst. Naila Bibi with a dagger." The learned Assistant Advocate General has also read out the statement of Mst. Inayat Bibi, the unfortunate mother of Muhammad Faisal petitioner and Mst. NailaBibi deceased, which is to the effect :-- "that both Mansha deceased and her daughter Mst. Naila Bibi were naked at the time of occurrence, and, that she dressed them". 4. Prima facie, it appears that the deed was done by Muhammad Faisal petitioner in a fit of rage when he has lost control over his senses under sudden and grave provocation. 5. The question is whether the plea of grave and sudden provocation is still available or not, the answer is to be found in the "Quaranic" Injunctions contained in verse 34 of "Surah an-Nisa" ordaining that "Men are n charge of women". A husband; father; and, the brothers are supposed to guard the life and honour of the females, who are inmates of the house and when anyone of them finds a trespasser, committing "Zina" with a woman of his family, then murder by him whilst deprived of self. Control will not amount to "Qatle-i-amd" liable to "Qasis because the deceased in such a case is not a "Masoom-ud-dumm". 6. Prima facie., reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life do not seem to exist. Further, the case against the petitioner may be a matter of further inqiiiry, which entitles the petitioner to the grant of bail. Resultantly, the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the trial court. (AAJS) Bail granted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1642 (DB) Present : ZAFAR PASHA CHAUDHRY AND TASSADUQ HUSSAIN JlLLANI, JJ. Mst. NASIRA BIBT-Petitioner versus STATE-Respondent Cr. M. No. 4030/B/1997, rejected on 26-8-1997. Bail- Offence under S. 3/4 Prohibition (Enforcement of Hudood) Ordinance, 1979 read with sections 9 arid 15 of Control of Narcotics Substances Act, 1997-Heroin-Recovery of-Woman accused-Bail-Grant of-Prayer for- A woman is no longer domesticated but hallow of respectability and modesty woven around the traditional woman is making her an easy conduit for many a under cover crimes--Courts may refuse bail if allegations are serious and particularly under S. 51 of Narcotics Substances Act which provides that "bail should not be normally granted", criminal cases are not lacking where women were refused bail- Bail refused. [P. 1644] A Mr. Ghaus Muhammad Chaudhry, Advocate for Petitioner. Mr. Sharif Chauhan, Special Prosecutor, Mr. M. Bilal Khan, Advocate for the Complainant. Date of hearing : 26-8-1997. order Seeks bail in case F.I.R. No. 22/97 dated 16.6.1997 registered with Police Station Anti-Narcotics Force Model Town, Lahore, U/S 3/4 PEHO 1979 read with sections 9 and 15 of the Control of Narcotics Substances Act, 1997. The prosecution story as given in the F.I.R. registered on the statement, of Ahmad Jalil Group Leader ANF Lahore briefly stated is that on source report; that Mst. Nasira alias Shahida and her brothers co-accused Shahbaz, Pervaiz and Safdar were indulging in illicit drug trafficking, a raiding party was constituted pursuant to which a raid was conducted on the fateful clay and petitioner was caught red handed trying to hide a packet which on being search contained heroin. The co-accused her real brother Rana Safdar was also arrested during this raid. The packet recovered during raid was sent to Chemical Examiner and the report received is to the effect ,hat it contained heroin. 2. The learned counsel for the petitioner prays for bail on the ground that the case is false and product of mala fides inasmuch as letitioner's husband who is a DSP opposed one Brigadier Zulfiqar Cheema, itting MPA, and on account of grudge that: the bored against the said DSP, false case has been registered; that no respectable of the locality was associated with the recover}'; that the offence alleged does not fall within the prohibitory clause of Section 497 Cr.P.C.; that the petitioner has a suckling baby who too has been lodged in Jail. In support of the afore-referred submission, learned counsel for the petitioner relies on a. judgment of the Hon'ble Supreme Court in Mst. Fahmida Begum's case 1997 S.C.M.R. 947. 3. The learned counsel for the A.N.F. as well as Special Prosecutor have opposed the bail application by submitting that the petitioner is a member of gang which deals in drug trafficking; that she was residing in a house which had a wall of 80 feet height; that she was caught red handed trying to hide packet of heroin; that the report of the Chemical Examiner is positive and that in the afore-referred judgment of the Hon'ble Supreme Court, the effect of Section 51 of the Control of Narcotics Substances Act, 1997 has not been considered. 4. We have heard the parties and have gone through the record. Admittedly, the petitioner was apprehended at the spot ; a packet was recovered which when sent to the Chemical Examiner, was found to contain heroin. There is no cavil to the proposition that by virtue of quantity of heroin recovered from the petitioner, the offence does not fall in the prohibitory clause of Section 497 Cr.P.C, but that, ipso facto would not create a right of bail as section 51 of the Control of Narcotics Substances Act. 1997 mandates as under :-- "51. No bail to be granted in respect of certain offences. Notwithstanding anything contained in section 496 and 497 of the Cr. P. C. 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act, or under any other law, relating to narcotics where the offence is punishable with death. (2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial." The Judgement of the Hon'ble Supreme Court to which reference has been made by the learned counsel is distinguishable as the effect of the aforereferred provision has not been considered. 5. The allegations of mala-fides prima-facie are not tenable as had the sitting MPA any grudge against husband of the petitioner why should have be planned a false raised on his wife and her brother-in-law and spare her husband ? 6. We have also given anxious thoughts to the right of bail to a woman under proviso 1 to sub section 1 Cr.P.C. This Court cannot help taking notice of the new modes deviced by human ingenuity for drug pushing and would not presume all virtues to a woman which was the hall mark of the age of chivalry. A woman is no longer domesticated but the hallow of respectability and modesty woven around the traditional woman is making her an easy conduit for many a under cover crimes. The Courts may refuse the bail if the allegations are serious and particularly under section 51 of the Narcotics Substances Act which provides that, "bail should not be normally granted", Criminal cases are not lacking when women were refused bail. In Mst. Taj Bibi vs. The State (PLD 1989 Quetta 60), the order cancelling bail to a woman was upheld by the Court, and it was observed at page 61 as under :- "Thus females involved in such degenerated offences would not be automatically entitled to discretion merely by virtue of sex unless law so permits on merits." Similar view was taken in Mst. Anma vs. The State (NLR 1989 S.D. 117) and Mst. AkhtarBibi vs. The State (NLR 1989 S.D. 521). 7. For afore-referred reason, we are not inclined to admit the petitioner to bail in this case. The petition has no merit which is dismissed. (K.A.B.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1644 Present: DR. MUNIR AHMAD mughal, J. BASHIR AHMAD PATWARI-Appellant versus STATE-Respondent Criminal Appeal No. 58 of 1994, accepted on 8.7.1997. Pakistan Penal Code, 1860 (XLV of 1860) -Ss. 420/466/468/471/34 P.P.C. read with Section 5(2) Prevention of Corruption Act, 1947-Cheating/Forgery and illegal gratification- Allegations of-Conviction for-Challenge to--At. trial both complainants appearing in witness box as PW. 3 and PW. 4 did not support prosecution version and re declared hostile and despite maximum crossexamination prosecution could not, bring any incriminating piece of evidence against appellantonviction and sentence must be based on evidence beyond reasonable doubt and prosecution has to stand on its own legs throughout without aking advantage of any flaws in defence- ' Held : From evidence appellant has neither cheated complainants nor thereby induced them to deliver property to any personAppeal accepted. [P. 1646 & 1647] A & B Mr. Ghulam Hussain Qureshi, Advocate for Appellant. Mr. Masood Sadiq Mirza, Advocate for State. Date of hearing : 8.7.1997. judgment The appellant and two others namely Mst. Anwar Bibi and Ishtiaq Hussain were tried in the Court of Special Judge Anti-Corruption. Lahore under Sections 420/466, 468/471/34 PPC and Section 5(2) of the Prevention of Corruption Act, 1947 on the allegations that the appellant who was posted as Revenue Patwari Halqa Jia Bagga Tehsil and District Lahore in the year 1986 abused his official position as public servant, issued forged Fard Malkiat in respect of land measuring three kanals 10 marlas in the name of Mst. Khurshid Bibi and by deceiving Sardar Ali etc., complainant party and in furtherance of common intention with co-accused Mst. Anwar Bibi, Ishtiaq and Muhammad Khalid dishonestly and fraudulently caused wrongful loss of Rs. 15,000/- by registering sale deed in favour of Sardar Ali etc., on behalf of Mst. Khurshid Bibi while actually produced Mst. Anwar Bibi alias Nargis at the time of registration of sale deed and has also committed criminal mis-conduct. 2. The appellant and other co-accused were convicted under Sections 420/34 PPC and sentenced to R.I. for six months with a fine of Rs. 5.000/- each and in default of payment of fine to undergo further R.I. for one month. They were acquitted on the charge under Sections 468/471 PPC and Section 5(2) of the Prevention of Corruption Act, 1947. Both the convicts have filed separate appeals. This judgment shall dispose of appeal filed by Bashir Ahmad, accused only. 3. After formal inquiry the appellant and co-accused were charge sheeted where they pleaded not guilty. The prosecution examined 14 witnesses at the trial and the accused denied the allegations in their statements under Section 342 Cr.P.C. The appellant denied the issuing of copies of Jamabandi and also denied the signatures on agreement and tendered Jamabandi for the year 1982-83 Ex. DA in his defence . The trial Court found the appellant and the co-accused guilty under Section 420/34 PPC and passed the impugned sentence while acquitted them of the other harges . 4. Arguments have been heard at length and record perused. The conviction and sentence must be based on evidence beyond reasonable doubt and the prosecution has to stand on its own legs throughout without taking advantage of any flaws in the defence. In the present case the admitted position is that at the trial both the complainants appearing in the witness box as PW.3 and PW.4 did not support the prosecution version and were declared hostile to the prosecirtion and despite maximum cross-examination the prosecution could not bring any undiscriminating piece of evidence against the appellant. In their cross-examination PW.3 and PW.4 have categorically stated :- "It is also incorrect that accused Bashir Ahmad Patwari gave us assurance about the correctness of title of Mst. Khurshid Bibi and in respect of revenue record. It is also incorrect that Ishtiaq Hussain executed an agreement Ex. PW.3/4 to return the amount received by the fraudulent party and Bashir Ahmad Patwari put his signatures on the same as a witness. The contents of complaint Ex. PW.3/2 are not correct and the statement which I gave today in Court is correct one." It is further stated by PW. 3 in his cross examination : "It is correct that I produced original sale deed Ex. PW. 3/1 and copy of Jamabandi Ex. PW.3/5 which was taken into --possession vide memo Ex. PW.3/6. It is also incorrect that Fard Ex. PW.3/5 was provided to me by the accused. It is also incorrect that I have made false statement to save the accused, and that I have been won over the accused. It is incorrect that compromise has been effected between the parties," 5, In order to attract Section 420 PPC it must be provide, (i) That the accused has cheated the complainant; a (ii) That the accused has by such cheating induced the complainant, to deliver any property to any person. The word "Cheating" has been fully defined in Section 415 PPC as under : -- "415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person (or any other person) in body, mind, reputation or property, is said to 'cheat'." 6. From the above evidence the appellant has neither cheated the complainants nor thereby induced them to deliver the property to any person and in such circumstance the learned Special Judge Anti-Corruption was not justified to pass the impugned conviction and sentence. The appeal is, therefore, accepted and the impugned conviction and sentence are set aside. The appellant is already on bail. He is discharged of his bail bonds. (B.T.) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1647 Present: GHiJLAM SARWAR SHEIKH, J. RAHIM BAKHSH-Petitioner versus STATE-Respondent Cr. Misc. No. 270-B-97/BWP, rejected on 19.5.1997. Bail-- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for--Offence u/S. 302/109/149/149 P.P.C.-Further Inquiry-It was held by august Supreme Court in case of Arbab AH v. Khamiso and others (1985 SCMR 195) that bail can be allowed in a case otherwise allegedly falling under prohibition contained in sub-section (1) of S. 497 Cr.P.C. when there are sufficient grounds for further inquiry into guilt of accused, but only, on condition when public officer or court at. any stage of investigation, inquiry or trial, as the case may be comes to definite conclusion that there are no reasonable grounds for believing that accused has committed non-bailable offenceWithout such finding bail cannot be allowed under sub-section (2) on mere ground that there are sufficient grounds for further inquiryReasonable grounds exist for believing that petitioner has committed non-bailable offence of nature which falls within prohibitory clauseProvisions of S. 497 (2) Cr.P.C. are neither attracted or entailed to facts of case against petitioner nor same can come into play or pressed into service-Held : Petitioner not entitled to concession of bail on pleas including further inquiry-Application accordingly merits rejection. [P. 1648 & 1649] A, B, C & D PLD 1988 S.C. 621, PLD 1985 Kar. 27 and PLD 1994 SC 65. Ch. Muhammad Ashraf Mo handara, Advocate for Petitioner. Mr. Ata Muhammad Baloch, Advocate for State. Date of hearing : 19.5.1997. order Heard. 2. Petitioner alongwith others is facing trial of a case under Sections 302/109/148/149 PPC registered at Police Station Saddar Khanpur vide F.I.R. No. 118/96 dated 1.5.1996, allegedly for causing/committing murder of Manzoor Ahmad by cutting his nose, on account of his suspected illicit liaison with Mst. Bano, wife of Rahim Bakhsh petitioner and sister of Qasim and Hakim AH, his co-accused. 3. Concession, asked for, has been claimed on the pleas that entire prosecution version/case stands impaired beyond repair, bail of some of coaccused was confirmed on 15.9.1996, no injury towaids deceased has been attributed to the petitioner; only role ascribed to him is of holding of deceased from his arms; being night occurrence, identification of accused is doubtful, benefit of doubt, how slight it may be has to go to accused, petitioner has been roped in due to party faction, his case is on better footing than that of co-accused namely, Ayub, who stands enlarged on bail, petitioner is no more required by police for any purpose and, in any event, his case falls within the ambit of "father inqtiiry". Reliance has been placed on Shahid v. The. State (1994 SCMR 393), Muhammad Haroon and another v. The State (1994 SCMR 216), Mehmood Akhtar and another v. Nazir Ahmad and 4 others (1995 SCMR 310) and Koochi v. The State (1995 P.Cr.L.J. 912) in support of his contention. 4. It has been opposed vigorously with the assertions that the petitioner specifically stands nominated in F.I.R., it was not possible for coaccused to cut the nose of deceased without active assistance of petitioner, who, caught hold of Manzoor Ahmad deceased from his arms, Mst. Bano being wife of present petitioner, there is igniting motive behind the occurrence and particularly with petitioner, and that case falls within prohibitory clause of Section 497 Cr.P.C. 5. According to sub-section (2) of Section 497 Cr.P.C. where there are reasonable grounds for believing that the accused has committed a nonbailable offence, but there are sufficient grounds for further inquiry into his guilt, the'accused shall, pending such inquiry, be released on bail. While nterpreting above provisions in the case of Arbab Ali v. Khamiso and others (1985 SCMR 195), it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained in sub-section (1) of Section 497 Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused, but only, on the condition when the public Officer or the Court at any stage of investigation, inquiry or trial, as the case may be comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a nonbailable offence. Without such finding bail cannot be allowed under sub section (2) on mere ground that there are sufficient grounds for further inquiry. In Azmat Ullah Khan v. Bazi Khan and another (PLD 1988 S.C. 621), illuminating observations are to the effect "mere possibility of further inquiry which exists almost in every criminal case, is, no ground for treating the matter as one under Section 497(2) Cr.P.C. Such a question also came up for examination before learned Division Bench in the case of State v. Aziz alias Abdul Aziz (PLD 1985 Kar. 27). It was held in this case that the question of further inquiry would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiry into the matter for the purpose of grant or refusal of bail." 6. In the instant case, prosecution is apparently equipped with sufficient material in different shapes to connect the petitioner with the commission of offence with which he stands charged. Tentative assessment of the same, at this juncture, does not lend any support to the cause of petitioner as reasonable grounds exist for believing that he has committed a non-bailable offence of the nature, which, falls within prohibitory clause. 7. Be that as it may, provisions of Section 497(2) Cr.P.C. are neither attracted or entailed to the facts of case against petitioner nor the same can come into play or pressed into service. As enunciated in Shah Zaman v. The State (PLD 1994 S.C. 65), "Now, what will constitute as sufficient ground for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for the purpose. Eveiy hypothetical question which can be imagined would not make a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of Section 497 Cr.P.C. is that there are sufficient grounds for further inquiry, into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged." Same is lacking in instant case, inasmuch as, Mst. Bano happens to be wife of petitioner, who, seemingly has eveiy reason not only of sharing common intention but also of facilitation of crime ascribed to him. 8. In these circumstances, he cannot be taken to be entitled to the concession asked for on the pleas including of "further inquiry" advanced on his behalf. Application, accordingly, merits rejection and is hereby turned down. (B.T.) Petition rejected.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1649 Present: GHULAM sarwar SHEIKH, J. Mst . KARIM KHATOON-Petitioner versus STATE-Respondent Cr. Misc. No. 304-B-97/BWP, accepted on 22.5.1997. Bail- -S. 497 Cr.P.C .-Bail-Grant of-Prayer for-Offence u/s 16 and 10(3) of Zina (Enforcement of Hudood ) Ordinance VII of 1979-Only allegation against petitioner is that of facilitation of abduction-But no specific role with regard thereto is even borne out of F.I.R -In terms thereof, she was on bank of canal and had returned to her house there-from-In that event too, petitioner is entitled to bail in connection with galaxy of ruling on point-Held : Case of petitioner is undoubtedly covered by Proviso to S. 497 Cr. P.C. and she cannot be allowed to incarcerate for indefinite period-Bail allowed. [P. 1651] A, B & C 1983 P.Cr.L.J . 2159; 1995 P.Cr.L.J . 625; 1991 P.Cr.L.J . Note 176 and 1986 P.Cr.L.J . 2292. Mr. Abdul Mil Khan, Advocate for Petitioner. Mr. Zafar Iqbal Awan , Advocate for Complainant. Mr. Nasir-ud-Din Ghauri , Advocate for State assisted by Shafqat Ali. Date of hearing : 22.5.1997. order Heard. 2. This is an application for bail on behalf of Mst . Karim Khatoon , against whom and others, a case under Sections 16 and 10(3) of Offence of Zina (Enforcement of Hudood ) Ordinance VII of 1979, stands registered at Police Station Naushera Jadeed , vide, F.I.R. No. 22/97, dated 26.2.1997, lodged by mother of Mst . Bhirawan alleged abductee . 3. Allegations are to the effect that she was taken away with intent to have illicit inter-course. 4. Learned counsel for the petitioner has canvassed that Mst . Karim Khatoon neither related to Sahib Yar , principal accused, nor has any concern with him inasmuch as, she has been falsely roped in. According to him, no role has been ascribed to her and even facilitation of crime is not attributed to her. Delay of 2% months in lodging FIR, which, ofcourse, set the law into motion and termed serious and in-ordinate, has also been pointed out to stress that the case is shrouded with and wrapped in mystery. 5. Sadiq Muhammad and others vs. The State (1988 P.Cr.L.J . 2159), Sultan vs. The State (1995 P.Cr.L.J . 625), Shahnaz Akhtar vs. The State (1991 P.Cr.L.J . Note 176) and 1986 P.Cr.L.J . 2292 have been referred to contend, inter alia , that the petitioner is entitled to bail as her case does not fall within the prohibition contained in sub-section (2) of Section 497 Cr.P.C . and, in any event, allegation, at the best, against her is of abetment and instigation. 6. It has been opposed vigorously by learned counsel for the complainant with the assertions that the petitioner was instrumental in whole affair inasmuch as same resulted in abduction of Mst . Bhirawan . ccording to him, facilitation of crime on the part of the petitioner is so vivid that she is not at all entitled to the concession asked for. It has been further pointed out that she stands duly nominated in FIR with specific and distinct role. 7. Learned counsel representing the State has resisted the petition on the plea that alleged abductee has not so far been recovered and active participation of petitioner in the commission of crime is spelt out. 8. Delay of not less than 2% months in reporting the matter to police is neither denied nor any plausible explanation, thereto, has even been furnished. This aspect cannot be lightly ignored. Even otherwise, relationship or any other connection of Mst . Karim Khatoon with principal iccused has no where been indicated or hinted at. 9. Be that as it may, fact remains that only allegation against her is that of facilitation of abduction. But no specific role with regard thereto is ven borne out of F.I.R. In terms thereof, she was on bank of Canal and had eturned to her house therefrom . In that event too, the petitioner, is entitled n bail in consonance with enunciation in authorities referred to above and a'axy of ruling on the point. 10. Admittedly, the case is at the stage of investigation and li ialization thereof, what to speak of commencement or conclusion of trial, cannot be taken to be in sight. 11. In these circumstances, the petitioner, whose case otherwise, is undoubtedly eovez'ed by "proviso" to Section 497 Cr.P.C . cannot be allowed to B incarcerate for an indefinite period. 12. Consequently, application is allowed and the petitioner is admitted to bail in the sum of Rs . 50,000/- with one surety in the like amuunt to the satisfaction of learned Sessions Judge, Bahawalpur . (B.T.) Petition accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1651 Present : GHULAM SARWAR SHEIKH, J. Rana ISRAR AHMAD and another-Petitioners versus STATE & another-Respondent Cr. Misc. No. 137-B-97/BWP, rejected on 29.4.1997. Bail» -S. 497 Cr.P.C .-Bail-Grant of-Prayer for-Offence u/s 302/109 P.P.C. read with S. 34 P.P.C.-Further inquiry-Provisions of S. 497(2) Cr.P.C . are neither attracted or entailed to facts of case against petitioners nor same can come into play or pressed into service--Now what will constitute as sufficient grounds for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for purposeEvery hypothetical question which can be imagined would not make case of further enquiry simply for reason that it can be answered by trial Court subsequently after evaluation of evidence-In any event, trial in court is stated to have commenced, expeditions proceedings therein are expected and conclusion thereof is in sightHeld : Petitioners cannot be taken to be entitled to concession asked for on plea including of further enquiryApplication rejected in circumstances. [Pp. 1653 & 1654] A, B & C PLD 1994 SC 65. Raja Muhammad Sohail Iftikhar , Advocate for Petitioners. Mr. Muhammad Akhtar Qureshi , Advocate for State. Date of hearing : 29.4.1997. order Heard. 2. Petitioners alongwith others are facing trial of a case under Section 302/109 PPC read with section 34 of same Code registered at Police Station City Chishtian vide F.I.R. No. 324/96 dated 6.10.1996, allegedly for ausing /committing Qatl-i-Amd of Mazhar Khornini , District President of Terik-e-Jafria , brother of complainant, at about 7 P.M. on 6.10.1996 by firing with Mauzar . Reportedly, it was instigated murder. 3. Concession asked for has been claimed on the pleas that the petitioners have not been named/nominated in F.I.R., no identification parade was arranged stand falsely roped in due to malafides , active and rather no role has been ascribed to any one of them, no recovery has been affected at their instance, both of them are students and previous nonconvicts, no more required for investigation and are behind the bars for the last about six months. 4. Syed Amanullah Shah vs. The State (N.L.R. Crl . 188) Syed Amanullah Shah vs. The State (1996 S.C. 241), Abdullah Khan vs. Abdul Qayyum and another (1996 S.C.M.R. 493), Muhammad Siddiq vs. The State (1997 P.Cr.L.J . 143) and Syed Qaim All Shah vs. The State (1992 P.Cr.L.J . 9) have been referred to stress that alleged conspirator or abettor not present on spot, like petitioners, is entitled to bail as his case stands on lower footing than persons, who, were present at spot and raised Larkara . On the strength of James Sardar and another vs. The State (1996 P.Cr.LJ . 1422), it has been argued, that nothing can he said at this stage as to whether the principal accused, at the time of occurrence, had acted independently or under the influence of the other accused unless evidence to reach any definite conclusion is recorded. It has therefore been impressed that sufficient grounds are available for further inquiry' into the guilt of petitioners attracting sub-section (2) of Section 497 Cr.P.C . Pointing out that the same person was accompanying the complainant at the time of lodging of F.I.R., his version becomes subsequent and apparently after-thought and figment of his imagination. Accordingly grant of bail to petitioners has emphatically been prayed. 5. It has been opposed vigorously with the assertions that sufficient incriminating material against the petitioners is available with the prosecution, they are fully connected with the commission of crime and their case undoubtedly falls within prohibitory clause. 6. According to sub-section (2) of Section 497, Cr.P.C . where there are reasonable grounds for believing that the accused has committed a nonbailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused, shall, pending such inquiry, be released on bail. While interpreting the above provisions in the case of Arbab Ali v. Khamiso and others (1985 S.C.M.R. 195), it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained to sub-section (1) of section 497, Cr.P.C . when there are sufficient grounds for further inquiry into the guilt of the accused, but only, on the condition when the Public Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a nonbailable offence. Without such finding bail cannot be allowed under sub section (2) on mere ground that there are sufficient grounds for further inquiiy . In Asmat Ullah Khan v. Bazi Khan and another PLD 1988 S.C. 621, illuminating observations are to the effect mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under Section 497(2) Cr.P.C . Such a question also came up for examination before learned Provision Bench in the case of the State vs. Aziz alias Abdul Aziz PLD 1985 Kar . 27. It was held in this case that the question ' of further inquiiy would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a nonbailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiiy into the matter for the purpose of grant or refusal of bail." 7. In the instant case, prosecution is seemingly equipped with sufficient material in different shapes to connect that petitioners with the commission of offence with which they stand charged. Tentative assessment of the same at 'this juncture does not lend any support to the cause of petitioners as reasonable grounds exist for believing that they have committed a nonbailable offence of the nature, which, falls within prohibitory clause. 8. Be that a it may, provisions of Section 497(2) Cr.P.C . are neither attracted or entailed to the facts of case against petitioners nor the same can come into play or pressed into service. As enunciated in Shah Zaman vs. The State (PLD 1994 S.C. 65), "Now what, will constitute as sufficient grounds for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can he imagined would not make a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of Section 497 Cr.P.C . is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged." Same is lacking in instant case. 9. In any event, trial in the Court of learned Additional Sessions Judge, II, Bahawalnagar is stated to have commenced, expeditious proceedings therein are expected and conclusion thereof is in sight. 10. In these circumstances, petitioners cannot be taken to be entitled to the concession asked for on the pleas including of "further inquiry" advanced on their behalf. Application, accordingly, merits rejection and is hereby turned down. (B.T.) Petition rejected.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1654 Present : GHULAM SARWAR SHEIKH, J. NAEEM-Petitioner versus STATE-Respondent Cr. Misc. No. 299-B/1997/B.W.P. rejected on 19.5.1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence u/s 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979-Further inquiry-Prosecution is seemingly equipped with sufficient material in different shapes to connect petitioner with commission of offence with which he stands charged-Tentative assessment of same, at this juncture does not lend any support to case of petitioner as reasonable grounds exist for believing that he has committed non-bailable offence of nature, which falls within prohibitory clause-Broadly speaking condition laid down in clause (2) of S. 497 Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that question should be such whicli has nexus with result of case and may show or lead to show that accused is not guilty of offence with which he is chargedSame is totally lacking which appears to be of great high-handedness allegedly shown by petitioner-Held : Petitioner cannot be taken to be entitled to concession asked for on pleas including of further inquiry-Application merits rejection. [P. 1656] A, B & C 1985 SCMR 195; PLD 1988 S.C. 621; PLD 1985 Kar. 27 and PLD 1994 SC 65. Mian Amir Ahmad, Advocate, for Petitioner. Mr. Mohsin Raza Joya, Advocate for State. Date of hearing : 19.5.1997. order Heard. 2. Petitioner alongwith his mother and sister is facing trial of a case under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station City Ahmedpur East vide F.I.R. No. 377/96 dated 24.12.1996, allegedly for abduction of Mst. Aliya, daughter of complainant, in order to subject her to illicit inter-course. 3. Concession, asked for, has been claimed on the pleas that there is a delay of about 4 days in lodging the F.I.R. without any plausible explanation; the petitioner remained in police custody on physical remand or about 14 days, but, no recovery has yet been effected from him, he is in judicial lock-up for the last 3% months and is not a hardened criminal and no more required by police for enquiiy, complainant herself is not an eye witness; prosecution witnesses are her tenants and in any event, alleged abductee has not been recovered from the petitioner, case falls within the ambit of "further inquiry. Reliance has been placed upon Muhammad Hussain v. The State (1995 P.Cr.L.J. 488), Nazir v. State (N.L.R. 1984 S.D. 228) and Ghulam Ali v. The State (1989 P.Cr.L.J. 667), in support of the contentions, reiterating aforesaid pleas. 4. It has been opposed and resisted with the assertions that abductee is of tender age, petitioner is sufficiently connected with the crime and the same falls within prohibitory clause of Section 497 Cr.P.C. 5. According to sub-section (2) of Section 497 Cr.P.C. where there are reasonable grounds for believing that the accused has committed a nonbailable offence, but there, area sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. While interpreting above provisions in the case of Arbab Ali v. Khamiso and others (1985 S.C.M.R. 195), it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained in sub-section (1) of Section 497 Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused, but only, on the condition when the Public Officer or the Court, at any stage of investigation, inquiry or trial, as the case may. comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a nonbailable offence. Without such finding bail cannot be allowed under sub section (2) on mere ground that there are sufficient, grounds for further inquiry. In Azmat Ullah Khan v. Bazi Khan and another (PLD 1988 S.C. 621), illuminating observations are to the effect "mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under Section 497(2) Cr.P.C. Such a question also came up for examination before learned Division Bench in the case of The State v. Aziz alias Abdul Aziz (PLD 1985 Kar. 27). It was held in this case that the question of further inquiry would only arise if the Court first comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence. On the other hand, if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence, there is no question to Court holding a further inquiry into the matter for the purpose of grant or refusal of bail." 6. In the instant case, prosecution is seemingly equipped with sufficient material in different shapes to connect the petitioner with the commission of offence with which he stands charged. Tentative assessment of the same, at this juncture, does not lend any support to the cause of petitioner as reasonable grounds exist for believing that he has committed a non-bailable offence of the nature, which, falls within prohibitory clause. 7. Be that as it may, provisions of section 497(2) Cr.P.C. are neither attracted nor entailed to the facts of case against the petitioner nor the same can come into play or pressed into service. As enunciated in Shah Zaman v. The State (PLD 1994 S.C. 65), "now what will constitute a sufficient ground for further inquiry, would depend upon peculiar facts of the case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not take a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of Section 497 Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or lead to show that accused is not guilty of the offence with which he is charged." Same is totally lacking in the instant case, which appears to be of great high-handedness, allegedly, shown by the petitioner. 8. In these circumstances, he cannot be taken to be entitled to the concession asked for on the pleas including of "further inquiry" advanced on his behalf. Application, accordingly, merits rejection and is hereby turned down. (B.T.) Petition rejected.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1657 [ Multan Bench] Present: muhammad naseem chaudhry, J. QAYYUM NAWAZ KHAN-Petitioner versus STATE-Respondent Criminal Misc. No. 825/B-1996, dismissed on 7-5-1996. (i) Bail--Pre-arrest-- -S. 498 Cr. P.C.-Bail--Pre-arrest-Grant of--Prayer for-Aft&z-Plea of- Offence U/S. 302/330 PPC-Whether can be consider at bail stage- Question of-Plea of alibi, cannot be judged at bail stage-Recitals of FIR have to play legal role which cannot be ignored-Eye witnesses are mentioned in FIR who saw alleged occurrencePetitioner has been ascribed/attributed specific role of effecting physical coercion upon deceased alongwith his co-accused and injured expired after wardsIn the circumstances petitioner who was SHO of Police Station cannot claim unnecessary harassment at the hands of police-There is no merit in this application for his pre-arrest bail-Petition dismissed. [P. 1659] A & B PLJ 1996 Cr.C. Lah. 539 ref. Mian Abbas Ahmad and Malik Muhammad Saleem, Advocates for Petitioner. Date of hearing : 7-5-1996. order Syed Hassan Ali Shah complainant got recorded FIR No. 152 dated 2.5.1996 at Police Station City Muzaffargarh under sections 302/330 PPC with the allegation that on 28.4.1996 at 5.00 p.m. he was present in his shop alongwith his son Ghulam Murtaza Shah aged 35 years. Iqbal Thaheem ASI alongwith two Constables posted in Police Station City Muzaffargarh arrived there. They caught hold of his son Ghulam Murtaza Shah and directed him to accompany them as Qayyum Nawaz Khan SHO Police Station City Muzaffargarh was summoning him. They dragged his son and took him to some distance where they put him in a police van. Din Muhammad Shah and Mahmood-ul-Hassan Shah saw the said scene. They requested the police not to remove Ghulam Murtaza Shah to the Police Station otherwise than due process of law. However, everything remained in vain. Thereafter they reached Police Station City Muzaffargarh. The main gate was closed. His son Ghulam Murtaza Shah was being belaboured by the police whose hue and cry could be heard. They raised the noise. The door of the Police Station was opened. He alongwith the aforesaid persons and other members of the public entered inside the precincts of the 'Thana'. They saw that Qayyum Nawaz Khan SHO, Iqbal Thaheem ASI and 4/5 Police Constables were beating hulam Murtaza Shah who was naked. On his inquiiy Qayyum Nawaz Khan SHO told that he (complainant) should contract him at night. He contacted the police for 2/3 days alongwith the respectables. However, the police continued the coercion upon his son who was made to hang while chained and was given the 'Danda' beatings which was seen by him, Din Muhammad Shah, Mahmood-ul-Hassaii Shah and Khalil Ahmad as well as other persons of the city. Afterwards his son Mudassar All Shah was intimated that his son Ghulam Murtaza Shah was unconscious. They again contacted the police. Qayyum Nawaz Khan SHO got the undertaking from him that Ghulam Murtaza Shah shall be taken to some private clinic. Dr. Abdur Rehman treated his son whose condition worsened. He died on 2.5.1996 at 5.00 a.m. He prayed for taking the action against the accused persons belonging to the police force. 2. Apprehending his arrest Qayyum Nawaz Khan Inspector/SHO Police Station City Muzaffargarh who is the accused of the aforesaid case FIR No. 152/96 has filed this application for his admission to pre-arrest bail. 3. I have heard the preliminary arguments. At the very outset learned counsel for the petitioner argued that Qayyum Nawaz Khan petitioner-accused had gone to his home in D.G. Khan City to see his ailing mother. On my inquiry he intimated that the petitioner-accused even though posted as Inspector/SHO Police Station City Muzaffargarh did not obtain the leave/written permission from his superior officers. It is narrated in the petition that the petitioner contacted many respectables in D.G. Khan during the period he remained there. However, in view of the fact that the petitioner did not obtain the leave from the officers and he belongs to the disciplined force of police, this factual aspect of the matter need not be given the weight at this initial stage by this Court. 4. At this stage learned counsel for the petitioner prayed that the petitioner may be allowed the interim relief with permission to move the Court of Session. After the learned counsel for the petitioner had made the aforesaid arguments this prayer cannot be granted particularly when under Note 2, Rule 14, Chapter X, High Court Rules and Orders Volume-Ill, this Court is also competent in the exceptional cases to directly deal with an application of the instant nature. In view of the fact that the petitioner is a fugitive of law being a Police Inspector and SHO Police Station City Muzaffargarh, I do not feel it proper to allow him the time to move the Court of Session for his admission to pre-arrest bail. As expressed above the petitioner was the Inspector/SHO Police Station City Muzaffargarh. The matter cannot be taken in routine as required and desired by his learned counsel. 5. The cardinal principle for the admission of an accused to prearrest bail is as to whether or not he is apprehending unnecessary harassment at the hands of the police. The fact that the petitioner was the Inspector/SHO of Police Station City Muzaffargarh where the case stands registered has to steal the eminence. About, the plea of alibi it has been expressed in Liaqat Ali vs. The State (PLJ 1996 Cr. C. (Lahore) 539) that 'plea of alibi came up for consideration before the Honourable Supreme Court of Pakistan in case of Waqar-ul-Haq versus The State (1985 SCMR 974) and the learned Judges were pleased to hold that as far the plea of alibi, it cannot be judged at bail stage in the face of the prima-facie material". The recitals of the FIR have to play the legal role which cannot be ignored. The eye-witnesses are mentioned in the FIR who saw the alleged occurrence. Qayyum Nawaz Khan petitioner-accused has been ascribed/attributed the specific role of effecting physical coercion upon Ghulam Murtaza Shah deceased alongwith his co-accused and the injured expired afterwards. In the circumstances, Qayyum Nawaz Khan petitioner-accused cannot claim unnecessary harassment at the hands of the police and I hold that there is no merit in this application for his admission to pre-arrest bail. 6. For what has been said above, I dismiss this petition in limine. 7. Qayyum Nawaz Khan petitioner-accused is involved in a sensational case. He has been put under the custody of Muhammad Iqbal ASI/Incharge Police posted in Lahore High Court, Multan Bench, Multan who is present alongwith Muhammad Shafi HC 2173 and Maqbool Hussain Constable 2133. They shall contact the concerned police at Muzaffargarh so that Qayyum Nawaz Khan (Inspector/SHO) petitioner-accused is taken to Police Station City Muzaffargarh in accordance with law to join the police investigation. (K.A.B) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1659 Present -. raja muhammad khurspiid, J. IMRAN IQBAL-Petitioner versus STATE-Respondent Criminal Misc. No. 4005/B/1997 dismissed on 19-8-1997. Bail- -S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence U/S. 302/34 PPC-- Petitioner is named in FIR though, direct motive is not attributed to him but while eceased and principal accused were having altercation, petitioner caught hold deceased by his arms and took him in shop and there to be had a row with him-Petitioner was still holding deceased hy his arms principal accused pulled out his pistol from his "Dub" and fired a shot at him in head-It is enough to say that petitioner had played a specific role in occurrence leading to murder of deceased-In such a situation petitioner has no case for hailPetition dismissed. [Pp. 1660 & 1661] A & B Ch. Khan Muhammad Bajwa, Advocate for Petitioner. Muhammad. Ashraf Khokhar, Advocate for State. Date of hearing : 18-8-1997. order A case under section 302/34 PPC was registered against the petitioner and one Muhammad Ansar for the murder of Ismail on 6.4.1997 at about 5.00 P.M. The report about the occurrence was lodged on the same day at about 6.30 "P.M. vide FIR No. 89/97 registered at the Police Station Motra District Sialkot. 2. Learned counsel for the petitioner has submitted that the petitioner was empty handed, whereas the fatal shot was made his coaccused Muhammad Ansar at the deceased; that there was no motive with he petitioner to commit the murder of the deceased; that the Investigating Officer after examining about 35 persons concluded that the petitioner was not present at the post and that the doubt regarding the participation of the petitioner in the occurrence would even be extended at the bail stage. 3. The petition is opposed by the learned counsel for State on the ground that a specific role is attributed to the petitioner in the FIR as he had caught hold the deceased by his arms while his co-accused shot him dead. The mere fact that the Investigating Officer made an observation that the petitioner was not found at the place of occurrence in the light of statements of 35 persons while be of no use to the petitioner at this stage particularly when he is linked with the occurrence by the eye-witnesses. The motive also allegedly extended to the petitioner because he took the deceased inside the shop at the pre-text that payment of borrowed money will be made to him. Even within the shop the petitioner had a row and quarrel with the deceased by catching the latter by his arms. It was, therefore, prayed that the petitioner had no case for bail. 4. I have considered the above submissions. It is clear that the petitioner is named in the FIR. Though, the direct motive is not attributed to him but while the deceased and the principal accused namely Muhammad Ansar were having altercation, the petitioner caught hold the deceased by his arms and took him in the shop and there too he had a row with him. The petitioner was still holding the deceased by his arms that the principal accused namely Muhammad Ansar pulled out his pistol from his "Dub" and fired a shot at him in the head. 5. Learned counsel for the petitioner has submitted that since there was no community of knowledge between the petitioner and his co-accused that the latter was having pistol in his 'Dub", he cannot be vicariously held responsible for the murder of the deceased. 6. I have given my careful consideration to this aspect and find that deeper appreciation at this stage cannot be undertaken in respect of the afore-said knowledge of the petitioner but it is enough to say that the petitioner had played a specific role in the occurrence leading to the murder of the deceased as explained above. In such a situation the petitioner has no case for bail at this stage. The petition, is accordingly dismissed. (K.A.B.) Petition dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. ( Lahore ) 1661 Present: SHEIKH LUTFUR REHMAN, J. ABDUL KARIM ETC.-Appellants versus STATE-Respondent Criminal Appeal No. 597/1995, accepted on 5-8-1997. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 324/336 & 337-A-Conviction for-Challenge to-Complainant/injured avoided from appearing before medical Board at least on three occasions and he also flouted order of learned Additional Sessions judgeHis non appearance before Board raises a presumption against him to the effect that he did not suffer injuries shown in MLR or not in manner alleged by him-Only this fact alone has made the prosecution case doubtful-Benefit of which is to go to the accused personAppeal accepted. [P. 1662]A Seenat Hussain Naqvi and Waqar Ahmed, Advocate for Appellant. Abdul Aziz Qureshi, Advocate for Complainant. S.D. Qureshi, Advocate for State. Date of hearing : 5-8-1997. judgment This is an appeal against, the judgment dated 17.9.1995 passed by Ch. Nawaz Ahmad Ghumman, Additional Sessions Judge, Lahore , whereby he convicted and sentenced the appellants as under : (i) u/S. 334 PPC 3 year RI to Ajmal and Javed Beg. (ii) u/S. 336 PPC 3 year RI to Abdul Karim accused. (iii) u/S. 337AU) PPC 6 months RI to Abdul Shakoor. All accused given benefit of section 382-B Cr. P.C. 2. The appellants and the acquitted co-accused allegedly gave fist blows and head blows to Mirza Abid Baig complainant due to election rivalry. 3. The learned counsel for the appellant at the very outset referred to the statement of Muhammad Tufail S.I. (PW.5) and submitted that the complainant (injured) did not appear before the Medical Board constituted for the purpose of re-examination although he was called by the Board for this purpose three times. He further submitted that even the direction of the learned Additional Sessions Judge to produce the injured before the Medical oard, for which his brother had given undertaking, had not been complied. The learned counsel maintained that Mirza Abid Baig (injured PW) had avoided his examination by the Board because he had not suffered the injuries as stated by Dr. Syed Noman Matloob (PW.3). According to him, the ntire case of the prosecution had shattered as the injured had avoided appearance before the Medical Board. 4. It is proved from the record that Mirza Abid Baig I jured avoided from appearing before the Medical Board atleast on three occasions and he also flouted the order of the learned Additional Sessions Judge in this record. His non-appearance before the Board raises a strong presumption against him to the effect that he did not suffer the injuries shown in the MLR or not in the manner alleged by him. Only this fact alone has made the prosecution case doubtful, the benefit of which is to go to the accused person. 5. In view of the above, the appeal is accepted and appellants are given benefit of doubt. Their convictions and sentences are set-aside and they are acquitted in this case. They are on bail. Their bail bonds are discharged. (K.A.B) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1663 (DB) [Rawalpindi Bench] Present: muhammad nawaz abbasi and ch. ijaz ahmad, JJ. MUHAMMAD SIDDIQ ETC.-Appellants versus STATE-Respondent Criminal Appeal No. 100 of 1996, accepted on 21-8-1997. (i) Suppression of Terrorist Activities (Special Court) Act, 1975 (XV of 1975)-- S. 7 read with S. 302/324 PPC-Conviction-Challenge to-Motive as alleged by prosecution is proved on record but divorce took place five years prior to incident, which could not provide sufficient cause for appellant to murder deceased-Tims immediate motive appears to be shrouded in mystery coupled with age of appellant and committed murder under directions of father, therefore, infliction of death on accused on capital charge is not warranted while sentences on remaining counts are un-exceptionable-Consequently sentence of death is converted to imprisonment for life. [P. 1668] B (ii) Witness-Interested- Interested witness-It is well known principle of criminal jurisprudence that mere relationship of witness with deceased does not provide reason of dis-believing. [P. 1668] A Basharat ullah Khan, Advocate for Appellants. Muhammad Ayub Kiani, Advocate for State. Malik Anwar-ul-Haq, Advocate for Complainant. Date of hearing : 21-8-1997. judgment Ch. Ijaz Ahmad, J.--The learned Judge Special Court No. 1 Rawalpindi for Suppression of Terrorist Activities Rawalpindi Division vide judgment dated 25.4.1996 has convicted and sentenced the appellants for the murder of Mst. Zubaida Bibi and causing injuries to Ishtiaq Ahmad P.W. 7 as follows :-- (ii Imtiaz Ahmad s/'o Muhammad Siddiq aged 29 years under Section 302/34 PPC Death sentence with fine of Rs. 20,000/- or in default one year R.I 7 years R.I. with fine of Rs. 10,000/- or in default six months R.I. Fine if recovered shall be given to legal heirs of deceased/injuried in equal shares as compensation. Transportation for life with fine of Rs. 10,000/- or in default 6 months R.I. 2 years R.I. with a fine of Rs. 5000/- or in default three months R.I. Fine, if recovered half of the same shall be given to legal heirs of deceased and injured Ishtiaq Ahmad in equal share as compensation. 2. The convicts have filed criminal appeal against their conviction and sentences which is disposed of alongwith Cr. Revision No. 52 of 1996. 3. The occurrence took place on 18.10.1994 at 10.30 a.m. in the field in front of complainant's house sitiiated in Kothra, Tehsil and District Jhelum at a distance of seven miles from Police Station Saddar Jhelum. Noor Ahmad P.W.9, husband of the deceased reported to Nazar Hussain, S.I. P.W. 18 who recorded his statement Ex. P. G in Civil Hospital Jhelum who sent the same to the police station through Ansar Mehmood P.W. 12 LHC 198 for registration of formal F.I.R. Formal F.I.R. Ex. P.G/1 was recorded by Azmat Mehmood, P.W. 15. 4. In the F.I.R. the occurrence is reported to have taken place allegedly in the following manner as per statement of Noor Ahmad P.W. 9 :-- Mst. Zubaida Bibi was my wife. On 18.10.1994 at 10.30 a.m. I alongwith my son Shahid Ahmed and Nazir Ahmed, PWs were coming towards my house from my haueli. My wife Mst. Zubaida Bibi was working in front of my house in the field. Again said in front of door of my house. Ishtiaq P.W was standing in the door of my house, Meanwhile Muhammad Siddiq accused empty handed and Imtiaz Ahmed accused armed with rifle 222 bore appearing like klashiiikov, appeared coming from their house. On approaching near electric poles, Siddiq accused raised lalkara that the house of his daughter has been ruined at the instance of us, therefore, we should not be spared. Siddiq accused exhorted Imtiaz co-accused that he should kill each one of us. At this Imtiaz accused fired a burst from his rifle in a spray fashion resulting two injuries of firearm to my wife, 3 injuries of fire-arm to my son Ishtiaq, P.W. My wife Mst. Zubaida Bibi died at the post after sustaining injuries. Ishtiaq Ahmed, my son, P.W. also fell down. We, other P.Ws. took shelter behind wall of my house and thereafter both the accused fled away from the place of occurrence alongwith their weapons. The motive behind the occurrence was that daughter of Muhammad Siddique convict was married to the son of Muhammad Sharif. Her name aws Mst. Naseem Bibi. His sons Abdur Razzaq and Altaf are married to two daughters of aforesaid Muhammad Sharif. The convict suspected that his two sons aforesaid were instruments in the divorce of his death Mst. Naseem and kept two sons by her husband in England. The convicts used to come to them before present occurrence and used to complain that they were responsible for broken house of their daughter. A day prior to the occurrence both the convicts come to their house and threatened the wife of the complainant that they would dealt with badly. In case they could not arrange for return of children of their daughter from England within a week they would take revenge. 5. Dr. Tahir Bashir P.W. 13 conducted the Postmortem Examination on 18.10.1994 at 5.30 p.m. on the dead body of the deceased Mst. Zubaida Begum aged 50 years and found the following injuries :- 1. An entry wound 1 x 1 on with inverted edges blackening 6 cm from the suppra sternal edge on the side of right neck, 4 cm from the crimcid cartilage. 2. A firearm entry wound with blackening of edges on the right lumber region, 7 cm from umbilicus. 3. An exit wound 4 x 2 cm on the back of left chest 5 cm from the inferior poll of the left scapula, 3 cm from the middle line. 4. An exit wound 3 x 2 cm on the back of left belvis. 19 cm from the interior ilac spline. In the opinion of the doctor all the injuries were ante mortem in nature and were caused by firearms. Injuries No. 1 and 2 were sufficient to cause death in due course of nature. Death was due to haemorrhage and shock. Probable time that elapsed between injuries and death was immediate and time between death and postmortem was form 6 to 10 hours. 6. The blood-stained earth was taken into possession vide memo Ex, P.D from the spot on 18.10.94 which was attested by Nazar Hussain, S.I. P.W. 18, Muhammad Iqbal, P.W. 3 and Muhammad Yaqoob, P.W. 6. It is pertinent to mention there that the reports of the Chemical Examiner and Serologist were found positive. Eleven empties P.4/1-11 of 222 bore rifle were also recovered from the spot on 18.10.94 vide memo Ex. P.E and the attesting witnesses are Nazar Hussain P.W. 18, Muhammad Ishaq P.W.7 and Zahid Mehmood, P.W. (not produced). Muhammad Siddique appellant aws arrested on 13.1.1994 by P.W. 18. Imtiaz Ahmad appellant aws not traceable and proceedings under Section 87 Cr.P.C. were initiated against him and sent the challan against him under Section 512 Cr.P.C. Subsequently Imtiaz Ahmad was arrested and a separate challan was submitted against him by Muhammad Shoab, Inspector S.H.O. Ex. P. 5 rifle 222 and live rounds Ex. P.6/1-15 were taken into possession on the pointation of Imtiaz Ahmad appellant from his house on 6.7.1995 vide memo Ex. P.F which was attested by Muhammad Aslam, P.W.8, Ijaz Ahmad P.W (not produced) and Muhammad Shoab, Inspector S.H.O. 7. The prosecution produced two eye witnesses namely Noor Ahmad, P.W. 9, husband of the deceased and P.W. 10 Ishtiaq Ahmad, injured son of the deceased to depose the ocular account while the appellants under Section 342 Cr.P.C. controverted the allegations and pleaded themselves absolutely innocent in the matter as per statement of Imtiaz Ahmad as follows : P.Ws. except police officials are related to the deceased and are inimical to me and my father, they have deposed falsely out of motivation against us. In fact there was a dispute of house which was owned by Muhammad Sharif, my uncle and complainant party was in possession of said house and we wanted to get its possession back. True facts of the case are that it was routine of commission of dacotiee case in the village prior to the present occurrence and this occurrence also took place in small hours of night in a fashion resembling in the tales the previous dacotiees. None could identify the real assailants and we have been involved in this false case on suspicion and enmity by the complainant party. This fact is borne out by the fact that police had been arresting and releasing persons under section 54 Cr.P.C. 8. The learned counsel appearing on behalf of the appellants argued as follows :-- (i) Ex. P.D and Ex. P.E reveal that place of occurrence is house of the complainant whereas F.I.R. reveals that the occurrence took place in the field in front of the house of the complainant, therefore, it creates doubt in the story of the prosecution. (ii) Medical evidence qua the eye witnesses contradicts each other. According to the medical evidence diamention of the injuries reveals that two firearms were used in the incident. (iii) The prosecution only produced two eye witnesses who are interested and inimical witnesses and their statements need independent corroboration and there is no independent corroboration in the present case, therefore, sentences awarded to the appellants are not sustainable in the eyes of law. (iv) The motive as alleged by the prosecution was not proved on the record and in fact motive shrouded in mystery. (v) The prosecution has set up specific motive who failed to prove on the record and, therefore, capital punishment could not be awarded to Imtiaz Ahmad appellant and argued that it is a fit case to awarded lesser sentence to Imtiaz appellant. (vi) The prosecution failed to prove recovery of rifle from Imtiaz appellant as the recovery was effected through interested witnesses and the prosecution failed to produce the independent witnesses, therefore, recoveiy of rifle from the appellant is in violation of Section 103 of Cr.P.C. (viii) The prosecution failed to produce three witnesses namely Nazir, Mst. Amina Bibi and Shahid mentioned in the F.I.R. which creates the doubt that if they were produced they would not support the prosecution case. (viii) The prosecution failed to produce thrse eye witnesses mentioned in the F.I.R. namely Nazir, Mst. Amina Bibi and Shahid and out of these three Nazir is an independent witness, therefore, adverse inference can be drawn against the prosecution. (ix) The statement under section 161 Cr.P.C. of Ishtiaq Ahmad was recovered after four months and there is no hole or mark on the deceased's clothes which creates doubt against the prosecution. (x) Site plan contradicts the statements of eye witnesses and both the eye witnesses contradicts each other. 9. The learned counsel for the State and the complainant supported the judgment of the learned trial Court and argued that the F.I.R. was lodged promptly. The incident took place in a broad day light. The eye witnesses had no serious enmity qua the appellants as the divorce took place five years before the incident. The motive was proved on the record and the medical evidence corroborated eye witnesses on all material points. Convict Imtiaz Ahmad absconded from the scene and proceedings under Sections 187/188 Cr.P.C. were conducted against him and he was arrested 7/8 months after the incident whereas his co-appellant was arrested immediately after the incident. 10. As a result of the above discussion keeping in view the irrefutable realities established by the statements of the eye witnesses in particular thereof, injured P.W. 10, the medical evidence and the motive prosecution has established its case against the appellant Imtiaz Ahmad beyond any shadow of doubt. Injured eye witness who saw the occurrence satisfactorily accounted for as he was injured and the defence failed to established that the injury attributed to him was self-inflicted, prosecution case on the lines of such eye witnesses is free from doubt. It is well known principle of criminal jurisprudence that mere relationship of witnesses with the deceased does not provide reason of disbelieving them. We do not find any contradiction in the statement of the eye witnesses qua the medical evidence, therefore, we dismiss the appeal of Imtiaz Ahmad appellant. 11. Adverting to the sentence, the motive as alleged by the prosecution is proved on the record but the divorce took place five years prior to the incident which could not provide sufficient cause for the appellant to murder the deceased. Thus immediate motive appears to be shrouded in mysteiy coupled with age of the appellant and committed the murder under the directions of the father, therefore, infliction of death on Imtiaz on the capital charge is not warranted while sentences on the remaining counts are un-exceptionable. Consequently the sentence of death is converted to imprisonment for life. Muhammad Siddique appellant aged 67 years was empty handed and the only allegation against him was lalkara. As mentioned above the immediate motive was shrouded in mystery then possibility could not be ruled out that the fight took place between the parties all of a sudden. Resultantly the deceased was murdered. Keeping in view these circumstances in juxta position then the possibility cannot be ruled out that Imtiaz Ahmad appellant inflicted fire shot without instigation of his father. In view of these circumstances Muhammad Siddiqu's appeal is accepted. He shall be released forthwith if not required in any other case. The criminal revision filed by the complainant is dismissed. (K.A.B) Appeal accepted.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1669 (DB) [Rawalpindi Bench] Present : RASHID AZIZ KHAN AND MUHAMMAD NAWAZ ABBASI, JJ. THE STATE-Appellant versus MUHAMMAD ASLAM ETC.-Respondents Criminal Appeal No. 1171 of 1980 dismissed on 16-4-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- -Ss. 302/307/148/149-Acquittal-Challenge to-Conflict of eye witnesses account with medical evidence on distance and range of firing is not ignorableConfusion and suspicion that in what manner and who took initiative created must be used for benefit of accused, out of two versions, which are/is correct and near to truth being shrouded in mystry, the view favourable to accused is to be given preference-Taking into consideration circumstances under which occurrence took place and cloudy story put up by prosecution, it appears that as a result of attack by complainant at Kammies a quarrel took place between two groups and some persons from both side inviting exchange of firing caused injuries to PW's and eceased who alongwith many other reached at the spotUndoubtedly oth parties being guilty of suppression of material facts, evidence of eye witnesses despite being injured cannot be given much weight and relied upon as such without independent corroboration which is not available in this case-Appeal dismissed. [P. 1673] A & B Rqja Ayub Kiani, Advocate for State. Shafat Khan Abbasi, Advocate for Respondents. Date of hearing: 16-4-1997. judgment Muhammad Nawaz Abbasi, J.This judgment will dispose of Crl: Appeal No. 1171/80 filed by the State against the acquittal of the respondents namely Muhammad Aslam, Muhammad Akram, Muhammad Ashraf, Muhammad Akhtar, Fateh Muhammad and Muhammad Sharif by the learned Additional Sessions Judge, Jhelum vide judgment dated 27-4- 1980. 2. Briefly the facts of the case in the background are that there was litigation on the dispute of land between the father of Muhammad Zarat and Muhammad Aslam, which ended in favour of Muhammad Zarat a year before the occurrence. About two years ago Muhammad Yousaf and Muhammad Zar Macchi by caste resident of village caused injuries to Muhammad Aslam, the matter was not reported to the police but Muhammad Aslam being annoyed with the said Muhammad Yousaf and Muhammad Zar demanded from Muhammad Zarat and Muhammad Hussain complainant the social bycot of the above said Macchis but the complainant and Muhammad Zarat continued taking benefit of the service of these kamis during the marriage parties and other family functions. A day earlier before the occurrence Muhammad Zar and Muhammad Yousaf were desisted from taking water from the well Mochianwala by Muhammad Aslam etc. with the intervention of respectables, the issue was resolved and they were permitted to get water from the well in question. However, Muhammad Aslam etc. declared in the village that Rajgans would not be allowed to get water from this well. On the day of occurrence at about 1.00 in the afternoon Muhammad Yousaf and Muhammad Zar went to the well for getting water when Muhammad Aslam armed with soti Akram with rifle, Muhammad Ashraf, with Muhammad Akhtar and Fateh Muhammad sons of Alam armed with 12 bore guns and Sharif carrying soti raising lalkara appeared at the well. Muhammad Yousaf and Muhammad Zar raising hue and cry run towards the village whereupon Muhammad Yousaf son of Allah Ditta, Muhammad Ibrahim and Muhammad Shafat PWs carrying 12 bore guns reached at the spot and in consequence thereof parties exchange firing. The shot fired by Akram hit on the back of Yousaf whereas the complainant was injured with the shots fired by Ashraf and Akhtar. Muhammad Shafat in his protection and in the protection of complainant and PWs fired in return. The occurrence was also witnessed by'Noor Hussain, Nawab Khan and Noor Muhammad. Muhammad Yousaf succumbed to injuries at the spot. Muhammad Zarat and Muhammad Zar Mocchi of the village being controversial between the two tribes namely, Gujar and Rajput Ghaghar, they stood against each other. 2. The motive as stated was that father of Muhammad Zarat had strained relation with Muhammad Aslam, accused, due to the dispute of land which ended in favour of the former through process of law and that Muhammad Yousaf and Muhammad Zaar Macchies caused injuries to Muhammad Aslam two years prior to the occurrence, who demanded from Muhammad Zarat and Muhammad Hussain, the social bycot of these macchies of the village. 3. The investigation of the case was carried by Sikandar Hayat, SHO, who collected blood stained earth and 10 empties cartridges, of 12 bore gun two empties of 7 mm rifle from the spot and took into possession gun from Shafat. The weapon of offence having not recovered from the appellants, the recovery of empties was of no consequence. Muhammad Hussain, injured PW was medically examined on the same day by the doctor who conducted postmortem examination of the dead body. 4. Dr. Asghar Hussain, Medical Officer (PW.l) examined Muhammad Ibrahim PW on 13.2.1978 and found one lacerated wound on the left side of his chest between neck and left shoulder joint. Margins of the wound were inverted and were brownish in colour. It was caused by fire-arm and was declared grievous. 5. On 14.2.1978 the said doctor also examined Muhammad Hassan PW and found a lacerated wound on the left side back of the neck one inch below the left ear, upon his person. It was caused with blunt weapon and was declared as simple. 6. Dr. Asghar Hussain, Medical Officer (PW. 4) conducted the postmortem examination on the dead body of deceased on 14.2.1978 at 10.00 a.m. and found the following injuries on his person :-- 1. A lacerated wound 1%" x ^" into thorax cavity deep with inverted margins. There was blackening around the wound on the upper third between two scapula on the left. 2. A bruise 2" x 1" on the left front lower part of the neck. Capt. Dr. Zamir Akhtar (PW.2) medically examined Muhammad Sharif on 17.2.1978 and found one rounded lacerated wound 1/2" x 3/8" on front side of the right shoulder, on the person of the accused. It was simple and found to have been caused with fire-arm. 7. The prosecution in addition to the evidence of Doctor who performed postmortem of dead body and medically examined the injured PWs and Muhammad Sharif accused, mainly relied upon the evidence of ocular account of eye-witnesses, namely, Muhammad Hussain, Ibrahim, Shaukat and Muhammad Yousaf, who in their statements at the trial repeated the story of the prosecution with some changes and improvements Muhammad Aslam, accused/respondent in his statement under section 342 Cr.P.C. in answer to question No. 17 stated as under :-- "The actual fact is that Fateh Muhammad and Muhammad Sharif my co-accused and myself were present on the Mochianwala well in the after noon. Muhammad Zar and Muhammad Yousaf came there. On seeing us, they ran away. We were completely unarmed. Shortly thereafter, Yousaf, Muhammad Shafat, Muhammad Ibrahim and Muhammad Hassan came there behind each other variously armed with fire-arms. They opened an assault upon us, which resulted in causing injuries to Muhammad Sharif, accused. Yousaf deceased also received a fatal injury at the hands of his companions and so did Muhammad Ibrahim PW. We were falsely implicated." The defence further in cross-examination while putting suggestion to the witnesses brought on record defence plea of aggression of the complainant party. 8. The eye-witnesses have categorically stated that the shots were fired at them from a distance of about 40 karms when they were facing towards the accused whereas according to medical evidence, the wounds were blackened and the seats of injuries were on the back of the deceased and the injured PWs. This is in the evidence of Muhammad Hussain that shot fired by Ashraf and Akhtar hit him and Muhammad Ibrahim respectively but he taking a diversion from the initial story through making changes assigned a specific role to Ashraf and Akhtar accused. According to him Shafqat PW fired successive shots in return and he while running with Yousaf and Ibrahim received injuries and that complainant received injury from a distance of 24 karms. He admitted that the complainant party intended not to allow the respondents to get water from the disputed well and as a result thereof a dispute arose between the two groups which caused the fateful occurrence. The other witnesses almost made the similar statements. The evidence of recovery and the motive having not proved as excluded from consideration. The medical evidence being in conflict with the eye-witness account, no reliance was placed on the statement of the eye witnesses despite the fact that they were injured and defence having admitted occurrence did not dispute their presence. 9. The learned counsel for the appellant contends that the defence having admitted the occurrence, the evidence of injured witnesses was sufficient to establish the charge without any corroboration. He contended hat despite the material contradiction and discrepancy in evidence, the statements of the injured witnesses being truthful were entitled to be given full weight. He placing reliance on the case reported as Usman Khan and others versus The State (PLD 1969 SC 293) argued that the view of the evidence taken by the trial Court being perverse and artificial, the acquittal of respondents is not sustainable. 10. The learned counsel for the respondents argued that the exchange of firing between the parties, being admitted, as per version given by the prosecution, both sides without taking any exception became tensive over the issue of Macchies and dispute of water. The complainant party having made the same a matter of their prestige desist the appellant from getting water from the well and in consequence thereof complainant side went to the extent of causing violence over the issue. He submitted that the prosecution story itself disclosed aggression of the complainant and therefore, the appellant under compelled circumstances acting in exercise of their right of self defence, caused injuries to the complainant party. 11. We have heard the learned counsel for the appellant as well as the learned counsel appearing on behalf of the respondents and carefully perused the record with their assistance. 12. The taking place of the occurrence with the participation of the parties is not disputed. The occurrence is admitted by the accused with the plea that complainant party was the aggression and they acted in their self defence exchanged firing. The evidence of eye-witnesses unambiguously disclosed that the parties did not stand against each other for the dispute of land or causing of injury to Muhammad Aslam etc. by Muhammad Zar etc. two years ago but the real bone of contention was Kammies of village who were condoned by the complainant side not to be encouraged by the members of any Zamindar tribes but, the accused party continuously permitted them, to participate in their family functions. This has felt insulted by the complainant party, who with a view to put their command were not prepared to compromise with the situation. According to the story, the Kammies went to the well for taking water when they were attacked by the complainant party and the reaching of accused at the spot for their help made the matter complicated. The fire arm injury on the person of Sharif and the exchange of firing by Shafat is an essential element in favour of defence version. The shot having made from a distance of 40 karms could not possibly cause injuries to the deceased or PWs and, therefore, the complainant parly through suppression of the material facts disclosed the maximum distance of firing to establish the aggression of other side in contradiction to the medical evidence, according which the injuries were caused from a close range. Thus withholding the correct position and suppression of actual state of affairs, has created a serious doubt about the correctness of the prosecution version. The conflict of eye witness account with the medical evidence on the distance and range of firing is not ignorable. The confusion and suspicion that in what manner and who took initiative created must be used for the benefit of accused, out of the two versions, which are/is correct and near to truth being shrouded in mystery, the view favourable to accused is to be given preference. 13. Taking into consideration the circumstances under which the occurrence took place and the cloudy story put by the prosecution, it appears that as a result of attack by the complainant at Kammies a quarrel took place between the two groups and some persons from the both side inviting exchange of firing caused injuries to the PWs and the deceased, who B alongwith many other reached at the spot. Undoubtedly both parties bein fc guilty of suppression of material facts, the evidence of the eye-witnesse^ despite being injured cannot be given much weight and relied upon as such without independent corroboration which is not available in the present case. 14. The ocular account of eye-witnesses carrying personal grievance and complaint against respondents without having the support of corroboration evidence could not be believed to accept the prosecution version correct beyond doubt and consequently the conviction on the basis of their testimony was not safe. The view of the evidence taken by the learned trial Court being not suffering from any infirmity, perversity and not being fanciful is un-exceptionable. The occurren e having taken place in the year 1978, the trial was concluded in April 1980, and the interference in this appeal against the acquittal of the respondents after lapse of a period of about 19 years through reappraisal of extensively saky evidence of eyewitnesses is not justified. We accordingly do not find any substance in this appeal which stands dismissed. (K.A.B.) Appeal dismissed.
PLJ 1997 Cr PLJ 1997 Cr. C. (Lahore) 1674 [Multan Bench] Present: tassaduq hussain jillani, J. ABDUL RASHEED-Petitioner versus STATE-Respondent Crl. Misc. No. 394-B-1997, dismissed on 31-7-1997. Bail- -S. 4970) Cr. P.C.-Bail-Grant of-Prayer-Statutory delay-Offence u/s 302, 324, 337-A (ii), 148 and 149 PPC-It is a matter of record that more than one adjournments of case had taken place on account of petitioner's counsel being not available-Therefore, benefit of third proviso to S. 497(1) Cr.P.C. cannot be extended in favour of petitioner as delay in trial of case had partly occasioned on account of adjournments secured by his counselPetition dismissed. [P. 1675] A Syed Murtaza Alt Zaidi, Advocate for Petitioner. Shaukat All, Advocate for State. Date of hearing : 31-7-1997, order The petitioner seeks bail in a case F.I.R. No. 58 of 1995 dated 2.2.1995 under sections 302/324/337-A (ii)/148/149 PPC Police Station, Gaggo District Vehari, mainly on the statutory ground i.e. more than two years have lapsed since the registration of the case and the trial has not concluded. 2. The prosecution story as given in the F.I.R. briefly stated is that petitioner alongwith others having armed themselves with deadly weapons attacked the complainant party as a result of which, petitioner's son Allah Ditta died and others received injuries. 3. Learned counsel for the petitioner relies on Zahid Hussain Shah v. The State (PLD 1995 Supreme Court 49) to contend that after the expiry of the statutory period petitioner earns a right to be released on bail. He lastly contended that the adjournments sought by the counsel for the accused cannot be attributed to the petitioner. In support of this submission, he refers to LiaqatAli v. The State (PLJ 1997 Crl. C. ( Lahore 348). 4. Learned counsel for the State on the other hand, has opposed the prayer for bail by submitting that petitioner is attributed a specific injury to the deceased; that the delay in trial is attributable to the petitioner and that the offences alleged being heinous, petitioner is not entitled to the grant of bail. 5. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar. 6. A report was called from the learned trial court as to the factors which led to delay in trial. As per the said report, the case was adjourned on the request of the learned counsel for the petitioner on 21.10.1996, 24.11.1996 and 19.2.1997. On 13.3.1997, the case could not proceed as one of the accused was not present Again on 27.3.1997, the case had to be adjourned on the request of learned counsel for the petitioner and on 26.5.1997, against defence counsel was absent. It is evident that the trial has prolonged partly on account of adjournments sought by learned counsel for the petitioner. The contention of the learned counsel for the petitioner that the adjournments sought by learned counsel for the petitioner cannot be attributed to the petitioner is not a correct exposition of law and is conflict with the law laid down by the Hon'ble Supreme Court in Syed Abdul Baqi Shah vs. The State (1997 SCMR 32) wherein at page 34, it was observed as under :-- "The perusal of the above provision of law certainly extends in favour of the accused person a statutory right to b° enlarged on bail, if he is charged with an offence punishable with death and period exceeding two years had elapsed since his detention but the trial has not concluded, provided the delay in the trial has not occurred by an act or omission on his part. It is a matter of record that more than one adjournments of the case had taken place on account of petitioner's counsel being not available therefore, the benefit of third proviso to Section 497 (1), Cr.P.C., cannot be extended in favour of the petitioner as the delay in the trial of the case had partly occasioned on account of the adjournments secured by his counsel." 5. For what has been discussed above, there is no merit in this petition which fails and is hereby dismissed. (K.A.B.) Petition dismissed.
PLJ1997 FSC 1 PLJ1997 FSC 1 Present: dr, FlDA MUHAMMAD KHAN, J. MUQARAB KHAN and another-Appellants versus STATE-Respondent Criminal Appeal No. 217/1 of 1995, dismissed 18-2-1996. Pakistan Penal Code, 1860 (XLV of 1860)-- -S. 377/337-A and 511/34-Sodomy-Offence of-Convictiori for-Challenge to~Depositions made by PWs are consistent that appellants had taken off halwar of victim and had removed their Shaiwars also-To this extent commission of offence under the provisions of Section 377 PPC read with section 511/34 PPC is clearly made out-There is nothing on record to substantiate the plea of enmity taken by appellant-They have neither produced any evidence in defence nor examined themselves on oath in rebuttal of charges levelled against them-Held : Prosecution has established its case against appellant beyond any shadow of doubt- Appeal dismissed. [P. 5] A Ch. Mehmood Akhtar, Advocate for Appellants. Mr. Muhammad Saliheen Mughal, Advocate for State. Date of hearing: 18.2.1996. judgment This appeal filed by (1) Muqarab Khan son of Noor Khan, resident of Bakhari Khurd, District Chakwal and (2) Muhammad Imran sons of Mehr Khan, resident of Dhoke Jabi Dakhli Thaneel Kamal, Police Station Nila, District Chakwal is directed against the judgment dated 30.10.1995 passed by learned Additional Sessions Judge, Chakwal whereby he has convicted the appellants/accused under sections 377/511 PPC read with section 34 PPC for making an att^npt to commit sodomy with Shaukat Mehmood, victim and sentenced them to two years R.I each. He has further convicted both the appellants under section 337-A (i) PPC read with section 34 PPC for causing injury to Shaukat Mehmood and sentenced each of them to one year R.I. and has also directed them to pay Daman amounting to Rs. 5000/- each to the victim. In default of payment of Daman further imprisonment of four months has been ordered. Both the appellants/accused have also been convicted under section 377-F(ii) PPC read with section 34 PPC and sentenced to six months R.I. and payment of Rs. 2000/- each as Daman to the victim. In default of payment of Daman further two months imprisonment each has been ordered. 2. Briefly stated the case of prosecution as recorded Ex. PL in written application submitted by Ghulam Mustafa, father of Shaukat Mehmood, victim is that his son Shaukat Mehmood aged ten years who had gone to graze cattle in a jungle was forcibly taken by the appellants in a aize field where they forcibly took off his clothes and asked him for sexual intercourse and on his denial tried to cut his throat with the churri and sickle possessed by them. The hue and cry made by the said Shaukat Mehmood attracted Muhammad Azam and Ghulam Muhammad who saw Shaukat Mehmood lying on the ground in naked condition and the appellants also with their shalwar taken off. On seeing them they took their clothes and made good their escape in the nearby jungle. Both the PWs wrapped Shaukat Mehmood in their chaddar and took him to his house. The application was incorporated into formal FIR. The appellants/accused were arrested on 17.9.1994 and after necessary investigation challaned to face the trial. 3. At the trial the prosecution examined nine witnesses in all. P.W. 1 is Dr. Munir Ahmad Langah who on 5.9.1994 medically examined the victim Shaukat Mehmood and observed as under :-- "1. An incised wound 3 cm x \ cm x skin deep on right side of neck 5 cm below right ear lobule. 2. An incised wound 3 cm x 1 cm x skin deep just below injury No. 1. 3. An incised wound 3 cm x \ cm x skin deep on front of neck just below chin. 4. A lacerated wound 3 cm x \ era x skin deep on front of nock. 5. An incised wound \ cm x ^ en; x muscle deep on outer side of left thigh. 6. Reddish contusion with swelling 4 cm x 4 cm around left eye. P.W. 2 is Dr. Muhammad Haleem Danish who examined Maqarab Khan and Muhammad Iniran on IS.9.94 and found them potent. He also examined the victim Shaukat Mehmood on 21.9.1994 at 2.30 p.m. and ohserved as under :- "There is no external mark of violence around the anal orifice. On internal examination of anal canal there is no tear of redness. Two anal swabs one external and one internal were taken and sealed in a glass bottle and sent, to the Chemical Examiner, Rawalpindi for detection of semen or otherwise. According to my opinion the act of sodomy has not done on this boy. However final report will be given after the receipt of chemical report." P.W. 3 is Atta Muhammad, Constable. On 22.9.1994 Muhammad Durau, HC P.W. 4 handed over to him a sealed phial containing swabs and sealed envelope for onward transmission to the office of Chemical Examiner which he delivered there on the same day intact, P.W. 4 is Muhammad Duraiz, HC who had kept the sealed parcels in malkahana on 21.9.1994 and handed over to P.W. 3 on 22.9.1994. P.W. 5 is Muhammad Azad. He is an eye witness who while grazing h's catties on the western side of the village alongwith Ghulam Muhammad heard the voice of victim Shaukat Mehmood and rushed towards him. He saw that Muqarab Khan and Imran Khan were in naked position and they had also got Shaukat Mehmood naked aud were dragging him towards koindar and had given him injuries with sic'.lcs. C)a seeing them both the accused fled away leaving Shaukat Muhmood bleeding by his neck. He wrapped Shaukat Mehmood with \ispurno and brought him to his house. He produced blood stained puma P 3 before police at ['c: : ce Station Nila in the presence of Ghulam Muhammad PW which puma was taken into possession by the police vide recovery memo Ex. PK aUthU/d by him as well as his father Ghulam Muhammad. P.W. 6 is Ghulam Muhammad. He also saw the occurrence. He fully supported the version made by P.W. 5, his son. P.W. 7 is Shaukat Mehmood. He made a statement in the following words :- "On 5.9.1994 I was grazing the cattle in the jungle out side the village. At about 3.00 p.m. Imran and Muqarab accused present in the court were cutting the fodder for thi.ij cai'it in a nearby field. Muqarab accused called me but 11 efusL.! u.» accompany him. Then he forcibly took me and thereafter both the accused put off my clothes and they also put off their shalwars. First Muqarab accused committed sodomy with me while Imran accused caught hold off my neck. Thereafter Imran accused committed sodomy with me. Muqarab gave sickle on my thigh and thereafter both the accused gave sickles blows on my neck. Azad and Ghulam Muhammad PWs attracted on my noise. On seeing them both the accused fled away. Both the PWs wrapped me in parna and brought me in my house. My father took me to the hospital at Chakwal where I was medically examined. I remained admitted in the hospital eight days. 1 was also medically examined at RHC, Monday after 11/12 days of my first medical examination." P.W. 8 is Ghulam Mustafa. He is the complainant who reiterated his statement as mentioned hereinabove. P.W. 9 is Muhammad Ayub S.I. He received written application Ex. PL alongwilh medical certificate from Ghulam Mustafa, complainant and on the basis of this application he formally recorded FIR Ex. PL/1. He also took into possession blood stained parna P3. He arrested the accused on 17.9.1994. After completion of investigation he challaned the accused to face the trial. Report of Chemical Examiner Ex.Ph reveals that the swabs were stained with semen. 4. Both the appellants/accused made statements under section 342 Cr. P.C. wherein they denied the allegation and pleaded innocent. Both the appellants made statements that the PWs are closely related to the complainant and the victim and they had deposed falsely on the asking of complainant who was inimical to them. They declined to produce evidence in defence. They also declined to appear on oath in disproof of allegation levelled against them as provided under section 340(2) Cr. P.C. 5. I have heard the learned counsel for the parties and have perused the record with their assistance. Learned counsel for the appellant made submission regarding delay in lodging FIR. He contended that there is no allegation of act of sodomy against the appellant and also did not mention the name of appellant No. 2. He further submitted that the MLR conducted on the same day by Dr. Munir Ahmad Langa P.W. 1 did not disclose that any act of sodomy or an attempt to commit sodomy have been done on the victim and it was only on 21.9.1994 that the allegation of sodomy was introduced. He further submitted that there was no corroboration to the commission of the offence of sodomy. He also submitted that the injuries on the person of victim contradicts the opinion of Dr. Munir Ahmad P.W. 1. 6. I have thoroughly and anxiously appraised the available record in the light of submissions made by the learned counsel for the appellants. It transpires from the record that the application dated 8.9.1994 contains the names of accused as Maqarab Khan son of Noor Khan and Qasim son of Mehr Khan. However, it is to be noted that the complainant had got the application Ex. PL drafted by a clerk of an Advocate and as volunteered by him in the cross-examination, he inadvertently got written the name of Qasim instead of his brother Imran but he got corrected it later on in his supplementary statement. The reason for mixing up the name of Qasim with Imran was due to the fact that both are sons of Mehr Khan and brothers inter se. The statements of P.W. 5, P.W. 6 and P.W. 7 are consistent as far as the name of Imran is concerned. Even otherwise it is not the case of Muhammad Imran, appellant/accused that instead of his brother he was falsely substituted by the prosecution. 6. Though P.W. 7 has alleged that the appellants/accused had committed sodomy with him, the necessary corroboration to this effect is lacking on the record. P.W. 1 Dr. Munir Ahmad Langah who examined him soon after the occurrence on the same day has not mentioned any thing about the commission of sodomy upon Shaukat Mehmood. It appears that he was not reported to about the commission of un-natural intercourse with the boy, therefore, he examined him only in respect of injuries caused on his neck, thigh and eye. As such he restricted his observation only to the extent of wounds. Later on P.W. 2 Dr. Muhammad Haleem Danish examined him on 21.9.1994 who opined that according to his opinion that act of sodomy had not been done on him. In these circumstances the allegation of commission of sodomy remains doubtful. Though the Chemical Examiner's report Ex. PH is positive, in the circumstances it alone cannot be made a safe base for conviction of the appellant for the offence of commission of sodomy. However, the depositions made by P.W. 5, P.W. 6 and P.W. 7 are constant that the appellants/accused had taken off shalwar of the victim and had removed their shalwars also. To this extent commission of offence under the provision of section 377 PPC read with section 511/34 PPC is clearly made out. So far as the injuries on the person of Shaukat Mehmood are concerned they are vety much clear from the evidence of P.W. 1 Dr. Munir Ahmad Langah who examined him on 5.9.1994 at 8.30 p.m. The discrepancy about the infliction of wounds by a sickle or any other sharp edged weapon is not material as according to the statement of P.W. 7 and as observed by PWs may not be fully correct. There is nothing on record to sub tantiate the plea of enmity taken by the appellants/accused. They have neither produced any evidence in defence nor examined themselves on oath in rebuttal of the charges levelled against them. In this view of the matter I find that the prosecution has established its case against the appellants/accused beyond any shadow of reasonable doubt. 7. Therefore, for the reasons stated above, I maintain the conviction and sentences of the appellants and dismiss their appeal. The sentences awarded to the appellants shall, however, run concurrently and the benefit of section 382-B Cr. P.C. shall also be extended to them. (M.S.N.) Appeal dismissed.
PLJ 1997 FSC 6 PLJ 1997 FSC 6 [Appellate Jurisdiction] Present: nasir aslam zahid, J. NUSRAT-Appellant versus STATE-Respondent Criminal Appeal No. 18-1 of 1996 decided on 5.3.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- -S. 540-Court can re-examine any witness if his evidence appears to the court essential for just decision of case. [P. 8] A (ii) Cross-examination-- Right to cross-examine is not an empty formality but a valuable right and is the best method for ascertaining truth-Opportunity to cross-examine a witness contemplated by law must be real, fair and reasonable. [P. 8] B (iii) Re-examine-- Absence of advocate-Effect of-Contention that appellant should not be penalized for absence of his advocate-Case is remanded with the direction that prosecution witnesses will be recalled and allowed to be cross-examined on behalf of appellant-After this exercise has been completed, a fresh statement under Section 342 Cr. P.C. shall be recorded and, in case appellant desires, he will be allowed to give his statement on oath u/S. 340(2) Cr. P.C.-If appellant wants to produce any witnesses in defence, such opportunity will also be extended to him. [P. 8] C Syed Raza Abbas Naqvi, Advocate for Appellants. Mr. M. Saliheen Mughal, Advocate for State. Date of hearing: 5.3.1996. judgment This appeal has been sent by Nusrat son of Malik Afsar Awan against the judgment dated 30-11-1995 passed by the learned Addl. Sessions Judge, Rawalpindi in Hudood Case No. 85/94, whereby the appellant has been convicted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced to 3 years R.I. Benefit of section 382-B Cr. P.C. has been extended to the appellant. I have heard the arguments of Syed Raza Abbas Naqvi, learned counsel for the appellant and Mr. M. Saliheen Moghal, learned counsel for the State. 2. According to the prosecution case (FIR No. 408 dated 15-8-1992 P.S. Wah Cantt, District Rawalpindi), on the morning of 15-8-1992, complainant Mst. Safiya Bibi (aged about 17 years) went for answering the call of nature when the appellant appeared in naked condition, .caught hold of the complainant, put her on the ground with the object of committing zina but, on the cries of the complainant, P.Ws. were attracted and the appellant could not succeed in his evil design. The appellant, who ran away, according to the prosecution witnesses, was arrested on the next day and, after completion of investigation, he was challaned under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Four witnesses appeared at the trial on behalf of the prosecution, namely, complainant P.W. 1 Mst. Safyia Bibi; P.W. 2 Muhammad Sabir, who was attracted to the scene of the incident on the cries of the complainant; P.W. 3 S.I. Shafique Ahmad Mirza, who had formally recorded the FIR and P.W. 4 1.0. Muhammad Aslam Khan. The record shows that, when the evidence of the 4 prosecution witnesses was recorded, no advocate on his behalf was present and the appellant did not cross-examine auy witness. After the conclusion of the prosecution evidence, the case was adjourned to 1-11-1995. In the meantime, on 29-10-1995, an application for bail of the appellant was moved which was granted and the appellant who had been taken into custody was released on bail again. The next date of hearing before the trial Court, as observed, was 1-11-1995 when an application was moved by learned counsel for the appellant under section 540 Cr. P.C. to give an opportunity to the appellant through counsel to cross-examine the witnesses of the prosecution. On the same day statement of the appellant was recorded under section 342 Cr. P.C. and, later on by order dated 19-11-1995, the application moved on behalf of the appellant under section 540 Cr. P.C. was dismissed on the ground that the evidence had already been completed. As noted, by judgment dated 30- 11-1995, the trial Court convicted and sentenced the appellant. 3. Syed Raza Abbas Naqvi, learned counsel for the appellant, has submitted that this is a case of miscarriage of justice pointing out that, within 3 months of the case having been registered, the appellant was granted bail by the learned Sessions Judge, Rawalpindi, but the Sessions court did not proceed against the appellant and was adjourned sine die. According to learned counsel, later on the appellant, who was on bail, received notice from the Court and he appeared but did not inform the counsel and, as noted, the evidence of the witnesses of the prosecution was recorded in the absence of the counsel for the appellant. It is further informed by learned counsel for the appellant that the family of the appellant later on informed the learned counsel that the trial had started and that appellant had been taken into custody again. When inquiries were made it came to light that the appellant had been taken into custody again as he had appeared late and in the meantime the entire evidence of the prosecution had already been concluded. According to learned counsel, in the circumstances, it was a fit case for grant of application under section 540 Cr. P.C. moved on behalf of the appellant despite the fact that the evidence of the prosecution had already been concluded when the said application under section 540 Cr. P.C. had been filed. Learned counsel submits that it is a fit case for remand to enable the appellant through counsel to cross-examine the prosecution witnesses, 4. Mr. M. Saliheen Moghal, counsel for the State, submits that though the application under section 540 Cr. P.C. had been filed at a late stage when the evidence of the prosecution had already been concluded, in view of the facts stated by learned counsel for the appellant, the Court may consider remand of the case for enabling the appellant to cross-examine the prosecution witnesses. 5. In view of the facts and circumstances referred to above, in my view, the appellant has been prejudiced in his defence on account of the prosecution witnesses having not been cross-examined. Under section 540 Cr. P.C., the Court can re-exarnine any witness if his evidence appears to the Court essential for the just decision of the case. Learned counsel for the appellant has already referred to the back ground on account of which the prosecution witnesses could not be cross-examined. Right to cross-examine is not an empty formality but a valuable right and is the best method for ascertaining the truth. The opportunity to cross-examine a witness j contemplated by law must be real, fair and reasonable. In the present case, accused was not a trained person in legal procedure and was not expected to cross-examine the prosecution witnesses in the absence of his advocate. In the circumstances, the appellant should not be penalized for absence of his advocate for the reasons mentioned by learned counsel for the appellant. In this regard reference may be made to a decision of a learned single Judge of the Sindh High Court in the case of Altaf Hussain Shamim vs. State (PLD 1992 Karachi 91) in which judgment reliance has been placed on several judgments of the Superior Courts of the country. I have come to the conclusion that for just decision of the case, the prosecution witnesses should have been recalled in the circumstances of the case. 6. As a result, the impugned judgment dated 30-11-1995 of the learned Addl. Sessions Judge, Rawlapindi, (Hudood Case No. 85/94) is set aside and the case is remanded with the direction that 3 prosecution witnesses, namely, P.W. 1 complainant Mst Safiya Bibi, P.W. 2 Muhammad Sabir and P.W. 4 I.O. Muhammad Aslam Khan will be recalled and allowed to be cross-examined on behalf of the appellant. After this exercise has been completed, a fresh statement under section 342 Cr. P.C. shall be recorded and, in case the appellant desires, he will be allowed to give his statement on oath under section 340(2) Cr. P.C. If the appellant wants to produce any witnesses in defence, such opportunity will also be extended to him. The appellant shall be released on bail on his furnishing one surety in the sum of Us. 30,000/- with personal bond in the like amount to the satisfaction of the trial Court. This is an old case, it is directed that the case be finalized by the trial Court by 15-5-1995 and compliance report to the Registrar of this Court. Criminal Appeal No. 18-1 of 1996 stands disposed of in the above terms. (M.S.N.) Order accordingly.
PLJ 1997 FSC 9 [Appellate Jurisdiction] PLJ 1997 FSC 9 [Appellate Jurisdiction] Present: nazir ahmad bhatti, C J. NASIM and another-Appellants versus STATE-Respondent Jail Criminal Appeal No. 229/1 of 1995 partly accepted on 18.9.1996. (i) Confessional Statement- Confessional statementWhether confessional statements were made voiuntarily-Question of-Accused contended themselves by saying only this much that it was incorrect-This assertion did not prove any undue measure for obtaining confessional statements from them-Held : Confessional statements were made voluntarily and without any inducement or coercion. [P. 12] B (ii) Identification- There was sufficient day light and identification of accused did not pose any problem-Even otherwise complainant was an experienced police officer and he could mark features of culprits at once and without any difficult-It was, therefore, very easy for him to identify both appellants in identification parade-He was an old police officer, must have dealt with numerous accused during his service and it was not at all difficult for him to mark and remember features of an accused and then to correctly identify. [P. 11] A (iii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- -S. 392-Dacoity-Offence of-Conviction for-Challenge to--It was a day light robbery where force was used in shape of deadly fire-arms and a car and Government weapon were snatched by culprits-Held : They had committed a very heinous crime and no leniency can be shown to them in the matter of sentence. [P. 12] D (iv) Recovery- -Car was recovered unattended on road but it could not be proved that it was case property-F.I.R. neither mentioned any particular of snatched car nor owner was produced to identify vehicle-Held : It could not therefore, be proved that recovered car was actual property. [P. 12] C Dr. Muhammad Aslam Khaki, Advocate for Appellants. Mr. Shahzad Akbar, Law Officer N.W.F.P for State. Date of hearing: 18.9.1996. judgment Complainant Muhammad Arif, Sub-Inspector, Police Station, Golra Sharif, Islamabad was investigating case of F.I.R. 29/90 registered in the said Police Station under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 arid sections 454 and 380 P.P.C. On 31.3.1990 He alongwith some other police officials was taking said Noor, accused of that case to Takhat Bai, District Mardan in connection with investigation in a white Toyota Corolla, Model 1981 car No. IDA 6237 which was being driven by Captain Haider All Khan. This car was followed by suzuki carry No. IDC 2705. When they reached near Kheshki Octroi post on the Mardan/Nowshera Road at 5.30 p.m. another Toyota Mark-I car bearing No. SGE 2300 over took them and stopped in front of the first car. 3 accused armed with kalshinkoves came out from the second car and aiming klashnikoves at the chest of Capt. Haider All Khan they snatched keys from him. One of the accused also snatched SMG rifle No. 180 alongwith 20 cartridges from Constable Muhammad Afzal who was also sitting in the said car. Thereafter all the 3 assused decamped in both the aforesaid cars and went away. The complainant did not know the accused but he could identify them. He submitted a written complaint of the occurrence in Police Station, Nowshera Khan at 6.00 p.m. on the same day, which was incorporated in F.I.R. No. 176 at the said Police Station. 2. Accused Abdul Wahab was arrested on 22.4.1990 and accused Nasim was arrested on 7.6.1990 and accused Luqman Shah alias Malang is absconding. Identification parade of accused Abdul Wahab was held on 18.4.1990 and that of accused Nasim on 12.6.1990 and both of them were identified by complainant P.W. 1 Muhammad Arif, A.S.I. Accused Abdul Wahab made a confession on 24.4.1990 and accused Nasim made a confession on 11.6.1990. A white coloured Toyota car was recovered on 13.8.1990 which had been lefted unattended at G.T. Road near Nowshera Amangarh Bridge near Ghee Mill. However, this vehicle was not identified by the owner Capt. Haider Ali Khan. The rifle snatched from Muhammad Afzal, F.C. was recovered from the house of absconding accused Luqman Shah alias Malang on 7.6.1990, which was duly identified by the said F.C. 3. After investigation both accused Abdul Wahab and Nasim were sent up for trial before Sessions Judge Nowshera, who charged both of them under section 17(3) of the Hudood Ordinance as well as under section 412 P.P.C. Both the accused pleaded not guilty to the charges and claimed trial. 12 witnesses were produced by the State in proof of the prosecution case whereas both the accused made depositions under section 342 Cr. P.C. but none of them made any deposition on oath nor produced any defence evidence. 4. After the conclusion of the trial the learned Sessions Judge by judgment dated 12.11.1995 convicted both the accused under sections 392/412/34 P.P.C. For both the offences each of the accused was separately sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- or in default to further undergo rigorous imprisonment for one year. 5. Feeling aggrieved by the aforesaid conviction and sentence both the convicts had come up to this Court with the appeal in hand, sent from jail. 6. I have heard learned counsel for the parties at length who also lead me through the entire record of the case, 7. The prosecution evidence against the appellants consists of ocular testimony of P.W. 1 Muhammad Arif, Sub-Inspector and P.W. 2 Muhammad Afzal, F.C., the confessional statements of both the appellants and the recovery of case property. 8. So far as the ocular testimony is concerned, it is established that the complainant Sub-Inspector was an independent and competent witness. He was proceeding on the day of occurrence on Takhat Bai, Mardan Road in connection with investigation of a case registered under F.I.R. No. 29/90 in Police Station, Golra Sharif. The vehicle in which he was traveling alognwith other police officials was driven by Capt. Haider Ali Khan, the complainant of that F.I.R. During their journey the hold up of the case took place on the Mardan/Takhat Bai Road and three accused armed with klashnikoves snatched the car from Capt. Haider Ali Khan and one rifle from Muhammad Afzal, F.C. the occurrence took place at 5.30 p.m. in the evening when there was sufficient day light and the identification of the accused did not pose any problem. Even otherwise the complainant was an experienced police officer and he could mark the features of the culprits at once and without any difficulty. It was, therefore, veiy easy for him to identify both the appellants in the identification parade. He was an old police officer, must have dealt with numerous accused during his service and it was not at all difficult for him to mark and remember the features of any accused and then to correctly identify. Even otherwise no aminour of any against the appellants was proved against this witness. It was contended on behalf of the appellants that the car had been snatched from Capt. Haider Ali Khan and he was neither produced as a witness nor was made to identify the culprits. It was also contended by the learned counsel for the appellants that the said Captain was star witness of the case and he should have been produced to identify the culprits as well as the case property. This argument is beside the point because P.W. 1 Muhammad Arif, Sub-Inspector was not acting as an Invetigating Officer in the case in hand but he was acting as actually complainant and his identification of the appellants was more than sufficient. 9. The perusal of confessional statements of both the appellants, copies of Ex. P.W. 12/1 and Ex. P.W. 12/5, would clearly reveal that both the appellants had confessed the commission of the crime. Mr. Khalid Hussain Khan, M.I.C., who appeared as P.W. 12, established that the appellants had made confessional statements voluntarily and he had observed all the legal formalities before taking down their confessional statements. The recovery of the snatched rifle and the identification of the culprits by P.W. 1 Muhammad Arif, Sub-Inspector were more than sufficient to corroborate the confessional statements of both the appellants. In their depositions under section 342 Cr. P.C. both the appellants only asserted that" it was incorrect" to the question whether they had made the confessional statements. They neither alleged any coercion, torture or any inducement for making the confessional statements. They contended themselves by saying only this much that it was incorrect. This assertion did not prove any undue measure for obtaining the confessional statements from them. In the circumstance these statements were made voluntarily and without, any inducement or coercion. 10. Although one car was recovered unattended on the road but it could not be proved that it was the case property. The F.I.R. neither mentioned any particular of the snatched car nor owner was produced to identify the vehicle. It could not, therefore, be proved that the recovered car was the actually case property. However, the rifle snatched from P.W. 2 Muhammad Afzal, F.C. was recovered from the third .-censed who is since absconding. The recovery of the rifle was also a very vsubstantial piece of corroboration of the confessional statements of the appellants, as well as the ocular testimony. 11. In the end the learned counsel fur the appellants contended that no offence under section 412 P.P.C. could be proved against the appellants and their conviction for the said offence was unwarranted. Section 412 P.P.C. pertains to the offence of dishonestly receiving stolen property in the commission of dacoity and since the snatched rifle had allegedly been recovered from absconding accused Luqinan Shah alias Malang , the appellants could not be convicted and sentenced for the said offence. The learned counsel for the State conceded this legal position. 12. From the above discussion I have come to the conclusion that the offence under section 392 P.P.C. was proved against both the appellants beyond any doubt whatsoever. However, their conviction and sentence under section 412 P.P.C. was unwarranted. The learned counsel for the appellants also contended that the sentence was harsh. It was a day light robbery where force was used in the shape of deadly fire-arms and a car and Government weapon were snatched by the culprits. They had committed a very heinous crime and in the circumstances no leniency can be shown to them in the I matter of sentence. 13. The net result of the above discussion is that the conviction and sentence of the appellants under section 392 P.P.C. are up held while their conviction and sentence under section 412 P.P.C. are set aside and they are acquitted of this offence. The appeal only succeeds for partially. They shall, however, be entitled to the benefit under section 382-B Cr.P.C. (M.S.N.) Appeal partly accepted.
PLJ 1997 FSC 13 PLJ 1997 FSC 13 [Appellate Jurisdiction] Present: M\ZII< Ah'MAD BHATTI, CJ. MUHAMMAD SADlQ-Appellant versus STATE-Respondent Jail CriminaJ Appeal No. 1/1 of 1996 dismissed on 23.9.1996. (i) Zina (Enforcement of Hudood) Ordinance, 1979-- -S. 10(3)--Zma-fe/7-j'afc/--Offence of-Conviction for-Challenge to-Victim directly charged appellant for subjecting her to sexual intercourse forcibly and without her consent--Her testimony has been corroborated by P.W. In rebuttal there is only simple denial of occurrence by appellant and that also without on oath-It was a day light occurrence and report was made in police station very promptly within an hour and 15 minutes-There was no occasion of fabrication of any false caseVictims medical examination clearly established that she was virgin before occurrence as there was fresh tears of hymen and some blood was also oozing from her vagina-Appellant had revolver with him when he was committing offence and he had forced complainant on point of revolver-Held: No ground has been made out for showing leniency in matter of sentence. [P. 14 & 15] A, D (ii) Zina (Enforcement of Hudood) Ordinance, 1979- S. W(3)--Zina-bil-Jabr--QSence of-Conviction for-Challenge toConten tion that complainant was medically examined on next day but lady doctor did not find any mark of violence either on her body or on her private parts and offence of sexual intercourse with complainant had taken place with her consent-Complainant was only a minor girl aged 14/15 yearsOn the contrary appellant was more than 45 years of age and he could well be of the age of her father and he was also armed with a revolver-In such a circumstances question of free consent of girl did not arise-Even otherwise presence of sign of force is not a pre-requisite in every case because according to definition of term zina-bil-jabr specified under section 6 of Hudood Ordinance, if a consent of victim obtained by putting her in fear of death or of hurt would not be a free consent but it would be a consent obtained under duress and coercion and offence committed against woman would be that of zina-bil-jabr and not simple zina. IP. 15] B & C Mr. Muhammad Aslam Uns, Advocate for Appellant. Mr. Saleheen Mughal, Advocate for State. Dateofharing:23.9.1996. judgment Complainant Mst. Bilqees Akhtar minor unmarried daughter of Muhammad Ameen was a student of class 9th. On 14.10.1993 she was going back to her home from the school and when she reached Pulli Bhattianwali Chak No. 241/TDA at 1230 hours on a katcha road she was confronted by accused Muhammad Sadiq who had hidden himself in the cotton field of Muhammad Sharif Bhatti. The accused dragged the complainant to the cotton field on the point of revolver and forcibly removed her shalwar and started committing zina-bil-jabr with her. The complainant raised noise whereby Muhammad Nazir and Naseer Ahmad were attracted to the spot who saw the occurrence. The accused threatened them also with the revolver and decamped from the spot. The complainant went to her house and narrated the occurrence to her father and then made a complaint in Police Station Fatehpur at 1445 hours on the same day. 2. Complainant Mst. Bilqees Akhtar was medically examined by R.W. 1 Lady Dr. Safia Mubashar on 15.10.1993. The lady doctor found the hymen torn with two fresh lateral tears (with slight oozing) in behind and two fingers could be easily passed into the vagina. The lady doctor took two vaginal swabs which were found stained with semen by the Chemical Examiner. The lady doctor gave the opinion that Mst. Bilqees Akhtar had been subjected to sexual intercourse. However, the lady doctor did not find any mark of violence on the body of the complainant or on her private pails. 3. The accused was arrested on 17.10.1993 by P.W. 10 Ameeruddin Lohdi Sub Inspector and after investigation he was sent up for trial before Additional Sessions Judge Leiah who charged him under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to which he pleaded not guilty and claimed trial. 4. The State produced 10 witnesses in proof of the prosecution case whereas the accused made a deposition under section 342 Cr.P.C. but he neither made any deposition on oath nor produced any defence evidence. After the conclusion of the trial the learned Additional Sessions Judge convicted the accused under section 10(3) of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 7 years and to suffer 30 stripes. The convict has challenged his conviction and sentence by the appeal in hand sent from jail. 5. I have been taken through the entire record of the case by the learned counsel for the parties and I also heard them at length. 6. Complainant Mst. Bilqees Akhtar was unmarried girl aged about 14/15 years during the days of occurrence. Her medical examination clearly established that she was virgin before the occurrence as there were fresh A;tears of the hymen and some blood was also oozing from her vagina. She directly charged the appellant for subjecting her to sexual intercourse forcibly and without her consent. Her testimony has been corroborated by P.W. 3 Naseer Ahmad. The latter witness was not related to the complainant party but he was of the same bradari. In rebuttal there is only the simple denial of the occurrence by the appellant and that also without any oath. It was a day light occurrence and report was made in the police station veiy promptly within an hour and 15 minutes. There was no occasion for fabrication of any false case. The appellant had been correctly charged for the offence by the complainant, 7. The learned counsel for the appellant had laid much stress on the point that the complainant was medically examined on the next day but the lady doctor did not find any mark of violence either on her body or on her private parts and he contended that the offence of sexual intercourse with the complainant had taken place with her consent and the sentence awarded to the appellant was very harsh. I have considered this aspect of the matter very anxiously. No doubt no mark of violence was found on the body or private parts of the complainant but the absence of such violence would not necessarily prove that free consent was there. There complainant was only a minor girl aged about 14/15 years. On the contrary the appellant was more than 45 years of age and he could wel! be of the age of her father. In such a circumstance the question of free consent of the girl did not arise. Even otherwise the presence of sign of force is not a pre-requisite in every case because according to the definition of the term zina-bil-ja.br specified under section 6 of the Hudood Ordnance a person is said to commit zina-bil-jabr if he or she has sexual intercourse with a woman or man. as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely:- (a) against the will of the victim, (b) without the consent of the victim, (c) with consent of the victim, when the consent has been obtained by putting the victim in fear of death or of hurt, or (d) with the consent of the victim, when the offender knows that the offender is riot validly married to the victim and that the consent: is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married. It shall, therefore, be seen that if a consent of the victim obtained by putting her in fear of death or of hurt would not be a free consent but it would be a consent obtained under duress and coercion and the offence committed against the woman would be that of zina-bil-jabr and not simple zina. In the case in hand it had been proved by the testimony of the complainant as well as P.W. 3 Naseer Ahmud that the appellant had revolver with him when he was committing the offence and he had forced the complainant on the point of revolver and had also aimed the same at the of eye witnesses who had seen him committing the offence and had challenged him. I have, therefore, come to the conclusion that the offence committed by the appellant against the complainant was that of rape and not of sexual intercourse simpliciter. He was a man of advanced years and he should have been dealt with very strictly by the learned trial Court. However, since the learned trial court has discretion in the matter of sentence I would maintain it. No ground has been made out for showing the leniency in the matter of sentence. The net result of the above discussion is that this appeal has no merit and is dismissed. However he shall be entitled to the benefit under section 382-B Cr.P.C. (K.K.F.) Appeal partly accepted.
PLJ 1997 FSC 19 [Appellate Jurisdiction] PLJ 1997 FSC 19 [Appellate Jurisdiction] Present: SHAFI MUHAMMADI, J. . ZARINA Bmi-Appellant versus STATE-Respondent Crl. Appeal No. 191/L of 1995, accepted on 19.6.1996. (i) Constitution of Pakistan, 1973- Art. 203DD--Article 203DD gives powers to Federal Shariat Court to call for and examine record of any case decided by any criminal court under any law relating to enforcement of Hudood for purpose of satisfying itself as to correctness, legality or propriety of any finding, sentence, or order recorded or passed by, and as to regularity of any proceedings. [P. 26] D (ii) Inference -Criminology in Islam favours to draw inferences to acquit an accused person in Hudood cases and not to convict. [P. 25] C (iii) Tazir- Punishment under Tazir would be justified only when punishment under Hadd is not possible on account of its requirements. [P. 24] B (iv) Zina-- It cannot be believed that appellant and co-accused would like to commit zina on an open plot when there are fields available on eastern side of house. [P. 21] A Mr. S.M. Nazim, Advocate for Appellant. Mr. Muhammad Anwar Dholan, Advocate for State. Date of hearing: 18.6.1996. judgment Aggrieved by and dissatisfied with the impugned judgment dated 23.7.1995 passed by the learned Sessions Judge Sheikhupura whereby he convicted and sentenced Mst. Zarina and Nazar Masih, the convict Mst. Zarina has preferred this appeal against her conviction u/S. 10(2) of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) and sentence to be suffered by her for 4 years R.I., whipping 30 stripes in number and fine of Rs. 2.000/- (in lieu thereof 6 months R. I). 2. The prosecution case in brief is that Saif Ullah (complainant) lodged a report u/S. 154 Cr.P.C. with one Umer Farooq ASI on 12.7.1992 at 10.00 a.m. which was incorporated into an FIR No. 217/92 registered at Police Station Dogran Distt. Sheikhupura at 1115 hours u/S. 10 and 7 of the said Ordinance. It was alleged therein that Mst. Zarina Bibi (appellant) and co-accused Nazir Masih (a Christian) were known to the public for having illicit relations and committing Zina with each other. It was 12.7.1979 at about 9.00 a.m. when he alongwith Muhammad Mansha (now the husband of Mst. Zarina Bibi), Muhammad Aslam Gulzar Ahmad and Muhammad Amir saw both the accused going towards a place known as Ronda Dhengar Bath. They chased them secretly. When both the accused reached a place towards south of Bakha Masih (brothers of co-accused), they started watching them form behind a wall. Both the accused became naked and started committing zina which they saw with their own eyes. Hence both of them were apprehended. They were allowed to take on their shalwars and ere brought to ASI Muhammad Umar Farooq. The FIR drafted by the ASI can be termed as hot FIR, on account of its words used in it: After usual investigation, both the accused were challaned and tried on account of their pleading not guilty by the learned Sessions Judge Sheikhupura who then convicted and sentenced them as embodied in para 1 above. 3. Prosecution examined 11 witnesses in all out of which five were named in the FIR including the complainant. Except Muhammad Aslam, rest of the four i.e. Muhammad Amin, Gulzar Ahmad, Muhammad Mansha and even the complainant Saifullah were hostile. Much more interesting aspect of the case is that Muhammad Mansha married the appellant and is looking after this case while the statement of Muhammad Aslam (P.W. 1) has veiy important pieces of evidence out of which few are reproduced as under:- (i) "Nazir Masih accused was ahead of Mst. Zarina and went to a house which was in dilapidated condition where Nazir and Zarina were found committing Zina with each other. I, Saif, Gulzar and Mansha PWs caught them red-handed. (Examination-in-Chief)-" The learned trial Judge has also observed in para 19 of the judgment that:- "Both accused entered into a house which belongs to Nazir's brother." The statement of the PW and this part of the judgment written by the learned Sessions Judge do not support the prosecution story as painted in the FIR with reference to the alleged reputation of the accused, chasing by them, hiding behind a wall etc., besides this reality that the said statement becomes totally un-believable if judged in the light of site plan prepared by the I.O., ASI Muhammad Umar Farooq (P.W. 11). The place of incident has been shown on the eastern side of a house belonging to Bakhsha Masih brother of co-accused, which contains a window on that side and which is an open plot while the learned Sessions Judge has used the words "entered into a house" as quoted above. The said house has also open plot on the northern side, fields on the western side and grave-yard on the southern side. It cannot be believed that the appellant and co-accused would like to commit zina on an open plot when there are fields available on the eastern side of the said house. (ii) This PW also stated in cross-examination that: "The house of brother of the accused is situated in seclusion. We'were a distance of five to seven feet The accused took half an hour there. We had been watching the accused for a considerable period and we reprimanded them to desist from this act but they did not pay an heed to it" (cross-examination). Can such a statement be believed by any sensible person that five Muslims remained watching the scene of "committing zina" by a Christian with a Muslim lady for about half an hour from a distance of five to seven feet and accused person did not pay any heed when they were desisted by the eyewitnesses? And then one of the eye-witnesses gets himself married with the said accused lady (i.e. appellant)! (iii) The discredlbility of this witness does not end here because he exposed himself in cross-examination which exposure has come to light on account of the following lines: "We handed over the accused to the police at 10.00 a.m. Again says that we informed the police that accused were in our custody." This piece of deposition neither corroborates with the contents of FIR nor with the statement of the 1.0. The summary of FIR has been produced in para 2 while the statement of 1.0 with reference to this aspect would be discussed in the forthcoming paragraphs. 4. The excesses observed in this case do not end here because the police has tried to prove that these areas alongwith the poor families and members of minorities are their fief. The occurrence is stated to have taken place at 9.00 hours on 12.7.1992. The appellant is kept in the police-station till next day and is sent for medical examination on 13.7.1992 at 1330 hours i.e, after about 26 hours. Why the appellant was not sent for immediate medical examination? What had been with her during these 26 hours by the officials? At least, it can be said with certainty that she must not have been provided bed of roses to have a sound sleep with co-accused. She must have gone for her ease due to call of nature. This important aspect appears to have been realised by the chemical examiner as can be guessed from the following words: "The above swabs are stained with semen. One swabs is being sent to serologist to Government of the Punjab for semen grouping." (underlining is my own) The result of the serologist was never produced in the evidence inspite of this reality that the chemical examiner had sent the swab to him as per report dated 4.8.1992. Admittedly the 1.0 was examined on 12.7.1995. Every sensible person can realize that these three years were more than sufficient to get that report. Similarly it is surprising for mere to note that neither the police nor the witness took the shalwars or any other cloth of the accused which should not be free from the stains of semen of the accused if they had taken half an hour to complete that offence and they were asked to put on those shalwars at the spot without giving them any chance to go anywhere else and particularly in the circumstances as narrated in the murasala incorporated into an FIR. Rest of the witnesses namely Dr. Basharat (P.W. 6), Dr. Khalid Mahmood (R. W. 7), Abdul Munaf HC 609 (P.W. 8), Mushtaq Abid constable No. 672 (P.W. 9) and Irshad Ali constable No. 970 (P.W. 10) need not be discussed as most of them are formal and thus they were not cross-examined by the defence. 5. Come to the deposition of I.O. It is very important deposition because it exposes the 1.0 of the case as well as the witnesses. The I.O. stated in his cross-examination as under:- "I was on Moharram duty and watching the Moharram procession. It was 10th of Moharram. Saifullah complainant came to me. Saifullah produced Mst Zarina Bibi and Nazir Masih before me who are present in the Court today." If the said I.O. was on Moharram Duty on 10th of Moharram and the accused had been produced there with this stoiy, the people would have killed them on account of their religious feelings on that day after hearing the .story notwithstanding that the story was concocted or full of truth because, although eveiy sensible person hates this attitude of the society, yet it was never stopped by our religious divines. Moreover there is no mention of any name of any other witness in examination-in-chief of the I.O. This story also does not corroborate with the contents of the murasala which is claimed to have been drafted at the spot. In cross-examination, the I.O stated as under: - "The accused were produced before me at the road where I was present on Moharram duty at 10.00 a.m. I recorded the statement of Saifullah at the road Saifullah, Gulzar, Aslam, Amir and Muhammad Mansha produced the accused before me. I recorded the statement of PWs on the road. I immediately rushed to the spot and inspected it It is correct that the accused remained in my custody for one night " (underlining is my own) Although the I.O had filled the gap of left over witnesses, which were not named during his examination-in-chief, by improving his statement during the cross-examination on account of one question asked by the defence, which he was not expected to ask as an advocate on criminal side, yet it appears that the I.O was not speaking the truth because the murasala recorded by him does not contain the mention of Moharram procession, recording of statements of PWs on the record, leaving for the spot for inspection. Even otherwise it cannot be believable that a responsible police officer on Moharram Duty, particularly on 10th Moharram, at 10.00 a.m. would leave the Moharram procession only to inspect the site. From all the aspects it can easily be deduced that the 1.0. did everything in the Police Station and not on the road where he claimed to be accompanying with the procession of Moharram. 6. Now come to the conduct of trial court. This was a case where the learned trial Judge was duty bound, if he had been aware of the Islamic laws, to hold secret inquiiy (Tazkiyah al-Shahood) because more than four witnesses had claimed to have seen the commission of offence with their eyes. Instead of performing this duty the Court lingered on the case of July 1992 till July 1995. I have examined the record of the case in original. It shows that statements of PWs were recorded in Urdu by some one and the learned Sessions Judge signed the same in English with different ink. But the depositions of all these witnesses brought on the record of appeal in hand are in English and they are also signed by the learned Sessions Judge. I need not to burden this judgment to show as to whether these are the true translations because there is no mention anywhere to show as to when these depositions in Urdu were translated into English. However, I would be having least hesitation to observe that the learned Sessions Judge did not perform his duty in accordance to law with reference to Tazkiyah-al- Shahood. I consider it necessaiy to point out that Islam does not permit the courts to ignore this duty of holding secret-inquiry with an intention to punish accused persons under Tazir. Punishment under Tazir would be jj justified only when punishment under Hadd is not possible on account of its requirements. Therefore, it is noticeable that punishment under Tazir or Hadd is not a discretion of the Court. It is not permitted in Islam that the court should ignore its duties, as was done in the present case, to create a chance for conviction under Tazir particularly in the doubtful cases of acquittal. 7. Notwithstanding that the absence of this important aspect of Tazkiyah-al-Shahood (secret inquiiy) with regard to the credibility of witness has shaken the foundation of conviction, I consider it necessaiy to high-light the impugned judgment, too, "With reference to the facts which inspired confidence of the learned Sessions Judge for convicting a poor young girl on this presumption that she was a consenting party more particularly that alleged paramour belonged to minority. The operative part of the judgment reads as under: "If in fact Muhammad Mansha wanted to marry her why he would involve Mst.. Zarina Bibi in this heinous offence in which the hour of the family is involved. When Mst. Zarina was caught red-handed with her paramour an inference can be easily drawn that her parents refused to take her back so Muhammad Mansha took a chance and married her. So the plea of both the accused is without any substance." (underlining is my own). I was surprised, rather shocked, to read these sentences. The learned Sessions Judge relied upon the statement of a witness recorded u/S. 161 Cr.P.C. when the said witness has resiled and was declared hostile. Even otherwise I am of the view that criminology in Islam favours to draw inferences to acquit an accused person- in Hudood cases and not to convict them. The underlined portion fully radiates that inference was negatively drawn by the learned Sessions Judge on the bases of presumptions in the air. The learned Sessions Judge could easily draw inference that the appellant was innocent otherwise a Muslim would not have got himself married with such a lady who was particularly and allegedly seen by him committing zina with a non-muslim and more particularly when the said act, as alleged, had been witnessed by several other persons. Inspite of my microscopic study of the impugned judgment I failed to find out any thing to draw an inference as was drawn by the learned Sessions Judge that "her parents refused to take her back so Muhammad Mansha took a chance and married her". These words are the creation of imagination possessed by the learned Sessions Judge which can never be appreciated because the source of such imagination is totally missing from the record. 8. In this connection I would like to draw the attention of eveiy court to the difference of punishment between an offence punishable u/Ss. 354 and 354-A PPC to explain my point of view. The punishment u/Ss. 354 PPC may extend only to two years or with fine or with both: The use of word "or" is of great importance. While the punishment u/S. 354-A PPC is death or imprisonment of life and the offender shall also be liable to fine, here the word "and" has been used for imposing "fine". The difference between these sections is unambiguously evident and needs no comments but to point out that the spirit embodied in section 354-A PPC is to protect the sanctity of women from being exposed to public by use of criminal force. From the deference of these sections, the learned Sessions Judges can easily draw the real spirit of Islam to proceed with the case against women. 9. In my view P.W. 1 namely Muhammad Aslam has committed an offence attracted by the definition of Qazf defined in section 3 of the Offences of Qazf (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Qazf Ordinance) and he could be convicted under section 10 of the Qazf Ordinance because the remaining eye-witnesses had falsified his version regarding allegation of zina against the accused persons besides its being falsified on the face of record. But unfortunately section 8 of Qazf Ordinance put a bar that "no proceeding, under the Qazf Ordinance shall be initiated except on a report made to the police or complaint lodged in a court by a personal who has been authorised to do so by the party in respect of whom the Qazf had been committed or by the descendent if the said person had died. I am of the opinion that such bar is not in accordance to the teachings of Islam when the case of this nature, as in hand, fully exposes the culprits. Therefore it would be proper if the legislation amends the said provision of law to give suo moto powers to the competent courts to start proceeding against such culprits if the case of Qazf is made out against them during the proceedings. On account of his bar it cannot be expected that the persons belonging to minorities living in villages and the poors, as the present case, would dare to lodge any report or to succeed in getting the case registered against the influentials on account of their crime of poverty. 10. The up shot of the above discussion leaves no doubt about the result of his appeal which is, resultantly allowed because I am unable to embrace the conclusion drawn by the learned Sessions Judge while passing the impugned judgment. The conviction and sentence of the appellant is set-aside. She is honourably acquitted from the allegation she was charged with and convicted for. She is on bail. Her bail bond is discharged. This judgment shall have the same effect on the case of co-accused Nazir Masih even if he has not filed any appeal. I have exercised these powers under Article 203 DP of the Constitution of Islamic Republic of Pakistan which gives powers to the Federal Shariat Court to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement ofHudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings. He shall, therefore, be released forthwith if not required in any other case. In case the said convict is not released the jail authorities shall send the details of all cases pending against him for perusal of this Court and for its satisfaction that a member of minorities in Pakistan is not being detained on account of his innocent crimes. (M.S.N.) Appeal accepted.
PLJ 1997 FSC 27 PLJ 1997 FSC 27 [Appellate Jurisdiction] Present: muhammad taqi usmani, J. GHULAM QADIR SIYAL-Appollant versus STATE-Respondent Constl. Crl. Revision No. 33/K/ of 1994, accepted on 17.12.1996. Surety Bond-- -Surety bond-Forfeiture of--Challenge to-Additional Sessions Judge has repeatedly excused absence of surety/petitioner and has given him time to produce accused on a number of occasions-Orders of Additional Sessions Judge which allowed time for production of accused tacitly implied suspension of order of forfeiture of surety bond, because a person cannot be held liable at one time for both producing accused and paying amount of security-So far as he was made liable for production of accused and was granted time for that purpose, he no longer remained liable to pay surety amount, until time allowed for him was over and he failed to produce accused within that time-Surety has actually produced accused before court, who was taken into custody-Held: Surety was not liable to pay surety amount after he had actually produced accused in court-Petition allowed. [Pp. 29 & 30] A & B Mr. Ali Bin Adam Jafri, Advocate for Appellant. Syed Zawar Hussain Jafri, Atldl. A.G. Sindh for State. Date of hearing: 17.12.1996. judgment This is an application for Const. Criminal Revision challenging the order of the Additional Sessions Judge Gumbat dated 22.6.1994 whereby the petitioner was ordered to deposit the amount of Rs. 35,000/- being the amount of surety bond. The facts of the case, briefly stated, are that the petitioner namely Ghulam Qadir stood surety for one Hlamuddin who was, alongwith 7 others, accused of abducting Mst. Noor Jahan and was facing trial before the court of learned Sessions Judge Khairpur. The accused Hlamuddin remained absent, NBWs were issued to the accused and notice to the surety/petitioner. On 25.5.1993 the petitioner produced a Medical Certificate annexure 'E' to the court of the learned Sessions Judge Khairpur to prove that the absence of the accused Illamuddin at the earlier date, was due to his ailment. He also stated verbally before the Court that Illamuddin was still ill and could not attend the Court at that date also. The learned Sessions Judge did not take it as a sufficient ground for the absence of the accused and forfeited his bail bond. The case was thereafter transferred to the court of Additional Sessions Judge Gumbat where the accused remained absent again. The learned Additional Sessions Judge issued NBWs against the accused and the notice to his surety/petitioner. NEW against the accused could not be served on 19.8.1993 and he was declared absconder and order U/S 512 Cr.P.C. was passed and proceedings U/Ss. 87 & 88 Cr.P.C. were initiated against him. On 5.12.1993 the surety/petitioner appeared before the court and he was granted time for production of the accused. On a number of subsequent dates he remained absent from the court, however, each time he submitted application and his absence was excused by the court. On 2.3.1993 he remained absent from the court without any intimation and BWs were issued against him. On 9.4.1994, 16.4.1994 and 2.5.1994 the court was pleased to grant time to the surety for the production of the accused. On 25.5.1994 the surety/petitioner produced the accused Illamuddin before the court who was remanded to custody. On 22.6.1994 the learned Additional Sessions Judge Gumbat after hearing the surety in person who prayed leniency in the matter, issued an order directing the surety to deposit the amount of Rs. 35,000/-. The petitioner has directed this petition for revision against this order of Additional Sessions Judge Gumbat. I have heard the learned coimsel for the petitioner as well as the learned A.A.G. who appeared for the State. The learned counsel for the petitioner contended that the petitioner had always been trying to produce the accused in the court. His absence was not mala fide and as soon as he was able to find out the accused, he actually produced him in court. He has also produced the certified copy of the judgment of the Additional Sessions Judge, Gumbat dated 12.6.1995 which shows that the original accused Illamuddin has been acquitted of all charges against him in this case. However, the present petitioner who had actually produced the accused has been ordered to pay the huge amount of Rs. 35,000/- while in the circumstances of the case ho must have been treated more leniently. Learned counsel for the petitioner also raised a legal question submitting that the curlier surety bonds were taken by the Sessions Court Khairpur and after the transfer of the case to the Additional Sessions Judge Gumbat, they were no more effective. It was the Sessions Court of Khairpur with which the surety had entered into a covenant to produce the accused, nd not the court of the Additional Sessions Judge Gumbat; therefore, the latter court had no power to penalize him on the basis of the earlier bond. The learned counsel relied on the case of All Jan reported in 1990 M.L.D. 2076 where the surety/petitioner had executed a bond for production of the accused in the court of 1st Additional Sessions Judge. The case was subsequently transferred to the II Addl. Sessions Judge where the accused remained absent and the surety was penalized to pay the surety amount. The said order passed by the Ilnd Additional Sessions Judge was held to be illegal on the ground that the bond was not executed by the surety before the Ilnd Additional Sessions Judge, therefore the order of penalising has been set-aside. The learned counsel for the petitioner has also referred to a recent unreported case of Sindh High Court dated 25.5.1995 (Gullan alias Gul Muhammad vs. The State) whereby the learned Single Judge reiving on 1990 M.L.D. 2076 has allowed a similar application of revision on the very ground that the case was transferred to another court. After hearing the learned counsel for the petitioner and learned Additional Advocate General on this point I, have come to the conclusion that even without giving a definite opinion about the view taken in the case of All Jan vs. The State (1990 MLD 2076), the petitioner has a strong case either way, because if we take the position that the bond executed by the Sessions Judge, Khairpur was not applicable to the trial conducted by the Additional Sessions Judge, the illegality of the impugned order is obvious on the basis of the authorities cited by the learned counsel for the petitioner, but even if we do not endorse this view and hold that the proceedings of the learned Addl. Sessions Judge Gumbat were in continuance of the proceedings taken by the Sessions Judge, Khairpur, the fact is that the Additional Sessions Judge has repeatedly excused the absence of the surety/ petitioner and has given him time to produce the accused on a number of occasions. These orders of the Additional Judge which allowed time for the production of the accused tacitly implied the suspension of the order of the forfeiture of the surety bond, because a person cannot be held liable at one time for both producing the accused and paying the amount of security. So far as he was made liable for the production of the accused and was granted time for that purpose, he no longer remained liable to pay the surety amount, until the time allowed for him was over and he failed to produce the accused within that time. It is admitted that soon after this order, i.e. within one month or so, the surety has actually produced the accused before the court, who was taken into custody and was acquitted thereafter. The sequence of these facts shows that the petitioner had acted in-compliance with the orders of the court which allowed him time for the production of the accused, therefore, he was not liable to pay the surety amount after he had actually produced the accused in the court In the light of the above discussion this petition is allowed and the impugned order of the learned Add. Sessions Judge, Gumbat dated 22.6.1994 is set-aside and the petitioner is relieved of the liability to pay the amount of Rs. 35.000/-. (K.K.F.) Petition allowed.
PLJ 1997 FSC 30 PLJ 1997 FSC 30 [Appellate Jurisdiction] Present: MUHAMMAD TAQI USMANI, J. MANZOOR HUSSAIN JATOI-AppeUant versus STATE-Respondent Const. Revision No.' 31/K/1996, accepted on 18.12.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- -S. 516-A-Petitioner after winning his acquittal from Supreme Court approached trial court and filed and application u/s 516-A Cr.P.C. for return of seized properties, but trial court dismissed this application on ground that It was Supreme Court who has allowed appeal, therefore only that court is competent to dispose of case propertyChallenge to- Supreme Court has not specifically given an order with regard to seized property, but when appeal of petitioner has been allowed, in toto he is acquitted in unconditional terms and his conviction and sentence are setaside-Order of Supreme Court that they "acquit him of the charge" logically implies that he is entitled to all reliefs consequent to his acquittal, including release of his property seized-Unless appellate Court exempts a particular relief in express terms, order of acquittal should entail all consequential effects thereof--A separate order for each and every consequence of acquittal is not necessary-Held : Trial Court, acting on basis of order of acquittal recorded by Honourable Supreme Court could have released property-Held further : Section 520 Cr.P.C gives jurisdiction to Superior Courts interfere with an order passed by a lower court under Sections 517, 518 & 519 but it does in no way restrict a lower court from passing an order consequent to, and in compliance with, order of a superior court. [Pp. 31 & 32] A, B & C Mr. Ghulam Qadir Jatoi, Advocate for Appellant. Syed Zawar Hussain Jafery, Addl. A.G. Sindh for State. Date of hearing: 18.12.1996. judgment This petition for revision is preferred against the order of the learned 1st Additional Sessions Judge, Sukkur dated 20.9.1994 whereby the request of the petitioner for restoration of his seized property was refused. The facts of the case are that the petitioner was booked under Section 3/4 of Prohibition (Enforcement of Had) Order, 1979 vide FIR No. 19/1988 by P.N.C.E. Sukkur, for being in possession of 1500 grams of heroin and 2 kgs. of opium. At the time of his arrest his Honda Motor Cycle 125 cc, golden rings weighin one tola, a Seiko watch and N.I.C. and cash of Rs. 40/-3 were recovered and siezud. The trial court sentenced him to imprisonment for life. On his appeal before, this court, life imprisonment was converted to 10 years R.I. vide judgment dated 9.3.1992, The petitioner preferred the 2nd appeal before the Supreme Court. The Supreme Court vide its judgment dated 29.6.1994 allowed the appeal and acquitted the petitioner. However, the Supreme Court did not pass a specific order in respect of the seized properties of the petitioner. Therefore, the petitioner after winning his acquittal from the Supreme Court approached the trial court and filed an application under section 516-A Cr.P.C. for the return of the above properties, but the trial court dismissed this application on the ground that it was the Supreme Court who has allowed the appeal, therefore only that Court is competent to dispose of the case property. Hence this petition for revision. I have heard the learned counsel for the petitioner as well as the learned A.A.G. Sindh, who appeared for the State. The learned counsel for the petitioner has argued that the trial court has relied on section 520 Cr.P.C. which reads as follows:- "Any court of appeal, confirmation, reference, or revision may direct any order under section 517, section 518 or section 519, passed by a Court sub-ordiante thereto to be stayed pended consideration by the former Court, and may modify, alter or annual such order and make any further orders that may be just." According to the learned counsel, this section does not restrict the trial court from releasing the properties of an accused after he has been acquitted by the appellate court. Learned A.A.G. has also concurred to the view of the learned counsel for the petitioner. After hearing both the counsels, I am of the view that the learned trial court is not restricted from releasing the seized property in the circumstances of this case. The operative part of the judgment of the Supreme Court dated 29.6.1994 is in the following words:- "For the foregoing reasons, we allow this appeal, set-aside conviction and sentence of the appellant and acquit him of the charge." These words are clear in that the petitioner was acquitted of the charge against him in this case. It is true that the Supreme Court has not specifically given an order with regard to the siezed property, but when the appeal of the petitioner has been allowed in toto, he is acquitted in unconditional terms and his conviction and sentence are set-aside, there is no reason to deprive him of the logical consequence of his acquittal. If the properties were seized in consequence of the charge levelled against him, then his acquittal should necessarily result in the release of those properties. The order of the Honourable Supreme Court that they "acquit him of the charge" logically implies that he is entitled to all the reliefs consequent to his acquittal, including the release of his property seized under that charge. Unless the appellate Court exempts a particular relief in express terms, the order of acquittal should entail all the consequential effects thereof. A separate order for each and every consequence of the acquittal is not necessary. Therefore, the trial court,, acting on the basis of the order of acquittal recorded by the Honourable Supreme Court could have released the property. Section 520 Cr.P.C. referred to by the trial court gives jurisdiction to the superior courts to interfere with an order passed by a lower court under sections 517, 518 & 519, but it does in no way restrict a lower court from " passing an order consequent to, and in compliance with, the order of a superior court. This petition is, therefore, allowed. The impugned order of the 1st. Additional Sessions Judge Sukkur is set aside. The properties of the petitioner seized in connection with the charge he is acquitted from by the Supreme Court shall be released forthwith. (K.K.F.) Petition allowed.
PLJ 1997 FSC 33 PLJ 1997 FSC 33 [Appellate Jurisdiction] Present: nazir ahmad bhatti, C J. and khalil-ur-rehman khan, J. MUHAMMAD ASHRAF-Appellant versus STATE-Respondent Crl. Appeal No. 202/L of 1994, dismissed on 5.8.1996, (i) Ikra-(Jabar) -See details. [P. 42] D (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 10(3)--Zina-bil-jabr by father with his daughter-Offence ofConviction forChallenge toVictim asserted that threats of life were extended to him by father-Even if no such threat was given, veiy position of command, supervision, sustenance, shelter and protection which father possessed as against his teen aged daughter constituted sufficient compulsion that resistance or abstenance cannot be expected-Helpless girl as such was subjected tojabr as otherwise she would not have on her own offered her for satisfaction of lust of culprit, father-Offence squarely fell under section 10(3) of Ordinance and conviction of appellant U/S. 10(3) of Ordinance is perfectly valid, legal and proper-Sentence of 25 years R.I., awarded is also proper and in no way excessive as appellant repeatedly subjected his daughter to zina-bil-jabrlt was a case of satisfying lust under beastardly compulsion once but of repeated assault- Such a conduct deserves to be punished severely and adequately- Sentence is, therefore, upheld and maintained [P. 46] E (iii) Words and Phrases-- .,"Will" as per Chambers Twentieth Century dictionary signifies and connotes, "power of faculty of choosing or determining, act of using this power, volition, choice, determination. [P. 41] B (iv) Words and Phrases- "Consent" as per Chambers Twentieth Century dictionary signifies, to be of same mind; to agree, to give assent, to yield; to comply. [P. 41] C (v) Zina-bil-jabr- Sexual intercourse against will or without consent of victim also amounts zina-bil-jabr. [P. 41] A Khawaja Muhammad Sharif, Advocate for Appellant. Mr. Muhammad Anwar Dholan, Advocate for State. Date of hearing: 25.1.1996. judgment Khalil-ur-Rehman Khan, J.-Muharmnad Ashraf convict filed this appeal to assail the judgment dated 16th Jane, 1094 of the learned Additional Sessions Judge. Lahore, whereby he was convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and sentenced to suffer 25 years R.I., and 30 stripes. The benefit of section 882-B Cr.P.C., was, however, allowed. Mst. Amina Yasmin the co-accused who was charge sheeted under section 338-A PPG was, however, acquitted giving her benefit of doubt while Mst. Naziran Bibi the other co-accused charge sheeted under section 109 read with section 338-A (b) PPG was convicted and sentenced to the period of detention during trial already undergone by her. 2. The prosecution case as per FIR Ex. PA/1 recorded on the basis of the statement made by Mst. Samina daughter of Muhammad Ashraf convict/appellant before Farkhanda Iqbal DSP (P.W. 1) Incharge Lady olice, Lahore , was that she was resident, of House No. 2/5, Gulberg III Lahore. She has two brothers and three sisters. Her mother Mst Balqees Begum PW was in the Mayo Hospital before Shab-e-Baraat as Mst. Saima her younger sister was operated upon, Rizwan PW her brother was at Fiasalabad. Shehzad the younger brother was sleeping in the same room where she was sleeping. Muhammad Ashraf her real father came to her cot and forcibly laid down with her on the cot arid when she touched the string of her shalwar she tried to raise alarm on which he put his hand on mouth and committed zina bil jabr with her. She added that earlier to this her father had bad intention as previously he used to look at her with evil designs, and the mother was informed about it by her and she was told that she has reprimanded him and in future he will no do any such thing. She added that when her mother was in Mayo Hospital in connection with treatment of her sister Muhammad Ashraf her father subjected her to zina bil jabr in the absence of her mother and thereafter also whenever her mother was away on work and her father found the occasion he committed zina bil jabr 6/7 times. She added that her father used to ask her after giving threats of life about her menstruation period and when she informed him that menstruation has stooped, he took her to Mst. Naziran wife of Muhammad Feroze of Madina Colony Near Kharak, Multan Road, Lahore, and thereafter her she was taken to Pukki Thaihi, Samanabad, and her pregnancy was got rid off through abortion. She added that when she came back the informed her mother about the incident and the mother quarreled with her father and her father threatened them to kill., so out of fear they took shelter in the neighbour's house. Meanwhile, her mother informed Miss Hina Jillani Advocate, Incharge of Legal aid. 3. Farkhanda Iqbal DSP Incharge Lady Police Centre, Ferozepur Road , Lahore , reached P.S., Ghalib Market in the company of Miss Hina Jillani, Advocate and taking Muhammad Akrara SI, Klialid Yaqoob and Abdul Razzaq constables reached the place of occurrence where Mst Samina gave the aforesaid statement which was recorded. The said statement was then forwarded through Khalid Yaqoob constable to the Police Station for registration of the case. Muhammad Akram SI was deputed for investigation of the case, Muhammad Akram SI prepared the site plan Ex. PD S recorded the statements of witnesses under section 181 Cr.P.C,, arrested Muhammad Ashraf and Mst. Naziraa Bibi and got Mst. Samina (P.W. ?) and Muhammad Ashraf accused/appellant medically examined and submitted the challan. 4. The prosecution at the trial produced nine witnesses, namely, Farkhanda. Iqbal DSP (PAY, 1), Asghar Abbas SI (P,W. 2), Lady Dr. Naureen Rasool (P.W. 3), Fida Muhammad (P.W. 4), Rizwan (P.W, 5) Mst Bilqees, (P.W. 8) Mst Samina (P.W. 7) Dr. Hamayxm Hanif (P.W. 8) and Muhammad Akram S.I (P.W. 9). The Chemical Examiner's report Ex. PE produced on record is to the effect that the swabs were stained with blood, however, semen was not detected. 5. Muhammad Ashraf accused/appellant in his statement under section 342 Cr.P.C., denied the prosecution version and pleaded that when he came to know that his daughter became pregnant due to zina committed by Tasawar, nephew of his wife., he condemned his wife Ealqees Bibi and his daughter and tried to beat, them, so they were annoyed and left the house and went to the house of Mrs. Zainab Tiwana and then with the connivance of Miss Hina Jillani got registered this false case against him. He added that his wife and daughter both have deposed against him as they themselves were the culprits while Rizwau PW his son was under the influence of his wife. Neither any evidence in defence was produced nor the accused/appellant offered to make statement on oath in disproof of the charge against him. 6. We have gone through the evidence on record and have heard the learned counsel for the parties. 7. Khawaja Muhammad Sharif, Advocate, learned counsel for the appellant argued that the prosecution case depends mostly on the statement of Mst. Samina the alleged victim. She as well as Rizwan PW her brother have deposed against their real father as Mst. Balqees, their mother's influence was operating. He argued that Muhammad Ashraf appellant used to object to the visit of Tasawar the son of sister of Mst Balqees Bibi to his house and that he and the relations of Muhammad Ashraf used to scold his wife Mst. Balqees Bibi on this score and when Mst. Samina became pregnant from Tasawar he gave them beating and in the circumstances Mst. Balqees Bibi PW in order to get rid of Muhammad Ashraf appellant involved him through his daughter and the son in the false case. He pointed out that Mst. Balqees Bibi PW in her statement has not stated anything about the role attributed to Mst. Naziran Bibi and Amina Yasmin accused regarding abortion she conveniently omitted to mention this part of the prosecution version as her purpose was to get rid of Muhammad Ashraf her husband alone. He further pointed out that even Mst. Samina PW the alleged victim made improvements as regards allegation of taking her to Sargodha by Muhammad Ashraf accused/appellant for the purpose of aboition and also calling of grand father from Sargodha through Rizwan PW the elder brother. It was pointed out that these two visits to Sargodha do not find mention in the statement under section 161 ocular evidence as well as the medical evidence, zina biljabr is not proved as no marks of violence or injuries on the body of the alleged victim was observed by the doctor and for almost a period of two months, she did not take even her mother of in confidence and admittedly did not report to her mother being subjected to zina forcibly and of her pregnancy and as such the offence if any would fall under section 10(2) and not under section 10(3) of the Ordinance, Lastly he argued that the sentence of 25 years awarded is, however, excessive, 8. Learned counsel for the State on the other hand argued that the case of zina biljabr stands established through the evidence ofMst. Samina PW which receives strong corroboration from the evidence of Rizwan and Mst. Balqees Bibi PWs. He argued that the defence was not able to shatter the testimony of Mst. Samina (P.W. 7), Rizwan (P.W. 5) and Mst. Balqees Bibi (P.W. 6) though they were subjected to lengthy cross-examination and that the son and the daughter and the wife cannot be imagined to have roped in their father and husband respectively in a totally concocted case and that the plea of substitution of the father for the first cousin has no truth. 9. We have considered the respective submissions of the learned counsel for the parties and have also gone through the material on record minutely. Farkhanda Iqbal DSP (P.W. 1) proved the statement made by Mst. Samina (P.W. 1) before him. Asghar Abbas SI (P.W. 2) on receipt of complaint Ex. PA registered the formal FIR Ex. PA/1. The medical evidence comprises of the statement of Dr. Naureen Rasool (P.W. 3) and Dr. .Hamayun Hanif (P.W. 8) who had examined Muhammad Ashraf accused/appellant and according to his opinion he was potent. Dr. Naureen Rasool (P.W. 3) examined the alleged vicitim Mst. Samina (P.W. 7). She deposed that she examined Mst. Samina PW aged 16 years on 4.4.1993. She did not find any mark of violence on her body or mark of injury on external genitalia, vagina admitted two fingers easily, hymen was torn and tears were old and healed up. On internal examination fundal height was 6/8 weeks, bleeding per vagina was present, vaginal canal was hypertrophic. It was noted that she gave histoiy of abortion and curattaget get done on 3rd April, 1993 by a private Doctor to whom she was taken by her father. She took three swabs for analysis of semen, blood and seminal grouping. The swabs as per Chemical Examiner's report were blood stained, however, semen was not detected. Lady doctor in her cross-examination stated that she had given opinion of pregnancy on the basis of measurement of fundal height done with her fingers. She added that the abortion took place on 3.4.1993 and that fundus takes 40 days to become normal after aboition or delivery. She added that fund height 6 to 8 weeks means that she was pregnant of 6 to 8 weeks before abortion. She refuted the suggestion that when she examined the victim she was pregnant. She further added that without the case history no one can point out the date of abortion but one can opine if the abortion takes place within one month. 10. Besides the medical evidence, oral testimony of Rizwan (P.W. 5), Mst. Balqees (P.W. 6) and Mst. Samina (P.W. 7) comprises the important material on which the prosecution relies in this case. Fida Muhammad (P.W. 4) in whose house the girl and the mother had taken refuge after receiving hreats to their lives from ccused/appellant stated that he did not know anything about the occurrence. He was declared hostile and was crossexamined wherein he, inter alia, accepted the suggestion that in order to save Mst. Samina and Mst. Balqees PWs from Muhammad Ashraf accused/appellant he gave them protection in his house. He also accepted the suggestion as correct that Mst. Balqees (P.W, 6) told him that Muhammad Ashraf accused had committed zina with his daughter Mst. Samina Bibi and that is why he gave them protection. 11. Rizwan (P.W. 5) deposed that he was called from Faisalabad to Lahore where he stayed for two days and again came to Lahore on Eid. It fell on 24th March, 1993. Muhammad Ashraf appellant his father took Mst. Samina PW to Sargodha and they returned after 2/3 days. Mst Samina PW was ill and she told the mother about the commission of zina by Muhammad Ashraf his father on which the mother sent him to Sargodha to fetch the grand father who came to Lahore. He added that next morning his father took Mst. Samina Bibi to some doctor at Pakki Thathi and returned after 2/3 ours with Mst. Naziran. There was a quarrel between he spouses and the father threatened that he would take Mst. Samina alongwith him and they sent Mst. Samina to the house of a neighbour. He added that he does not know who reported the matter to the police but when the police came Muhammad Ashraf accused hid himself but he was arrested. In crossexamination his case was that his father and mother used to live amicably before the operation of the sister and they had no dispute. He added that he did state before the place that he went to Faisalabad on the asking of his mother but it was not so found recorded in Ex. PD. He also stated that he told the police that his father had taken Mst. Samina to Sargodha but the same was not found recorded in his statement before the police (Ex. DA). He added that he did tell the police that his mother had sent him to his grand father who then came to Lahore and talked to his father, sister and mother but the same was not found recorded in the statement to the police Ex. DA. He further deposed that Tasawar his cousin used to meet him after about one month outside his house and that he never came to meet his mother at his house but instead his mother used to go to heir house. He refuted the suggestion as incorrect that Tasawar had committed zina with Mst. Samina and that when his sister Mst Samina became pregnant his mother herself did the abortion and that when her father came to know about the pregnancy of Mst. Samina his mother left the house and that his mother in order to save her had falsely levelled allegation of zina against his father. 12. Mst. Balqees Bibi CP.W. 6) deposed that she was in the hospital as her daughter was operated upon and when after 10/15 days she returned from hospital Mst. Samina PW told her that in her absence Muhammad Ashraf accused had committed zina bil juhr with her. She added that Muhammad Ashrafand Samina went to Sargodha and her daughter told her about the incident after her return from Sargodha, She then deposed about the calling of parents of Muhammad Ashraf from Sargcdha and informing them of the incident. She further deposed that Muhammad Ashraf accused wanted to take Mst. Samina outside the house but she insisted that she would also accompany them and he did not allow her to accompany them and took Mst. Sainina away and they returned alongwith Mst. Naziran accused. She added that again she was told that he is caking Mst. Samina alongwith him, which, was resisted and then she and Mst. Samina went to the neighbour's house where police came and arrested Muhammad Ashraf accused. She added that she went, to the house of Miss Hina Jillani Advocate and informed her about the incident and she informed the police. The defence in the cross-examination brought out that assertion of calling parents of the accused from Sargodha did not find mention in her statement under section 161 Cr.P.C. Ex, DB. la this statement again the assertion that Muhammad Ashraf accused wanted to take Mst. Samina PW and that she insisted to accompany them was also not found recorded. She admitted that she is a qualified mid-wife. She refuted the suggestions with regard to visits of Tasawar, her nephew, to their house or that it was Tasawar who had committed zina and Mst. Samina became pregnant. She also refuted the suggestion that she did the abortion and that when Muhammad Ashraf accused came to know about it he blamed her for this incident and that in order to save herself, Muhammad Ashraf accused was falsely involved in the case. She further deposed that she was told about the incident on the second day of the Eid. 13. Mst. Samina (P.W, ?) the daughter deposed that she was subjected to zina when her mother was in the hospital looking after the sister who was operated upon in the Mayo Hospital . She added that whenever her mother went out the father committed 'Ziadati' with her. He did it for 5/6 times. She deposed that two days before Eid her father took her to a village at Sargodha to have the abortion but the same could not be done as on those days the hospital was closed on account of holidays. She further deposed that her father threatened that If she would tell her mother he will kill her as well as her mother but one day when her father was not at home she told the incident to her mother who called her grandfather and told him about the incident but they were asked to forget the incident and not to tell anybody. She further deposed that on Friday her father took her to Mst. Naziran accused to Pakki Thatfai where doctor was not available and another woman gave her medicine. The next day Muhammad Ashraf and Mst. Naziran took her to the lady doctor who performed the abortion. Thereafter she returned to their house. Muhammad Ashraf showing Churri to her mother threatened her that if she would tell to anybody he would kill her. She deposed hat, her mother then informed Miss Hiria Jillani about the incident and at that time they were in the neighbour's house where they had gone because Muhammad Ashraf accused had threatened. She in crossexamination deposed that she did not, menstruate for about one month and six days and the abortion was performed immediately after the stopping of menstruation. She further stated that her father committed 'Ziadati' two days before the abortion. She deposed that on first day when her father committed 'Ziadati' the cot of her younger brother was at the distance of 5/6 feet. Her father remained at her cot for 7/8 minutes. During this period her father asked her not to tell her mother. She added that after three days of the commission of 'Ziadati' her mother returned home but she did not disclose the incident to her on that day. She added that her father committed 'Ziadati' with her after one day of the first 'Ziadati', During one month her father did 'Ziadati' with her for 5/6 times. The last time when father did 'Ziadati with her it was after two days that she narrated the whole story to her mother. Though she denied the suggestions as incorrect that she had relations with Tasawar or she became pregnant, from him but she, however, admitted that previously her father and mother had dispute over the visit of her cousins but for the last two years her cousins did not visit their house. 14. The version which emerges from the aforesaid evidence is that the mother was in the May Hospital on the eye of Shab-e-Baraat which fell on 7th February, 1993, Mst. Samina PW was subjected to zina Ml jabr during the days that the mother was in the hospital looking after the younger daughter. Eid fell on 28th March, 1993, Before Eid she was taken to Sargodha where father and daughter remained for about two days and that on 2nd April, 1993 she was taken for the purpose of abortion but doctor was not available and she was given some medicine. The next day which would be 3rd April, 1893 the abortion was done and the victim returned home. Muhammad Ashraf accused wanted to take Mst. Samina again some where upon which the mother Mst. Balqees did not agree and Mst Samina and the mother went to the neighbour's house and on the same day the matter was reported to the police through Miss Hina Jillani and Muhammad Ashraf was arrested and the ease was registered in pursuant to report dated 3.4.1993 at 11.25 p.m. The medical examination then took place on 4th April, 1993 wherein the conducting of abortion on 3rd April, 1993 stands recorded as reported by the examine Mst Samina, This version of Mst Samina receives support from the evidence of Mst. Balqees PW her mother and Rizwan PW her brother. The medical evidence also supports her version. According to her she was subjected to intercourse 5/6 times in a span of one and a half month since after Shab-e-Baraat which fell on 7th February, 1993. The pregnancy was of 8/8 weeks as the fundal height on internal examination was of 6/8 weeks. The features noted in the medical examination thus fully corroborate the version of Mst. Samina who is teen aged girl of 15/16 years. The version narrated by her is consistent and confidence inspiring. She was subjected to lengthy cross-examination. Had the appellant been substituted for Tasawar the first cousin of the victim or for the actual cusprit some material discrepancy or contradiction would have appeared in the statements of the mother, the son and the daughter. The sequence of the events narrated as noted above get full support from the testimony of the aforesaid three prosecution witnesses and the mere omission of the two visits to .Sargodha in the statement under section 161 Cr.P.C. does not furnish reasonable basis to discard the testimony of these witnesses. Had Rizwan the son and Mst. Samina the daughter of the convict/appellant been making false statements under the influence of the mother Mst, Balqees PW, some important contradictions would have appeared in their evidence. Moreover, the possibility of false involvement of the father stands ruled out as no plausible reason for false involvement could be brought on record. We, therefore, are not prepared to accept the plea of the defence that the appellant was substituted with a view to save Tasawar and that the appellant was named as he had scoled his wife and daughter on coming to know that Mst. Samina PW had become pregnant from Tasawar. 15. Now the plea of the learned counsel for the appellant that the offence made out at best is that of zina punishable under section 10(2) and not under section 10(3) of the Ordinance may be examined. This plea was sought to be supported by asserting that no resistance was offered by the alleged victim on the 6/7 occasions that she was statedly subjected to sexual intercourse. She even did not inform her mother for the five or six times that she was subjected to 'Ziadati' and admittedly on all these occassions the accused except for statedly extending verbal threats had not used any physical force i.e. any stick, knife or other instrument of violence and that the alleged victim did not take the mother in confidence for all this period though father used to be away from the house. It was urged that mother could be told of the repeated 'Ziadati' during the absence from the house of the father. There is no force in this plea. The use of any instrument of a fear or physical violence thereof may or may not in a given situation constitute Jabr. Zina Bil Jabr has been defined and explained by section 6 of the Ordinance as under:- "Zina Bil Jabr. (1) A person is said to commit zina biljabr if he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married in any of the following circumstances, namely:- (a) Against the will of the victim, (b) without the consent of the victim, (c) with the consent of the victim, when the consent has been obtained by putting the victim in fear or death or of huit, or (d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be married. Explanation,-Peneti'ation is sufficient to constitute the sexual inter-course necessary to the offence of zina biljabr.' The bare reading of the afore-quoted provision would show that the sexual intercourse with a woman or man when they are not inter se validly married will amount of zina biljabr if the intercourse takes place against the will or without the consent of the victim or when the consent is obtained by putting the victim in fear of death or of hurt or consent is given under the belief of a valid marriage when the offender knows that the offender is not validly married to victim but the victim believes herself to be validly married. So under any of the aforesaid situations the sexual intercourse would amount to zina biljabr. It will be seen that putting the victim in the fear or hurt by use of instrument of violence or otherwise is not the only ingredient of the offence. It is also impoitant to note that sexual intercourse against the will or without the consent of the victim also amounts to zina biljabr. The words, 'against the will' and without consent' have been used to display and cover two different situations and intercourse in either of the situations would amount to zina biljabr. The word 'will' as per Chambers Twentieth Century B dictionary signifies and connotes, 'power or fuculty of choosing or determining; act of using this power; volition choice; determination. The word 'consent' signifies, to be of the same mind; to agree to give assent; to yield; to comply. It necessarily implies agreement as a free agent with the presence of the free mind and free will. So when a person (victim) is subjected to some act to which he or she would not have succumbed to or allowed to be done or performed, had he or she been left to make a choice, such an act would be taken to have been done against his or her will. In other words, would he or she have acted the same way as was made to act, had there been choice to act one way or the other. So was there choice available but if the choice was redundant in the given situation, the act done will be taken to have been done against the will of the person concerned. The non-availability of the choice or the power or faculty to choose way get affected for variety of reasons i.e. the position of the perpetrator vis a vis the person dominated; the fiduciary capacity; the supervisory control or position of dependence and sustenance. Any situation which has the effect of giving over-bearing position may adversely affect volition or determination to act otherwise than is being done or to which one is being subjected to. 16. The Muslims Jurists have discussed the subject of 'Jabr' under the heading 'Ikrah' ( B^X/ ) It will be appropriate to refer to the celebrated works of renowned Muslim scholars for knowing the definition, and scope of the term 'Ikrah' and consequences of 'Ikrah' on the criminality | of a given act. Reference is invited to the" ' by Dr. ' Abdul Karim Zaidan, Professor of Fiqh Islami, University of Baghdad Iraq. Its Urdu translation under the title " Jr-^ l&l? "by Professor Dr. Ahmad Hassan may be referred to for the subject Ikrah. Definition of Ikrah at page From the discussion and the views given above, it is apparent that 'Ikrah' may be inferred from the vary situation in which a victim may find herself unable to protest or where he faculty to determine her course of action is so affected that she had no control over the action or the event or she would not have acted that way if left to make a choice. The very force of circumstances may constitute Jabar (Ikrah). In the instant case, Mst. Samina PW the victim asserted that threats of life were extended to him by the father. Even if no such threat was given, the very position of command, supervision, sustenance, shelter and protection which the father possessed as against his teen aged daughter constituted sufficient compulsion that resistance or abstenance cannot be expected. The helpless girl as such was subjected to Jabr as otherwise she would not have on her own offered herself for satisfaction of the lust of the culprit, father. We are therefore, satisfied that the offence in the circumstance squarely fell under section 10(3) of the Ordinance and conviction of the appellant under section 10(3) of the Ordinance is perfectly valid, legal and proper. The sentence of 25 years R.I., awarded is also proper and in no way excessive as the appellant repeatedly subjected his daughter to Zina bil jabr. It was not a case of satisfying the lust under beastardly compulsion once but of repeated assault. Such a conduct deserves to be punished severely and adequately. The sentence is, therefore, upheld and maintained. The appeal fails and is hereby dismissed. (M.S.N.) Appeal dismissed.
PLJ 1997 FSC 49 PLJ 1997 FSC 49 Present: NAZIR AHMAD BHATTT, C J. SAEED UR REHMAN ETC.--Appellants versus STATE-Respondent Cr. Appeal No. 148/1 of 1996, accepted on 18.9.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- S. 426Suspension of sentenceAppellants were charged only under section 411 PPC but after conclusion of trial learned Magistrate convicted appellants u/Ss. 380 and 457 as well as u/s 14 of Offences Against Property (Enforcement of Hudood ) Ordinance, 1979 and each of them was to undergo rigorous imprisonment for 6 yearsContention that u/s 411 PPC appellants could only be convicted by a maximum sentence of 3 years and their conviction was recorded without disclosing any charge against them as such an illegality has been committed during trial- Appeal accepted. [P. 49] A Mr. M. Saliheen Mughal , Advocate for Appellants. Date of hearing: 18.9.1996. order The appellants were charged only under section 411 PPC but after the conclusion of the trial the learned Magistrate convicted the appellants under sections 380 and 457 PPC as well as under section 14 of the Offences Against Property (Enforcement of Hudood ) Ordinance, 1979 and each of them was sentenced to undergo rigorous imprisonment for 6 years. The learned counsel contends that in pursuance of the original charge under section 411 PPC the appellants could only be convicted by a maximum sentence of 3 years and their conviction was recorded without disclosing any charge against them as such an illegality had been committed during the trial. 3. For the aforesaid reasons it would be appropriate to suspend the sentence. Order accordingly, Each of the appellants is allowed bail in the sum of Rs . 50,000/- each with one surety each in the like amount to the satisfaction of the trial court. (K.K.F.) Appeal accepted.
PLJ 1997 FSC 50 [Revisional Jurisdiction] PLJ 1997 FSC 50 [Revisional Jurisdiction] Present: M. MAHBOOB AHMED, C.J. NUSRAT ALI and 2 others-Petitioners versus STATE-Respondent Crl. Revision No, 13/P of 1996, decided on 26.1.1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- S. 2G~Jurisdiction-Question of-Offence u/s 12/18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S. 323 of PPC-- Sodoiny-Case of-Conviction for-Challenge to-Contention that tria] court (Illaqa Qazi) was not competent to try case as provided by S. 20 of Ordinance-According to second proviso to section 20(1) of Ordinance, 1979, it is only a court of Sessions which can try cases of offences punishable under OrdinanceHeld: The initial trial of case out of which this revision has arisen having been conducted by a court lacking jurisdiction, there is no escape from accepting revision-Case remanded. [Pp. 51 & 52] A & B Mr. Akhtar Naueed, Advocate for Petitioners. Mr. A.RaufKhan Gandapur, Advocate for State. Date of hearing : 26.1.1997. judgment This Criminal Revision calls in question judgment dated 7-10-1996 passed by the learned Sessions Judge/Zila Qazi, Dir whereby he dismissed the appeal of petitioners against order dated 16-7-1996 passed by the Illaqa Qazi, Balmbut, District Dir. The details of the case against the petitioners have been given in the judgment of the courts below and are not recapitulated here to avoid the burdening of record. It would suffice to mention that the petitioners alongwith one Muhammad Iqbal s/o Fazal Wahab abscondor on 28-4-1994 at about 1745 p.m. from near petrol pump Khaima in the area of police station Biambat abducted Laiq Zada son of Gul Shehzada a minor for the purposes of committing unnatural act with him. A case U/S. 12/18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) and Section 323-PPC was registered against him. The challan after investigation was put up before the trial court who on the conclusion of the trial wherein 7 P.Ws. were examined convicted the petitioners U/S. 12 read with Section 18 of the Ordinance, 1979 and sentenced each one of the petitioners to two and half years R.I. and fine of Rs. 2000/- each in default whereof they were to undergo one month's S.I. The trial court also convicted each of the accused U/S. 323-PPC and sentenced them to 6 months R.I. each. There is no mention in the order of the trial court as to whether the sentences afore-mentioned were to run concurrently. The benefit of Section 382-B, Cr.P.C. was however afforded. The petitioners went up in appeal before the learned Sessions Judge against the order of Dlaqa Qazi who has dismissed the appeal vide judgment dated 7-10-1996. Hence this revision. The learned counsel for the petitioners has raised the contention that the trial court was not competent to try the case as provided by Section 20 of the Ordinance. He submitted that according to second proviso to Section 20(1) of the Ordinance, 1979, it is only a court of Sessions which can try the cases of Offences punishable under the Ordinance. In this context he submitted that the appeal merits to be accepted on this ground alone. The learned counsel appearing on behalf of the State has stated that it is correct that the trial has been held by a court which was not competent to try the case. Having given consideration to the controversy involved I am of the view that the contention raised on behalf of the petitioners have great force. Section 20 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is reproduced hereunder for facility of reference :-- Section 20:- (1) ................................. Provided that ............................... Provided further that an offence punishable under this Ordinance shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order of the Court of Sessions shall lie to the Federal Shariat Court ". A bare perusal of the above ^proviso shows that the offences punishable under the Ordinance are triable by a court of Sessions and not by a Magistrate with powers U/S. 30 of the Cr.P.C. I fail to understand as to why the learned Sessions Judge after challan was put up before him and he framed the charge against the petitioners/accused and even recorded statement of one of the prosecution witnesses sent the case to the Illaqa Qazi for trial. 1 have seen the record and find that by order dated 13-11-1995 which is in the following terms :-- the learned Sessions Judge/Zila Qazi sent the case to the Hlaqa Qazi for trial. No reason whatsoever has been afforded in the said order for so doing In the face of the mandatory provisions and clear phraseology of section 20 ibid ,there was no justification for sending the case to the court below. Such an I attitude in dealing with cases obviously leads to multiplicity of proceedings | and prolongation in the final adjudication of the cases. The courts should I avoid such an attitude in dealing with cases and show more responsibility. !The courts are places of serious business and the Presiding Officers are j expected to act with all seriousness and full application of mind and should | not deal with cases before them without adverting to the provisions of law I governing the trial of cases. The initial trial of the case out of which this revision has arisen having been conducted by a court lacking jurisdiction, jthere is no escape from accepting the revision. Resultantiy I accept tins petition and setting aside the judgments of the courts below dated 16-7-1996 and 7-10-1996 remand the case to the learned Sessions Judge, Dir for trial and adjudication of the case afresh. (K.K.F.) Case remanded
PLJ 1997 FSC 52 PLJ 1997 FSC 52 [Appellate Jurisdiction] Present: M. mahboob ahmad, C.J. Mst. KHIAL MEENA and another-Appellants versus STATE-Respondent Jail Criminal Appeal No. 197/1 of 1996, decided on 22.1.1997. (!) Criminal Procedure Code, 1898 (Act V of 1898)-- -S. 342--It is now well settled that provisions contained in Section 364(2) Cr.P.C. are mandatory in nature and trial court recording statement of accused u/s. 342 Cr.P.C. of necessity has to certify under his own hand in the manner prescribed that examination was taken in his presence and hearing and that record contains a full and true account of statement made by accusedNon-compliance of a mandatory provision of law viz: Section 364(2) Cr.P.C. is not a mere irregularity which is curable but is an illegality which is not curable. [Pp. 54 & 55] A (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 10(2)~Zina--Offence of-Conviction for--Cha!lenge to-Contention that appellant No. 1 was divorced whereupon she contracted second marriage with appellant No. 2 out of whom she has two children and that she has not committed any Zina--ln such cases trial court should not treat proceedings as ordinary adversaiy roceedings-These matters effect moral fibre of society as also paternity and legitimacy of children and therefore call for taking extraordinary care and caution--If matter is lightly taken, result would be that off-springs would be treated as illegitimate under court verdict, which would be a constant sore in iheir livesCourt while giving a finding of illegal sexual relationship of a man and a woman, should make all possible efforts to reach truth so that illegitimacy of children is not legally certified by it-Even if for recording a definite finding about divorce plea in such cases court has to wait for some longer period, it should not hesitate to do so-Expediency of disposal of cases should not be allowed to prevail on true and effectual dispensation of justice--Appeal allowed and case remanded for retrial. [P. 55] B & C Miss Tehmina Razzaq Bfiatti, Advocate for Appellant. Mr. Akhtar Naveed, Advocate for State. Date of hearing : 22.1.1997. judgment This appeal is directed against judgment dated 19-9-1996 delivered by Additional Sessions Judge/Izafi Zila Qazi, Camp Court Wari, District Dir whereby he convicted the two appellants U/S. 10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance) and sentenced each one of them to 7 years rigorous imprisonment, 20 stripes and Rs. 10.000/- fine; in default whereof to undergo rigorous imprisonment for 6 months. 2. The case against the appellants was registered vide FIR No. 46 dated 14th March, 1995 with police station Wari on the complaint of one Sher Tawab the brother of Khan Bahadur husband of appellant No. 1. According to the prosecution story Ms?. Kliial Meena appellant No. 1 is the wife of Khan Bahadur the brother of Sher Tawab complainant. Khan Bahadur had gone to Saudi Arabia in connection with his employment there about 2 years before the date of occurrence. During his absence Mst. Khial Meena left her two daughters from Khan Bahadur in the house and eloped with appellant No. 2 Kishar Khan who is the cousin of the complainant. The two appellants were arrested U/S. 109/55 Cr.P.C. in the Malakand Agency area and were on bail in the said case when they were taken into custody by the Dir police in connection with the case registered against them U/S. 10(2) of the Ordinance. The medical examination of both the appellants was not conducted and thereafter their statements U/S. 164 Cr.P.C. were also recorded. On completion of investigation, challaii was put up in the court. After examination of 12 prosecution witnesses, the statements of the appellants were recorded U/S. 342 Cr.P.C. The defence of appellant No. 1 was that on ac'
" un t of her strained relations with her in laws her husband used to v - at ner and ultimately divorced her and turned her out of the house whereupon she contracted second marriage with Kishar Khan out of whom she has two children and that she has not committed any zina. She is her statement U/S. 342 Cr.P.C. also denied having made a confessional statement which she termed as fictitious, collusive and result of police aggression against her. She opted not to give statement on oath U/S. 340(2) Cr.P.C. and also declined to produce any evidence in defence. 3. Similarly the defence of appellant No. 2 was that as a result of the strained relations of Mst. Khial Meena, the appellant No. 1 with her in laws she was divorced by her husband whereafter according to the custom in vogue in the area the two of them contracted marriage out which wedlock two children have been born. Appellant No. 2 also denied having made voluntary confessional statement and dubbed the same as fictitious, collusive and result of police atrocity on him. This appellant did not opt to make statement on oath and declined to produce any defence evidence. 4. The learned counsel for the appellants has raised number of contentions. She has mainly submitted that it was incumbent upon the prosecution to have produced the appellant's husband namely Khan Bahadur in view of the plea that she had been divorced by him and it was thereafter that she contracted the second marriage with appellant No. 2. In the same context it was urged that despite the fact that Khan Bahadur afore mentioned was available in the country after the registration of the case as is evident from the statement of Sher Tawab P.W. 11, the prosecution did not care to produce him in the evidence nor the police recorded his statement U/S. 161 Cr.P.C. 5. It was next submitted by the learned counsel for the appellants that all the four material witnesses of prosecution viz: P.W. 9 Zubair, P.W.IO Muhammad Zubair son of Khaibar, P.W. 11 Sher Tawab the complainant and P.W. 12 Mst. Dur Jana mother of complainant have all stated that they were not the eye witnesses of the occurrence and that their testimony is in essence heresay only. The further contention of the learned counsel for the appellants was that a material illegality has been committed by the trial court in recording the statements of the accused/appellants U/S. 342 Cr.P.C., in that the certificate required to be given at the end of the statement U/S. 342 Cr.P.C. is not in accord with the requirements of Section 364(2) Cr.P.C. which are mandatory in nature. In this regard the learned counsel placed reliance on: (i) Raheel Sajid vs. The State, 1986-P.Cr.L.J. 1006; (ii) Shabbir Ahmed vs. The State, 1986-P.Cr.L.J. 1730; and (iii) AshrafMian vs. The State, 1989-P.Cr.L.J. 1079. 7. The learned counsel appearing for the State has not been able to urge anything to meet the submissions made oil behalf of the appellants. Having given consideration to the controversy \ am of the view that contentions raised on behalf of the appellants have force, it i s by now well settled mandatory in nature and the trial court recording the statement of the accused U/S. 342 Cr.P.C. of necessity has to certify under his own hand in the manner prescribed that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. The record shows that such a certification has not been appended by the learned Additional Sessions Judge /Additional Qazi under the statements of both the appellants made U/S. 342 Cr.P.C. The non compliance of & mandatory provision of law viz: Section 364(2) Cr.P.C. is not a mere irregularity which is curable but is an illegality which is not curable. That being so on this short ground alone the appeal merits to be accepted and case remanded to trial court for trial afresh. 9. Yet another important aspect of the matter is that in view of the categorical defence taken by both the appellants about the divorce of appellant No. 1 by Khan Bahadur it was incumbent upon the court to arrive at a definite conclusion in this respect. The prosecution should have taken care to produce Khan Bahadur as a witness to prove its case regarding the alleged subsistence of the marriage between appellant No. 1 and Khan Bahadur. This was not done by the prosecution but then it does not absolve the court from taking all necessary steps on its own to determine such an important controversy conclusively and justly. In such cases the trial court should not treat the proceedings as ordinary adversary proceedings. These matters effect the moral fibre of the society as also the paternity and legitimacy of the children and therefore call for taking of extraordinary care and caution. If the matter is lightly taken as it appears to have been done in the instant case, the result would be that the off-springs would be treated as illegitimate under the court verdict, which would be a constant sore in their lives. From the above discussion it emerges that before, the Court discards the defence plea of such nature as raised in this case, and gives a finding of illegal sexual relationship of a man and a woman it should make all possible efforts to reach the truth so that illegitimacy of the children is not lightly certified by it. Even if for recording a definite finding about the divorce plea in such cases the court has to wait for some longer period, it should not hesitate to do so. The expediency of disposal of cases should not be allowed to prevail on the true and effectual dispensation of justice. In my view if the prosecution had not produced Khan Bahadur as a witness the court should have called him as court witness and examined him on the point of divorce asserted by Mst. Khial Meena. 10. In view of the foregoing discussion I would allow this appeal and remand the case to the trial court for retrial and not only record the statements of the appellants U/S. 342 Cr.P.C. in accordance with law but also allow the parties to adduce evidence on the plea in defence about the divorce and in case the evidence produced by the parties is not sufficient to record a definite finding in this respect to examine such person/persons as court witnesses as the trial court may deem fit. (K.K.F.) Case remanded.
PLJ 1997 FSC 56 PLJ 1997 FSC 56 [Appellate Jurisdiction] Present: dr. fida muhammad khan and khalil-ur-rehman khan, JJ, MUHAMMAD IKRAM alias MUNJI-Appellant versus STATE-Respondent Jail Criminal Appeal No. 218/1 of 1995, decided on 11-3-1996. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- S. 10(2)-Zina-Offence of-Conviction for-Challenge to-Doctor did not find any injury on any part of body of Mst. S-She in her crossexamination admitted that she not physically resisted-Offence of Zinabil-jabr punishable u/s 10(3) is not made out-Case of Zina punishable under section 10(2) stands however, proved-Conviction altered from section 10(3) to 10(2) of Ordinance-Appeal partly accepted. [P. 58] A Ch. Muhammad Ibrahim, Advocate for Appellant. Mr. Saliheen Mughal, Advocate for State. Date of hearing: 11.3.1996. judgment Khalil-ur-Rehman Khan, J.--Muhammad Ikram alias Munji son of Abdul Rashid, resident of Akram Park, Bund Road, Lahore, challenges the judgment dated 2nd August, 1995, whereby learned Additional Sessions Judge, Lahore, convicted him under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to life imprisonment, fifteen stripes and Rs. 10,000/- as fine or indefault of payment of fine to further undergo six months R.I. He was also convicted under section 10(3) of the said Ordinance and sentenced to suffer ten years R.I. and thirty stripes. The sentences were ordered to run concurrently. The accused was however allowed the benefit of section 382-B Cr.P.C. 2. The prosecution case as per F.I.R dated 18th January, 1993 lodged by Barkat All, P.W.I, father of Sajida Qaiser, P.W. 2 the alleged victim, is that on 16th January, 1993, after performing his duty in the Railway Department, the complainant reached his house and went to bed alongwith his family members. He got up at 1.00 a.m. and found that Mst. Sajida Qaiser, his daughter, was missing from her bed. The complainant started tracing out the daughter and during the search, Abdul Sattar son of Abdul Ghani PW and Muhammad Tufail son of Ch. Siraj Din (given up P.W.) met him and informed that they had seen Mst. Sajida Qaiser alongwith Muhammad Ikram accused at Bund Road . The complainant alleged that Muhammad Ikram had abducted his daughter with the intent to commit zina-bil-jabr with her. 3. The aforesaid version was sought to be established at the trial by producing Barkat All, P.W.I the complainant, Sajida Qaiser, the alleged victim, P.W. 2 and Abdul Sattar P.W. 3. The medical evidence comprising of MLR Ex. PD of Dr. Robina Awan was proved through Ghafar Ahmad, Dispenser, P.W. 6 as the doctor herself was not available. Muhammad Firdous, S.I. P.W. 5, the Investigating Officer, deposed about the investigation conducted by him, Dr. Ehsan Elahi, P,W. 4 examined Muhammad Ikram, accused and found him potent. The prosecution however gave up Muhammad Tufail P.W. and Waqar Ahmad, MIC P.W. before whom Sajida Qaiser, after her recovery, made a statement under section 164 Cr.P.C. 4. Muhammad Ikram accused/appellant in his statement under section 342 Cr.P.C. denied the prosecution version and pleaded that he had been giving cash to complainant and his daughter on different occasions and the complainant had promised to give hand of his daughter to him but he did not fulfil his promise and gave the hand of her daughter to someone else. He added that when he demanded the return of cash, the complainant instead of returning the amount, got a false case registered against hirn and that the P.Ws had deposed against him due to enmity. It may be noted at this very stage that aforesaid version was not put either to Barkat Ali complainant/father or to Sajida Qaiser, P.W. the alleged victim. The suggestion put to them was that Mst. Sajida Qaiser had developed illicit relations with accused of her own free will and that Muhammad Ikram was on visiting terms with the family and that a false case was got registered against him. 5. We have gone through the evidence on record with the assistance of learned counsel for the parties and have also heard them. 6. The plea of the learned counsel for the appellant that offence of abduction punishable under section 11 of the said Ordinance is not made out on record has merits. Barkat Ali, P.W.I the father, had stated that he had gone to bed alongwith other family members and at that about 1.00 a.m. when he woke up, Mst. Sajida Qaiser was not found in her bed and that he had been searching for her and Sajida Qaiser was then recovered by Thanidar at Lari Adda, Lahore. Mst. Sajida Qaiser whose age has been entered 18 years in her statement and 16 to 18 years by doctor in MLR Ex. PD, deposed that at 9.30 p.m. on 16th January, 1993 when she felt urge to attend call of nature, she proceeded to fetch a candle from a shop situated at a distance of 4/5 houses from her house where Ikram accused met her and directed her to accompany him by showing a chhuri. He further deposed that he was taken to Lari Adda and they travelled - in a wagon and then was taken to Lahore Railway Station where they spent night and the other day police came there and arrested the accused. So Mst. Sajida Qaiser on her own showing had gone with her own free will and did not admittedly physically resisted. She travelled in a wagon and then for all the hours she remained at the Lahore Railway Station, She did not raise any alarm. It appears that she on her own free will accompanied the accused/appellant and as such the offence of abduction under section 11 of the Ordinance cannot be said to have been established on record. The conviction and sentence of the appellant under section 11 of the Ordinance therefore, cannot be maintained and is hereby set aside. 6. As regards, the offence under section 10(3) of the said Ordinance the discussion noted above and the feature emerging from the medical examination again how that although Mst. Sajida Qaiser was subjected to ~ sexual intercourse but the same was not through force. The doctor did not find any injury on any part of body Mst. Sajida Qaiser in her crossexamination admitted that she had not physically resisted. The offence of zina-bil-jabr punishable under section 10(3) of the Ordinance is therefore not made out. The case of zina punishable under section 10(2) of the Ordinance /^stands however proved. So, we alter his conviction from section 10(3) to section 10(2) of the Ordinance and sentence him to suffer three years R.I. with whipping numbering thirty stripes and fine of Rs. 10.000/- or in default to further undergo six months R.I. He shall however avail benefit of section 382-B Cr.P.C. as already extended by the learned trial court. 7. With this modification in the sentences, the appeal is partly allowed. (K.K.F.) Appeal partly allowed.
PLJ 1997 FSC 58 PLJ 1997 FSC 58 Present: NAZIR AHMAD BHATTI, C.J. MUHAMMAD SHAFIQ-Appellant versus STATE-Respondent CrI. Appeal No. 227/1 of 1995, dismissed on 19.12.1996. Abolition of Punishment of Whipping Act, 1996- Sentence of stripes has since been done away with by Abolition of Punishment of Whipping Act, 1996. [P. 60] A Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- S. 6 & 10(3) Zina bil ja&r-Offence of--Conviction for-Challenge to--Beside victim there was no other independent eye-witness-Contention not find favour for simple reason that a minor girl of such (9/10 years) age could not be tutored to falsely charge appellant-Minute perusal of testimony would clearly show that there was neither any contradiction in whole statement nor was any departure from original prosecution case- Corroborated by medical evidence-Neither any animus against appellant by complainant or police was brought on record. [P. 60] B Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- S. 10(3)-To constitute an offence of rape it is not necessary that ejaculation may have taken place-Penetration is sufficient to prove offence. [P. 60] C Judgment Mst. Hifza Bibi, aged about 9/10 years, sister of complainant Qari Abdul Khaliq, went to a Khola ( ,J>« ) near the house of Muhammad Shafiq situate in Mohallah Gorum Zai at about 1330 hours on 6.8.1994 for fetching water. She was also accompanied by Mst. Faiza minor daughter of Muhammad Rafiq. After some time Mst. Hifza Bibi returned to the house weeping and informed her mother Mst. Shamim Akhtar that the aforesaid Muhammad Shafiq has subjected her to rape. Qari Abdul Khalid went to Police Station, Nawansher at 1300 hours on 7.8.1994 and recorded F.I.R. No. 192. 2. The victim Mst. Hifza Bibi was medically examined by P.W. 10 Lady Dr. Shamim Nisar on 7.8.1994 at 1500 hours. According to that examination there was redness present all over the vaginal vault, redness was also present on hymen with slight swelling but vagina admitted little finger with difficulty and humen was in tact. According to the opinion of the lady doctor Mst. Hifza Bibi had been subjected to sexual intercourse. Accused Muhammad Shafiq was arrested on 7.8.1994 and after investigation he was sent up for trial before Sessions Judge, Abbottabad, who charged him under sections 6/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to which he pleaded not guilty and claimed trial. 3. The State produced 12 witnesses in proof of the prosecution case. The accused made a deposition under section 342 Cr.P.C. but he neither made any deposition on oath nor produced any defence evidence. 4. After the conclusion of the trial the learned Sessions Judge convicted the accused under section 10(3) of the Hudood Ordinance and sentenced him to undergo rigorous imprisonment for 10 years and to suffer 30 stripes. The convict has challenged his conviction and sentence by the appeal in hand. 5. I have heard learned counsel for the parties at length who also led me through the entire record of the case. The victim Mst. Hifza Bibi appeared as P.W. 5 during the trial. The learned Sessions Judge asked he ome questions to determine her capability as a witness. I have gone through those questions and I have come to the conclusion that Mst. Hifza Bibi was a competent witness as she answered many questions very correctly although they appeared to be difficult for a child of her age. Mst. Hifza Bibi clearly charged the appellant for subjecting her to rape. The medical examination of the girl on the next day of occurrence also confirmed that she had been subjected to sexual intercourse forcibly. The redness of the vagina and of the interior vaginal canal dearly established that penetration had taken place. It was contended by the learned counsel for the appellant that hymen was in tact and vaginal swabs were also not taken to establish the presence of semen inside the vagina and so it was only a case of attempt at the most. I have considered this aspect of the matter very carefully. To constitute an offence of rape it is not necessary that ejaculation may have taken place. The penetration is sufficient to prove the offence. From the medical examination it was established that penetration had taken place although not to the full because hymen was found in tact. But the condition of the vagina clearly established that penetration had taken place. It is immaterial whether ejaculation took place or the hymen could not be torn. 6. It was also contended by the learned counsel for the appellant that besides the alleged victim there was no other independent and sufficient evidence to prove the charge against the appellant. However, this contention of the learned counsel is beside the point for the simple reason that a minor girl of such age could not be tutored to falsely charge the appellant. The minute perusal of the testimony of Mst. Hifza Bibi would clearly show that B there was neither any contradiction in her whole statement nor was there any departure from the original prosecution case. The oral testimony of the victim was clearly corroborated and established by the medical evidence. Neither any animus against the appellant by the complainant or the police was brought on the record. 7. Taking into consideration all the aforesaid circumstances I have come to the conclusion that the appellant was guilty of committing zina-biljabr with Mst. Hifza Bibi and he has been appropriately convicted and sentenced by the learned Sessions Judge. There is no merit n this appeal which is dismissed. However, the appellant shall be entitled to the benefit under section 382-B Cr.P.C. The sentence of stripes awarded by the learned rial court is set aside as the said punishment has since been done away with by the Abolition of the Punishment of Whipping Act, 1996. (Alamgir) Appeal dismissed.
PLJ 1997 FSC 61 PLJ 1997 FSC 61 [Appellate Jurisdiction] Present: ch. ejaz yousaf, J. Mst. NUSRAT MAI (TAHIRA SULTANA) and anothers-Appellants versus STATE-Respondent Criminal Appeal No. 209/1 of 1996, accepted on 22.2.1996. Criminal Procedure Code, 1898 (V of 1898)-- S. 265-C(2)(d)--Non-compliance of provisions-Effect-Provisions of section 265-C are mandatory and non-compliance thereof shall vitiate trial. [P. 63] A 1985 SCMR 1442 rel. Mr. Muhammad Ramzan Khalid, Advocate for Appellants. Syed Athar Hussain Bukkari, Advocate for Complainant. Mr. Muhammad Saleheen Mughal, Advocate for State. Date of hearing: 22.2.1997. judgment This appeal has been directed against the judgment dated 20.10.1996 passed by the Additional Sessions Judge, Multan, whereby the appellants were convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to eight years' R.I. with whipping numbering thirty stripes and also to fine of Rs. 10.000/- each and in default thereof to further undergo R.I. for six months each. Ashiq Hussain accused was also convicted under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to six year's R.I. with whipping numbering thirty stripes and fine of Rs. 10,000/- and in default thereof to further undergo R.I. for six months. 2. The facts of the case in brief are that on 12.8.1993 one Khan Muhammad son of Muhammad Sharif instituted a complaint against ten person including the present accused/appellants for the offence under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 419/420/467/468 and 471 PPC. It was alleged therein that Mst. Nusrat Mai accused was married to him vide Nikahnama dated 1.7.1973. She after living for some time with him instituted a suit for dissolution of marriage due to strained relations. It was also disclosed therein that a compromise was however subsequently affected on 6.2.1980 and Mst. Nusrat Mai again started living with the complainant. It was further stated in the complaint that Mst. Nusrat Mai accused thereafter, developed illicit relations with co-accused Ashiq Hussain who later, enticed her away on 1.7.1982 for which a case FIR No. 176/82 was registered. It was also case of the complainant that in order to save her skin accused Mst. Nusrat Mai thereafter, started posing herself to be Tahira Sultana daughter of Allah Ditta instead of Mst. Nusrat Mai and fraudulently got prepared Nikahnama with the active connivance of the remaining two persons. It was also case of the complainant that accused by changing her name also instituted suit for jactitation of marriage in the court of Judge Family Court, Multan, which was got dismissed in default on 8.3.1993. However, Mst Nusrat Mai again on 25,4.1985 instituted a suit for jactitation of marriage in the Family Court, Multan . It was also stated in the complaint that having been confronted with the institution of third suit of Mst, Nusrat Mai the complainant on 24.5.1985 also instituted a suit for restitution of conjugal rights in the Court of Judge Family Court , Multan . Both the suits were dismissed on 11.12.1991. On appeal however, the suit for restitution of conjugal rights was decreed. It was also case of the complainant that during this period the accused continued committed zina by consent thereby rendering themselves liable for legal action under the afore-mentioned sections. Lastly it was stated by the complainant that since FIR filed by him earlier was cancelled, therefore, he filed a writ petition in the High Court of Punjab in consequence whereof he was directed to file the complaint in question, as a result whereof the trial was conducted and accused were convicted in the manner described herein above. 3. At the very outset it has been submitted by the learned counsel for the appellants that before proceeding with the trial, copies of the complaint as well as other documents including the statements recorded by Magistrate under section 200/202 Cr.P.C. were not supplied to the accused by the learned trial Court, which was a condition precedent under section 265-C(2)(d) of the Code of Criminal Procedure. It has also been vehemently contended that omission so made by the trial Court has materially prejudiced case of the accused/appellants because in absence of the documents in question neither the accused was in a position to properly cross-examine the prosecution witnesses nor was bale to lead his defence. Learned counsel for the appellants submitted that before proceeding with the trial, the trial Court under the law, was bound to supply copies of the complaint alongwith gist of evidence as well as other documents to the accused filed by the complainant enabling him to ascertain the nature of accusation for the purpose of leading his defence. It has further been contended by the learned counsel for the appellants that the omission so made is crucial in nature and has invalidated subsequent proceedings. Reliance in this behalf has been placed on the case of Ghuiam Muhammad v. The State duly reported in 1985 SCMR 1442. It has also been urged by the learned counsel for the appellants that a number of documents including the statement of Mst. Naziran, real mother of the accused Mst. Nusrat Mai which was recorded in civil proceedings were tendered in Court through the statement of learned counsel for the appellants Mr, Muhammad Ramzan Khalid. The learned counsel for the appellants further submitted that the trial Court, while recording conviction, inter alia amongst others, has also relied upon the statement in question which under the law was not permissible. Learned counsel for the complaint Mr. Syed Athar Hussain Bokhari as well as Mr. Muhammad Saleheen Mughal, learned counsel for the State while confronted with the above proposition candidly conceded that there is nothing on record to substantiate that before framing the charge and proceeding with the trial, copies of the documents as required by section 265-C(2)(d) were supplied to the accused. They in the circumstances, gave in writing that they would have no objection in the case is remanded back to the trial Court for proceeding afresh after remeding the defect. Consent so given be placed on record. 4. I have given my anxious considerations to the foregoing submissions and have also perused the relevant record with the help of learned counsel for the parties. Keeping in view the written consent given by the learned counsel for the parties and following the dictum laid down by the Hon'ble Supreme Court of Pakistan in 1985 SCMR 1442 I am inclined to accept the appeal. It would be pertinent to mention here that this Court too, in the case of Rita Margrett Randill vs. The State duly reported in 1986 FSC 753 has observed that the provisions of section 265-C are mandatory and non-compliance thereof shall vitiate the trial. Therefore, in this view of the matter, the appeal is allowed, the impugned judgment dated 29.10.1996 is set aside and the trial Court is directed to proceed with the trial of the case afresh in accordance with the law after supplying copies of the requisite documents to the accused as required by section 265-C(2)(d) of the Criminal Procedure Code. Since this is an old matter, therefore, the trial Court is directed to expeditiously dispose of the same within a period of three months. The parties are directed to appear before the trial Court on 27.2.1997. The appellants are on bail granted by this Court. The same shall remain intact till 27.2.1997. The learned trial Judge shall, however, be at liberty to consider whether or not they shall continue on bail during the trial. (AAJS) Appeal accepted
PLJ 1997 FSC 64 PLJ 1997 FSC 64 [Appellate Jurisdiction] Present: NAZIR AHMAD BHATTI, C.J. Mst. NARGIS-Appellant versus STATE-Respondent Jail Criminal Appeal No. 224 of 1995, accepted on 17.3.1996. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- -S. 4--Heroin--Recovery of-Conviction for-Challenge to--Contention that no case property was produced during trial and it was not known whether any heroin powder was recovered from possession of appellant- It is correct that no case property was produced during trial although 15 grams were retained as case property from entire bulk powder and remaining was destroyed on order of Magistrate but aforesaid 15 grams were also not produced during trial--lt is duty of state to produce all evidence which is necessary to bring home guilt of accused beyond any doubt whatsoeverSince there was no property available on record matter had become doubtful, benefit of which must go to appellant- Appeal accepted. [P. 65] A & B Malik Muhammad Anwar, Advocate for Appellant. Mr. M, Saleheen Mughal, Advocate for State. Date of hearing: 3.3.1996. judgment A.S.I. Atta Ullah Khan and some other police officials were present at Attock Khurd Check Post on 20.8.1994. At about 9.00 a.m. a coach bearing No. MRC 955 cam from Peshawar side. It was stopped. Lady F.C. Zarina Bano entered the coach and recovered a grey paper packet from the lap of appellant Mst. Nargis. The said packet contained heroin powder weighing 500 grams. The A.S.I. separated 10 grams from the bulk powder for chemical analysis. He prepared two separate parcels, apprehended the appellant and sent written complaint to Police Station, Attock Khurd for registration of the case. 2. After investigation appellant Mst. Nargis was sent up for trial before Mr. Salahuddin Khan Sumbal, Magistrate 1st Class with powers under section 30 Cr.P.C., Attock, who charged her under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The appellant pleaded not guilty and claimed trial. The state produced 5 witnesses in proof of the prosecution case. The appellant made a deposition under section 342 Cr.P.C. but she neither made any deposition on oath nor produced any defence evidence. 3. After the conclusion of the trial Mr. Muhammad Ashraf Nohria, M.I.C. with powers under section 30 Cr.P.C., who had in the meantime become seize in the case, convicted the appellant under Article 4 of the Prohibition Order and sentenced her to undergo rigorous imprisonment for 5 years, to suffer 10 stripes and to pay a fine of Rs. 20,000/- or ia default to further undergo rigorous imprisonmlUt for 6 months. The convict has challenged her conviction and sentence'tiy the appeal in hand. 4. Lady F.C. Zarina Bano appeared as P.W. 4 and deposed that she had herself recovered the grey envelope from the hand of the appellant and had produced the same before A.S.I. Atta Ullah Khan who opened it and recovered !ft)0 grams of heroin therefrom. This witness had first stated about ecovery of opium but in the next breath she corrected herself and said that heroin powder was recovered from the envelope. The recovery memo prepared by the A.S.I. was attested by this lady Constable and Zafrullah Khan, F.C. A.S.I. Atta Ullah Khan appearing as P.W. 3 corroborated the contents of the F.I.R. He stated that search of the appellant was carried out by lady F.C. Zarina Bano and she recovered a grey envelope from her which contained 500 grams of heroin. He further stated that he separated 10 grams from the bulk powder as sample and prepared two parcels which were attested by lady F.C. Zarina Bano and Zafrullah Khan F.C. The sample parcel was received in the Office of the Chemical Examiner on 22.8.1994 and it was found to be heroin which could cause intoxication. The appellant denied the recovery of any heroin powder from her possession and further stated that she was innocent. 5. Learned counsel for the appellant contended that no case property had been produced during the trial and it was not known whether any heroin powder was recovered from the possession of the appellant. The learned counsel for the State sought an adjournment and on the adjourned date he produced a certificate about destruction of the case property issued by a Magistrate on 25.10.1994. 6. I have considered this aspect of the matter very anxiously. It is correct that no case properly was produced during the trial although 15 grams were retained as case property from the entire bulk powder and the remaining was destroyed on tie order of the Magistrate but the aforesaid 15 grams were also not produced during the trial. It is the duty of the State to produce all the evidence which is necessary to bring home the guilt of the B accused beyond any doubt whatsoever. In the present case although some portion of the case property was retained Itfter destruction of the major portion thereof on the order of the Magistrate but no evidence was produced with regard to that and since there was no case property available on the record the matter land become doubtful, the benefit of which must go to the appellant. 7. Consequently the appeal is accepted. The conviction and sentence of the appellant awarded by the learned Magistrate on 4.9.1995 are set aside and she is acquitted of the offence for which she was convicted and sentenced. She shall be set at liberty forthwith if not wanted in any other case. (AAJS) Appeal accepted.
PLJ 1997 FSC 66 PLJ 1997 FSC 66 [Appellate Jurisdiction] Present: dr. fida muhammad khan, J. MUHAMMAD NAWAZ-Appellant versus STATE-Respondent Crl. Appeal No. 148/1 of 1995, and Crl. Suo Moto No. 8/1 of 1995 decided on 25.2.1996. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979- S. 10(3)--Zma-&i/-./a&r--Offence of--Conviction for-Challenge to-Solitary statement of complainant/victim was not only fully supported by evidence of P.W. but was also corroborated by medical evidence-Victims statement is natural and confidence inspiring-She has been subjected to a lengthy cross-examination but nothing fruitful to defence has been adduced therefrom--Her husband according to her admission had visited house soma 25 days before occurrence (a Naik in Pak-Army came on leave) and had remained therefore five days and it was 10/12 minutes of arrival of her husband that she had proceeded to police for report-In the circumstances positive Chemical Examiner's cannot be attributed to cohabitation by her husbandBeing a married lady it cannot be expected that she could implicate ppellant/accused in an offence of this heinous nature without rhyme or reasons-Defence plea of enmity is without any substantial corroboration-Held: Case of prosecution against appellant/accused is established beyond any reasonable shadow of doubt-Appeal dismissed. [P. 68] A Malik Anwar ul Haq, Advocate for Appellant. Mr. Saliheen Mughal, Advocate for State. Date of hearing: 25.2.1996. judgment This criminal appeal filed by Muhammad Nawaz is directed against the judgment dated 10.7.1995 passed by the learned Additional Sessions Judge, Mandi Banauddin camp at MaKkwal whereby he has convicted him under section 10(3) of the Offeafce of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to ten years R.I., whipping numbering ten stripes. He has also convicted him under section 452 PPC and sentenced him to seven years R.I. and a fine of Rs. 20,000/- or in default of payment of fine further six months S.I. Both the sentences are ordered to run concurrently. The benefit of section 382-B Cr.P.C. has been extended to him. 2. Briefly stated it is the case of prosecution according to Ex. PB recorded on 27.4.1994 by Mst. Anwar Begum wife of Muhammad Azam that on 26.4.1994 at ahout 10.00 p.m. when she was sleeping in her house inside the room and her children sleeping inside the courtyard, the appellant/ accused armed with 12 bore double barrel gun entered her room and subjected her zina-bil-jabr on gun point. She made hue and cry which attracted Muhammad Riaz and Ashfaq whereupon the appellant/accused ran away. Her husband Muhammad Azam who as Naik clerk in Pak-Army came on leave and thereafter she reported the matter to police. The appellant/accused was arrested on 15.5.1994 and after completion of necessary investigation challaned to face the trial. 3. At the trial prosecution examined eight witnesses in all. P.W. 1 is Fateh Muhammad who on 27.4.1991 escorted the complainant accompanied by her husband Muhammad Azam, to RHC Malakwal for medical examination. After her medical examination a sealed parcel given to him by the doctor was brought by him which he handed over to Muhammad Nawaz, ASI who secured it vide memory Ex. PA duly signed by him in token of its correctness. P.W. 2 is Ghulam Easul, Constable. On 2.5.1994 he transmitted one sealed parcel and two sealed phials to the office of Chemical Examiner intact. P.W. 3 is Mst. Anwar Begum. She is the complainant who reiterated her statement as mentioned hereinabove. P.W. 4 is Ashfaq Ahmad. He is an eye witness who was attracted to the house of complainant on her noise alongwith Muhammad Riaz and they saw Muhammad Nawaz, accused committing zina with Anwar Begum and then running away from there with his shalwar in one hand and his gun in the other hand. P.W. 5 is Dr. Muhammad Javid Warraich who medically examined the appellant/accused on 16.5.1994 for potency and found him physically fit to perform sexual intercourse. P.W. 6 is Dr. Arifa Javid Warraich. She medically examined the complainant on 27.4.1994 and observed as unden- "Middle age woman, conscious, B/P pulse, temperature normal. On P.V. examination hymen was torn without irregular margins. Vagina was admitting two fingers freely. Uterus was of normal size." She took two vaginal and one vulva swabs, sealed them for chemical examination. On the basis of positive Chemical Examiner's report Ex. PH she opined that the complainant was subjected to sexual intercourse. She issued report Ex. PD in her own hand writing duly signed by her. P.W. 7 is Muzaffar Iqbal, HC. He drafted FIR Ex. PB/1 on the basis of complaint Ex. PB on 27.4.1994 and on the same day he received a sealed parcel from Muhammad Nawaz, ASI which he kept in malkhana and on 1.5.1994 handed over the same to Ghulam Rasool, Constable for onward transmission to the office of Chemical Examiner, Lahore intact. P.W. 8 is Muhammad Nawaz, ASI. He recorded complaint Ex. PB on the statement of Mst. Anwar Begum He arrested the -accused on 15.5.1994. He investigated the case and challaned him to face the trial. 4, The appellant/accused made a statement under section 342 Cr.P.C. wherein he denied the allegation and pleaded innocent. He stated that the FWs bad deposed against him due to enmity. He declined to make statement oa oath or lead any evidence in defence. 5. I have heard learned counsel for the parties and have perused the record with their assistance. It was vehmentiy contended by the learned etiungel for defence that the prosecution case was based on a solitary statement of the complainant and as a rule of prudence the same could not be made basis fo conviction. This contention was however found without substance as the solitary statement of Mst, Anwar Begum, complainant was not only fully supported by the evidence of P.W. 4 Ashfaq Ahmad but was also corroborated by medical evidence. So far as the statement of P.W. 3 is concerned it may be mentioned that she is a mature married lady and there was no occasion for bar to spoil her honour and take the risk on her married life on account of allegation of this nature. Her statement is natural and confidence inspiring. She has been subjected to a lengthy cross-examination but nothing fruitful to the defence has been adduced therefrom. The suggestions regarding the bolting of the door of the room from inside are somewhat confusing but it appears that she meant the presence of bolt and locks of the door. As far as bolting of the door from inside on the night of occurrence is concerned she has denied the same and stated that she had not bolted the door of the room because her children were sleeping in the compound of,the.house. Her husband according to her admission had visited the house some 25 days before the occurrence and had remained there for five days and it was 10/12 minutes of the arrival of her husband that she had proceeded to the police for report. In the circumstances the positive Chemical Examiner's report cannot be attributed to cohabitation by her husband. The contents of her statement have been duly supported by P.W. 4 Ashfaq Ahmad, an eye witness of the occurrence who is not related to her. Though he is not a resident of that locality there is nothing to disbelieve his statement. Report of the Chemical Examiner on the sample is positive. Statements, of P.W. 1, P.W. 2, P.W. 7 and P.W. 8 are very clear as far as custody, transmission and receipt of the sample in the Chemical Examiner's office are concerned. Being a married lady it cannot be expected that she could implicate the appellant/accused in an offence of this heinous nature without rhyme or reasons. The defence plea submitted by the appellant/accused is without any substantial corroboration. Even otherwise it does not appeal to sound reason that any married respectable lady would ever involve a person on account of some petty dispute about money matters. He has produced no evidence to support tie plea of enmity. Although P.W. 8 Muhammad Nawaz, ASI has stated in cross-examination that the appellant/accused h.ad presented 25/26 persons before him in his defence, it is worth-mentioning that none of them have come forward in his defence before the Court. The Investigating Officer could also name none of them to show their antecedents. In this view of the matter I have come to the conclusion that the case of prosecution against the appellant/accused is established beyond any reasonable shadow of doubt 8. Therefore, I maintain his conviction and sentences as awarded by the learned trial court on 10.7.1995 and dismiss his appeal. It may also be mentioned that the sentence of whipping numbering thirty stripes is mandatory according to law therefore the appellant was served with a criminal suo-moto notice No. 8/1 of 1995. As his conviction under section 10(3) of the said Ordinance is maintained, the sentence of whipping is enhanced to thirty stripes. The benefit of section 382-B Cr.P.C. extended by the trial Court shall however, remain intact. The suo moto notice No. 8/1 of 1995 is disposed of accordingly. (AAJS) Appeal dismissed.
PLJ1997FSC69 PLJ1997FSC69 [Appellate Jurisdiction] Present: dr. fida muhammad khan, J. ABDUL MALJK--Appellant versus STATE-Respondent Crl. Appeal No. 4/1 of 1996, partly accepted on 17.3.1996. Prohibition (Enforcement of Haddj Order, 1979 (P.O. 4 of 1979)-- Art 4-Heroin--Recovery of 1000 grams-Conviction for-Challenge to- Prosecution witnesses have fully supported the case of prosecution-Their statements are consistent in material particulars and do not suffer from any infirmityWitnesses are police witnesses, their evidence cannot be brushed aside merely on this ground--None-production of witness from public is no illegality in the circumstances of case as recovery has been effected from personal possession of appellant- ppellant/accused has asserted that he has been falsely implicated in case but he has not been able to substantiate reason why on earth he was picked up and falsely implicated in case by planting a huge quantity of heroin against him- Neither any scale has been recovered from possession of appellant nor there is any other evidence to conclude that he was actually a notorious narcotics peddlerHeld: Court is inclined to reduce sentence to 5 years R.I.-Appeal party accepted. [R 71] A & B Mr. Muhammad Munir Peracha, Advocate for Appellant. Mr. Saliheen Mughal, Advocate for State. Date of hearing: 17.3.1996. judgment This appeal filed by Abdul Malik son of Kalander Khan, resident of Saiden P.O. Jatyal, P.S Hazro, District Attock, is directed against the judgment dated 29.11.1995 passed by the learned Senior Civil Judge/M.S. 30, Attock, whereby he has convicted him under article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to seven years R.I, whipping numbering ten stripes and a fine of Rs. 2,000/- or in default of payment of fine further one month R.I. 2. Briefly stated it is the case of prosecution as narrated in murasila Ex. PB that Raees Shah, F.I.O., who on 12.7.1991 was present at Hattian Bus Stop alongwith other police officials, received spy information that appellant/accused was selling narcotics in front of his house. On receipt of this information, he arranged the raiding party and proceeded to Saiden village and apprehended the appellant/accused who on seeing them was trying to escape away. He recovered 1000 grams heroin wrapped in a shoping bag from his possession. He separated 10 grams from the same and sealed it into a parcel. He made a separate sealed parcel of the remaining contraband and secured it vide a memo. He also recovered Rs. 200/- from his pocket and took the same into possession vide the memo. After necessary investigation, he challaned the appellant to face the trial. 3. At the trial, the prosecution examined six witnesses in all. PW. 1 Shaukat Hussain Shah, ASI, was a member of the raiding party and was a marginal witness to the recovery memo Ex. PA. PW. 2 is Manzoor-ul-Haq, constable. He was also a member of the raiding party and was a witness to the recovery memo Ex. PA. PW. 3 is Muhammad Bashir S.I. He recorded formal F.I.R. Ex. PB on the basis of murasila Ex. PB/1. PW. 4 is Sakhi Sarwar, constable. He kept the sealed parcels in malkhana and on 14.7.1991 sent the sample parcel to the office of the chemical examiner through Abbas All, constable, PW. 5, who transmitted the same to the office of the chemical examiner on the same day intact. PW. 6 is Shah Raees, FIO. He is the complainant, who arranged the raiding party and apprehended the appellant/accused, effected recovery of contraband from him and also investigated the case. Report of the chemical examiner Ex. PD is positive. 4. The appellant/accused made a statement under section 342 Cr.P.C. wherein he denied the allegation and pleaded innocence. He stated that he has been falsely implicated in this case. He also made a statement on oath under section 340(2) CrP.C. in the following words:- He also produced Sher Muhammad, DW. 2 in his defence. 6. 1 have heard learned counsel for the parties and have perused the record with their assistance. 6. It transpires from the record that the case of prosecution mainly rests on tha statements of PW. 1 Shaukat Hussain Shah, PW. 2 Manzoor-ul- Haq and PW. 6 Shah Raees. PW 1 and PW. 2 are the recovery witnesses. They have also signed the recovery memo as marginal witnesses. They have fully supported the case of prosecution as reiterated by PW. 6. Their statements are consistent in material particulars and do not suffer from any infirmity. They have been subjected to cross-examination but nothing fruitful to the defence has been adduced from their statements. Although, they are police witnesses, their evidence cannot be brushed aside merely on this ground. There is nothing on record to show that they bore any enmity, ill-will or grudge against the appellant/accused. None-production of the witness from the public is no illegality in the circumstances of the case as the recovery has been effected from person possession of the appellant. In crossexamination, PW. 1 Shaukat Hussain Shah, has clarified that they had asked he persons who had gathered at the place of occurrence to become witnesses in this case ut they had refused to do so. It is very obvious that in cases of narcotics, people normally do not come forward to become witnesses as they have many apprehension about their life, honour and property at the hands of narcotics Mafhia. The appellant/accused has asserted that he has been falsely implicated in the case but he has not been able to substantiate the reason why on earth he was picked up and falsely implicated in this case by planting a huge quantity of heroin against him. The statement of defence witness No. 2 is also of no avail in this connection as he himself has admitted that he was not present at the time when the appellant/accused was arrested. He has also admitted that he had not appeared in defence of the appellant before the raiding party. In the circumstances, I feel that the case of prosecution against the appellant/accused has been established to the hilt. 7. Keeping in view however, the fact that neither nay scale has been recovered from possession of the appellant nor there is any other evidence to conclude that he was actually a notorious narcotics reddler and the fact that the quantity recovered from his possession is 1000 grams heroin, I feel inclined to reduce the sentence of his imprisonment to five years R.I. The sentences of whipping and fine as awarded by the learned trial court are however maintained. The benefit of section 382-B Cr.P.C. is also extended to him. With this modification in the sentence, the appeal is dismissed. (AAJS) Appeal party accepted.
PLJ 1997 FSC 72 PLJ 1997 FSC 72 [Appellate Jurisdiction] Present: abdul waheed siddiqui, J. MEENHWASSAYO & KHAMISO-Appellant versus STATE-Respondent Jail Criminal Appeal No. 102/1/1996, accepted on 30.4.1997. (i) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- S. ll~Conviction and Sentence of appellant for committing zina with his wife-Whether registration of case against appellant by attaching name as Meenhwassayo with his own name Khamiso was mischief and out come of conspiracy hatched jointly by other claimant of prosecutrix and prosecutionQuestion of--Appellant is continuously insisting that he is Khamiso S/O Muhammad Ursi by Caste Machi and has nothing to do with name Meenhwassayo or Wassayo by caste Mallah-During his statement u/S 342 Cr. P.C. to question by court" have you anything else to say", appellant replied" Mst. Noor Khatoon is my legal wife-I produce my Identity and according to which my name is Khamiso S/o Uris Machi but not Meenwassayo-Mystery is unfolded when Mst. Noor Khatoon (PW-4) replies to suggestion during cross, "It is incorrect that Majnoon is son of accused", meaning thereby that Majnoon is not son of appellant Khamiso-Form A maintained under Section 4(l)(a) read with Section 4(2) of National Registration Act, 1973 as exhibited by (PW-1) Statistical Assistant, District Registration office, Bedin and is conclusive proof that on date of application for NIC i.e. 29.7.1976 she was married lady and name of her husband was declared as to be Khamiso Machi without any other alternative name like Meenhawassayo or Wassayo-Two NICs were issued together more than two decades ago and no such name like Meehawassayo or Wassayo was attached with Khamiso S/o Muhammad Ursi Machi and that Noor Khatoon had obtained NIC in her marital status declaring her spouse to be Khamiso Machi and not Meenhawassayo or Wassayo. Muhammad Usman (DW2) deposed during cross: "Khamiso had one son and one daughter from Mst. Noor Khatoon So she is his wife-I do not know any Meenhawassayo-Haji Noor Muhammad (PW 4) in his deposition (Ex. 17) stated" I know Khamiso Machi so also his wife Mst. Noor Khatoon-I do not know about any Meenhawassyo--It is not correct to say that Khamiso is present accused Meenhawassayo of this case-Held : There is criminal conspiracy hatched up against appellant to grab his legally wedded wife and two children- Appeal accepted. [Pp. 77, 78, 79, 80, 81] A, B, C, D,E,F PLJ 1988 Cr.C ( Karachi ) 39. (ii) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- S. 11-CriminaI Procedure Code (V of 1898); S. 154--Delayed F.I.R.Its effect and consequences without reasonable explanation-So far as complainant PW-1 is concerned, he lodged FIR on 19.11.1992 after search of two days as alleged and recovery of alleged abductee, two children etc and arrest of appellant was effected next day on 20.11.1992 vide recovery memo (Ex. 5/B)--In case deposition of PW-3 is believed to be true, delay in reporting is that of six months-Neither there is any explanation for delay of two days, if PW-3 is believed, for six months-Held : Contention of learned counsel is found to be correct. [P. 82] G PLD 1983 FSC 192. (iii) Offence of Zina Enforcement of Hudood) Ordinance (VII of 1979)-- S. ll~Appreciation of evidence-Contradictions and Improvement in Statement of witnessesEffect ofIn her statement under section 164 Cr.P.C. (Ex. 7/A), alleged abductee Mst. Noor Khatoon is adding one more person in list of those who had shifted from village Choohar Jamali Gul Muhammad is adding his father Jumo and Substracting his mother Mst. Bachul from list of those who had gone towards Tando Muhammad Khan leaving behind couple of children-Gul Muhammad (PW-3) is deposing that they had returned after 4/5 days and found abductee etc : missing-In her statement, U/s 164 Cr. P.O. abductee is stating that one week after their left over behind, appellant abducted her and for twenty days remained committing Zina-bil-Jabar with her-In contradiction to both, complainant (PW-1) is stating that they returned 2/3 days afterwards, and enquired from his mother-in-law about appellant and Mst. Noor Khatoon and was informed that she was taken alongwith two children for treatment-FIR has shown search for two days and in deposition he improved in following words-Thereafter we remained in Search of accused and Mst. Noor Khatoon and after some time we came to know the accused alongwith Mst. Noor Khatoon is residing in village Yousif Soomro-Abductee in her statement u/S. 164 Cr. P.C. is shattering both her brothers (PW. 1 & PW 3), While stating that after rape of 20 days, one Ajaz Khaskyali went to Tando Muhammad Khan and informed her mother Bachul that she was kept in village of Nawab Rashid and then her mother Mst. Bachul lodged FIR-Held : Contradictions and improvements go to root of Story of Prosecution. [Pp. 83 & 84] H (iv) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- S. ll~Criminal Procedure Code (V of 1898), S. 103-Recovery of Shalwar stained with Semen, but no reference made about its recovery, sealing or despatch to chemical examiner by 1.0. whether departure from rule by l.O. is deliberate-Question of-Learned Counsel for appellant has been found correct in his ground that as per recovery memo (Ex : 5/B) Shalwar worn by victim was found Stained with semenIt was taken into possession and sealed-S.I. and Investigating officer has stated during examination-in-chief," on 20.11.1992, I arrested accused Meenhwassayo alias Khamiso near otak of Nawab Usman-I prepared such mashirnama in presence of same mashirs Achar and Aroo and I see Ex : 5-B and say that it is same and bears my signature."--He is neither making any reference to shalwar stained with semen nor its recovery and sealing nor despatch for report of chemist nor there is any such report on record- eld : Conduct of Investigation officer who is enior and experienced officer of Police is Indicative not only of his Inefficiency but Involvement in deep rooted criminal conspiracy against poor appellant. [P. 84] I (v) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- S. 11 Zina and kidnapping-Offence of-Whether non-mentioning of recovery of children in recovery memo is indicative of carelessness and Inefficiency of 1.0 and Trial court-Question of-Recovery memo (Ex : 5/B) is showing recovery of abductee lady Mst. Noor Khatoon, her semen stained cloths etc. but is mysteriously silent about this heinous crime of kidnapping and appellant has not been charged or tried under relevant provision of law-Held : If at all story of prosecution is not based on plot conspired against appellant, then this silence is Indicative of carelessness and Inefficiency at all levels of Investigation, enquiry and trial. [P. 84] J (vi) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- S. 11-Criminal Procedure Code (V of 1898), S. 103-Search of appellant- Whether conducted in accordance with Lawif not what does it spell out- Question of-Second Mashir of memo of recovery and arrest (Ex. 5/B)-- Haroon has shown his residence to be that same village where appellant was residing-He has not been produced for examination before trial court although shown as reserved witness No. 1 in Challan-In absences of his deposition, it cannot be said as to whether he has correctly stated his village or not and as to whether he is respectable inhabitant of locality in which house of appellant was situated-Deposition of witnesses for prosecution as well as defence are at least unified on one fact that normal residence of appellant was village Yousif Soomro, yet mysteriously he was searched for 2 days as PW-1 has deposed and for six months as PW-3 has deposed-Held : All these circumstances prove that this witness, Investigation Officer, is master mind behind whole show which amounts to appalling callousness against appellant. [Pp. 86] K &. L (vi) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- S. 11-Criminal Procedure Code (Vof 1898), S. 497~Grant of bail refused to appellant without cogent reasons and non reading of third bail application by trial court-How does poverty of man reacts in courts- Question of~Application U/s 497 Cr. P.C. was first moved before trial court on 7.11.1994 in Sindhi but was not attended to-Another application was moved by Advocate mainly on ground of statutory delay and was dismissed on 30.11.1994 on grounds which are not intended by law-Third application was moved on 17.8.1995 by Advocate for appellant stating that appellant was in jail since 2 years and 7 months and that no delay was accessioned by appellant-it was again dismissed on 22.11.1995 after receipt of positive conduct report issued by Superintendent Central Jail, Hyderabad dated 8.10.1995-Application moved from jail properly signed and sealed remains unattended-it does not cany even order for notice to State-Application despatched on 6,4.1995 and received by learned court of sessions Judge on 9.4.1995-Had Judicial notice of Substantial documentary evidence existing in favour of appellant been taken and had it been disposed off according to law, there is eveiy possibility that case could have become fit enough for acquittal of appellant under S. 265-K Cr. P.C.-But it appears that trial court has not read it-Held : Reason for non-reading of record is poverty of appellant, non-pursuation of applications and minority of his children-Appeal accepted. [Pp. 86, 87, 88 & 89] M,N,O,P, & Q Mr. Muhammad Jamshad Talat Khan, Advocate for Appellant. Raja Abdul Ghafoor, Advocate for State. Date of hearing: 10.4.1997. judgment Abdul Waheed Siddiqui, J.-This jail criminal Appeal assails the judgment delivered by 1st Additional Sessions Judge, Badin on 23-5-1996 whereby he was convicted the appellant under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and has sentenced him to undergo rigrous imprisonment for ten years and whipping to ten lashes and fine of Rs. 10,000/- and further imprisonment for one year in default in payment of this fine; has also convicted him under section 16 ibid and sentenced him to rigrous imprisonment for seven years and whipping upto ten lashes and fine of Rs. 10,000/- in case of default further imprisonment for one year. Both convictions are to run concurrently. Benefit of section 382-B Cr, P.C. has also been given. 2. Stoiy of prosecution, in brief, is that one Muhammad Uris (PW-1) lodged an F.I.R. at Police Station Badin on 19-11-1992 complaining therein that about 20 years back his sister Mst. Noor Khatoon was married with one Majnoon s/o Meenhwassayo alias Khamiso according to Shariat-e- Mohammadi and from the wedlock there were two minor children. About six months prior to the complaint, he (Muhammad Uris) accompanied by his brother Gul Muhammad, (PW-3).his sister Mst. Noor Khatoon (PW-4), her husband Majnoon (PW-5) and her father-in-law, the appellant, shifted towards village Karim Bus Jamili and leaving Mst. Noor Khatoon and the appellant behind went for labour towards Tando Muhammad Khan. Two days prior to the complainant, when all the three came back, the found both the appellant and Mst. Noor Khatoon alongwith two children missing. They searched them but failed. It was finally complained in FIR that Mst. Noor Khatoon was enticed and abducted by the appellant, her father-in-law, with an intention to commit zina with her. 3. According to a statement under section 164 Cr. P.C. of Mst. Noor Khatoon (Ex. 7/A) before Mukhtiarkar and F.C.M. Badin on 21-11-1992 she was recovered on 21-11-1992 by police from the custody of the appellant, both of them were brought to the police station and she was of 35 years of age on the said date. She stated that her father-in-law Khamiso alias Wassayo informed her one week after the initial travel of other family members including Mst. Bachul, her mother, for labour that her mother was ailing and intended to arrange their meeting. With that purpose he took her to the village of Nawab Rashid and made her to live there and for about twenty days remained committing zina with her under a threat of murder. 4. Appellant was challaned. Prosecution .examined 7 PWs, appellant gave statement under section 342 Cr. P.C., examined himself on oath and also examined 4 more D.Ws. 5. I have heard the learned counsel for appellant engaged for him on State expenses and counsel for State. Counsel for appellant has contended that the only name of the appellant is Khamiso an the name Meenh Wassayo attached with him is a mischief of the prosecution; that medical evidence does not support prosecution; that FIR is delayed; that there are improvement in the version of the prosecution; that there are substantial contradictions; that Majnoon (PW-5) is wrongly claiming to be a son of the appellant and husband of Mst. Noor Khatoon (PW-4); that the appellant is the real husband of Mst. Noor Khatoon (PW-4) and out of wedlock he has a son and a daughter; that the story of prosecution does not appeal to common sense in the circumstances of the case. The State counsel has supported the impugned judgment and has contended that this is a case of incest and incest do take place in every society although it is rare. 6. I have gone through the record of the case including police papers made available to me and have pondered about the contentions of both the counsel. At the outset the point which has agitated my mind is the version of the ages of Mst Noor Khatoon (PW-4) and the two claimants of being her real spouse namely Majnoon (PW-5) and the appellant. In her statement under section 164 Cr. P.O. (Ex. 7/A) Mst. Noor Khatoon has declared her age to be 35 years on 21-11-1992. On the same date she was examined by Dr. Naveed Akhtar (PW-6) who stated tentatively without obtaining Report of Radiology that she was of 35 years as was told to her. One year later, on 14-12-1993, while deposing before the trial court Mst. Noor Khatoon still declares herself to be that of 35 years. According to entries in Register 5 of the Citizen Code Number maintained by the District Registration Office, Badin she was born in 1951 and she was issued a National Identity Card numbering 457-51-070295. If so, then in 1992 she was 41 + - and one year later at the time of her deposition 42 + -. The reason for substracting her real age by 6 and 7 years before the courts is soon going to be highlighted. According to FIR lodged on 19-11-1992, when abductee was 41+- years of age as per her NIC., she had led 20 years of married life with Majnoon (PW-5). It means that she married with Majnoon (PW-5) when she was 21 ---years of age. In his deposition on 14-12-1993 Majnoon (PW-5) is declaring his age to be 30 years. Naturally then, on the date of the institution of FIR he was 29 years of age and 20 years prior to that, at the time of his alleged marriage, he was only a body of 9 + - years. But his bride Mst. Noor Khatoon (PW-4) was of 21 + - years as proved above. On the other hand appellant, who is continuously insisting that he is Khamsio s/o Muhammad Uris by caste Machi and has nothing to do with the name Meenhwassayo or Wassayo by caste Mallah, has produced his original National Identity Card Numbering 457-36-070294 issued on 28-8- 1876. During his statement under section 342 Cr. P.C., to a question by Court" Have you anything else to say", the appellant has replied "Mst. Noor Khatoon is my legal wife, I produce my identify and according to which any name is Khamiso s/o Uris Machi but not Meenhawassayo ...... Name of Mst. Noor Khatoon is entered in B form which may kindly be called." Fortunately this original NIC was taken on record by the trial Court and is available and intact in its original records as seen by this Court, yet no exhibit number is allowed to it. This is a procedural error which should have been avoided. Once any document is taken on the record for judicial consideration by the trial Court, it is a rule of prudence as well as in the interest of justice to allot an exhibit number lest it remains hidden into the heaps of papers and the course of justice takes wrong directions. Fortunately this non-exhibited substantial documents is corroborated by Ex : 14 A (Form A-Application for Registration under section 4 (1) (a) of the National Registration Act 1973) as exhibited by Muhammad Hussain (DW-1) Statistical Assistant, District Registration Office, Badin. Original of this exhibit 14-A was seen and returned by the trial Court as is mentioned in the deposition. This exhibit corroborates the entries in the NIC of the appellant with an addition of the date of application being 29-7-1976 on which date the appellant is declaring his age to be 40 years and status in column No. 2 to be married. This being the state of affairs, the appellant was of 56 + - on the date of FIR, 36 +- years of age at the time of his alleged marriage with alleged abductee Mst. Noor Khatoon (PW-4) of 21 + - years at that time and another claimant Majnoon (PW-5) was 9 + - years of age. It is not the case of prosecution that Nikah-e-Sharai was performed when the alleged bridegroom had not yet attained puberty, was minor, and the bride (alleged victim) was adult of 21 + - years of age and that Rukhsati or consummation of marriage had taken place later on. In the absence of the production of Nlkahnama by the prosecution and in the presence of Nikahnama produced by the appellant, although not exhibited, (as is evident from the impugned judgment) the case was to be dealt with utmost care both at the level of prosecution as well as at trial but this Court has noticed that the case has not been dealt with caution and care at both the levels. 7. Keeping aside this issue of ages of the bride and two claimant bride-grooms at the time of marriage in the drama of the whole show for the time being, if only the question of proper relationship of the complainant, the prosecutrix victim, and the two claimants of the victim lady being her sole legal spouse, inter se, had been resolved the trial Court would have saved itself from apparent errors. The allegation is that the appellant in 1992, when he was 56+- years of age per his NIC, enticed, abducted and committed heinous crime of incest with his own daughter-in-law Mst. Noor Khatoon (PW -4) when she was 41 + -and her husband Majnoon (PW-5) was 29 +- years of age. During his deposition Muhammad Uris aged 38 years, (PW-1) is stating during his examination-in-chief: "About 20 years back I have contracted marriage of my sister Mst. Noor Khatoon with Majnoon about six months prior to this incident we had shifted and settled for labour purpose in the village Karim Bux Jamlai where we have constructed katcha huts where I alongwith my brother-inlaw Majnoon, Mst. Noor Khatoon, Mst. Phapi and accused Meenhwassayo my father-in-law were residing. "(Prenthesis supplied) If the present appellant, whose only name according to NIC. is Khamiso Machi, then who is that Meenhawassayo who is father-in-law of this PW-1/complainant? As per the set-up of this drama, Meenahanwassayo is father-in-law of the sister of this witness and not that of this witness himself. The mystery is unfolded when Mst. Noor Khatoon (PW-4) replies to a suggestion during cross, "it is incorrect that Majnoon is son of accused," 5 meaning thereby, that Majnoon is not the son of appellant Khamiso. Now as per set-up of this stage of a cunning drama, if Majnoon is not the son of the appellant then the appellant is not her father-in-law in any case. The, secret is further unfolded when the set up of names is probed into. Appellant's another name Meenhawassayo first of all appears in FIR. It remains as such in the deposition of complainant Muhammad Uris (PW-1). It becomes Wassayo in the statement of Mst. Noor Khatoon (PW-4) under section 164 Cr.P.C. (Ex. 7/A). It continues as such when Majnoon (PW-5) is declaring the name of his father as Wassayo in his deposition (Ex. 8). During cross, this witness deposes: "I produce the photocopy of my NIC My NIC was prepared after my marriage I have not given the name of my wife in my NIC but my wife has her own." Had the NIC of this witness been allotted an exhibit number, it would have assisted the trial and appellate courts substantially: but negligently, in violation of the rules of procedure and law, it has not been done. The NIC not exhibited, but kept in the record, indicates the name of the father of this witness to be Wassayo. This witness "has admitted that his wife, allegedly Mst. Noor Khatoon, has her own NIC. However he has not produced it. The same stands proved from form A maintained under section 4(l)(a) read, with section 4(2) of the National Registration Act, 1973 as exhibited by Muhammad Hussain (DW-1) Statistical Assistant, District Registration Office, Badin and is a conclusive proof that on the date of application for NIC i.e. 29.7.1978 she was a married lady and the name of her husband was declared to be Khamiso Machi without any other alternative name like Meenhawassyo or Wassayo and that her year of birth was 1951 and that she was correctly declared to be of 25 years and the name of her father was declared as Jumo and she was registered and allotted an NIC with Number 457-51-070295 in consecutive No. 457-36-070294 as allotted to her spouse Khamiso Machi, the appellant. This piece of documentary evidence has gone unchallenged and, therefore, holds ground. Reliance in this respect has correctly been placed on PLJ 1988 Cr.C. (Karachi) 39: Placentium D ................ Due to the non-exhibition of substantial documents, although produced, as proved above, this Court called for Original Control Register (RG-3) alongwith relevant original Records of the Registration Office Badin on 10.04.1997. I have thoroughly checked these original records, asked relevant questions from incoming officer, have brought photocopies of Register for the Citizen Code Number (RG-3) from consecutive nunabers from 070281 to 070300 on the record, returned the original, and found the above record intact and with no inter placation rubbing, changing, cutting, addition or alteration so far as consecutive numbers 457-36-070294 (NIC of Khamiso s/o M. Uris, Post Office Badin) and 457-51-070295 (NIC of Noor Khatoon w/o Khamiso) are concerned. I am satisfied that the two NICs were issued together more than two decades ago and no such name like Meenhawassayo or Wassayo was attached with Khamiso s/o Muhammad Uris Machi and that Noor Khatoon had obtained NIC in her marital status declaring her spouse to be Khamiso Machi and not Meenlianwassayo or Wassayo. At this stage I am satisfied that the following passage appearing at page 6 and 7 of the impugned judgment is a clear proof of non-reading of evidence by the 1st Additional Sessions Judge Badin (Mr. Abdul Ghafoor Memon): "So far as Form "A" of one Noor Khatoon is concerned, the same does not read name of husband to show that she is the same Noor Khatoon and wife of present accused." Although a photocopy of the Form "A" of Mst. Noor Khatoon is kept on the record as Ex. 14-C as produced by Muhammad Hussain (DW-1), but its original was seen and returned by the trial court as is mentioned in the end of this deposition. Since this defence witness has not been crossed and shattered, whatever the document produced by him must have been presumed by the trial court as a genuine document under the provisions of Article 92 of Qanoon-e-Shahadat Order, 1984. The trial court has not cared or, may, be, has avoided to read column 2 and 8 of this form A (Ex: 14-C). Column 2 is a declaration of Noor Khatoon that she is married and column 8 is a declaration that the name of her husband is Khamiso Machi. This court cannot appreciate non-reading of such a substantial piece of evidence which would have taken the trial court to a safe and proper dispensation off justice. Another passage of the impugned judgment at page 6, last para is as under:- "Nikah-nama is produced in defence to show that abductee/victim is wife of the accused but neither the Moulvi who performed the Nikah and registered the marriage nor any witness of the marriage is examined in defence." This Nikahnama seems to have been produced at some stage by the defence, but I do not find any mention about it any where in the record. Neither it has been allotted any exhibit number by the trial Court. Where has gone this important piece of evidence which could have a corroborative or at least pursuasive value? A document which has not been believed in the impugned judgment is missing. This conduct of the trial Court is highly regrettable. Inter alia the maxim "Justice should not only be done, but it should appear that it has been done" is violated here. 8. In arriving at the conclusion that Khamiso is not Meenhawassayo or Wassayo, I am also supported by the non-shattered and firm deposition of DWs. Muhammad Usman (DW-2) who has deposed during cross: "Khamiso had one son and one daughter from Mst. Noor Khatoon. So she is his wife. We had gone to attend khatna ceremony of son of Khamiso in village Yousif Soomro about 5 or 6 years ago. I do not know any Meenhawassayo. "Haji Noor Muhammad (DW-4) in his deposition (Ex. 17) has stated "I know Khamiso Machi so also his wife Mst. Noor Khatoon. I know them since 7 or 8 years." During cross, he has deposed, "I do not know about any Meenhawassayo. It is not correct to say that Khamiso is present accused Meenhawassayo of this case." The prosecution has failed to below dents in this deposition who b^as also deposed that he has remained as a councellor of Badin Municipality. Muhammad Siddique (DW-5) has deposed, "I know Khamiso Machi and his wife Noor Khatoon. I know them since 10 years. I know them because Khamiso was working as Hari with me. During his harpship Mst. Noor Khatoon all along was with him and had given birth to two children: One daughter and one son". To certain suggestions he replied," Khamiso had invited me for Aqiqa at the village of Yousif Soomro about 5 years ago. Accused present in the court is Khamiso but no Meenhawassayo. It is not correct to say that he is Meenhawassayo." This witness has also gone intact Appellant has appeared as DW-3 and his statement on oath under section 340(2) Cr.P.C. is inspiring confidence. He deposes:- "Mst. Noor Khatoon is my wife. I have one son and one daughter who are alive from Mst. Noor Khatoon whereas two other children born from her were expired. I was residing in Badin and was working as Hari of Haji Khamiso Bhatti. I was also working as Hari in the village of Yousif Soomro. P.W. Majnoon is Massat (son-of-sister) of my wife. Mst. Noor Khatoon is my wife but not of P.W. Majnoon. This false case has been filed against me. The P.Ws including Mst. Noor Khatoon in collusion with the police have filed this false case against me. I am innocent" (Brackets supplied) 9. Now I turn back to resolve the matter in terms of an effort of substantial substractions of their ages on the part of Mst. Noor Khatoon (PW-4) and Majnoon (PW-5). As proved earlier, the documentary evidence is available that at the time of the alleged marriage of the two, the age of bride was 21 +- and that of the bridgroom 9+- in case Majnoon is believed to be true in disclosing his age to be 30 years on 14.12.1993 in the trial Court. But the fact is that he has tried to substract considerably from his real age. The NIC which he produced in the trial court during deposition is available in the records. It proves beyond any shadow of doubt that Majnoon, is son of Wassayo, is resident of village Haji Darya Khan, Deh Kanwar Post Tando Jam District Hyderabad which place is about 100 kilometers distant from village Chuhara Jamali District Badin, the original village of Mst. Noor Khatoon, the appellant, the complainant and is in a different district. He was issued NIC No. 452-53-147863 on 16.7.1978. It means he was born in 1953. If so, then on 14.12.1993 when he was deposing before the trial court he was of 40 + - years of age. He was substracting, intentionally indeed, his age by 10 years before the trial Court with a purpose to hoodwink it. He knew that at the relevant time the appellant was that of 57 +- years of age. He had the design in his mind to prove that the appellant was his father Wassayo, but in case he was disclosing his correct age i.e. 40 years, then it was creating doubts as to whether a poor shifting labour, like the appellant, could become a father at 17 years of age and could marry at the age of 16 years in the type of exploiting society he was barely, existing. Mst. Noor Khatoon (PW-4) was substracting from her real age 6 and 7 years, as discussed supra, because she was taking pains to show that she was not so elderly to her alleged husband Majnoon as it was appearing to be in case Majnoon was 30 + -. But in case a wrong year of birth was given in the NIC of Majnoon and he was correct in disclosing his age to be 30 years, then he was only 9 + - at the time of his marriage with the prosecutrix who was 21 +- or 22 +- at that time and at 9 + - males are not pubert at all. Taking this issue of ages of three from any angle, it appears that there is a criminal conspiracy which has hatched up against the appellant to grab his legally wedded wife and two children. 10. The learned counsel for appellant has contended that in the absence of the Report of chemical examiner and violence against victim, the benefit of doubt should be given to the appellant. Dr. Naveed Akhtar (PW-6) has deposed: "No scratches or bruises on any part of body. There are no marks of violence on the body of lady Mst. Noor Khatoon. In opinion the sexual intercourse not committed by force". But the prosecutrix is deposing as PW-4, "The accused used to maltreat me and confine me in the house and also committed rope with me forcibly." Dr. Naveed Akhtar (PW-6) has also admitted that vaginal swabs were taken, but the chemical report was not received. The prosecutrix is admittedly a married lady since 20 years and had given birth to 4 children, out of who two were living. Her deposition that she was maltreated and rape was committed forcibly is negated by medical evidence. 11. So far as contention of delay of two days in FIR is concerned it has its own mystery. The complainant relates in FIR (Ex. 4/A): "On 17.11.1992 we all the three returned back to our house and found that my sister Mst. Noor Khatoon alongwith two children and her father-in-law Meenhawassayo alias Khamiso were not there. Then we remained in search for them, but nothing has happened. Now I have arrived here and do hereby lodge complaint." This complaint was lodged on 19.11.1992 i.e. 2 days after the alleged knowledge of the missing of the appellant etc., abduction and rape and so on and so forth. Gul Muhammad (PW-3), a brother of the complainant and abductee deposed: "On enquiiy my mother Mst. Phapi informed us that accused had taken away Mst. Noor Khatoon and both her children on the pretext of her treatment. Then we were search ng Meenahanwassayo and Mst. Noor Khatoon and children. After six month we come to know that accused Meenhanwasayo is reading at village Yousif Soomro. Then I, Uris alongwith police went to village Yousif Soomro where police recovered Mst. Noor Khatoon from house of accused Meehanwasayo." So far as the complainant PW-1 is concerned, he lodged FIR on 19.11.1992 after search of two days as alleged and the recovery of the alleged abductee, two children etc. and arrest of the appellant was effected next day on 20.11.1992 vide recovery memo (Ex. 5/B). In case the deposition of PW-3 is believed to be true, the delay in reporting is that of six months. Neither there is any explanation for the delay of two days nor, if PW-3 is believed, for six months. The contention is found to he correct. In this context the learned counsel has rightly relied on the law enunciated by this Court and reported as PLD 1983 FSC 192. 12. Now comes the turn of the contentions about improvements which have been carried by the prosecution to the extent of substantial contradictions shattering the entire story. As per FIR complainant Muhammad Uris (PW-1), his brother Gul Muhammad (PW-3), his sister Mst. Noor Khatoon (PW-4), her husband Majnoon (PW-5) and father-in-law at Mst. Noor Khatoon (the appellant) had shifted from their original village Choohar Jamali to village Karim Bakhsh Jamali for labour. Then they left ehind in their katcha huts only Mst. Noor Khatoon (with ehildi-en) and her father-in-law, the appellant, and all others went towards Tando Muhammad Khan for labour. In her statement under section 164 Cr.P.C. (Ex. 7/A), the alleged abductee Mst. Noor Khatoon is adding one more person in the list of those who had shifted from village Choohar Jamali. The person is Mst. Bachul, her mother. This Mst. Bachul is one of those who then left for Tando Muhammad Khan leaving behind the abductor and the abductee only and this Mst. Bachul is the lady about whom appellant informed the abductee that she was ailing and created a pretext to move her out from the house and then committed heinous crimes of incest etc. Gul Muhammad (PW-3) is adding his father Jumo and substracting his mother Mst. Bachul from the list of those who had gone towards Tando Muhammad Khan leaving behind the couple and children. He is also deposing that after return and enquiry, his mother Mst. Phapi informed that the appellant had taken the abductee on the pretext of her treatment i.e. the treatment of this very Mst. Phapi. But this Phapi had not gone with the complainant and others, was left behind, then whose ailment was made a pretext by the appellant? This contradiction goes into the roots of the story of prosecution. Then Gul Muhammad (PW-3) is deposing that they had returned after 4/5 days and found the abductee etc. missing. In contrast to this, in her statement under section 164 Cr.P.C. the abductee is stating that one week after their left over behind, appellant abducted her and for twenty days remained committing Zina-bil-Jabar with her. In contradiction to both, the complainant (PW-1) is stating that they returned 2/3 days afterwards and enquired from his mother-in-law about appellant and Mst. Noor Khatoon and was informed that she was taken alongwith two children for treatment. Here Phapi is no more the mother of the complainant but becomes mother-in-law. Then the reason for taking away the abductee does not remain the pretext for mother's ailment but rather the ailment of the abductee and her children as they were taken away for treatment. This veiy witness has lodged FIR in which he has not made any reference to information supplied by his motherin-law but in the deposition he has improved. Then in FIR he has shown search for two days and in deposition he improves in the following words: "Thereafter we remained in search of accused and Mst. Khatoon and after some time we came to know that accused alongwith Mst. Noor Khatoon is residing in village Yousif Soomro." Gul Muhammad (PW-3) has spoken of search for six months and then the knowledge that the appellant and abductee were in village Yousif Soomro, but the abudctee in her statement under section 164 Cr.P.C. (Ex. 7/A) is shattering both of her brothers, (P.W- 1 & PW-3), while stating that after the rape of 20 days, one Ajaz Khaskyali went to Tando Muhammad Khan and informed her mother Mst. Bachul that she was kept in the village of Nawab Rashid and then her mother lodged FIR at police station Badin from where police came and liberated her and arrested the appellant. In her deposition this very lady, the star witness, is changing substantially as PW-4, and is deposing that the third one left behind was her mother-in-law Mst. Fatima. In this deposition she has also improved on 164 Cr.P.C. statement by aiding maltreatment and confinement. Another contradiction noticed is that Majnoon (PW-5) shows his relationship with Gul Muhammad (PW-3) to be that of brother during examination-in-chief. If so, then the alleged victim lady becomes his sister and does not remain his wife. 13. The learned counsel for appellant has been found correct in his ground that as per recovery memo (Ex: 5)/B), the shalwar worn by the victim was found stained with semen. It was taken into possession and sealed. Khan Muhammad Hakro (PW-7), SI and Investigating Officer has stated during examination-in-chief, "On 20.11.1992, I arrested accused Meenhwasayo alias Khamiso from near Otak of Nawab Usman. I prepared such mashirnama in presence of same mashirs Achar and Aroo and I see Ex: 5-B and say that it is the same and bears my signature." He is neither making any reference to the shalwar stained with semen nor its recovery and sealing nor despatch for report of chemist nor there is any such report on the record. This conduct of the Investigating Officer who is a senior and experienced officer of police is indicative not only of his inefficiency but involvement in a deep rooted criminal conspiracy against the poor appellant. 14. The learned counsel for appellant has also contended that the FIR and other evidence is making a reference to the kidnapping of two children, but their names and ages are kept out of sight. Again the Recovery Memo (Ex: 5/B) is showing the recovery of the abductee lady Mst. Noor Khatoon, her semen-stained clothes etc. but is mysteriously silent about the recovery of the kidnapped kids. The challan, charge sheet (Ex: 2) and the impugned judgment are mysteriously silent about this heinous crime of kidnapping and the appellant has not been charged or tried under the relevant provisions of law. If at all the story prosecution is not based on plot conspired against the appellant, then this silence is indicative of the carelessness and inefficiency at all levels of investigation, enquiry and trial. 15. Appellant's counsel has vehemently argued that Khan Muhammad Hakro (PW-7), SIP and Investigating Officer of this case has hatched up this conspiracy for ulterior motives. He has not caused to record the statement of the appellant/accused under section 161 Cr.P.C. nor has he asked him about any defence the poor man could produce during investigation. He has dealt with the case in the most careless manner and has shown signs of high-hadedness. During cross upon him, he deposes: "I do not remember the time I had registered the FIR ... I do not remember the time I had reached the place of wardat. I cannot say if it was morning time after noon or evening time when I had gone to the place of wardat. I had not recorded statement of any nekmards of that village about the fact that accused used to reside in the village. I had gone to arrest the accused at 4.00 P.M. It is correct that in the village Yousif Soomro from where the accused was arrested there are houses situated, but I cannot give exact number of the houses. I cannot say if there is School and dispensaiy in that village. The accused at the time of the arrest was sitting on the southern side of Otak of Nawah Usman. He was sitting in his house. It is correct that mashirnama of Arrest Ex: 5-B does not give mention that the accused was arrested while sitting in his house. No persons from the village had gathered at the time of arrest of the accused. It is correct that it is the busy road. It is correct that in the 164 Cr.P.C. statement of Mst. Noor Khatoon it is stated that she is wife of the accused. I had not made enquiries whether Mst. Noor Khatoon was wife of the accused or not. I had not made enquiries or obtained proof from P.W. Majnoon if Mst. Noor Khatoon was his wife. It is not correct to say that I have intentionally with conviance of Nawab Usman have falsely registered the present case against the accused and have without any reason made him to remain behind bars for 2/3 years. It is not correct to say that the complainant Mst. Noor Khatoon and P.W. Majnoon are also in conspiracy with us. Complainant had brought the mashir Achar. Complainant and mashir Achar so also Mashir Aroo had accompanied me from the Police Station to the place ofwardat." This cross itself read with Ziminis in the police papers speaks in itself the spirit of callousness with which this witness is infested. He has admitted that the appellant was sitting in his house in the village Yousif Soomro when he was arrested. He has admitted that the two mashirs of recovery and arrest namely Achar and Aroo i.e. Haroon (Per Memo of Recovery Ex: 5/B) were brought by the complainant at police station from where they had accompanied them. He had admitted that it was day time Le. 4 P.M. when he entered the house of the appellant and arrested him and that in the village there are many houses. Now mashir Achar (P.W. 2) has during deposition, declared his village to be Phulloo Khaskeli. The second Mashir of the Memo of Recovery and arrest (Ex: 5/B). Haroon has shown his residence to be that same village where the appellant was residing. He has not been produced for examination before the trial Court although shown as a Reserved witness No. 1 in the challan. In the absence of his deposition, it cannot be said as to whether he has correctly stated his village or not and as to whether he is respectable inhabitant of the locality in which the house of appellant searched was situated. This is gross violation of section 103(1) Cr.P.C. which reads:- "Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do." The depositions of the witnesses for prosecution as well as defence are at least unified on one fact that the normal residence of the appellant was village Yousif Soomro, yet mysteriously he was searched for 2 days as PW-1 has deposed and for six months as PW-3 has deposed and has been discussed earlier. All these circumstances prove that this witness, the Investigating Officer, is the master mind behind the whole show which amounts to appealing callousness against the appellant. 16. Before parting with the case I have noticed that according to a Conduct Report issued by the Superintendent Central Prison Hyderabad on 8.10.1995 under No. UPT/16729/95 the appellant was continuously in the said jail from 3.12.1992, there was no other case pending against him in any other court of law except the present one and that he was not a dangerous, hardened, desperate and criminal type of prisoner or terrorist. In contrast to this favourable report by an authority in whose custody the appellant was since about three years, Mst. Noor Khatoon (PW-4), the prosecutrix, moved an application in Sindhi language before the trial court praying therein that the right for bail to which the appellant was entitled may not be conferred upon him as he was a dangerous criminal, a laufer, a person of ill-repute and was sending her threats of abduction and murder. The application under section 497 Cr.P.C. was first moved before the trial court on 7.11.1994 in Sindhi but was not attended to. Another application for grant of bail was moved in English by the Advocate for appellant on 28.11.1994 mainly on the ground of statutory delay and was dismissed on 30.11.1994 on the grounds which are not intended by law to be the grounds for dismissal in case statutory delay is the major ground: Relevant proviso No. 3 to subsection (1) of section 497 Cr.P.C. was added by Act No. XIX of 1994 notified in the Gazette of Pakistan, Extraordinary, Part I dated 14.11.1994 and the rights conferred by it were available to the appellant on 30.11.1994 (i.e. the date on which bail application was dismissed). It reads:- "Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail:- (a) Who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded: or (b) Who being accused f an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this sub-section shall not apply to a previously convicted offender for an offence punish able with death or imprisonment for life or to a person who in the opinion of the Court is a hardened desperate or dangerous criminal or involved in terrorism." The relevant para of the order dated 22.11.1995 dismissing application for bail reads :- "I have carefully considered the arguments advanced by both the sides and have gone through relevant case papers and the evidence that has came on the record. In this case P.W/abductee is per the FIR is daughter-in-law for the accused and P.W. Majnoon Sun of the applicant/accused and husband of abductee Mst. Noor Khatoon P.Ws Majnoon and abductee Mst. Noor Khatoon have corroborated the FIR. So also has the W.M.O. who has though deposed in her cross examination that sexual intercourse is not committed by force, but this does not mean that sexual inter course was not at all committed. As per the FIR Mst. Noor Khatoon was abductee about six months prior there to, and that applicant/accused committed sexual intercourse under threat of murder. It may be pointed out that as per evidence of the abductee that accused had told her that she should accompany him to Tando Muhammad Khan and that accused took her and her two children to Yousif Soomro. So, arguments of Mr. Jamali that Yousif Soomro is situated at distance of two miles from Badin and that had she been abductee, they would not have resided in Yousif Soomro village, has no force. In view of all above, I am of the considered view that applicant/accused is not entitled to bail. His bail application is therefore, dismissed." A third application in this regard was moved on 17.8.1995 by the Advocate for appellant stating that the appellant was in the jail since 2 years and 7 months and that no delay was occasioned by the appellant. It was again dismissed on 22.11.1995 after the receipt of positive Conduct Report issued by Superintendent Central Jail, Hyderabad dated 8.10.1995. The grounds for the said order of dismissal dated 22.11.1995 have no nexus with the mandate created by law quoted above. These grounds read:- "Only two official witnesses viz. the I.O. and the Mukhtiarkar & FCM, who had recorded 164 statements are to be examined. The victim has not denied recording of her 164 Cr.P.C. statement. In case these witnesses do not turn up in near future, the side of the prosecution can be ordered to be closed and prosecution evidence thereby will be completed. In the circumstance it is ordered that let the remaining PWs be examined and the case be completed and heard finally. The bail application therefore is dismissed at this stage." Who is to be blamed for this blatant violation of the mandates and statutory rights created by law and to the effect that an innocent, poor, aged, citizen of the Islamic Republic of Pakistan is continuously kept in the inferno of the Cclass jail away from his legally wedded wife, but cruelly blinded by her satanic lust, and two children continuously for five years? ! 17. The negligent conduct of the trial court is to an extent that an j application moved from jail indicating existence of substantial evidence in favour of the appellant addressed to Sessions Juclge Badin and endorsed by him and sent to the trial court on 10.4.1995 properly singed and sealed remains unattended. It has never been disposed of this way or the other. It does not carry even an order for notice to State, it does not carry even an initial of any persons of the trial court It is in Sindhi and the substantial part of the same is reproduced below:- "Mst. Noor Khatoon is my wife according to Shariat-e- Muhammadi. I had married her in exchange 6f my niece Mst. Zubaidan, From this Ms?. Noor Khatoon I got four children out of whom two have died and two are living. Son's name is Muhammad Saleh and daughter's name is Hoor. At this time the age of Muhammad Saleh is 10 years and the age of my daughter is 12 years. Both these children of mine are studying in the primary School of Yousif Soomro . Son is studying in class I and daughter is in class II and she also reads the Holy Quran. Showing mercy, this honourable court may call for government record from the village Yousif Soomro and see as to in whose name these children are admitted that what is the name for their father. My wife Noor Khatoon has got training being a Mid-wife (Da'ee) arranged by government. She is Da'ee in the village Yousif Soomro. She has been entrusted with necessaiy government articles. One belt of peetal with an allotted number has been given to her for wearing on the arms. This record may be called from the hospital of Badin and see that whose wife if this Noor Khatoon. The National Identity Card of my wife Noor Khatoon may be called from Card's office Badin and see what is the name of the husband of this Noor Khatoon. The number of this Identity Card is (457) and was prepaired in 1976 and I myself had got it prepared. I am a poor and Law-waris prisoner. I am in this Central Jail Hyderabad since about 30 months. This honourable court may call for the above-mentioned records of government and may decide. This shall be in the interest of justice." I find this application properly thumb marked as L.T.I. of appellant and certified as "Before me" and signed and sealed by the Superintendent Central Jail, Hyderabad on 6.4.1995, despatched from the Post Office Sindh University Hyderabad under No. 969 on 6.4.1995 and received by the learned Court of Sessions Judge on 9.4.1995 and after necessary endorsement by Reader of the Court, agreed by the Presiding Officer, despatched under No. 811/95 dated 10.4.1995 to the trial Court and received accordingly. Had a judicial notice of the substantial documentary evidence existing in favour of the appellant been taken and had it been disposed of according to law, there is every possibility that the case could have become fit enough for acquittal of the appellant under section 265-K Cr.P.C. But it appears that the trial court has not even read it. This is highly objectionable and has prejudiced the entire proceedings after the receipt of this application on 10.4.1995. I can understand that the reason for non-reading of the record is the poverty of the appellant, non-pursuation of applications and minority of his children. Even in this court the appellant has been represented by a counsel appointed for him by State. The societies in which law enforcing agencies discriminate between poor and rich, represented and unrepresented, represented by efficient but costly lawyers and by uninterested and inefficient lawyers is a doomed one. Blessed are the societies in which justice knocks at the doors of the weak, meek and needy. 18. The upshot of the discussion is that this is not only a case of benefit of doubt to be extended to the appellant but callousness and criminal conspiracy which has hatched up against an aged, poor and weak appellant by the prosecution and non-reading and mis-reading of evidence, destruction or concealment of substantial documents and indifference towards the substantial material on the record at the level of the trial Court. The appeal is accepted, the impugned judgment is set aside. Appellant may be released, if not wanted in any other case. Certified copies of the non-exhibited record and other documents discussed in this judgment may be kept in safe custody alongwith the paper books and then the original record may be sent back to the trial court. A copy of this judgment may be sent to the honourable High Court of Sindh Karachi and Secretary, Home, Government of Sindh for taking necessary legal actions against the delinquents. (B.T.) Appeal accepted.
PLJ 1997 FSC 90 PLJ 1997 FSC 90 [Appellate/Revisional Jurisdiction] Present: dr. fida muhammad khan & abdul waheed siddiqui, JJ. AZHARIQBLA & two others-Appellants versus STATE-Respondent Criminal Appeal No. 31/1 of 1996, dismissed on 24.4.1997. (i) Criminal Procedure Code 1898 (V of 1898)-- S. 154-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12-Pakistan Penal Code (XLV of 1979) S. 377-Delayed F.I.R - Consequences of-Muhammad Faisal (PW-4) has explained this situation in following words "For about three/four days, parents of accused persons requested us for compromise"--After all their male-ego and family honour is involved and in social fabric of Pakistan nekmerds of area do make efforts for compromise specially when parties belong to same village and/or tribeThis creates double mindedness of young victim and his guardian ultimately resulting into such delay-Held: Delay is natural result of socio-ethnic situations coupled with painful mental condition of victim and his close relatives. [P. 94] A & B (ii) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- S. 12-Appeciation of evidence-Contradictions in statements of prosecution witnesses-Whether veracity of prosecution story doubtful- Question of-Indeed it is evident that on this point victim boy is clearly false-But it does not mean that his whole story is to be discarded-Mcmm falsus in uno falsus in omnibus was long ago discarded by Superior Courts of Pakistan and established principle of law is that chaff is to be sifted from grain-We hereby discard this piece of evidence, but it does not create any impact on prosecution stoiy specially^ when victim is completely corroborated by medical evidence-Held: This is considered to be result of natural forgetfulness of details of events and is not substantial at all to discard prosecution-Held further: Impugned judgment is balanced one having its locus standi on sound principles of justice-Appeal dismissed. [Pp. 95 &98] C, D, G & H (iii) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- -Art. 12-Acquittal by trial court-Challenge to-Whether offence under Art. 12 was made out-Question of-Victim was taken from "Kacha Rasta" upto point No. 1 where he was subjected to sodomy-Although upper caption of site plan declares that map is without scale, yet about 1/3 of total distance covered is indicated to be 2 \ yards-This way distance from Kacha Rasta upto place of sodomy comes to 1\ or 8 years-This is exactly what has been deposed by Rehmat Khan (PW-7) S.I and first investigation officer--No suggestion was made to this witness about incorrect rough measurement of this distance-Consequently it stands established that it was taking away for less than 10 yards i.e. 30 feet and not 900 feet as claimed in memo of appeal-Held: It is not enough to constitute offence under article 12 offence of Zina (Enforcement of Hudood) Ordinance, 1979-Appeal dismissed. [P. 97] E & F 1988 SCMR 601,1993 FSC 12,1985 FSC 404. Ch. Muhammad Iqbal, Advocate for Appellants. Ch, Afrasiab Khan, Advocate for Appellant. Ch. Arshad Ali, Advocate for State. Date of hearing; 21.1.1997. judgment Abdul Waheed Siddiqui, J.-Complainant Faisal (PW-4) a student of ninth class of 15 years of age of village Hasal District Chakwal appeared at Police Station Neela on 17.11.1994 at 4.30 P.M. and lodged FIR alleging therein that while he was on way to Chakwal accompanied by co-villagers Sher Baz and Arshad Mehmood (PW-6) on 13.11.1994 around 11 A.M., for a purpose of seeing a tournament, they were intercepted by the appellants in Cr. Appeal No. 19/1 of 1996 (Respondent Nos. 1 to 3 in Cr. Appeal No. 31/1 of 1996). Appellant Faisal Mehmood caught hold of him from his collar, appellant's Azhar Iqbal and Muhammad Iqbal made the accompanying covillager two boys to flee away after giving them fist blows and kicks and then he was dragged into a nearby pit where all the three subjected him to carnal intercourse against the order of nature. He remained crying due to pain and became semi-unconscious. The appellants ran away after satisfying their lust. There then the two co-villager boys, who were seeing the entire incident from hiding, appeared and helped him to reach his house. The appellants remained tiying for compromise, but the mother of the complainant victim boy did not agree and brought him to police station to lodge FIR. That was the reason for delay in lodging FIR. 2. The alleged victim complainant Muhammad Faisal was medically examined on the date of report at 11.30 P.M. by Dr. Munir Ahmed Langah (PW-1) who found scabbed multiple abrasions on both belows and forearms (back side) of the victim and also fears within sphincter at 6 and 11 O'clock position. Two anal and one perianal swabs were sent to the chemical examiner who reported vide Exh. PB. that the same were stained with semen and blood. The Doctor opined that the victim was subjected to unnatural sexual intercourse. 3. Prosecution examined eight PWs. Dr. Munir Ahmed (PW-1) gave his opinion as aforesaid. Muhammad Duraiz Head Constable (PW-2) deposed about recording FIR, sending the victim through Muhammad Ejaz P.C (PW-3) for medical examination, receiving and keeping in safe custody the sealed phials and a sealed envelop on 18.11.1994 at 9 A.M. from S.I, Rehmat Khan and handing over the same on 20.11.1994 to P.C. Muhammad Ejaz (PW-3) for delivery to the chemical examiner, Rawalpindi. PW-3 has corroborated PW-2 with an addition that on 17.11.1994 night he handed over a carbon copy of M.L.R., a sealed phial containing swabs and a sealed envelop to S.I. Rehmat Khan. Muhammad Faisal (PW-4) is the victim boy who has deposed confirming the F.I.R. Dr. Muhammad Iqbal (PW-5) examined all the three appellants and found them medically fit to perform the sexual act. Arshad Mehmood (PW-6) is one of the two occular witnesses and has corroborated the victim in all the material particulars. Rehmat Khan SIP (PW-7) is the first Investigating Officer who reached the spot on 17.11.1994, prepared sought sketch of the spot (Ex. PJ), took statements of witnesses u/S. 161 Cr.P.C., received from Muhammad Ejaz (PW-3), the sealed bottle containing swabs etc. at 2.40 A.M. on 18.11.1994 vide possession memo Ex. PE and handed over the Investigating Officer (PW-8) initiated investigation on 2.12.1994, reached the spot, arrested Azhar Iqbal and Muhammad Iqbal on 13.12.1994 and got them medically examined for the purposes of potency. He challaned the appellants in the Court. Appellants gave statements under section 342 Cr.P.C. and an affidavit of Sher Baz (Ex. DB) in their defence who was originally one of the tow occular witnesses for the prosecution but was given up for having been won over by the appellants. 4. Appellants, were charged by the Court of Additional Sessions Judge Chakwal under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 377 P.P.C. and after the trial the same court acquitted them under first charge whereas convicted them under section 377 P.P.C and sentenced each of them to 10 years with a fine of Rs. 5,000/-the default in payment of which called for further R.I. for six months. Half of the amount, if recovered, was adjudged to be paid to the victim as compensation. Benefit of section 382-B Cr.P.C. was also given. This judgment dated 17.1.1996 is impugned before us by the appellants/accused in Cr. Appeal No. 19/1 of 1996 with prayer for acquittal and by the complainant/victim with prayer for conviction under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and award of maximum punishment under the said section and enhancement of sentence under section 377 P.P.C. We propose to dispose of both these appeals by this judgment. 5. The learned counsel for convicted appellants has vehemently contended that the only corroboration of victim's deposition is, admittedly, the deposition of Dr. Munir Ahmed (PW-1) who has himself deposed that the final opinion about the alleged offence will be given on receipt of the report of chemical examiner and then in the light of the report that all swabs were stained with semen and blood he concluded that the examinee was subjected to unnatural sexual intercourse. It means that the locus standi of the final opinion of the only corroboratory evidence in favour of the deposition of Muhammad Faisal (PW-4), the victim, is the positive report of chemical examiner Ex. PB. In the circumstances of the case, the swabs sent to the chemical examiner were obtained on 17.11.1994 at 11.30 P.M. whereas the alleged act of sodomy was performed on 13.11.1994 at about 11.00 A.M. according to the learned counsel the anal swabs etc. taken 4% days after the occurrence could not result into a positive report of chemical examiner in the natural course, Muhammad Faisal (PW-4), the victim has admitted during cross that on the preceding night (of occurrence) he had taken meals at midnight, and on the day of occurrence he left his house after taking tea, but then he did not take meals for about 4/5 days after the occurrence and only took water. The counsel for defence is insistent tfyat during all this period the victim must have eased himself much before his medical examination specially when he had taken meals at midnight and tea in the morning before the occurrence. If so, then, as observed in ruling of this court at placentium B of PLJ 1996 SC 112 that the swabs taken 4 days after the alleged occurrence found stained with semen was impossible because semen is invariably washed away by the passing of stools within 24 hours. Therefore in the present case the victim must have eased and consequently the report of chemical examiner is a procured one. Factual position is totally different in this case and the two are distinguishable in each and every detail. In the present case no suggestion is made to the victim (PW-4) as to whether he had eased himself between taking meals at midnight of the preceding night of occurrence and the approximate time of occurrence around 11 A.M. After the occurrence, whether the victim was in a position to ease himself or not has been replied by the victim himself in the following words, "I did not take meal for about 4/5 days of the occurrence and took only water." Coupled with this is a circumstance which has been declared by Dr. Munir Ahmed (PW-1) in the following words of his examination in-chief, "On local examination I found that a larger tear at 6 O'clock and smaller tear 11-O'clock." Naturally then a victim in the pain of tears within ani-sphincter of rectum coupled with mental condition of same might have avoided to take meals for 4/5 days or might not have felt appellate at all and resultantly must not have eased for all this time. In special circumstances it is possible even to live without eating and easing for months what to say of 4/5 days. Volitive fasting unto death is seen commonly in the modern times in political spheres and people had lived for months under such conditions. Again in the cited case of this court and the present one there are other clear points of distinction. For example in the present case medical examination is indicating multiple abrasions on both elbows and farearms (back side) of the examinee. These are the abrasions caused in the case of coerced victim of sodomy in the natural course. In the cited case it was not so. There were two scabbed abrasions in front of left side of chest and right side of upper part of neck of the alleged victim. Forced sodomy, if not coupled with beating, do not result in abrasions at the parts of the body as shown. Then in the cited case the victim's reply to many questions was, "I do not know". He appeared to be somewhat abnormal and was gathered to be a tutored one. He had also stated that no body had seen the accused committing sodomy with him. The present case is on different footings. Consequently this contention is repelled. 6. The impugned judgment has also been assailed by the convicted appellant's on the point that it has not considered an inordinate unexplained delay in reporting. We have pondered upon this contention from the point of view as to whether this delay of four days and some hours generates doubts in the story of prosecution. Firstly we find in FIR an explanation for delay that accused appellant's were requesting for not lodging complaint for all these days, but then the complainant was finally brought by his mother for report at police station. Column No. 1 of FIR is indicative that there existed some earlier report No. 11 on the record of police and with its reference this F.I.R. was lodged at 430 P.M. on 17.11.94. In his examination-in-chief, Muhammad Faisal (PW-4) has explained this situation in the following words. "For about three/four days, the parents of accused persons requested us for a compromise." Delay in rape cases is a universal phenomenon. It cannot be brushed aside unless the very commission of offence itself is clearly dubious. Quoting from the book "Understanding the Rape victim", written by ex perts like Sedelle Katz and Mary Ann Mazur of the Department of Psychiatry, University of Washington, USA (Publication 1979 by John Wiley & Sons, New York page 191: "Whereas most crimes permit complaints years later without undermining credibility, for rape the statute of limitations is 30 days in Colorado, three months in Connecticut, six months in New Hampshire, 12 months in Massachusetts, and 18 months in Iowa. The majority of rape victims decided not to report at all. Instead of penalizing the victim who delays in reporting the case, she should be rewarded by kindness and consideration for her difficult decision to help society apprehend a criminal, even at some sacrifice to her own well-being." This observation in equally applicable upon male victims of rape as well. After all their male-ego and family honour is involved and in the social fabric of Pakistan nekmards of the area do make efforts for compromise specially when the parties belong to the same village and/or tribe. This creates double mindedness of the young victim and his guardians ultimately resulting into such delays. We find that in the present case both the parties axe" all and sundry residents of the same village Hasil and all of them are Bhatti by caste. Police record itself is indicative that dozens of nekmards on both the sides were indulging into hectic efforts for, compromise which resulted into this delay. Medical and other evidence is clearly suggesting that the victim has been molested severely and the existence of animus with the examining doctor has not even been suggested. Consequently we consider this delay to be a natural result of the socio-ethnic situations coupled with painful mental condition of the victim and his close relatives. The contention is rejected accordingly, 7. Now we turn to the ground that there are substantial contradictions among PW-4, 6 and 8 which generate doubt in the story of prosecution. Muhammad Fasial (PW-4) is deposing during cross: "Master Irian is not known to me It is incorrect to suggest that Mr. Man is also attached with my school. I do not know any Man of my village." Abdul Saleem (PW-8), Investigating Officer of the case, deposes! "The mother of victim and one Man alongwith so many others appeared from the complainant's side. Man aforesaid stated before me that he took the victim to the S.P. Chakwal and got registered the case." Arshad Mehmood (PW-6) deposes, "Master Man is present outside the Court. Master Man and myself reached Chakwal yesterday and had a night in the house of Zulfiqar, a maternal uncle of the victim. Faisal, PW, was also with us." In this situation it has been vehemently argued that Muhammad Faisal (PW-4), the victim, is an absolute liar. Inspite of the fact that he not only knew Master Man but was also in the knowledge that the said person was actively pursuing his cause against the appellant yet he was so cleverly maneuvering his falsity to the extent that when it was suggested to him during cross as to whether Master Man was present out-side the Court this reply was in negative. But in response to call by the Court, Master Man put in his appearance and informed the Court that he was attached with Hasal High School as a Science Teacher. Indeed it is evident that on this point the victim boy is clearly false. But it does not mean that his whole story is to be discarded. The maxim falsus in uno falsus in omnibus was long ago discarded by the superior courts of Pakistan and the established principle of law is that chalf is to be sifted from the grain. We hereby discard this piece of evidence, but it does not create any impact on the prosecution story specially when the victim is completely corroborated by the medical evidence and then on this point of active participation of Master Man in pursuing the case the deposition of Arshad Mehmood (PW-6), one of the two occular witnesss of the commission of offence, is inspiring confidence. Another contradiction which has been relied upon is that Muhammad Faisal (PW-4) is deposing that he and his two helpers returned home from the spot of occurrence at about 5/6-00 P.M. Arshad Mehmood (PW-6) is deposing that the village is about two miles away from the spot and they reached there within two hours. Consequently the victim must have reached his home by 2 or 3 P.M., but he is stating that they reached around 5/6 P.M. In the presence of preponderance of evidence favouring the story of prosecution this is considered by us to be the result of natural forgetfulness of details of events and is not substantial at all J;o discard the prosecution. 8. It has been contended that enemity between the parties is established. Appellants who have not examined themselves on oath u/S. 340 (2) Cr.P.C. have all and sundiy replied to Question No. 8 in statement u/S. 342 Cr.P.C. as under: "On the day of occurrence myself and my co-accused persons were going towards the village with a goat. Muhammad Faisal, Arshad Mehmood and Sherbaz PWs met us on the way and on our inquiry disclosed that they were going to Chakwal. We asked the PWs not to go to Chakwal at the cost of their studies. Arshad and Sherbaz PWs accepted our piece of advise and returned to their village whereas Muhammad Faisal PW got annoyed which gave rise to an altercation. Myself and my companions gave minor beatings to him when he refused to accept their advise. After this incident Muhammad Faisal PW went to Chakwal and returned home in the evening after seeing the Tournament in a pick-up No. 396 driven by Muhammad Shafi. Aslam and Lai were the copassengers of Muhammad Faisal PW. Before the return of Muhammad Faisal PW his two companions Arshad and Sher Baz had informed his mother about the altercation which took place between him and ourselves. After coming to know about that incident the mother of Faisal PW reached village Ranjha in search of him. With the intervention of the respectables of the locality the said incident of altercation was patched up. Later on master Irfan, who is inimical to us re-shaped the actual incident and got us involved in this false case in connivance with the medical officer and the police." From this reply two questions are raised for proper appreciation. First is as to whether really minor beatings were given to the complainant. Second is as to whether Master Irfan reshaped the incident due to enemity with the appellant party. First question is negated by the Medico-legal evidence. How could minor -beatings in a minor altercation cause tears inside the sphincter and abrasions on belows and back sides of fore-arms of the victim? No such suggestion even has been made to Doctor Munir Ahmed (PW-1). On the contrary the suggestions made are about the duration of tears and the cause of abrasions being dragging. The appellants in their above mentioned reply have not made reference to dragging the victim to prove that the abrasion on belows etc. were caused as such. The conclusion about the first question naturally shall be that this story of minor beatings is an after-thought. So far as reshaping by Master Irfan is concern, firstly his enemity with the appellants is not proved, secondly he was not in a position to reshape the episode as the existence of tears and abrasions on the body and inside the rectum of the victim is an established fact. Consequent this connection fails. 9. An objection has been raised by the defence, that Muhammad Faisal (PW-4) has admitted during cross that Muhammad Ashraf is one of his maternal uncles who resides about one furlong away from his house, yet neither he visited his house on the day of occurrence nor thereafter. His help was also not sought This circumstance is generating doubt as it is against the natural conduct of humans in such situations. The logic of this objection is not at all comprehensible in the absence of an suggestion regarding the cause of such a conduct. Family and tribal relations are complex in nature and cannot be subjected to rigid laws like the law of thermo-dynamic or chemical bonding of atoms. The objection is misconceived and is treated as such. 10. The learned counsel of complainant in Cr. Acquittal Appeal No. 31/1/1996 has contended that the trial court has erroneously acquitted the accused from charge under article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 because the victim was taken from the passage inside Kuddar about 900 feet away. According to him the offence, of abduction is constituted. He has also argued that as compared to the heinousness of offence committed u/S. 377 P.P.C. the sentence awarded is too small and meagre. So far as the first contention about the constitution of the offence of abduction is concerned, it is resolved by the site plan (Ex. PJ). The victim was taken from "Kacha Rasta" upto point No. 1 where he was subjected to sodomy. Although the upper caption of the site plan declares that the map is without scale, yet about 1/3 of the total distance covered is indicated to be 2\ yards. This way the distance from Kacha Rasta upto place of sodomy comes to 1\ or 8 yards. This is exactly what has been deposed by Rehmat Khan (PW-7) SI and the first Investigating Officer. He has replied to a suggestion:- "I did not allot any specific number to the place where the accused confronted the victim on the path for the first time but this place is roughly 1\ yards away from point No. 2." No suggestion was made to this witness about the incorrect rough measurement of this distance. Consequently it stands established that it was taking away for than 10 yards i.e. 30 feet and not 900 feet as claimed in the memo of appeal. We do not think that it is enough to constitute offence under Article 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In this context we are fortified by railing at citations 1988 SCMR 601, 1993 FSC 12,1985 FSC 404. There are no signs and signatures appearing from the record of the case to generate aggravating circumstances for enhancement in sentence. Neither the victim is of tender age nor are there proofs of sadism or torture or undue confinement for repeated and continuous acts of unnatural carnal intercourse nor there is any allegation about any other perversion like coitus per se or biting on buttocks and cheeks etc. Therefore we hold that the impugned judgment is a balanced one having its locus standi on sound principles of justice. 10. The upshot of the discussion is that both the appeals fall. The impugned judgment is upheld. (B.T.) Appeals dismissed.
PLJ 1997 FSC 98 [Revlsional Jurisdiction] PLJ 1997 FSC 98 [Revlsional Jurisdiction] Present: ABDUL WAHEED SlDDlQUI, J. FAZAL GHANI and another-Petitioners versus . THE STATE-Respondent Criminal Con. Revision No. 48/1 of 1996, dismissed on 11.4.1997. Ball- S. 497 Cr.P.C.--Bail application on statutory groundoffence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S. 5, 10, 11, 13, 14 & 15Concept of "dangerous"-Word "dangerous" has not only nexus with activities in past, but has something to do with reasonable anticipation about conduct in future as wellOffenders dealing in human flesh, purchasing orphans and down-trodden tender girls, Hke Basmeena, making efforts to generate puberty in them at age earlier than nature desires only to satisfy their own lust and also to make money from their flesh, abducting teen agars for prostitution just as has been done with Mst. Farzana, are cannibals of worst type and cannot be considered as non-dangerousNeither they were in past nor it can be reasonably anticipated that they are going to be in future-While being in jail they are beast in hibernation and it is reasonably apprehended that if they are let loose, their period of hibernation shall terminate and as ferocious but injured animals they shall turn out to be more dangerous than they were before their arrest-Petitions dismissed. [P. 102] A Khanzada Ajmal Zeb Khan, Advocate for Petitioners. Malik Akhtar Naveed, Advocate for State. Date of hearing: 31.3.1997. judgment Abdul Waheed Siddiqui, J,--The petitioners have assailed an Order dated 16.10.1996 passed by Additional Sessions H, Peshawar dismissing thereby two bail applications moved by the two petitioners on 6.10.1996. The grievance of the petitioners is that petitioner Zakir Hussain was arrested on 15.10.1995 and petitioner Fazal Ghani was arrested on 18.10.1995 and by now the grant of a valuable right of enlargement on bail conferred upon them by the relevant provisions of section 497 Cr.P.C. has been denied to them. Facts of the case, in brief, are that on the basis of a secret information that some people were indulging into prostitution, purchasing, selling and hiring girls for the purposes of illicit sexual intercourse, CIA police raided a house in Ittahad Colony, Peshawar on 5.10.1995 where from one Khista Rahman alias Torakai and Mst. Farzana were arrested and an FIR was lodged under Articles 5, 10, 11, 13, 14, 15, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. On investigation it transpired that there were other accomplices also connected with the heinous nefarious offences as mentioned above. Raids were arranged and Mst. Basmeena aged 12 (+ -) six months (as declared by Radiological report) was recovered from the house of petitioner Zakir Hussain on 14.10.1995. She was medically examined on 17.10.1995 resulting into the report that she could perform sexual intercourse, she as thinly built with 66 Ibs weight, 4' 6" high, auxiliary haris not appeared, public hair scanty, labia majora was red, congestion in vaginal introitus, hymen showed old ruptures, vagina could accommodate ,two figures easily and sexual intercourse had taken place. Vaginal swabs and shalwar sent to the chemical examiner were also found to be stained with semen. This panorama of medical examination read with her statement under section 164Cr.P.C. given on 22.10.1995 before Magistrate First Class, Peshawar and further read with police records involves petitioner Zakir Hussain to the extent that he is indulging not only in the illegal purchase of non-pubert girls who are nearer to attain puberty, but that he himself indulges into zina with them, tries methodically to induce puberty earlier than the nature desires, hires them for prosecution, deceitfully causes females of tender age to believe that they are lawfully married to him and cohabits with them. Mst. Basmeena states, "Zakir Hussain is a bad character and used to let minors and ladies for illicit purpose. One Fazal Ghani is also working with Zakir Hussain as a pimp Both Zakir Hussain and Fazal Ghani had sent me against huge money to Hayatabad with the customers." She had alleged that she was sent to Lahore for prostitution but being of tender age she was unable to point out the spots where she was sent. She has connected them with Khaista Rahman alias Torakai who happened to be her step father and was the main culprit who had sold her to petitioner Zakir Hussain at a time she was minor but was used of sexual purposes at tha tender age. Medical certificate corroborates her statement and a further corroboration is transpiring from the statement of Mst. Farzana which creates strong circumstantial evidence against the petitioners and some other culprits who have not preferred any petition in this Court The trial Court has made orders under 512 Cr.P.C. against absconder co-accused Dilawar, has charged the petitioners and another coaccused in custody on 16.10.1996, has examined PWs Masood Ahmed and Hilal Hyder on 6.11.1996, PWs Shaukat Ali and Rahmanullah on 26.11.1996, two others PWs on 18.12.1996, and according to the last entiy in the order sheet of trial Court dated 26.2.1997 before me the remaining sureties were summoned for 22.3.1997. The petitioners had earlier gone in their first ground of the applications for grant of bail to the trial Court and also to the Peshawar High Court and were denied bail on merits. The second round started with an application for bail on the sole ground of statutory delay and has been rejected by the trial court through the order impugned before this j0urt. At the out set the learned counsel for state has challenged the jurisdiction of this court in the circumstances of this case. He has relied on a Full Bench judgment of this court cited as NLR 1983 SD 785 and 1993 SCMR 935. In the first case two orders regarding grant of bail in hudood cases, one passed by the Hon'ble High Court of Sindh and another by the Hon'ble Lahore High Court, Rawalpindi Bench was impugned before this court in its revisional jurisdiction under Article 203-DD of the Constitution the Islamic Republic of Pakistan hereinafter called the Constitution. The prayer in both the petitions was to cancel the bail granted by the two- Hon'ble High Courts. The ratio decidendi was that it was not evident from any specific provision of law that the orders passed by the High Court were made amenable to revision by this court. The present case is distinguishable from the cited one in the sense that the order impugned here is that of the trial court made on 16.10.1996. Earlier order passed by the Hon'ble Peshawar High Court on 19.12.1995 is in no way impugned as it was made purely on merits whereas the one impugned before this court has been made by the lower court on the only one agitated ground of statutory delay which was not available to the petitioners at the time the orders were made by the Hon'ble Peshawar High Court. Another case cited is that of the Hon'able Shariat Appellate Bench of the apex court. In this case leave to appeal was granted to consider the legality of a judgment of a learned single judge-of this Court whereby he purported to exercise his revisional jurisdiction against the order dated 11.4.1990 passed by a learned single Judge of the Peshawar High Court. It was decided that this court had no jurisdiction under article 203-DD of the Constitution to revise the order of the High Court in exercise of its revisional jurisdiction. I do not propose to revise the order of the HonT)le Peshawar High Court dated 19.12.1995 as it is neither impugned before me nor its contents are, in any way, coming under discussion before me. Hence this preliminary objection by state is repelled. I hold that any interlocutory matter in Hudood cases decided by any Hon'ble High Court, if conies up in second round before this Court on different grounds in the same case and earlier orders of the said superior courts are in no way by any stretch of thought impugned before this court, then the revisional jurisdiction of this court u/S. 203-DD of the constitution remains intact. The order of the learned trial court made on 16.10.1996 has been assailed on the sole ground that on the said date statutoiy period of one year had elapsed from the date of arrest of petitioner Zakir Hussain as he was arrested on 15.10.1994 and only two days were remaining in the elopse of one year in the case of petitioner Fazal Ghani as he was arrested on 18.10.1995 and neither the trial had culminated nor the petitioners had occasioned any act or omission in the delay of the trial; they were neither previous convicts nor were they hardened, desperate or dangerous criminals or involved in terrorism, yet the grant of bail was refused to them on the flimsy ground that the petitions for grant of bail were moved on 6.10.1996 even before the completion of mathematical period of one year. I have heard the learned counsel for petitioners as well as state in details. I have gone through each and eveiy entry of the order sheet of the trial court upto 26.2.1997 and have found that the delay in trial has not been occasioned or caused to be occasioned by the petitioners. The contention of the counsel for petitioners that the star witnesses of prosecution namely Mst. Basmeena and Mst. Farzana are not interested in the trial as they are not attending the trial court is falsified by the records. As per order sheet dated 6.11.1996 PWs Murtaza Khan, Investigating Officer, Sher Khan SI, Zia-ul-Haq HC, Ahmed FC, Mst. Farzana and Mst. Basmeena were present in the court but could not be examined due to non-availability of the case property. But even if they are not attending, it transpires that they are at Darul Aman and are not left to move independently. Even otherwise this contention of defence for the purposes of grant of bail on the basis of statutoiy delay has no nexus with the matter in hand. It has been vehemently argued that the petitioners are neither previous convicts nor are they hardened, desperate or dangerous criminals. In this context reliance has been placed on a letter dated nil received in the registry of this court on 5.3.1997 issued by the Superintendent Central Prison, Peshawar to the effect that the character of the petitioners during their confinement in the jail has remained satisfactory. This letter indicates that the petitioners are not desperate persons. Record indicates that they are not previous convicts. However, I do not agree with the counsel for petitioners that they are not dangerous persons. The word dangerous, was defined by Lord Viscount Caldecote, L.C.J. of King's Bench Division in Kinder vs. The Mayor, Aldermen and Councillors of the Metropolitan Borough of Camberwett reported as (1944) 2 All E.R. 315. At page 317 it reads :- "This decision that it is dangerous is one that depends on a refinement of words to some extent. Almost every thing is dangerous from one point of view, but one has to see whether the dangerous should be reasonably anticipated from the use of things without protection, and here, as I have said, I think danger may be reasonably anticipated." Thus the word dangerous has not only a nexus with the activities in past, but has something to do with reasonable anticipations about conduct in future as well. The offenders dealing in human flesh, purchasing orphans and down-trodden tender girls, like Basmeena, making efforts to generate puberty in them at an age earlier than the nature desires only to satisfy their own lust and also to make money from their flesh, abducting teen-agers for prostitution just as has been done with Mst. Farzana, are the cannibals of worst type and cannot be considered as non-dangerous. Neither they were in the past nor it can be reasonably anticipated that they are going to be in future. While being in jail they are beasts in hibernation and it is reasonably apprehended that if they are let loose, their period of hibernation shall terminate and as ferocious but injured animals they shall turn out to be more dangerous than they were before their arrest. The petition, therefore, fails. However these observations are of tentative nature and must not affect the mind of the trial court while deciding the case on sound principles of law and if subsequently and application is repeated for grant of bail on the basis of statutory delay the trial court is at liberty to grant bail provided it is reasonably satisfied that there are signs of real repentance and that no reasonable anticipation or apprehension now exists that the petitioners are going to be dangerous for the innocent creatures of Allah and hunters for human flesh which bail otherwise law intends to confer upon them. In that case the order granting bail must be a speaking order on the point of being dangerous. Since the case is at its final stages of trial, the trial court is" directed to complete it within six months from the receipt of this order with an intimation to this court. (B.T.) Petition dismissed
PLJ 1997 FSC 103 PLJ 1997 FSC 103 [Appellate jurisdiction] Present: ch. ejaz yousaf, J. SULTAN S/o MANGAY-Appellant versus STATE-Respondent Jail Criminal Appeal No. 47/Q/95, dismissed on 24.4.1997. (i) Prohibition (Enforcement of Hadd) Order (4 of 1979)- Art 4-Criminal Procedure Code (V of 1898), S. 155(2)-Search of person and place by Levies personnel-Whether illegal without order of Magistrate-Challenge to~Whether "vehicle" does not fall within definition of "public place" as appearing in S. 2(J) of Prohibition Order- Question of-No doubt it is provided in S. 155 sub-section 2 Cr. P.C. that no police officer shall Investigate non-cognizable offence without order of Magistrate of First or Second Class yet fact remains that offence of transportation of heroin by no stretch of Imagination could be termed as non-cognizable offence being culpable under Art. 4 of Prohibition (Enforcement of Hadd) Order, 1979 and having been committed in vehicle which was being used as public carrier at relevant timeBare perusal of section 2(1) would reveal that after word "Park, garden" use of words" or other place to which public has free excess" included in itself all such vehicles which are either being used as public carriers or public has free excess there to-Vehicle in question at relevant time was being used as public carrier-Held : Vehicle included in definition of public place as defined in section 2(1) of Prohibition OrderHeld further : Police was competent to carry out search, seizure and subsequent proceedings in relation thereto without obtaining warrant. [P. 107] A & B (ii) Criminal Procedure Code (V of 1898)- S. 103-Prohibition (Enforcement of Hadd) Order (4 of 1979), Art 4- Search-Heroin-Recovery of-Non Production of piece of cloth in court in which contraband material was found tied with belly of appellant- Whether this defficiency is fatal for prosecution case-None production of piece of cloth with whelp of which contraband material was allegedly tied on stomach of accused was Immaterial-Even otherwise if produced, cloth would have rendered additional corroboration to prosecution case- Confessional Statement of appellant though retracted was duly proved at trial and found to be voluntary by trial court-Held : Non production of iece of cloth by rosecution is of no help to defence-Appeal without any substance is accordingly dismissed. [P. 108] C, D & E 1993 SCMR 785 Mr. IrshadAli RashidAwan, Advocate for Appellant. Mr. Saki Sultan, Addl. Advocate General for State. Date of hearing: 19.3.1997. judgment This appeal calls in question Judgment dated 28.2.1995 passed by learned Additional Sessions Judge Noshki at Quetta whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 and sentenced to 8 years rigorous imprisonment alongwith fine of Rs. 10.000/- or in default thereof further RI for one year. The benefit of section 382-B Cr. P.O. was however, extended to the appellant. This appeal is barred by 131 days. In view of the fact that this is a Jail appeal and appellant has been sentenced for eight years, I do not consider it proper to dismiss the appeal on the ground of limitation. I, therefore, condone the delay and propose to decide the same on merits. 2. Facts in brief are that in the night between 16.7.1993 and 17.7.1993 a pick up bearing Registration No. QAB-5144 which was on its way from Dalbandin to Noshki was intercepted by the Lavies personnel. Two persons i.e. present appellant and one Haider were found sitting in the rear cabin. On suspicion their personal search was carried out in result whereof one kilogram heroin was recovered from possession of the appellant which was tied with his belly. Consequently FIR bearing No. 6/93 was registered on 17.7.1993 under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. After completion of necessary investigation challan was submitted in the Court of Sessions Judge, Noshki for trial. 3. That charge was accordingly framed to which both the accused pleaded "not guilty" and claimed trial. It would be worthwhile to mention here that in the mean time the Accused Haider was admitted to bail by this Court and taking advantage of the concession he subsequently dis-appeared. Consequently he was declared as proclaimed offender. 4. At the trial prosecution produced 5 witnesses. Syed Abdullah, Chemical Expert was examined as PW-1. He produced certificate Ex. P/l-A and confirmed that the recovered contraband material was "heroin". Muhammad Ashraf Defadar Ijtities Noshki was examined as PW-2. He produced recovery memo Ex. P/2-A and Ex. P/2-B. He affirmed on oath that the same bear his signatures. He also confirmed that Article A/1 and heroin Article A/2 were the same which were recovered in his presence, Habibullah was examined as PW-3. He is the person who was driving the pick up at the relevant time. He deposed that on the night intervening between 16.7.1993 and 17.7.1993, he was on his way from Dalbadin to Mashkail. Two passengers including the present appellant requested him to take them to Mashkhail to which he agreed to consideration of a fare of Rs. 100/- each. He further deposed that when they were on their-way to Mashkail in the pick up the vehicle was intercepted by Lavies personnel and was thoroughly searched, nothing was recovered from the vehicle. However, on personal search of the appellant one kilogram heroin was found tied with his belly which was weighed and sealed in his presence. He confirmed that the accused was the same from who's possessions the heroin was recovered. Tehsildar Nokundi was examined as PW-4, he deposed that on 2.8.1993 both the accused namely Haider and Sultan were brought before him for the purpose of recording their confessions. He stated that after fulfilling all the necessary requirements of law he recorded the confessional statements. He produced appellants confessional statement as Ex. P/4-A and certificate as ex. P/4-B. Mr. Khuda-e-Nazar. Investigating Officer was examined as PW-5. 5. After completion of the prosecution evidence accused was examined under section 342 Cr. P.C. wherein he denied prosecution version nd stated that he as innocent and nothing was recovered from him. His statement under subsection (2) of section 340 Cr. P.C. was also recorded wherein too, he denied all the allegations levelled by the prosecution and pleaded his innocence. He also produced DW-1 Qadir Bakhsh son of Noor Muhammad in his defence who deposed that after appellant's arrest he was contacted by his mother on who's request he visited Tehsildar who in turn sent him to Habibullah (probably PW-3) and Habibullah told him that in case he (Habibullah) is paid some money, he would got release the appellant. After hearing arguments of the parties the trial court convicted the accused/appellant in the manner described here-in-above. 6. I have heard learned counsel for the pauper appellant Mr. Arshad Ali Rashid Awan, Advocate as well as Mr. Sakhi Sultan, learned Additional Advocate General Balochistan. The learned counsel for the appellant, inter alia raised the following contentions :- 1. That the search was defective. The I.O. was not competent to investigate into the offence in view of section 155 (2) Cr. P.C. particularly with reference to section 2(J) of the Prohibition Order. 2. That it was alleged by the prosecution that the contraband material was found tied with the belly of the appellant yet the piece of cloth which was allegedly used for the purpose was not produced at the trial. 3. That the contraband material was implanted against the appellant as he refused to bribe the Police. 7. The learned Additional Advocate General on the other hand controverted these contentions and additionally it has been submitted :- (i) That the appellant has not disputed recovery of heroin nor he has disputed search carried out by the Police. Appellant's case before the trial Court was that the contraband material was not recovered from him but was recovered from one of the seats of the pick up. (ii) That the recovery was proved to the hilt by the prosecution through independent witnesses including Driver of the pick up in which the appellant was travelling at the relevant time. (iii) That huge quantity of heroin weighing one kg. was recovered from possession of the accused, therefore, possibility of implantation was out of question. (iv) That the appeal is barred by 131 days. No. explanation with regard to the delay has been made in the application submitted for the purpose. (v) Levies personnel have neither any motive to falsely implicate the accused nor any enmity has been alleged against them. He as such prayed that the appeal may be dismissed. 8. I have given my anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record with their help. First contention raised by learned counsel for the appellant is that the Police in view of section 155 (2) Cr. P.C. was not competent to carry out search of the vehicle as well as person of the appellant without order of the Magistrate, in view of the fact that the offence allegedly committed by him was non-cognizable. He also made a reference to section 2(J) of the Prohibition (Enforcement of Hadd) Order 1979 (here-inafter referred to as the Prohibition Order or the Order) and said that since "vehicle" has been included in the definition of a "place" appearing in section 2(J) of the Prohibition Order, therefore, it does not fall within the definition of a public place as provided by section 2(1) of the Prohibition Order, hence the offence was not cognizable in view of section 16(l)(b) of the Order. In order to supplement his arguments he placed reliance upon a Division Bench Judgement of this Court delivered in the case of Muhammad Yameen versus The State 1987 P.Cr. L.J. 2239 wherein it was held that the offence having been committed in a vehicle was not cognizable under section 16(l)(b) of the Prohibition Order thus defect in the investigation had vitiated the trial. Before dilating upon the above objection I feel it necessary to reproduce herein-below, relevant portions of the law :- (1) Section 155(2) Cr. P.C. reads as follow :- When information is given to an officer-in-charge of a police station of the commission within the limits of such station of anon-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and after the informant to the (Judicial Magistrate). (2) Whereas section 2(J) is as under :- "place" includes a house, shed, enclosure, building shop, tent, vehicle, vessel and aircraft (3) Section 16(l)(b) of the Prohibition Order provides :- (a) an offence punishable under Article 3; and (b) an offence punishable under Article 8 or Article 11, if committed at a public place. A bare perusal of the above provisions of law would reveal that the learned counsel for the appellant has perhaps raised this objection under a mis conception. No doubt it is provided in section 155 subsection (2) Cr. P.C, that no Police Officer shall investigate a non-cognizable offence without order of the Magistrate of First or Second Class yet the fact remains that the offence of transportation of heroin by no stretch of imagination could be termed as a non-cognizable offence being culpable under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 and having been committed in a vehicle which was being used as a public carrier at the relevant time. I am not convinced by these arguments of the learned counsel for the appellant that since the heroin was recovered from the person of the appellant while travelling in a vehicle which is not a "public place" within the definition of section 2(1) of the Prohibition Order, therefore, the Police was not competent to carry out search of the vehicle as well as person of the appellant without a proper warrant A bare perusal of section 2(1) would reveal that after the word "park, garden" the use of words "or other place to which public has free excess" includes in itself all such vehicles which are either being used as public carriers or the public has a free excess thereto. Since .the vehicle in question at the relevant time was being used as a public carrier, therefore the presumption would be that, it was included in the definition of a public place as denned in section 2(1) of the Prohibition Order. Therefore, I am inclined to hold that the Police was competent to carry out stretch, seizure and subsequent proceedings in relation thereto without obtaining a warrant Even otherwise the case of Muhammad Yameen Versus The State is distinguishable from the case in hand due to this simple reason that in that very case appellant was found drunk in a private car which of course falls within the definition of a "place" as the public has no excess to it, therefore, the observations made in Muhammad Yameen's case have no relevance to the present one. This»objection as such is without any substance. So far as the second contention of the learned counsel for the appellant is concerned it would be pertient to mention here that the recovery of contraband material from possession of the appellant was proved through reliable evidence including the statement of PW-3 who is Driver of the vehicle. The accused has also confessed his guilt in his statement recorded under section 164 Cr. P.C. which was proved to be true and voluntary at th rial, therefore, the non-production of the piece of cloth with the help of which contraband material was allegedly tied on the stomach of the accused was immaterial. Even otherwise if produced the cloth would have rendered additional corroboration to the prosecution case, therefore, non production of the piece of cloth by the prosecution is of no help to the defence. The objection being purely technical in nature, cannot affect merits of the case in view of the observations of the Hon'ble Supreme Court of Pakistan duly made in the case of Munawar Hussain alias Bobi and two others vs. The State reported in 1993 SCMR page 785 wherein it has been unequivocally laid down that in narcotics cases approach of the Court should be dynamic and technicalities should be over looked in the larger interest of the country and the public at large and that the Court while deciding the case should consider the entire material as a whole and if it is convinced that the case is proved then notwithstanding any procedural defect in the proceedings conviction should be recorded. Relevant portion of the Judgment reads as under :-- "We may observe that the Court cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and, therefore, generally, they damage to cause dents in the prosecution evidence. In such like case which are not only damaging the image of Pakistani national in the comity of nations, but are making our young generation addicts to narcotic, the Court's approach should be dynamic and they should overlook technicalities in the larger interest of the country and the public-at-large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded." As discussed above the recoveiy of contraband material was proved through independent and reliable evidence. Confessional statement of the appellant through retracted was duly proved at the trial and was found to be voluntary by the trial Court. Besides, implantation of such a huge quantity of heroin i.e. one kg which is worth lacs of rupees was not possible. Further, neither any motive for false implication was either alleged by the defence nor proved at the trial nor any enmity to any of the PWs was ever attributed, therefore, view taken by the learned trial Court appears to be well founded and the technicalities if any are to be ignored. The up-shot of above discussion is that the appellant has failed to point out any legal infirmity in the Impugned Judgment so as to call for interference by this Court, appeal as such has no substance in it which is dismissed accordingly. (B.T.) Appeal dismissed.
PLJ 1997 FSC 109 PLJ 1997 FSC 109 [Appellate Jurisdiction] Present: dr. fida muhammad khan, J. MUHAMMAD HANIF-Appellant versus STATE-Respondent Criminal Appeal No. 43/1 of 1996, partially accepted on 25.7.1996. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- S. 10(3)/18 read with S. 354 PPC-Conviction for--Challenge to» Statement of Mst. G. inspires confidence and rings trueHer statement has found corroboration from medico legal report also-However her statement only reveals that appellant had untied her shalwar and was still grappling with her when door was forcibly opened and in the meanwhile complainant sustained injury and pain-Therefore it is difficult to agree with learned trial court that this case is a case in which appellant is to be convicted of attempting to commit Zina-bil-jabarCase falls in ambit of S. 354 PPC--Therefore, conviction of appellant under S. 10(3)/18 of Ordinance cannot be sustained and has to be altered to S. 354 PPC-Appeal partly accepted. [P. 113] A Sardar Muhammad Ishaq Khan, Advocate for Appellant. Salheen Mughal, Advocate for State. Date of hearing: 21.5.1996 judgment This criminal appeal filed by Muhammad Hanif son of Ghulam Muhammad, resident of Mohra Bhattian, Tehsil Gujar Khan, District Rawalpindi, is directed against the judgment dated 3.3.1996, passed by the learned Additional Sessions Judge, Gujar Khan, whereby he has convicted the appellant under section 18 read with section 1-0(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to five years R.I. with the benefit of section 382-B Cr.P.C. 2. Briefly stated" the case of prosecution recorded on the statement of Mst. Gulshan Nisa, on 9.6.1992 is to the effect that on 28.1.1992 she came to her native town in village Dhoke Gharbee Dakhil Mohra Bhattian, alongwith her husband from England where she had been residing with him since two years on the next day i.e. 9.6.1992, she was to return there. Her relatives were coming to her house to see her. Zafar Iqbal and Sahab Joe were present in her house. On 8.6.1992 at about 9.00 a.m. she went out of her house to see the villagers. First of all she went to the house of Muhammad Hanif, appellant/accused. Her was present in his house and when she enquired from him about his wife Mst. Gul Begum he told her that she was Inside the room. When she went inside the room' Muhammad Hanif followed her and after closing the door, bolted it from inside and pressed her throat, warning her to desist from making notice otherwise, she would be killed. He fall her down on the cot and forcibly untied her string of shalwar and tried to commit zina-bil-jabr with her. However, she raised alaram which attracted her husband and the said Zafar Iqbal and Mst. Sahab Jee and Sakina Bibi wife of Muhammad Yaqoob and other males and females who forcibly opened the door of the room and saved her life. During the scuffle, .she sustained injuries on her throat as well as on her ankles. Her golden ear rings also fell down there. She alleged that in case her husband and other people and not arrived, the accused would have committed zinabil-Jabr with her. On failure of effecting a compromise a report was lodged which was incorporated into formal F.I.R. The appellant/accused was subsequently arrested and after necessary investigation, challaned to face the trial. 3. At the trial, the prosecution examined four witnesses in all. P.W. 1 is Dr. Muhammad Azam Tarar. On 9.6.1992, he medically examined, Mst. Gulshan Nisa and made the following observations :-- "1. An abrasions 5 x 2 cm at the right side of front of neck obliquely directed. 2. Complaint of pain in right knee. 3. Complaint of pain in right foot little toe. 4. Complaint of pain in left knee. 5. Complaint of pain and tenderness in chest, more in front of lower half of left half of chest. The injuries were kept under observation and the same were caused by some blunt object. Probable duration of injuries was within 24 to 48 hours," He issued medico legal report Ex. PE in his hand, duly signed by him. He also medically. examined the appellant/accused on 29.6.1992 and found nothing to suggest on his person that he was incapable of performing the sexual act. PW. 2 is Mst. Gulshan Nisa. She is the complainant, who with slight addition reiterated her statement as mentioned hereinabove. PW. 3 is Manzoor Hussain. He is husband of the complainant. He made a deposition in the following words ;-- "Mst. Gulshan Nisa complainant of this case is my wife and we used to reside in England . On 28.1.1992,1 alongwith my wife arrived in Pakistan and we had to go back on 9.6.1992. We had to go to Rawalpindi , on 8.6.1992 in connection with the shopping. At about 8.30/9.00 a.m. on the same day some of my friends had come to see me at my house and I went outside of my house to see them off. My phophi Mst. Sahib Bibi and my wife Mst. Gulshan Nisa and my brother-in-law Zafar Iqbal were also accompanying me. Guests as mentioned above went away meanwhile my Phopifyi told me that there is some noise coming from the house of the accused. My Phophi went towards the house of the accused and myself, and Zafar Iqbal also followed her. I also saw that sister-in-law of the accused and her daughter aging about 13 years were also running towards that side. When I reached the outer gate of the house of accused I saw that some children and number of ladies were pushing the door of the room of the accused by force. I and Zafar Iqbal also forcefully pushed the door alongwith those ladies as a result of that the door was opened. We all went inside the room. I saw may wife's shalwar was upto knee and was semi-nacked whereas the accused was holding the string of his shalwar in his hand. My phophi Mst. Sahib Ji made my wife to wear her shalwar and at that time I was present nearby. We brought out Mst. Gulshan Nisa from the room and were going out at the main gate of the "Haveli" when the accused shouted to the ladies of his house who were admonishing him that there is no need to worry as the complainant and her husband would be going to England the next day, and that they will not narrate the occurrence to any one. I asked my wife as to what happened with her and she narrated the whole occurrence to me. On the next morning we were present in our home when some persons approached me for compromise with the accused but I refused. On 9.6.1992, we went to the P.S. Gujarkhan, where my wife Mst. Gulshan Nisa lodged the report. Thereafter I 'joined police investigation and the I.O had recorded my statement." P.W. 4 is Manwar Khan, S.I. on 9.6.1992, he recorded the statement made by Mst. Ghulshan Nisa on the basis of her statement her recorded F.LP, Ex. PA. He carried out the investigation of the case, arrested the appellanf/aceused and got him medically examined and after completion of Investigation, challenged him to face the trial. 4. The appellant/accused made a statement under section 342 Cr. P.O. wherein the denied the allegation and pleaded innocence. Replying to a question, "why the P.Ws have deposed against you and why this case has been made against you", he made a statement in the following words :-- "I have been falsely implicated in this case due to enmity with the complainant party. I had gone to London illegally for which Manzoor Hussain PW. 3 husband of the victim made a complainant against me in London before the competent authorities due to which I was sent back in Pakistan, I and my brothers own land around the house of the complainant in which her drain water falls we restrained them for a doing which eventually caused enmity in between us. To avenge this, the instant false case has been registered against me." He neither made a statement on oath in disproof of the allegation made against him by the prosecution nor led any evidence in his defence. 5. I have heard learned counsel for the parties and have perused the record with their assistance. 6. Learned counsel for the appellant submitted that the contents of F.I.R. lodged with inordinate delay do not disclose that the complainant had sustained injuries at the time of occurrence and that the appellant/accused had also untied his string but subsequently she made improvement in her statement which render the credibility of her statement doubtful. The learned counsel further submitted that the alleged occurrence in the circumstances do not appear to be truthful as according to the statement of complainant, the guests were present in her house and there was no occasion for her to go out and meet the villagers. Regarding place of occurrence, the learned counsel submitted that it was jointly owned house and commission of offence of this nature was not possible therein. The learned counsel for the State vehemently supported the impugned judgment. 7. I have thoroughly perused the entire record in the light of submissions made by learned counsel for the parties. In fact, the case of prosecution mainly rests on the statements of PW. 2 Mst. Gulshan Nisa, complainant, and PW. 3 Manzoor Hussin, her husband. So far as the testimony of complainant is concerned, she has come out with a detailed account of what had happened with her when she went to the house of com plainant in order to see his family members before leaving for England. Her statement contains some additional details, however, the same cannot be termed as improvement in the early version. It may be mentioned that even at the time of recording her statement in the F.I.R. she has not only com plained about some injuries on her neck and knee but also of some pain on her left side. Moreover, P.W. 4 Manwar Khan, S.I. who recorded F.I.R. Ex. PA on her statement recorded that he prepared her also and sent her for medical xamination. Thus, it is apparent that at the time of recording F.I.R., she had mentioned about her injury and paid and therefore, it cannot be called improvement in her statement when she disclosed further details in her statement before the learned trial court. Regarding the untying of string of the appellant also the context of her statement before the police shows that he had done so. Though the F.I.R. was lodged with delay but in the circumstances, the explanation given for the delay s plausible and atural. As the complainant and her husband were leaving for England on the next day and there was also some offerts going on to effect a compromise between the parties, the delay of about one day is not fatal to the case of prosecution. The complainant has also mentioned in the F.I.R. about the visit of some guests and she had given their names as Zafar Iqbal and Mst. Sahab Ji and it is in this context that she had referred to the visit of some guests. Regarding the injuries on her body, it may be mentioned that her statement finds full corroboration from medico legal report. The clothes though torn were not delivered to the Investigating Officer and were taken along by her to her home. None-production of the same has no bearing on the veracity of her statement as the medico legal report about the injury and pain on her body supports her version. The clothes were not a material piece of evidence. Regarding the opening of the door, she had given explanation that neither the door nor the bolt was broken but the door was opened due to force from outside. She volunteered that in a hurry, the accused had might not shut the door completely. Although the house was jointly owned and the children of appellant and his wife were living in the same house, there is no suggestion, to the P.Ws. about their presence at that time. The statements of PW, 2 and PW. 3 are consisting and inspire confidence. After throughout perusal of the entire evidence on record, I feel that in the facts and circumstances of the case, the statement of Mst. Gulshan Nisa inspires confidence and rings true. Her statement has found corroboration from the medico legal report also. However, her statement only reveals that the appellant had untied her shalwar and was still grappling with her when the door was forcibly opened and in the meanwhile, the complainant sustained injury and pain. Therefore, it is difficulty to agree with the learned trial court that this case is a case in which the appellant is to be convicted of attempting to commit zina-bil-jabr. The aforementioned situation actually brings the case under the ambit of section 354 PPG, that is outraging modesty of Mst. Gulshan Nisa. Therefore, the conviction of appellant under section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 cannot be sustained and has to be altered to section 354 PPG. 8. Consequently, this appeal is allowed only to the extent that the conviction and sentences of the appellant under section 18 read with section 10(3) of the Ordinance are set aside. The appellant is instead of that section convicted under section 354 PPG and the sentence of his Imprisonment is reduced to two years R.I. He is also sentenced to fine of Rs. 20,000/- or in default thereof to undergo further six months R.-I. In case of payment of fine, the whole amount will be paid to Mst. Gulshan Nisa as compensation. The appeal is disposed of in the above terms. The benefit of section 382-B Cr.P.C. extended by the learned trial court shall remain intact. .(K.A.B.) Appeal partly accepted
PLJ1997FSC 114 PLJ1997FSC 114 [Appellate Jurisdiction] Present: dr. fida muhammad khan and muhammad khiyar, JJ. STATE-Appellant versus MUHAMMAD SHAFI-Respondent Criminal Appeal No. 81/1 of 1995, accepted on 30.4.1997. Prohibition (Enforcement of Hudood) Ordinance, 1979 (P.O. 4 of 1979)-- S. 3 and 4~Heroin-Recovery of--Acquittal-Challenge to-Recovery not witnessed by any body from public-Omission in not exhibiting F.I.R.- Effect of-Mere fact that recovery is not witnessed by anybody from public does not mean that recovery is fake unless some evidence is brought on record to show that police witnesses, who had witnessed recovery have some ulterior motive against culprit-Registration of case on basis of complainant Ex.IB/1 is not denied and omission is not exhibiting FIR has not accasioned in failure of justice-Appeal accepted. [Pp. 117 & 118] A & B Mr. Tariq Pervez Janjua, Advocate for Respondent. Sardar Muhammad Siddique Khan, Advocate for State. Date of hearing : 15-4-1997 judgmen Muhammad Khiyar, J.--This appeal by the State has been filed against the judgment of acquittal dated 27-2-1995 passed by Ch. Abdul Majeed, Judicial Magistrate Section 30, Rawalpindi . 2. The facts in brief are that on 6-6-1994 at 8.00 P.M. Muhammad Shafi accused/respondent herein was apprehended by narcotics policy and from his possession 100 grams heroin was recovered. Twelve grams heroin was separated as sample for examination by Chemical Examiner and the remaining was sealed into a separate parcel. Muhammad Sharif Toor, F.I.O. P.S. Narcotics, Rawalpindi, drafted complaint Ex. PB/1 on the basis of which IR No. 39/94 dated 6-6-1994 under rticle 3/4 Prohibition (Enforcement of ' Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order) was registered against the accused/respondent who was challaned to Court to face trial. 3. At the trial, the respondent did not plead guilty to the charge. To prove the charge the prosecution produced Manzoor Hussain, constable (PW. 1) who had delivered 12 grams of heroin in the office of the Chemical Examiner on 8-6-1994, Muhammad Yousaf, constable (PW. 2) a member of raiding party who witnessed the recovery of heroin from the respondent and attested the recovery memo Ex. PA as marginal witness. Zahid Mehmood constable (PW-3) also signed recovery memo Ex. PA and deposed about the recovery of heroin from the accused/respondent by the raiding party led by Muhammad Sharif Toor F.I.O. Muhammad Sharif Toor (PW-4) supervised the raid, recovered 100 grams heroin from the possession of the respondent vide memo Ex. PA out of which 12 grams were separated as sample for examination by Chemical Examiner. He drafted the complaint Ex. PA/1 and sent it to P.S. Narcotics Rawalpindi for registration of the case. He recorded the statements of PWs under section 161 Cr. P.C., prepared site plan Ex. PC and handed over the case property to the Muharrir. On receipt of Chemical Examiner report Ex. PD accused/respondent was challaned to Court. Shaukat Hussain (PW-5) deposed about the safe custody of case property in the Malkhana and sending it to Chemical Examiner on 8-6-1996 through Manzoor Hussain constable. 4. After the prosecution of evidence was closed, accused/respondent was examined under section 342 Cr. P.C. He denied that 100 grams heroin was recovered from his possession. He stated that in fact Muhammad Sharif Toor and his colleagues by jumping over the wall entered his house when he was asleep. They robbed him of cash amount of Rs. 10500/- and other household articles and on interference of his wife hot words were exchanged and indefence heroin was planted and false case has been registered against him. The accused/respondent also appeared as his own witness and in defence produced his neighbour Muhammad Afsar and his wife Mst. Mehmooda Begum who deposed that Muhammad Sharif Toor, F.I.O. and his colleagues had entered the house at 7 P.M. and robbed him of cash amount and of other household articles. On interference by Mst. Mehmooda Begum w/o the accused/respondent they threatened them and arrested the accused/respondent and that nothing was recovered from him. 5. On perusal of the evidence the trial Court found that the Moharrir who registered the FIR was neither cited as witness in the calendar nor produced as witness in the case and due to this negligence FIR ould not be exhibited in evidence. The recovery of heroin was held as not genuine because nobody from the public had witnessed the recovery. The Court accepted the defence version as true and in view of the discrepancies in the statements of PWs about the packing of heroin, doubt was found to have been created in the prosecution case. The Court therefore vide judgment dated 27-2-1995 acquitted the accused/respondent under section 245 Cr. P.C. and ordered for destruction of heroin. 6. The State has assailed the above judgment of the trial Court in this appeal. 7. Sardar Muhammad Siddique Khan, Advocate for the State contended that the recovery of heroin from the accused/respondent is proved by the police officials who are as good witnesses anybody else unless it is shown that they have any motive for false charge. There is no such motive and defence version is unbelievable. The learned counsel argued that charge under section 4 of the Prohibition Order was proved against 'the accused/respondent and that trial Court committed illegality in acquitting him, of the charge and that he should be convicted. Reliance was placed on the following cases :- 1995 S.C.M.R. 1497 1992 S.C.M.R. 1475 1991 S.C.M.R. 458 1989 S.C.M.R. 491 8. Mr. Tariq Pervaz Janjua, Advocate for the accused/respondent on the other hand argued that non-compliance of mandatory provisions of section 103 Cr.P.C. is fatal to the prosecution which should benefit the accused/respondent. The case is concocted due to personal grudge of Muhammad Sharif Toor with whom the wife of acccused/respondent xchanged hot words when he jumped over the wall and entered the house and robbed him of the cash amount and household articles. The FIR was not exhibited and as such the registration of the case is not proved. Learned counsel further contended that contradictions in the statements of the PWs about the packing of heroin are very material and no reliance can be placed on their testimony. Reliance was placed on the following case law :- 1. 1992 P.Cr. L.J. 35 Karachi. 2. 1992 P.Cr. L.J. 435 Peshawar. 3. PD 1988 Lahore 574 4. PLJ 1990 Cr. Case Lahore 26. 9. We have given our careful consideration to the respective contentions of the learned counsel for the parties and have also gone through the evidence on record. It has come in the evidence that the narcotics police officials arranged raid on receiving secret information that a person was selling heroin near his house. The raiding party consisting of Muhammad Sharif Toor, Zahid Mahmood, Manzoor Hussain, Muhammad Yousaf (PWs) and others proceeded to the spot known as Kachi Abadi Khayaban Sir Syed and then on the pointation of informer the accused/respondent was apprehended and on personal search, from right pocket of his shirt polythene envelop containing heroin weighing 100 grams was recovered. Out of 100 grams, twelve grams of heroin was separated as sample and sealed into separate parcel. The remaining heroin was also sealed into a separate parcel and recovery memo Ex. PA was prepared. On the complaint of Muhammad Sharif Toor, F.I.O. (PW-4) case was registered against the cccused/respondent. The sample was kept in the Malkhana. On 8-6-1994 Manzoor Hussain, constable deposited the sample parcel in the office of Chemical Examiner, Rawalpindi whose report Ex. PD is in the positive. The contentions raised by the defence are firstly that recovery of heroin having not been witnessed by anybody from the public it is not genuine and secondly that heroin has been planted due to the misbehaviour of accused/respondent's wife with Muhammad Sharif Toor, F.I.O. who with his party entered the house and robbed them of cash amount and other household articles. The contentions are devoid of force. Muhammad Sharif Toor (PW-4) has in very clear words stated that despite his request nobody from the public was prepared to witness the recovery memo. We are inclined to believe him because of the public tendency not to witness the recoveries out of fear of incurring animosity. The mere fact that recovery is not witnessed by anybody from the public does not mean that recovery is fake unless some evidence is brought on record to show that police witnesses, who had witnessed the recovery have some ulterior motive against the culprit. In the present case we find nothing on the record to show that narcotics police officials had any motive to falsely implicate the accused/respondent in the case. The application of section 103 Cr.P.C. was not required in view of the facts and circumstances of the case as held in Mirza Shah versus The State, 1992 S.C.M.R. 1475. The Supreme Court held that :- "Section 103 is applicable to search made by a police officer during investigation but its applicability will depend upon the facts and circumstances of each case. If the circumstances are such that it is not possible to comply with it the Court will not insist on its strict compliance but will examine other evidence produced by the prosecution to prove recoveiy with care and caution". In this case heroin was recovered from the pocket of the shirt of the accused/respondent standing in the street in front of his house. Place as defined in section (2)(i) of the prohibition order includes a house, shed, enclosure, building, shop, tent vehicle, vessel and aircraft. A street is therefore not a place so as to attract the application of section 103 Cr. P.C. The defence version that narcotic police jumped over the wall of the house and robbed the accused/respondent of the cash amount and household articles and on protest by his wife hot words, were, exchanged and due to that heroin was planted is simply unbelievable. We do not think that they had trespassed the House and robbed him of the valuables. If it was so the authorities could take action against them on the complaint made to them by the accused/respondent. Muhammad Sharif Toor, (PW-4) admitted that the accused/respondent had been submitting applications against him to make out a ground for bail but all his applications were rejected. The contradictions in the statements of PWs about the packing of heron are not so material as to benefit the accused/respondent. The sample sent to the chemical examiner was found to be heroin as per report Ex. PD. The case law referred to by the learned counsel for the accused/respondent is distinguishable. The facts in all the cases are different from the facts of the present case, and as such are of no help to the accused/respondent. The learned counsel for the respondent has not been able to show as to what is the effect of not exhibiting the FIR. The registration of the case on the basis of complaint Ex. PB/1 is not denied and omission in not exhibiting the FIR has not occasioned in failure of justice. 10. We are of the view that the prosecution has succeeded in providing the charge under section 4 of the Prohibition Order against the accused/respondent beyond reasonable doubt and his acquittal by the trial Court was illegal. We therefore accept this appeal, set aside the impugned judgment dated 27-2-1995 and on convicting the accused/respondent under second proviso of Article 4 of the Prohibition Order, sentence him to two years R.I. and fine of Rs. 10,000/- in default of payment of fine to suffer six months S.I. The benefit of section 382-B Cr.P.C. is extended to him. The accused/respondent present on bail be taken into custody and sent to jail, to undergo the sentence. (K.A.B.) Appeal accepted.
PLJ 1997 FSC 118 [Appellate Jurisdiction] PLJ 1997 FSC 118 [Appellate Jurisdiction] Present: abdul waheed siddiqui, J. MUHAMMAD AMIN-Appellant versus ALLAH BUX and 2 others-Respondents Crl. Appeal No. 150/1 of 1996 accepted on 29.1.1997. Criminal Trial-- Harrabah-Case of-Conviction for-challenge to-There is neither confession of appellant, nor any ocular evidence is available-Evidence of prosecution wholly depends on circumstantial evidence-In the absence of direct evidence, conviction can be upheld only when all hypothesis of innocence of accused are ruled out-Such a case must be free from all doubt and no other explanation should be possible except guilt of accused-There is an inordinate delay in reporting for which no plausible explanation is comming forward-Two months and two days afterwards a direct complaint has been filed for which delay on explanation is that complainants were unaware about procedure-Explantion regarding delay of two months and two days is not plausible and if fires back upon complainant party and creates strong doubts regarding long deliberations before reporting-Conviction setaside. [Pp. 120, 122 & 123] A, B & C Ch. Muhammad Ibrahim, Advocate for Appellant. Ch. Abdul Ghafoor, Advocate for State. Date of hearing: 14.1.1997. judgment This is a Criminal Appeal under section 24 of the Offences Against Propeo, (Enforcement uf Hudooo Ordinance 1979 (Ordinance No. VI of 1979) preferred by appellant againsc the order of his conviction and sentence dated 10-06-1996 passed by Auditiona' Sessions Judge, Panjgur, Baluchistan whereby he has bean convicted under section 380 P.P.C. and is sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 3000/- in default of payment he would further undergo for two months simple imprisonment. Benefit of section 382-B Cr.P.C. is also given to the convict. The appeal was admitted by this Court vide order dated 2.9.1996 whereby the sentence of fine was suspended till iu decision. 2. The facts of the case in brief are that on 18-3-1996 Allah Bux (Respondent No. 1) ami Muhammad Tahir (Respondent. No. 2) filed a complain in the Court uf Sub-P"/isional Magistrate, Punjgur u/A. 9/14 of the Offences Against Property Enforcement of Hudood) Ordinance 1979 read with Section 457 P.P.C. The allegations were that the complainafits owned and possessed three motor cycles one was 125 super coloured green, second was 100 coloured red and third was also 100 but coloured green. They made all the three motor cycles stand in their haveli. 100-coloured red was locked, other two were not loaked. When they came in the morning of 16-01-1996 for proceeding towards business, they found Super-125 green and 100-colour green missing. (In other words the unlocked two motor cycles were missing). It was alleged further thai, some unknown house-breakers and stolen the motorcycles and the reason for inordinate delay of two months and two days in reporting the incident t'> the authorities was shown to be ignorance of procedure of reporting. It was alleged further that on their own the complainants had searched and had almost lost their hopes. Further allegations in the complainant were that some time after the incident one relative of the complainant went to the shop of Muhammad Sharif for some transaction and there then he came to ktiL-sV that the appellant/convict was selling a Super-125 ruotorc>cle for Rupees six thousand. When asked about the rece';-.t of the payment, and verification by some authority of the Government the appellant became anger and refused to do so. Later on another person Akhtar Mechanic informed that during Ramzan, at Sehri time, une person left a motor cycle devoid of head and cylinder before his shop. His companies informed him about that. When he came he found the appellant standing near the motor-cycle. He wanted to dismantle it. Since it was not the working hour, so he refused. However the appellant himself took tho tool and afi dismantling, he put it :».i a &unny bag. It was alleged further that afLr having receiving this information, the complainants contacted police station and reported in writing and although the appellant was called there, but no FIR was lodger! and he was set free. The complaint was transferred by Sub-Divisional Magistrate Panjgur to the Court of Additional Sessions Judge Punjgur for want of jurisdiction. 3. The appellant was charged u/S. 9/14 Offence Against Property (Enforcement of Hudood) Ordinance 1979 by the Court of Additional Sessions Judge Panjgur for which he pleaded not guilty. 4. The prosecution examined four witnesses. The appellant gave his statement u/S. 342 Cr. P.C., was also examined on oath u/S. 340(2) Cr. P.O. and also examined four witnesses in his defence. 5. I have heard the arguments of the counsel for appellant as well as State. The Counsel for appellant has vehemently contended that the complaint suffers from inordinate delay for which no plausible explanation is oming forthwith that no recovery of the stolen articles has been made; that neither ownership nor possession of the stolen articles has been proved by the complainant; that the ingredients of the theft as defined in section 378 of the Pakistan Penal Code, 1860 are not constituted; that the conviction is based wholly on the circumstantial evidence for which enough corroborating material is not available on the record; that the impugned judgment is based on conjectures and surmises; that the enmity between the complainants and the appellant is proved from the depositions on the record; and finally that it is a case not proved beyond all reasonable doubts. The learned counsel has relied upon NLR 1996 SD 123, NLR 1996 SD 388, NLR 1986 SD 600, 1991 PCr. L.J. 1185, 1991 PCr. L.J 1898, NLR 1996 SD 122, and NLR 1996 SD 509. The learned counsel for State has contended that the appellant has admitted during his statements u/S. 342 Cr. P.C and deposition u/S. 340(2) Cr.P.C. that he had dismantled one Motor Cycle before some person who had paid him Rs. 200/- as labour charges and some one else had informed him that he wanted to sell his motorcycle for Rs. 6000/- and this is what he had related to Sharif, mechanic (PW-6). Hence his guilt is proved. When asked about the case law on the point that the statements of accused can be used against him and that the burden of proof can be shifted in such like cases from prosecution to the defence, he was unable to do so. On the other hand he admitted that there are infirmities in the impugned judgment and that the prosecution has not acted strictly according to the law of the land at the investigation level, but for that he tried to explain that the people and prosecution of far off locations in the country are ignorant of the provisions of law and that the prosecution can be condoned for not having followed the provisions of the Code of Criminal Procedure 1898 and the Qanoon-e- Shahadat Order, 1984. When asked by this Court to cite any law in this connection, be showed his inability. 6. In this case there is neither confession of the appellant, nor any ocular evidence is available. The evidence of prosecution wholly depends on circumstantial evidence. In the absence of direct evidence, the conviction can be upheld only when all the hypothesis of the innocence of accused are ruled out. Such a case must be free from all doubt and no other explanation should be possible except the guilt of the accused. I have gone through the entire record of this case with care. First of all I find that the complaint moved before Sub-Divisional Magistrate Panjgur on 18-3-1996 is referring to three motorcycles for which neither registration numbers are given nor the name of the manufacturing company is disclosed. During his examination under the provisions of section 202 Cr. P.C.. Allah Bux complainant No. 1 is making a reference to M/c Yamaha 100 Irani, but again no Registration Number is given. He has produced a receipt EX PW/l-A. This receipt is in Persian language and is about the sale of Motor 125 water-coloured. Neither Yamahah is mentioned in it nor the name of the vendee Allah Bux is appearing whereas Allah Bux is claiming to have purchased it from some shop-keeper of Iran . On the complainant two green-coloured motor cycles have been shown as stolen property. One is 125 Super. In the receipt Ex. PW/l-A, motor 125 is not disclosed to be green, but rather water-coloured (Range : Aabi). Second complainant Muhammad Tahir, during examination u/S. 202 read with 200 Cr.P.C. is not taking the name "Yamaha" and is producing receipt of purchase of an unidentified motorcycle as Ex. PW/2-A. This Exhibit is not available in the records. Third witness who was examined on oath before charge was framed is Akhtar mechanic. He is disclosing that a motor cycle 1000 Yamaha red coloured was standing on his shop at a time when he was giving for Fajr prayers during the month of Ramzan. But it is not the case of the complainants. They are alleging that two green coloured motorcycles were stolen. Here Akhtar mechanic is referring to one Red coloured motorcycle which was dismantled by the accused/appellant. This very witness has repeated the same facts in his deposition which he made after the charge was framed and the appellant had not pleaded guilty. Consequently it is not safe to Identify the 100 CC green coloured motorcycle, unregistered and unnumbered, with a red coloured Yamaha of 100CC which was admittedly dismantled by the appellant. Appellant himself has admitted during his statement that he had dismantled one motor cycle for a consideration of Rs. 200/- as labour charges. This state ment inspires confidence and it cannot be used against him as admission of the guilt as has been done at page No. 4 of the impugned Judgment. So far as green-coloured motor cycle 125 C.C. Super is concerned the receipt in Persian Ex. PW/-A discloses its colour to be watery. About this motor cycle Muhammad Sharif, while being examined under section 202 read with 200 Cr. P.C., disclosed that it was the event of last Ramzan that the appellant was working in his garage and he wanted to sale a Supermotor cycle for Rs. 6000/-. The same witness during deposition has said that this event was that of five or six days before the last Ramzan. This contradiction is enough to discard his evidence. In this situation the evidence which is not direct, is not free from doubt. On holding this view I am fortified by the rulings of the Full-Bench of this Court cited as NLR 1996 SD 388 and also ruling appearing as NLR 1986 SD 600, NLR 1996 SD 123. So far as point of animus between the complainant and accused/appellant is concerned, although denied by the prosecution, yet it is evidence from a reply of Muhammad Tahir (PW-8) during cross. He deposes" It is correct that since the time of your brother Muhammad Alam's marriage, there are no terms of mutual family gathering" Now the parties are admittedly close relatives, and admittedly the appeal of discard commenced from the relationship of a family in which appellant's brother Muhammad Alam married. DW-1 who is father of the appellant has further clarified the existing animus during his examination-in-chief. He says" Complainants Tahir and Allah Bux are my relatives, it is an event of about three years ago that I had agreed to arrange the marriage of my son Muhammad Alam with the daughter of Haji Karim Bux. On this Imam Bux and Sumaiya came to my house early in the morning and they are khala zads of the complainants. They brought me out of my home and Imam Bux said that I shall kill your son Muhammad Alam and Sumaiya said that whatever you have given to Karim Bux, you take it back and I shall give equivalent to Karim Bux. You finish the expected betrothal of your son with the'daughter of Karim Bux. Then I gave an application before SDM Punjgur against 10-12 persons for keeping peace and then the SDM took the surety for keeping peace from both the parties". Other DWs have stated on oath that such an enmity is simmering between the parties. The on going simmering enmity is further proved by Exhibits DW/A and Exh : DW/B which are FIRs of offences of varying degrees u/ss 337/A, 147, 148, 149, 336/34 lodged by the parties and/or their close relatives against each other. All these FIRs are of 1994. It simply means that the parties have been involving each other after the origins of enmity from the point of differences regarding the betrothal of the brother of appellant with the daughter of Karim Bux. Now it is a common knowledge that in a social frame-work which is based upon tribal values, the marriage with particular ladies are given highest importance and family honour are felt at stake. There is. also an inordinate delay in reporting of which not plausible explanation is coming forward. The incident is that of 16-1-1996. Two months and two days afterwards a direct complainant has been filed for which delay the only explanation is that complaints were unaware about the procedure. This explanation is falsified by the record itself. According to the deposition of DW-1 about 2 years prior to this incident proceedings for peace keeping were taken up by the SDM Punjgur and parties were bound down to give sureties. This has not been denied by the complainants as no such question was posed during the cross. On the contrary, another question regarding reconciliation by M.P.A. Kachtol Ali has been asked which is nothing but an implied admission of such proceedings before SDM Panjgur. Again Exhibits DW/A and DW/B. i.e. two FIRS of 1994 and lodged against each other falsify the stand of ignorance of procedure. Complainant Allah Bux has admitted during cross upon him that he has lived in Maskat for 20 years. Both the complainants have admitted that they had purchased the motorcycles from Iran and in this context a receipt of purchase in Persian language has been exhibited as PW/l-A. All these admissions prove that the complainants are travellers of wcfe-ranging distances and of countries other than Pakistan . The contention of ignorance of the procedure as to how to report an offence is repelled on this account. Under such circumstances, the explanation regarding delay of two months and two days is not plausible and if fires back upon the complainant party and creates strong doubt regarding long deliberations before reporting to the authorities concerned. For the reasons noted above, the conviction and sentence dated 10-6- 1996 passed by the Additional Sessions Judge, Panjgur against the appellant is set aside and he is acquitted of the charge. He may be released and set at liberty if not wanted in any other case. (K.K.F.) Conviction set aside
PLJ 1997 FSC 123 PLJ 1997 FSC 123 [Appellate Jurisdiction] Present: DR. FlDA MUHAMMAD KHAN, J. ARSHAD JAVED-Appellant versus STATE-Respondent Cr. Appeal No. 118/1 of 1996, dismissed on 18.11.1996. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- Ss. 354/451-Modestly of woman-Outraging of-Offence of-Conviction for-Appeal against-Delay in lodging FIR-Occurrence took place on 2.11.1994 where as FIR was got registered on 10-11-1994 with a delay of eight days-However delay has been explained in FIR-Mere delay in such like matters of plausibly explained cannot be considered fatal as normally concerned parties being conscious of family honour refrain to immediately report matter to police. [P. 125] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- Ss. 354/451--Modestly of woman-Outraging of-Trespass-Offence of- Conviction for-Appeal against-Statement of complainant finds full corroboration from MLR submitted by medical officer-Injury sustained by her when she was perused by appellant/accused and resultantly she fell down on ground was observed by medical officer who stated injury to be about one week old-There is no cross examination on PW.l (medical officer) to suggest that said injury was self-fabricated-In absence of any motive for false implication as well as due corroboration of statement of complainant by PWs' court have come to conclusion that prosecution has established its case against appellant/accused beyond any reasonable doubt-Appeal dismissed. [P. 125] B Mr. Muhammad Tahir, Advocate for Appellant. Mr. F.K. Butt, Advocate for Complainant, Mr. Saliheen Mughal, Advocate for State. Date of hearing : 18.11.1996. judgment This appeal field by Arshad Javed son of Sher Gul, resident of Naka Khurd, Police Station Injra, Tehsil Jand, District Attok is directed against the judgment dated 5.6.1996 passed by learned Sessions Judge, Attok whereby he has convicted him under section 451 PPG and sentenced him to suffer R.I. for one year and fine of Rs. 5000/- or in default thereof three months R.I. He has further convicted him under section 354 PPC and sentenced to suffer R.I. for one year and a fine of Rs. 50007- or in default thereof three months R.I. Both the sentences are ordered to run con currently. The benefit of section 382-B Or. P.O. has been extended to him. 2. Briefly stated the case of prosecution as narrated by Mst. Fahmida Begum in her statement Ex. PB recorded on 10.11.1994 is to the effect that on 2.11.1994 when she was all alone in her house as their mother and brother Muhammad Jalil had gone to the forest and the main gate of haveli was open, the appellant/accused entered the haveli without her permission while she was washing utensils in the courtyard and forcibly tried to take her inside the room. During the grapple she raised cries which attracted Allah Gul and Mawaiz Khan. On seeing them Javed pushed her and ran away. She sustained injuries on her mouth when she fell down on the ground. After that the accused party asked for time to effect a compromise to delay the matter. She requested for legal action against Javed who was subsequently -arrested on 23.11.1994 and after completion of investigation the appellant was challaned to face the trial. 3. At the trial prosecution examined five witnesses in all. P.W. 1 is Dr. Tufail Ahmad, Medical Officer. He medically examined Mst. Fahmida Begum, Complainant, on 10.11.1994 and made following observations :- "A small rounded wound % x ^ cm on the inner side of the lower lip, in front of right second incisor. There was no bleeding from the wound at the time of examination. The wound seem to be about one week old. The injury was shajja khafifah". P.W. 2 is Ghulam Hussain, HC. He recorded formal FIR Ex. PB/1. P.W. 3 is Mst. Fahmida Begum. She is the complainant who reiterated her statement as mentioned hereinabove. P.W. 4 is Allah Gul. He is the eye witness who saw the occurrence alongwith Mawaiz Khan. He deposed that they saw that accused Arshad Javed had caught hold of Mst Fahmida Begum and was trying to remove her to a room. On seeing them however, the accused gave a push to the complainant who as a result thereof fell down and the accused ran away. P.W. 5 is Muhammad Riaz, ASI. He recorded complaint Ex. PB on the statement of Mst. Fahmida on 10.11.1994 and sent the same to police station for registration of the case. He arrested the appellant/accused on 23.11.1994. He investigated the case and after completion got the appellant/accused challaned. 4. The appellant/accused made a statement under section 342 Cr. P.C wherein he denied the allegation and pleaded innocent. He stated that he was not present in the village on the day of occurrence as he had gone to Karachi in those days. He also stated that he had been involved in this case at the instance of Allah Gul PW who had got strained relations with his father as well as with him. He declined to make a statement on oath under section 340(2) Cr.P.C. and to produce and any evidence in defence. 5. I have heard the learned counsel for the parties have perused the record with their assistance. It transpires from the record that the occurrence took place on 2.11.1994 whereas the FIR was got registered on 19.11.1994 with a delay of eight days. However, the delay has been explained in the FIR. Mere delay in such like matters if plausibly explained cannot be considered fatal as normally the concerned parties being conscious of the family honour refrain to immediately report the matter to police. The explanation given by the complainant in her complaint as well as in her statement before the court shows that the accused party was trying to effect compromise and when no compromise was finalised between the parties the matter was reported to the police for necessaiy legal action. Her father was also not available and it appears from the cross-examination that her brother had gone on the next day to call her father as naturally being head of the family he was supposed to negotiate the terms of compromise. It is unbelievable to presume that any young unmarried lady would ever subject her career and honour of the family by fabricating a false allegation of this nature wherein her personal respect is highly at stake also. She has made a deposition before the trial court on oath. She has been subjected to lengthy cross-examination but her statement has remained unshatterd as nothing fruitful to defence has been adduced. Her statement finds full corroboration by the evidence of P.W. 4 Allah Gul who is an independent witness and is infact real uncle of the appellant accused. Though his relation with his brother, father of the appellant/accused were strained, there is nothing on record to show his relationship with the complainant party to connive with them false implication of the appellant/accused in the instant case. The statement of complainant P.W. 3 Fahmida Begum finds full corroboration from MLR submitted by P.W. 1 Dr. Tufail Ahmad, Medical Officer. The injury sustained by her when she was pushed by the appellant/accused and resultantly she fell down on the ground was observed by the said medical officer who stated the injury to be about one week old. There is no crossexamination on P.W. 1 to suggest that the said injury was self-fabricated. In the absence of any motive for false implication as well as due corroboration of the statement of complainant by P.W. 4 and P.W. 1.1 have come to the conclusion that the prosecution has established its case against the appellant/accused beyond any reasonable doubt. 6. Consequently for the reasons stated above, I maintain conviction and sentences of the appellant as awarded to him by the learned trial court vide impugned judgment dated 5.6.1996 and dismiss his appeal. He is present on bail, he shall be taken into custody to serve out the remaining sentences. The benefit of section 382-B Cr. P.C. extended to him by the trial court shall remain intact. Both the sentences awarded to him shall also remain concurrent as directed by the learned trial court. (K.A.B.) Appeal dismissed.
PLJ 1997 FSC 126 PLJ 1997 FSC 126 [Appellate Jurisdiction] Present: sardr muhammad dogar, ACJ. MUHAMMAD SIDDIQUE and another-Appellants versus STATE-Respondent Crl. Appeal No. 306/L of 1995, accepted on 22.4.1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 16 & 10(2)-Zina--Offence of-Conviction for-Challenge to-Contention that since marriage had been dissolved by way of Mubarat, no notice was needed to he given, either to Chairman Union Council or even to Mst. Z through Chairman Union Council-Accordingly marriage stood dissolved for all intents and purpose and Mst. Z was free to enter into marriage with any one after completion of period of Iddat-Talaq was given to by complainant to Mst. Z through Punchayat Agreement was in writing and according to that agreement custody of six children was handed over to complainant who pronounced talaq thrice at a stretch-Pronouncment of talaq and execution of talaqnama was witnessed by two persons who appeared as witnesses and verified that fact-Appellants in their statements u/s 342 Cr. P.C. had stated that they had married on completion of Iddat, period after talaq-There appears to be considerable force in the arguments of learned council for appellants that three talaqs given by complainant at a stretch had fully and clearly dissolved marriage between complainant and Mst. Z from the same day and that, even, if, complainant having given notice to Chairman Union Council had withdrawn same before expiry of 90 days that did not alter legal position of marriage having been dissolved-Appellants acquitted. [Pp. 128 & 129] A, B & C PLJ 1987 Cr. C Lahore 331 ref. Mr. Abdul Aziz, Advocate for Appellants. Mr. Masood Alamgir Qazi, Assistant A.G. for State. Date of hearing: 22.4.1997. judgment Muhammad Siddique 34 and Mst. Zohran were tried by Sessions Judge Okara under sections 16 and 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in case F.I.R. Ex. PA, No. 24/91 registered at Police Station Cantt : Okara on 25.2.1991 at 5.30 P.M. by Riaz Ahmad S.I.P.W. 7 on the statement of Muhammad Sharif, P.W. 1. Learned trial Judge vide judgment dated 1.11.1995 convicted both of them under section 10(2) of the said Ordinance and sentenced each of them to undergo R.I. for five years and to suffer fifteen stripes each. Muhammad Siddique was also held guilty under section 16 of the said Ordinance, convicted accordingly and sentenced to undergo R.I for five years and to suffer fifteen stripes. Sentences of imprisonment awarded to Muhammad Siddique were ordered to run concurrently. 2. The prosecution case at the trial, was, that the complainant had married Mst. Zohran 23/24 years prior to the registration of the case. Some time before the occurrence, Muhammad Siddique started visiting the complainant. He developed illicit relations with Mst. Zohran and consequently abducted her for the purposes of committing zina. P.Ws. Muhammad Hanif and Zulfiqar had seen them i.e. the appellants boarding a bus and had informed Sharif about that. Sharif had requested Siddique to return his wife, he had replied that Mst. Zohran was not prepared to live with him i.e. complainant., The complainant added that Mst. Zohran and Siddique started living together and as a result of the zina, Mst. Zohran gave Jbirth to a son. 3. The appellants denied the prosecution case and took up the plea that Muhammad Sharif had divorced Mst. Zohran by way of Mubarat and had executed Talaqnama. 4. .According to Ex. DA the appellant had entered into marriage 24 years before 11.6.1989 and they had six children. It is recorded in Ex. DA that as quarrel takes place amongst them often, they had decided to dissolve the marriage through punchayat and that as a result of the agreement Mst. Zohran had given the custody of all the children to Muhammad Sharif and Muhammad Sharif had divorced her. According to Ex. DA he had pronounced the divorce thrice. Ex. DA apart from bearing thumb impression of Muhammad Sharif also bears the signature of Muhammad Amir and Mukhtar Ahmad, whose names had particulars are recorded as witnesses. The appellants had examined both of them in defence as D.W. 1 and D.W. 2 both of them had verified and certified the contents of Ex. D.A. . 5. The complainant challenged the plea of dissolution. He produced evidence to show that the notice of Talaq given by him through Chairman Union Council was withdrawn by him on 15.8.1989 (the notice had been given on 1.7.1989). Relaying on the evidence of withdrawal of notice it was argued on behalf of the prosecution that since the talaq given by the complainant to Mst. Zohran had been withdrawn by Muhammad Sharif within 90 days the marriage amongst Muhammad Sharif and Mst. Zohran subsisted and so any cohabition even if it was by way of marriage amongst the appellants was unlawful and amounted to zina as defined in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Learned trial Judge had accepted that argument and consequently had passed the impugned judgment. 6. Learned counsel for the appellants did not challenge the withdrawal of the notice by the complainant on 15.9.1989, nor did he challenge the fact that notice had been given by complainant through Chairman Union Council on 1.7.1989. He argued that since the marriage had been dissolved by way of Mubarat, no notice of the same was needed to be given, either to the Chairman Union Council or even to Mst. Zohran A through the Chairman Union Council. According to him the marriage stood dissolved for all intents and purposes and Mst. Zohran was free to enter into marriage with any one after completion of period of Iddat. In this regard learned counsel placed reliance on reported judgment, as, Muhammad Nawaz vs. Mst. Faiz Elahi and two others (PLD 1978 Lahore 328) Muhammad Shahbaz Ahmad vs. Sher Muhammad and another reported in PLJ 1987 Cr.C (Lahore) 331, Allah Dad vs. Mukhtar and another (1992 SCMR 1273). In the case reported at page 328 of PLD 1978 it was held that dissolution of marriage effected through khula or Mubarat were not revocable. In the case reported in PLJ 1987 Cr.C (Lahore) 331, it was observed that if marriage was dissolved and divorce deed and executed by mutual agreement it would be deemed that it was a talaq in the nature of Mubarat and that Talaq given by way of Mubarat was irrevocable from the date of its execution and that provisions of revocation contained in the Muslim Family Laws Ordinance, 1961 were inapplicable. All most, same dictum was pronounced in the judgment reported at page 1273 of 1992 SCMR. It is also observed in that judgment, that, where, there is a clash between an existing law and the Injunctions of Islam with regard to the validity of marriage, the Injunctions of Islam shall prevail for the purpose of this Ordinance (i.e. Muslim Family Laws Ordinance (VIII of 1961). 7. There is ample evidence on record in support of the plea of the appellants that talaq was given by Muhammad Sharif to Mst. Zohran through punchayat. The agreement was in writing and according to that agreement Mst. Zohran had handed over the custody of six children i.e. five daughters and a son to Muhammad Sharif and Muhammad Sharif had pronounced talaq thrice at a stretch. The pronouncement of talaq and the execution of talaqnama was witnessed by two persons who had appeared at the trial in defence and verified that fact. 8. Muhammad Sharif complainant while appearing as P.W. 1 had stated during cross-examination that he had lodged the F.I.R. on third day of the occurrence i.e. the date on which allegedly Siddique had taken away Mst. Zohran. Zulfiqar P.W. 2 had stated during cross-examination that Sharif had got the case registered after 14/15 days of the occurrence i.e. the taking away of Mst. Zohran by Muhammad Siddique. F.I.R. was registered on 25.2.1991. The Talaqnama was executed on 11.6.1989. Even if the statement of P.W. 2 is given preference the appellants were seen boarding bus together 14/15 days before 25.2.1991 which means they were seen together about eight months after the divorce deed was executed. 9. The appellants while making statements under section 342 Cr.P.C. had stated that they had married on completion oflddat, per od after talaq. This being the position there appears to be considerable force in the arguments of the learned counsel for the appellants that the deed of talaq executed on 11.6.1989 and three taldqas given by the complainant at a stretch on that day had fully and clearly dissolved marriage between the complainant and Mst. Zohran w.e/from the same day and that, even, if, .the complainant after having given noticft to the Chairman Union Council had withdrawn the same before the expiry of 90 days that did not alter the legal position of the marriage having been dissolved on 11.6.1989. That being so the appellants cannot be held liable of having committed zina, nor can Siddique be held liable for having committed offence under section 16 of the said Ordinance. This appeal is, therefore, allowed. The appellants are acquitted. The are on bail. The sureties stand discharged. (K.K.F.) Appellants acquitted.
PLJ 1997 FSC 130 PLJ 1997 FSC 130 (Appellate Jurisdiction) Present: muhammad khiyar, J. JUMA GUL and others-Appellants Versus STATE-Respondent Criminal appeals No. 61/P of 1996 and No. 62/1 of 1996, accepted on 16.4.1994. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- -S. 10(2) Zma-Offence of-Conviction for-Challenge to-Whether appellants have committed zina with consent or Mst. Z was subjected to zina-bil-jabr--Question of-For consent of Zina trial court has taken into consideration photograph in which two appellants were found in happy position, and pregnancy providing evidence of zinaPhotograph was not placed on record and was returned by trial court-It is not possible for Federal Sharia.t Court to comment on posture of two appellants in photograph-Pregnancy alone is not sufficient evidence for proof of zinabil-jabr--Held : In the presence of this type of evidence it cannot be said that prosecution has proved charge under S. 10(2) against convict appellants beyond reasonable doubtAppeals accepted. [P. 132 & 133] A & B PLD 1996 316, PLD 1985 F.S.C. 120, PLD 1984 F.S.C. 121, 1983 P.Cr. L.J Kar. 496 and 1995 S.C.M.R. 1403 rel. Mr. Assadullah Khan Chamkari and Mr, Muhammad Naseer Khan, Advocates for appellants. Mr. Akhtar Naveed, Advocate for State. Date of hearing : 20.3.1997. judgment The appellants in these two appeals have challenged their conviction and sentences awarded to them by the Sessions Judge Karak vide judgment dated 1-12-1996. 2. The appellants were tried for the offences under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance). The case initiated on the report of Mst. Zama Jana made to Muhammad AH Khan, S.H.O. Police Station Peri on 18-12-1994 at 1215 hours. She charged Juma Gul, convict-appellant committing zina biljabr resulting in pregnancy. After i - egistering the case the SHO got her medically examined by lady Dr. Sumera Khattak who vide MLR Ex-PW- 3/1 confirmed that Mst. Zama Jana was pregnant-The SHO then arrayed Mst. Zama Jama as an accused in the case and arrested her on 18-2-1994. Juma Gul was also arrested on the same day. Dr. Muhammad Ayaz examined Juma Gul and found no clue of his impotency, and gave his report Ex. PW4/1.A Photograph of both the accused was taken into Trial possession by the 1.0. vide memo Ex. PC produced by Miaz Ullah Shah. After completion of investigation accused were challaned to Court. 3. At the trial the accused denied the charge of committing offence punishable under section 10(2) of the Ordinance. To prove the charge against them prosecution produced five PWs. Muhammad Kamal (PW.l) H.C Police line Karak is the marginal witness to the recovery memo Ex-PC vide which the 1.0. took into possession one colour photograph of the two accused produced by Maiz Ullah (P.W.2) Maizullah PW.2 is the son-in-law of Mst. Zama Jana appellant who deposed about the production of photograph to the I.O. When cross-examined he stated that photo was delivered to him by Mst. Zama Jana and while delivering the Photo she told him that she had married Juma Gul. Samera Khattak lady doctor (PW.3) had examined Mst Zama Jana. According to the report Ex. PW-3/1 Mst. Zama Jana was pregnant. Muhammad Ayaz (P.W-4) examined Juma Gul and found him potent. He deposed that Juma Gul was more than 55 years old and potency beyound 55 years decreases. He proved his report Ex-PW 4/1. Muhammad Ali Khan (PW.5) conducted the investigation in the case. After the close of prosecution evidence the accused were examined under section 342 Cr. P.C. Mst. Zama Jana denied having committed zina and stated that she was subjected to zina biljabr by Juma Gul. She admitted her pregnancy as a result of zina biljabr by Juma Gul. About the photograph with Juma Gul she stated that after the death of her first husband, she developed some land dispute with her son-in-law Maiz Ullah Shah who produced the Photographs to the SHO. Juma Gul in his statement deposed that he is married person of 60 years of age having four sons and two daughters have no urge for sex. The case against him is false. Photograph produced was forged by his enemies to defame him in collusion with Maiz Ullah Shah the son-in-law of Mst. Zama Jana to save the skins of her mother-in-law. The appellants produced no evidence in defence. 4. The trial court believed the prosecution evidence as far as the commission of zina by Mst. Zama Jana with Juma Gul is c ncerned because of her pregnancy observing that in such like situation the burden was on her to prove that she was subjected to zina biljabr. The Court was of the view that in the presence of many children of Mst. Zama Jana from her previous husband, she could not be subjected to Zina bit Jabr and that she was a consenting party. Her statement as co-accused was corroborated by the photograph depicting the two in a veiy happy position. The photo produced by Maiz Ullah Khan was not forged. The Court, therefore, concluded that prosecution had proved the charge of zina with consent. Accordingly the two appellants were convicted under section 10(2) of the Ordinance and sentenced to seven years R.I. and twenty stripes each. Mst. Zama Jana was given benefit of section 382-B Cr.P.C. 5. The convict-appellants have now challenged their conviction and sentences in these two appeals. 6. Asadullah Khan Advocate for Juma Gul appellant contended that except the statement of co-accused Mst. Zama Jana that she was subjected to zina-bil-jabr there is no other evidence against him and that statement of coaccused has no evidentiary value unless corroborated by convicting evidence. It is contended that photograph furnishes no corroboration, nor it is exhibited and produced in evidence. If it was produced the Court should not have returned it. In support of his contention reliance was placed on the following reported cases. 1. PLD 1983 F.S.C. 183. 2. P.Cr.L.J. 1983, 496 Kar. 3. P.Cr.L.J. 1983, 550 Kar. 7. Muhammad Nasir Khan Advocate for Mst, Zama Jana appellant argued that transposition of Zama Jana as an accused by the I.O. is illegal and in any case her consent to commit zina is not established as the photograph made basis to prove consent is not placed on record. The evidence of pregnancy alone is not sufficient to convict a woman for zina especially when she claims the pregnancy to have been caused by zina-biljabr. Reliance was placed on the case of Mst. Rani etc. vs. The State PLD 1996 Kar. 316. 8. Mr. Navid Akhtar Advocate for the State in reply, argued that Mst. Zama Jana's consent is,proved as she did not complain of zina-bil-jabr to anybody, though she became pregnant. The learned counsel conceded the legal position that statement of co-accused has no evidentiaiy value without corroboration. 9. I have heard the learned counsel for the parties and have also perused the evidence on record. The point is whether appellants have committed zina with consent or Mst. Zama. Jana was subjected to zina bil jabr. For consent the trial Court has taken into consideration the photograph in which the two appellants were found in happy position, and pregnancy providing evidence of zina. The photo was produced to the Investigating Officer by Miazullah (PW-2) son-in-law of Mst. Zama Jana. This photograph was not placed on record and was returned by the Court. It is therefore not possible for this court to comment on tip posture of the two appellants in the photograph. The pregnancy alone is not sufficient evidence for proof of zinabil-jabr. The Division Bench of Karachi High Court in Mst. Rani's case (PLD 1996 Kar. 316) held : "Prosecution in order to get a woman convicted for zina has to prove on record by positive and independent evidence that she had, actually and in fact, committed Zina with her own free will and consent with another man to whom she was not lawfully married-proof of pregnancy or some form of medical testimony/report by itself would be of no consequence as the same would at best only serve to be corroborative in nature". 10. The High Court dissented from Mst. Mina vs. The State PLD 1983 F.S.C. 183 in which pregnancy alone was accepted as an evidence to punish the girl under section 10 of the Ordinance. Reference in the case is , also made to Mst. Safia Bibi us. The State P.L.D. 1985 F.S.C. 120 wherein dealing with the position of a female accused, the Court came to the conclusion that she could not be convicted for zina on the plea of pregnancy as a result of commission of offence of rape on her. Still another case cited is Mst Siami us. The State PLD 1984 F.S.C. 121, wherein it is held that mere ' pregnancy/abortion or birth of an illegitimate child by an umarried girl/widow or married woman whose husband had no access to her during the relevant period was not sufficient for awarding punishment under section 10 of the Zina Ordinance. Respectfully following the ruling of D.B. of Karachi High Court that pregnancy by itself is not sufficient evidence to prove zina biljabr, I am of the view that Mst. Zama Jana on the basis of evidence of pregnancy alone cannot be held guilty under section 10 of the Ordinance. The statement of Mst. Zama Jana recorded under section 342 Cr.P.C. can be used as admission against its maker but it has no evidentiary - value against a co-accused. The cases reported in 1983 P.Cr.LJ. Karachi 496 1983 P.Cr.L.J. Karachi, 550 have rightly been cited by the learned counsel for Juma Gul appellant. I may also refer to a case Muhammad Sadiq vs. The State 1995 S.C.M.R. 1403 wherein it is held that no implicit reliance can be placed on the statement of a woman of easy virtue unless some other independent evidence of commission of zina by the accused with her is available on record. No such evidence is produced in this case. Mst. Zama Jana is a widow having children from her previous husband. Photograph with Juma Gul though not available on record can be taken as a proof of her loose character. The photo was produced by Maizullah Shah (P.W.2) who is the son-in-law of Mst. Zama Jana. He admitted in the cross-examination that it was delivered to him by Zama Jana disclosing that she performed nikah with Juma Gul. In the presence of this type of evidence on record it _canr not be said that prosecution has proved the charge under section 10(2) of the Ordinance against the convict appellants beyond reasonable doubt. I would, therefore, accept the two appeals, set-aside the judgment dated 1-12- 1996 of the learned Sessions Judge Karak and acquit the appellants. They shall be released forthwith if not required in any other case. (A.P.) Appeals accepted.
PLJ 1997 FSC 134 (Appellate Jurisdiction) PLJ 1997 FSC 134 (Appellate Jurisdiction) Present: muhammad khiyar and ch. ejazyousaf. JJ. STATE-Appellant, versus MUSHK-E-ALAM-Ilespondent Criminal Appeal No, 58/P of 1996, dismissed on 7.9.1996. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -Ss. 6 & 10-Zina-Allegation of-Acquittal of-Challenge to--Whether sole testimony of victim is sufficient to base conviction or acquittal-Question f-Mst. G during course of her examination has unequivocally and categorically stated that she was not subjected to zina-bil-Jabr and she lodged report out of annoyance having been slapped by accused-Superior Courts in cases of zina have attached great sanctity to statement of victim and it has been repeatedly observed by Hon'ble Supreme Court as well as by Federal Shariat Court that in such like cases sole testimony of victim is sufficient to base conviction provided same is corroborated by other convincing evidenceHeld : Where victim herself is not supporting prosecution or her statement is not confidence inspiring or lacking in bonafides, conviction of accused would be rare possibilityAppeal dismissed in limine. [Pp. 137, 138 & 139 ] A, B, C, D & E 1988 SCMR 1772, NLR 1984 SD 463, PLJ 1984 FSC 121 and 1997 SCMR 290. Mr. Akhtar Naveed, Advoeate for Appellant. Date of hearing-.3.3.1997. judgment Ch. Ejaz Yousaf, J.-This appeal calls in question judgement dated 7.9.1996 passed by the Additional Sessions Judge, Lakki, whereby the respondent/accused Mushk-e-Alam son of Khan was acquitted from the charge under section 6/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 2. The facts, in brief, are that on 12.12. 1994 at about 1600 hours a complaint/report was lodged by one Mst. Gula Mira with the SHO P.S. Pezu, wherein it was stated that about a year back she was married to one stated in the complaint that three days prior to the day of occurrence her husband, in order to do labour left for Punjab. It was alleged in th(- complaint that the following night when she was sleeping in her house with other inmates, at about 2100 hours her father-in-law i.e. the presen accused/respondent came to .her bed and lay on her. On her raising hue anc cry her mother-in-law Mst. Mulalai and other minor children were attracted but the accused threatened them to remain silent or otherwise, would fact dire consequences. It was also stated in the complaint by Mst. Gula Mira that the accused thereafter took her to an adjacent room, which was being used as a kitchen and subjected her to zina-btt-jabr. It was further stated therein that on the following morning she was taken to her parents' house by the accused, whereafter, she narrated the entire story to her parents and consequently the report was lodged. 3. After completion of investigation the accused was challaned to face the trial. At trial, prosecution examined seven witnesses. P.W. 1 Dr. Ghulam Nabi who had conducted medical examination of accused Mushk-e- Alam was of the opinion that the accused was capable of doing sexual intercourse. P.W. 2 Muhammad Akbar Khan, affirmed on oath that he took into possession two bottles sent by the lady doctor Farhat Shafi containing vaginal swabs and a shalwar, belonging to the complainant. He also took into possession one shalwar belonging to the accused, through a separate recovery memo. Mst. Gula Mira was examined by the prosecution as P.W. 3. She narrated the same story as given by her in her report. She, however, deposed that one Mst. Shamsher Gula, daughter of the present accused was married to her brother, namely, Hidayatullah. She stated that her report was initially reduced into writing by the SHO in the shape of Murasala Exh. PA/1, which was subsequently sent to P.S. Pezu, for registration of the case. She deposed that the site plan was also prepared at her instance by the I.O. However, during cross-examination she disclosed that before leaving for Punjab her husband cohabited with her. She admitted that her brother Hidayatullah and her father-in-law, the present accused, had strained relations and the report in question was lodged by her at the instance and direction of her father and brother. It would be worthwhile to mention here that during the course of cross-examination she categorically denied the commission of sexual intercourse with her, by the accused. On the contrary she disclosed that in fact she was slapped by the accused on her face due to which she became annoyed and this fact ultimately led her in lodging the eport. She at the equest of Special Public Prosecutor was, however, declared hostile and was permitted to be cross-examined, but nothing substantial was possible to be extracted. Mir Abbas Khan was examined as P.W.4. He is father of the complainant. He was also marginal witness of recoveries. He corroborated statement of the complainant. Hidayatullah SHO, P.S. Pezu was examined as P.W.5. He deposed that on 12.12.1994 at about ifinn v alongwith her father reported the matter to him which was accordingly reduced into writing and was subsequently sent to P.S. Pezue for registration of the case in the shape of Murasala. He disclosed that investigation of the case was carried out by him and he also received reports from the Chemical Examiner regarding samples duly taken by the lady doctor etc. He tendered in Court the Chemical Examiner's report Exh. PW.1/2. Jamaid Khan P.W, 6 at the relevant'time was posted as Muharrir at P.S. Pezu and on receipt of Murasala incorporated the same into FIR Exh. PA/1. Dr. Farhat Ashraf was examined as P.W.7. She deposed that complainant was examined by her. She stated that a small abrasion on forehead of the complainant in 1/4" area was noticed by her, however no stain on complainant's external genitalia was found. She disclosed in her report that hymen was patulous with old tears. She further deposed that two vaginal swabs were taken by her for the purpose of chemical examination. - She disclosed that though there were some stains on the clothes, but the same may be of tea or any other kind of syrup. 4. After the prosecution evidence was closed the accused was examined under section 342 Cr.P.C. wherein he denied the accusation and pleaded innocence. He, however, stated that neither he would lead his defence nor would like to appear as his own witness in terms of section 340(2) Cr.P.C. 5. On conclusion of trial, the learned trial Court acquitted the accused from the charge primarily, on the ground that since the complainant^ herself has stated that she was not subjected to zina-bil-jabr, therefore, rest of the evidence which was corroboratory in nature was not sufficient to warrant conviction of the accused. 6. We have heard learned counsel for the State Mr. Akhtar Naveed, Advocate who appeared on behalf of the Advocate General, NWFP. He submitted that judgment of the learned trial Court suffers from mis-reading and non-reading of material evidence. He argued that the learned trial court was not justified in acquitting the accused from the charge, in view of the fact that sufficient evidence was available on record to connect him with commission of the offence. He, however, while confronted with this categoric admission made by the complainant that she was not subjected to zina-bil-jabr candidly conceded, that she in fact had made such statement in Court. Learned counsel for the State, however, pleaded that in case her statement was not believed or discarded by the trial Court then too, other evidence in . the shape of her father's statement as well as doctor/lady doctor and Chemical Examiner's reports was also available on record which was sufficient to establish charge against the accused. He argued that the learned trial Court in the circumstances was under legal obligation to convict the accused. 1. We have given our anxious considerations to the above contentions and have also perused the relevant record with the help of learned State counsel. It is an admitted fact that, Mst. Gula Mira during the course of her cross-examination lias unequivocally and categorically stated that she was not subjected to zina-bil-jabr and that she lodged the report out of annoyance having been slapped by the accused. It would be advantageous to reproduced herein below relevant portion of her statement :-- "XX ... It is correct that the house of my father-in-law has no electricity connection and it was complete dark. It is correct that my husband before going to Punjab for labour had also cohabited with me. It is further correct that my brother Hidayatullah and my father-in-law have strained relations. I had reported the matter as per the direction of my father and brother Hidayatullah. It is correct that the accused has not committed sexual intercourse with me. Only he slapped me on my face due to which I become a strange." (the word "a strange" in fact appears on record but we understand that the same may be either "estranged" used in the sense of alien, stranger, distant or reserved person or the word "strained" with regard to her relations might have been used and due to typographical mistake it so appears on record). A bare perusal of the above would lead to the following inferences that- (1) It was complete dark at the relevant time. (2) Her husband before leaving for Punjab had cohabited with her. (3) Accused and Hidayatullah brother of the complainant had strained relations. (4) No sexual intercourse was committed with her by the accused. (5) The complainant was "only" slapped by the accused. It appears that by making such statement the complainant herself had tried to ensure that the prosecution is not able to prove the charge against the accused. Obviously by saying that it was complete dark at the relevant time, she has eliminated not only the possibility of any body witnessing the incident but has also made identification of the accused doubtful. Likewise, by deposing that her husband before leaving for Punjab had cohabited with her, has rendered the lady doctors' report as redundant and superfluous. 8. It may be observed here that there is no other direct evidence in this ease except the statement of complainant and rest of the evidence produced by the prosecution is purely corroboratoiy in nature. In case the statement of the complainant is excluded from consideration then we are left with only the statement of her father and the reports of lady doctor and the Chemical Examiner which as per our estimation are not sufficient to warrant conviction of the accused. It may also be observed here that in cases of zina where, generally there is hardly any witness, the statement of victim is elemental in nature and the same provides foundation to the prosecution for raising its structure thereon. Obviously in case of any damage to the foundation, the entire superstructure would crumble. 9. In the instant case the complainant herself has completely demolished the prosecution case. It would be pertinent to mention here that the superior Courts in the cases of zina have attached great, sanctity to the statement of the victim and it has been repeatedly observed by the Hon'ble Supreme Court as well as by this Court, that in such like cases sole testimony of victim is sufficient to base conviction provided the same is corroborated by other convincing evidence. Reference in this behalf may be made to the following reported judgements : (i) Abdul Hamecd uk The State (1988 SCMR 1772). (ii) Muhammad and another us. The State (NLR 1984 SD 463 Shariat Appellate Bench of Supreme Court). (iii) Sulemanvs. the State (PLJ 1984 FSC 121). Now by conversely applying the above quoted principal it can be safely concluded that in those cases where the victim herself is not supporting the prosecution or her statement is not confidence inspiring of lacking in bonafides, conviction of the accused would be a rare possibility. 10. It is'also well settled that unless substantive or direct evidence is available conviction cannot be based upon any other type of evidence howsoever, convincing it may be. Reliance in this behalf may be placed upon 1991 SCMR 643 Muhammad Noor and another us. Member I, Board of Revenue, Baluchistan and others wherein the Supreme Court of Pakistan has pleased to,lay down as under :-- "The answer obviously is in the negative. We say because none of the pieces of evidence relied upon is a substantive piece of evidence and so long a substantive piece of evidence and so long a substantive or direct evidence is not available no other type of evidence, howsoever convincing it may be, can be relied upon or can form the basis of conviction." n a recent judgment delivered in the case of Qalb-e-Abbas alias Nahola vs. he State duly reported in 1997 SCMR 290, the Hon'ble Supreme Court has econfirmed the same view. 11. Further it has also come on record through the statement of 1st. Gula Mirza that her brother Hidayatullah and father-in-law i.e. the present accused had strained relations, therefore, possibility of the accused having been falsely implicated on account of personal grudge or enmity cannot be ruled out. .. 12. Even otherwise, it, is not established from record that the view taken by the learned trial Judge was perverse, arbitrary or capricious so as to call for interference by this Court. This appeal as such is dismissed in limine. (B.T.) Appeal dismissed.
PLJ 1997 FSC 139 PLJ 1997 FSC 139 (Appellate Jurisdiction) Present: sardar muhammad Do gar, ACJ. HASSAN MUHAMMAD-Appellant versus THE STATE-Respondent Criminal Appeal No. 342/L of 1995, decided on 22.4.1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -Ss. 10(3) & 16-Allegation of Zina-Conviction and sentence of appellant by Additional Sessions JudgeChallenge toWhether marriage under duress and without consent of girl can be termed as marriage and appellant could be given benefit of irregular marriage-Question of- Question of marriage being irregular or regular arises only when taking place of marriage is admittedThat being position no concession can be given to appellant that he was under any bonafide mistake that Mst. H was his regularly wedded wife-Held : No marriage had taken place between appellant and complainant-Held further : Marriage under duress and without consent of girl cannot be termed as marriage at all- Appeal dismissed. [Pp. 142 & 143] A Mr. Shawar Khilji, Advocate for appellant. Mian Abdul Qayyum Anjuin, Advocate for State. Date of hearing : 22.4.1997. judgment The appeal is directed against the judgment, dated 10.12.1995, by Additional Sessions Judge Sahiwal, whereby the learned Additional Sessions Judge had convicted Hassan Muhammad appellant under sections 10(3) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and awarded sentences as follows :-- Under section 10(3) of the Ten years R.I plus to suffer said Ordinance thirty stripes. Under section 16 of the said Five years R.I plus to pay a Ordinance fine of Rs. 10.000/- in default whereof to suffer R.I for one month and to suffer thirty stripes. Abdul Rauf, Ghafoor, Ghulam Sarwar and Mst. Safia Bibi tried alongwith the appellant were acquitted vide the same judgment. 2. F.I.R. Ex. PA was registered at the Police Station Harrappa, by Maqbool Ahmad ASI, P.W. 5 on 3.7.1992 on the statement of Mst. Bibi P.W. According to F.I.R. Mst. Safia Bibi, came to the house of the complainant on 22.6.1992, at about 8/9 A.M and took away complainant alongwith her to-their land. Abdul Rauf and Ghafoor sons of Abdul Majeed were present there. They enticed her to sit in white coloured car standing there. They also boarded the car and went to the hotel of Sarwar Bhatti near Harrappa Town. Sarwar Bhatti and Hassan Muhammad (appellant) were present there. They also boarded the car whereafter they took her to Sahiwal town whereby they obtained her thumb impressions on white papers. In the , evening they took her to a village near Burewala town. On the next day they took her to Shujabad where they booked a room in the hotel. Hassan, Sarwar Bhatti and Abdul Rauf stayed with her, each of them committed zina with her. On third day Sarwar Bhatti and Ghafoor returned. Abdul Rauf and Hassan brought her to a hotel in Sahiwal town on 3.7.1992. After lodging her in the hotel both of them went to the bazar. Finding opportunity she slipped from there and reached village on a bus and told the whole occurrence to Shulam Nabi her sister's husband. Ghulam Nabi took her to Police Station where she lodged F.I.R. 3. Muhammad Ramzan ASI P.W. 4, who had also investigated the fase, recorded statements of the P.Ws and got Mst. Husna medically ixamined on 6.7.1992. He arrested Abdul Rauf on 18.7.1992. Hassan Muhammad and Ghafoor were arrested by him on 29.7.1992, on rejection of heir petition for bail before arrest. He got all the three accused medically xamined and after receipt of result about the swabs from the office of the Chemical Examiner, he got the accused challaned through S.H.O. 4. Statements of six P.Ws were recorded at the trial. Mst. Husna Bibi complainant appeared as P.W.I after repeating the icts given by her in the F.I.R., she stated that the accused had forged a ikahnama, on the basis of her thumb impressions which had been obtained audulently and that she filed a suit for jactitation of marriage which was jcided against her by the learned Civil Judge but the case was decided in sr favour by the District and Sessions Judp-e in annp«l Tlnrm« examination she denied the suggestion that she had thumb marked a genuine nikahnama in favour of Hassan accused. She denied the suggestion that she had filed a complaint against her brother Yasin, Shah Rasool, Ghulam Rasool and Wazir Ali at Shujabad. She also denied the suggestion that she had sworn an affidavit and thumb marked the same. Ghulam Nabi P.W.2 stated that he had seen Mst. Husna being carried in a white coloured car by Ghafoor and Abdul Rauf but he could not stop them as the car went away speedily. He added that Mst. Husna returned after 8/10 days and told him the details of the occurrence. He denied the suggestion during cross-examination that he had made a false statement. 5. The police officer who had investigated the case and the doctor who had medically examined Mst. Husna were also examined at the trial. Positive report from the office of the Chemical Examiner was also tendered in evidence. 6. The appellant during statement under section 342 Cr.P.C. denied the prosecution case and stated as follows in answer to the question "why this case against you and why the PWs have deposed against you? "On 22.6.1992 I and Mst. Husna Bibi entered into a legal and Sharee wedlock with our mutual consent. The parents of Mst. Husna Bibi, demanded her hand back and asked for divorce which I refused. Due to this reason the complainant party falsely involved me and my brothers-in-law in this case. Mst. Safia-Bibi, co-accused is my real sister and Ghulam Sarwar Bhatti, co-accused is friend of Abdul- Ghafoor. They were also involved in this case. They have been declared innocent by the police after the investigation." He produced in defence certified copy of complaint under sections 365/506/34 PPC, titled Mst. Husna Bibi vs. Yasin etc., Ex. DA; certified copy of order dated 22.9.1992, Ex. DB certified copy of Part Nikah dated 22.6.1992, Ex. DC, certified copy of plaint of suit for restitution of conjugal rights, titled Hassan-Muhammad vs. Mst. Husna Bibi, Ex. DD; certified copy of written statement filed by Mst. Husna Bibi, Ex. DE, certified copy of plaint in suit for jactitation of marriage, titled Mst. Husna Bibi us. Hassan Muhammad, Ex. DF, certified copy of written statement in suit for jactitation of marriage, Ex. DG; certified copy of statement of Maulvi Noor Muhammad Nikah Khawan, in suit for jactitation of marriage, Ex. DH; certified copy of statement of Mst. Husna Bibi in suit for jactitation of marriage, Ex. DJ; certified copy of application on behalf of Hassan Muhammad for comparison of thumb impression of Mst. Husna Bibi in suit for jactitation of marriage, Ex. DK; certified copy of written reply filed by Mst. Husna Bibi, Ex. DL; certified copy of judgment dated 26.3.1994, in suit for jactitation of marriage, titled Mst. Husna Bibi vs. Hassan Muhammad, Ex. DM, certified copy of decree sheet in suit for jactitation of marriage, Ex. DN; photo copy of the affidavit of Mst. Husna Bibi dated 22.6.1992 mark 'A' and close my defence evidence. He declined to make statement on oath under section 340(2) Cr.P.C. and did not examine any witness in defence. 7. As against the prosecution case, that Mst. Husna had been enticed away and zina had been committed with her by the appellant and the two acquitted accused, the case of the appellant, is, that he had entered into marriage with Mst. Husna through mutual consent and free will and that as Mst. Husna was regularly wedded wife, question of commission of zina-biljabr with her did not arise. 8. The appellant did not deny that Mst. Husna had filed a suit for jactitation of marriage and he had tiled a suit for conjugal rights and that the suit filed by him was decreed while suit filed by Mst. Husna was dismissed. He also did not deny that the appeal filed by Mst. Husna against the judgment of Judge Family Court, was allowed by the District Judge vide judgment dated 21.9.1994. The suit filed by him stood dismissed while suit filed by Mst. Husna was decreed. 9. Learned counsel for the appellant contended that notwithstanding the fact that the suit filed by the appellant had been dismissed in appeal and the suit filed by Mst. Husna had been decreed. The fact remained that the marriage had taken place between the appellant and the complainant and as such the appellant cannot be held liable for having committed zina-bil-jabr even though the marriage was not. accepted to be a valid marriage. Learned counsel argued that even if it was an irregular marriage the appellant cannot be held liable for commission of zina becaxise he was under a bonafide impression that he was husband of Mst. Husna. 10. Learned counsel while advancing arguments, failed to take note of the fact that the learned District Judge had not held the marriage to be irregular. In fact the learned Judge in para-14 had come to the conclusion that" The material on record indicates that this nikah had been prepared under duress and the plaintiff had not given her voluntary consent to her arriage with the defendant. The learned Judge Family Court has lost sight f all these important factors, which militate against the voluntary union of the parties. The result is that the findings of the learned Judge Family Court are not sustainable and the same are set aside " It is clear that the learned District Judge came to a clear cut conclusion that no marriage had taken place between the appellant and the complainant because marriage under duress and without consent of a girl cannot be termed as a marriage at all. The question of a marriage being irregular or regular arises only when the taking place of the marriages is admitted. That being the position no concession can be given to the appellant that he was under any bonafide, mistake that Mst. Husna was his regularly wedded wife. He never denied that he had not been cohabiting with Mst. Husna. Cohabitation in such circumstances is clearly commission of zina. The fact that the complainant had been taken away from her village and had been subjected to zina also leaves no room to doubt that appellant had committed offence under section 16 of the said Ordinance. The convictions of the appellant under section 10(3) and section 16 of the said Ordinance are, therefore, not questionable. The same are maintained. However, the sentence of ten years K.I under section 10(3) of the said Ordinance is reduced to R.I for seven years, while the sentence of five years R.I under section 16 of the said Ordinance is reduced to four years R.I. The sentence of fine of Rs. 10,000/- for the same offence is reduced to Rs. 5000/- in default whereof he will suffer six months R.I. Sentence of imprisonment on both counts shall run concurrently. Benefit of section 382-B Cr.P.C. shall be given. Sentences of stripes on both counts are remitted as the same stands abolished vide Notification in the Gazette of Pakistan (Extraordinary) dated Monday 15.4.1996. 11. The appellant is on bail. He shall be caused to be arrested through non-bailable warrants and lodged in jail to imdergo the remaining sentences. (B.T.) Appeal dismissed.
PLJ 1997 FSC 143 PLJ 1997 FSC 143 (Appellate Jurisdiction) Present: dr. fida muhammad khan and abdul wahid siddiqui, JJ. GUL SAMBAR KHAN and another-Appellants versus DAMAD KHAN and another-Respondents Criminal Appeal No. 52/P of 1996 decided on 7-4-1997. (i) Confession- Confession of co-accused cannot be used as a substantive piece of evidence to make it the basis of conviction of other accused, but can be used as a corroborative piece of evidence if other substantive evidence is available on record. [P. 150] D PLD 1995 FSC ref. (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -Articles 11 and 16 read with Ss. 458/34 PPC-Zina-OrTence of~ Conviction for-Challenge to-Appellant G was already known to aggrieved family and was not muffled at the time of occurrance-No rule of prudence will confirm the opinion that he was not. identified in a dark night in light of lantern-Chain of offences took place in a natural manner although creating hardship and tyranny for victim girl who was attuned with climatic conditions of area-There is no contradiction between depositions of P.Ws and FIR-NO suggestion has heen made to substantial witnesses regarding contact and cohabition of victim girl with her wouldbe husband between her recovery and medical examination-Prosecutrix has clearly involved appellant M in her deposition-His overt act in commission of crime to the extent has been held responsible by trial court stands proved beyond any reasonable doubtHis conviction and sentence maintained-Any how appellant, G given benefit of doubt and was absolved from offence committed under Article 11 but was convicted under Article 18 read with Article 11 and sentenced to under go R.I. for 12% years instead of life imprisonment. [Pp. 148, 149, 150 & 151] A to C & E to H PLD 1995 FSC 20 re.f. Mr. Tariq Pervaiz, Advocate for Appellants. Malik Akhtar Naveed, Advocate for State. Date of hearing : 29-1-1997. judgment Abdul Waheed Siddiqui, J.--Gul Sambar Khan appellant No. 1 and Muhammad Zahir, appellant No; 2, have assailed the judgment dated 23.10.1996 by Sessions Judge/Zilla Qazi, Chitral convicting appellant No. 1 under section 458/34 PPC and sentencing him on that account to 7 years R.I. with a fine of Rs. 5000/- in default of which a further R.I. for one year, also sentencing him under Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to life imprisonment with 30 stripes and a fine of Rs. 10,000/- in default of which to undergo R.I. for 2 years and also convicting appellant No. 2 under Article 16 of the Offence of Zina (Enforcement of Hxidood) Ordinance, 1979 and sentencing him to undergo R.I. for 4 years with 15 stripes and a tine of Rs. 5000/- in default of which he has to undergo a further R.I. for 6 months. Both the appellants have been given benefit, under section ;582 (B) Cr.P.C. Two other co-accused namely Abdul Hakeem and Abdul Aziz have also been convicted u/S. 458/34 PPC and under Article 10(2) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 but they have not preferred appeal. 2. Stoiy of prosecution, in brief, is that on 29.12.1994 at 3.30 hours, first informer/complainant Damad Khan (PW-10) lodged FIR at Police Station Ayun District Chitral stating therein that while he was sleeping in his house that very night alongwith his other family members namely his wife, daughter Mst. Buzurig Bibi, daughter-in-law, and other children and the lantern was burning, he got awakened on the knocking of the door and found appellant No. 1 having entered the house after opening the door. This appellant was armed with a pistol and threatened that in case the complainant did not hand over his daughter Buzurig Bibi to him, he shall be finished. While the complainant tried to catch hold of appellant No. 1. a person with covered face entered the house, gave him beating with a lathi and he fell down. Other inmates of the house awakened, but appellant No. 1, alongwith accomplices took out Buzurig Bibi forcibly, and closed the door from outside with a chain. The complainant climbed out of the house from the window and informed his son Noor Ahmed who was in his shop in the Bazar of Kuru Ayun. As alleged in FIR, abducted lady Buzurig Bibi was not yet pubert, was betrothed with Saeednllah (PW-26). Before reaching police station, the complainant, had also informed the incident to the members of the house of Saeedullah from where Zadullah (PW-6) and Muhammad Amir went in search of the culprits. That veiy night they caught hold of appellant No. 1, brought him to the Police Station where he was arrested vide Exh. 21. Other co-accused who came to be known later on, were appellant No. 2, Barat Khan, Ajab Khan, Abdul Hakeem, Abdul Aziz, Muhammad Ali and Aman Wali who all were charged together through the same charge sheet but under different offences as per their roles in the chain of offences committed in the course of the same transaction. The abductee Buzurig Bibi i'PW-2) was recovered from the joint house of convicts Abdul Hakeem and Abdul Aziz in the village of Jingeret and these convicts have not preferred any appeal so far, the statement of abductee was recorded under section 164 Cr.P.C. by Ilaqa Qazi/Magistrate First Class on 1-1-1995 vide Ex. PW-24/17. In her statement she alleged that after abduction she was subjected to rape by four persons, but not by the appellants. 3. As the prosecution stoiy proceeds further, six accused persons were arrested within few days whereas two are still absconding and they have been declared as such. Out of the arrested accused both the appellants as well as convicted accused Abdul Hakeem. Abdul Aziz and acquitted accused Muhammad Ali gave their confessional statements under section 364 Cr.P.C. before Ilaqa Qazi Magistrate First Class in which every accused highlighted his specific role in the transaction of the chain of offences inter connected and inter-mingled. The story which was emerging from these confessional statements coupled with circumstances of the case appeared to be an elucidation of the stoiy summarily told by the victim girl in her state ment under section 164 Cr.P.C. (Exh. PW-24/17) read with FIR (Exh. PA). 4. Appellant No. 1, in his detailed statement under section 364 Cr.P.C. Exh. PW 24/1, has alleged that he used to pay money to the daughter-in-law of the complainant Damad Khan (PW-10) in lieu of a romise that Buzurig Bibi shall be betrothed with him. However it did not accomplish and she was betrothed with another person Saeedullah (PW-26) by name. On this although he remained silent, yet eveiy now and then he used to be teased, abused, harassed and sometimes beaten by Saeedullah (PW-26), his brother Zadullah (PW-6) and their relatives and friends and even women. He always complained to his brothers and relatives, but they also crushed him for 110 fault on his part. He was dishonoured to the extent that vexatious and frivolous applications were moved against him at police Station and he was called and threatened there. He made such complaints with the parents and brother of Buzurig Bibi who consoled him and informed him that it. was Saeedullah and his men who were doing it and this way they were bringing bad name to the family. Due to this mischief, they had made him to understand that Buzurig Bibi shall not be given in marriage to Saeedullah. One day daughter-in-law of complainant advised him to meet her cousin Tiaral Khan (absconding accused) at village Biwri and lie is in a position to arrange his marriage with Buzurig Bibi. So he met Barat, Khan who asked for arrangement of money and a Jeep. Consequently he arranged Rs. 20.000/- as loan from Agricultural Bank and also arranged a jeep of driver Muhammad Sarwar (PW-18) and was accompanied by appellant. No. 2. They remained travelling between the village of Ayun, Biwri and Jingeret in search of Barat whom they could finally find near Biwri. Then Barat, Khan took three pushto speaking persons from Gingeret as accomplices out, of whom two were armed with Kilashinkovs. He took his pistol with him. Then leaving jeep near High School Ayun, they abducted the giil but appellant No. 2 had ran away earlier and was not one of the abductors. Dv.e to noise and quarrel at the time of abduction, the driver of the jeep ran away as he was not taken into confidence and was kept in dark regarding the commission of offence. Barat and three other Pushto speaking accomplices took away the abductee girl forcibly through the katcha path as they were afraid they might be caught on the pacca road. Barat told appellant No. 1 to bring jeep near Sayyadabad hotel where they will reach alongwith abductee by katcha secretive paths. When he brought the jeep near the appointed place after some time, none of his accomplies was there. On the contrary he was caught hold by Zadullah (PW-6) and another person who were searching him and was beaten severely. His pistol and Rs. 15,000/- were snatched from him and he was brought to Police Station Ayun where already an FIR was lodged against him. He was arrested but was not aware as to where had gone Buzurig Bibi, Barat and three other accomplices. The story of the prosecution has proceeded further to the extent that absconding accused Barat and Ajab and convicts Abdul Aziz and Abdul n.-tkeem committed rape with the unfortunate victim girl on their way towards Jingeret. every one of them
wice, during the whole night and coming day of abduction. After reaching village Gingeret in the coming fall of night, they again molested her in the joint house of two co-accused brutal brothers namely convicts Abdul Aziz and Abdul Hakeem till she was recuuMvd from the said house by the Police. 5. We have heard both the counsel for the appellants and for State in details. The contentions of the counsel for appellants are that the impugned judgment is against law and facts and there is no tangible evidence as the occurrence took place at. mid-night and the identification of appellant No. 1 was not possible on lantern, and that it was a night of such a chilling snow-fall that the entire story of a bore-footed naked-headed victim nubile virgin of 13 years appears to be totally unnatural who was made to walk for about 5 hours during the night on snow-filled katcha zig-zag paths, pigdandis, paidal-poons and valleys of the high rising snow covered mountains covering 35 Kilometres and was molested by four barbarions at different intervals totalling at least 12 times, yet she was neither falling unconscious for getting ill; that appellant Muhammad Zahir has neither been assigned any specific role nor mens rea appears on his part; that on the same evidence some of the similarly placed accused have been acquitted; that the confessions are not only delayed but are retracted as well; that many versions of the incident are evident from the record; that appellant Gul Sambar is a person whose case fells within the parameters of mitigating circumstances; that the conviction of appellant No. 1 under Article 11-Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is not called for as the said offence is not constituted; that the positive report of the chemical examiner is due to the possibility of the cohabition by the would-be spouse of Buzurig Bibi prior to the examination in view of certain customs and folk-ways of the area; that there is conflict between the depositions of abductee Ms/. Buzurig Bibi (PW-2) and complainant Damad Khan (PW-10); that, there are contradictions among the prosecution witnesses; that no identification parade was held; that the animus boi.ween the parties is proved . from the record. Appellant's counsel has relied upon 1988 SCMR 601, PLD J985 FSC 404, PLD 19;;S FSC 12, PLD 1995 FSC 20, PLD 1995 FSC 34, PLD 1988 FSC ?>. Learned counsel for Stai.u has supported the impugned judgment and has also contended that there appears to be an active role of appellant Muhammad Zahir in the chain of offences to the extent to which he has been correctly held responsible by the trial Court and his conviction does not call for any interference. 6. So far as the contention of the counsel for appellant regarding impossibility of the identification of appellant No. 1 (Gul Sambar) by Damad Khan (PW-10), the complainant, on the light of lantern is concerned, it has its origin on the following piece of FIR (Ex. PA): "To night myself, my wife, daughter-in-law, other infant children and my daughter Mst. Buzurig Bibi were sleeping in our residential house and the lantern was burning. On the knocking of the door I awoke and found Gul Sambar Khan s/o Zarmast Khan resident of Sahan Ayun armed with pistol entering the house " The complainant has remained firm on the point of identification of appellant No. 1 in the light of lantern during cross upon him. Mst. Zarfia (PW-1) is also firm about the immediate identification of Gul Sambar (Appellant No. 1) in her deposition and to that effect is the examination-in-Chief of Mst. Buzurig Bibi (PW-2) in which she has mentioned the existence of a burning lantern and entry of appellant No. 1 as well as two muffled face persons. It is the cross by the counsel of the appellants in which she has deposed. "/\11 the offenders who entered the house were imiffled and at that time their identification was not possible." But she has repeated hat she identified the offenders in the light of lantern during cross to the counsel for convicts Abdul Hakeem and Abdul Aziz and for acquitted accused Muhammad Ali. In view of this position of the evidence, no rule of prudence - will confirm the opinion that Appellant No. 1. who was already known to the A family and was not muffled, was not identified in a dark night in the light of a lantern. This contention has no force and is repelled accordingly. 7. So far as the contention regarding the story of prosecution appearing to be unnatural is concerned, it is resolved by the following piece of deposition of the unfortunate victim Mst. Buzurig Bibi (PW-2) : "These culprits took me out of my house while dragging me. After reaching near Govt. High School Ayun, Gul Sambar went away to fetch a jeep. Barat Khan, Ajab Khan, Abdul Aziz, Abdul Hakeem, Muhammad Ali etc. caught hold of my hand and proceeded towards the main Road via Ispaghlisht. After reaching main road, they left the road and started on katcha path. Then they reached the bridge of Ginret and after crossing it they again proceeded on katcha path. It was the last quarter of the night that while proceeding forward, first of all Barat committed rape with me, then Ajab molested me, then Abdul Aziz and then Abdul Hakeem committed the same offence In the morning time they made me to reach a house of one Gujar and throughout the day they made me to remain in that house. Then in the evening while proceeding during night all the four farmers again raped me turn by turn and in that night they made me to reach Girgeret. There also they took me to a room where they molested me and then they left me in some other room with an elderly woman. At morning they again closed the room. Barat and Ajab went away some where, but Abdul Aziz and Abdul Hakeem remained committing rape with me till the police came and liberated me." It stands proved from the evidence that it was a night of snow fall and naturally a very cold and dark night. It is also a fact that at that time the victim was 13 to 14 years of age according to X-Ray Report as deposed by Dr. Saleema Hassan (PW-19), but simultaneously the same lady doctor has stated that the girl was healthy on the general standards of the area and that normally the girls of Chitral are made to many at that very age. The entire chain of offences commenced about 3:30 A.M. in the second half of the night falling on 29-12-1994 and terminated on 30-12-1994 when the abductee victim was recovered by Hawaldar Msi. Khyabanunisa (PW-14) from the jointly owned house of two brothers, Abdul Aziz and Abdul Hakeem, the convicts. According to evidence entire day of 29th December 1994 from early morning upto Asar time was spent in a house of Gujar to which effect Mst. Seyyada Bibi (PW-16) has deposed, "From today some what less than a year ago one early morning four persons including a girl came to my house and requested for tea When these guests remained sitting after having taken tea, I asked them to go, but they pretended about the ailment of the lady This way they remained upto Asar without paying heed to my demand." This part of the deposition of PW-16 is suggestive of the fact that the victim had started ailing due to the brutality to which she was subjected to from late night to early morning. Upto.Astir she was given rest in the house of a Gujar and then on way towards Gingeret she was again molested till they reached their destination. Now the girl was young, healthy and accustomed to snow-fall and very cold nights. However due to molestation, she appears to have felt indisposed and that, is why the offenders were forced to spend whole day in the house of a Gujar. At the outset many places have been named in the evidence and appear to be unnatural to have been trodden on foot during five to six hours of the late snow-fall cold night of 29th December where sun rises around 9. A.M. in late December and then few hours of trodding on the same date after Asar times. But all these places are in fact nearer in distance. From Ayun Sahan, Ispaghilisht in approximately 2 KMs. From Ispaghilisht to the bridge of Gihret the distance is about 1 KMs and then comes Bingeret Gol which is 25 KMs from Gihret bridge approximately. Consequently it terns out to be a chain of offences having taken place in a natural manner although creating hardship and tyranny for the victim girl who was attuned with the climatic conditions of the area. This contention is therefore rejected. 8. It has been argued that there is conflict between the deposition of Buzurig Bibi (PW-2), FIR and deposition of Damad Khan (PW-10) on the point that PW-2 is admitting that there is no window or roshandan in her house but her father Damad Khan has deposed that since the house was chained from outside, he climbed outside from a window existing in his house. FIR is also indicating the existence of a window from which Damad Khan climbed outside and opened the door of the house. Defence has demanded benefit of doubt on this account. We have considered this argument in view of site plan (27/2) and the architectural design of the house plan. Mst. Buzurig Bibi (PW-2) has deposed during cross by the counsel of the appellants that the house in which they were sleeping was of Chitral type, site plan (27/2) is indicating at point No. 5 a window at a hight of 8 to 9 feet and its breadth is shown to be 3 to 4 feet. The reason of keeping such a height of window is to use it as an entry and exit for guarding the cattle kept on the roof of the house. The architectural designs of Chitrali type houses are of many categories. The one which has been referred to in this case is a common feature, of such houses which have some hill or hillock at the background. In such houses cattle are kept on the middle roof ( (~^j j/^" 1 1 ) which is adjacent with the hill and are looked after from inside the house through a mall gate in the middle roof which gate is known as "Doohat" ( the Khuwar (Chitrali) language and, of necessity, is kept at a height of 7' to 12'. The cattle are covered by the upper roof ( o £- j,)- This Doohat is used in emergencies for climbing outside the house as well. It has no equivalent word in Urdu language. Some of such houses do maintain window or roshandan or both and are known as ((Jjj^sr ty? ) and ( jtf ) respectively in the Khuwar. These are kept from one to four'feet lower than the middle roof ( <-?'}/? I). Exact translation of ((£».»>' J5-?) in Urdu is j" ^~. Now it is the matter of fact that the language of the PWs under reference is Chitrali (Khuwar) and they were deposing in the said language, but the trial Court was recording the same in Urdu. Damad Khan (PW-6~> is referring to Doohat which has been translated in Urdu as ( (I j^" } only to depict some nearer word as there is no word in Urdu which can exactly depict the real meaning of Doohat. Buzurig Bibi (PW-2) seems to have been asked a question during cross about the existence of ((J,,^'^-2 > or ( 3^ > in the house^which has been correctly denied and has been exactly translated as ( (J J/J" ) and (o'^O^JJ) in the Urdu record of the case. Consequently we have come to the conclusion that there is no contradiction between the two depositions vis-a-vis FIR. This contention is, therefore, repelled. We are not left with any other alternative but to take a judicial notice of the fact that whenever depositions/statements are made in vernaculars the same are immediately translated by the courts either in English or in Urdu and recorded as such. This creates possibilities of wrong and erroneous translation. In this age of electronics, it is possible to record vernacular utterings in cassettes and make it exhibited record of the Courts in the interest of safer dispensation of justice. 9. Appellant's counsel has vehemently argued that the judicial confessions of appellants and other co-accused u/S. 364 Cr.P.C. have no value as the same stand retracted and then the confession of one accused cannot be used against other accused. Reliance has been placed on PLD 1995 FSC 20. The proposition of law which has been enunciated in the said judgment is that confession of co-accused cannot be used as a substantive piece of evidence to make it the basis of conviction of other accused, but can be used as a corroborative piece of evidence if other substantive evidence is available on record (placentium D). In the impugned judgment the retracted judicial confessions have not been used in insolation, but the same have been catutiously in the presence of substantial occular and circumstantial evidence. This argument of defence is, therefore, misconceived. 10. The positive report of Chemical Examiner has been challenged on the ground that before the medical examination the prosecutrix might have cohabited with her would-be spouse for which licence is provided by certain mores, folkways and customs of the area. This challenge has its source in the following piece of deposition of Inayatullah (PW-27), the Investigating Officer of this case. "It is a folk-way of Chitral thaiRuk^^ri can take place yeai> after the betrothel and in between tin- ^iiiluren are also iu ; a to the spouses." It has been argued that this opinion of the Investigating Officer is to be given weight in view of the rulings of this Court cited as PLD 1995 FSC 34. Reliance has also been placed on place ntium F of PLD 1988 FSC 3 which reads. "Once it is found that the prosecutrix had indulged in sexual intercourse previously also her statement loses weight and her statement has to be looked with caution and unless corroborated in material particulars cannot be made the basis of conviction." There is no doubt that, certain customs and folkways in the valley n1 Chitral are unique. Quoting from Jamal Hyder Siddiqui's Unhi oook Publication Islamabad 1996 page 73 : The Investigating Officer might have correctly quoted one of the customs generally followed, but is simultaneously not obligatory and then it, is not applicable in the circumstances of the present case. Mst. Buzurig Bibi (PW-2), the victim girl, was recovered by lady constable Mst. Khayabanunnisa (PW-4) on 30-12-1994. She has deposed, "After recovery of the abductee she was brought alongwith her brother, who was with us at the time of house search for recovery, under my escort and led by SHO, to Chitral where she was got examined by the doctor. Then on the application of abductee's father and brother she was handed over to her father.' Lady Doctor Dr. Saleema Hasan (PW-19) has deposed on this point as under. "On 30-12-1994, S.H.O. Police Station Ayun brought abductee Mst. Buzrig Bibi for examination with the application as to whether the abductee was subjected to Zina or not. On this I examined the abductee exactly at 5:30 hours. Pelvis examination shows that she has been subjected to sexual intercourse Vaginal swabs taken and sent for analysis." On point of recovery and immediate examination of the abductee, Inayatullah (PW-27). the Investigating Officer is also intact that the recovery was effected on 30- 12-1994 from Gigeret Gol before witnesses Rasheed Ahmed and Moor Ahmed and the abductee was got examined medically from Dr. Miss Salima Hasan immediately on the same date. No suggestion has been made to all tKese substantial witnesses regarding her contact, and cohabition with hewould-be husband Saeedullah (PW-26) between her recovery and medical \ examination. The contention is repelled. 11. It has been contended vehemently that the offence under Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance is not constituted against appellant Gul Sambar in view of the fact that component part of abduction in the said Article is not found. Reliance has been placed on PLD 1993 FSC-12, 1988 SCMR 601 and PLD 1985 FSC 404. It has been argued that it is evident from the deposition of Buzrig Bibi (PW-2) that appellant Gul Sambar took her from her house near Government High School, Ayun forcibly and then went away to bring a jeep. After that his role terminates. Consequently he had fetched the victim for about a few steps or may be a few steps further or a little bit less than an acre or so. Hence abduction is not constituted in view of the cited law. Now the cited law is that as per 1988 SCMR 601 the distance between the starting and terminating points of dragging or fetching the victim being only one acre it was held that the abduction was not established. It. was held per PLD 1993 FSC 12 that dragging for few steps would not tantamount to abduction. It was held in PLD 1985 FSC 404 that taking victim from street to close room did not amount to kidnapping or abduction. High School Ayun may be a little bit more than an acre from the house of the abductee, but she has not stated that she was taken up to the school. Nearer to school may be less than an acre. Although retracted, yet any piece of judicial confession can be used in favour of the accused in case it is corroborated by other facts and circumstances of the case. In the present case, the victim girl herself is absolving appellant Gul Sambar from aggravating circumstances in the following words of her deposition, "it is correct that accused Gul Sambar has not molested me". Appellant Gul Sambar in his judicial confession has stated, "Myself and another person dragged the girl Buzrig Bibi near the road, but before reaching the road, Barat Khan took the girl on another path which is apugdandi. On my asking he said that since noise has been made and on going towards the road up to jeep, Police shall arrest us. "Convict Abdul Hakeem has confessed under section 364 Cr.P.C., "Gul Sambar went after the jeep and disappeared. Barat Khan caught hold of the girl and we proceeded, crossed the bridge, and came on the main road." Convict Abdul Aziz has also repeated the same fact in his judicial, although retracted, confession. All this evidence has led us to the conclusion that there is a doubt that appellant Gul Sambar had dragged or fetched the prosecutrix for more than one acre. While the accomplices of appellant No. 1 were nearer to the house of complainant on apugdandi, his role terminated. Hence he is given benefit of doubt, and is absolved from the offence committed under Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentence under this Article is set aside. However an attempt to commit an offence under this Article is established for which appellant No. 1 namely Gul Sambar is convicted under Article 18 read with Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and is sentenced to undergo R.I. for 12 (twelve and half) years which shall run concurrent with sentences under other sections/articles. Offences under other sections are established and conviction and sentences under the same are not interfered with. 12. Now we turn to the plea of defence that no me.ns rea is attached with appellant Muhammad Zahir as there is no overt act transpiring on his part and hence his conviction is uncalled for. First of all the prosecutrix Mst. Buzrig Bibi (PW-2) has clearly involved this appellant in her deposition during cross. She has replied to certain suggestions made to her during cross by the counsel for appellants Gul Sambar and Muhammad Zahir, "I went on foot from my house to Sayyadabad alongwith accused Barat Khan, Ajab Khan, Abdul Aziz, Abdul Hakeem. Muhammad Zahir, Muhammad Ali Khan. Voluntarily said that these accused took me dragging while I was bore-footed, naked-headed. It is incorrect that accused Muhammad Zahir was not among these who had dragged me from my house upto Sayyadabad." Ghulam Sarwar (PW-3) has clearly mentioned in his deposition that Muhammad Zahir was accompanying and co-operating with appellant Gul Samhar in his jeep from Ayun to Darosh to Gingeret to Biwri where from absconding accused Barat Khan joined them. Then they went to Gingeret, had their meals, and alongwith other accused returned back to Ayun. This piece of evidence is creating strong circumstantial evidence about the presence of appellant Muhammad Zahir in the earlier part of the whole show and his active co-operation in preparation for the offence. Zafar Ahmed (PW- 4) has also connected this appellant with the active participation in the commission of the crime in the following words. "On the date/night of occurrence at about 1% hours there was a knocking on my house. I asked my mother to see outside. My mother returned and told me that Gul Sambar, Muhammad Ali and Muhammad Zahir were standing outside and are saying that their mother is ill and to take her to hospital vehicle is needed. I went outside and saw that the above mentioned farmers are standing out." In view of this evidence and other attending circumstances, the overt act of appellant Muhammad Zahir in the commission of the crime to the extent he has been held responsible by the trial court stands proved beyond any reasonable doubt. Consequently his conviction and sentence is maintained. Thus this appeal fails and is dismissed in the aforementioned terms. (MYFK) Orders accordingly.
PLJ 1997 FSC 154 PLJ 1997 FSC 154 (Appellate Jurisdiction) Present : ABDUL WAHEED SIDDIQUI, J. WAJID HUSSANI-Appellant versus STATE-Respondent Crl. Appeal No. 218/1/of 1996 decided on 15.5.1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 10(3)--Zma-bj7-Jabr--Offence of-Conviction tor-Challenge to~ Contention that in presence of substantial and exhibited documents of the existence of a valid Nikah, plea of appellant that he had cohabited with Mst. K as a legally married wife should not have been brushed aside so easily by trial court-It should have given an abundant chance to appellant to produce his witnesses of defence to prove documents exhibited by him in defence-Appellant's plea through out has been that he had not abducted Mst. K-She had gone with him with her own free will and had entered into a valid marriage with him-Held : In view of circumstances of case and appreciation of evidence, case remanded back to trial court to try case de nouo from date on which prosecution had closed its side-Case remanded. [Pp. 155 & 159] A, B & C Ch. Abdul Rashid Gondal, Advocate for Appellant. Mr. Arshad Alt, Advocate for State. Date of hearing : 15.5.1997. judgment This Criminal appeal assails the impugned judgment dated 27-11-1996 delivered by the Court of Additional Sessions, Judge Jhelum wherein the appellant is convicted under Article 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo 7 years R.I. and to pay a fine of Rs. 10,000/- or in default thereof one year R.I. and whipping numbering 30 stripes. The appellant has also been convicted by the same judgment under Article 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to R.I. for 7 years, to pay fine of Rs. 10,000/- or in default further R.I. for one year and whipping numbering 30 stripes. Both the sentences to run concurrently. By the same judgment three other co-accused have been acquitted. 2. Story of prosecution in brief is that one Muhammad Lateef (PW-6) filed a written complaint (Ex. PA) on 10-1-1993 before Incharge Police Chowki Khewra which became locus standi for FIR (Ex. PA/1) dated 10-1-1993 at Police Station Pind Dadan Khan. The allegation made therein was that the complainant above named was residing at Khewra Ward No. 15 alongwith his five sons and one daughter Mst. Kausar Parveen (PW-5) aged 14/15 years since about 8/9 years in a rented house. The girl was student of class VIII at Girls School Khewra. One Wajid Hussain (Appellant was on visiting terms with them as he was living in a house adjacent with their house. Due to suspicion, he had prohibited the appellant to come to his house. One day earlier to the complaint Mft. Kausar Parveen did not return from her school and on enquiry i: transpired that she had not, gone to the school and Nazar Muhammad (PW-7> intimated the complainant that he had seen appellant alongwith his missing daughter and three other acquitted co-accused in a car proceeding towards Pind Da dan Khan. The complaint was about abduction of Ms'. Kausar Parveen aged 14/15 years with an intention to commit zinc; with her. 3. Appellant and "> others were arrested, challaned and charged. All the accused did not plead guilty Prosecution examined 9 PWs. accused gave their statements under Mjclion 342 Ci.P.C., and none of them examined himself on oath under section ;340(2i Cr.P.C. However appellant produced defence evidence in the form of documents which stand exhibited as Ex. DB, Ex. DC, Ex. DD, Ex. DE, photo copy of complaint under section 107/150/506/500/501/;M titled as Kausar Parveen versus Abdul Lateef & others Mark-A. photo copy of divorce deed by appellant in the name of Kausar Parveen Mark-B. 4. The only contention of the learned counsel for appellant is that in the presence of substantial and exhibited documents of the existence of a valid Nikah, the plea of the appellant that he had cohabited with Mst. Kausar Parveen as a legally married wife should not have been brushed aside so easily by the trial court. It should have given an abundant chance to the appellant to produce his witnesses of defence to prove the documents exhibited by him in defence. He has heavily relied on plancetium Q, BB, CC, and DD of Muhammad Azam's case (PLD 1984 SC 95). The learned counsel for State has in a straight forward manner given his consent that in the presence of the principles enunciated in the above-mentioned judgment of the apex court, he had nothing to contend except to agree that this was a fit case for remand back for providing an ample chance to the appellant to prove the exhibited documents through witnesses of defence. 5. I have pondered about the mutually agreed position of law while considering the facts of the case in hand. I find that the appellant's plea throughout has been that he had not abducted Mst. Kausar Parveen. She had gone with him with her own free will and had entered into a valid marriage with him. During statement under section 342 Cr.P.C. he replies to Question No. 5 as under : "The allegation is incorrect. However, Mst. Kausar Parveen accompanied me to the courts of P.D. Khan with her free consent where she instituted a private complaint titled as Kausar Parveen vs. Abdul Lateef & another U/S. 107/150 Cr.P.C. and 506/500/501/34 PPC. in the court of A.C. P.D. Khan on 9.1.93 and made her statement before the said court. None else was with us. She also contracted Nikah with me on 9.1.93 with her free consent." To question No. 7 he replied : "It is incorrect. As Mst. Kausar Parveen was my legally wedded wife as such I performed conjugal rights." To question No. 10 he replied : "It is incorrect. In fact Mst. Kausar Parveen was major at the time of her Nikah with me." To question No. 12 he replied : "Mst. Kausar Parveen contracted marriage with me with her free consent and against the wishes of her father. Due to this annoyance the father of Mst. Kausar Parveen got registered this false case against me and others." In his defence he produced the documents as mentioned in para No. 3 of this judgment. Earlier to that Muhammad Munir (PW-8), Investigating Officer, had exhibited two more documents, Ex. PD/1 and PD/2 while deposing in the following words : "After due investigation I found Shahid Hussain and Tahir Jahangir innocent kept their names in column No. 2 of the challan leaving them at the mercy of court and challaned Wajid Hussain accused. Accused Wajid Hussain produced before me copy of Nikahnamas Ex. PD/1 and PD/2 which I secured into possession vide recovery memo. Ex. PD mentioned above. To certain suggestion about Nikah natna he relied, "The Nikah performed by Allah Ditta Nikah Khawan whose statement was recorded by me in my zimini dated 14-1-1993. I have not recorded the statements of witnesses mentioned in Nikahnama u/S. 161 Cr.P.C. separately. It is correct that I have not given any findings regarding Nikahnama Ex. PD/1 and Ex. PD/2 if thesame is forged one." Now in the presence of this Nikahnama Ex. PD/1 PD/2 and the circumstances of non-recording of statements under section 161 Cr.P.C. of the Nikah Khawan Allah Ditta and no mention of his name in the calendar of PWs and no investigation carried about the correctness of this Nikahnama fires back upon the story of the prosecution specially when these exhibits PD/1 & PD/2 are fully corroborated by the documents exhibited in defence by the appellant. Ex. DB is an attested copy of application dated 13-5-1993 addressed to A.C city Rawalpindi and signed by both the complainant Muhammad Lateef (PW-6) and appellant praying therein that since the parties had patched up and since Ms?. Kausar Parveen daughter of complainant as well as wife ot.the appellant and was kept at Darul Aman w.e.f. 6-5-1993, she may be permitted to proceed with them to their home. On the back of application is an order dated 13-5-1993 by the authority signed by the three which includes Mst. Kausar Parveen and to the effect that she wants to go with the appellant and her father has no objection. Resultantly such permission was granted. Ex. DC is an attested copy of a bail order dated 20-3-1993 passed by the Additional Sessions Judge, Jhelum. Para Nos. 6 and 7 of the said order are relevant and are reproduced as under: 6 "Keeping in view the arguments advanced by the learned counsel for the parties and having perused the record, I am of the considered view that there is nothing on the file to suggest that the abductee was minor at the time of occurrence. Photo copy of Nikahnarna dated 9-1-93 has been produced and the original is available on the record. The case was registered on 10-1-93 meaning thereby that at the time of registration of the case, nikah has already been solemnised in between the parties. Copy of nikahnama has been produced. The complainant who is present in court has filed his affidavit duly sworn by him from which it appears that the parties have compromised and the PWs are not going to support the prosecution version." 7 "The matter requires further inquiiy. I therefore, allow bail to the petitioner in the sum of Rs. 25,000/- one surety in the like amount to the satisfaction of this Court." Ex. DD is an attested copy of an affidavit sworn in by Nazar Muhammad s/o Fazal Din Khobar (PW-7) and is to the effect that he had notseen on 9-1-1993 that Ms?. Kausar Parveen was going with the appellant and that he had not given any statement under section 161 Cr.P.C. at Police Station Pind Dadan Khan. This affidavit was filed before the court of Sessions Judge Jehlum to facilitate the grant of bail in favour of the appellant. Ex. DE is an affidavit sworn in by the complainant father of the alleged abductee filed in the same court, and for the identical purpose and to the effect that the appellant had not abducted his daughter and that police had wrongly lodged FIR. Application Mark-A is a complaint filed by Mst. Kausar Parveen before A C & Illaqa Magistrate Pind Dadan Khan and to the effect that she is adult and intends to many with her own free will but her father and brother intend to get her married with some one else without her consent. On her refusal she was beaten and an attempt to murder her was being threatened, hence the complaint under Sections 107, 150 Cr.P.C. read with 500, 501, 506/34 P.P.C. It was filed through Shafqat Hussain Choudhri, Advocate Pind Dadan Khan with an order of the authority to file the complaint as she was showing apprehension and no offence had taken place as yet. Deed of Divorce dated 2-3-1993 is Marked B as against Ms/. Kausars Parveen and is signed by her complainant father as witness No. 3. It. appear, prinia fade, tliat tliis deed became a point" of compromise generating all other affidavits and documents to facilitate the grant of bail. In the presence of these documents it was a bounden duty of the trial court to deal with this case with utmost cau> Principles enunciated at placentum BB, CO and DD cited as PLD 19S4 SO 95 are exactly applicable on such like cases which are quoted verbatim : BB "Far-reaching consequences of wrens findings of fact, on plea of marriage, either way ran well be visualized. Verdict in the affirmative not on! v gives legitimacy to conjugal intimacy and the off-spring.- but; also, binds two persons in a solemn and pious bond which, in turn in our faith, creates rights and obligations of such permanent nature that the life in this World and Hereafter also are influenced. And similarly verdict, in the negative amongst others, can have serious repercussions on (lie questions of legitimacy of conjugal contract, liberty/life of the accused, the life of the off-springs, in addition to the social complications for the future of the concerned individuals". CC "Therefore it is on account, of tiie foregoing reasons that a very delicated duty of recording, admission and appreciation of evidence falls on the two Courts of fact namely the trial Court and the Federal Shariat Court." DD "It, is thus all the more necessary for the two Courts below to make every effort to reach the mark of perfection on the questions relating to facts, regarding the plea of valid marriage. Mere surmises and casualness where cold logic should be the rule might, as would be presently demonstrated by examining the interaction of section 3 of Ordinance which gives it the overriding effect and section 5 of the Family Courts Act which gives exclusive jurisdiction to the Family Courts on questions of marriage, prove harm iiil in so tar as the wo iking of this difficult branch of judicial administration is concerned. The apprehended erosion can, however, be checked if all necessary implications are kept in view." Then need it not say that the trial Court had unfettered powers under section f>40 Cr.P.C. to call for and examine the relevant persons as court witnesses for safe dispensation of ,justice. Placentium Q of the case cited supra reads : "And as also, subject to what the Federal Sharial Court itself observed in another awe Muliuintnad Siddiqui and another vs. The. State (5). that "it is not disputed that under section 540, Cr.P.C. the Court is given unfettered powers to examine any person as a witness at any stage of any enquiry, trial or other proceedings." And it may be added that it becomes obligatory for the Court to do so when it is essential for the just decision of the case, and the same was done by the Federal Shariat Court itself in the case of Din Muhammad v. The State (Criminal Appeal No. 61/L of 1981, decided on 26-1-1982), which would be presently examined in another connection." 7. In view of these circumstances of the case and appreciation of evidence, I had ordered for remanding back the case to the trial Court to try the case de novo from the date on which prosecution had closed its side. A | short order was passed on 15-5-1997. These are the reasons for the said short order. (K.K.F.) Case remanded.
PLJ 1997 FSC 159 PLJ 1997 FSC 159 (Appellate Jurisdiction) Present: DR. FlDA MUHAMMAD KHAN, MUHAMMAD KHIYAR and abdul waheed siddiqui, JJ. MUHAMMAD KHALIL alias KACH-Appellant versus STATE-Respondent Crl. Appeal No. 79/P of 1994 decided on 29.4.1997. (i) Confession- Confession-Status of-Confession is to be read as a whole and exculpatory portion has not to be excluded from consideration unless evidence on record proves that, portion to be in-correctConfession of one accused against a co-accused is not sufficient for conviction even in Sharia. [P. 164] C (ii) Offence ot'Zina i Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- S. 5/10"Zz'77a--Case of-Conviction for- Challenge to--Contention that since no allegation of Zina-bil-Jabr were made by Mst. R in F.I.R. and there being no eye-witness of actual commission of zina of solitary statement Mst. R. under Section 342 Cr.P.C. cannot be made basis for conviction of appellant-Further contended that exculpatory statement of Mst. R cannot be taken into consideration against co-accused Mr. M without corroboration by independent evidence-It was argued that Mst. R is a woman of easy virtue whose solitary statement is not sufficient for conviction of Mr. MMst. R. in the report to police charged Mr. M for zina with consent-Her statement as an accused u/S. 342 Cr.P.C. that Mr. M committed zina-bil-jabr cannot be considered as an evidence against co-accused being an exculpatory statement finding no corroboration on record-She never complained of any threat by accused Mr. K to any body nor even to the parents-There is nothing on record to suggest that report, to police was incorrect-Under promise of marriage both must have been committing zina with consent-Statement of Mst. R that she was subjected to zina-bil-jabr seems to be an after thought plea-However, it seems more plausible that Mst. R must have consented to commission of Zina on the promise of marriage by a landlord's son- Conviction maintained-With slight modification appeals dismissed. [Pp. 162, 163 & 165] A, B, D & E Mr. Munir Khan, Advocate for Appellant. Mr. Akbar Naveed, for State. Date of hearing : 29.4.1997. judgment Muhammad Khiyar, J.--This appeal by Muhammad Khalil is directed against the judgment dated 4-10-1994 of the learned Sessions Judge, Buner at Daggar whereby he was convicted under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to three years R.I., five stripes and fine of Rs. 500/-. The facts succinctly stated are that on the complaint of Mst. Rabia, Ahmad Saeed Khan, Incharge Police Post Pacha Kalay recorded the report in the shape of Murasila Ex-PW-7/1 and sent it to P.S. Daggar for registration of the case, under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 7-12-1993 against Muhammad Khalil. What she disclosed in the complaint was that she alongwith her parents were living as tenants in the house of Muhammad Khalil who was on visiting terms with them. She developed illicit relations and shared bed with him allowing him to commit sexual intercourse which resulted in her pregnancy. The delay in reporting the matter was stated to be her shyness and ignorance of law. After registration of the case Ahmed Saeed Khan found Mst. Rabia as consenting party. He therefore arrested her as an accused alongwith Muhammad Khalil and got them examined medically. On the conclusion of investigation case file was handed over to SHO P.S. Daggar for submission of challan to Court. 3. At the commencement of trial accused were charged for offence punishable under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance (hereinafter referred to as the Ordinance). The charge was denied by them. 4. To prove the charge against the accused prosecution produced seven PWs. Palas Khan (PW-1) is the father of Mst. Pvabia while Mst. Bakht Sardara (PW-2) is her mother. The testimony furnished by them is that they were residing as tenants in the house of Muhammad Khalil. They were ejected from the house three months before the report 6f occurrence was made to the police. They started living in the house of one Haji Kharacy. There the wife of Haji Kharay told Mst. Bakht Sardara mother of Rabia that she was of bad character and so they should vacate the house. Mst. Bakht Sardara reprimanded her daughter who then disclosed that Muhammad Khalil during the period of occupation of his house committed zina-bil-jabr with her at pistol point, and despite the efforts for rapproc ement Khalil and his parents declined to accept the hand of Rabia. Lady doctor Noor Jehan (PW-3) proved her report Ex. PW-3/1. Lady doctor Gul Naz (PW-4) proved Ex. PW-4/1 certifying delivery of a baby by Rabia. Dr. Fazal W hab (PW-5) examined Khalil and found him fit for sexual intercourse. Zahoor Muhammad. Constable (PW-6) was handed over a sealed phial containing swabs taken into possession vide memo Ex. PW.6/1. He had also taken the rnurasila to P.S. Dagger for registration of the case. Ahmad Saeed Khan, SI (PW.7) recorded the report of Mst. Rabia, and impleaded her as an accused with Muhammad Khalil. 5. After the evidence of prosecution was closed, the accused were examined under section 342 Cr.P.C. 6. Mst. Rabia in her statement under section 342 Cr.P.C. when asked about illicit relationship with Muhammad Khalil and of her pregnancy and about birth of a male baby replied as under :-- "The allegations are incorrect. As a matter of fact, Muhammad Khalil co-accused who was our land lord was on visiting terms with us. One day in the absence of my parents he came to our house and committed zina-bil-jabr with me. Thereafter he promised to many me and on this pretext he has been sharing bed with me on different occasions as a result I became pregnant and ultimately a male baby was born to me in the hospital. After conceiving pregnancy when my mother came to know, I narrated the whole story to her, whereupon my partents approached the family of accused Muhammad Khalil who refused to accept my hand, therefore, I went to the police station and lodged the report but due to influence of the co-accused I was dubbed as accused." She further stated that Muhammad Khalil committed zina-bil-jabr with her with the promise to many her but subsequently resiled and defrauded her. She neither appeared as witness nor produced any evidence in defence. 7. Muhammad Khalil in his statement under section 342 Cr.P.C. deposed that he was minor and did not commit any offence of zina. He admitted that the parents of Mst. Rabia were residing in the house of his father during the day of occurrence against whom the village people made complaint. They were ejected from the house and started living in another house of a Khan with whom, they have political differences. He also did not appear as his own witness saying that, provision of section 340(2) Cr.P.C. are not applicable to that pail of the country, where he resides. No evidence in defence was produced. 8. The trial Court did not accept the plea of Mst. Rabia regarding zina-bil-ja.br. The Court opined that her pregnancy coupled with delayed report proved that she was a consenting party. Muhammad Khalil was held responsible for rape with Mst. Rabia on the basis of statement of Mst. Rabia and in view of the fact that she was residing in his house and he was capable of performing sexual intercourse. Muhammad Khalil was therefore convicted under section 7 of the Ordinance and sentenced to three years R.I., five stripes and fine of Rs. 500/- Mst. Rabia was convicted under section 10 of the Ordinance and sentenced to the same terms with benefit of section 382-B Cr.P.C. 9. Muhammad Khalil has preferred this appeal challenging his conviction and sentence while Mst. Rabia has filed no appeal. She was however released on bail by this Court. Muhammad Aslam Khaki, Advocate agreed to represent her and argue the case. 10. Mr. Muhammad Munir Khan, Advocate for the appellant contended that since no allegation of zina-bil-jabr were made by Mst. Rabia in the FIR and there being no eye witness of actual commission of zina solitary statement of Mst. Rabia under section 342 Cr.P.C. cannot be made basis for conviction of the appellant. He further contended that exculpatory statement of Mst. Rabia cannot be taken into consideration against coaccused Muhammad Khalil without corroboration by independent evidence. It was argued that. Mst. Rabia is a woman of easy virtue whose solitary statement is not. sufficient for conviction of Muhammad Khalil. Reliance was placed on the following case law :-- P.L.J. 1985 FSC So.: P.L.D. 1986 FSC 268. ; 1995 S.C.M.R. 1403; 1996 S.C.M.R. 1807. Dr. Muhammad Aslam Khaki, Advocate representing Mst. Rabia argued that in view of disadvantageous position of Mst. Rabia and her parents she might have been subjected to ?i?ia-bil-jabr, for the first time and subsequently consented to sexval intercourse. 11. Mr. Naveed Akhtar, Advocate for the State supported the impugned judgment. 12. We have heard the learned counsel for the parties at some length and have carefully perused the evidence. We would like to point out here that the issues for consideration of Full Bench whether Mst. Rabia could be transposed as an accused, whether any violation of Article 13 of the Constitution has occurred are not being discussed in this judgment for insufficient legal assistance by the counsel for the parties and the juris consults and leave the same undecided for consideration at some other proper occasion. 13. As far as the case in hand is concerned, there is ample evidence to show that Mst. Rabia with her parents was living as tenant in the house of Muhammad Khalil. She charged him for committing zina with her only when pregnancy became visible. Mst. Rabia in the report to the police charged Muhammad Khalil for zina with consent. Her statement as an accused under section 342 Cr. P.C. that Muhammad Khalil committed zinabil-jabr cannot be considered as an evidence against the co-accused being an exculpatory statement finding no corroboration on record. This statement i in contradistinction to the first report made to the police wherein she admitted having committed zina with consent. She never complained of any threat by accused Khalil to anybody nor even to the parents. There is nothing on record to suggest that report to the police was incorrect. Only inference with can be drawn is that when Mst. Rabia and her parents were residing in the house of Khalil accused as tenants he must have visited the house in the absence of her parents and under the promise of marriage they both must have been committing zina with consent. The statement of Mst. Rabia that she was subjected to zina-bil-jabr seems to be an after thought plea. If it was so she should not have waited till pregnancy was noticed, to make the report. The contention that she being tenant was in disadvantageous position is devoid of force. We ourselves have noticed her as very clever girl, unlikely to be threatened for zina-bil-jabr. The argument that Khalil was charged due to political rivalries and at the behest of his opponent in order to defame him is also not convincing. The bare assertion of political rivalries with no explanation is not sufficient to accept the defence version of false charge against Khalil. The pregnancy of Mst. Rabia is sufficient proof of the fact that she committed zina. The question is whether she should be believed that Khalil committed zina-bil-jabr with her or somebody else has done the mischief. The defence while cross-examining the prosecution witnesses has no doubt tried to show that Mst. Rabia is a girl of easy virtue and she must have been subjected to zina by somebody else or by the son of Haji Kharay in whose house they are now residing, but there is no evidence worth the name that she is a girl of easy virtue. It appears that both Khalil and Rabia have been committing sexual intercourse with consent and under the promise of marriage by Khalil. But how a landlord's son could marry a tenant's daughter. He could only satisfy his lust and sexual hunger, pleading subsequently that he was minor incapable of performing sexual intercourse. This is a peculiar case to which the case law cited by the learned counsel for the appellant is not applicable. Eveiy criminal case has its own facts and has to be decided in view of the facts involved. In Muhammad Sadiq versus The State 1995 SCMR 1403 and Muhammad Yaqoob versus the State 1995 SCMR 1897 rule laid down is that when a victim is proved to be a woman of easy virtue, her credibility is lost and no reliance can be nlaced on her testimony. In the case of Mst. Zubeda Begum versus The State PLD 1986 FSC 268 prosecutrix was proved to he a woman of had repute and doctor opined her a habitual to sexual intercourse. Mst. Safia Bibi versus The State PLJ 1985 FSC 85.is a case in which the trial Court on the evidence of pregnancy and self-exculpatory statement of the victim convicted her under section 10(2) of the Ordinance and sentenced to 3 years R.I. whipping numbering 15 stripes and a fine of Rs. 1000/- in default of payment to 6 months R.I. The male accused was however acquitted. Since this case received considerable publicity in national and international Press, Federal Shariat Court in exercise of its Revisional Jurisdiction issued notice to the State as to why judgment be not set aside and thereafter appeal was also filed on behalf of Mst. Safia Bibi. On hearing the counsel for the parties and others as arnicas curate and after perusing the evidence Federal Shariat Court held : "Appellant tliough victim of zina-bil-jabr trial Court not to hold appellant guilty of zina by consent in absence of any evidence establishing her being on intimating terms or having any sentimental attachment for co-accused. Statement of appellant, regarding her having been forced to commit adultery or some one having committed sexual intercourse with her under suspicion about her identity to be accepted and pregnancy as evidence without asking for cause of pregnancy is no evidence of culpability." About evidentiary value of confession it is held that it, is to be read as a whole and exculpatory portion has not to be excluded from consideration unless evidence on record proves that portion to be incorrect. Confession of one 'accused against co-accused is not sufficient for conviction even in sharia. 14. In all the reported cases referred to above the facts are not identical with the facts of the present case. Nevertheless the rule laid down provides guidlines for decision of cases under the Ordinance. The difficulty we faced in this case is that Mst. Rabia who made report to the police about zina with consent was made an accused and as sucli she was examined under section 342 Cr.P.C. In this statement she charged the accused for zinabil-jabr. This exculpatory statement cannot be used against co-accused Khalil hut in view of the facts involved in the case we are convinced that the two accused have committed zina with consent. The parents of Mst. Rabia have deposed that they had been residing as tenants in the house of father of Khalil which they vacated three months before the report to the police, and started living in the house of one Haji Kharay of Bhai Kalay. where on noticing Rabia's pregnancy, wife of Haji Kharay doubted her character and asked them to vacate the house. On enquiry from Rabia she told them that she became pregnant due to zina with Khalil. Khalil's family was contacted to accept Rabia as wife of Khalil hut they refused. The reason for ejectment from the house by Khalil's father could not be other than feeling of disgrace. There is nothing on record to suggest that except Khalil some one else might have committed zina with Rahia. Suggestions put to Palas Khan (PW.l) father of Mst. Rabia and Mst. Bakht Sardara (PW.2) her mother that Faraz s/o Haji Kharay indulged in zina with Rabia though denied, were preposterous in that medical examination Ex. PW.3/1 showed full term pregnancy of 36 weeks, which could be linked only with the period Rabia and her parents lived in the house of Khalil's father. Throughout this period of pregnancy Rabia kept silent. She never complained to anybody that she was subjected to zina-bil-jabr by Khalil. That shows that she was a consenting party. They both have wilfully committed sexiial intercourse without being validly married to each other and thus committed zina liable to Tazir. She was therefore rightly convicted and sentenced by the trial Court under section 10(2) of 1he Ordinance. She accepted the sentence and filed no appeal. We took notice of this and not only released her on bail, as the coconvict was on bail, but also requested Dr. Muhammmad Aslam Khaki, Advocate to assist us in the matter. His contention that Khalil accused from a landlord class had a dominating position therefore Mst. Rabia's statement that she was subjected to zina-bil-jabr should be accepted. We are not inclined to accept this hypothetical proposition. However it seems more plausible that Rabia must have consented to commission of Zina on the promise of marriage by a landlord's son. 15. Regarding the case of Khalil we find that he was convicted and sentenced under section 7 of the Ordinance. This section provides for punishment for zina or zina-bil-jabr where convict is not an adult. The word adult is defined in section 2(a) of the Ordinance as a person who has attained, being a male, the age of 18 years or being a female, the age of 16 years or has attained puberty. Dr. Fazal Wahab (PW.5) examined him and found him fit for sexual act, and certified vide Ex. PW.5/1 that he was matured and have attained puberty. If he was 10th class student when his statement under section 342 Cr.P.C. was recorded, he failed thrice and in that event he should be of the age of } 8 years or so when report was made to police. He could be awarded sentence under section 10(2) of the Ordinance but lenient view seems to have been taken by the lower court. We do not find any justification to interfere in the matter and maintain the sentence, except that of whipping which is set aside as no more legally required after promulgation of Act No. VII of 1996. The benefit of section 382-B Cr.P.C. is also extended to him. With this modification his appeal is dismissed. He should be taken into custody to serve out the remaining sentence. Similarly conviction of Mst. Rabia" is also maintained, but her sentence of imprisonment is reduced to already undergone. The sentence of whipping is set. aside as no more legally required. The sentence of fine is maintained. She undertakes to deposit, the same with the trial Court within 15 days. Thereafter her bail bonds shall stand discharged. The short order announced on 29-4-1997 is supported by this detailed judgment. (K.K.F.) Appeal dismissed.
PLJ 1997 FSC 166 PLJ 1997 FSC 166 (Appellate Jurisdiction) Present: shafi muhammadi, J. FEROZE KHAN-Appellant versus STATE-Respondent Jail Criminal Appeal No. 246/1/1995 disposed of on 15-8-1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- -S. 516-A read with Article 3 of Prohibition (E.O.H.) Order, 1979-Disposal of case property-Order of-Whether a Magistrate (other than trial court) can pass such an order-Question of-Contents of the second proviso to S. 516-A Cr.P.C. leave no doubt for any one that the words "the court" used in this proviso mean only the trial courtTherefore any function performed by anyone under the supervision and control of that court would be treated a judicial function performed under orders of that court- -If any act is done by any Magistrate under S. 516-A without any authority or order from any such trial court then such an act would neither be treated a judicial act nor such an order be treated a judicial order-Such act or order would not be covered by S. 91 of Qanun-e-Shahadat order 1984 for the purpose of treating it to be evidence under S. 2 of Qanun-e-Shahadat Order 1984. [P. 168] A Syed Afzaal Ahmed Shah, Advocate for Appellant. Salehein Mughal, Advocate for Respondent. Date of hearing : 30-6-1996. judgment After having been convicted by the learned Sessions Judge Attock vide his Judgment dated 27.9.1995, appellant Feroz Khan has assailed the impugned Judgment by filing this appeal against his conviction and sentence which includes 8 (eight) years R.I., whipping of 15 stripes and fine of Rs. 40,000/- (in default thereof R.I. for two years). However the appellant was benefitted with the provisions of Section 382-B Cr.P.C. 2. Prosecution version stated briefly in para 2 of the Judgment reflects that on 9.5.1994 at about 11.30 A.M. S.I. Sajid Mehmood (P.W.5) was present at Police Post Attock Khurd when a bus bearing No. PA-0142 Karachi appeared from Peshawar side. The bus was checked by constable Muhammad Asif (P.W.4.) He found the present appellant having a shopping bag of blackish colour in his lap. The appellant was alighted from the bus alongwith the shopping bag. The search of the bag resulted in recovery of two packets of heroin weighing two kilogram. The heroin was found wrapped in a pair of used cloth. Out of the recovered heroin a short quantity from each packet total weighing 20 grams was separated for Chemical examination. Two separate sealed parcels were prepared. The said S.I. Sajid Mehmood prepared a complaint and sent the same to the Police-Station for registration of the case which was incorporated into an F.I.R. bearing No. 435 dated 9.5.1994. After completion of usual investigation the accused was challaned in the court to face trial. 3. The learned Sessions Judge formally charged the appellant under Article 3 of Prohibition (E.O.H.) Order 1979 to which he pleaded not guilty. The prosecution produced seven witnesses in all in support of their case. The appellant was examined under Section 342 and he also opted to adduce defence evidence and to make statement under Section 340(2) Cr.P.C. On the strength of evidence the appellant was convicted and sentenced as stated earlier. Hence the present appeal. 4. After hearing the learned advocate for the appellant and the State I feel that I need not to discuss the whole evidence because in this appeal only one point is more than sufficient to dispose of this appeal and that is whether the prosecution has succeeded to prove the recoveiy of heroin left with the police after separation of the sample from that recovery. If that recovery is proved than the appellant deserves no leniency because the offence of keeping two kilo heroin is heinous in its nature and such offenders, on account of being responsible for ruining our young generation, are entitled to be awarded the maximum punishment. Regarding this recovery the I.O. of the case states in cross-examination that" : "The packets of heroin recovered from the shopping bag are not present before the court to day. Only a sample of fifteen grams is present before me which was prepared under the supervision of some Magistrate ...... " The words "some Magistrate" are of great importance which clearly show that the I.O. of the case is not fully aware of the said magistrate in whose presence the same was prepared. It appears from the record that two magistrates namely Ch. Habibullah MIC (P.W.6) and Syed Altaf Hussain Kazmi MIC (P.W.7) were examined by the prosecution out of which P.W.6 stated that 1965 grams of heroin was burnt on 25.10.1994 in his presence while P.W. 7 stated that sample of 15 gms of heroin was separated from the case property in his presence but in his cross-examination he admitted that he had not received any instruction from the Sessions/trial court for preparing the sample parcel. The application in this regard as per record of the case, was moved by the SHO on 28.6.1994 and the P.W.7 passed the following order on that application on 29.6.1994 :-- evidence of the magistrates (P.Ws 6 & 7) becatise the whole case depends upon that evidence otherwise there is nothing with the prosecution to prove the recovery of heroin left after separation of the sample. 5. The record of the case shows that ehallan in this case had been submitted on 19.5.1994. Thus moving an application on 28.6.1994 by the SHO before P.W. 7 (Syed Altaf Hussain Kazmi M.I.C.) with a prayer to cause destruction of the remaining portion of the seized heroin and the order passed by the said magistrate on 29.6.1994 could not be treated the part of investigation which had come to an end on 19.5.1994 after the submission of the ehallan. Prior to the addition of second proviso added by the Criminal Law (Clxth Amendment) Ordinance 1992 re-enacted by Act VII of 1993 in Section 516-A Cr.P.C. it was a recognised rule of practice that property recovered from the possession of a person charged with a crime used to be retained intact in court for purposes of identification untill such time as the case had been finally disposed of except where the property was subject to speedy or natural decay. In such exceptional cases the court had power to make an order for its sale or disposal. In case the property was not attracted by any exception then the court could only make an order for the custody pending the conclusion of the enquiry or trial. But such an order must not be capricious or arbitrary. It must possess the characteristics of judicial order having all the details of relevant circumstances of the case. The second proviso was inserted in Section 516-A Cr.P.C. to cover the cases pertaining to dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 19791 or any other lav; for the time being in force. In all such cases the COURT was given power, (1.) either on an application or (2) of its own motion and (3) under its supervision and control obtain and prepare such number of samples as it may deem fit for safe custody and production before it or any other court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf." I am of the view that contents of the second proviso to Section 516-A Cr.P.C. leave no doubt for any one that the words "the court" used in this proviso mean only the trial court. Therefore any function performed by anyone under the supervision and control of that court would be treated a judicial function performed under the orders of that court. If any act is done by any magistrate under Section 516-A Cr.P.C. without any authority or order from any such trial court then such an act would neither be treated a judicial act nor such an order be treated a judicial order. The reason is obvious. Such act or the order would not be covered by section 91 of the Qanun-e-Shahadat Order 1984 for the purpose of treating it to be evidence under Article 2 of the said Qanun-e-Shahadat. Same is the position in .this case. The learned Magistrates (P.Ws 6 & 7) were neither named witnesses in this case when the ehallan was submitted nor they had been authorised to perform the said function of destroying the seized heroin by the trial court of the Sessions Judge. They acted as the police wished and desired. If it had not been so, the learned Magistrate (P.W.7) would not have passed an order of two lines as reproduced in the above lines on the veiy next clay of moving the application by the SHO. Thus the learned magistrates have undoubtedly acted in this case like subordinates of the SHO or the I.O of the case which act was beyond their status. Similarly they appeared in the court, without being shown as witnesses in the challan. The learned Sessions Judge was also not expected to allow them to appear in his court unless they had any legal status of being witnesses or an application had been moved by the prosecution for calling them and the learned Sessions Judge had allowed the said application. Even if an application had been moved by the prosecution the trial court could not allow that application without determining their status as witnesses. These observations created a doubt in my mind that, the magistrates have acted as tools of the police to cover their fault, of not keeping the seized material of heroin in proper custody to provide relief to a dangerous criminal who could be punished with imprisonment of life if the prosecution had not destroyed the main piece of evidence i.e. seized heroin and had produced the same before the trial court or had got it destroyed under the supervision and control of the learned Sessions Judge. 6. Upshot of the above discussion is that the prosecution has bitterly failed to establish the recovery of alleged remaining heroin left with the I.O after separation of the sample. Therefore the only recovery which can be treated to have been proved is that small quantity which was sent to the Chemical Examiner and for that small quantity of heroin the appellant cannot be sentenced to suffer R.I. 8 years with whipping of 15 stripes and fine of 40,000/-. The appellant is in the prison from the date of his arrest i.e. 9.5.1994. Thus he has undergone the sentence which covers a period of two years and two months imprisonment approximately. In other words if the benefits of Section 382-B are also taken into consideration then the total period of imprisonment would not be less than 2 year and six months. As the minimum punishment in such cases is not less than two years besides fine therefore in my view, the sentence already suffered by the appellant would meet the ends of Justice. Accordingly the sentence of the appellant is reduced to already undergone which would include the sentence in default of payment of fine if not paid by the appellant, till date. The sentence of whipping is dropped on account the Act promulgated in this regard. 7. By a short order I had disposed of this appeal in the above terms and these are the reasons for passing the said order, 8. Before parting with this Judgment I consider it, necessary to pass the following instructions regarding recovery of those articles of accused persons which are not treated to be incriminating articles. As a practice the entiy of all such articles is made in Register No. 19. It cannot be expected that these articles are obtained by the accused persons after their release on bail or acquittal or expiry of sentence in each and every case. It, is therefore instructed that when any accused is remanded to j udicial custody by any magistrate then the concerned police-officer should hand over those articles to the Superintendent of the prison where the accused is kept on judicial remand or after conviction. In case an accused is transferred from one prison to another prison all such articles be also transferred to the said prison. These articles are required to be handed over to the accused on his release from the prison. The Investigating Officers are required to mention the details of all those articles in the F.I.R. All Magistrates and the concerned courts are required to satisfy themselves whether such articles had been mentioned in the F.I.R. or not before they grant police remand to the concerned police officer. Non-compliance of these instructions may attract the charges of corruption against the concerned officials. The copy of this Judgment is required to be sent to the I.Gs of Police and I.Gs of prisons of all the Provinces by the trial court who are required to issue instructions to their subordinates to comply with these instructions. (K.A.B.) Appeal disposed of.
PLJ 1997 FSC 170 PLJ 1997 FSC 170 (Appellate Jurisdiction) Present : NAZIR AHMAD BHATTI, C.J. AND FlDA MUHMAMMAD KHAN, J. ANARA and another-Appellants versus STATE-Respondent Criminal Appeal No. 139/1 of 1995, accepted on 12-11-1996. (i) Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (VII of 1979)-- S. 10(2)-Zma~Offence of-Conviction far-Challenge to-Two alleged eye witnesses who had seen accused at time of occurrence have not supported prosecution version and have been declared hostile-They were subjected to cross examination but nothing fruitful to prosecution had been adduced-Victim's version is although corroborated by MLR but above mentioned confusion makes it a doubtful documents-Chemical Examiner's report based on MLR also loses its sanctity-Affidavit made by complainant before Additional sessions judge and order datec? Passed by him, relied upon by appellants/accused also reveal that statement ade by her before trial court was different from aforementioned one, which was made a base for release of appellant on bail-Contents of affidavit shows that alleged occurrence took place at night in a bajra field and she could not recognize accused and that she had named appellants in FIR on account of suspicion and in fact zina was committed by some other person-Appeal accepted. [P. 173] A & B Mukhtar Ahmad Tarar, Advocate for Appellant. Saliheen Mughal, Advocate for State. Date of hearing : 12-11-1996. judgment Dr. Fida Muhammad Khan, J.--This criminal appeal filed by Anara son of All and Saifullah alias Phullu son of Nazar Muhammad, both residents of village Nian Ranjha, District Mandi Bahauddin, is directed against the judgment dated 4-7-1995 passed by the learned Sessions Judge, Mandi Bahauddin, whereby he has convicted them under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter called as the said Ordinance, and sentenced them to three years R.I. each, whipping numbering 30 stripes each and a fine of Rs. 3,000/- each or in default of payment of fine further six months R.I. each. The benefit of section 382-B Cr.P.C. has been extended to them. Criminal Revision "bearing No. 30/1 of 1995 has also been preferred against the aforementioned judgment wherein it has been prayed that the sentences awarded to the above appellants/accused may be enhanced for committing zina-bil-jabr with the petitioner. Since both the said appeal and revision arise out of one and the same judgment we are disposing of them by this single judgment. 2. Briefly stated it is the case of prosecution as recorded on 2-10- 1992 on the statement of Ms?. Razia in Ex. PA that on 30-9-1992 at evening time she Went to Bajra field for casing herself. When she entered the Bajra crop Anara and Saifullah alias Phullu also entered after her therein and forcibly putting her on the ground subjected her to zina-bil-jabr. She raised hue and cry which attracted Qadar and Azam to the spot. On seeing them the accused ran away. On return of her parents from village Bosal on 2-10- 1992 she reported the matter to police and her statement Ex. PA was recorded. The same statement was incorporated into formal FIR at P.S. Khuthiala Sheikhan. The appellants/accused were arrested on 13-10-1992. After necessaiy investigation both of them were challaned to face the trial. 3. At the trial the prosecution examined eight witnesses in all. P.W. 1 Muhammad Azam and P.W. 2 Ghulam Qadar are the alleged eye witnesses who were declared hostile. P.W. 3 is Mst. Razia She is the complainant who reiterated her statement as mentioned hereinabove. She was medically examined. P.W. 4 is Asmatuallh ASI. He recorded Ex. PA on the statement of Mst. Razia and sent the same for registration of formal FIR. He investigated the case. On 13-10-1992 he arrested the appellants/accused in this case and subsequently got them challaned through the SHO concerned. P.W. 5 is Shabbir Hussain constable. On 12-10-1992 he received a sealed phial and a sealed envelope and on 13-10-1992 he transmitted the same to the office of Chemical examiner. P.W.6 is Dr. Shafique Ahmad Medical Officer. On 13-10-1992 he medically examined both the appellants/accused and found nothing to suggest that they were incapable to do sexual intercourse. P.W. 7 is Muhammad Walayat constable. He is a formal witness. He certified that Mazhar Ali MHC who summoned vide Ex. PE for his sendee was informed to be dead. P.W.8 is Sajjad Hussain. He ntified MLR in respect of Mst. Razia having been conducted by lady Dr. Mubashra Anwar, since gone abroad, as he had worked with her at DHQ Hospital Mandi Bahauddin. Report of the Chemical Examiner Ex. PG tendered in evidence reveals that the swabs were stained with semen. 4. Both the appellants/accused made statements under section 342 Cr.P.C., wherein they denied the allegations and pleaded innocent. In eply to question No. 5 Anara appellants/accused made a statement in the following words :-- "The house of Manzoor father of Razia Bibi does not have a path directly connected with the main road from bis house. When the house of Anara and Saifullah accused are situated on the main road. Manzoor Ahmad had been demanding a path to connect his house with the main thoroughfare. On o\ir refusal I have been falsely implicated alongwith coaccused in this case. I am innocent." He declined to make a statement on oath. He produced affidavit Ex. DA furnished by Mst. Razia and order of the Court Ex. DB. The appellant/accused Saifullah also made a similar statement. 5. We have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellants submitted that the two prosecution witnesses have not supported the version of the prosecution and there is only one solitary statement of Mst. Razia complainant against the appellants/accused but she is not worthy of any credence as she herself had appeared before the learned Additional Sessions Judge at bail stage and had made a different statement than that she made at the time of trial. He also submitted that the appellants/accused had been falsely implicated in the case on account of rnalafidc and ulterior motives. Learned counsel for the complainant on the other hand contended that the complainant was a virgin girl and had no motive to falsely involve the appellants/accused by putting her honour at stake. Learned counsel for the State supported the impugned judgment. 6. In the light, of submissions made by the learned counsel for the parties we perused the entire record. It transpires that, the case of prosecution mainly rests on the statement of P.W. 3 Mat. Razia who stated that she was subjected to zina-bil-jabr by the appellants/accused on 30-9- 1992 in evening time in a Bajra field situated at a distance of one acre from her house. She reported the matter to police on 2-10-1992. The reason given by her for delay is that her father had gone to village Bosal and after iiis arrival she narrated the incident to him and reported the matter to the police. Her father Manzoor has not appeared. She was medically examined by lady Dr. Mubashra Anwar on 4-10-1992. It is not known why it took further two days to get her medically examined and that too at DHQ Hospital Mandi Bahauddin and not at Rural Health Centre Kuthiala Sheikhan. The said lady doctor who medically examined her had gone abroad therefore she could not be produced as a witness. Her signatures on the MLR were however identified by P.W. 8 Sajjad Hussain Dispenser. It is strange that the MLR Ex. PF shows her medical examination at Rural Health Centre Kuthiala Sheikhan but with over-writing on the date of her examination. P.W, 4 Asmatullah ASI who got her medically examined deposed that Mst. Razia was got medically examined on 4-10-1992 from Civil Hospital Mandi Bahauddin as the lady doctor was on leave on 2-10-1992 and she could not be examined on the same day. However P.W. 3 has admitted in cross-examination that she was medically examined on the same day. This confusion has not been clarified by the prosecution witnesses. Zulfiqar HC who had accompanied Mst. Razia to Mandi Bahauddin on a vehicle had verbally informed P.W. 4 that lady doctor was not available in the hospital at that time and they came back at 11.30 p.m. from the hospital on foot and met him at Gauhar Chowk. The said Zulfiqar HC had not been produced. The two alleged eye-witnesses namely Muhammad Azam P.W. 1 and Ghulam Qadar P.W. 2 who had seen accused at the time of occurrence have not supported the prosecution version and have been declared hostile. They were subjected to cross examination but nothing fruitful to the prosecution had been adduced. We are left with only the statement of Mst. Razia. Her version is although corroborated by MLR Ex. PF but the above mentioned confusion makes it a doubtful document. The chemical examiner's report . based on this MLR also loses its sanctity. The affidavit Ex. DA made by the complainant before the learned Additional Sessions Judge Gujrat and the order dated 12-12-1992 passed by him, relied upon by the appellants/accused also reveal that the statement made by her before the learned trial court was different from the aforementioned one, Ex. DA, which was made a base for release of the appellants/accused on bail. The contents of affidavit shows that the alleged occurrence took place at. night in a Bajra field and she could not recognise the accused and that she had named Anara and Phullu as the accused in FIR on account of suspicion and in fact zina was committed by some other person. The learned Additional Sessions Judge Gujrat observed that she is present in Court and on his question had affirmed that she had given this affidavit. These documents have further made the prosecution case highly doubtful. 7. In view of the aforementioned reasons, consequently, we extend the benefit of doubt to the appellants/accused namely Anara son of Ali and Saifullah alias Phullu son of Nazar Muhammad and allow their appeal. We set aside their conviction and sentences recorded on 4-7-1995 by the learned Sessions Judge, Mandi Bahauddin and acquit them of the charge. They are on bail. Their bail bonds stand discharged. As a consequence of acceptance of this appeal the revision for enhancement of sentences is dismissed. (K.A.B.) Appeal accepted.
PLJ 1997 FSC 174 PLJ 1997 FSC 174 (Appellate Jurisdiction) Present: SHAFI MUHAMMADI, J. Mst. CHANINI BEGUM-Appellant versus STATE-Respondent Criminal Appeal No. 25/1/96, dismissed on 7-8-1996. (i) Administration of Justice-- -If any third Class Judge or sub-ordinate court finds anything wrong on face of facts or in the light of circumstances, then said court must not hesitate to refer said case to concerned court by pointing out said mistake to court who committed mistake-In our judicial system subordinate courts are not supposed to correct mistakes of their superior courts but there is no bar upon subordinate courts to point out such things. [P. 178] C (ii) Prohibition (Enforcement of Hadd) Order, 1979 (VII of 1979)-- -Arts. 3 and 4-Heroin-Recovery of-Conviction for-Challenge to-There is nothing on record to show that weight of heroin to have been seized from appellant had been verified by witnesses by weighing same in a balance at time of recovery or by court to satisfy itself about weight of heroin if remaining seized material had been produced before trial courtCourts are not supposed merely to depend upon statements of police witnesses when Investigating Officer avoid to bring private witnesses in support of their cases-Weight of seized material has become doubtful and only weight of heroin which can be believed to have stood proved by prosecution is weight of that sample which had been sent to chemical examiner-In circumstances of case particularly in light of inquiry report court do not consider appellant to be innocent too because she appears to be serving as tool of criminals, may be under duress-Therefore appeal is dismissed but sentence is modified. [P. 179 & 180] A & B ArshadAli Ch. , Advocate for Appellant. Salehein Mughal, Advocate for State. Date of hearing : 2-7-1996. judgment By a short order dated 2.7.1996, the appeal in hand was dismissed by me with the following modifications in the sentences by taking into consideration the observations made in another Jail Cr. Appeal bearing No. 94/1/96 (Zafar Mahmood v. The State) as well the inquiry report submitted by S.S.P. Special Branch Rawalpindi in compliance of the order of this court dated 4.6.1996 besides the peculiar circumstances as would be detailed in the forthcoming paragraphs. The sentence of six years imprisonment was reduced to one year R.I,, the sentence of stripes was dropped and the sentence of fine of Rs. 10,000/- was reduced to Rs. 500/- (in default thereof 2 months S.I). The reasons for the said modifications are now being given in the coming paragraphs : 2. Facts in brief unfolded by a murasila dated 29.4.1996 prepared by Nawab Khan ASI of Police Check Post Attock Khurd are that the said ASI alongwith several other police officials including one lady constable namely Zarina Begum was on checking duty at the said check-post. On the same day at about 2015 hours a passenger vehicle bearing No. 9892 MRB reached there from Peshawar . The lady constable Mst. Zarina Begum searched the present appellant and as a result of that search 500 grams of heroin was recovered from her. Out of the recovered material 5 grams of heroin was separated for the purpose of sending the same to the Chemical Examiner, The murasila was incorporated into an FIR bearing No. 534/95 and the appellant was booked under Section 3/4 of the Prohibition (E.O.H.) Order 1979. After usual investigation challan was submitted on 3.5.1995 in the court of Judicial Magistrate Section 30, Attock where she pleaded not guilty and claimed trial. The learned Magistrate, after concluding the trial, convicted and sentenced her to suffer R.I. for six years, 10 stripes and to pay fine of Rs. 10,000/- (in default thereof one year R.I). Mr. Arshad Ali Chaudhiy, appearing for the appellant on the State expenses, drew my attention to the detailed circumstances and prayed for reduction in the sentences and Mr. Sualehin Mughal, the learned counsel representing the State also conceded to the request made by the learned counsel for the appellant. 3. I have never been inclined to show any leniency to the accused persons involved in the heroin cases but the facts narrated by the learned counsel for the appellant and conceding by the learned counsel for the State forced me to find out the actual facts of the case besides realising something fishy in the R & P' of the case. Hence I ordered on 21.4.1996 for the production of the appellant in the Court. It may not be out of place to mention here that such orders may or may not be passed by other appellate courts on account of technicalities but the Federal Shariat Court has to keep itself attached with the actual spirit of Islamic Shriah and therefore it can never tie its hands with the chains of technicalities if justice requires to take and step in the interest of justice. In compliance of the said order the appellant was produced by lady constable Abida Parveen from Adiyala Wala Jail Rawalpindi where she was brought from Central Prison Multan. Nawab Khan ASI, who is the IO of the case also attended the court on that day and one Usman Ali Khan, claiming to be Zamindar was also found present in the court. The appellant who was neither presented by any advocate in the trial couit nor was supported by any common defence witness before the trial court was, surprisingly enough, being supported by the said so-called Zamindar at the appellate stage. The said Zamindar stated that the appellant was falsely implicated in the case but he was not. in a position to answer other questions put by the court to him. In the presence of the said Zamindar the appellant stated that actual culprits were not arrested by the police and she was made the accused in that case as an scape goat. However the appellant was unable to point out the names of those actual culprits on account of some fear in her mind. It is notable that, minor innocent children of appellant had been brought in the court by the said Zamindar on that day and apparently they had to go back with the said person. These circumstances left me with no other choice but to hold secret inquiiy through Special Branch. In compliance of the order of this court S.S.P Special Branch Rawalpindi had been good enough to send the most convincing report to this court which is full of pains and sobs to expose so many faces. The last lines of the said report end with the following alarming sentence :- "She has already been encircled with male wolves" These words of the report asked me on behalf of the appellant to tell her as to where are those so called organisations of Human-Rights and where is the Ministry of Human Right to protect the preys of poverty at the cost of their chastity. After going through the report in full I saw around myself to find out the answer of the question in this Islamic State as to ( ) but there was none. I would like to reproduce few lines from the said report which read as under : "When the source of her income was cut out due to natural calamity no other source of livelihood could be arranged by her. She had a large family of seven to support, with majority of daughters in hot water, she had no other way out but to resort to bad ways of earning and arrange unconventional "male" support, she thought it more appropriate to illicit support from a notorious goonda with good financial status to help her out of her troubles consequently (she got) intimacy of one Usman Ali Khan Usmani strinckingly notorious man (who is) involved in many criminal case as per following details. (This detail mentions the case arising out of FIR No. 158/78 under Section 366/376/506/343 PPC of P.S. Khanpur Distt. Abbotabad. FIR No. 269/88 under Section 324/34 PPC P S Waris Khan Rawalpindi and FIR No. 142/90 under Section 3/4 of Prohibition (E.O.H.) Order 1979 of P S Banni Rawalpindi .) when (Usmani) became addict and was unable to live without fast living he started harbouring and patronising drug-traffickers and drug-pushers he exploited her and her daughters on the one side and on the other, intended to exploit her doubly by using her as a drug trafficker/carrier upon the assurance that he was an influential man and that law enforcing officers were on his payroll. He intended to kill two birds with one stone ....... she has fallen victim to the circumstances specially because these were well nigh beyond human control ............................ "she is a widow, she has got a large family to support single handidly ............................................................. some of her children are minor in age....her one daughter is sitting at her door involved in divorce case .................................. her another daughter is fastly reaching the age of puberty with o major ale/female to look-after, she has got no ostensible means of living, she has already been encircled with male wolves ........................................................................ " 4. The result of this painful report is before me. A time may come when her minor children after becoming majors, would take revenge from this cruel society for the miseries of their mother. But the question before me is whether these circumstances warrant me to decide the appeal on merits or to show leniency to the appellant involved in the case of heroin. So far in circumstances of any case involving violations of human-rights are concerned it is the duty of the State or those Human-Rights organisations of the Ministry established for this purpose by the Government of Prime Minister Mohtarma Benazir Bhutto for the first time in history of Pakistan to look after the innocent minors by putting their burden on those NGOs who get substantial amount from the Government for the said purpose. But for the purpose of doing justice by the courts in Pakistan, particularly by the courts dealing in the cases attracted by Shariat laws, all the courts in Pakistan are expected to kept the principles of Islamic Justice always before them at every stage i.e. the trial stage or the appellate stage, instead of following any un-Islamic principle of technicalities. If any support is required to strengthen this proposition I would like to refer the conduct of Qazi Shuraih and Hazrat All (R.A) in which a case was decided by Qazi Shuraih on the bases of "oath" but Hazrat Ali (R.A.) did not uphold the said decision. The brief summaiy of the said case was as follows. One person put a complaint before Qazi Shuraih against four persons stating therein that his father had left with them on business tour. On their return they told him that his father had died. When he asked the accused persons about the movable properties and other articles possessed by his father, they told him that his father had nothing with him at the time of his death. Qazi Shuraih called those persons. As there was no eye-witnesses in the said case, hence, the Qazi decided the case on "oath" and acquitted the accused persons. The complainant, being aggrieved by and dis-satisfied with the said decision approached Hazrat Ali (R.A.). Hazrat Ali (R.A.) called those persons and made each of them to sit at different places. He then called them one by one and recorded their statements by cross-examining them in such manners as the witnesses are usually crossed examined to find out the truth. Their statements were totally found conflicting from each other and it exposed them that they were telling lies. Ultimately they confessed their guilt that they had murdered the father of the complainant. The details of this case are mentioned in the famous book of Imam-ibne-Qayyum Al-Jozi ( ) which is known as Al-Turqul-Hikmia-fil-Siyasatul-Shriah ( ). It would not be out of place to mention another famous decision which is mentioned in different books of Ahadith of the Holy Prophet (peace be upon him). The facts of the case in brief were as follows. Two women claimed to be the mother of a child. The matter came before Holy Prophet Hazrat Baud (peace be upon him) who decided the case in favour of the woman who was elder than the other. This matter was then brought before Holy Prophet Hazrat Suleman (peace be upon him) who is the son of Hazrat Baud (P.B.U.H). It was ordered by Hazrat Suleman (P.B.U.H.) that a knife be brought so that the child be cut into two. The elder woman agreed to that proposal but the younger woman cried and prayed that the child be not, cut into two and be handed-over to the other claimant because the child belonged to her. Such admission can be used by our British originated courts to decide cases in favour of false claimants but the Islamic principles of Justice forces the courts to decide cases on the bases of realities. The motherly love of the younger woman had exposed the elder woman and her falsehood. The decision given by father (the Holy Prophet Hazrat Baud) (P.B.U.H.) was changed by his son (the Holy Prophet Hazrat Suleman (PBUH). What I want to say is that in our judicial system if any third-class Judge or sub-ordinate Court finds anything wrong on the face of facts or in the light of circumstances, then the said court must not hesitate to refer the said case to the concerned court by pointing out the said mistake to the court who committed that mistake. In our judicial system the subordinate courts are not siipposed to correct the mistake of their superior courts but there is no bar upon the subordinate courts to point out such things. 5. These were the examples of Islamic justice before my eyes which forced me to order for holding secret inquiry. After receiving the said inquiiy and going through the same in detail I am unable to disbelieve the statement of the appellant that actual culprits were let to go and this appellant was made an escape goat in the case so that no one could say that all the accused were let to go by the police. If the so-called Zamindar namely Usman could attend this appellate court alongwith the children of the appellant without being called to attend this court on the day when only the I.O. of this court had been asked to attend the court so that his conduct could be ascertained in the light of the inquiiy then it cannot be believed that the said Zamindar might not have attended the trial court during the proceedings before the court. Similarly it is un-believable in the light of the inquiiy report that the I.O of the case would be unaware of the back-ground of all those persons and the gangs who were working behind this game and were using or black mailing the appellant. All these persons could be rounded up if the I.O. of the case had so wished. It may be important to point out that when this court was passing an order for holding secret inquiiy the I.O. of the case disclosed that the people living in the area known as Ghari-Afghanan are mostly involved in smuggling of heroin and he also prayed that this fact be also ordered to be verified by the inquiiy officer who would be appointed in compliance of the order of this court. This disclosure also confirmed that the I.O. of the case was fully aWare of the people of that area. However I need not to comment upon this important factor. Another shocking factor is revealed by the seizer memo which is signed by Fateh Khan (male police official) and Ms t. Zarina Begum (female, police official). All the prosecution witnesses including the I.O. have deposed that 500 grams of heroin was recovered from the appellant but none of them have disclosed how they had come to know that weight of the heroin was 500 grams. It means if. the witnesses had stated that 5000 kilos of heroin had been recovered, the court would have believed the same without ascertaining the fact of weight. The trial court in this case has done the same thing. There is nothing on the record to show that weight of the heroin alleged to have been seized from the appellant had /V been verified by the witnesses by weighing the same in a balance at th6 time of recoveiy or by the court to satisfy itself about the weight of the heroin if the remaining seized material had been produced before the trial court. The courts are not supposed merely to depend upon the statements of police witnesses when the investigating officers avoid to bring private witnesses in support of their cases. Several I Os usually take a stand that private persons do not appear in heroin cases on account of fear of the accused persons. Mav it be true but it canno s were afraid of such ladies as in the prese " lua .^ to understand that the lady constable had bet ch of a lady in presence of male police-official memo in this case. The present Government has e&tabh&hed Vv> men Ponce Stations and there is no difficultly for the I. Os. to get, help from those police-stations to investigate the cases where lady accused are found involved in such offences. I am therefore of the view that weight of the alleged seized material has become doubtful and the only weight of heroin which can be believed to have stood proved by the prosecution is the weight of that sample which had been sent to the chemical examiner. In the circumstances of the case particularly in the light of the inquiry report I do not consider the appellant to be innocent too because she appears to be serving as tool of criminals, may be under duress. Therefore I dismissed this appeal but modified the sentences as stated in the beginning of this Judgment and these are the reasons for passing the short order on 2.7.1996 with benefit of Section 382-B Cr.P.C. 6. Before parting with this Judgement I consider it necessary to issue the following instructions to be complied with by this court as well as by the trial court when the copy of this Judgment reaches the said Court. (i) The SHO of the area of Ghari Afghan be directed to keep an open eye upon all those culprits who are using the poor ladies as their tools for their lusts as well as upon the appellant so that she be not made an escape goat by those male wolves culprits in future. (ii) The copy of this Judgment be sent by the trial court to the Human-Rights Commission of Pakistan for their information through Mrs. Asma Jehangir Advocate at Lahore . (iii) The copy of this Judgment be also sent by the trail court to the Ministiy which is dealing with the cases involving violations of the Human Rights, and (iv) Office of this Court is required to send letter of appreciation to the concerned S.S.P. who had taken pain to provide all the required informations in compliance of the order of this court by holding secret inquiry, in convincing manners. (K.A.B.) Appeal dismissed, the sentence is modifide.
PLJ 1997 FSC 181 [Appellate/Revisional Jurisdiction] PLJ 1997 FSC 181 [Appellate/Revisional Jurisdiction] Present: sardar muhammad dogar, ACJ. IJAZ HUSSAIN-Appellant versus THE STATE-Respondent Criminal Appeal No. 45/L of 1996, allowed on 15-4-1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 18 read with S. 452 PPC-Attempt to commit zma-Offence of- Conviction for-Appeal against-Neither complainant nor witnesses had identified culprit at the spot-Delay of 64 hours in reporting occurrence at police station, appears to have heen due to fact that complainant party was searching and planning to name culprit-On one hand it is claimed that complainant and witnesses had seen and identified culprit-While on the other hand complainant stated that tracker was called and he had located accused-There are material discrepancies in statement of witnesses which makes testimony of eye witness doubtful-DSP had declared accused innocent in his investigation, hut I.O. had not submitted supplementary challan after that investigation-Sub Inspector (I.O.) had also kept accused in unlawful custody for 24 hours-Accused had offered to give oath of innocence that offer was rejected by complainant party- Prosecution has not been able to prove case against appellant beyond reasonable shadows of doubt-Appeal allowed. [Pp. 185, 186 & 187] A to E Mr. Muhammad Zakoor-ul-Haq, Advocate for Appellant. Mr. Muhammad Farooq Qureshi Chishti, Advocate for Complainant. Mr. All Muhammad, Advocate for State. Date of hearing : 15-4-1997. judgment Ijaz Hussain 33, was tried by Additional Sessions Judge Khanewal, Camp at Mian Channun, in case F.I.R. No. 133 registered on 11.9.1994 under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. He was also tiied under section 452 PPC which had been added during investigation. Learned trial Judge vide judgment dated 31.1.1996 convicted him under section 18 of the said Ordinance as well as under section 452 PPC and awarded sentences as follows :-- Under section 18 of the said Four years R.I. and to suffer Ordinance ten stripes. Under section 452 PPG Four years R.I plus to pay a fine of Rs. 5000/- in default whereof to suffer R.I for three months. Sentences of imprisonment were ordered to run concurrently. Benefit of section 382-B Cr.P.C. was given. 2. Convict has filed appeal. The complainant has filed Cr. Rev. No. 21/L of 1996, wherein prayer has been made for enhancement of the sentences. As both matters have arisen from the same judgment, they are being disposed of together. 3. F.I.R. Ex. PC was registered at Police Station Chhab Klan, District Khanewal by Farzand Ali Sub-Inspector, P.W.4, on 11.9.1994 at 5.15 P.M. on the statement of Mat. Khurshid Bibi, P.W. 2. According to F.I.R., the complainant was sleeping in her house during night between 8/9-9-1994 in Chak No. 82/15-L at a distance of l]4 miles from Police Station, alongwith her children. Her husband Muhammad Aslam had gone to the fields for irrigation. A person entered the courtyard of her house at about 1.00 A.M (night). She identified him in the light of the lantern to be Muhammad Ijaz alias Kala (appellant). He placed hand on his mouth and forcibly broke the string of her shalwar, with the other hand and after removing shalwar attempted to commit zina. She registered, during struggle she removed his hand from her mouth and raised alarm which attracted her husband Muhammad Aslam and Rehmat Ullah neighbour. On seeing the P.Ws Ijaz Hussain ran away. The witnesses also identified the accused in the light of lantern. The complainant stated towards the end of the F.I.R., that as the relatives of the accused had been beseeching for compromise, she did not come earlier to lodge report. 4. Farzand Ali after registering the case visited the spot. He prepared site plan Ex. PE , recorded statements of P.Ws and took into possession lantern Ex. P/l vide memo Ex. PD. The accused was arrested by im on 17.9.1994. He got him medically examined for potency on 18.9.1994 and submitted challan to court after completion of necessary investigation. 5. Statements of four P.Ws were recorded at the trial. Mst. Khurshid Bibi while appearing as P.W.2, repeated the facts given by her in the F.I.R. During cross-examination she stated that she had five children and that her eldest son was aged 10/12 years. She gave out that her children and mother-in-law, resided in the village abadi while she resided at the Bheini, where the occurrence had taken place. She admitted that she had got recorded in her supplementary statement Ex. DA that the accused had entered her house after scaling over the wall and that her house had four walls of the height of about 5/6 feet. She stated that she had come to know about the accused from the foot prints. She added that a tracker was summoned in the morning and he had obtained the foot prints and had followed the foot prints to the Bheini of the accused. She added that the accused had ran away by scaling over the wall as the door was blotted from inside. She stated that Aslam (her husband) had unbloted the door while standing outside. According to her the door was of steel and the accused had ran away on hearing the noise of the opening of the door. According to her the lantern was lying on the southern side of her cot. She denied the suggestion that tracker was summoned as she had not identified the assailant. She denied the suggestion that two months prior to the occurrence, Mst. Shazia a maternal niece of the accused had come to the house of the accused alongwith her mother and that ear rings of Mst. Shazia were remained by some body and the accused had made allegation against her of having removed the ear rings and that she had returned the ear rings and paid a sum of Rs. 1200/- as compensation and that she had got this case registered to avenge that. 6. Rehmat Ullah while appearing as P.W.3 stated that he had reached ttie house of the complainant hearing alarm alongwith Aslam and had seen Ijaz grappling and opening string of shalwar of the complainant and that the accused had ran away on seeing them. During crossexamination he admitted that the complainant belonged to his brotherhood. He stated that when they entered the courtyard the accused was on the cot and struggling with the complainant and that when they reached near the cot he was mounting on the complainant. According to him the accused was dressed in a chaddar and vest. He stated that the accused had not run away on hearing the noise of the opening of the door. He declared that no tracker was summoned to follow the foot prints. He expressed ignorance that two months prior to the occurrence Mst. Sardaran a sister of the accused had come to their village with her minor daughter Ms^. Shazia and that her ear rings were removed and that Mst. Khurshid complainant was suspected for theft or that she was forced to return the ear rings and to pay a sum of Rs. 1200/-. According to him the lantern was lying on the western side of the cot. 7. Farzand Ali SI who had registered the case, recorded the -statements of the P.Ws, arrested the accused on 17.9.1994, got him medically examined and submitted challan after completion of necessaiy investigation appeared as P.W. 4 and gave the details of the investigation done by him. During cross-examination he admitted that the case was also investigated by Muhammad Ikram Ullah Khan DSP, Mian Channu, on the application of the accused party as they were not satisfied with his investigation. He admitted that the allegation was that he was favouring the complainant party. He admitted that the DSP had declared the accused innocent but he had not considered it necessaiy to submit supplementary challan. He denied the suggestion that he had not submitted supplementary challan as he wanted to help the complainant party. He admitted that after arrest he had produced the accused before the Ilaqa Magistrate on 19.9.1994 for remand. He conceded that he knew that he should have produced the accused before the Ilaqa Magistrate for remand on 18.9.1994. He denied the suggestion that he had kept the accused in illegal confinement. He denied the suggestion that he had got recorded the F.I.R. and got involved the accused as he wanted to help the complainant party. According to him the accused at the time of occurrence was wearing a shalwar qamees. He disclosed that this fact had been told to him by the victim. He admitted that accused had offered to give oath but the complainant party did not agree. 8. Dr. Muhammad Yousaf who had medically examined the appellant for potency appeared as P.W. 1 and verified that fact. 9. The appellant in his statement recorded under section 342 Cr.P.C. during trial denied the prosecution case and pleaded innocence. He stated as follows, in answer to the question, "why the case against you"? "This is a false case. About two months prior to this alleged occurrence, my maternal niece Mst. Shazia d/o Mst. Sardaran (my sister) had come from Kamlia to see his maternal parents. About 6/7 days after her reaching there at about evening time Mst. Shazia aged 8/9 years was playing in the street with other girls and when she came back, her pair of ear rings were missing from her ears. The matter was inquired, the little girl told us that the ear rings have been removed by Mst. Khurshid, the complainant in this case. I alongwith my brother, Altai' Hussain went to the house of complainant, Mst. Khurshid and inquired about the ear rings. He first denied about the removal of ear rings but later on when we threatened her that the matter will be reported to the police then she promised for the return of ear rings. On the next day she returned us a pair of ear rings alongwith Rs. 1200/- as compensation of this theft, subject to the condition that we will not report the matter to the police because it was a matter of honour of a woman folk and we remained strict to our promise which we did with Mst. Khurshid but she bore a grudge against me and due to this reasons she involved me in this false case in connivance with the police." He stated as follows in answer to the question, 'why the P.Ws have deposed against you? "The PWs are related inter .ic. The 1.0 in this case has conducted investigation in this case dishonestly. I had moved an application against him to the higher authorities and the investigation was conducted by DSP Mian Channu who declared me innocent in this case. The l.O had kept me in wrongful confinement." He made statement on oath under section 340(2) Cr.P.C. as D.W. 1 and took up the position that he had been involved in this case due to dispute about the ear rings and payment of Rs. 1200/- as compensation by Mst. Khurshid to his sister. He examined his brother Altaf Hussain as D.W.2, who also corroborated his statement about the removing of ear rings of Mst. Shazia by the complainant and of her having been forced to return the ear rings and a sum of Rs. 1200/- as compensation-: Altaf Hussain also stated that on their application investigation was transferred to DSP Mian Channu who had declared his brother innocent. 10. Learned counsel for the appellant after having going through the evidence criticised the impugned judgment and contended that the F.I.R in this case was lodged after a considerable delay of 64 hours, that false allegation had been levelled against the appellant in order to avenge the embracement and insult caused to the complainant for returning ear rings of the niece of the appellant and to pay a sum of Rs. 1200/- as compensation, that it is obvious from the statement of Mst. Khurshid that she had not identified the assailant and a tracker had been called and the case was got registered after conjectures and surmises, thai there are wide discrepancies between the statements of the P.Ws and that the DSP of the Ilaqa had declared the appellant innocent. Lastly learned counsel for the appellant, submits that the Sub Inspector/I.0 had been favouring the complainant party out of the way, which stands proved from the fact that he had kept the appellant in unla\rful custody for 24 hours. Learned counsel pointed out that after arresting the accused on 17.9.1994 he should have produced the accused before the Magistrate within 24 hours which fell on 18.9.1994 hut he produced him before the Magistrate on 19.9.1994. Learned counsel for the State as well as, the learned counsel for the complainant defended the judgment of the trial court and contended that the prosecution had succeeded to prove the case against the appellant beyond any reasonable shadows of doubt. 11. Complainant during cross-examination explicitly stated that a tracker had been called and he had after taking up the foot prints followed the same to the Bheini of the accused. This admission on the part of the complainant is strong indication to the fact that neither the complainant nor witnesses had identified the culprit at the spot. The delay of 64 hours in reporting the occurrence at the police station which was only at a distance of I'A miles, lends considerable support to the arguments that the delay was not due to the reason that the relatives of the appellant had been pressing for compromise but it was for the reason that the complainant party were trying to locate the assailant. Delay per se is no ground to discard the statements of the P.Ws but when it is found to have been utilized for consultations and deliberations for naming some body as accused, then it has to be given considerable weight. The delay appears to have been due to fact that the complainant party was searching and pk-.nning to name the culprit. 12. If the prosecution had named the tracker and added his name as a witness in the calendar of witnesses and had examined him at the trial and afforded opportunity to the accused (appellant) to cross-examine him, it would have been a different matter. Had, he, in that statement supported the statement made by the complainant, the prosecution case could have been placed at a higher pedestal than that the case now is. The present j position, is. that on the one hand it is claimed that the complainant and the witnesses had seen and identified the culprit. While on the other hand 3J complainant stated that tracker was called and he had located the accused. I This position makes statement of the complainant and Rehmat Ullah doubtful that they had of their own identified the accused. 13. There are material discrepancies in the statements of the witness, which makes the testimony of eye witnesses doubtful. In that, Mst. Khurshid stated that the accused had run away on hearing the noise of the pening of the door, which was made of steel while Rehmat llah stated that the accused had not run away merely hearing the noise of opening of the door and that actually they had reached near the cot and seen the accused struggling and attempted to commit zina and he had run away on seeing them. This is a very- material discrepancy. The other important discrepancy is about the dress of the culprit. Rehmat Ullah stated that the accused was wearing a chaddar and vest. In urdu the word used are " while S. I stated that the culprit was dressed in shalwar and qamees. He declared that this fact had been told to him by victim herself. There is a lot of difference in the appearance of the person who is dressed in chaddar and bunyan and a person who was wearing shalwar and qamees. There can be no compromise between the two descriptions. Such a description cannot be of the same person. It has to be granted that atleast one of the two witnesses was making a false/incorrect statement. According to Mst. Khurshid the lantern was lying on the southern side while according to Rehmat Ullah the lantern was lying on the western side of the cot. 14. There is another important factor which makes the testimony of both the witnesses doubtful. In that Mst. Khurshid stated that the accused had entered the house by scaling over the wall and ran also by scaling over the wall. If the accused had entered when she was sleeping as she claimed while lodging F.I.R and while making statement at the trial, how could he had seen the accused scaling over the wall? If her husband and Rehmat Ullah had entered the house after opening the door why should the'accused have chosen to run away by scaling over the wall which was of 5/fi height. He could have easily run away through the door which lay open at that time. There was a risk in scaling over the walls as he could have been easily caught. The statements of both the witnesses i.e. Mst. Khurshid and Rehmat Ullah in this regard makes the case of the prosecution doubtful. 15. It was admitted by the I.O. that investigation was handed over to DSP as the accused alleged partyship against him. He also admitted that the DSP had declared the accused innocent. He conceded that he had not submitted supplementary challan after the second investigation. The Sub- Inspector had also kept the accused in unlawful custody for 24 hours for which he had failed to give any valid explanation. This fact also showed that he was inimically disposed towards the appellant. It is also on record that the accused and his relatives had offered to give oath of innocence but the offer was rejected by complainant party. 16. Although the complainant did not admit the allegation leveled against her of having committed theft of the ear rings of the niece of the appellant and that she had been forced by the punchayat to return the ear rings and to pay a sum of Rs. 1200/- as compensation, but that fact was asserted by the appellant and he had not only stated that fact while making statement under section 342 Cr.P.C. but had deposed that fact on oath as ell and also examined in that regard his brother who made statement on oath and corroborated that fact. 17. As a result of the above discussions and enunciations of evidence I am convinced that the prosecution has not been able to prove the case against the appellant beyond reasonable shadows of doubt, the appeal is, therefore, allowed. The appellant is acquitted. He is on bail. The sureties stand discharged. Since the appellant has been acquitted. The question of enhancement of sentence, therefore, does not arise. The revision petition is dismissed. (MYFK) Appeal allowed.
PLJ 1997 FSC 188 PLJ 1997 FSC 188 Present: SARDAR MUHAMMAD DOGAR, ACJ. KARAM HUSSAIN-Appellant versus STATE-Respondent Criminal Appeal No. 72/L of 1996, dismissed on 29-4-1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- -S. 10(3) read with S. 452 PPC--Zzna~M-ja6r-Offence of-Conviction for- Appeal against-Victim and her father stated that there was pressure from party of accused and a hig land lord was helping accused and putting pressure for not reporting occurrence-Victim stated that she was not prepared to compromise with accused and she reported the occurrence as soon she found opportunity-Hence, delay in lodging of FIR stands explained-Reporting of an occurrence of commission of Zina with a daughter, sister or wife, not only places accused in trouble but puts on stake reputation, honour and future of girl also and family as well Substitution of accused is a rare phenomena and it happens in cases where accused is not known, but where accused is known, some one can be tied alongwith him but it does Hot happen that he is let off scot free and some body else is reported against merely because of some quarrel or dispute of propertyMedical evidence in this case is so categorical that no room is left to argue that such occurrence had not taken place at all- There was not any serious contradiction between occular account and medical evidence warranting rejection of ocular account-There is positive and clear evidence that appellant, had committed Zina-bil-Jabr with victim in her houseNo case made out for interfering in judgment of conviction-Sentence of 10 years R.I. reduced to 6" years R.I. sentence of stripes remitted due to Notification dated 15-4-1996. [P. 191, 192, 193 & 194] A to G Sardar Muhammad Latif Khan Khosa, Advocate assisted by Mr. Muhammad Ahsan Bhoon, Advocate for Appellant. Mian Abdul Qayyurn Anjurn, Advocate for State. Date of hearing : 29-4-1997. judgment Karam Hussain 25 was tried by Sessions Judge Lodhran under section 10(3) of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979 and section 452 PPC in case F.I.R. No. 19. registered at Police Station Jalla-Arain on 1.3.1994 on the statement of Mst. Zohra Begum (victim) P.W.I. Vide judgment dated 7.2.1996, he was convicted under section 10(3) of the said Ordinance and sentenced to undergo R.I for ten years plus to suffer thirty stripes. 2. Occurrence in this case had taken place on 26.2.1994 at 11.00 A.M., in the house of the complainant, in Chak No. 386/W.B, at a distance of twenty kilometers, from Police Station Jalla-Arain. 3. F.I.R. Ex. PA was registered at the police station by Khadim Hussain MHC on 1.3.1994, at 10.00 P.M on the statement of Mst. Zohra Begum (victim) P.W. 1. According to F.I.R. complainant was student of 8th class. She was in her house on 26.2.1994. Her younger brother Khalid aged 8 years was also in the house. Her father Allah Bakhsh (P.W.2) brother Azhar Hussain (G.U.P.W.) alongwith other family members had gone to the fields for weeding onion crop. At about 11.00 A.M, Karam Hussain armed with 'kulharV accompanied by his brothers Khadim Hussain and Altaf Hussain, entered the house. Karam Hussain over powered her and lay her on the ground and threatened that if she raised noise she will be murdered. After removing her shalwar, and opening the string, he started committing zinabil-jabr with her. Khadim and Altaf Hussain stood as guard. In the meantime Allah Bakhsh and Azhar Hussain (father and brother respectively) reached the spot and witnessed the occurrence. Karam Hussain picked up kulhari and his shalwar and ran away alongwith Khadim Hussain and Altaf Hussain. Allah-Bakhsh gave his chaddar to the complainant for covering her body. The complainant alleged that Karam Hussain, Altaf Hussain and Khadim Hussain hatched conspiracy to commit ziadti with her. She explained that the accused party and few others had been beseeching her father, not to report the occurrence but she and her father did not agree and had come to lodge report finding opportunity. 3. Mamoor Ali S.I (P.W. 5) who was entrusted the investigation of the case visited the spot on 2.3.1994, prepared site plan and recorded statements of the P.Ws. He arrested the appellant un 23.3.1994 and got him medically examined. 4. Mst. Zohra Begum had been got medically examined from the lady Dr. Samina Rafi (P.W.4) on 2.3.1994. 5. After completion of necessary investigation challan was submitted to court against Karam Hussain only. 6. Statements of six P.Ws were recorded at the trial. Mst. Zohra Begum while appearing as P.W.2, repeated the facts given by her, in F.I.R. Ex. PA. During cross-examination she stated that she was free from the school for fifteen days before the occurrence for prepation of examination and the examination was to start on following day. She explained that apart from Khalid (younger brother) no other family member was in the house and all of them including, her grand-mother had gone to the fields for weeding onion. She stated that when the accused entered the house she was scared and had raised noise. She stated that she had struggled to rescue herself but failed to escape commission of zina. She added that she had started bleeding because of commission of zina. She expressed ignorance about any disprrte between accused and her father. She denied the suggestion that her cousin Riaz had committed zina with her and her father had got case registered falsely against the accused because of a dispute with them about a piece of land. 7. Allah Bakhsh, P.W.2, stated, that, on 15th of Ramzanul Bubarik, he alongwith other family members had gone to the fields for weeding onion crop, leaving Mst. Zohra Begum his daughter and Khalid Masood, his ailing son aged about 7/8 years in the house. He stated that when he returned to the house at 11.00 A.M, he saw Khadim Hussain near the entrance of the door, Altaf rhissain present in the court-yard and Karam Hussain committing zina with his daughter Mst. Zohra Begum. He added that as soon as Karam Hussain saw them, he fled away alongwith the hatchet. He explained that they did not, report the occurrence for two days as the relatives of the accused had been entreating them. During cross-examination he stated that they owned 20 acres of land in Chak No. 386/W.B. He admitted that there was a dispute between him and father of the accused about four cares of land. He added that the accused party had managed interpolation in the Khasra girdawari and had obtained a stay order from the civil court and constructed a room in front of their house. He stated that excepting Mst. Zohra Begum and Khalid Masood all other family members were present in the fields. He stated that he had given a chaddar to his aughter to cover herself. He stated that they remained at home for about 2/3 days after the occurrence due to worry, tention and pressure. He explained that he was under pressure of Makhdoom Iqbal a big zimindar of their Illaqa. He denied the suggestion that Riaz son of his sister-in-law had committed zina with his daughter and on account of dispute of land with the father of the accused he had falsely roped the accused in this case. Azhar Hussain brother of the victim named as eye witness, was given up as un-necessary. 8. Lady Dr. Samina Rail who had medically examined Mst. Zohra Begum at 6.00 A.M on 2.3.1994 appeared as P.W. 4. She observed as follows: -- "She was insences. Mental status was normal. Gate was normal. Patient seems worry. There were multiple small scratches on both hands left arms and also some scratches on the back of right thigh. It means signs of struggle were present. Breast was well developed and non-pandulous. Nipple and a afeola were pinkish brown. Abdominal wall was tight. Hymen was torn and fresh healed tear were present, which slightly bleed on touch. Vagina is very tight and she feels swere p'ain dining examination. During . examination two swabs were taken cervical and vaginal swabs, which were sent to Chemical Examiner Multan for the deduction of semen.' She stated that on the basis of examination and the positive report from the office of the Chemical Examiner Multan Ex. PC. She had expressed the opinion that the examinee was subjected to sexual intercourse. During crossexamination she stated that she had not mentioned the dimentions of scratches since they were multiple. She added that scratches were not self suffered. She stated that marks of struggle found by her on the body of the examinee were mentioned by her in her report. While answering a question she stated that probable duration of the marks were within 24 hours. She denied the suggestion that she had medically examined Mst. Zohra Begum under the influence of police. 9. Mamoor Ali SI who had investigated the case, recorded statements of the witnesses, arrested the accused got him medically examined and submitted challan to court appeared as P.W.5 and gave the details of investigation done by him. During cross-examination he stated that at the time of occurrence other family members of Mst. Zohra Begum, were not present at the place of occurrence and that, only, her brother Khalid Masood aged about 8 years was present there. Muhammad Pervaiz constable who had transmitted, sealed phial containing swabs to the office of the Chemical Examiner Multan and Dr. Muhammad Riaz who had medically examined the appellant about potency were examined as P.W. 3 and P.W. 6. P.W.3 stated that he had delivered the parcels intact in the office of the Chemical Examiner. P.W.6 stated that Karam Hussain was fit to perform sexual intercourse. Positive repoit from the office of the Chemical Examiner was also tendered in evidence as Ex. PC. 10. The appellant during statement under section 342 Cr.P.C. denied the prosecution case and pleaded innocence. Pie neither produced any evidence in defence nor made statement on oath under section 340(2) Cr.P.c. 11. Learned counsel for the appellant after going through the evidence contended that the prosecution had failed to explain the delay of more than two days in reporting the occurrence, that enmity between the father of the victim and father of the appellant was admitted, that there were contradiction between the ocular account and medical evidence. Lastly learned counsel submitted that the sentence of R.I for ten years was excessive and not commensurate with the facts of the case. Learned counsel for the State defended the judgment of the trial Court. 12. The victim in this case was a girl of 15 years. She was a student of 8th class. The victim and her father who appeared as P. W.'2 stated on oath that the occurrence was not reported earlier as there was pressure from the party of the accused. Father of the victim stated that Makhdoom Iqbal a big land lord of the area was helping the accused and putting pressure on him for not reporting the occurrence. The victim while lodging F.l.R. stated that they had come to report the occurrence finding opportunity. She also stated that she was not prepared to compromise with the accused, Although his father and other family members were under pressure from the accused party. In the cases, like the one, in hand, the pressures about which the victim and her father spoke, are usually exerted. Even otherwise in such cases the parents of the girl take time to decide whether to lodge the report or not, because they are afraid that if the report is lodged the matter will become widely known and their family will be put to shame and they might find it difficult to settle the grid having been subjected to zina. In the circumstances I am of the view that the delay stands explained. There is yet another aspect also which might have weighed to some extent for delay in lodging the report and that is that the examination of the girl was to start from 27th i.e. next day of the occurrence and parents of the girl might have thought that if she was taken to the police station she may get involved in the investigation and may not find time to go to school for taking the examination. 13. Although Allah Bakhsh P.W. 2 admitted during crossexamination that he had a dispute with the father of the accused, about four acres of land and that the father of the accused after having made some interpolation in the khasra girdawari had obtained stay order also from the civil court, but that fact in my view cannot be a reason for lodging a false report of zina against the accused because the reporting of an occurrence of commission of zina with a daughter, sister or wife, not only places accused in trouble but puts on stake the reputation, honour and future of the girl also and family as well. The plea of the appellant put to the witnesses during trial that actually zina had been committed with Mst. Zohra Begum by her cousin Riaz and that he has been falsely involved in this case because of dispute between his father and father of the victim does not possess force. The substitution of accused is a rare phenomena and it happends in cases where the accused is not known because of lake of identification or for any other reason but where the accused is known, some one can be tired alongwith him but it does not happen that he is let off scot free and some body else is reported against merely because of some quarrel or dispute of property. Had there been, even an iota of truth in the suggestion that Riaz had committed zina with Mst. Zohra Begum, neither Mst. Zohra Begum nor her father would have spared him. Their grievance against Riaz would have been more grave because it would have caused graver disappointment to them. It appears that the suggestion was a device to counter the medical evidence. The medical evidence in this case is so categorical that no room is left to argue that such occurrence had not taken place at all. Even otherwise I cannot imagine that the father of the girl would have falsely alleged the commission of zina against the appellant and let away Riaz so easily. In the circumstances the argument advanced by the learned counsel that, the case was the result of the enmity stands repelled. 14. The argument that there were contradictions between the medical evidence and the ocular account is based on the observation of lady doctor that Hymen was torn and -fresh healed tears were present which slightly bleed on touch" Learned counsel in fact was reading as if the tears were "fresh". Actually that was not the position. The doctor had observed 'fresh healed tears' which means healing was fresh. The fact that the doctor observed that the tears would bleed on touch also shows that the healing was fresh. It is common knowledge that if a freshly healed wound is pressed/pushed bleeding can start. The other fact on the basis of which learned counsel had advanced the argument was the statement made by doctor during cross-examination that probable time of the occurrence was within 24 hours. The marks were the result of struggle which had caused scratches on the hand, arm and thigh of the victim. The. doctor although had noted that there were multiple scratches on the hand, arm and also on the thigh but she did not note the colour of-scratches nor had noted their dimentions, she had observed the scratches on 2.3.1994. She made statement in court on 24.7.1995, that is, 16 months after she had seen the scratches. There was no material before her on 24.7.1995 to give opinion about the duration of the scratches. It was just a guess work. Had she noted the colour of the scratches she could have possibly stated about the duration of the scratches. In view of the statement made by the victim on oath about the date and time of occurrence I am not inclined to act merely on the basis of the opinion of the doctor about the duration of the scratches which she had given without there being proper material and data before her. In the circumstances I do not fmd-that there was any serious contradiction between the ocular account and the medical evidence, warranting rejection of the ocular account. Even otherwise unless there is some positive outstanding contradiction between the medical evidence and the ocular account, the ocular account is to be preferred against the opinion by the doctor about the duration of injuries. 15. The learned counsel had also argued that it was not possible that the appellant would have chosen 11.00 A.M in the day to commit such a crime. The question is not what time he had chosen. The question is what he was found to have done. There is positive and clear evidence that he had committed zina-bil-jabr with the victim in her house. There is also evidence that excepting a boy of 8 years who was also ill, there was not body in the house, therefore, the time chosen by the appellant was also not in-accurate. 16. For all the reasons noted above no case is made out for interfering in the judgment of the conviction. The same is, therefore, maintained. However, keeping in view the arguments of the learned counsel for the appellant for reduction in the sentence of imprisonment, R.I for ten years is reduced to R.I for six years. Benefit of section 382-B Cr.P.C shall be extended.
Sentence of thirty stripes is remitted as the same stands abolished vide Notification in the Gazette of Pakistan (Extraordinary) dated 15.4.1996. (MYFK) Appeal dismissed.
PLJ 1997 FSC 194 PLJ 1997 FSC 194 Present : SARDAR MUHAMMAD DOGAR, J. SANA ULLAH-Appellant versus STATE-Respondent Criminal Appeal No. 168/L of 1995 allowed on 7-5-1997. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- Section 10(2)~Zina-Offence ol'-Conviction for-Appeal against-Marriage claimed by appellant with Mst. S was never declared as void by Judge Family Court-He had only declared same to he irregular-Postures of photographs of appellants with Mst. S clearly indicate that they were happily placed-Conents of documents produced by appellant give a lot support to plea advanced by appellant that at one time, Mst. S had entered into marriage with him of her free will and consent-Held : Defence plea of valid marriage is obvious from record which was neither frivolous nor absolutely basless-Further held : Allegation levelled by prosecution of commission of zina becomes highly doubtful and unsus tainable-Prosecution had failed to established that appellant had willfully committed zinc-Appellant acquitted. [Pp. 199, 200 & 201] B, D to G PLD 1994 SC 95 and PLD 1989 SC 744 ref. (ii) Words and phrases- Irregular marriageDefinition ofDefinition of marriage does not say that an irregular marriage is not a marriage or that irregular itself connotes that some regularities laid down has not been performed but the failure to perform some regularities cannot be taken to mean that marriage had not been entered into at all and Was void ab initio Mere irregularities in anything cannot be taken to mean illegalities-Irregularity is always curable while illegality stands r-n a different fodting. [P. 199] A (iii) Words and phrases-- Zzna-Definition of-Section 4 of Offence of Zina Ordinance, 1979 explains zina to be an act done wilfully has to be backed with a determination containing me«s-rea-Wilful commission of Zina cannot be alleged against a person who believes for good reasons that woman with whom he is having sexual inter course was his wife and he had entered into marriage with her lawfully. [P. 200] C Ch. Muhammad Aslam Bajwa, Advocate for Appellant. Mr. Muhammad Anwar Dholan, Advocate for State. Date of hearing: 7-5-1997. judgment This appeal is directed against the judgment dated 25.6.1995, by Additional Sessions Judge Sialkot, whereby the learned Additional Sessions Judge had convicted the appellant under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to undergo R.I for three years plus to pay a fine of Rs. 10,000/- in default whereof to further undergo R.I for six months. He was also awarded thirty stripes. Mst. Khurshid Begum and Mst. Shamim Akhtar tried alongwith the appellant were acquitted vide the same judgment. 2. F.I.R. Ex. PA/1 was registered at Police Station, Kotli Said Amir, on 19.5.1992 at 3.00 P.M by Muhammad Ypusaf, LHC, P.W.8, on receipt of application Ex. PA submitted by Muhammad Riaz, P.W. 1 before Muhammad Azam ASI P.W. 7 at Chowk, Ramu Chak on the same day at 1.30P.M. According to F.I.R the complainant had gone to village Chitti Sheikhan alongwith his wife and children 1% months prior to 19.5.1992, leaving his daughter Mst. Shazia aged 15/16 years in the house. When he came back in the evening, he found Mst. Shazia missing. During search Ghulam Hussain and Mukhtar P.Ws, told him that they had seen Mst. Shazia boarding a bus going to Sialkot at Jang More in the company of Mst. Khurshid Begum, Mst. Shamim Akhtar, Sanaullah (appellant) and Zafar Butt. He went to Muhammad Bashir Irasband of Mst. Khurshid Begum and father of Sana Ullah and inquired about his daughter. Muhammad Bashir told him that she might have gone with Sana Ullah etc. to purchase some articles and they will come back. Muhammad Bashir continued promising return of Mst. Shazia till 19.5.1992, when he finally refused to return Mst. Shazia. The complainant alleged that Mst. Shazia had been abducted in order to many her with Sana Ullah. Challan was submitted to court after completion of necessary investigation. 3. Statements of nine P.Ws were recorded at the trial. Muhammad Riaz, P.W.I, Ghulam Hassan, P.W.2, and Mst. Shazia P.W.9 supported the prosecution case. Mst. Shazia stated that her parents alongwith her brother and sister had gone to village Chitti Sheikhan leaving her alone in the house. Mst. Khurshid and Mst. Shainim Akhtar came to their house and requested her to accompany them for purchasing clothes and that she accompanied them on their insistence. When they reached Jang More, Sana Ullah and Zafar Butt joined them. They all boarded the bus for Sialkot. According to her Ghulam Hassan and Mukhtar had seen her before boarding the bxis with the accused. He stated that after roaming in the bazar for some time, the other accused went away and Sana Ullah took her to a house in village Det where he committed zina-bil-jabr with her under coercion. Next day Zafar joined them. They took her to the house of Saleem where they kept her for 10/12 days. Sana Ullah committed zina-bil-jabr with her during those days also. She was then taken to the chamber of Ch. Muhammad Ali, Advocate in Sialkot Katchary. Muhammad Ali asked Zafar and Sana Ullah to bring some forms. Muhammad Ali asked her to sign and thumb mark the forms. When she refused to do so he told the accused to kill her, whereupon she thumb marked and signed the papers. She stated that thereafter Sana Ullah had been taking her to different places for 10/12 days. One day Sana Ullah was taking her to some other place, the police apprehended them. The police recorded her statement and took her to the police station, whereafter she was produced before the Magistrate where also she made statement. During cross-examination she stated that she had filed a suit for jactitation of marriage against Sana Ullah.%5he expressed ignorance that the Judge Family Court had declared the marriage irregular as witnesses of the nikah were not produced. She expressed ignorance about Sana Ullah having filed a writ petition in the High Court. She admitted that she had made a statement before the Judge Family Court that she had privately studied upto 10th class. She stated that she was 19/20 years old. She disclosed that she had contracted marriage with one Riaz during the pendency of the suit for jactitation of marriage. She denied that she had appeared before a Magistrate in the complaint filed by her against her father and had made statement. She expressed ignorance about Sana Ullah having filed a suit for restitution of conjugal rights, before she had filed a suit for jactitation of marriage. She denied that she had appeared before the Judge in the suit for restitution of conjugal rights and made statement that she wanted to live with Sana Ullah her husband and the suit was decreed. She denied that her nikah had been performed with Sana Ullah and that Muhammad Bashir, Muhammad Sarwar, Muhammad Bashir son of Nawab Din, -Shaukat Ali, Munawar Hussain, Sultan and Mehboob had attested the nikah-nama. While admitting that she had affixed signature and thumb marked the nikah-nama, She explained that it was done under coercion. She admitted that photos Ex. D.I, D.2, D.3, D.4, D.5 and D.6 were taken in the house of Sana Ullah accused. She admitted that in photo Ex. D.4 .younger brother of Sana Ullah is also seen. While expressing ignorance about Sana Ullah having obtained decree for conjugal rights she denied that she had appointed Rana Pir Muhammad, as Advocate to present her in that suit. She denied that she had contracted marriage with Sana Ullah with free consent and that she had made a false statement under pressure of her father. The statements of the remaining witnesses are more or less of a formal nature. 4. Appellant during statement under section 342 Cr.P.C. denied the prosecution case, pleaded innocence and stated as follows in answer to the question "why this case against how and why the P.Ws deposed against you."? "I had a tractor-trolley and father of Mst. Shazia used to get his land ploughed from me and I was on visiting terms in their house.. Mst. Shazia Riaz got friendly with me and ultimately with consent of her parents I as assured that she will be married to me. I used to reside in their house and the complainant continued unsurping my income, but ultimately under the pressure and coercion of the Bradri he refused to give his daughter in marriage to me. Mst. Shazia Riaz was adamant to many with me, so she followed me in District Courts Sialkot. She filed a complaint against her father in the court of Ilaqa Magistrate and made statement showing her willingness to marry with me. Thereafter she solemnized nikah with in prince of the witnesses and that nikah nama was duly registered in accordance with law. I tender copy of my nikah nama. I paid her the amount of dower of Rs. 200/- She continued to live with me as my wife in my house. She got her photographs with me at my house. She remained amicably with me as my wife and performed martial obligation. She also attended many functions as my wife. Ultimately the complainant Riaz assured me that Shazia Riaz be went to his house and she would come back after his consent, so that proper rukhsati may be made by him. On this assurance I allowed Mst. Shazia to go to her parents and when she went there he instead of returning my wife pressurized her and got this false case registered against me. I filed suit for restitution of conjugal against Shazia Riaz in which she appeared in the Judge Family Court and made the statement and also submitted written statement and my suit was decreed. Subsequently she filed a suit for jactitation of marriage in which the learned Judge Family Court admitted the marriage with the free consent of Mst. Shazia and held that it was irregular marriage. I have challenged the judgment of the Family Court in a Writ petition in Hon'ble High Court and Mst. Shazia made appearance before the Hon'ble High Court with her counsel. My prayer in the writ, petition is that my marriage with Mst. Shazia is a valid marriage. During the pendency of suit for jactitation of marriage Mst. Shazia has contracted illegally second marriage with Riaz. Mst. Shazia Riaz appointed Rana Pir Muhammad Advocate as her counsel in the suit for restitution of conjugal rights and the said Advocate appeared on her behalf in that suit." He examined in defence Mehboob Ahmad and Muhammad Bashir who stated that nikah of Mst. Shazia was performed with Sana Ullah in the chamber of Mr. Muhammad Ali, Advocate in their presence and they had signed as witnesses. He also tendered in evidence certified copy of affidavit of Mst. Shazia Ex. DB, and affidavit dated 1.4.1992, Ex. DC, certified copy of the private complaint filed by Mst. Shazia Riaz Ex. DD, certified copy of statement of Mst. Shazia Riaz before Magistrate Ex. De, certified copy of plaint in the suit for Restitution of Conjugal Rights alongwith written statement Ex. DF, certified copy of the statement of Shazia Riaz in the Family Court Ex. DG, certified copy of the statement of Rana Pir Muhammad, Advocate, before the Judge Family Court Ex. DH, certified copy of decree passed by Judge Family Court between the parties Ex. DI, certified copy of the interim order passed by the Hon'ble High Court in writ petition Ex. DJ. 5. Learned counsel for the appellant after taking me through the evidence contended that there mgiufficient evidence on record to believe that Mst. Shazia had entered in to marriage with the appellant of her own with a free consent. Learned counsel referred to the following observations/findings, in para 8 of the judgment dated 31.10.1994 of Senior Civil Judge/Family Judge Sialkat in the suit for jactitation of marriage filed by Mst. Shazia against the appellant :-- "Plaintiff had attained puberty at the time of Nikah. Her statement before Illaqa Magistrate and before Judge Family Court and her affidavits are the proof that she entered into the contract of marriage with the defendant with her free consent. According to section 254 of Mulla's Principles of Mahomendan Law, a marriage contract without witnesses as required by section 254 is irregular but not void. Question arises what is the effect of the irregular marriage. This question has been dealt with under sections 264 and 265 of Mulla's Mohammedan Law. According to section 264 an irregular marriage is not valid but not unlawful itself. According to section 267 of this law, an irregular marriage may be terminated by either party either before or after consummation by words showing an intention to separate. Thus plaintiff was in a position to terminate the marriage at any stage subsequent to Nikah. Plaintiff has stated as P.W. 1 that she was never the wife of the defendant and that she has contracted her marriage with Riaz Hussain and has given birth to a daughter as well. This statement coupled with act of second marriage is sufficient for purposes of said termination of marriage with the defendant. The result is that it is hereby declared that the marriage with the defendant was terminated the moment plaintiff uttered the words that she was no more wife of the defendant and contracted a second marriage." To contend that even the learned Judge Family Court had come to the conclusion that marriage had been performed between Mst. Shazia and Sanaullah with the free consent of Shazia and it had ended on the exercise of right of termination of irregular marriage by Shazia. 'Irregular' has been defined as follows in Chambers, 20th Century Dictionary: "Irregular : adj. not regular: not conforming to rule or to the ordinaiy rules; disorderly: uneven: unsymmetrical: variable (of troops) not trained under authority of a government: (of a marriage) not celebrated by a minister after proclamation of banns or of intention to marry,-, an irregular soldier.-n" It has been defined as follows in th^toncise Oxford Dictionary, The New Edition for the 1990s:-- "Irregular, Adj. 1. not regular; unsymmetrical, uneven, varying in form. 2. (of a surface) uneven. 3. contrary to a rule, moral principle of custom: abnormal 4. uneven in duration, order etc. 5. (of troops) not belonging to the regular army. 6. Gram (of a verb, noun, etc.) not inflected according to the usual rules. 7. disorderly. 8 (of a flower) having unequal petals etc.-n (in pi) irregular troops." The definition of marriage does not say that an irregular marriage is NOT A MARRIAGE or that irregular marriage means a VOID marriage. Irregular itself connotes that some regularities laid down has not been performed but the failure to perform some regularities cannot be taken to mean that marriage had not been entered into at all and was void ab initio. Mere irregularities in any thing cannot be taken to mean illegalities. Irregularity is always curable while illegality stands on a different footing. 6. The marriage which the appellant claimed with Shazia was never declared as void by the Judge Family Court. He had only declared the same to be irregular and had decreed that as the marriage between the parties was irregular Mst. Shazia could terminate that and the marriage stood terminated from the day she filed the suit procuring that she was no more wife of Sana Ullah. 7. The expression Wilfully used in section 4 of the said Ordinance is also a Meaningful expression. An act done wilfully has to be backed with a determination, containing mens rea. Wilfull commission of zina cannot be lleged against a person who believes for good reasons that the woman with whom he is having sexual intercourse was his wife and he had entered into marriage with her lawfully. 8. The documents produced by the appellant in defence included, nikah namah Ex. DA, dated 15.4.1992, affidavit Ex. DB sworn by Mst. Shazia before Oath-Commissioner on 26.4.1992, affidavit Ex. DC, sworn by Mst. Shazia on 1.4.1992. In Ex. DB she stated that she had entered into nikah with Sana Ullah of her own accord, while in Ex. DC she stated that she wants to many Sana Ullah of her free will and that she will tiy to a pease her parents to agree to the proposed marriage. Ex. DD is copy of the complaint filed by her in the court of Magistrate against Riaz etc. in which she complained that as she had married Sana Ullah the accused (named in complaint) wanted to murder her. Ex. DE is the statement which she made in the complaint wherein, also, she stated that she had married Sana Ullah and was living with him freely as wife. Ex. DF is the written statement filed on her behalf in the suit for conjugal rights filed against her before the Judge Family Court by Sana Ullah. In that she admitted that she had married Sana Ullah of her free consent and is prepared to live with him and perform conjugal rights. Annexure-S is copy of the suit for conjugal rights filed by Sana Ullah. Ex. DG is the copy of the decree sheet issued in the suit for conjugal rights' filed by the appellant. Ex. DH is the statement of Rana Pir uhammad, Advocate, whom Mst. Shazia had engaged as a counsel to appear in the suit for conjugal rights filed by the appellant against Mst. hazia. The photographs Ex. D.I, D.2, D.3, D.5 and D.6 are the snaps of the appellants with Mst. Shazia. The posture of the photographs clearly indicate that they were happily placed. 9. The contents of the above noted documents give a lot of support to the plea advanced by the appellant that at one time, Mst. Shazia had entered into marriage with him of her free will and consent. In the given situation of this case the defence plea of valid marriage is obvious from the record which was neither frivolous nor absolutely baseless. Placing the plea advanced by the appellant in jexta position with the case of the prosecution, the allegation levelled by the prosecution of commission of zina becomes highly doubtful and unsustainable. The prosecution had failed to establish that the appellant had Wilfully committed zina. (word used in section 4 of the said Ordinance) The benefit of this has to go to the appellant. For coming to the conclusion, I have drawn strength and placed reliance on the judgments reported at page 744 of PLD 1989 SC (Allah Ditta and others vs. The State) and judgment reported at page 95 of PLD 1994 SC (Muhammad Azam vs. Muhammad Iqbal and others). 10. For all the reasons rioted above the appeal is allowed and the appellant is acquitted. He is on bail. Sureties stand discharged. 11. In order to avoid any misgiving it is observed that acquittal granted on the basis of reason does not mean that Mst. Shazia was the wife of the appellant even at this stage. For that the appellant will have to pproach the proper forum which can decide the marital status. (MYFK) Appeal allowed.
LJ 1997 FSC 201 (DB) LJ 1997 FSC 201 (DB) [Appellate Jurisdiction] Present: muhammad khiyarand ch. ejaz yousaf, JJ. Malik TALIB HUSSAIN-Appellant versus STATE-Respondent Jail Criminal Appeal No. 78/1 of 1996, dismissed on 12-5-1997. Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)-- -Article 4 read with S. 342 Cr.P.C.-Heroin 8 K.G-Recovery of-Conviction for-Appeal against-Statement of accused u/S. 342 Cr.P.C.--Effect of- Statement of an accused should be taken into consideration in its entirety and not merely inculpatory part of it to exclusion of exculpatory part unless there is other reliable evidence which supplements prosecution case-In such a condition, exculpatory part if proved to be false may be excluded-Trial Court has relied upon statement of PW-3 who has unequivocally stated that packet in question was recovered from physical possession of accused-His statement was further corroborated by statement of P. W.4-As such trial Court has not convicted appellant solely on his admission-Exculpatory part of appellant is also belied by circumstances of caseImpugned judgment upheld. [P. 206] A & B PLD 1952 FC 1. (ii) Prohibition (Enforcement of Hadd)-Order 1979 (P.O. 4 of 1979)-- -Art. 4 read with S. 516-A Cr.P.C.-Heroin-Recovery of-Conviction for- Appeal against-Whether a Magistrate is entitled for destruction of contraband material u/S. 516-A Cr.P.C.Question ofProviso read with main provision of Section 516-A Cr.P.C. show that word "Court" in proviso is used for "any criminal court" used in main provision without any clog of jurisdictionMain question for consideration is whether any defect in strict compliance of proviso would vitiate trial, unless it is shown to have resulted in grave injustice or otherwise caused any serious prejudice to accused-Counsel for appellant has shown nothing of sort to prove any prejudice particularly when kind and substance of contraband material contained in samples is not disputed-Held : Technicalities procedural or otherwise if any should not be given serious thought if case stands otherwise proved. [P. 208] C & D 1993 SCMR 789. (iii) Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)-- -Article 4 read with S. 103 Cr.P.C.-Recovery of Heroin from a Bus travellerConviction forAppeal againstSearch of moving vehicle without public witness-Provision of Section 103 Cr.P.C. would be attracted only when a definite and positive place in a locality is required to be searchedObviously a moving vehicle or a person travelling therein do not fall within definition of a fixed and positive placePolice officials are as good witnesses as any person from public provided no animosity is alleged and proved against them and plantation of articles in particular circumstances of case is not possible. [Pp. 209 & 211] E & F PLD 1996 SC 67, PLD 1975 SC 60, 1994 SCMR 1543 ref. (iv) Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)-- Art. 4HeroineRecovery ofConviction forAppeal againstAppellant has neither produced any evidence in rebuttal nor is there anything on record to shake credence of statement of PWs.-Neither he disclosed his purpose of visit to such a distant place nor he offered as to how he happened to be thereNeither any motive for false implication was alleged against witnesses nor any enmity was attributed to police- Judgement of lower court does not suffer from any infirmity or error- Appeal dismissed. , [Pp. 211 & 212] G to J (v) Prohibition (Enforcement of Hadd) Order 1979 (P.O. 4 of 1979)-- Art. 4 read with S. 516-A Cr.P.C.-Delay in destruction of narcotics-After preparing samples of narcotics, destruction of remaining property should follow immediately-Whereas in instant case sample, were prepared on 26-6-1994, but destruction of remaining property took place after 4 months-Delay in destruction of Narcotics may cause doubts in functioning of Agencies entrusted with job of controlling drug trafficking It was directed to send copy of judgment to such agencies for compliance- (Per Muhammad Khiyar, J.) [P. 212] K & L Mrs. Farzana Rauf, Advocate for Appellant. Mr. Jamshed Talat, Advocate for State. Date of hearing: 5-3-1997. AST affirmed on oath the contents of complaint Exh. P.A and corroborated the Statement of P.W3. P.W5 Altaf Hussain constable deposed that on 12-2- 1994 he was given a parcel containing twenty grams of heroin by Ghulam Hussain ASI for delivering it in the office of the Chemical Examiner, Rawalpindi , which was delivered intact. Mr. Altaf Hussain Kazmi Magistrate First Class was examined as P.W.6. He deposed that on 29-6-94 the SHO P.S Attock Khurd requested him through application Exh. P.E that from the bulk of heroin recovered in this case, sample of 15 grams may be got separated so that the rest of the heroin may be destroyed. He accordingly separated 15 grams of heroin and got sealed the same in a parcel under his supervision. He identified the said parcel which was present in Court as Exh. PA/4. He also produced order Exh. PA/A whereby the remaining heroin was later, on destroyed. P.W. 7 Ch. Habibullah Magistrate First Class, Attock, deposed that on 2-10-1994 heroin weighing 765 grams pertaining to this case was destroyed in his supervision and a certificate to that effect Exh. P/F was issued by him which bears his signature. After producing Chemical Examinee's report Exh. P/G the D.A. closed the case for prosecution. 4. The accused/appellant was thereafter, examined under Section 342 Cr.P.C. In his statement he denied the charge and stated that no bag was found in his possession. He, however, admitted that the bag in question was lying near his seat in the bus at the relevant time. He further stated that since that said bag was not claimed by any other passenger, therefore, he 'was brought down from the bus alongwith the bag. He further admitted that as a result of the search heroin weighing eight Kilograms was recovered from the said bag but he stated that he had been involved in the case falsely. He added that he was innocent and would neither produce evidence in his defence nor would make his statement in terms of Section 340(2) Cr.P.C. After hearing arguments of the parties the trial Court convicted the accused/appellant and sentenced him to the punishment as mentioned in the opening para hereof. 5. We have heard Mrs. Farzana Rauf, learned counsel for the pauper accused/appellant as well as Mr. Jamshed Talat, Advocate who appeared for the State. The learned counsel for the appellant, has raised, mainly the following five contentions : (i) That the trial Court while convicting the accused has relied upon his admission made in his statement recorded under Section 342 Cr.P.C. which as per law was required to be taken into consideration as a whole, whereas the learned trial court has wrongly relied upon, the inculpatory portion thereof, and discarded the exculpatory portion of the statement. (ii) That destruction of the recovered heroin by the Magistrate was illegal in view of the fact that under second proviso to Section 516-A Cr.P.C destruction of the case property could only be ordered by "the court" competent to tiy the offence. (iii) That the provisions of Section 103 Cr.P.C. were not complied with and no member of the public was taken to witness the search and recovery of the contraband material. (iv) All the witnesses are police men. thus their statements were, not worthy of credence. (v) Tliat the recovery of contraband material has not been proved from possession of the accused. 6. The learned State counsel, on the other hand, while controverting the above contentions, has urged that :-- (i) It has been proved by the prosecution that recoveiy was effected from possession of the accused/appellant. (ii) Report of the Chemical Examiner was positive to the effect that the contraband material was heroin. (iii) That in addition to the admission of the accused made in his statement recorded under Section 342 Cr.P.C. sufficient evidence was available onrecord to connect the accused with the commission of offence. (iv) That the Police has no enmity with the accused/appellant nor has any motive been shown to falsely implicate the accused. (v) That the place and manner of recovery both have not been disputed. 7. W heave given our anxious considerations to the submissions made by the learned counsel for the parties, and have also gone through the relevant record with their help. 8. In order to supplement her first contention that the learned trial court while convicting the accused/appellant wrongly relied on his admission in his statement under Section 342 Cr.P.C. that the bag containing contraband material at the time of search was lying near his seat, wrongly presuming thereby that the bag belonged to him ignoring the exculpatory part of the statement. The learned counsel for the appellant contended that under the law it was not open for the trial court to take out and rely upon nly the inculpatory part of the statement. She relied in this behalf upon the observations of the Honourable Supreme Court of Pakistan made in the case of Sultan Khan vs. Sher Khan reported in PLD 1991 Page 520. No doubt in this judgment the Honourable Supreme Court of Pakistan has laid down the principle that statement of the accused under Section 342 Cr.P.C. has to he taken into consideration in its entirety and inculpatory part thereof cannot be relied upon to the exclusion of the exculpatory part. But all the same, it has also been held therein that this principle would he applicable only where there is no other evidence available on record to supplement the prosecution case. It would be advantageous to reproduce herein below the relevant observations :-- "After excluding the entire prosecution evidence against the accused, the question called for determination is whether the statement of accused is to be accgpted as a whole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the inculpatory statement. There is no doubt that the statement of an accused recorded under Section 342 Cr.P.C. may be taken into consideration but, the court cannot select out of the statement the passage which goes against the accused. Such statement must be accepted or rejected as a whole. The Federal Court in Rahim Bakhsh vs. Drown PLD 1952 FC 1 has observed that "if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that his statement should be taken into consideration in its entirety". The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded". In the case in hand no doubt the learned trial court in its judgment, has made a reference to the admission of the accused, made in his statement, recorded under Section 342 Cr.P.C. to the effect that at the time of search, the bag, containing contraband material was lying near his seat, yet while observing so the trial court has also relied upon the statement of P.W. 3 Nasir Mahmood who has unequivocally stated that the packet in question was recovered from physical possession of the accused. It was further noticed by the learned trial court that the statement of P.W. 3 in this behalf was also corroborated by the statement of P.W. 4. As such he has not convicted the appellant solely and merely on his said admission. Further the exculpatory part of his statement is also belied by the circumstances of the case. In such view of the situation, the learned counsel for the appellant cannot take advantage of the case cited by her. The contention has therefore, no force. 9. As to the second contention of the learned counsel for the appellant regarding destruction of the case property by the Magistrate and his competency to issue certificate in that behalf within the purview of second proviso to Section 516-A Cr.P.C. Learned counsel for the appellant in this behalf has placed reliance on a single Bench judgment of this Court in the case of Nawab Ali vs. the State (NLR 1995 SD 374) wherein it was obseived that since under the second proviso to section 516-A it was the Court, competent to tiy the offence, to secure samples and then cause destruction of the remaining property under its control and supervision, therefore, proceedings carried out in this behalf i.e. securing of samples and destruction of case property conducted by Magistrate, who was not competent to try the case, would be illegal and of no evidentiaiy value. We think it would be profitable to reproduce here in below the said provision in extenso. The proviso reads as under:-- "Provided further that if the property is a dangerous drug, intoxicant intoxication liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order 1979, (P.O 4 of 1979) or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court and cause destruction of the remaining portion of the property under certificate issued by it in that behalf. Provided also that such samples shall be deemed to be whole of the property in an inquiiy or proceedings in relation to such offence before any authority or Court." From bare reading of the proviso, it appear, that it has been enacted primarily to permit taking out of samples from the contraband articles se^ed as contemplated in the proviso, for easy hurdling of the same during any inquiry or investigation and trial as some time the seized articles may be too big to be handled conveniently or kept in custody safely and properly, and further for the destruction of the remaining bulk, after taking out the samples, which may no more be needed for the purpose of inquiiy or trial. The contention of the learned counsel for the appellant however, that "the Court" mentioned in the proviso means the court having jurisdiction to try the offence involved and that no other court would be competent to act under the proviso, to our mind appears to be misconceived. The proviso cannot be detached from the main provision of Section 516-A and is and ought to be controlled by the same, which reads as under :- Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed or which appears to have been committed or which appears to have been used for commission of any offence, is produced before any Criminal Court during any inquiiy or trial, the Court may make such order as it thinks fit for the proper custody of such property pending. The conclusion of the inquiiy of trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessaiy. order it to be sold or otherwise disposed of. The proviso read with "the above main provision would therefore, show that the word "The Court" in the proviso is used for and in reference to "any Criminal Court" used in the main provision without any clog of jurisdiction. The Proviso is not independent and "The Court" used therein can only be interpreted with reference to "any Criminal Court" in the main provision. The third proviso enacted in the year 1991«also leads to same inference. It appears that the main provision of Section 516-A Cr.P.C. to which the proviso in togged was not placed before the Hxmourable Judge in case of Nawab All vs. The State reported in NLR 1995 FSC, 374, and the proviso was not interpreted in the light of the main provision. We, therefore, do not feel persuaded to agree with contention of the learned counsel for the appellant and have also to respectfully differ witli the view expressed in the judgment in this behalf. Be that as it may, and notwithstanding the above, the main question for consideration is whether any defect in or deviation from the strict compliance of proviso would vitiate the trial or adversely effect the result thereof, unless it is shown to have resulted in grave injustice or otherwise caused any serious prejudice to the accused. There is nothing of the sort, however, appearing from the proceedings nor has the learned counsel for the appellants shown anything in that behalf to prove any prejudice, particularly when the kind and substance of the contraband material contained in the samples in the case is not disputed nor it is disputed or denied that the same was taken as sample froijir the Eight Kilograms of Heroin seized and recovered from-the bag in the case. We therefore, feel that the technicalities procedural or otherwise if any should not be given serious thought if the case stands otherwise proved. In this view of the matter we are fortified by the observations of the Honourable Supreme Court of Pakistan in case of Munawar Hussain and other vs. The State reported in 1993 SCMR 789, wherein it has been held that in Narcotics cases approach of the Court could be dynamic and technicalities should be over looked. It has further been laid down therein that while deciding the case the Coiirt should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding such procedural defects. Relevant portion, of the judgment reads as under :- "We may observe that the Court cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized affluent and influential and, therefore, generally they manage to cause dents in prosecution evidence. In such like cases, which are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generation addicts to narcotic, the Court approach should be dynamic and they should overlook technicalities in the larger interest of the Country and the public at large. The Court is to consider the entire material on record as a whole and of it is convinced that the case is proved conviction should be recorded". We therefore, do not find any fore in this contention of the learned counsel as well. 10. It has also been argued on behalf of the appellant that the provision of section 103 Cr.P.C. was not complied by the police, neither any member of the public was taken to witness the recovery nor any other independent person of the locality was associated while personal search of the appellant was conducted. As per our estimation this objection too, has no substance. It is well settled now that the provision of Section 103 Cr.P.C. would be attracted only when a definite and positive place in a locality is required to be searched. Obviously a moving vehicles or a person travelling therein do not fall within the definition of a fixed and positive place. The Honourable Supreme Court of Pakistan, in a recent judgment delivered in the case of Muhammad Azam vs. The State reported in PLD 1996 SC page 67 has been pleased to authoritatively answer this objection in the following words : "It is necessary in this case to such question of interpretation and requirements mentioned in Section 103 Cr.P.C. in order to clarify position. Bare perusal of Section 103 Cr.P.C. shows that it applies with full force when search is to be made of place which is in a locality. In other words it can be said that Section 103 is relatable to the place and not to the person. If place is known where search is to be made and that place is situate in a locality which is inhabited by the people, then it is necessary to join two or more respectable persons from that locality to witness the search, Main object behind Section 103 Cr.P.C is to guard against possible chicanery and concoction and for that reason witnesses from the locality are to be joined in the investigation and if this is done and for some reason subsequently in the trial Court those witnesses from the locality are not produced for the reason that they had been won over, then evidence of police officer who made the recovery can be believed if his conduct in the investigation is beyond reproach. It i's held in the case of Muhammad Khan us. Dost Muhammad and others PLD 1975 SC 60 that requirements of Section 103 are no doubt mandatory and fulfilled but if in the Court evidence of such witnesses from locality .could not be produced for reasons satisfactorily explained then such evidence is to be accepted and not rejected merely on the ground that on that point there is evidence of police officer only particularly when requirements had been fulfilled. Much depends on the place where the search is to be made. Requirement of examining two witnesses from locality as contained in Section 103 Cr.P.C. would no apply to a running vehicle which is stopped at some place where there are no houses in the vicinity and search is made for the purpose of recovery. In support of proposition reference can he made to the case of Muhammad Shah and others vs. the State PLD 1984 SC 278 in which Shariat Appellate Bench has held that Section 103 Cr.P.C. does not apply to a running vehicle but applies to a fixed place to be searched which is already known". The learned counsel for the appellant also vehemently contended that since all the witnesses were Police witnesses therefore, their statements were not worthy of credence. This objection too, has no weight in view of the latest law laid down by the Honourable Supreme Court of Pakistan in the Muhammad Khan vs. The State 1994 SCMR 1543. Relevant observations are as under :- "From the perusal of the judgment cited above, it is manifest that the mandatory provision of Section 103 Cr.P.C. requires the association of independent witnesses of the locality to witness the recovery and later on testifying to the same effect before the trial Court. The idea behind the insertion of this provision in the statute is to eliminate chances of false implication, and there can be no cavil with the legal proposition that, as far as practicable the said provision must be strictly followed. There can, however, be no denying the fact that these days disinterested honest and respectable people normally avoid to involve themselves in such affairs and thereby incur the wrath and enmity of the persons whose premises are being searched and in the event of recovery, then to depose against them and assist the court in their conviction for the crime, in most of the cases heinous ones. In case the police is able to secure the services of persons of the locality who are not strong enough i.o resist the temptation by the offenders, ultimately the whole exercise undertaken by the investigating agency becomes futile if they make obliging concession in Court in favour of the criminal, of course, not intentionally but on account of fear or pressure. It has therefore, been experienced that unless the police is certain about the integrity of the witnesses and are sure that they shall resist all temptation till the final conclusion of the trial by court, they deem it proper to rest contended with the police officials witnessing the recovery and attesting the recovery memos. Taking the overall prevailing circumstances into consideration, it has been the view of this Court that police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them and the plantation of the articles in the particular circumstances of the case is not possible". Thus the contention of the learned counsel in this respect too, has no force. 11. Now adverting to the next contention raised by learned counsel for the appellant it may be pointed, out that though the appellant and traightaway denied the recovery of contraband material from his possession, yet as pointed out above, it has come on record through the . statement of P.W. 3 Nasir Mahmood that at the relevant time i.e. when the bus was searched, the accused was found sitting therein keeping bag in question in his lap wherefrom 8 kilograms heroin was subsequently recovered in presence of witnesses. Relevant portion of his statement is reproduced herein below :-- "At 10.00 A.M. a bus bearing registration No. 3699 LPT came from Peshawar side and stopped at the check post. Under the orders of ASI, I searched the bus. On finding Talib Hussain in suspicious condition who was having a bag in his lap I brought him down and produced him before the ASI who searched the bag. In the lower chamber of the bag five packets of heroin were lying. All the said packets were brought out from the bag and on weighment were found to be eight Kilograms". It may be mentioned here that the appellant has neither produced any evidence in rebuttal nor is there anything on record to shake the credence of the above statement. We are therefore, unable to subscribe to the contention of the learned counsel for the appellant that the contraband material in question was not recovered from the possession of the accused. 12. Further it has also come on record that the appellant is permanent resident of Bhagwanpura Lahore whereas he was apprehended at Check post Attock Khurd a place situated in the NWFP Province. Neither the appellant in his statement recorded under Section 342 Cr.P.C. has disclosed any purpose of his visit to such a distant place nor he offered any explanation, as to how he happened to be there. The silence and non explanation of the appellant in this behalf also reflects upon his conduct. It ay also be noticed that neither any motive for false implication was alleged against the witnesses nor any enmity was attributed to the police. Plea of the accused, as appears from his statement recorded under Section 342 Cr.P.C. is that the P.Ws. being police Officials have deposed against him to show "Karwai". It does not appeal to one's mind that such a huge quantity of heroin i.e. eight Kilo grams which is valued in million of rupees could be implanted just to show "Karwai". We do not find ourself pursuaded to subscribe to these submissions. In view of the above discussion we are of the view that the judgment of lower Court does not suffer from any infirmity or error maritting any interference by this Court. The same is accordingly maintained and the appeal is dismissed hereby. Suo rnoto notice is discharged. Benefit of section 382-B Cr.P.C. shall, however, remain intact. Muhammad Khiyar, J.--I have the privilege to go through the judgment written by my learned brother Ch. Ejaz Yousaf, J. to be delivered in Jail Criminal Appeal No. 78/1 of 1996 titled Malik Talib Hussain vs. The State. While agreeing with the judgment I would like to add following few lines. The second proviso to Section 516-A of the Code of Criminal Procedure empowers the court either on application or of its own motion and under its supervision and control obtain and prepare such nvimber of samples of the property as it may deem fit for safe custody and production before it or any other court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. A bare reading of the proviso implies that samples have to be prepared under the supervision and control of the court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. The samples when prepared, destruction of remaining property should follow immediately. In the present case samples were prepared on 26-6-1994, and destruction order was obtained on the same day, but it took four months to destroy the remaining property, and the fact was also not brought to the notice of trial court which again passed order on 4-3-1996 for destruction of cases property after the period of appeal or revision if any. The intention of law maker in adding proviso to section 516-A Cr.P.C. seems to be that large quantity of narcotics recovered may not be misused and its production in the Court at the trial be made easy. The delay in destruction of narcotics may cause doubts in the functioning of the Agencies entrusted with' the job of controlling drug trafficking. A copy of the judgment should be sent to the concerned Agencies for compliance. The appellant's punishment of stripes stands remitted under the Abolition of the Punishment of Whipping Act, 1996 (Act VII of 1996) which came into force on 15th April, 1996. With this modification the impugned judgment is upheld and appeal is,dismissed. (MYFK) Appeal dismissed.
PLJ 1997 FSC 218 PLJ 1997 FSC 218 [Appellate Jurisdiction] Present: dr. fida muhammad and abdul waheed siddiqui, JJ. MUHAMMAD SIDDIQ-Appellant versus STATE-Respondent Jail Crl . Appeal No. 14/1 of 1996, decided on 22.5.1997. ( i ) Federal Shariat Court (Procedure) Rules, 1981)-- -R. 18(l)(A)--Limitation-Question of-Appeal barred by 560 days- Unexplained long abscondance of acquitted accusedCo-accused has persuaded Federal Shariat Court to extend benefit of proviso to Rule 18(1) (a) of Federal Shadat Court (Procedure) Rules 1981 and condone delay in filing appeal from jail for sufficient cause which exists-Benefit extended. [Pp. 216 & 219] B & C (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- S. 302 read with Offences Against Property (Enforcement of Hudood Ordinance, 1979 read with Section 379 PPC-Murder and Haarabah -Offence of-Conviction for-Challenge to-Contention that appellant had pleaded not guilty when charge sheeted by trial court and that after examination of 6 PWs . he had made a confessional statement in trial court whereas trial had riot yet concluded, therefore, his confession had no legal value in the presence of Sections 244, 265-D, 265-E, 265-F of Cr. P.C.-Consequently impugned order of conviction was not maintainable- Learned counsel for state has consented that case is fit for remand back .-for taking it up for trial, the date on which confessional statement was recorded by trial court and announced conviction on the same dateCase is remanded back to trial court for proceedings while considering confessional statement of appellant as null and void in the eyes of law. [Pp. 216 '& 220] A, D & E 1986 P.Cr . L.J. 2250 and 1985 P.Cr . L.J. 167 rel .
PLJ 1997 FSC 221 PLJ 1997 FSC 221 [Appellate Jurisdiction] Present: dr. fida muhammad khan, abdul waheed siddiqui and muhammad khiyar, JJ. MUHAMMAD, HUMAYUN-Appellant Versus THE STATE-Respondent Criminal Appeal No. 168/1 of 1994; Criminal Reference No. 1/1 of 1994, decided on 2.4.1997. Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979)-- -S. 7--Imputation of Zina against lady by appellant, while appearing as witness-Convication for-Challenge to-Appellant has made imputation of zina against Mst "M". It cannot be subscribed that accusation of zina was made in good faith before lawful authority and is covered under second Exception of Section 3 of Qazf Ordinance-Court was not required to resort to tazkiyal-ul-shahood when proof of Qazf liable to Hadd was available in one of form provided in section 6 of Qazf Ordinance-Appellant has failed to prove accusation of zina as true-Impugned judgment calls for no interference-Appeal dismissed. [Pp. 224, 225 & 227] A, B, C, D & E 1 1992 S.C.M.R. 638; PLD 1992 F.S.C. 427; PLD 1986 F.S.C. 10; and PLD 1996 (DB) 15. Mr. Fazal Ellahi Siddiqui, Advocate for Appellant. Qazi Shams-ud-Din, Advocate for Complainant. Mr. Akhtar Navecd, Advocate, for State. Date of hearing : 2.4.1947. judgment Muhammad Khiyar, J,-This criminal appeal is directed against the judgment dated 13-7-1994 of the Sessions Judge, Mansehra, whereby Muhammad Humayun appellant was convicted under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance. 1979 and sentenced to punishment of whipping numbering 80 stripes, subject to confirmation by this Court. 2. The facts is brief are that Mst. Farzana Bibi daughter of Khawaj Muhammad resident of Bherkund Tehsil and District Mansehra instituted a suit for dissolution of marriage and for recovery of dower in the Family Court Judge, Mansehra on 13-11-1991 against her husband Muhammad .Anwar son of Muhammad Daud of Kanait Tehsil and District Mansehra. In that suit Muhammad Humayun appellant appeared as plaintiffs' witness, and made imputation of zina against Mst. Mehr Niga, mother-in law of Mst. Farzana Bibi in the words as below : - "Parties are my relative. The real cause of dispute between the spouses is that the mother of defendant Muhammad Anwar is of lose character. She had been committing zina with Ayub son of Dost Muhammad r/o Kanait and similarly she had been committing zina with Ghulam Sarwar son of Muhammad resident, of Hamsharian. She had been committing zina above these two mentioned persons after the arrival from Karachi. Mst. Farzana plaintiff told her husband that her mother is in the habit of committing zina with the above named persons and he should stop their visit to the house. On this score relation of the plaintiff and that of the mother of the defendant became strained. No chances of the reconciliation of the spouses are left now. She is the house of her parents from the last years. No maintenance was paid during this period. No Jirga were effected between the spoxises. I am prefer to produce four witnesses in respect of allegation of zina. I have seen with my own eye the mother of the defendant committing zina with one Sakandar, whose father name is not, known to me who is resident of village Godah Sherwan. Except the dispute mentioned by me there is no other dispute between the spouses." 3. Mst Mehr Niga, against whom imputation of zina was made filed a complaint under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (hereinafter referred to as the Qazf Ordinance in the Court of Sessions Judge. Mansehra. She prayed that Muhammad Humayun be punished for making qazf. After holding an inquiry by a Magistrate of Mansehra, the learned Sessions Judge summoned Muhammad Humayun appellant and charged him for the offence. Muhammad Humayun, however, denied the charge. To prove that imputation of zina was made, the complaint produced certified copy of the statement of Muhammad Humayun Ex- PW4/1 made before the Family Court Mansehra. She recorded her statement as well as the statements of Muhammad Ayub and Muhammad Anwar that Muhammad Humayun had charged Mst. Mehr Niga for zina in the open court in presence of other people of the village and reiterated the imputation in the village. Muhammad Humayun in his statement under section 342 Cr.P.C. admitted that he appeared as a witness in the suit for dissolution of marriage instituted by Mst. Farzana Bibi against her husband in the Family Court, Mansehra but denied having made imputation of zina against Mst. Mehr Niga. When asked as to why the PWs deposed against him, he stated that they were interested inimical and unfavourably disposed towards him because of strained relations and that suit which was instituted by his niece. When asked as to why he was charged his reply was as under :- "I am innocent and falsely charged. As a matter of fact I made a statement in the Court of Family Judge in good faith and for public goods which has unfortunately been misconstrued misinterpreted and even distorted to make out a case against me and thereby to pressurise me to send may niece to the son of the complainant and withdraw the litigation pending in the Court of Family Judge. Mansehra." Muhammad Humayun also appeared as his own witness and produced three witnesses in defence. The defence evidence was intended to prove that imputation of zina was not false but none of the witnesses including the appellant have deposed anything about commission of zina by Mst. Mehr Niga with Ayub and Ghulam Sarwar. 4. The learned Sessions Jiidge, Mansehra on the perusal of evidence and after hearing the learned counsel for the parties vide judgment dated 13- 7-1994 concluded that charge of qazf against Muhammad Humayun was proved. He, therefore, convicted the appellant under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 and sentenced him to punishment with shipping numbering 80 stripes. 5. Muhammad Hamayun has challenged the judgment of the learned Sessions Judge Mansehra in this appeal and the Sessions Judge has made reference for confirmation of sentence. These two matters are being disposed of by this single judgment. 6. We have heard Mr. Fazal Ellahi Siddique, Advocate, for the appellant and Qazi Shams-ud-Din, Advocate, for the respondent Mst. Mehr Niga. Learned counsel for the appellant contended that the statement before the Family Court Judge, Mansehra falls within the second exception of section 3 of the Qazf Ordinance as made in good faith before lawful authority. He was of the view that proceedings in the Family Court were of the nature of collateral proceedings wherein even if the statement was made the appellant cannot be punished for qazf. It is only in the case of zina that charge can be preferred and that also when there is a finding of the Court that the charge is false. He further contended that convict-appellant had no intention to harm the reputation of Mst. Mehr Niga. There is no evidence how people reacted to the imputation and how Mst. Mehr Niga lost her prestige in the village. About the proof of qazf liable to Hadd law provides for Tazkiyah-ul-Shahood which was not done. In support of his contentions, the following case law was cited :- PLD 1985 FSC 384; 1992 P.Cr. L.J. 2403; 1993 P.Cr. L.J. 1872 FSC; 1992 SCMR 638. 7. Qazi Shams-ud-Din, Advocate for the respondent, in reply argued that the appellant has made imputation of zina against Mst. Mehr Niga and question of goods faith does not arise. The statement before the Family Court cannot be taken ar accusation of zina before a lawful authority. Reliance was placed on PLD 1986 F.S.C. 10. Learned counsel further contended that one of the forms for proof of qazf liable to Hadd provided in section 6(b) of the Qazf Ordinance is that when accused commits qazf in the presence of court Tazkiyah-ul-Shahood is not required. The appellant made imputation of zina before the Family Court and persisted in the Sessions Court and failed to prove the Imputation of zina by producing four witnesses to substantiate the allegation. PLD 1992 F.S.C. 427, 1992 S.C.M.R. 638, (Shariat Appellate B<;nch) and PLD 1996 F.S.C. 15 were referred. 8. Mr. Akhtar Naveed, learned State counsel said that he would support the arguments of Qazi Shams-ud-Din, Advocate. 9. We have heard the learned counsel for the parties at some length 'and have perused the evidence on record. We are of the view that by making statement reproduced in para (2) above, the appellant has made .imputation of zina against Mst. Mehr Niga respondent. We cannot subscribe to the view that accusation of zina was made in good faith before a lawful authority and is covered under second Exception of section 3 of the Qazf Ordinance. The appellant was not required to make such a statement, in the suit for dissolution of marriage. No such ground was taken by the plaintiff in that suit. The appellant persisted in making imputation of zina in his statement recorded under section 342 Cr.P.C. in the Sessions Court but failed to prove the imputation as true. The appellant has not doubt produced four witnesses including himself to prove the imputation as true but what they deposed is not about actual commission of zina. They stated that once they had come to the house of Mst. Mehr Niga and found the door locked. They knocked the door but there was no response. After 5/10 minutes when the door was opened they had seen Muhammad Ayub and.the complaint coming out of the room. This is no evidence to prove that the imputation of zina was true. We may with advantage refer to the case of Muhammad Masood, appellant versus the State, 1992 S.C.M.R. 638 (Shariat Appellate Bench) wherein it is held: 10. On the contrary the respondent Ms?. Mehr Niga established the charge of qazf against the appellant. Muhammad Ayub and Muhammad Anwar PWs have testified that Muhammad Humayun while appearing as witnesses in the dissolution suit of Mat. Farzana against her husband and charged Msf. Mehr Nig?, f'r.i committing zina and retierated the Imputation in the village. Certified c-:,->\ -j:' Llie statement, of the appellant made in the Family Court Maiisehru was also produced to show that, appellant had in fact made imputation of zina against Mst. Mehr Niga. The Court was riot required to resort to takiViO.i-'il-shahood when proof of qazf liable to Hadd was available in one of the form provided in section 6 of the Qazf Ordinance., j In the case of Ms?. Rabia Sultana versus Riaz Ahmad. PLD 1992 F.S.C. 427 I it is held :- "where any one of the three modes prescribed in section 6 is available, the offence shall be held to have been proved liable to Hadd. 1 The appellant made imputation of zina in Family Court and again before the Sessions Judge, Mansehra of course saying that it was made in good faith and was misconstrued and misinterpreted to make out the case against him and pressurise him to send his niece to the complaint and wit.hdraw the f litigation pending in the Court of Family Judge, Mansehra. We do not agree that statement was made in good faith and it was misinterpreted and mibcunstrued. The statement in clear words in an imputation of zina against Ms?. Mehr Niga. In Ms?. Safta Bibi's case reported in PLD 1986 F.S.C. 10 it is held :- "Expression good faith does not merely imply absence of ill will but presupposes reasonable degree of care and caution in making an imputation. Due care and attention further imply genuine effort on the part of the accused to arrive at the truth. Expression good faith implies bonufide on the part of person making the allegation and defamation of the person against whom such accusation is levelled. 11. In the ahove case Judge Family Court was not recognized as lawful authority over a wife and her chilfl in the suit for maintenance by the wife against her husband. If the Judge Family Court is not recognized as lawful authority over a wife and her child in a maintenance suit we fail to understand how the Judge Family Court could have lawful authority over Mst. Mehr Niga respondent who was not even a party in the dissolution suit by Mst. Farzana Bibi against her husband, so as to extend to him the benefit of section 3 Exception 2 of the Qazf Ordinance. Recently in the case of Mst. Nuzhat Jabin versus Jamil Hussain Shah, PLD 1996 15, a Division Bench of this Court in which one of us Dr. Fida Muhammad Khan, J, was a member had the occasion to examine the Exception first and second in Section 3 of the Qazf Ordinance. We may with advantage reproduce the observation made therein as below :- "It has been unanimously held by the Muslim jurists that although the above verse mentions the allegation made about the women, It also includes the imputation of zina to men. Likewise the offence of imputation though attributed to men, it also includes the women who commit this offence. As such the offence of imputation of zina and its punishment is equally applicable to male and female slanderer and slandered alike. It may be appreciated that the object of this Islamic Injunction is to check the slanders or scandalous suggestions about men and women if sufficient evidence could not be produced to prove the allegation of commission of zina in the Court of law, as required. It follows that if anybody wants to make any allegation that an individual has committed zina he must support the same by the evidence twice as strong as would ordinarily be required for other matters including even in murder cases. That is, four eye witnesses would be required instead of two, failing which the slanderer besides the sentence of whipping numbering eighty stripes as Hadd punishment would also be deprived of his fundamental civil right to appear as a witness in all matters all his life, unless he repents and shows that he is sorry for what he did, and makes proper assurance that he would not in future support by his statement anything for which he does not have the required evidence and thus he reforms himself. The Holy Quran has termed the persons involved in unsupported slanders or a charges of zina against chaste persons as "wicked transgressor's !-pr "evil doers". All this shows the gravity of the offence of "Qazf. To make imputation" of zina concerning any person as "qazf. It is however necessary that the accusation of zina should be clear in unambiguous words." We find that accusation of zina in this case is veiy clear and is in unambiguous words, which the appellant has failed to prove as true. 12. Having discussed all factual and legal aspects of the case we are of the opinion that the impugned judgment calls for no interference in appeal by this Court, We had dismissed the appeal and confirmed the sentence by our short order dated 2-4-1997. The above are the reasons in support Of that order, (B.T.) Appeal dismissed.
PLJ 1997 FSC 227 [Appellate Jurisdiction] PLJ 1997 FSC 227 [Appellate Jurisdiction] Present: dr. fida muhammad khan, J. - MUHAMMAD ASHRAF-Appellant versus STATE-Respondent Criminal Appeal No. 63/1 of 1996, dismissed on 31.12.1996. Pakistan Penal Code, 1860 (XLV of 1860)-- Section 377-Sodomy-Offence of~Conviction for-Appeal against- Statements of PWs remained unshattered inspite of lengthy cross examination-Statement of complainant inspires confidence and he appears to be truthful person-Delay in reporting of matter has been plausibly explained and case of prosecution cannot be dismissed merely on basis of delayed report-His statement is fully corroborated by deposition made by doctor who observed a tear on annul margin-Plea of enmity raised by appellant is not substantiated by any cogent piece of evidence-Even otherwise it would be unnatural for a sane person to subject his honour by lubricating a false case of this nature on account of petty enmities -Case against appellant established beyond any reasonable dunl.t- -Appeal dismissed. [P. 231] A to C Mi Muhammad Axlarn Uns. Advocate for Appellant. Mr. Muhammad Bilal, Advocate for Acquitted Accused. / Ur , 8a!ilic< : n Mughal, Advocate for State. Date of hearing: 17.11,1996. judgment Dr. Fida Muhammad Khan, J.--This criminal appeal filed by Muhammad Ashraf son of Allah Bakhsh r/o Jhoke Hafizwali District Bhakkar, is directed against the judgment dated 4.4.1996 passed by the learned Sessions Judge, Bhakkar, whereby he has convicted him under section 377 PPG and sentenced him to eight years R.I., and a fine of Rs. 15,000/- or in default of payment of fine further three years R.I. The benefit of section 382-B Cr.P.C. has been extended to him. His co-accused namely Iltaf Hussain and Saif Ullah have been acquitted of the charge. 2. It. may also be mentioned that Muhammad Ashraf appellant/accused, Iltaf Hussain and Saif Ullah acquitted co-accused had previously faced trial in a case registered under the same FIR No. 102 dated 9.5.1993 of Police Station Saddar Bhakkar but Iltaf Hussain and Saif Ullah were acquitted of the charge while Muhammad Ashraf appellant/accused had been convicted tinder section 377 PPC and sentenced to 7 years R.I. and a fine of Rs. 10.000/- or in default of payment of fine further two years R.I. However, that judgment on appeal was set aside and the case was remanded to the learned Sessions Judge for re-writing of judgment in accordance with law after re-assessment of the evidence produced by the prosecution and the defence. Thereafter the learned Sessions Judge passed the impugned judgment. A notice was also issued to the acquitted co-accused by this Court. 3. Briefly stated it is the case of prosecution as narrated by Ijaz Hussain on 19.5.1993 in FIR No. 102 P.S. Saddar Bhakkar that he is a 9 th class student. On 18.5.1993 after pack up when he was returning from school on his bicycle, Iltaf Hussain, Muhammad Ashraf and Saif Ullah, who were standing near Basti Isran, stopped him and forcibly deboarded him from bicycle. Thereafter they took him to a nearby sugarcane field and all the three subjected him to carnal intercourse. All the time to kept on raising hue and cries on account of-pain. While Muhammad Ashraf was committing arnal intercourse, at that time Lashkar Ali and Riaz Hussain reached at the place of occurrence. On seeing them the accused ran away. He went to his house in weeping condition and informed his father. The' accused had been entreating for compromise but they did not agree. He lodged report and requested for necessary legal action. The accused weie arrested and after necessary investigation challaned to face the trial on 20.6,1993, 4. At the trial the prosecution examined seven witnesses in all. P.W, 1 is Xajeeb Ullah HC. He kept three scaled phial and one scaled envelope in Malkhana on 19.5.1993 and handed over these parcels to G-liulam Shabbir constable P.W. 2 on 21.5.1993 who transmitted the same to the office of Chemical Examiner Rawalpindi intact. P.W. 4 is Ijaz Hussain. He is the complainant ,vho reiterated his statement as mentioned her'einabove. P.W. 4 is Lashkar Ali. He is the eye witnesses who supported I he prosecution version. P.W. 5 is Falak Sher ASI, he recorded Ex. PA on the statement, of Ijaz Hussain on 19.5.1993. He investigated the case, arrested the accused and submitted challan. P.W. 6 is Dr. Khalid Javed who medically examined the accused and found them fit taperform sexual intercourse. C-W. 1 is Zulfiqar Ali HC. He is a formal witness who brought the despatch register of S.P office, dated 19.5.1993 P.W, 7 is Dr. Zahid Hussain. he medically examined the complainant/victim on 19.5.1993 and recorded the following findings:- "Gait.--It was not painful. External examination. -Slight abrasions were present on both belows and knee joints. No other mark of violence was present on any other part of the body. Examination in knee below position. An external swab was taken for onward transmission and detection of semen and blood. There was a linear tear % x 1/4 c.m. on 5' O'Clock position on annul margin on this position. P.R. Examination. Slightly painful. Finger was stained with feacal matter but not with blood. Annul sphincter-tone was nbrmaL Proctoscopy. It was done in knee elbow position Fecal matter was present. Also, slight hyperemia" (redness" with swelling) was present in annul canal)" He took two swabs and sent the same to the Chemical Examiner for detection of blood and semen. On receipt of Chemical Examiner's report Ex. PG he opined that act of sodomy was performed with the boy/examine. 5. The appellant/accused made a statement under section 342 Cr.P.C., wherein he denied the allegation and pleaded innocent. While responding to a question "Why this case against you and why P.Ws have deposed against you;" he made a statement in the following words:- "On account of enmity the P.Ws have deposed against me. I am real PW nephew of Iltaf Hussain my co-accused. Riaz Hussain PW complained to the police against my uncle Sheru. Fazal Muhammad and Iqhal my cousins had given beating to him. The complaint was found false and preventive action was taken against the complainant party. Riaz P.W had a grudge against me and my family, therefore, he got me involved in this case. Riaz PW had got registered a case under section 377 PPG against one Zulfiqar. The case was false and was cancelled, as such the P.Ws are in the habit of getting false cases registered. Similar is the position in this case. I am quite innocent. The complainant family and my family were inimical to each other. My father during consolidation proceedings got sanctioned a passage from the land of Riaz Hussain PW. Against the sanctioned passage Riaz Hussain P.W sought remedy in the higher courts but in vain, as such with the connivance with the son of his tenant he falsely implicated me in this case." He declined to make a statement on oath in disproof of the charges made against him and also produce no evidence in defence. However he relied upon the defence evidence produced by Altaf Hussain, acquitted co-accused. 6. I have heard the learned counsel for the parties and have perused the record with their assistance. So far as the acquitted co-accused Iltaf -Hussain and Saif Ullah are concerned there is neither any appeal nor any revision filed against their acquittal. The only evidence that transpires against th^m is the statement of P.W. 3 Ijaz Hussain complainant which is corroborated by the ocular evidence furnished by P.W. 4 Lashkar Ali only to the extent of. Muhammad Ashraf appellant/accused committing sodomy with him. He only saw the other two acquitted co-accused Iltaf Hussain and Saif Ullah present there. He had not seen either of them committing sodomy upon him. P.W. 7 Dr. Zahid Hussain who was recalled for re-examination also deposed that he cannot give definite opinion as to whether sodomy with Ijaz Hussain wa^jcpmmitted by a single person or more than one persons. In this view of the- matter the learned trial Court has rightly extended them benefit of doubt and acquitted them of the charge. The learned counsel for the State also concedes in this respects. The order of their acquittal recorded by the learned trial Court is therefore maintained. They are present on bail. Their bail bonds as well as notice issued against them are hereby discharged. 7. However, as far as the case of appellant/accused Muhammad Ashraf is concerned there is the evidence of P.W. 3 and P.W. 4 against him. Both P.W. 3 and P.W. 4 have been subjected to lengthy cross-examination but nothing fruitful to the defence has been adduced from their statements and their statements remained unshattered. Various suggestions put to the complainant regarding allegation against some other person about the same occurrence have been denied. Similarly suggestion in respect of submission of an application to the concerned Head master has been denied and the said application has been stated to be fabricated. The defence has produced nothing to lend support to the said suggestions. The statement of complainant inspires confidence and he appears to be a truthful erson. hough the matter has been reported with delay but that has been plausibly explained and the case of prosecution cannot be dismissed merely on the basis of delayed report only. His statement is fully corroborated by the deposition made by P.W. 7 Dr. Zahid Hussain who observed a tear on annul margin. Though the Chemical Examiner's report reveals- that the swabs were not stained with semen and the external swab was stained with blood. It is to be appreciated that the occurrence took place on 18.5.1993 at about 2.00 p.m. and his medical examination was conducted on 19.5.1993 at 6.00 p.m. So it is evident that more than 24 hours had passed and the report of Chemical Examiner could not naturally be positive in respect of swabs. However the report coincides with the observation made by P.W. 7 Dr. Zahid Hussain in his medi-co-legal report. Since the blood emanates intermittently the Chemical Examiner's report reveals presence of blood oil the external swabs. P.W. 7 therefore positively opined on the basis of Chemical Examiner's report Ex. PG that act of sodomy was performed with the boy/examine. Though no grouping of semen has been made but it is mmaterial as the Chemical Examiner's report in respect of semen is negative. The plea of enmity raised by the appellant/accused is not substantiated by any cogent piece of evidence. Even otherwise it would be nnatural for a sane person to subject his honour and the honour of his family by fabricating a false case of this nature against some person on account of petty enmities. In this view of the matter I have come to the conclusion that the case of prosecution against the appellant/accused is established beyond any reasonable doubt. 8. Consequently,, for the reasons stated above, I dismiss the appeal and maintain the conviction and sentences of the appellant as, awarded to him by the learned trial Court on 4.4.1996. The benefit of section 382-B Cr.P.C. extended to him shall remain intact. (MYFK) Appeal dismissed.
PLJ 1997 FSC 232 PLJ 1997 FSC 232 [Appellate Jurisdiction] Present: dr. fida muhammad khan. J. ABDUR RAZZAQ-Appellant versus STATERespondent Criminal Appeal No. 53/1 of 1996. allowed on 20.5.1996. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)- -S. 10(2}-Zina-bi I-Jabar--Offence of-Conviction for--Apeal against-Sister of appellant was married with 'brother of complainant, hence precise identification of lady was necessary, hut evidence in this respect is not available on record-P.W. 4 who is a star witness, her deposition is not confidence inspiring--She was a grown lady of 28/29 years at the time of occurrence, hut there is nothing in her statement to show that she was forcibly taken by appellant-Appellant had no weapon with him and she had not raised any alarm at any stage of her abductionProsecution failed to record her statement before a Magistrate after her recovery-It is not safe to base conviction on her solitary statement-Besides, there is a delay in lodging FIR for about nineteen days-Prosecution has led no evidence to prove that Mst. I was kept, by appellant at Adda Dhooriwala- Held : Dis-appearance of Mst. I from her house with appellant as well as her recovery from him is not established and case against appellant does not appear free from doubt-Appeal allowed. [Pp. 236 & 237] A & B Sh. Riaz-ul-Haq with Mr. Abdul Rashid, Advocates for Appellant. Mr. Muhammad Saliheen Mughal, Advocate for State. Date of hearing: 20.5.1996. judgment This criminal appeal filed by Abdur Razzaq son of Bashir Ahmad, resident of Adda Janahgir Abad Tehsil Kot Addu, District Muzaffargarh, is directed against the judgment dated 4.3.1996 passed by the learned Additional Sessions Judge, Kot Addu, whereby he has convicted the appellant/accused under section 10(2) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, (hereinafter called the said Ordinance) and sentenced him to five years R.I, whipping numbering thirty stripes and a fine of Rs. 5,000/- or in default of payment of fine further six months R.I. He has also convicted him under section 16 of the said Ordinance and sentenced him to five years R.I, whipping numbering thirty stripes and a fine of Rs. 5,000/'- or in default of payment of fine further six months R.I. It has been directe 1 that both the sentences awarded to the accused shall run concurrently. 2. Briefly stated it is the case of prosecution that Mst. Irshad Mai, sister of complainant Muhammad Amin who was sleeping in her house during night between 8th and 9th April, 1992, was found missing in the morning and while he alongwith his father was searching for her, Ghnlam Yasin and Mithoo Khan met them and told them that they had seen accused Abdur Razzaq and Mst. Irshad Mai during the previous night at about 9/10 p.in boarding a 'dala'. On this information, they proceeded to the house of Abdur Razzaq who was not, present in the house. However, his father was informed, who promised to return her after a few days hut inspite of his promise, he did not return her and hence on 26.4.1992, the matter was reported to the police for 'registration of the case. Thereafter, during investigation, after about 12/13 days, after the occurrence when the complainant alongwith his mother and sister was passing through the bazar at Pakpattan, they had heard the call of his sister Mst. Irshad Mai. They saw the appellant/accused was there with his sister Mst. Irshad Mai while accused Abdur Razzaq ran away on seeing them. They brought Mst. Irshad Mai to their ftouse. The appellant/accused was arrested on 3.8.1992 and after necessary investigation, was challaned to face the trial. 3. At the trial, the prosecution examined thirteen witnesses in all. PW. 1 is Mitho Khan. He made a deposition about the aforementioned 'dala' hired by Abdur Razzaq for taking his sister for participation in a marriage and thereafter, he saw that one female alongwith two other persons had boarded the 'dala' but as deposed by him he could not identify that female and also could not identify the two persons who had boarded the 'dala' with the female. This witness was thereafter declared hostile and cross-examined. PW. 2 is Ghulam Yasin. He deposed that some person had boarded the 'dala' but he did not know who was in the 'dala'. He was also declared hostile and cross-examined. PW. 3 is Ch. Abdul Majid, S.I. He partly investigated the case. PW. 4 is Mst. Irshad. She made a statement in the following wordsr- "About, three years before I was sleeping in the house of my parents in the area of Mauza Fatal Munda Darmiani. My brother Muhammad Amin was sleeping in another room of the house. At about 9/10 P.M. there was a knock at the door of our house. I opened the door. Accused Abdur Razzaq now present in court was standing outside. He caught hold of my arm, and threatened me that if I will raise cries I will be killed. After dragging me the accused took me towards the Pacca road. One Dala/Wagon was found standing by the road side. Accused put me in that Dala. The wagon started and it, reached Adda Dhoori Wala. From Adda Dhorri Wala the accused took me to the house of her sister at Adda Dhoori Wala. Accused kept me there in the house of her sister for 9/10 days. During this period he used to subject me to Zina Bil Jabar. The accused then took me to Pakpattan. While he was taking to Bazar in Pakpattan town I saw that my brother Muhammad Amin and nay mother were there. I gave a call to them. The accused left me and he ran away from the spot. I narrated the whole occurrence to my brother Muhammad Amin and my mother. They took me to the house of my parents. My maternal uncle was there at the house of my parents. He took me to Karachi. After three months I returned from Karachi. Malik Fateh Khan Awan then took me to the police station. Abdur Razzaq had forcibly abducted me and had committed Zina Bil Jabar with me. I was medically examined." P.W.' 5 is Muhammad Amin. He is the complainant who reiterated his statement as mentioned hereinabove. He added that after bringing Mst. Irshad Mai to their house, his maternal uncle took her to Karachi with him because of apprehension from the accused that they may not attack their house. P.W. 6 is Ghulam Farid. He was driver of the 'dala' bearing registration No. DN-6715. He made a deposition in the following words:- "At about evening time I was present at Adda Dhoori Wala. Accused Abdur Razzaq present in Court contacted me and he hired my Dala after telling me that he has to take his sister from Chowk Munda for participation in marriage of his brother at Faisalabad. Rs. 1,50/- was fixed as fare of the wagon. Accused Abdur Razzaq took me 4/5 miles ahead of Chowk Munda at Rangpur road. After leaving me in the dala by road side, he went away for bringing his sister. Accused Abdur Razzaq then came back with a woman. He and that woman sit in my wagon. I started taking accused Abdur Razzaq and that women in the Dala, after reaching at Adda Dhori Wala I demanded from accused Abdur Razzaq that he should give me some surety that actually he is taking away his sister. Since it was night time therefore, I had suspected that the accused was taking some abducted woman with him. Abdus Sattar s/o Ghulam Nabi should stood surety that he was taking his sister. After surety of Abdus Sattar I had taken Abdur Razzaq and the woman to Chak No. 458 T.D.A. and after leaving Abdur Razzaq and the woman by the road side. I went, back to Adda Dhoori Wala." P.W. 7 is Amir Bakhsh, Constable. He delivered sealed jar and sealed renvelope to the office of Chemical Examiner, Multan intact. P.W. 8 is Fida ijusgain, Cojjfstable. He stated that he was not a witness in this case. P.W. 9 " 'dul Aziz, Constable is a marginal witness to the recovery memo Ex. PB s.« ' vide whith, the Dala was taken into possession by Abdul Majeed, SI. P.W. 10 is Lady Dr. Fehmeeda Khatoon. She examined Mst. Irshad Mai on 8.8.1992 nd made the following observations:- "There was no mark of violence on any part of her body. Her hymen was torn irregularly and it had old healed marks. Vagina was admitted two fingers." She also obtained vaginal swabs and on the basis of Chemical Examiner's report opined that sexual intercourse had taken place with Mst. Irshad Mai. P.W. 11 is Fazal Dad, Inspector. On 3.8.1992 he arrested the appellant Abdur Razzaq in this case. He recorded statement of Mst. Irshad Mai on 6.8.1992 and got her medically examined on 8.8.1992. He investigated the case and after completion of investigation submitted ehallan against the accused, P.W. 12 is Dr. Mian Ghulam Abbas who medically examined the appellant on 3.8.1992 and found him potent. P.W. 13 is Shimla Shah, Muharrir.' He record FIR Ex. PC on the statement of complainant Muhammad Amin. 4. The appellant/accused made a statement under section 342 Cr.P.C. wherein he denied the allegation and pleaded innocent. Replying to a question "why this case against you", he made a statement in the following words:- "My sister Mst. Mumtaz is married with Muhammad Saleem, brother of the complainant. The complainant party was not allowed us to see my sister. About 15 days before the alleged occurrence in this case I had gone to the house of my brother-in-law Muhammad Saleem. Muhammad Amin met there. I requested him to send my sister with me as there was a marriage of my elder brother. Muhammad Amin refused to send her with me. Because of that hot words were exchanged between me and Muhammad Amin and then the complainant falsely implicate me in this case", He declined to make a statement on oath or produce" any evidence in defence. 5. I have heard the learned counsel for the parties and have perused the record with their assistance. It transpires from the record that according to the FIR Ex. PC, P.W; Mitho Khan and P.W. 2 Ghulam Yaseen were the eye witnesses who had informed the complainant that they had seen Abdul Razzaq and Mst. Irshad Mai boarding a 'dala' at 9./10.00 p.m. on the night between 8th and 9th June, 1992. However, in their depositions before the court both the PWs were declared hostile. P.W. 1 clearly stated that he could not identify the female as well as the two other persons who had boarded the da/a' with the female. Regarding the hiring of 'data' by the appellant he stated that it had been hired by him for taking his sister for participation in a marriage. It is pertinent to mention here that sister of the appellant/accused Ms. Munitaz is married with Muhammad Saleem, brother of complainant. P.W. 2 Ghulam Yaseen another alleged eye witness also did not support the case of prosecution and stated that he did not know who was in the 'data'. In cross-examination he stated that he had not enquired from the driver who was in the 'da/a'. He further stated that he had not seen Mst. Irshad Mai in the 'da/a'. Both P.W. 1 and P.W. 2 are witnesses of the prosecution and as such their depositions carry considerable weight. The deposition made by Ghulam Farid, driver of the 'da/a' reproduced hereinabove also shows that he was told by the appellant about bringing of his sister. He saw that the appellant and that woman sat in his wagon. Inspite of the fact that this PW had suspected that the appellant was taking some abducted women with him, his statement is not useful to the prosecution as he could Hot identify the 'ady boarding the 'da/a'. In the circumstances when sister of the appellant was married with the brother of complainant, the precise identification of the lady was necessary but the evidence in this respect is not available on the record. Deposition made by P.W. 4 who is a star witness in this case is not confidence inspiring. She was a grown up lady of 28/29 years at the time of occurrence but there is nothing in her statement to show that she was forcibly taken by the appellant in 'da/a'. The appellant/accused had no weapon with him and she had not raised any alarm at any stage of her abduction. The prosecution foiled to record her statement before a Magistrate after her recovery. It is also pertinent that deposition of this PW is not above board and in the circumstances it is not safe to base conviction on her solitary statement. Besides, there is a delay in lodging the FIR for about ninteen days. The explanation given therefor by the complainant is not plausible. Learned counsel for the appellant placed reliance on cases reported as SCMR 1995 pages 1498, 1501, 1639. It is also worth-mentioning that neither PW. 4 nor PW. 5 has given the date when she was recovered. It is strange that according to PW. 11 Fazal Dad, Inspector, the appellant was arrested in this case on 3.8 1992 whereas the .statement of Mst. Irshad Mai was recorded on 6.8.1992 and she was got medically examined on 8.8.1992. It is not known that When the appellant had run away from the spot, as alleged by P.W. 4 and PW. 5, and Mst. Irshad Mai was recovered, how and where the appellant was arrested by PW. 11 on 3.8.1992. PW. 11 has expressed lack of knowledge about her production for recording her statement after her recovery from Pakpattan. It is also pertinent to mention that the prosecution has led no evidence to prove that Mst. Irshad Mai was kept by the appellan at Adda Dhoori Wala. Keeping in view rhe aforementioned circumstances and critically examining the entire evidence on record, therefor;', it is well i evident that dis-aj)pearance of Mat. Irshad Mai from him house with the | appellant as well as her recovery from his is not established by any j independent evidence and the case against the appellant, does not appear free | from doubt. 6. Consequently, for the reasons stated above. I extend the benefit of doubt to the appellant, Abdur Razzaq son of Bashir Ahmad, allow his appeal, set-aside his conviction and sentences recorded on 4.3.1996 by Additional Sessions Judge, Kot Adhu and acquit him of the charge. He is in jail and he shall be set at liberty forthwith if not wanted in any other case. (MYFK) . Appeal allowed.
PLJ 1997 FSC 237 PLJ 1997 FSC 237 [Appellate Jurisdiction] Present: dr. fida muhammad khan, J. MUHAMMAD FAROOQ- Appellant ' versus STATE-Respondent Jail Criminal Appeal No. 24/1 and 26/1 of 1996. decided on 6,10.1996. Prohibition (Enforcement of Hadd ) Order, 1979 (P.O. 4 of 1979)-- -Art. 4-Possession of intoxicant-Offence of-Conviction for-Appeal against-Trial Magistrate without bringing on record reasons for discarding to record evidence of recovery witnesses and opting to record confessional statement of appellant, recorded statement of appellant u/s 342 Cr.P.C .While recording his statement, no incriminating circumstances were put to him as required under law-It is not known whether said confessional statement is result, of despondency occasioned by delay in getting statements of PWs or is a voluntarily-made clean breast confession of offence committed by him-Neither any effort has been made to enable appellant as required under Section ,342 Cr.P.C . nor legal requirements as envisaged by Section 364 Cr.P.C . have been fulfilled-Case remanded to sessions Judge with direction that appellant he tried afresh in accordance with law. . [Pp. 238 & 239] A & B Mr. Muhammad Aslant Uns , Advocate for Appellant. Mr. Saliheen Mughal , Advocate for State. Date of hearing: 6.10.1996. judgment These two appeals filed by one and the same convict/accused Muhammad Farooq son of Muhammad Suleman resident of House No. NE/247, Nighatabad road, Rawalpindi , are directed against the judgment dated 9.1.1996 passed by the learned Judicial Magistrate section 30, Attack, whereby finding him guilty under a case FIR No. 410/1994 registered on 1.5.1994 at Police Station Attack Khurd under the provisions of Article 4 of the Prohibition (Enforcement of Hadd ) Order, 1979, he has convicted and sentenced him to undergo three years R.I., whipping numbering ten stripes and a fine of Rs . 2,000/- or in default of payment of fine to suffer further three months R.I. 2. I have heard both learned counsel for the appellant as well as learned counsel for the State and have perused the record with their assistance. Both the learned counsel submitted that the case needs remand to the learned Sessions Judge, Attock , for fresh trial as there are several irregularities in the case and the learned trial Court has not proceeded to conduct the case in accordance with law. 3. It transpires from the record that the case was registered at Excise Check-post Mullan Mansoor , Attock , on 1.5.1994 and the challan was submitted on 15.5.1994. The appellant/accused was formally charged on 6.10.1994 and thereafter on 20.11.1994 and 22.2.1995 respectively, the statements of P.W. 1 Tariq Mahmood , Excise Inspector and P.W. 2 Muhammad Basharat Kiyani A.S.I., were recorded. However, instead of recording the statements of main witnesses Muzaffar Khan and Khan Afsar both constable Excise Mullan Mansoor who were witnesses of recovery memo Ex. PA, the learned Magistrate without bringing on record the reasons for discarding to record the evidence of afore-mentioned recovery witnesses and opting to record the confessional statement of appellant/ accused, recorded the statement of appellant/accused under section 342 Cr.P.C ., on 9.1.1996. However, while recording his statement, no incriminating circumstances were put to him as required under the law. It is not known why the statement of accused was recorded in that manner in such a hurry without complying with the laid down legal provisions. It is also not known whether the said confessional statement is the result of despondency occasioned by delay in getting the statements of PWs duly recorded or is a voluntarily-made clean breast confession of offence committed by him. Neither any effort has been made to enable the appellant/accused as required under section 342 Cr.P.C ., to explain the circumstances that appeared in the evidence against him nor the legal s. as envisaged bv section 364 Cr.P.C ., have been fulfilled. 4. In this view of the matter, without going into the merits, the impugned judgment is set aside and the case is remanded to the learned Sessions Judge, Attock , with the direction that appellant/accused he tried afresh from the stage of recording the statement of P.W. 3 onward and getting statement of the appellant/accused recorded in accordance with law, as required. The learned Sessions Judge may entrust this case to a Judicial Magistrate section 30 other than the learned Magistrate who has recorded the impugned judgment. Being an old case the learned Sessions Judge may direct the concerned Magistrate to record the evidence as well as the statement of accused, providing<him due opportunity for defence , as required under section 340(2) Cr.P.C ., hear learned counsel for the parties and decide the matter as soon as possible but not later than three months. The office is directed to send the whote record, to the learned Sessions Judge concerned. The appellant who is present on hail shall continue to remain on hail till the decision of his case by. the Judicial Magistrate, Attock . (MYFK) Case remanded.
PLJ 1997 FSC 289 [Appellate Jurisdiction] PLJ 1997 FSC 289 [Appellate Jurisdiction] Present: DR. FlDA MUHAMMAD KHAN, J. SHAMROZE KHAN and another-Appellants versus STATE-Respondent Criminal Appeal No. 135/1 of 1996, decided on 24.11.1996. Prohibition (Enforcement) of Hadd) Order, 1979 (P.O. 4 of 1979)-- -Arts. 3 and 4-Reovery of contraband from truck-Conviction for-Appeal against-Recovery was effected from truck and transportation also includes possession, conviction of appellants under Article 4 of Order 1979 is not sustainable, hence, set aside-However conviction under Article 3 of said Order was maintained but fine reduced from Rs. 50,000/- to Rs. 25,000/- each or in default six months S.I. each-Sentence of whipping-set aside-No change in sentence of imprisonment of seven years-Appeal partially allowed. [P. 240] A Mr. Munir Khan, Advocate for Appellants. Mr. Saliheen Mughal, Advocate for State. Date of hearing: 24.11.1996. Jl'DGMENT This appeal filed by Sham.roze Khan sonof Zainan Khan and Hakam Ali son of Khalil ur Rehman. both residents of Malook Karona, Mehmand Agency is directed against the judgment dated 7.5/1996 passed by learned Additional Sessions Judge, Rawalpindi whereby both of them have been convicted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred to as the said Order, and sentenced each to undergo seven years R.I., ten stripes each and a fine of Rs. 50,000/- or in default of payment of fine further one year S.I. each. All the sentences are ordered to run concurrently and the benefit of section 382-B Cr.P.C. has been extended to them. 2. I have heard the learned counsel for the parties and have perused the record with their assistance. At the outset learned counsel for the appellants submitted that he does not press the appeal on merits, however, keeping in view the facts that both the appellants are very poor one being a driver and the other Conductor of truck No. MRA-40f>5 wherefrom the contraband \vas recovered-as well as fact that they are previous non convicts, he only prays for reduction in the sentence of fine. He also submitted that conviction of the appellants under Article 4 of the said Order is not warranted in cimimstances of th~- case. Learned counsel for the State also conceded in this respect as well as for reduction in the sentence of fine. 3. Since the recovery was effected from the said truck and transportation also includes possession, the conviction of appellants under Article 4 of the said Order is not sustainable and is therefore set aside. Both the appellants are acquitted of the charge thereunder. In view of what is submitted by learned counsel for the appellants and agreed to by the learned counsel for the State, while maintaining conviction of the appellants under Article 3 of the said order, I reduce the sentence of fine to Rs. 25,000/- each or in default six months S.I. each. There shall be no change in the s'entence of their imprisonment of seven years each which is maintained. The sentence of whipping is set aside as no more legally required after the promulgation of Act No. VII of 1996. The benefit of section 382-B Cr.P.C extended by the trial court shall remain intact. & 4 With this modification ; n the conviction and sentences the appeal is partially allowed. iMYFKi Appeal partially allowed.
PLJ 1997 Lahore 561 PLJ 1997 Lahore 561 [Bahawalpur Bench] Present: M. javed buttar, J. AL-FAROOQ COLLEGE OF EDUCATION, BAHAWALPUR-Petitioner versus ISLAMIA UNIVERSITY BAHAWALPUR through V.C and 4 others-Respondents W.P. No. 1676 of 1996 BWP dismissed on 29.9.1996. Islamia University of Bahawalpur, 1975 (Act IV of 1975)- -S. 25(2)(n) and 34--Petitioner (A private College), was informed by University that on petitioners application for affiliation of College for year 1995-96 with respondent-University, "Affiliation Committee" visited and inspected college and did not recommend affiliation and pointed out deficiencies-Challenge to-Defficiencies pointed out and directives issued by respondent University were not opposed to relevant provisions of Islamia University of Bahawalpur Act, 1975 and University was within tslawful rights in refusing affiliation for academic Session 1995-96 on beingsatisfied on report of "Affiliation Committee" that deficiencies pointed out earlier while granting provisional affiliation for Academic Session 1995-96 had not been removed-Petition dismissed. [Pp. 563 & 569] A & B Mr. Bilal Ahmad Qazi, Advocate for Petitioners. Mr. M.M. Bhatti, Advocate for Respondents. Date of hearing : 29.9.1996. order The facts in brief leading to the institution of this Constitutional petition are that the petitioner is an educational institution known as "Al- Farooq College of Education" and was established in Bahawalpur in 1990 and was registered provisionally for one year, 1991-92 with the Education Department under section 6 of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 and the provisional registration certificate was issued to the petitioner on 13.10.1991 by Director Public Instructions (Colleges), Punjab, Lahore and was also granted provisional affiliation by Islamia University, Bahawalpur for a period of one year i.e. 1991-92 on the recommendation dated 17.2.1992 of the Affiliation Committee and communication to this effect was made to the College vide letter dated 22.4.1992 by the Deputy Registrar of the University on behalf of the Registrar. The said provisional affiliation was granted subject to certain conditions which are enumerated in the above mentioned letter dated 22.4.1992 which is also attached with this petition as Annexure-C. Since then the petitioner was being granted provisional affiliation by the respondent-University on year to year basis and every time affiliation was subject to certain conditions asking the petitioner-College to remove the defects being pointed out by the University. The College was refused affiliation for the academic year 1994-95 by the Affiliation Committee and being aggrieved thereby the petitioner-College filed an appeal to the Senate Committee of the University and the Senate Committee issued direction to the Affiliation Committee on 18.2.1995 to revisit the College and in pursuance thereof the Affiliation Committee revisited the College on 30.4.1995 and the Committee (constituted by the Syndicate and delegated with the powers to decide affiliation cases) on the recommendation of Affiliation Committee dated 30.4.1995, granted provisional affiliation to the College for B.Ed, classes for one academic session i.e. 1994-95. This provisional affiliation was communicated to the College for B.Ed. Classes vide letter No. 4090/Acad. dated 22.6.1995 issued by Deputy Registrar for the Registrar of the respondent-University (Annexure-J) subject to the terms and conditions enumerated in the above said letter dated 22.6.1995 which are reproduced as below :-- 1. The provisional affiliation shall be for one academic session i.e. 1994-95. 2. The College administration should be bound to fulfil the requirements laid down under Section 34 of the Islamia University of Bahawalpur Act 1975 and abide by the Statutes Regulations, Rules and Instructions issued by the University, from time to time. 3. Only those Students who fulfil all the requirements and provide necessary documents (with the egistration Return/list of admitted students already submitted to the University) will be registered and allowed to sit in the examination. Migration/No objection certificate in case of the students who have passed their last Examination fromthe Universities other than the Islamia University, Bahawalpur, should also be supplied immediately. 4. Outstanding dues of the University (if any) should also be deposited in the A/C CD-I with the Habib Bank Limited, Islamia University Branch, Bahawalpur , immediately. 5. Attention should also be paid towards the following deficiencies pointed out by the Affiliation Committee :-- (a) The Institution should be accommodated in a building exclusively allocated for the College of Education which must have separate boundary wall. (b) The staff position be improved. An upto date list of teaching and other staff alongwith their appointment orders be provided to the University. (c) Payment of salary be made to the staff through crossed cheques (Payees A/C only). (d) Library and Laboratory facilities should be improved and brought upto the required standard. 6. Admissions for the academic sessions 1995-96 should not be made without obtaining fresh affiliation from the University. The last date for receipt of fresh applications in this regard is 30-6-1995, as already notified and advertised in the newspapers."Thereafter the petitioner was informed by the University vide its letter dated 8.11.1995 (Annexure-L) that on the petitioner's application dated 27.6.1995 for the affiliation of the College for the year 1995-96 with the respondent University, the Affiliation Committee, visited and inspected the College on 12.8.1995 and did not recommend the affiliation and pointed out following deficiencies: "(i) The College of Education must be Jbpi!£fid jj> 2 bx>))<$)j?/ exclusively allocated for the college having separate boundary wall, which is absolutely necessary to prevent undue interference in the activities of the college by the students of other adjacent Schools in the same premises. In the present position affiliation of the college in injurious to the interest of education. (ii) The strength of teaching staff are inadequate. Most of the members of existing teaching staff are not professionally qualified and not paid salary equal to the Government Pay scale. Services of this staff are also being utilized for education purposes in other institutions located in the same building. (iii) Library services are inadequate and library books on the subject fall too short to meet requirements of students. (iv) Laboratory facilities are inadequate and insufficient for practicals/training of B. Ed. students. (v) No facility of separate residence of teaching staff & Principal has been provided. (vi) Hostel accommodation has been provided to the girl students, but no permission to maintain the girls Hostel has been obtained from the Competent Authority. (vii) Deficiencies previously pointed out have not been removed, Regulations/Rules of the University have not properly been followed. Overage students were admitted violating the admission regulations, despite it was assured that theywould abide by all regulations, decisions and instructions of the University. (viii)The college has not been registered with the Education Department for 1995-96. In the same letter the petitioner was informed that the report of i^. Affiliation Committee will be sent to the Syndicate Committee which will hold its meeting on 18.11.1995 and an opportunity of personal hearing before Syndicate Committee was granted to the petitioner and the minutes of the meeting of the Committee (constituted by the Syndicate and delegated with the powers to decide the affiliation cases) held on 18.11.1995 in the Vice Chancellor's Office show that it was attended by the Vice Chancellor as its chairman. Mr. Justice Mian Allah Nawaz, Judge, Lahore High Court, Lahore as member of the Syndicate, Professor Dr. Sheikh Abdul Rahim, Additional Secretary (Acad.), Education Department, Government, of the Punjab, Lahore also as member of the Committee and Rana Muhammad Arshad, Registrar of the University as Secretary of the Committee and the report of the Affiliation Committee dated 12.8.1995 was considered, the Patron of the College was also granted opportunity of hearing by the Committee as representative of the College out the Committee decided to defer the matter till 23.12.1995 requesting the Education Department to take decision of the registration of the petitioner-College with the Education Department, Government of the Punjab within one month within the terms of Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984. Thereafter on the verbal request made by the Patron of the College in the above said meeting dated 18.11.1995, the petitioner-College was informed vide letter dated 2.12.1995 (Annexure-M) that the first sentence of para No. 6 of the above said letter dated 22.6.1995 (Annexure-J) may be considered as deleted meaning thereby that the College was allowed the admissions of the students for the academic session 1995-96 without obtaining fresh affiliation from the respondent-University. However, soon thereafter on 23.12.1995 the Committee (constituted by the Syndicate to decide the affiliation cases) decided to refuse affiliation to the College for teaching of B.Ed classes, in view of the deficiencies pointed out by the Affiliation Committee including non-registration of the College with the Provincial Education Department for 1995-96. The decision was communicated to the College by the Deputy Registrar for Registrar vide letter No. 7025/Acad. dated 11.1.1996 (Annexure-N). Aggrieved thereby the petitioner filed an appeal before the Senate Committee and the Senate Committee vide its decision dated 9.3.1996 (Annexure-S) communicated to the petitioner on 7.4.1996 rejected the petitioner's appeal, hence this constitutional petition. 2. On 4.8.1996 report and parawise comments were called for from respondent No. 1 Islamia University, Bahawalpur and on the petitioner's application for the grant of temporaiy injunction (C.M. 1-96/BWP) a notice petitioner-college shall run accordingly. However, as the petitioner-College had not been affiliated, therefore, admission forms of the students of the petitioner-College to sit in the ensuing examination were not being accepted by the respondent-University and the petitioner instituted C.M. No. 3-96/BWP in this constitutional petition for the grant of interim relief, on which on 24.9.1996 an order was passed that the same be heard alongwith the previous application (C.M. 1-96/BWP) as both the applications related to the same matter i.e. grant of interim relief. Today only the C.M. Nos. 1- 96/BWP and 3-96/BWP were fixed for hearing although the main writ petition itself was still at the initial and motion stage and after going through the above said applications, I was of the opinion that unless and until the main petition itself is heard, sought for relief of temporary injunction of directing the University to permit the students to sit in the examination was not appropriate and as the learned counsel for the petitioner showed his readiness to make his submissions on the main petition also, therefore, the office was directed to list the main petition today due to urgency of the matter. 3. It is contended by the learned counsel for the petitioner that all the allegations of the respondent-University of the College not having proper building and the defects pointed out as contained in the above mentioned letter dated 8.11.1995 (Annexure-L) are incorrect, the college has spent more than 6 million rupees in constructing the building which meets the requirements of the College, College Staff and the students and the objection of the University that the College is not maintaining proper building is incorrect. It is submitted next that the minutes of the meeting dated 18.11.1995, mentioned above show that it was decided by the Syndicate Committee not to take any decision till the matter of the registration of the College is decided by the Education Department and without waiting for the decision of the Education Department in regard to the registration of the petitioner-College, the final decision was taken by the Syndicate Committee on 23.12.1995 refusing the affiliation of the College which shows the mala fide of the respondent-University. It is also pointed out that it is a case of hardship because the students were given admission in the College under the permission of the respondent-University as is apparent from the above mentioned letter dated 2.12.1995, the students have been attending the classes regularly and now all of a sudden due to the refusal by the University to affiliate the College for the academic year 1995-96 the students are going to suffer an irreparable loss. On legal plane reference is made to Section 34 of the Islamia University, Bahawalpur Act, 1975 to contend that there is no provision for the grant of provisional affiliation and once the affiliation is granted, the same is to be treated as having been granted permanently and the manner and style of the University of keeping all the educational institutions on tender hooks by giving only provisional affiliation on year to year basis is illegal and arbitraiy and once the affiliation has been granted, then the procedure of withdrawal of the affiliation is to be followed and the procedure of renewal of the so called affiliation every year is not warranted the procedure of withdrawal of affiliation is given in Section 37 of the above said Act and Sub-section (1) of Section 37 lays down the condition in which the affiliation can be withdrawn and those situations do not exist in the present case for withdrawal of affiliation. The learned counsel has also argued that the University is bound to specify the time limit to give an opportunity to an Educational Institution to remove the defects if any before taking any action of refusal of affiliation or withdrawal of affiliation. In this regard the learned counsel has relied on Sub-section 2 of Section 36 of the above mentioned Act. 4. On the other hand, while vehemently opposing the petition, the learned counsel for the respondent-University has submitted that all the defects pointed out in the letter dated 8.11.1995 are factually correct. The petitioner-College is not maintaining a separate building for imparing the education to the students of the College and infact in the same premises 8 educational institutions are being run including the petitioner-College which is contrary to the instructions and conditions laid down by the respondent- University for the grant of affiliation. In this regard reference is also made to press advertisements in Daily Dastoor and Siyadat, (Annexures R-l and R- 2), attached with the parawise comments which show that in the same premises about then educational systems relating to different kinds of education are being run under the name and style of "Al-Farooq College and Schools System, Bahawalpur". It is also contended by the learned counsel for the respondent-University that the petitioner-College was warned again and again to have an exclusive separate building, that the College of education must be housed in a building exclusively located for the college having separate boundaiy wall, which is absolutely necessary to prevent undue interference in the activities of the College or students of other adjacent schools in the same premises and this defect was pointed out even in the last inspection visit made by the Affiliation Committee on 12.8.1995 but the petitioner failed to remove the defects and, therefore, non-affiliation of the College is not arbitrary and is justified. The learned counsel for the petitioner has also pointed out that the Education Department has refused to register the petitioner-College with the Provincial Education Department for 1995-96 and in regard to the allegation of hardship of students, it is contended by the learned counsel for the respondent that the University allowed the petitioner-College to admit students on 2.12.1995 and refused to grant affiliation to the College within a short span of time on 23.12.1995 and as such the College admitted the students at his own risk and there was no delay on the part of the respondent-University to make final decision of nonaffiliation of the petitioner with the respondent-University. The learned counsel has also referred to Rahim Yar Khan College of Education through principal and another Versus Islamia University of Bahawalpur through Vice Chancellor and 3 others (1996 SCMR 341) to contend that Syndicate of the University was competent to grant or refuse affiliation after obtaining report of affiliation Committee with regard to fulfillment of the requirements asked by the University and the orders of the University is not extending affiliation to such Colleges who according to the reports of the Affiliation Committee did not fulfil the requirements of affiliation did not suffer from any jurisdictional defect and would not warrant interference of Courts in exercise of their constitutional jurisdiction. 5. The Affiliation Committee of the University is manned by highly qualified peoples and unless contrary is proved by some tangible proof, it cannot be said that their reports against the petitioner were opposed to facts. The decision of the Affiliation Committee against the petitioner was concurred in by the Syndicate Committee of the University which again as detained above consisted of highly qualified dignatories including a Judge of this court which shows that the matter was thoroughly examined at different levels and the petitioner has also failed to show that the deficiencies pointed out by the Affiliation Committee in its report to the Syndicate Committee are not required in law to be fulfilled. 6. The Syndicate of the Islamia University Bahawalpur u/s 25 of the Islamia University of Bahawalpur Act IV of 1975 is the executive body of the University and is empowered to take effective measures to raise the standards of teaching, research and other academic pursuits and under clause (a) of subsection (2) of section 25 it has the power to affiliate and disaffiliate colleges. Similarly Section 34 lays down that any educational institution applying for affiliation to the niversity has to satisfy the University of several requirements enumerated therein to earn affiliation. The relevant subsections and clauses of section 34 for the purposes of disposal of this petition are reproduced below Affiliation. 34. (1) An educational institution applying for affiliation to the University shall make an application to the University and shall satisfy it, (a) that the educational institution is under the management of the Government or of a regularly constituted governing body; (c) that the strength and qualifications of the teaching and other staff, and the terms and conditions of their service, are adequate to make due provision for the courses of instruction, teaching or training to be undertaken by the educational institution ; (e) that the building in which the educational institution is to be located is suitable, and that provision will be made, in conformity with the statutes and the Regulations for; (i) the residence of students, not residing with their parents or guardians, in the hostels established and maintained by the educational institution or in hostels or lodgings approved by it; and (f) that provisions has been made for a library and adequate library services; (g) that where affiliation is sought in any branch of experimental sciences, due arrangements have been made for imparting instruction in that branch of science in a properly equipped laboratory, museum and other places of practical work; (h) that due provision will, so far as circumstances may permit, be made for the residence of the Principal and members of the teaching staff in or near the college or place provided for the residence of students and (2) The application shall further contain an undertaking that after the educational institution is affiliated, the teaching staff shall possess such qualifications as are or may be prescribed. (3) The procedure to be followed in disposing of an application for the affiliation of an educational institution shall be such as may be prescribed. (4) The Syndicate may, on the recommendation of the Affiliation Committee, grant or refuse affiliation to an educational institution. Provided that affiliation shall not berefused unless the educational institution has been given an opportunity of making a representation against the proposed decision. 7. The above mentioned shows that the respondent-University was within its lawful authority to ask the petitioner-College to remove the deficiencies pointed out by the Affiliation Committee and on the same having not been removed the University had the lawful authority to refuse to affiliate the petitioner College for the year 1995-96. The provisional affiliation for the academic sessions 1994-95 was granted to the College subject to certain terms and conditions as pointed out in letter dated 22.6.1992 and certain deficiencies were also pointed out, reproduced above, and for the purposes of considering the petitioner's application for the grant of affiliation for the academic session 1995-96 the Affiliation Committee inspected the College again on 12.8.1995 and found that the deficiency pointed out previously had not been removed and on the deficiencies being pointed out as contained in letter dated 8.11.1995 it did not recommend the affiliation and on the report of the Affiliation Committee the Syndicate Committee refused to grant the affiliation to the petitioner vide its impugned order, dated 23.12.1995, and the petitioner's appeal has also been rejected by the Senate of the University vide its decision dated 9.3.1996. No illegality in the impugned orders has been pointed out. The Hon'ble Supreme Court has already held that in view of the statutory provisions, referred above, of the Islamia University of Bahawalpur, Act IV of 1975 the syndicate is competent to grant or refuse affiliation after obtaining the report from Affiliation Committee and the orders of the respondent-University in not extending affiliation do not suffer from any jurisdictional defect if they are based on the report of the Affiliation Committee of the non fulfillment of the requirements as contemplated by Section 25 and 34 of Islamia University of Bahawalpur Act 1975. It has also been held by the Hon'ble Supreme Court that the Colleges cannot claim affiliation as a matter of right and the respondent-University could legitimately refuse affiliation to Colleges en their failure to comply with its directives which were not opposed by the relevant provisions of law and the University had not only the right but also the duty to make sure that Institutions, which were seeking affiliation, satisfied necessary requirements for obtaining affiliation, and if they are unable to comply with their requirements, the University was justified to refuse to grant further or permanent affiliation to them as in the instant, case I have gone through the deficiencies which were pointed out by the respondent University to the petitioner's College and I have also gone through the relevant provisions of Section 34 of the Islamia University of Bahawalpur Act, 1975 and I find that the deficiencies pointed out and the directives issued by the respondent University were not opposed to the relevant provisions of the above said Act and University was within its lawful right in refusing affiliation for the academic session 1995-96 on being satisfied on the report of the Affiliation Committee that the deficiencies pointed out earlier while granting provisional affiliation for the academic session 1994-95 had not been removed. 8. It was also submitted by the learned counsel for the petitioner that in view of the poor literacy rate of our country, it was not just and proper to stop educational institutions from disseminating knowledge in different sapphires. The Hon'ble Supreme Court while dismissing the petition of an educational institution in the above mentioned authority has also dealt with this aspect of the matter and observed as follows "There can be no cavil with the proposition that the citizens of this country should be enabled not only to become literate but also to improve their educational proficiency. It is, however, equally imperative that the institutions which come in this field, should play their role in a be-fitting manner. Mere fleecing of people desirous to achieve excellence or providing them short-cuts to obtain high principles on and the manner in which compensation is to be determined and given " It is thus clear that the State cannot deprive a person of his property without paying compensation therefor, in accordance with law. The relevant law under which the petitioner has been deprived of her land is the Land Acquisition Act. The compensation in terms of this Act has to be made to the owners of the property. If an owner is not paid the price/compensation of the property acquired within the reasonable time, then it may amount to depriving the person of his property without compensation, in contravention of the fundamental right guaranteed under Article 24 (supra). Violation of a fundamental right guaranteed by the Constitution cannot be countenanced by courts of law, particularly the High Court on which powers have been conferred as per clause 'C' of Article 199(1) of the Constitution for issuing direction to any person including any government for enforcement of any one of the fundamental rights conferred by the Constitution. This clause reads as under :-- "(C) the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power of performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II." 4. In the instant case there is no dispute with regard to the acquisition of the land, its possession having been taken from the owners and utilisation of the same for the purpose of construction of a spur bund on the River Chenab. The owners were deprived of possession of the land some 2k years back and the compensation has not so far been received from the relevant quarter, much less its payment to the land owners. This indeed is highly dismaying. It is the duty of the functionaries of the State to ensure that the rights of the citizens, particularly the fundamental rights guaranteed under the Constitution should not be trampled or denied. The concerned functionaries of the Irrigation/Revenue Departments should have realised that money is losing its value very fast. The compensation was deserved to be paid to the land owners in this case in the year 1994, but that has not been done so far. Needless to observe that land owners have already suffered a lot for non-payment of the compensation to them. A question then arises, who is responsible and who will make up the losses caused to the land owners on account of the late payment of the compensation. Obviously, the delinquent officers in the Irrigation/Revenue/Finance Department are responable for the same. It appears that the Irrigation Secretary of the Punjab Government has to be blamed the most, because he did not care to provide the requisite funds to the concerned authorities, despite repeated reminders issued to him by the concerned Chief Engineer. 5. In exercise of the powers conferred under clause 'C' of Article 199(1) afore-quoted the High Court can issue an appropriate direction to any person or authority, including any government for the enforcement of any of the fundamental rights. I have carefully considered the facts and circumstances of this case. I am of the opinion that this is a fit case in which such a direction should be issued to the functionaries of the Irrigation Department for expeditious payment of the compensation to the land owners. Initially, I was of the view that salaries of the Secretary, the Chief Engineer, the Superintending Engineer and the Executive Engineer concerned should be attached for such time that the compensation to the land owners is paid. However, exercising judicial restraint I refrain to pass such an order because these officers have not previously faced such situation. Resultantly, it is directed that the Secretary Irrigation, Government of the Punjab shall take immediate steps to arrange the requisite funds which shall in any case be deposited with the Land Acquisition Collector not later than31.12.1996. This should be sufficient time for him to obtain sanction from the relevant quarters. In case the funds are not released by that date, the petitioner will be at liberty to move the court afresh for attaching the salariesof the officers of the Irrigation Department, as indicated earlier. 6. The General Assistant Revenue states that an amount of Rs.2,54,644/- lying with him shall be paid to the petitioner by way of part compensation. Let him do so within the next 15 days. The writ petition is disposed of in the terms contained in para No. 5 above. (K.K.F.) Petition is disposed of.
PLJ 1997 Lahore 573 PLJ 1997 Lahore 573 Present: muhammad aqil mirza, J. RAMZAN WELFARE TRUST-Petitioner versus WAPDA-Respondent W.P. No. 558/95, dismissed on 12.2.1997. (i) Constitution of Pakistan, 1973-- System of government as envisaged by Constitution of Pakistan, 1973 is based on trichotomy of powers to be exercised by three organs of State namely legislature, executive and judiciary. [P. 579] G (ii) Constitution of Pakistan, 1973- Art. 199-Extraordinary jurisdiction of High Court under Article 199 has a limited scope--From language of this Article, it is clear that High Court can interfere in following circumstances : (i) Where public functionary has failed to perform his duty which is required of him to be done under law, or (ii) Where he has done something which he was not permitted by law to do- In other words High Court can issue an appropriate direction to state or a state functionary so as to compel him to do something which it is his duty to do or restrain him from doing that he is not permitted by law to do. [P. 578, 579] B & C (Hi) Constitution of Pakistan, 1973-- -Art. 199--In order to succeed in a constitutional petition, relief claimed must confine on the touch stone of Article 199 of Constitution. [P. 579] D (iv) Constitution of Pakistan , 1973-- Art. 199 read with Article 4-Jurisdiction and scope of Article 199- Question of-Prayer that kite flying on the occasion of "basant" should be banned by High Court-This prayer is wholly misconceived-Unless there is some law in existence which bans kite flying, High Court cannot issue any direction to any authority or public functionary to stop people from flying kites-If legislature makes a law prohibiting kite flying and executive fails to pel-form its duty in prohibiting people from kite flying only then function of court will start-Such a direction, if issued, will be violative of Article 4 of Constitution. [P. 579, 580] E, F & I (v) Constitution of Pakistan, 1973- -Art. 199-An order or a direction cannot be issued by High Court under Article 199 merely on moral ground. [P. 581] H (vi) Words and Phrases- "Basant Panchmi," according to Urdu Encyclopedia published by Ferozsons Limited, 'Basant Panchmi' is a festival which is celebrated in month of "Magh" on 5th Lunar day--'Basant' means 'Bahar' and since it is celebrated on 5th day, therefore, it is called "Basant Panchmi" [P. 577] A Mr. Shamas Mahmood, Advocate for Petitioner. Date of hearing: 19.1.1995. judgment This petition under Article 199 of the Constitution has been filed for issuance of a direction to the Water and Power Development Authority "to observe and maintain the load shedding hour for the duration of 9.30 p.m. on 20.1.1995 to 3.30 a.m. on 21.1.1995, except medical and industrial units". While arguing the case, learned counsel also made an oral prayer that kite flying on the occasion of 'basant' may be banned by order of the court. 2. In support of his case, Seamed counsel raised three contentions First, kite flying is done to celebrate 'basant' which is Hindu festival, it is repugnant to Muslim culture and society and, therefore, Muslims living inPakistan should not be allowed to celebrate 'basant' festival. Secondly, the kite flying on the occasion of the 'basant' is usually done on the roofs of houses/buildings and people play deck, tape-recorders, drum beating and even resort to firing, during the whole night, which causes nuisance. Thirdly, kite fliers use iron and metal wires, resulting into electric brake-downs and many people especially children suffer deaths and injuries on account of falling on the ground from the roof tops. The submission of the petitioner isthat if Wapda authorities resort to load shedding during the whole night i.e. from 9.30 p.m. to 3.30 a.m. the people shall be saved from the nuisance and other dangers of the kite flying, during the 'basant' night. He, however, submitted that load shedding should be so arranged that the hospitals and the industrial units may not be affected by the load shedding. 3. When the case come up for preliminary hearing on 17.1.1995, I enquired from the petitioner to explain whether kite flying in Pakistan, especially on 20.1.1995 has any nexus with the Festival of 'basant Panchmi' of the Hindus and whether it is a religious festival. I also enquired from him whether any rituals are performed on that occasion and whether kite flyingis banned under any law. Learned counsel obtained a short adjournment to prepare himself to address the Court on the above and other questions raised in the petitioner. 4. The learned counsel has appeared today and assisted the Court in tracing the history of kite flying. He has referred to the Encyclopedia American, International Edition. According to it, kite flying is not restrictedto India. On the other hand, it originated in China about 1000 B.C. and later on it spread eastward to the Pacific Islands and westward to Arabia. The relevant portion appearing at page 492 is reproduced below :-- "No one knows exactly when or where the kite was invented; probably in China or Southeast Asia about 1000 B.C. By about 500 A.D. it had spread eastward to the Pacific Islands and Westward to Arabia. It did not appear in Europe until the end of the Middle ages although there is evidence for a kind of kite life flying wind sock before that time. The two stick flat kite is first depicted in Dutch Illustration in 1618, evidence that Dutch invaders were important in brining this form of kite to Europe from the Far East He also referred to the New Book of Knowledge registered in United States Patent Office. According to this book, the word kite is the name of a bird of the hawk family, known for its grace in the air. The history of kites is described in the following words at page 266-b:-- "HISTORY OF KITES: No one is sure who invented the kite. Some historians believe it was invented by a Greek named Archytas about 400 B.C. Others believe it was invented 200 years later by Han-Sin, a Chinese general. But we do know that making and flying kites have been popular pastimes in China, Japan, Korea, and other countries of the Far East for many hundreds of years and still are today.In China the ninth day of the Ninth month is known as Kites Day, or the Festival of Ascending on High. It is the tradition for people of all ages to fly kites on that day. In Japan Children's Day is celebrated on May 5. Each family flies a fish kite from a bamboo pole in front of the house for each boy in the family. The Japanese also enjoy a sport known as Kite fighting. Large number of people play at one time. Each kite flier coats a portion of his kite string near the kite with a mixture of powdered glass and glue. When all the kites are in the air, a player tries to cross and cut the string of another kite with a sharp, glasscoated part of his own string. Flying kites is a popular hobby in many countries of the Western World, too. In the United States, kite tournaments are held in a number of cities each spring. In Europe and the United States, kites have also been used in scientific experiments and have been put to practical uses in both peace and war". New Age Encyclopedia Vol. 10 gives history of the kite flying in the following words :-- "Kite Flying. The kite in its comments form is an serial toy, consisting of a framework of tow or more sticks covered with paper or cloth and flown at the end of a string. Kites, shaped like birds, bats, other animals, and idols, have been flown since the beginning of recorded history for fun, as part of festivals, in forms of worship, for scientific purposes such as carrying meteorological instruments, and even to hoist men aloft as observers in directing artillery in warfare, In the mid 20th century kites have taken new shapes with the introduction of the Regallo nonrigid type, which functions at the outset as a balloon and then as a traditional kite, when its wings take over in a current of air. Methods of flying kites remain basically the same, regardless of the type of kite used. Representative varieties of kites include the familiar box kite. Malayan diamond type and French Military kite a flat kite with two vanes. Wind of atleast 1 mph is required, which can be created if necessary by easting the kite into the air in a manner similar to easting with a finishing ord. The traditional means of raising a kite-by leading it into the wind is still the best. The direction of the waid can often be determined by observing the flight of smoke from chimneys. Kites should not be flown in the vicinity of high tension wires, nor should they be flown in the rain, despite Benjamin Franklin's example of suing a kite in studying the electrical nature of lightning. Although the United States is an acknowledged leader in kite production, the glazed string used in kite fighting to cut an opponent's kite string is not available to U.S. followers of the sport. It is India 's secret weapon in this form of competition, nevertheless, Indian Kites are much more handsome then practical in actual use". According to the Urdu Encyclopedia published by Ferozesons Limited, 'basant Panchmi' is a festival which is celebrated in the month of 'Magh' on the 5th Luner day. 'Basant' means 'Bahar' and since it is celebrated on the 5th day, therefore, it is called 'Basant Panchmi'. In the Sub-Continent it is considered to be the end of severe winter and symbolically it heralds the start of the spring season. This Encyclopedia does not say that it is a religious festival of the Hindus or any rituals are performed by them on that day. 5. From the above history of kite flying it is more than clear that kite flying is not confined to India alone. It is a world wide popular pastime from East to West. Kite flying is very popular in China, Japan and other fareastern countries. Similarly, in the West also it is a popular game. In Japankite fighting is a sport played in the same manner as it is done in Pakistan. Each kite Flyer coats the string with powdered glass and glue and tries to cut the string of other kite. 6. The learned counsel has not been able to show that 'Basant' kite flying in Pakistan has any nexus with the celebration of Hindu Festival. Admittedly, no rituals are performed nor it is done on any fixed day, as may be done by the Hindus in India. Different dates are fixed for different citiesin the Punjab by the kite fliers associations, for Basant kite flying. Thus the irresistible conclusion is that in Pakistan, particularly in Punjab, it is a seasonal festivity to herald the spring and say goodbye to the winter season. It is cultural in nature and wedded to the soil rather than to have any religious connections. 7. Next question to be considered is, whether the relief claimed in the present petition can be granted under Article 199 of the Constitution. Unfortunately, in a large number of cases, petitions are filed recklessly without considering whether this Court has jurisdiction to grant the relief or not. This extraordinary jurisdiction of the High Court has a limited scope. Article 199 of the Constitution is reproduced below "199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, (a) on the application of any aggrieved party, make an order:- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do. or to do anything he is required by law to do: or (ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order :-- (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising anypower or performing any function in, or in relationsto, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II. (2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged From the language of this Article, it is clear that this Court can interfere in the following circumstances :-- (i) Where the public functionary has failed to perform his duty which is required of him to be done under law, or (ii) Where he has done something which he was not permitted by law to do. In other words this Court can issue an appropriate direction to the State or a State functionary so as to compel him to do something which it is his duty to do or restrain him from doing that he is not permitted by law to do. In | Muhammad Yousaf versus the Collector of Sea Customs, Karachi and others (PLD 1969 S.C. 153) following observations were made in this behalf :-- ".....Article 98 confined the jurisdiction of the High Court to give directions and making declaration for implementing the provisions of law invoked in a given case while under Article 170 the High Court could make any direction and make any order beside issuing the writs named therein. In other words High Court cannot give a direction which is not specifically provided for in law". Article 98 of the 1962 Constitution and Article 199 of the 1973 Constitution are couched in similar language. In order to succeed in a Constitutional petition, relief claimed must confine on the touch stone of Article 199 of the Constitution. It will be in this context that the present writ petition will have to be examined. 8. Let me first deal with the oral prayer made by the learned counsel that kite flying on the occasion of 'basant' should be banned by this Court. I am afraid this prayer is wholly misconceived. Unless there is some law in existence which bans kite flying, this Court cannot issue any direction to any authority or public functionary to stop people from flying kites. At the moment, there is no law or any instrument having the force of law under which kite flying is not permissible. Atleast, none has been brought to my notice by the learned counsel. Possibly, there may be some local bans on kite flying, such as near the aerodromes or grid stations but those are exceptional matters which are not involved in the present controversy and the observations made in the present order will not govern such cases. But, in those cases also there must be some prohibitory orders on account of which kite flying is not permissible in prohibited areas. So far as general kite flying in the country is concerned, be it on the occasion of 'basant' or at any other time of the year, there is no law under which kite flying is prohibited, therefore, no direction under Article 199 of the Constitution can be made directing any authority or any person working in connections with the affairs of Federal or Provincial Governments to stop people from flying kites. Indeed such a direction, if issued, will be violative of Article 4 of the Constitution, which provides :-- "4(a) ........................................................................................................... (b) No person shall be prevented from or be hindered in doingthat which is not prohibited by law, and (c) No person shall be compelled to do that which the law does not require him to do". The jurisdiction of the High Court under Article 199 itself is "subject to the Constitution". A direction that can be issued by the High Court under this Article has to be subject to Article 4 and other provisions of the Constitution. Therefore, a direction which can be issued under Article 199 of the Constitution, must not be to the effect that it would prevent or hinder any person in doing something which is not prohibited by law or to compell him to do which is not required by law to be done. As already observed, there is no law or other instrumentality under which kite flying is prohibited in Pakistan. Therefore, no person can be prevented from kite flying through State apparatus. In this analysis of the jurisdiction of this Court, the Executive cannot be directed to take steps to prevent people from kite flying. 9. The learned counsel has attempted to argue that even in the absence of any law prohibiting kite flying this court can give directions to State functionaries to restrain people from flying the kites, in the larger interest of the society. It is submitted that vices that are witnessed on the occasion of'ba:jnt' kite flying are inconsistent with good morals in a civilised society. It is submitted that where the legislature has failed to frame appropriate law the court can supplement the lapses of the legislature by issuing directions in the constitutional jurisdiction. I am afraid this J submission of the learned counsel is devoid of all force. The system of governance as envisaged by our Constitution is based on trichotomy of powers to be exercised by three organs of the State, namely the legislature, the executive and the judiciary. The functions of the three organs are distinct and separate and not overlapping. None can usurp the function of the other. To make laws is the exclusive function of the legislature and to interpret the same is that of the judiciary. The law making by the judiciary is not countenanced by the Constitution. However, it can direct the executive to act in accordance with law framed by the legislature. In this view of the matter this court under Article 199 of the Constitution can issue a proper direction when the government or its officers or other functionaries of the State either overstep the limits of the power conferred by the statute or fail to comply with the conditions imposed by law. An order or a direction cannot be issued by the court merely on moral grounds. It may be observed that if there is anything immoral or unethical in kite flying, the remedy lies in approaching the Members of the Legislative Assemblies for promulgating the appropriate law for banning kite flying or any other such activity. If the legislature makes a law prohibiting kite flying and the executive fails to perform its duty in prohibiting people from kite flying, only then the function of the court will start. It will be at that stage that a grievance can be made in this court that the public functionaries may be directed to perform the duty to prohibit the kite flying, and it will only be then that this court can competently make a suitable direction or order to the concerned functionaries of the State. It may also be observed that unfortunate practice that is growing these days is that every body runs to the High Court for every kind of direction under the sun without considering whether the direction prayed for can be competently issued or not. It must be realised that the courts can act within the scope of their jurisdiction and not beyond that. Article 175 of the Constitution ordains that "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The litigants and their learned counsel shall be well advised to consider they should ask for such relief as can be competently granted by courts within the frame-work of law. 10. So far as the prayer for ordering load shedding during the whole night throughout Punjab is concerned, the requested direction cannot be issued for more than one reason. Firstly, the purpose of the load shedding will be to prevent people from kite flying. As already discussed above, Wapda authorities cannot be compelled to resort to load shedding for this purpose because it will result in denying the right granted to the people under Article 4 of the Constitution that they cannot be prevented from doing that which is not prohibited by law. Secondly, the request for load shedding for the whole night throughout the province is impracticable. From its very concept when there is shortage of electricity vis-a-vis its consumption electricity of a part of locality is disconnected with a view to Case electric load on the other part, so that electric supply may remain within consumable limits. Stoppage of electricity in the entire province is repugnant to the concept of load shedding. Thirdly, load shedding for the whole night is likely to result in more harm than the good sought to be done thereby. The purpose for making this prayer is indeed very laudable. However, notwithstanding the vices and inconvenience, the nuisance and the danger highlighted, the stoppage of the electricity of the whole area of a city or a province will result into much more dangerous situation. Darkness will result into thefts, dacoities, accidents and deprivation of comfortable living. Without electricity even for few hours people will face immense difficulty which in many cases will endanger human life. Think of a sick man who is on the operation table of the doctor. How can he be allowed to die under the court direction by stopping the electricity for several hours. Take also the example of persons in lifts, or think of students who are to appear in examinations in the morning but they cannot study for want of light. Who will be responsible for the losses of the people. Of course these examples can be multiplied. It may thus be seen that stoppage of electricity as prayed for is neither practicable nor in the larger interest of the people. 11. Before parting with this case, it has to be observed that such like vices from the society cannot be eradicated through administrative/punitive actions. The desired result can be achieved by educating the masses, by persuading them to stop doing which is not good for them and to do which ishealthy for the society. 12. The upshot of the above discussion is that the two reliefs claimed in the writ petition cannot be granted, being beyond the jurisdictionof this court. Resultantly, this petition is dismissed in limine. (K.K.F.) Petition dismissed.
PLJ 1997 Lahore 582 PLJ 1997 Lahore 582 [Multan Bench] Present: RAJA MUHAMMAD SABIR, J. WALI MUHAMMAD-Petitioner versus FATEH MUHAMMAD ETC.--Respondents Civil Revision No. 100/D-97, dismissed on 17-12-1997. (i) Limitation-- -Limitation-Whether suit was time barred-Question of-Sale deed was executed on 26-5-57 and mutation was attested on 25-7-75-Respondent was in possession of land in his right on basis of title mentioned above- Petitioner was never is possession of property since very beginning as admitted by himself-Record shows that petitioner was in knowledge of impugned sale deed dated 20-5-57 since 1957 and suit filed by him in year 1992 was clearly barred by limitation-The finding of courts below treating the suit of petitioner as barred by time is barred on valid reasons and call for no interference. Petition dismissed in limine, [P. 584] A Syed Murtaza Ali Zaidi, Advocate for Petitioner. Date of hearing : 17-2-1997. order Wali Muhammad petitioner has assailed the appellate judgment and decree dated 7.12.1996 upholding the dismissal of the suit of the petitioner by the learned Civil Judge on 1.4.1996. 2. Brief facts of the case are that Wali Muhammad petitioner filed a declaratory suit against the respondents on the grounds that he was own of land mentioned in the head note of the plaint; respondents had no concern whatsoever with the same; registered sale deed bearing No. 602 dated 26.11.1957, Mutation No. 1 attested on 2.10.58 on behalf of the petitioner in favour of Imam Din, the predecessor-in-interest of the respondents and inheritance mutation bearing No. 432 attested on 25.7.75 were against law, facts, without consideration fictitious, based on fraud and, thus, ineffective qua the rights of the petitioner. Decree for perpetual injunction was also solicited to the effect that the petitioner was owner of the suit property and respondents had no concern whatsoever with the same; respondents be restrained to assert any right qua the suit property. The suit was resisted by the respondents which gave rise to the framing of following issues :-- 1. Whether the plaintiff is owner of suit khasra No. 8/4-12? OPP. 2. Whether the registered sale deed No. 602 dt 26.5.57 and mutation No. 432 dated 25.7.75 are illegal, null, void, against law and facts, without consideration, based on fraud, as such ineffective/inoperative upon the rights of the plaintiff? OPP. 3. Whether the suit is within time? OPD. 4. Whether the suit is false, frivolous and vexatious, as such defendants are entitled to special costs u/s 35-A CPC? OPD. 5. Whether the plaint is liable to be rejected under Order 7 rule 11 CPC? OPD. 6. Whether the plaintiff had agreed to sell the suit land to Imam Din, defendant and he executed impugned sale deed in favour of the defendants? OPD. 7. Relief. 3. Learned Civil Judge after recording the evidence of the parties and hearing the arguments of the learned counsel, dismissed the suit of the petitioner against which his appeal was dismissed vide the impugned judgment and decree. 4. Learned counsel for the petitioner contends that the courts below have mis-read the evidence on record in coming to the conclusion that the petitioner has failed to establish his claim. 5. I have heard the learned counsel at length. P.W. 2 Muhammad Saddi stated during his cross-examination that at the time of execution of sale deed he was only 16 years old and he did not know as to how much lease amount was being taken by the petitioner. Similarly, P.W. 3 Hakam Ali stated that he had heard from the inmates of 173/EB, about the information deposed by him in the Court. P.W.I Wali Muhammad petitioner stated that he had given possession of the suit property to Imam Din, father of respondents and himself initially went to Sahiwal and thereafter Multan in connection with his service. He also stated that about 25/26 years, he remained away from the suit property. During cross-examination, hecategorically stated that since very beginning, the suit property was in possession of the respondents. The evidence of the petitioner is neither cogent nor confidence inspiring as compared to that of the respondents.Registered sale deed could not be held to be forged of fictitious without strong rebuttal thereof. The petitioner has failed to establish that the sale deed executed in favour of the predecessor-in-interest of the respondents was fictitious. 6. The sale deed was executed on 26.5.57 and Mutation No. 432 was attested on 25.7.75. Respondent was in possession of the land in his own right on the basis of the title mentioned above. Petitioner was never in possession of the property since very beginning as admitted by himself. The perusal of the evidence clearly shows that the petitioner was in knowledge ofthe impugned sale deed dated 20.5.57 since 1957 and the suit filed by him in the year 1992 was clearly barred by limitation. The finding of the Courts below treating the suit of the petitioner as barred by time is based on valid reasons and call for no interference. The concurrent findings of the Courts below are supported by the evidence on record. No legal error or material irregularity has been shown by the petitioner in the impugned judgment. 7. For the reasons stated above, this petition is dismissed in limine. (K.A.B.) Petition dismissed in limine.
PLJ 1997 Lahore 585 PLJ 1997 Lahore 585 Present: SHARIF HUSSAIN BOKHARI, J. MUBBASHER AHMAD-Petitioner versus TALAT KHURSHID and others-Respondents Writ Petition No. 12452 of 1996, dismissed on 23.7.1996. . West Pakistan Family Courts Act, 1964 (XXXV of 1964)- -S. 5 & Sched.-Muslim Family Laws Ordinance (VIII of 1961), read with rt. 199 of Constitution of Pakistan, 1973--Contention that Judge Family Court did not have jurisdiction because parties are Ahmadi to whom provisions of Family Court Act, 1964 are not applicable-Petitioner, however, participated throughout proceedings of suit before Family Court and did not raise question of jurisdiction before Family Court and therebeing no finding of Family Court, such question would not be permittedto be raised for first time in Constitutional petition, especially when correctness of such objection was doubtful-Whole effort of petitioner in raising such question, appeared to be mala /Me-Petitioner having failedbefore Family Court wants to have judgment and decree passed against him set at naught on plea of jurisdiction-Constitutional petition against judgment and decree of Family Court was not competent in circumstances. [Pp. 587 & 588] A & B Sardar Abu Shahnam KM. Shaheen Choudhary, Advocate for Petitioner. order In this writ petition, the judgment and decree passed on 2.4.1996 by the learned Judge Family Court, Narowal whereby the suit of the respondent for dissolution of marriage was decreed has been challenged. 2. Learned counsel for the petitioner states that he does not want to argue the case on the merits but only on one preliminary objection relating to the jurisdiction of the Court. The objection precisely is that the Judge Family Court did not have the jurisdiction because the parties i.e. the present petitioner and respondent No. 1 are Ahmadi to whom the provisions of Family Courts Act, 1964 are not applicable. 3. On the question of jurisdiction of the Family Court, learned counsel for the petitioner would not be permitted to address the arguments at this stage in the writ jurisdiction because this question was not raised before the Family Court in the pleadings nor was any issue claimed there and accordingly no evidence had been adduced by either party to that effect. However, he has referred to the statement of the present petitioner recorded by the learned Judge Family Court which is as follows: He has also referred to the following portion of the statement of respondent No. 1 recorded by the learned Judge Family Court: From the statements of the petitioner and respondent No. 1, it appears that both belong to Ahmadia Community 4. Learned counsel has referred to section 5 of the Family Courts Act, 1964 which reads as follows:- "5. Jurisdiction. --Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961 the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." 5. On the basis of section 5 of the Family Courts Act, 1964, the learned counsel submits that the provisions of Family Courts Act, 1964 apply only to the Muslims, therefore, the Judge Family Court who passed the decree in the present case did not have jurisdiction to decide the case relating to the dissolution of marriage of the parties who admittedly are the Ahmadis. He has also referred to section 2 of the Dissolution of Muslim Marriages Act, 1939 and contends that the divorce can be obtained by a lady professing Muslim faith on the grounds enumerated therein. Respondent No. 1 was not a Muslim, therefore, the grounds mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939 are not available to her. When asked whether an Ahmadi wife has the right to get divorce on the basis of Khula under the personal law of Ahmadis Community, the learned counsel was unable to answer this question. He has not shown me any law relating to the Ahmadis providing that the Ahmadi wife cannot get marriage dissolved on the basis of Khula according to their own law. 6. Learned counsel for the petitioner referred to the judgment of the learned Federal Shariat Court in "Sultan Ahmad u. Mst. Mchr Bhari and another" (PLD 1982 FSC 48) to contend that the Family Courts Act, 1964 does not apply to the Ahmadis who are not Muslims. The contention of the learned counsel is fallacious as in this very judgment, it is observed as follows:- "We agree with the learned counsel that generally the provision of the Family Courts Act may be applicable to non- Muslims also but the whole question is whether clause (a) of subsection (2) which makes specific reference to Dissolution of Muslim Marriages Act is limited to Muslims also caters to the dissolution of marriages of any non-Muslim community living in Pakistan." 7. In this judgment the learned Federal Shariat Court has referredto many special laws such as Divorce Act, 1869; Christian Marriages Act, 1872, Parsi Marriages and Divorce Act, 1936; Native Converts Marriage Dissolution Act, 1866 and Anand Marriage Act, 1909 and observed that in these special enactments the special forum are provided. 8. Since there is no special enactment in field to cover dissolution of marriages of Ahmadis and no special forun. is provided, the Family Courts Act, 1964 shall be applicable to them as well. This is strengthened by the fact that in section 1(2) of the Muslims Family Laws Ordinance, 1961 it is provided that "it applies to all Muslim citizens of Pakistan , wherever they may be," and the Preamble and section 2 of the Dissolution of Muslim Marriages Act, 1939 clearly states that it applies to Muslims only. However, there is no such provision in the Family Courts Act, 1964, the Preamble whereof declares as under:- "Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith." 9. No provision of the Family Courts Act, 1964, has been brought to my notice which makes it applicable exclusively to Muslims. The reference to the Muslim Family Law Ordinance, 1961 in section 5 of the Family CourtsAct, 1964 indicates that the matters covered by and determinable under theMuslim Family Laws Ordinance, 1961 shall be dealt with according to that Ordinance and would not be tried and decided under the Family Courts Act, 1964. It does not mean, as argued by learned counsel for the petitioner, that by virtue of reference of Muslim Family Laws Ordinance, 1961 in section 5 of the Family Courts Act, 1964, the application of the latter enactment is excluded for non-Muslims. . 10. Admittedly the question of jurisdiction on the basis that the parties are Ahmadis, was not taken in the written statement by the present petitioner nor was any issue claimed to that effect. However, learned counsel for the petitioner relying on Rashid Ahmad v. The State (PLD 1972 SC 271) contends that the question of jurisdiction can be raised at any stage of the proceedings and in this connection the production of the following passage of the judgment shall be useful:"It has been held by this Court in the above mentioned case that if a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in Continuation of these processing in appeal or revision equally suffer from illegality and are without jurisdiction." 11. The principle enunciated by the Hon'ble Supreme Court is also not attracted to the present case as the petitioner before me has filed writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which is not the continuation of the proceedings of the suit under the Family Courts Act, 1964. 12. Since the petitioner participated throughout the proceedings of the suit before the Family Court and did not raise this objection and there is no finding by the Family Court, this question would not be permitted to be raised for the first time in the writ petition, especially when the correctness of this objection is doubtful. The whole effort of the petitioner appears to be mala fide. The petitioner having failed before the Family Court, wants to have the judgment and decree passed against him set at naught on this plea.The petitioner has no case on merits and learned counsel has rightly chosen not to argue the case on merits. The writ petition is accordingly dismissed in limine. (A.P.) Petition dismissed.
PLJ 1997 Lahore 588 PLJ 1997 Lahore 588 [Multan Bench] Present: sh. amjad ali, J. M/s. IBRAR FLOOR MILLS-Petitioner versus PROVINCE OF PUNJAB etc.--Respondents W.P. No. 7988/96, dismissed on 19.1.97. (i) Constitution of Pakistan, 1973- Arts. 199, 4, 18 and 25 read with Rule 4 of the Punjab Government Rules of Business, 1974 and S. 21 of General Clauses Act, 1897-Contention that Former Provincial Minister for Food, Punjab directed that petitioners be given twenty four hours wheat quota-These order were, however, withdrawn later on by Directorate, Food, Punjab-Petitioners have challenged this order on ground that order of Food Minister could not be rendered ineffective by his subordinates and have, therefore prayer for continuation of twenty four hours supply of wheat as was ordered by Former Minister-Order of Provincial Food Minister for grant of enhanced or additional supplies of wheat at subsidized rates to few in preference to others dearly smacks of arbitrariness-No, doubt, food minister is Head of the Provincial Food Department but his orders are subject to such limitations as are imposed by law and constitution- Orders for additional quota ppssed by him in favour of petitioners clearly reflects that such orders were passed without obtaining report from concerned Department or ascertainingactualgrindingcapacityoftheir mills-Held further : There is no justification in Continuation of special quota of wheat approved by Provincial Minister of Food in favour of petitoners-Petitions dismissed. [Pp. 591] A (ii) Constitution of Pakistan, 1973- Art. 199~Discretion or relief-Grant of-Prayer for-It is a settled principle that the High Court in exercise of powers vested under Art. 199 is not required to provide discretionary relief at the cost of other people by causing injustice to them-High Court under its discretionary powers should not proceed which may ultimately has effect of defeating ends of justice or in aid of injustice. [P. 592] B & C Aniqa Mughis A. Sheikh, Ch. Abdul Sattar Goraya for Petitioner Mr. Tahir Wasti AAG Muhammad Rasheed Qamar, Advocate for Food Dep. Mr. Akhtar Masood, for State Mr. Muhammad Rafiq Rizwan, Advocate for Association for Respondents.Date of hearing: 12.1.1997. judgment This judgment will dispose of Writ Petition Nos. 7988/M/96 (M/s. Abrar Flour Mills vs. Province of Punjab , etc.), 184/97 (Three Stars Flour Mills vs. Province of Punjab , etc.) and 185/97 (National Flour Mills vs. Province of Punjab etc.) as the common question off law and facts are involved therein. 2. Briefly, the facts are that on application made by petitioners in W.P. No. 7988/M/96, the former Provincial Minister for Food, Punjab, was pleased to order on 22.10.1996 that the petitioners be given twenty-four hours wheat quota. These orders were, however, withdrawn from the 9th November, 1996, by the Directorate, Food, Punjab , by its letter No. DF- ADF-I (SQ) 1096, dated the 7th November, 1996. The petitioners in Writ Petition No. 7988/M/96 have challenged this order of Directorate of Food, Punjab , on the ground that the order of Food Minister could not be rendered ineffective by his subordinates and have, therefore, prayed for continuation of twenty-four hours supply of wheat as was ordered by the former Minister. 3. The petitioners in Writ Petition Nos. 184/M/96 and 185/M/96 have claimed that the quota of their mills was espectively fixed at 160 and 100 metric tons of wheat per day but the said supply has been reduced by the Food Department on the plea of shortage in the stock, notwithstanding that the grinding capacity of the petitioners mills was much more. It has, therefore, been prayed that the petitioners should be supplied wheat by the Department according to the daily grinding capacity of their mills already approved by the Department. 4. The learned counsel appearing on behalf of the petitioners contended that under rule 4 of the Punjab Government Rules of Business, 1974, framed under Article 139 of the Constitution, each Department of the Province of the Punjab consists of a Minister as its executive head, Secretary and such other officials as the Provincial Government may determine. The Provincial Ministers are responsible for all policy matters and for the conduct of business of their respective Departments. It was, therefore, contended that in view of these powers any quota for supply of wheat approved by the Minister being incharge of the Department could not be cancelled or withdrawn by his subordinate i.e., the Director, Food, Punjab, as such action would be in conflict with the principles laid down in section 21 of the General Clauses Act, 1897, whereunder only the authority issuing an order can withdraw the same. It was also urged that before cancellation of special quota, it was necessary that the petitioner be given an opportunity of show cause and being heard. According to the petitioner, there was no shortfall of the wheat as the Department has sufficient quantity of wheat in its stock and the Government is also importing wheat in large quantity for supply to the public through flour mills on subsidized rates upto the 30th April, 1997, whereafter the four mills can directly purchase the wheat from the market. 5. It was contended on behalf of the Department that there were thirty-eight flour mills and forty-one Chakkis (wheat grinding machines) in Multan and Lodhran Districts. The said thirty-eight flour mills have one hundred and fifty-seven bodies and thereby upto the 30th April, 1997, the Government is required to supply at least 10,00,040, bags whereas the Food Department has in its stock only 6,09,950 bags with a shortfall of 3,90,090 bags. It was contended that if the special quota to the petitioners is continued, there is likely to be shortfall of 6,75,290 bags. The Department is of the view that since more and more flour mills are seeking special quotaswhich, in view of huge shortfall in the stocks, it will not be possible for the Department to supply any wheat to the flour mills. In view of the shortfall the Government has decided to do away with all special quotas and provide wheat to all the flour mills, without any preference, according to their grinding capacity for eight hours only. The Food Department was also of the view that subsidized wheat is generally smuggled out by the flour mills without grinding to earn more money. 6. Malik Muhammad Rafiq Rajwana, Advocate, who represented the Multan Flour Mills Association (respondent No. 5) shared the aforesaid apprehension of the Food Department that if the special quotas of certain selected flour mills is continued, ultimately the Food Department will be left with no wheat in its stock to supply wheat to other flour mills of the area. It was further explained that the supply of wheat under special quotas is contrary to the rights of equal protection available to every citizen of Pakistan under Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan. 7. It is the policy of the Government that the flour is available to the people at reasonable price. For that purpose every year the Government makes purchases of large quantity of wheat during its harvesting season so as to keep the consistent supply to flour mills, particularly during lean months when the prices of wheat in the market rises. Since there is always a price difference in the wheat supplied by the Food Department and the rate on which it is available in the open market, the flour mills prefer to purchase wheat at the subsidized rates from the Food Department than from the market either because of shortage or high prices. It is in that context that the Food Department has expressed serious apprehensions that the four mills which have obtained orders of special quotas for supply of wheat from the political persons in authority are missing the concession to earn undeclared profits by selling subsidized wheat directly in the market on higher prices instead of grinding and selling it in the market as flour to keep its easy availability to the public at large. These special quotas are also source of resentment amongst those millers whose supply has been reduced under a uniform policy. 8. The order of the Provincial Food Minister for grant of enhanced or additional supplies of wheat at the subsidized rates to few in preference to others clearly smacks of arbitrariness. No doubt, the Food Minister is head of the Provincial Food Department but his orders are subject to such limitations as are imposed by law and Constitution. The orders for additional quota passed by him in favour of petitioners in Writ Petition No. 7988/M/96 clearly reflects that such orders were passed without obtaining report from the concerned Department or ascertaining the actual grinding capacity of their mills. Neither the position of the existing stock of the wheat was takeninto consideration before passing orders for enhanced quota in favour of the petitioner nor it was visualized that grant of such additional quota of wheat would deprive the other flour mills to receive constant supply of wheat at a uniform scale. It was also not ensured that because of prevailing higher prices of wheat in the open market, the wheat supplied by the Food Department at the subsidized rates is actually used for grinding or is sold in the market as is alleged by the Food Department and the Flour Mills Association. 9. There is no denial that the additional quota of wheat to certain mills at the subsidized rates is made at the cost of remaining flour mills whose quota is reduced. This order of the Provincial Food Minister is, therefore, clearly discriminatory and contrary to the rights of the owners of other flour mills who are being supplied wheat to keep their mills running for eight hours only. It is a settled principle that the High Court in exercise of powers vested under Article 199 of the Constitution is not required to n provide discretionary relief at the cost of other people by causing injustice to them. In Mst. Sakina and others vs. Muhammad Yamin Khan and others (P.L.D. 1984 S.C. 3), it was held by the Supreme Court that the High Court under its discretionary powers of the writ jurisdiction should not proceed which may ultimately has the effect of defeating the ends of justice or in the aid of injustice. In Sunny Flour Mills (Put) Ltd. vs. Government of Punjab (W.P. No. 21163/96), in which the issue of grant of additional quota of wheat was involved, my learned brother Malik Muhammad Qayyum, J, had observed that discrimination should not be followed to provide benefit to few. In this respect, it will be pertinent to quote below the principle by laid down by the Supreme Court in Rehmat Ullah vs. Hameeda Begum (1986 SCMR 1561), in respect of exercise of discretionary jurisdiction by the High Court under Article 199 of the Constitution "Undoubtedly, the Constitutional jurisdiction under Article 199 of the Constitution in discretionary. Even when an order impugned before the High Court is found to be lacking in some legal, or jurisdictional requirement, the Constitutional provision does not compel the High Court to issue a writ much less that of certiorari or mandamus. The merits of the case have also to be seen in order to examine whether the discretion is to be exercised or not in favour of the party successfully challenging the legality of the order impugned in writ jurisdiction. If the result is that by setting aside such an order another order would be revived which is unjust or unfair or is otherwise also illegal then before setting aside the first mentioned order the Court will have to examine more carefully the question of exercise of discretion and in proper cases would decline to exercise the discretion and would thus not set aside and order passed if it is illegal provided the setting aside of such an order would result, inter alia, in injustice or revive another illegal order." 10. The impugned order issued under the signatures of Director, Food, Punjab, cancelling and discontinuing the special quotas of wheat issued to some flour mills under the directions of former Provincial Minister for Food is also not the order of the Director, Food, instead by such letter only the policy decision of the Government of the Punjab, discontinuing special quotas for supply of wheat was conveyed to all the flour mills, including the petitioners. The letter is dated the 7th November, 1996, and the special supply of quotas were withdrawn from a future date i.e., the 9th November, 1994, meaning thereby such quotas were also discontinued after due notice. This cancellation order, therefore, cannot be termed as arbitrary or without authority. In fact, under the Food Stuffs Control Act, 1958, whereunder supply of wheat is made to the flour mills, such power of allotment of special quota is not vested with the Minister. The learned counsel representing the petitioners has not cited the provision of any rule or statute whereunder by virtue of his office, a Minister is empowered to grant any special quota of wheat or any other commodity at subsidized rates to any person at its discretion or contrary to the policy laid down in that behalf. In Chairman, RTA vs. Mutual Insurance Company (P.L.D. 1991 S.C. 14), it was held by the Supreme Court that "the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be as enhancement of the powers and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or Precedents, the courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times." 11. The orders of Provincial Minister for Food granting special quota for supply of wheat to the petitioner's flour mill were made without having any legal authority or without laying down any rules or parameters or uniform policy to avoid unnecessary benefit to few at the cost of majority of other flour mills. The supply of wheat to the flour mills at subsidized price is a concession provided to the flour mills so that people may get flour at cheaper rates. This concession should be available to all the flour mills without giving preference to few over others. The smooth supply of wheat is thus not for the purpose of providing any advantage, benefit or extra profits to the selected ones or to keep their flour mills running around the clock but for making the availability of the flour in the market within the reach of common man. The flour mills are otherwise at liberty to make purchase of wheat from open market of whatever quantity they may choose. Hence, whereas on the one hand grant of special quota merely on the basis of discretionary powers of the Provincial Minister or other holders of public offices without any legal sanction cannot be supported at the same time it is the duty of the Government and in particular the Food Department to make rules for allocation of wheat to Hour mills for bringing transparency and eliminating or minimising the exercise oi discretionary powers of the public functionaries for such allocation which are usually abused. In view thereof, there is no justification in continuation of special quota of wheat approved by D the Provincial Minister of Food, Punjab on 22.10.1996, in favour of the petitioners in Writ Petition No. 7988/M/96 or to allow enhanced quota of wheat to the petitioners in the connected Writ Petitions on the basis of twenty-four hours grinding capacity of their mills in preference to other flour mills which are being provided with wheat on the basis of eight hours grinding capacity only. The writ Petitions are, therefore, dismissed with no orders as to the costs. (K.A.B.) Petition dismissed.
PLJ 1997 Lahore 594 [DB] PLJ 1997 Lahore 594 [DB] Present: muhammad aqil mirza and abdul hafeez cheema, JJ. MISS MISBAH MASOOD-Appellant versus PRINCIPAL OF GOVT. COLLEGE FOR WOMEN etc.--Respondents I.C.A. No. 48 of 1996, accepted on 24.2.1997. Law Reforms Ordinance, 1972 (XII of 1972)-- -S. 33 read with Articles 25 and 37 of Constitution of Pakistan, 1973- Admission in M.A. Applied Psychology class-Refusal due to failure in interviewPetition againstDismissal ofAppeal againstAdmission policy does not prescribe that if a person fails in written test or interview will become ineligible to obtain admission in collegeIt should be unjust to deny admission merely on poor performance in interview-Possibility cannot be ruled out that interviewers in some cases may also purposely fail a candidate in interview for ulterior purpose of granting admission to some other candidate with lessor merit for extraneous consideration-A legal instrument which contains arbitrary powers cannot be countenanced and has to be struck downArbitrariness in favour of one and against another would be in violation of constitutional guarantee- Admission in colleges/universities/Institutions of higher learning has to be made on basis of raerit-This right cannot be allowed to be decided by interviewers/selectors in their sole discretion-Impugned refusal to grant admission to appellant in M.A, clays is contrary to provisions of Government Admission Policy and College Prospectus-Held: Order to be without lawful authority and of no legal effect-Appellant must be granted admission in current class-Petition accepted. [Pp. 597 & 598] A to H Mr. MarzoorAJuned Rana, Advocate for Appellant. Mr, Muusoor Ahmed, Advocate for Respondent No. 1. Date of hearing: 24.2,1997 judgment The appellant herein passed B.Sc examination in 2nd Division obtaining 136/200 marks in Applied Psychology Subject. She applied fur admission in M.A. Applied Psychology Class in the Government College for Women, Satellite Town , Rawalpindi on the prescribed form- She appeared in the written test and was shown at serial No. 16 of the merit list of 331 successful candidates. Subsequently the petitioner also appeared in the interview. 25 candidates were selected for admission but the petitioner was dropped on the ground that she had failed in the interview. The constitutional petition filed by the appellant for obtaining admission in the college was dismissed in limine by the learned Single Judge vide order dated 12.1.1996. This intra court appeal is directed against the said order passed by the teamed Sing] e Ju Age. 2. The formula for admission in M.A/M.Sc. classes in various colleges of Punjab is contained in the Government Admission Policy (Annexure-B). According to the admission policy, inter se merit of the candidates is to be determined according to the marks obtained by them on the following formula: 1. Marks obtained in the University Examination in the subject concerned. 2. Credit for divisions obtained in the Public Examination i.e. Matric, Inter and B.A./B.Sc. Calculated according to the following formula Max. Marks. 200 15 1st Division. 2nd Division. 3rd Division. 5 marks 3 marks 2 marks 3. Marks obtained in the written test held by the collage. 25 4. Marks obtained Interview/yz'ya voce. inthe10 2% of the total number of seats may be given to eligible candidates who are outstanding sportsman, College/University Colour Holders or who have been members of Provincial/National Teams.One seat per discipline may be reserved for disabled/handicapped applicants. (They will also be eligible for admission on merit.)" Note: This formula however, fails to mention that as per Government Policy, 20 marks are to be awarded for N.C.C/W.G. training and 20 marks for Hafiz-e-Quran. (Kindly see page 7 of the Admission Regulations 1996 prescribed by University of the Punjab.) The appellant was awarded 136 marks on account of her result in the University Examination in the concerned subject. She obtained 11 marks on the basis of divisions in various examinations. She obtained 10 marks in the written test but she obtained zero mark in the interview. In all she obtained 157/200 marks as per the formula prescribed under the admission policy. The prospectus of the College for the year 1996-98 also contains the rules for admission in the college according to which admission is granted on the basis of merit based on the marks obtained (in the University examination) written test and the viva voce. 3. It is submitted by the learned counsel for the appellant that the appellant had obtained a total of 157 marks but she has not been granted admission, although several other candidates obtaining lesser marks as per the formula referred to above have been granted admission. He has explained that according to the merit list copy whereof has been placed on record, Miss Shazia Riaz with 154 marks, Miss Sabid Gul with 156 marks, Miss Naureen Munawar with 148 marks and Miss Afshan Human with 146marks have been admitted in the M.A. Class despite the fact that they stood below the petitioner in the merit list, while admission in the College has been refused to the appellant merely on the ground that she did not obtain pass marks in the interview. 4. Learned counsel has contended that admission is to be granted according to the inter see merits of the candidates calculated on the basis of the prescribed formula. It is contended that there is nothing either in the admission policy or even in the Prospectus, that the candidates seeking admission are requested to separately obtain pass marks in the interview as well. It is submitted by the learned counsel that naked and uncontrolled powers cannot be given to the interviewers to refuse admission by passing the over all performance of a candidate in the University examination and the written test. According to the learned counsel, the admission policy framed by the Government has purposely avoided to give arbitrary powers to the selectors to decide merit for admission solely on the result of the interviews. 5. Learned Assistant Advocate General on the other hand hassubmitted that the admission to the appellant has been rightly refused because she did not show good performance in the interview. According to him the Committee of the senior teachers who had interviewed the candidates were the best judges to determine as to who were the suitable candidates for admission in the college. According to him, the appellant obtained no mark in the interview and, therefore, she was dis-envJed to obtain admission in the college. Alternatively, it is submitted by the learned law officer that admission was granted to students in September, 1996 and'«!: this belated stage even if admission is granted tc the appellant, she will not be able to make up the deficiency of lectures etc. According to him, the relief on account of lapse of time has become unavailable to the appellant. 6. After hearing the learned counsel for the petitioner and the learned law officer we are of the considered view that this appeal must be accepted. According to the government admission policy the inter se merit ofthe candidates for admission in colleges in the public sector is determined on the basis of over all performance of the candidates. For this purpose, the marks obtained by a candidate in the relevant subject in the last University examination, Divisions obtained by him/her in various examinations, marks obtained in the written test and the interview form basis for the determination of the merit. The admission policy does not prescribe that if a person fails in the written test or in the interview she/he will become ineligible to obtain admission in the college. It is over all performance of a candidate which is relevant for the purpose of admission. Total marks obtained in all the 4 subdivisions mentioned in the admission policy ultimately determine the fitness of a candidate for admission. If a candidate obtains high marks in the University examination in the relevant subject and he/she does well in the written test as well but shows poor performance in the interview, it would be unjust to deny him/her admission merely on poor performance in the interview. May be, he/she was confused at the time of interview or some unpleasant incident took place on account of which he/she was not in a proper state of mind at the time of interview. Above all, possibility cannot be ruled out that interviewers in some cases may also purposely fails a candidate in the interview for the ulterior purpose of granting admission to some other candidate with lesser merit for extraneous considerations. 7. No body should be allowed to have absolute discretion to grant or refuse admission in higher seats of learning. The discretion has to bestructured even in those cases where no limitations are prescribed for exercise of the discretion by the relevant authorities. It may be observed that arbitrariness has to be avoided at all levels. All laws, rules/legal instruments have to be interpreted ia such a way that exercise of powers in arbitrary manner is avoided. A legal instrument which contains arbitrary powers or whereunder powers are capable of being arbitrarily exercised cannot be countenanced and has to be struck down. Our Constitution guarantees equal protection of law to every citizen under Articles 25 of the Constitution. Arbitrariness in favour cf one and against another would be in violation of the constitutional guarantee. 8. Article 337 of the Constitution provides that higher education should be made equally accessible to ail 0:1 the basis of merit. Clause (c) ofthis Article reads as under:- '\c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit." Admission in college:-/Universities/Institutions of higher learning, therefore, lias to be made on the bdsis of merit. Right to obtain admissions in places of learning is a valuabU- vtsi.ed right. This right cannot be allowed to be decided by the interviewers/selectors in their sole discretion. This must be decided on the basis of merit, which in turn is to be worked out according to the prescribed formula. Merit cannot be worked out on performance or nonperformance in only one of the many criteria. It is the over all performance which requires to be taken into consideration for assessing the fitness and suitability of candidates for the purposes of admissions in colleges and Universities. 9. We have noted with satisfaction that in the Government Admission Policy it has not been provided that candidates failing in the interviews are not entitled to obtain admission, even though they otherwise fall within the ambit of selection on account of other prescribed criteria. This has been done to safeguard arbitrariness of the selectors. Indeed if such a provision would have been included in the admission policy or in the Prospectus the same would have been declared unlawful by this Court. The impugned refusal to grant admission to the appellant in the M.A. Class is contrary to the provisions of the Government Admission Policy and theCollege Prospectus and hence the same is declared to be without lawful authority and of no legal effect. Resultantly, this appeal is accepted and the order passed by the learned single Judge is set aside with no order as to costs. Respondent No. 1 is directed to grant admission to the appellant in the current class of M.A. Applied Psychology. 10. It may be observed that we inquired from the Principal of theCollege if the appellant could be accommodated for admission during the next admission. She expressed her inability because the admission in the next class will be granted on the basis of inter se merit of the candidates for the said class. The appellant must, therefore, be granted admission in the current class. May be she can make up the deficiencies on account of late admission and if she is not able to do so, she may not be promoted to next class in accordance with law. We are not inclined to order that the petitioner may be granted admission in place of some ether student with lesser merit. No one already admitted should be disturbed. One student can easily be accommodated in the current class alongwith the already admitted students. (MYFK) Appeal accepted.
PLJ 1997 Lahore 598 PLJ 1997 Lahore 598 Present: MUHAMMAD AQIL MlliZA, J. Mst. GHAUSIA NAZ-Petitioner versus , ' D.E.O. -Respondent W.P, No. 5528 of 1997 disposed of on 7.333.1997. Constitution of Pakistan, 1973 - -Art. 199 read with Articles 2-A. 3, 5, 9 and 14--KS i S.V. Tfachor- Transfer from Elementaiy Education to Secondary Education-Salary not pp : d since 16.2.1996 despite fact that sue is continuously performing her duties-Petition against-It is unfortunate that concerned authorities are not cognizant of legal position that non-payment of salary to an employee who is performing duties or has performed duties, amounts to violation of constitutional commands-It is foremost duty of every functionary of State to see that provisions of Constitution and particularly those relating to Fundamental Rights are vigilantly observed and followed, failing which they are liable to be proceeded for disciplinary action-Functionaries of State who are negligent in performing this Constitutional duty cannot be said to be performing their duties efficiently-Petitioner has been deprived of her Fundamental Rights-An employee who does not receivesalary for considerable period of timeis not expected lo maintain even minimum standard of civilized livingSecretary Education and Accountant General Punjab were directed to look into rievance ofpetitioner, to hold appropriate inquiry and fix responsibility for non payment of her salary-It was further directed that in future delayed payment of salaries to employees of Govt. will result in initiation of disciplinary proceedings against officers found resporisible--If petitioner is performing her duties as pleaded, then salary must be paid to her within next three weeks-Orders accordingly. LPp. 599, 600] A to F Mr. Muhammad Sharif Warsi, Advocate for Petitioner Mr. Muhammad Yawar All Khan, Additional Advocate General (on Court call).Date of hearing: 7.3.1997. order The petitioner is EST/S.V. teacher. She is presently posted in Government Girls High School , Change Manga District Kasur. It is complained that since 15.2 J 996 the salary has not been paid to the petitioner despite the fact that since then she is continuously performing her duties as school teacher. Learned counsel states that initially she was appointed in the elementary education and her D.D.O. was respondent No. 1 but in June 1996 she was transferred to secondary education and respondent No. 2 is the D.D.O. in respect thereof. The salary, according to the learned counsel is not bein Accounts Officer, education to the seeuad xue 1,0 tne p ' education. a-count of some objections raised by the District 's transfer from elementary 2. It is iinbruinate iliat the concerned authorities are not cognizant of the legal position thai noa-payment of salary to an employee who is performing duties or has performed duties, amounts to' violation of constitutional commands. In such like cases where salary is not paid, Articles 2-A, 3, 9 and 14 of the Constitution are violated. Needles to say that it is the foremost duly of even- functionary of the State to see that provisions of the Constitution and pari.eah.ily those relating to the Fundamental Rights are vigilantly observed and followed, failing which they are liable to be proceeded for disciplinary action. In this behalf attention may be invited to Article 5 of the Constitution which, infer alia, requires as follows "(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan Functionaries of the States who are negligent in performing this constitutional obligation cannot be said to be performing their duties efficiently at least, for which they are liable to be proceeded against in disciplinary proceedings. In the instant case if the facts as stated above are B correct that the petitioner though performing the duties, has not received the salary on one technicality or the other for the last one year. Her constitutional rights have been violated, particularly she has been deprived of the Fundamental Rights enshrined in Articles 9 and 14 of the Constitution. 3. Article 9 guarantees to life. It may be observed that "life as occurring in this articles does not merely mean vegetative life. It includes life which a person of civilized society should live. An employee who does not receive salary for considerable period of time is not expected to maintain even the minimum standard of civilized living. Article 14 provides that dignity of man shall be inviolable. Can it be possibly said that an employee, particularly a low paid female teacher can maintain her dignity and selfrespect in sustaining her existence for a long time without getting salary. Answer is obviously no. 4. Copy of this petition shall be forwarded to the Secretary Education, Government of the Punjab. He shall look into the grievance raised in this petition, hold appropriate inquiry and fix responsibility on officers responsible for non-payment of salary to the petitioner. Similarly, copy of the writ petition shall be forwarded to the Accountant General Punjab. He will also look into the conduct of the District Accounts Officer, Kasur with regard to the non-payment of salary to the petitioner. The 'Secretary Education and the Accountant General Punjab will issue necessary instructions to the subordinate officers, under intimation to the Deputy Registrar (Judicial) of this Court, warning them that in future delayed payment of salaries to the employees of the Government will result in imitation of disciplinary proceedings against the officers/officials who are found responsible for non-payment/delayed payment of salaries to the employees. It may be observed that nothing can be more inefficient than to deprive an employee of his salary, within the meaning of Efficiency and Disciplinary Rules. 5. The question of payment, of salary to the petitioner involved inthis case shall be finally resolved within the next three weeks. Needless to observe that if the petitioner is performing her duties as pleaded, then the salary must be paid to her within the said period. With the above direction, this petition is disposed of. (MYI'K) Order accordingly.
PLJ 1997 Lahore 601 PLJ 1997 Lahore 601 Present: muhammad aqil mirza, J. Mst. KHURSHID AKHTAR etc.-Petitioiiers versus SHO etc.Respondents. Writ Petition No. 5840-Q-97 accepted on 12.3.1997, Constitution of Pakistan, 1973-- -Art. 199 read with S. 561-A of Cr.P.C. and Ss. 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Quashment of F.I.R.- Mst. Khurshid Akhtar is Sui Juris and she contracted marriage with her own will and volition-Absence of consent of her father does not invalidate marriage-Occurrence took place 25.2.1997 but prior to that marriage took place on 22.2.1997-Resultantly FIR u/Ss. 10/11 of Offence of Zina (Enforcement of Hudood), 1979 quashed-Father of petitioner No. 2 was directed to get sanction of gift in favour of Mst. Khurshid Akhtar made by him, otherwise contempt proceedings shall be initiated against him-He was further directed to treat Mst. Khurshid Akhtar with honourand dignity and with affection by his family-He will further execute a bond in the sum of Rs. 200.000/- that she will not in any way be maltreated or disgraced-Petition accepted. [P. 602] A to D Mr. Pervaiz Inayat Malik, Advocate with Petitioners in Person. Rana Muhammad Hanif, Advocate with father of Petitioner No. 1. Mr. Muhammad Yawar Ali Khan, Additional Advocate General for Respondent etc. Date of hearing: 12.3.1997 judgment Mst. Khurshid Akhtar aged 19 years is present in Court. Her father has stated that if she makes statement that she wants to go with her husband then he will not feel aggrieved. However, he has not shown inclination to bless this marriage, on account of social constraints. 2. Mst. Khurshid Akhtar in the presence of her father has stated that she has contracted marriage with Mumtaz Ahmed with her own consent and she wants to go with her husband. Learned counsel for the complainant does not oppose this petition in view of the statement made by her and the above said statement of his client. Mst. Khurhsid Akhtar is permitted to go with her husband as per her desire. With regard to Sultan Mehmood, Kashif Ali, Mst. Sabira Bibi, who are respectively the friend, the nephew and mother of Mumtaz Ahmed the Sub-Inspector states that these three persons were riot called by the police. Resultantly, they are set al liberty and they may go wherever they like. 3. The marriage in the instant case is admitted. It is also admitted that Mst. Khurshid Akhtar is sui juris and she contracted marriage with her I own will and volition. Absence of the consent of her father does not (invalidate the marriage. Learned Additional Advocate General states that 'there is no justification in these circumstances for continuation of the investigation proceedings in the FIR. He does not oppose the prayer made by the learned counsel for the petitioners that the FIR may be quashed. In the instant case the occurrence is alleged to have taken place on 25.2.1997 but B| prior to that the marriage took place on 22.2.1997. In this view of the matter no offence has been committed. Resultantly, FIR No. 90/97 dated 3.3.1997 registered at Police Station Garh, District Faisalabad, under Sections 10/11 of the Offence ofZina (Enforcement of Hudood) Ordinance, 1979 is quashed. 4. Nazar Muhammad father of petitioner No. 2 states that by way of additional dower he has gifted one acre of land out of six acres that he owns, in favour of Mst. Khurshld Akhtar, his daughter-in-law. The oral gift has been Accepted by Mst. Khurshid Akhtar in Court. Nazar Muhammad undertakes that the mutation with respect to this gift in favour of Mst. Khurshid Akhtar will be got sanctioned by him within the next one month. q Under Muslim Law an oral gift of this nature does not require registration. The gift is already complete and Mst. Khurshid Akhtar has become owner of 'one acre of land. The Tehsildar Tandilianwala shall sanction mutation of the gift in favour of Mst. Khurshid Akhtar in respect of one acre of land at the instance of Nazar Muhammad, within the next 330 days and send a copy of the mutation to the Deputy Registrar (Judicial) of this Court. If Nazar Muhammad does not approach the Tehsildar for the purpose of the gift mutation, contempt proceedings shall be initiated against him. Nazar iMuhammad further states that. Mst. Khmslud Akhtar will be treated in his family with honour and dignity and she will be treated with affection by his D family. He shall execute a bond in the sum of Rs. 2,00,000/- that she will not in any way be maltreated or disgraced. The writ, petition stands accepted in the above terms. (MYFK) Petition accepted
PLJ 1997 Lahore 602 PLJ 1997 Lahore 602 Present: muhammad aqil mirza, J, IBRAR HUSSAIN-Petitioner versus COLLECTOR OF CUSTOMS etc. --Respondents Writ Petition No. 8051 of 1990, accepted on 27,3.1997, Constitution of Pakistan, 1973-- -Art. 199 & 212--Appointment as Customs Inspector-Termination of- Challenge to-Twenty Eight writ petitions were filed by Customs Inspectors who had been appointed in same manner in which petitioner was appointed and their services were also terminated on direction of Cabinet-These petitions were accepted by High Court, through consolidated judgment in W.P. No. 8508/90--Rule of consistency demands that this petition should also be accepted--In peculiar circumstances of this case, impugned order having been passed on dictation of an extra-departmental authority for extraneous considerations is patently mala-flde and cannot be said to have been passed by competent Departmental Authority and hence, it was not amenable to Departmental Appeal, therefore, bar of Article 212 is not attracted-More over, impugned order being appointment order, falls outside the scope of Service Tribunal-Such an order cannot be passed byfunctionaries of State without assigning any reason-So long as vacancies exist, persons appointment against those vacancies cannot be rempved from service arbitrarily without cogent reasons-"Without assigning reasons" means that valid reasons for removal of an employee must exist on record but it may not be communicated to employee-Held: Services of petitioner have been illegally terminated and he should also be reinstated like others-Petition accepted. [Pp. 605 to 608] A to E Malik Azam Rasool, Advocate for PetitionerMr. A Karim Malik, Advocate for Respondent No. 2. Date of hearing: 22.1.1996. judgment The relevant facts involved in this Constitutional petition are like this. The petitioner graduated from the Punjab University in 1986. He remained jobless for three years. His application for employment made in routine to the Prime Minister was transmitted to the Central Board of Revenue on 21.5.1989. Subsequently the post of Inspector (Customs) was offered to him vide letter dated 25.7.il i S9 by the Collector (Customs) Lahore (respondent No. 1) and he joined this post on 27.7.1989. After clearing the medical test he undertook the requisite training and completed the same on 10.10.1989. The services of the petitioner were, however, terminated with effect from 23.10.19S9 by the Collector Customs in pursuance of the direction of the Central Board of Revenue. The similar allegations contained in ground (a) were not adverted to but it was pleaded that the petitioner's services were purely on temporary and ad hoc basis and, therefore, could be terminated without assigning any reasons or issuing cf any notice. The allegations made in the petition read with the afore quoted letter, prove beyond doubt that the petitioner's services have been terminated on the direction of the Special Assistant to the Prime Minister on the desire of the M.N.A. 3. Learned counsel for the petitioner has submitted that several writ petitions including Writ Petition No. 8508/90 were filed by several other Customs Inspectors who had also been appointed like the petitioner on the recommendation of the Prime Minister Secretariat/Placement Bureau and whose Services had been terminated in similar circumstances by the C.B.R. Their Writ Petitions were accepted on 19-5-1991. The Federal Government filed appeals in the honourable Supreme Court but the same were dismissed as withdrawn vide order dated 21.11.1993. Annexure "K" is the copy of the order dated 21.11.1993 passed by the Supreme Court. It reads as underPRESENTMr. Justice Dr. Nasim Hasan Shah, C.J. Mr. Justice Fazal Elahi Khan. Mr. Justice Manzoor Hussain Sial. C.As. 468 to 508/92 Additional Commissioner Income Tax & others vs. Zafar Hussain & others. (On appeal from the judgment and order of the Lahore High Court, Lahore dated 19.5.1991 in W.P. No. 8986/90 etc. For the appellants: Mr. Aftab Iqbal Chaudhry D.A.G. Mr. Gulzar Hasan, AOR (absent). For respondents in C.A. 492, 485, 508/92 Mr. Tala Farooq Sh. ASC S. Abul Asim Jafri, AOR (absent). For respondent in C.A. 493/92 Ch. Akhtar Ali AOR. ORDER Learned Deputy Attorney General submits that he has been instructed to withdraw the above noted appeals. Mr. Talat Farooq Shaikh, the learned counsel for the respondents in some appeals has no objection to the withdrawal of the appeals. The appeals are, accordingly allowed to be withdrawn and shall stand dismissed as with no order as to costs." 4. Learned counsel has contended that the impugned letter of termination of the petitioner's services is void cb initio because it has been passed on the direction of the Special Assistant to the Prime Minister to oblige an MNA who wanted his own nominee to be appointed in place of the petitioner. According to the learned counsel, the impugned order has neither been passed by the competent authority in .his own discretion nor the same has been passed in the public interest. It is patently a mala fide order passed in abuse of authority. He further submitted that like other Customs Inspectors were similarly placed, the petitioner also requires to be reinstated in service. On the question of maintainability of the petition, learned counsel for the petitioner has submitted that Article 212 of the Constitution is not attracted in the circumstances of the present case as in fact it is a case of appointment and no terms and conditions are involved because the petitioner's services have been tenninated on the desire of the MNA and the impugned order has not been passed within the scope of the relevant service rules. Nor the impugned order can be said to have been passed by the competent departmental authority. 5. Mr. A. Karim Malik Advocate represented respondent No. 1. He has informed that respondent No. 2 who had been inducted in service in place of the petitioner on the asking of the MNA did not join the service. Learned counsel has opposed the acceptance of the writ petition and in this regard he has firstly contended that this petition is barred by Article 212 of the Constitution. According to him, the petitioner should approach the Federal Service Tribunal which alone is competent to grant the appropriate relief. The second submission of the learned counsel is that the very appointment of the petitioner was not in accordance with law because it was made in pursuance of a directive receive from the Prime Minister Secretariat. According to the learned counsel, since the appointment was not in accordance with the prescribed rules and the procedure, no grievance can be made if the same has been undone by -the Department. It is further submitted that under the terms of the appointment letter services could be terminated without assigning any reason or issuing show cause notice. The impugned order, therefore, according to him, has been passed within the scope of the appointment letter and the same cannot be challenged in writ jurisdiction. Learned counsel has also taken objection that actually the CBR had directed respondent No. 1 to pass the impugned order but the CBR has not been made respondent in this petition. In the absence of the C.B.R. as arespondent no relief can be granted. On the question of decisions in similar matters, learned counsel submitted that the concession given for withdrawal of the appeal in the Supreme Court did not create estoppel for respondent No. 1 to pass the impugned order. 6. Admittedly many writ petitions had been filed by those who were appointed on the recommendation of the Prime Ministers Secretariat/ Placement Bureau against substantive vacancies on ad hoc basis to various categories (EPS 9 to BPS 14). Twenty eight writ petitions were filed by the Customs Inspectors who had been appointed in the same manner in which the petitioner was appointed and their services were also terminated on the direction of the Cabinet. These writ petitions were accepted by this Court through consolidated judgment passed iu Writ Petition No. 8508/90 with the following conclusions:- "The petitioners in all these cases were appointed against substantive vacancies after they satisfied the qualificational requirements. All the persons employed through the instrumentality of the Placement Bureau have been thrown on road. Some of them have been become over age. It is not the case of the respondents that either the petitioners lacked requisite qualification or the authority that appointed them lacked the competence to do so. They remained in service for quite some time. During all this period the petitioners worked at different places, went through training successfully, qualified departmental examinations and acquired vestd rights. "In all these cases the impugned orders were not passed by departmental authority within the contemplation of the above explanation. The orders have been simply implemented pursuant to a policy decision of the Cabinet. The departmental authority has simply communicated the decision without application of its mind. Mere communication by the departmental authority of an order would make the departmental authority as the maker of the name. Application of mind is not visible from these orders. As mentioned in the preceding paragraph by a single stroke of pen, the Collector has terminated the services of 32 employees simply mentioning the decision of the Government communicated to him. The defect is so apparent on the face of the record that by no stretch of imagination it can be said that the authority has applied its mind independently. Reliance in this respect is placed upon Mst. Chanda Begum vs. Settlement Commissioner and another (PLD 1977 SC 503). "Since the impugned orders in these cases have not been passed by the departmental authority, as such the appeal would not have been competent nor the Service Tribunal would have any jurisdiction to entertain the same. Hence, the bar of jurisdiction imposed by Article 212 of the Constitution would not be attracted. In this view, I am fortified by a judgment delivered by Mr. Justice Shafi-ur- Rehman as he then was reported in NLR 19S5 P-50 Malik Faiz Muhammad Awan vs. Punjab Transport Board wherein the learned Judge held that those persons who entered the service initially in the government and retained the character of a civil servant, the Managing Director of Road Transport Board would not have any power to retire them as he was not falling within the description of departmental authority." 7. The rule of consistency demands that this petition should also be accepted and it is so ordered. The question of jurisdiction with reference to Article 212 of the Constitution was also raised in the said writ petitions but the same was repelled. In the peculiar circumstances of this case, the impugned order having been passed on the dictation of an extradepartmental authority for extraneous considerations is patently mala fide and cannot be siad to have been passed by the competent departmental authority and hence it was not amenable to departmental appeal and, therefore, bar of Article 212 of tht Constitution is not attracted. Moreover, the impugned order is also the appointment order of respondent No. 2 and being appointment order it falls outside the scope of the Service Tribunal. 8. It may be pointed out that the present writ petition is pending in this court since 1990. It appears that due to mistake by the office this petition could not be heard alongwith the aforesaid writ petitions decided by my learned brother Tanvir Ahmad Khan J. Had it been placed alongwith similar cases before the honourable Judge it too would have been accepted. Therefore, no laches are involved nor can the petitioner be allowed to suffer on account of mistake of the office of the court. 9. So far as the question that the impugned order has been passed within the scope of the contract accepted by the petitioner that his services could be terminated without assigning any reason or show cause notice is concerned, it may be observed that such an order cannot be passed by the functionaries of the State without assigning any reason. When it is said in an employment contact that services can be terminated without assigning anyreason, it does not mean that the order can be passed without any reason at all. So long as the vacancies exist, the persons appointed against those vacancies cannot be removed from service arbitrarily without cogent reasons. "Without assigning reason" means that vlaid reasons for removal of an employee must exist on record but it may not be communicated to the employee. This question came up before the Supreme Court of India in Kumari Shrilekha Vidyarthi etc. vs. State of U.P. and others (1991) Supreme Court cases 212) where a large number of State employees were terminated unblock \vithout assigning any reasons on account of the contract clause. The order of termination of the employees was set aside and it was held:- ".... The expression "at any time" in the other part of clause (3) which enable 1 s tl;e government to terminate the appointment "at any unit; without assigning any cause" merely means tiiai the termination may be made even during the subsistence of the terms of appointment. The expression "without assigning cause" means without communicating any cause to the appointee whose appointment is terminated and is not equated with "without existence of any cause", it merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee, though the decision has to be communicated, Tue non-assigning of reasons or the non communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which tiie any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy." 10. The conclusions that I have arrived at in the present case are that the services of the petitioner have been illegally terminated and he should also be reinstated like other Customs Inspectors whose cases were accepted by this Court in Writ Petition No. 8508/90. 11. For what has been stated above, the writ petition is accepted with no order as to costs. The impugned order dated 23.10.1989 passed byrespondent No. 1 is declared to be without lawful authority and of no legal effect, with the result that the petitioner will stand reinstated with effect from the date he reports to respondent No. 1 for duty. Needless to observe, if any further training is required to be undertaken the petitioner can be obliged to do so according to law. Similarly if any departmental examination is required to be passed for the purpose of continuing to hold the post of Customs Inspector, the petitioner will be obliged to do the same, in accordance with law. (MYFK) Petition accepted.
PLJ 1997 Lahore 608 PLJ 1997 Lahore 608 Present: muhammad aqil mirza, J. DR. ANJAM ZUBAIR BHUTTO-Petitioner versus GOVT. OF PUNJAB etc.-Respondents. W.P. No. 734 of 1997, dismissed on 24.3.1997. Constitution of Pakistan , 1973-- -Art. 199-Selection for the post of Assistant Professor (Bacteriology)-- Challenge to--Bacteriology is sub-speciality of subject of Microbiology for nearly four years and she has 18 months teaching experience in Bacteriology-Therefore, she has requisite experience of five years in relevant subject-Petitioner like respondent No. 5 holds post graduate degree of M. Phil in Microbiology-If degree in Microbiology can be considered to be qualifying degree for Bacteriology t':en there is no reason why teaching experience in Microbiology should not be considered to be experience in Bacteriology-Question of eligibility of respondent No. 5 had been determined by four eminent experts in the field-As against their opinion, it cannot be held that respondent No. 5 is not eligible for want of experience in the subjectPetitioner has not been found suitable to hold post in question by Selection Board which included three eminent personalities belonging to medical profession-Petition dismissed. [P. 611 & 612] A to D Sh. Khurshid Ahmed, Advocate for Petitioner. Mr. Tariq Shamim, A.A.G. for the Respondent. Date of hearing: 24-3-1997 order The Punjab Public Service Commission advertised one post of Assistant Professor (Bacteriology) on all Punjab basis with the following qualifications and experience (a) (i) M.B;B.S. or equivalent medical qualification recognized by the PMDC; (ii) Post-graduate qualification in order of preference D.Sc., Ph. D., FCPS, M.D., M. Phil, M.S./M.Sc. (of two years duration) in the subject/speciality or in Community Medicine/CommunityHelath/Public Health with major subject/dissertation in Bacteriology/Miscrobiology/Tropical' Medicine or equivalent qualifications recognized by the PMDC. Note: Persons without Post-graduate qualifications or minor Diploma holders are not eligible for appointment as Assistant Professor and above. (b) Five years teaching or practical experience before or afterpost-graduate qualification in the relevant subject in order of performance, as under:-1st Preference: Teaching experience. 2nd Preference: Practical experience after postgraduate qualification. 3rd PreferencePractical experience before postgraduation. (c) Credit shall be given to the original Research Work published in a Standard Medical Journal, approved by the PMDC." Eight persons including the petitioner and respondent No. 4 applied for the post. Six candidates who had been found eligible were called for the interview on 7.1.1977. As per the report submitted by the Public Service Commission, in the interview only three candidates were found suitable and Dr. Robina Hafeez (respondent No. 5) being at merit No. 1 was recommended by the commission for appointment as Assistant Professor (Bacteriology). So far as the petitioner is concerned he could not qualify in the interview. 2. The petitioner has filed the present constitutional petition, for a declaration that the candidates who did not have the requisite experience and qualification may be declared ineligible for appointment as Assistant Professor (Bacteriology). In the writ petition filed on 9.1.1997 interim reliefprayed for was that the Public Service Commission may be restrained from declaring the result of the selected candidates. The writ petition for the first time came up before this Court on 13.1.1997. The candidates who had appeared in the interview and who were ineligible to apply for the post according to the petitioner, had not been cited as respondents in the petition. Therefore, these candidates were directed to be impleaded as respondents and the Public Service Commission was restrained from making final recommendation, vide order dated 13.1.1997. The amended writ petition was filed on 19.1,1997, in which five candidates have been cited respondents No. 4 to 8. 3. The report received from the Public Service Commission shows that the name of respondent No. 5 being a top of the merit list had been recommendation for appointment on 12.1.1997 before the passing of the injunctive order. In pursuance of the recommendation of the Commission respondent No. 5 has already assumed the charge of the post of Assistant Director (Bacteriology) on 23.1.1997. 4. It is submitted by the learned counsel for the petitioner that so far as the academic qualification is concerned respondent No, 5 is duly qualified to hold the post as like the petitioner she holds the P. Phil degree in the subject of Microbiology. However, his precise objection is that respondent No. 5 does not have the requisite teaching experience of five years in the relevant subject of Bacteriology. The case of the petitioner is that only the petitioner had the requisite teaching experience and, therefore, she should have been selected and appointed as Assistant Professor (Bacteriology) in preference to all other candidates. 5. The learned Assistant Advocate General, on the other hand, has vehemently opposed the writ petition. It is submitted by him that since the n n petitioner did not qualify the interview she was rightly not recommended by the Public Service Commission notwithstanding her eligibility to hold the post. It is submitted by the learned law officer that respondent No, 5 has a brilliant academic record, in that, she obtained gold medal in the subject of Pathology and obtained .Roll of honour from the University. Regarding the teaching experience, it is submitted by him that respondent No. 5 has the requisite teaching experience as she remained demonstrator of Pathology for more than two years and demonstrator in Microbiology for four years. A a certificate has also been placed on record issued by the Head of the Pathology Department, Allama Iqbal Medical College, Lahore to the effect that respondent No. 5 taught the subject of Microbiology (Bacteriology) for 18 months when she was demonstrator of that college from 15.10.1986 to 30.10,1989. The relevant portion of this certificate which is also signed by the Principal of the College is reproduced below:- "This is to certify that Dr. Robina Hafeez D/o M.A. Hafeez is working in the Pathology Department of Allama Iqbal Medical College, Lahore. She served as demonstrator from 15th October 1986 to 30th October 1989. During her stay she worked in the following sections:- Haematology 6 months Chemical Pathology 6 months Histopathology 6 mouths Microbiology (Bacteriology) 18 months." 6. I have heard the learned counsel and perused the material on the record. The report submitted by the Public Service Commission shows that Pathology is the mother subject which includes Microbiology as its major speciality while Bacteriology in a sub-speciality of Microbiology. The report further shows that the Selection Board which interviewed the candidates comprised of five members including Professor Dr. Shahbaz Awan (Professor of Pathology of Allama Iqbal Medical College ) and Dr., Syed Abdul Rashid (Associate Professor of Bacteriology of the Institute of Public Health , Lahore ). Both of them worked as advisor members of the Selection Board. Incidentally the petitioner had worked and gained experience under Dr. Syed Abdul Rashid who also issued experience certificate in favour of the petitioner. The eligibility of the various candidates was examined and approved by a committee comprising of Dr. Muhammad Jamil Akhar (Professor of Pathology and former Principal of a Medical College) and Dr. Jamil Iqbal who is Professor of Microbiology in the Sheikh Zald Federal Post Graduate Medical Institute. 7. The bio-data of respondent No. 5 reads as foflows:- Qualifieation. M. Phil Microbiology. Experience. YY-MM-DD (a) Demonstrator Pathology (P. 19) 27.12.86 to 21.3,89, (b) Demonstrator Microbiology (P/22) 29.9.92 to 15.9.96. (c) Study Period M. Phil Microbiology (P/21) 4.10.89 to 29,9.92 (Max.) 02-02-24 03-11-26 02-00-00 As earlier mentioned, Bacteriology is the sub-speciality of the subject of Microbiology. Admittedly respondent No. 5 has the teaching experience in Microbiology for nearly four years and as mentioned earlier she has 18 months teaching experience in Bacteriology while posted as demonstrator of Pathology. Therefore, she has the requisite experience of five years in the relevant subject. The argument of the learned counsel that teaching experience of respondent No. 5 in Microbiology cannot be considered to be experience in Bacteriology is self-destructive. Admittedly, the petitioner like respondent No. 5 holds post graduate degree of M. Phil in Microbiology. On the basis of this degree he claims to be qualified to be appointed as Assistant Professor of Bacteriology. If the degree in Microbiology can be considered to be the qualifying degree for Bacteriology then there is no reason why the teaching experience in Microbiology should not be considered to be experience in bacteriology. What is considered to be the relevant subject for the purpose of education/academic degree should equally apply for the experience. 8. Be that as it may, the question whether the candidates had requisite qualification in the relevant subject was to be decided by the committee comprised of two eminent professors who finally declared that respondent No. 5 was eligible for the post of Assistant Professor of Bacteriology. Similarly, the Selection Board also included two professors as advisor members and one of them was no less a person than the petitioner's own Associate Professor under whom she has been working and who had given her experience certificate. It means that the question of eligibility of respondent No. 5 had been determined by four eminent experts in the field. As against their opinion, it cannot be held on the asking of the petitioner that respondent No. 5 is not eligible for want of experience in the subject. It is well settled that this Court in constitutional jurisdiction cannot decide the disputed questions of fact. Whether respondent No. 5 does not hold the requisite experience in the relevant subject involves technical intricacies and questions of such like factual controversies cannot be gone into by this Court. This question squarely fell within the purview of the experts who have already unanimously held that respondent No 5 is duly qualified to hold the post of the Assistant Professor of Bacteriology and has the requisite experience. 9. So far as the petitioner is concerned, he has not been found suitable to hold the post in question by the Selection Board, which included three eminent personalities belonging to the medical profession. The petitioner, therefore, cannot in any case be appointed as Assistant Professor of Bacteriology notwithstanding his eligibility to hold the post. In this view of the matter the petitioner is not even an aggrieved person to challenge the appointment of respondent No. 5. 10. For what has been discussed above, this writ petition is dismissed in limine. Respondent No. 5 who has already been appointed as Assistant Professor (Bacteriology) in pursuance of the recommendation of the Punjab Public Service Commission shall continue to hold the post, in accordance with law. (MYFK) Petition dismissed in limine.
PLJ 1997 Lahore 613 PLJ 1997 Lahore 613 Present: mrs. fakhar-ur-nisa khokhar, J. JAMILA BIBI-Petitioner versus MIAN KHAN etc.--Respondents. Writ Petition No. 7350 of 1993 accepted on 20.3.1997. Constitution of Pakistan, 1973- Art 199-Suit of recovery of dower money-Decreed to-Appeal against- Acceptance of-Challenge to--Dower in a sum that becomes payable by husband to wife on marriage being contracted-It becomes payable either by agreement between parties or by operation of law-A wife can relinquish her dower but condition precedent to such a relinquishment is that it should be out-come of free-will and not the result of undue influence, coercion, mis-understanding or fraud-Release of dower to a wife is sanctioned by Qur'an and law of land-There was a clear admission by defendant that father of petitioner stood arrested by police two days prior to execution of document of relinquishment of dower, under a complaint that his daughter has aborted child-That document is challenged before Family Court-Held: If relinquishment of dower was in lieu of divorce, why a separate divorce deed was reduced in writing and was not placed before Family Court by adverse party-If this fact was in the knowledge of Family Court it could direct the party to produce said document or any evidence at any stage if it was material to decide question of fact-Petition accepted and impugned judgment set aside. [Pp. 616 & 617] A to E Mian Muhammad Nawaz, Advocate for Petitioner. Malik Muhammad Ashhab, Advocate for Respondent No. 1. Date of hearing: 10.3.1997. judgment Brief facts of the instant petition are that the petitioner filed a suit for recovery of Rs. 20,000/- as dower money including gold ornaments weighing 3 totals and 1 masha valuing Rs. 10.800/- payable on demand. The marriage was solemnized through registered Nikah Nama on 3.4.1987 and in the column of "dower" Rs. 20.000/- ( J?y dower money finds mentioned and gold ornaments weighing three tolas and 1 masha are stated to be paid. 2. The divorce took place between the partitioner and the respondent on 19.3.1990. The petitioner filed a suit on 20.5.1990. The suit was resisted by the respondent. On the pleadings of the parties the learned trial Court framed the following issues:- 1. Whether plaintiff has remitted the dower to the defendant? OPD 2. Whether the plaintiff has got no cause of action as well as locus standi to bring this suit? OPD. 3. Whether the suit is incompetent to proceed in its present form? OPD. 4. Whether the plaintiff is estopped to sue due to her word and conduct? OPD. 5. Whether the defendant is entitled for special costs? OPD. 6. Relief. 3. Both the parties produced their evidence in respect of their pleadings. The learned Judge, Family Court vide judgment and decree dated 30.1.1993 partly decreed the suit and held the petitioner entitled to the recovery of Rs. 20,0007- as deferred dower and for the rest of the claim she was directed to file a separate suit. This judgment and decree was assailed in appeal. The appeal was accepted and the judgment and decree of the learned Family Court was reversed vide judgment and decree dated 15.5.1993 passed by the learned Additional District Judge, Depalpur. Against this judgment the instant writ petition has been filed. 4. Learned counsel for the petitioner submitted that Ex. D/l which is a document for relinquishment of dower was executed under coercion as prior to the execution of this document father of the petitioner was in police custody on a complaint filed by the adverse party and under this threat and duress document was prepared, therefore, the learned Appellate Court has not applied its mind to this fact and has illegally and unlawfully reversed the judgment and decree passed by the learned trial Court. 5. Learned counsel for the respondent vehemently argued that in fact two deeds were executed, one of them was a divorce deed which was not on the record and the other one was agreement (Ex. D/l) which was duly proved by the marginal witnesses and is rightly relied by the Appellate Court. From the execution of Ex. D/l it is proved that the petitioner got divorce and she relinquished her claim of dower under the condition that she has received her gold ornaments weighing 33 tolas and 1 masha and dowery and she also gave custody of her son to the father. 6. I have heard learned counsel for the parties and have also perused the record. The suit for recovery of Rs. 20,OOQ/- as dower money along-with 3 totals and 1 masha gold ornaments valuing Rs. 10,800/- as Haq-ul-Me.hr was filed. She averred in her plaint that after some-time of her marriage it transpired that the defendant was of immoral character and she was subjected to torture and expelled from her matrimonial home after the respondent took hold dowiy and the matter came to litigation but then a compromise took place and she again went to the house of the respondent/defendant and a son was born. Six months prior to the institution of the said suit the respondent/defendant gave an application to the police and got a deed executed from her and took back her son and on 19.3.1990 the respondent divorced her. Written statement was filed by the respondent and in para 6 thereof he contradicted the plaint and averred that vide agreement dated 19.33.1990 the petitioner has relinquished her Haq-ul-Mehr and has received the ornaments and articles of dowry. 7. Petitioner appeared as PW. 1 in support of her contention. She submitted that her father was arrested by the police and under the garb of & compromise her thumb mark was obtained on the condition that after thumb marking the same her father will be released from the police custody and when his minor son was snatched from her then she came to know about the contents of Ex. D/l and the execution of Ex. D/l was fraudulently got thumb marked by her. In cross-examination the petitioner also narrated that her signatures were obtained on a plain paper and the gold ornaments are in possession of the respondent/defendant and she contradicted the fact that she came with her father to the stamp vendor and relinquished her dower. She again reiterated that at the time of execution of Ex. D/l when she thumb marked the same she was alone and father of Mian Khan defendant and Naseer were also present. P.W. 2 (Mumtaz Ali) supported the contention of the petitioner. He was also cross-examined. In cross examination he stated that divorce was given to the petitioner through fraudulent means by telling her that a compromise deed is being executed. Nikah Nama Es. 200/- as( and in lieu of Haq as DW. 1 is Mian Sajjad. He is an advocate of the petitioner's husband. Learned appellate Court has relied on his evidence being a marginal witness. This witness has deposed that he is the marginal witness of document Ex. D/l which was executed between the parties and the petitioner has relinquished her dower. In cross-examination he stated that Ex. D/l is not written by him. It was written by a stamp vendor and on that day divorce deed was also executed and it is in his knowledge that at the time of execution of the document, petitioner' father was in custody of the police and the other marginal witnesses signed in Ms presence. He denied the suggestion that under the garb of divorce deed Ex. D/l was thumb marked by the petitioner. DW. 2 is the defendant himself. He has stated that he divorced the' petitioner and the petitioner relinquished the dower money. In cross-examination he admitted that at the time of execution of Ex. D/l, PW. 1 and Naseer Ahmad DW were present and no one else was present. He admitted that it is correct that Ex. D/l and divorce deed were executed on the same day and two days prior to the execution of Ex. D/l the father of the petitioner was arrested by the police and was in police custody but at the time of execution of Ex. D/l the father of the petitioner was got released from the police because the petitioner got aborted the child and about this abortion a complaint was lodged at the police station by some one else and he does not know the name of that person. He contradicted the suggestion that under the garb of arrest of the father of the petitioner he got executed Ex. D/l and thumb marked by the petitioner. He also reiterated that he does not remember that he got it written on the document that the mother of the petitioner of the petitioner was given Rs. 10,000/- by him and it was written on the document that she had taken Rs. 1,000/-. DW. 3 Naseer Ahmad a marginal witness of Ex. D/l disclosed that this document was executed through the free will of the petitioner and she relinquished her dower. He admitted that father of the defendant is his relative and he is also going to create further relationship with them. He, however, contradicted the suggestion that petitioner's father was arrested before the execution of Ex. D/l. He admitted that Ex. D/l and divorce deed were executed on the same day and he is the marginal witness of both these documents which were written by the same petition writer. He further submitted that Haq-ul-Mehr Rs. 20.000/- and gold ornaments weighing 3 tolas and 1 masha were given to the petitioner at the time of execution of the divorce deed. 8. I have heard learned counsel for the parties and gone through the issue-wise findings of the Courts below. The learned lower appellate Court has but reliance on Ex. D/l where the marginal witness is defendant's advocate. Dower being a charge on the immovable property in possession of the plaintiff cannot be extinguished on conjectures. The moment a dower is settled and incorporated in the registered Nikah Nama which is a sacred document it becomes the property of the wife and it is enforceable as a debt. The relinquishment of dower under the Muhammadan Law is not a rclinquishment as under section 63 of the Contract Act the moment any execution of document for relinquishment of dower is placed before the Court, the Court is under legal duty to determine the fact whether independent circumstances existed where a woman has exercised her free consent and grant full has relinquished her dower and whether there were any existing circumstances which coerced and compelled her to relinquish her dower. 9. Mehr or dower is a sum that becomes payable by the husband to the wife on marriage being contracted. It becomes payable either by agreement between the parties or by operation of law. Under Sunni law the wife is entitled to claim Mehr from her husband, even though she has expressly contracted not to do so. Under Shiah law, a woman who is adult, "and not of a weak or facile, disposition" may validly agree not to receive any "Mehr". 10. Under section 100 of Muhammadan Law, the wife may validly agree to a reduction of the Mehr or make a gift (or remission) of the whole of it to her husband, or after his death to his heirs. Such a gift may be made conditionally and if purported to be made by a widow to a deceased husband or his heirs, it operates as a release of the claim, which is operative without being accepted by the heirs of the husband. Therefore, a wife can relinquish her dower but the condition precedent to such a relinquishment is that it should be the out-come of free-will and not the result of undue influence, coercion, mis-understanding or fraud. Therefore, even the law on the subject has leaned to this extent in favour of a woman feeling that the possible way to win or retain the affection of her husband is to remit the dower and foregoes her claim by executing a writing, it was held that she was not a free agent and it would be inequitous to hold that a woman who remits dower in such circumstances is bound by it. Reliance in this behalf is placed on Shah Bano Begum vs. Iftikhar Muhammad Khan (PLD 1956 (W.P.) Karachi 363). The un-paid dower was further elaborated in this judgment and it was held that an unpaid dower is a debt and the legal principle is that the debtor must seek his creditor. The release of dower to a wife is sanctioned by Qur'an and law of land, therefore, when no document is placed before the Court which discloses the relinquishment of the dower by a woman the Court must safeguard consciously and vigilantly the registers of the party by keeping in view existing circumstances under which the document was executed and determine finally that his document of relinquishment of dower debt is executed through independent mind, freely and without undue threats, coercion and fraud. 11. In the present case there was a clear admission by the defendant that the father of the petitioner stood arrested by the police two days prior to the execution .of the document Ex. D/l under a complaint filed by some-one else that his daughter has aborted a child. How a reliance can be placed on such a document where the marginal witness is an advocate of petitioner's husband and the veracity of that document is challenged before the Family Court by way of instant suit. Moreover if the relinquishment of dower was in lieu of divorce why a separate divorce deed was reduced in writing and was not placed before the Family Court by adverse party. The fact that on the day of execution of Ex. D/l the divorce deed was also executed was in the knowledge of the Family Court who could direct the party to produce the said document or any evidence at any stage if it was material to decide a question of fact. 12. Therefore, I allow this petition, set aside the judgment and decree dated 15.5.1993 passed by the learned appellate Court and hereby affirm the judgment of the learned Judge, Family Court, Depalpur dated 30.1.1993. 13. There shall be no order as to costs. (MYFK) Petition accepted.
PLJ 1997 Lahore 618 PLJ 1997 Lahore 618 Present: mrs. FAKHAR-UN-NisA khokhar, J. FAIZ BATOOL-Petitioner versus ADDITIONAL DISTRICT JUDGE and 2 others-Respondents Writ Petition Nos. 8390, 8391 and 8392 of 1994, decided on 20-3-1997. West Pakistan Family Courts Act, 1964- S. 17 read with Civil Procedure Code (V of 1908) 0. 7 R. 11-- Constitutional Petition-Suits for dissolution of marriage, for recovery of dower money and for recovery of maintenance by petitioner and suit for jactitation of marriage by respondent-Consolidation of suits-Prayer for-Application rejected by respondent under 0. 7 R. 11--Suit for dissolution of marriage was dismissed whereas suit for jactitation of marriage decreed-Challenge to-It cannot be said that petitioner has given up her right by not filing an appeal against decision of suit for jactitation of marriage being decreed against her-Appellate Court was bound to see whether provisions of Order VII rule 11 CPC did apply to Family Courts or whether Family Court had to decide all these matters alongwith factum of marriage being regular or irregular after careful scrutiny of evidence-He was obsessed with impression that marriage was solemnised within the prohibitory degree and therefore, was irregular- Held: This is not object of law and neither such a judgment can be termed as judicial judgment-Held further: Family Courts are special Tribunals governed by special law, since the matter relates to marital spouses in order to make settlement of marriages easier, Legislature has intentionally omitted certain strict provisions of CPC in respect of rejection of plaints under O.7 R. 11 and also that of evidence-Appellate Court failed to apply its mind that Family Court was bound to give issuewise findings of fact on the consolidated issues but it erroneously applied provisions of O. VII R. 11 of C.P.C. and appellate Court without appreciating question of law has affirmed judgmentBoth judgment suffer from infirmity of law, hence, set aside and all cases remanded back to trial Court to be decided afresh on merits. [Pp. 621 & 622] A to C Ch. Muhammad Khan, Advocate for Petitioner. Muhammad Zainl Abidin, Advocate for Respondent No. 3. Date of hearing : 11-3-1997. judgment By this single judgment I propose to decide W.P. Nos. 8390, 8391 and 8392 of 1994 as common question of law and fact arise therein. 2. Brief facts in the instant petition, are that three suits titled as Mst. Faiz Batool vs. Fida Hussain (suit for dissolution of marriage), Mst. Faiz Batool us. Fida Hussain (suit for recovery of dower money) and Mst. Faiz Batool vs. Fida Hussain (suit for recovery of maintenance filed by the petitioner were pending adjudication before the learned Judge, Family Court, Ferozewala. The respondent also filed a suit for jactitation of marriage which was pending adjudication before the Judge, Family Court, Lahore . The suit for jactitation of marriage filed by the respondent was transferred to the Court of learned Judge, Family Court, Ferozewala and was consolidated with the suits filed by Mst. Faiz Batool on 7.11.1989 and consolidated issues were framed on the same day and the proceedings were ordered to take place with the suit for jactitation of marriage. Petitioner Mst. Faiz Batooi completed her evidence and the respondent did not complete the evidence when he filed an application under Order VII rule 11 read with section 151 C.P.C. for rejection of the plaint on the basis that all the above matters were consolidated and the petitioner had produced her evidence and had admitted in the cross-examination in suit titled as Mst. Faiz Batool vs. Fida Hussain (Suit for dissolution of marriage) that Mst. Mumtaz Begum wife of Fida Hussain is the real Maternal Aunt ( fj\y) and she fell within the prohibited degree and no marriage can take place between her and Fida Hussain and, therefore, she has no cause of action and as such all the suits are liable to be dismissed for want of cause of action. 8, This application was contested by the petitioner. She averred in the preliminary objections that every suit filed by her is independent and the proceedings in all the suits are also pending and in suits for maintenance and Haq-ul-Mahar she has to produce separate evidence. The application under Order VII rule 11 C.P.C. is given considering all the suits as consolidated and is liable to be rejected and that an application under section 476 Cr.P.C. is also pending adjudication on the same grounds, and therefore, .this application merits dismissal. 4. Learned Judge, Family Court, Ferozewala instead of recording the evidence to be led by the parties vide order dated 5.7.1992 admitted that only two suits i.e. suit for dissolution of marriage and suit for jactitation of marriage were consolidated whereas the other suits for recovery of dower money and maintenance allowance are pending separately which are also to be disposed of separately and it is admitted fact between the parties that Mst. Faiz Batool is the daughter of Mst. Ashraf Begum, who is real sister of Mst. Mumtaz Begum, existing wife of Fida Hussain respondent and he has not divorced her (Mst. Mumtaz Begum) and according to Muhammadan Law the marriage with real daughter of real sister-in-law falls within the prohibitory degree and it is an un-lawful conjunction and a man has been prohibited from marrying with aunt and niece at the same time. The contention of the respondent's counsel was that although this marriage falls within the prohibitory degree, even then it was not a void marriage, and it can be regularised so the marriage with the petitioner falls within the prohibitory degree and Mst. Faiz Rasool plaintiff has no cause of action to file the suit for dissolution of marriage which is hereby dismissed. The suit of the respondent for jactitation of marriage was decreed. 5. It is important to note that the suit for jactitation of marriage was filed by Fida Hussain respondent who averred in his plaint that the alleged Nikah was forged as the marriage comes within the prohibitory degree and no valid Nikah can be solemnized with ' JU ' and ' , £. ]jf' and infact this Nikah was maneuvered by her relatives such as her sister namely, Mst. Munaza Begum and her brother-in-law, namely, Syed Nadir Ali Shah in connivance with each other and this Nikah was a forged Nikah registered on 17.3.1987 with Union Council Kot Mehmood, Tehsil Ferozewala, District Sheikhupura with plaintiff s.address shown as village Mimberanwala which actually is Nadir's village. The moment this Nikah came to light it was repudiated for the reason that the alleged Nikah Nama was even otherwise illegal, and void as the same falls under prohibited degree. The respondent/plaintiff had struck a transaction with Ham Din son of Mehr Din to purchase house No. 59-B, Katcha Ferozepur Road, Lahore when the petitioner/defendant in connivance with her above relatives availed for the opportunity of revealing the 'darama' of alleged Nikah of the respondent/plaintiff with the petitioner/defendant and under pressure, duress, coercion and threats for the implication of the respondent/plaintiff in Hudood case, he was made to entrust the affairs of completion of said sale deed to said Nadir Shah who in active connivance with the petitioner/defendant maneuvered to get the said house transferred in the name of the petitioner/defendant instead of the respondent/plaintiff and as such the petitioner succeeded in her fraud of showing alleged Nikah with the respondent/plaintiff and when the respondent/plaintiff asked the petitioner/defendant to desist from claiming herself as wife of the respondent/plaintiff the suit for jactitation of marriage was filed. 6. The above suit was contested by the petitioner/defendant by filing a written statement that the Nikah was solemnized after taking permission under section 6(1) of the Muslim Family Laws Ordinance, 1961 from the first wife from the Chairman, Union Council Kot Mahmood, Tehsil Ferozewala, District Sheikhupura and the present suit was filed to frustrate the suit for dissolution of marriage, maintenance and Haq Mahar. 7. Learned counsel for the petitioner has argued that the relevant provisions of Order VII rule 11 C.P.C. are not applicable to the family suits. 8. Learned counsel for the respondent has submitted that infact all fictitious documents were produced and for this reason the proceedings under section 476 Cr.P.C. were lodged and that no appeal was filed against the decision of the suit for jactitation of marriage. He has further submitted that since the marriage was admittedly an irregular marriage, therefore, no cause of action arose to the petitioner and the suits were rightly rejected under Order VII rule 11 C.P.C. He relied on Mian Muhammad etc. vs. Additional Commissioner (Revenue)/Settlement Commissioner, Rawalpindi etc. (1991 S.C.M.R. 520), Khadim Hussain vs. Board of Revenue etc. (1973 S.C.M.R. 127) and Khushi Muhammad vs. Allah Bakhsh etc (1994 C-L.C. 1180). Learned counsel for the petitioner argued that in the impugned judgment the suit for jactitation of marriage is not mentioned It is submitted that under the Family Courts Act the appeal is always filed against a decree. Since on merits no case was decided, therefore, the appeal was filed against the decision passed by the learned Judge, Family Court and since it was a composite judgment, therefore, it also includes the suit for jactitation of marriage as well. 9. I have heard learned counsel for the parties and have carefully perused the record. Each of the afore-said cases filed by the parties was independent and needed examination and careful scrutiny of evidence. It is surprising that on the record the petitioner has completed her evidence and the respondent-husband has also produced some evidence although the statement of his completion of evidence is not available on record. Application filed under Order VII rule 11 C.P.C. gave the title of the following suits :-- 1. Mst. Faiz Batool vs. Fida Hussain (Suit for dissolution of marriage). 2. Mst. Faiz Batool vs. Fida Hussain (Suit for recovery of maintenance). 3. Mst. Faiz Batool vs. Fida Hussain (Suit for recovery of maintenance). It does not include the suit for jactitation of marriage. However, by virtue of one sentence the decree of marriage was granted by the learned Judge, Family Court and was affirmed by the appellate Court who has discussed the evidence as well. This is a composite judgment and consolidated issues were framed on the pleadings of the parties and it cannot be said that the petitioner has given up her right by not filing an appeal against the decision of the suit for jactitation of marriage being decreed against her. Learned appellate Court was bound to see whether the provisions of Order VII rule 11 CPC did not apply to the Family Court for whether the Family Court had to decide all these matters alongwith the factum of marriage being regular or irregular after careful scrutiny of the evidence. Learned Appellate Court did not apply its mind to these facts of the case; they were of obsessed with the impression that the marriage was solemnised within the prohibitory degree and therefore, was irregular. This is not the object of law and neither such a judgment can be termed as judicial judgment. 10 The Family Courts are special Tribunals governed by special law which is called Muslim Family Laws Ordinance, 1961 and West Pakistan Family Courts Act, 1964, through its own procedure. Since the matter relates to the marital spouses in order to make settlement of marriages, easier the legislature has intentionally omitted certain strict provisions of the B Civil Procedure Code in respect of rejection of the plaints under Order VII rule 11 C.P.C. and also that of evidence. Section 1? of the West Pakistan Family Courts Act, 1964 being relevant for the sake of convenience is reproduced below :-- 17. PROVISIONS OF EVIDENCE ACT AND CODE OF CIVIL PROCEDURE NOT TO APPLY. (1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872, and the Code of Civil Procedure, 1908 (except sections 10 and 11) shall not apply to proceedings before any Family Court. (2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts." 11. The provisions of C.P.C. and the Evidence Act, 1872 are intentionally excluded by the legislature for the sake of expeditious disposal of the family cases. In the present, case evidence was recorded by the learned Judge, Family Court and specially he had to decide in the suit for jactitation of marriage whether Nikah was alleged to be fabricated as averred by the husband of the petitioner and it needed an independent inquiry into the facts through appraisal of evidence and also decide whether the marriage was regular or irregular. If it was proved that the marriage was irregular then the consequences of the irregular marriage could be seen under the provisions of Muhammadan Law. The appellate Court failed to apply its mind that the learned Judge, Family Court was bound to give issue-wise findings and the learned appellate Court had to examine the finding of fact on the consolidated issues. Learned Judge, Family Court erroneously applied the provisions of Order VII rule 11 C.P.C. to the family suits which are not available under the law and the learned appellate Court without appreciating the question of law has affirmed the judgment of the learned Judge, Family Court, therefore, both the judgments suffer from infirmity of law and are hereby set aside being without lawful authority, jurisdiction and justification. All the cases are remanded back to the trial Court to be decided afresh on merits after giving full opportunity to the parties to produce their evidence. 12. There shall be no order as to costs. (MYFK) Order accordingly.
PLJ 1997 Lahore 623 PLJ 1997 Lahore 623 [Multan Bench] Present: karamat nazir bhandari, J. BASHIR AHMAD-Petitioner versus Sh. ABDUL AZIZ & 2 others-Respondent W.P. No. 1417-95, dismissed on 25.4.1995. (i) Constitution of Pakistan , 1973-- -Art. 199-Material fact-Concealment of--Effect-A civil suit on identical subject matter and for identical relief, pending in civil court before filing of W.P., which fact, concealed by petitioner-Petitioner, simultaneously perusing both suit and writ petition and suppressing factum of filing of suit, held, not entitled to any relief for this reason alone--Since petitioner has been guilty of suppression of material fact and has dragged respondents in this Court, petitioner, imposed special costs of Rs. 10,000-- Petition dismissed. [P, 623 & 624] A, B & C Ch. M. Sanaul Haq, Advocate for Petitioner. Malik Muhammad Shabbir Langrial, Advocate, for Respondent. Date of Hearing : 23.4.1995. order Byway of this constitutional petition the petitioner, proposed lessee, allegedly successful in the auction of lease rights, seeks a direction to Administrator, Municipal Committee to execute the necessary agreement and to allow the petitioner to assume his responsibilities as the lessee. Report and parawise comments were called, which have been submitted today in Court. 2. It is admitted that no formal agreement of lease has been executed. In the circumstances, it is contended by learned counsel appearing for the respondents that this petition is premature. He further submits that even if the agreement had been executed, the breach of it could not have been corrected by a writ of mandamus. It is maintained that petitioner could only have sued his claim for breach of contract or specific performance in the civil court. It is also pointed out that before filing this petition a civil suit dated 28.2.1995 was filed on the identical subject-matter and for an identical relief as prayed for in this petition. It is urged that the fact of filing of suit has been deliberately suppressed in this writ petition and as such the same merits dismissal on this short ground alonu. 3. Learned counsel was confronted with this situation and asked to explain as to why the fact of suit has been suppressed from this Court and as to why in the presence of civil suit this writ matter and for the same relief. Learned counsel has absolutely no answer to these questions. I am also amazed at the audacity of the petitioner to simultaneously perusing both the suit and the writ petition and to suppress the factum of filing of suit from this Court. For this reason alone the petitioner is not entitled to any relief in this extra-ordinary and equitable jurisdiction of this Court. Resultantly, this petition is dismissed. 4. Since the petitioner has been guilty of suppression of material fact and has dragged the respondents in this Court, the petitioner is imposed special costs of Rs. 10,000/- (Rupees ten thousands). (Aq. By.) Petition dismissed.
PLJ 1997 Lahore 624 PLJ 1997 Lahore 624 [Multan Bench] Present: RAJA MUHAMMAD SABIR, J. KAMAL DIN-Petitioner versus MUHAMMAD SHAFI ETG.-Respondents Writ Petition No. 5247 of 1997 dismissed on 17-3-1997. (i) Constitution of Pakistan, 1973-- -Art. 199-Suit valuation Act, 1887, S. 11-Pecuniary jurisdiction of 1 st appellate Court-District Judge has revisional jurisdiction in all cases where value of subject matter of suit is up to Rs. 2,00,000/- An Appellate Court is precluded from entertaining an objection as to jurisdiction of trial or lower appellate Court found on the ground of over-valuation or under-valuation, unless such objection is raised by the party at or before hearing of case when issues were settled-Held: Value of suit in present proceedings was Rs. 5,OQO/- as assessed by respondent and jurisdiction had not been alterated by the order of Court till passing of impugned judgment, therefore, District Judge (1st Appellate Court) had jurisdiction to hear revision petition. [Pp. 627 & 628] A PLJ 1996 SC 560 ref. (ii) Constitution of Pakistan, 1973- -Art. 199-Arbitration Act, 1940 Ss. 14, 30 and 33-Appointment of Arbitrator-Giving of Award-Statement as referee after giving award- Challenge toDistrict Judge set aside statement as referee-Petition against Ch. Riasat Ali was appointed as arbitrator-He cannot be termed as referee-For all intents and purposes, he was arbitrator-District Judge has rightly set aside his statement-Main suit is still pending in trial CourtThis petition arising out of interim order is not competent-Held: Order of District Judge directing the trial Court to decide case on merits has not caused any prejudice to petitioner-Fair opportunity has been provided to parties, Considering statement of said Riasat Ali as non existent after recording evidence of parties-Petition dismissed. [P. ?] B PLJ 1985 SC 90. Mian Shamsul Haq Ansari, Advocate for Petitioner. Ch. ImdadAli Khan, Advocate for Respondents. Date of hearing : 17-3-1997. judgment In this Constitutional petition revisional judgment of learned District Judge Sahiwal dated 23.5.1996 whereby he set aside the order dated 19-10-1995 passed by Civil Judge 1st Class Chichwatni, has been assailed. 2. Brief facts of the case are that petitioner and respondent No. 1 jointly took lease of about 5h squares of agricultural land situated in Chak No. 60/12-L Tehsil Chichawatni belonging to Wasim Sadiq etc. in 1987 in equal shares. It was agreed between them that they will jointly cultivate it and capital investment like payment of lease money and provision of tractors, seeds, fertilizers, pesticides etc. would be made by respondent No. 1 while the petitioner will personally cultivate and supervise the cultivation of the land through man-power. It was also agreed that at the end of each harvest, the net profits would be divided equally between the parties after deduction of expenses from the gross proceeds of crops. It is alleged in the plaint that respondent No. 1 provided two tractors owned solely by him to the petitioner for this purpose and other implements were purchased by the parties through equal contribution. Above said two tractors and other implements were in possession of the petitioner. Respondent No. 1 paid the entire lease money to the lessors till Rabi 1995 crops. The venture amicably continued between the parties till Kharif 1993 crops. Accounts were duly settled and the profits divided between them till the said crop. In January 1994 the relationship between the parties became strained. Pursuant to refusal on the part of the petitioner to render accounts and pay the profits to the respondent civil litigation commenced between the parties. A suit for permanent and mandatory injunction was filed by the respondent against the petitioner on 28.5.1994 before Civil Court Chichawatni seeking an order for the storage and preservation of Rabi crops 1994. Temporary injunction was issued in favour of the respondent, which was allegedly violated by the petitioner whereupon an application was submitted against him for flouting the injunctive order. Said application is still pending before Ch. Muhammad Hussain Civil Judge, Chichwatni. 3. Another suit for declaration and permanent injunction, out of which instant petition has arisen, was filed by the respondent on 16.11.1994 in the above said civil Court wherein it was prayed that he be declared the sole exclusive owner of both the tractors and joint owner of all the other agricultural implements in equal share with the petitioner and he (Petitioner) be restrained from selling, using or damaging the said machinery. One Riasat Ali was appointed in this suit as a referee by the parties vide order of the Court dated 18.6.1995. 4. Another suit was filed by respondent on 19-7-1994 against the petitioner in the Civil Court at Vehari with the prayer that the petitioner be restrained from selling the potatoes belonging to the parties and stored in cold storages. A sum of Rs. 2,34,401 as the price of these potatoes was deposited by petitioner with said Riasat Ali and the suit was withdrawn on 12.9.1995. 5. The case of respondent No. 1 is that the parties appointed said Riasat Ali as sole arbitrator through arbitration agreement dated 16.2.1995 to give his award after hearing the parties and going through all the disputes arising out of said joint venture, Riasat Ali gave award on 21.9.1995 against the respondent, who challenged it through his application dated 15-10-1995, moved under sections 14, 30 and 33 of the Arbitration Act, 1940. Aforementioned Riasat Ali appeared before the learned Civil Judge Chichawatni on 19-10-1995, who got his statement recorded on 19-10-1995 as referee. The respondent on the same very day filed an application before the trial Court to revoke the appointment of Riasat Ali as referee on the ground that the parties had appointed him as an arbitrator and he having already given his award on 21.9.1995 regarding subject matter of the suit and all other matters in dispute between the parties and because of his grave misconduct was no more qualified to remain as referee and to record his statement as such. Learned Civil Judge vide his order dated 19-10-1995 rejected the application of the respondent observing that statement of referee has already been recorded. However final order was not passed by the learned Civil Judge Chichawatni, who sent the case to learned District Judge for transfer to some other Court. Learned District Judge vide order dated 24.10.1995 transferred the case to the Court of Mr. Jamshed Hussain, Civil Judge 1st Class Sahiwal. 6. The respondent challenged the order dated 19-10-1995 before the learned District Judge Sahiwal through civil revision, who vide impugned judgment set aside the order of the learned Civil Judge as well as statement of so-called referee which was recorded in absence of the respondent, with direction to the learned trial Court to decide the case on merits without considering the statement of the referee, in accordance with law. Learned Revisional Court directed the parties to appear before the trial Court on 23.6.1996. Petitioner has challenged the said judgment in this petition, &a mentioned above. 7. Learned counsel for the petitioner contends that Ch, Riasat Ali was appointed by the parties as 'referee' and his decision was binding on them as they have given an undertaking that they will accept the decision of said Ch. Riasat Ali. Since he has made a statement against the respondent, same should be accepted and he cannot be allowed to wriggle out of it on the pretext that Riasat Ali was an arbitrator and not referee. He further submits that the facts and circumstances of the case do not justify the setting aside of order and proceedings of the learned Civil Judge dated 19-10-1995 and as such impugned judgment is illegal and liable to be quashed. He has relied upon Attiqullah vs. Kafayatuallh (1981 S.C.M.R. 162), Mehr Din and two others vs. Siraj Din and two others (PLD 1980 Baghdadul Jadid 45) and Salhoon vs. Mst. Jawai and another (1983 C.L.C. Lahore 1436) in support of his plea. 8. Learned counsel for the petitioner also submits that revision petition before learned District Judge was not competent as the value of the suit for purposes of jurisdiction was more than six lac as spelled out from the plaint itself. He has relief upon amendment introduced in Section 18 of the Ordinance XI of 1962 whereby pecuniary jurisdiction of District Judge has been raised from Us 50,000/- to Rs. 2,00,000/-, and beyond this amount revision could only be entertained by the High Court. 9. On the other hand learned counsel for respondent No. 1 submits that this petition has arisen out of an interim order and as such is not maintainable. He has relied upon Muhammad Sharif vs. M. Afzal Sohail etc. (PLD 1981 Supreme Court 246) in this behalf. He also submits that Riasat Ali was not a referee but an arbitrator. He has referred to Sher Zaman Khan vs. Noor Zaman Khan and another (PLD 1977 Lah. 672) and submits that distinction between 'referee' and 'arbitrator' has been exhaustively made by the learned Single Judge of this Court in the above said judgment, which is strictly applicable to the facts of the present case. He maintains that Ch. Riasat Ali was an arbitrator and not a referee in view of the facts and circumstances of the instant case. Regrading valuation of the suit for purposes of court fee and jurisdiction, he submits that the value given in the plaint would be presumed to be correct unless changed by the Court. He states that the petitioner valued the suit for purposes of court fee and jurisdiction at Rs. 5,000/- which has to be presumed correct. He further submits that question of jurisdiction having not been raised before the revisional Court, petitioner cannot be permitted at this stage to agitate the same particularly when no prejudice has been caused to him. He has relied upon Ali Muhammad and others vs. Muhammad Shaft and others (PLJ 1996 SC 560) = (PLD 1996 Supreme Court 292) in support of his contention. He further submits that learned District Judge has exercised his revisional jurisdiction and the impugned order cannot by any stretch of imagination said to have been passed without lawful authority. In support of his contention, learned counsel has relied upon Noor Muhammad vs. Sarwar Khan and two others (PLJ 1985 SC 90) = (PLD 1985 Supreme Court 131). 11. I have heard the learned counsel for the parties and gone through the record and the judgments referred above. There is no force in the contentions of the learned counsel for the petitioner. The revision petition before the learned District Judge was competent as valuation of Rs. 5.0QO/- given in the plaint for purposes of court fee and jurisdiction had not been alterated by the order of the Court till passing of the impugned judgment. Learned District Judge has revisional jurisdiction in all the cases where value of the subject matter of the suit in upto Rs. 2,00,000/-. In the present proceedings value of the suit was Rs. 5.000/- as assessed by the respondent, therefore, learned revisional Court had the jurisdiction to hear the revision petition. Judgment reported as Mi Muhammad and others vs. Muhammad Shaft (PLJ 1996 SC 560) = (PLD 1996 SC 292) clearly supports the contention of learned counsel for the respondent wherein it has been held that an Appellate Court was precluded from entertaining an objection as to the jurisdiction of the trial Court or a lower Appellate Court founded on " the ground of over-valuation or under-valuation unless such objection, in the case of the Court of first instance was raised by the party at or before the hearing of the case when the issues were settled in the case and in the case of lower appellate Court the objection had been raised in the memo of appeal. Another condition, which required to be satisfied for entertaining the above objection was that the Appellate Court must record its reasons of satisfaction that the suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation had prejudicially affected the disposal of the suit or appeal on its merits. While interpreting Subsection (2) of Section 11 of the Suits Valuation Act, 1887, their lordships of the Supreme Court further observed that said provision provides that where an objection had been raised by the party in the manner as stated in section 11(1) of the Act but the Appellate Court was not satisfied with regard to existence of conditions mentioned in section ll(l)(b) and it had material available before it for determining the other grounds of appeal, it would proceed to dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court as the case may be. Subsection (3) of section 11 of the Act further provides that where an objection.has been raised by the party as required in section ll(l)(a) of the Act and the Court is satisfied with regard to the presence of the conditions mentioned in section ll(l)(b) and it also finds that it does not have sufficient material before it to decide to appeal, it should proceed to dispose of the same in accordance with the rules applicable to the hearing of the appeal. 12. The judgment of the Supreme Court referred above clinches the entire objection of the petitioner's counsel with regard to competency of learned District Judge to entertain and dispose of the revision petition. Thus learned District Judge has competently decided the revision petition instituted before him and instead the present writ petition is not competent. It has been held by the Supreme Court in Muhammad Sharif and another vs. Muhammad Afzal Sohail (PLD 1981 S.C. 246) :-- "Notwithstanding the fact that the Legislature in its wisdom has abolished the second appeal in cases under the West Pakistan Urban Rent Restriction Ordinance, 1959 and has made the orders of the District Judge as final yet parties probably after obtaining legal advice, have taken to filing writ petition in the High Court against the final order passed by the Appellate Court, merely to take another chance or to delay their eviction, hoping that the matter shall take considerable time to be disposed of or that in any case the High Court while dismissing their writ petition may be pursuade to allow further time for vacating the premises in question. The writ petitions are argued before the High Court as if they are regular second appeals and we notice that the learned Judges of the High Court take great pains to re-appraise the evidence and to consider each and every contention raised by the petitioner's side before deciding the petition without realising that more often than not such petitions are merely a device to circumvent the amendment in the law and defeat the obvious intention of the Legislature, namely a speedy determination of cases under the Urban Rent Restriction Ordinance. Such frivolous applications not only cause the poor litigants to incur necessary expenditure but also result in waste of valuable public time and should therefore, be discouraged by the High Court. It has been repeatedly held that a tribunal having jurisdiction to decide the matter is competent to decide rightly or wrongly and the mere fact that another conclusion could be arrived at from the evidence does not make it a case for interference in the exercise of its constitutional jurisdiction". 13. Similarly in Abdul Rehman vs. Sultan and others (PLD 1981 Supreme Court 522) while interpreting Section 439-A Cr.P.C. as added by Law Reforms Ordinance XII of 1972 vis-a-vis Article 199 of the Constitution it was held that: "Legislature having enacted Section 439-A and curtailed jurisdiction of High Court in order to relieve High Court of burden of deciding thousands of revisions against orders of hundreds of Magistrate, filing of petitions for writ against judgments of final Court, held, amounts to circumventing law and defeating obvious intention of Legislature". 14. It has also been held by the Hon'ble Supreme Court in Noor Muhammad vs. Sarwar Khan and others (PLJ 1985 Supreme Court 90):-- "Neither impugned order passed by Executing Court nor that passed by District Judge in his revisional jurisdiction, could by any stretch of imagination, be said to be illegal or to have been passed without lawful authority-Constitutional petition against such order, held not competent-Mere fact that decision of a Court on a question of fact or law was not correct, did not necessarily render it "without lawful authority" tendency to file constitutional petitions against orders of Courts having jurisdiction to pass these orders, desired by Supreme Court to be curbed." 15. As the main suit is still pending, this writ petition arising out of an interim order is not competent in view of the tender of the judgments referred to above. 16. Now coming to the judgments referred by the learned counsel for the petitioner, suffice it to say that none of these judgments deals with any matter under the Arbitration Act, and all of them are under the Oath Act and relate to the proposition where special oath was offered by one party, accepted and administered by other for resolution of particular dispute between them, therefore, they are distinguishable. In the present case the matter was referred to the Arbitrator as is evident from the agreement referred above that Ch. Riasat Ali shall decide the controversy between the parties. The provisions of Arbitration Act 1940 are attracted to the proceedings because appointment of Ch. Riasat Ali was in fact that of 'Arbitrator' and not of a 'referee'. A 'referee' speaks from his own knowledge or belief and not on basis of inquires made by him or collection of evidence. He has to make statement of his own personal knowledge. The judgment relied upon by the learned District Judge, Sher Zaman Khan vs. Noor Zaman Khan and another (PLD 1977 Lahore 672) is fully applicable to the facts of the present case. Relevant portion of this judgment from para 5 is reproduced as under: "Applying these principles to the facts of the present case it will be seen that although the reference was a reference under section 20 of the Evidence Act and Rafiq Ali Khan was expected to make a statement presumably before the Court on the basis of his knowledge/or belief and not on the basis of inquiries made by him in a judicial manner, the agreement to reference ceased to be effective as soon as Mr. Rafiq Ali Khan appeared on the 22nd of November 1975 and impliedly proved his ignorance about the matter and his inability to make such a statement. This inability is also supported by the report made by him later on which is a finding based upon evidence of witness and judicial inquiiy conducted by him. In these circumstances the report of Mr. Rafiq Ali Khan could not be treated to be a statement under section 20 of the Evidence Act. It is in fact an award. As he was not accepted by the parties as an arbitrator, the learned trial Court should have refused to act upon his report and allowed the petitioner to resile from his agreement." 17. In the present case it is clearly established that Ch. Riasat Ali was appointed as arbitrator on 16.2.1995 to give his award on the disputes arisen between the parties after making an inquiry. He has not made the statement purely on the basis of his knowledge of the facts of the case and the moment he entered upon the inquiry, so authorized under the agreement, by no stretch of imagination, he can be termed as 'referee'. For all intents and purposes, he was arbitrator, therefore, learned District Judge has rightly set aside his statement and the proceedings dated 19-10-1995 through the impugned judgment. 18. The order of the learned District Judge directing the learned trial Court to decide the case on merits has not caused any prejudice to the petitioner. Fair opportunity has been provided to the parties by learned District Judge while directing the Civil Judge to decide the case on merits considering the statement of said Riasat Ali as non-existent after recording evidence of the parties. For the fore-going reasons, this petition is dismissed leaving the parties to bear their own costs. , (MYFK) Petition dismissed.
PLJ 1997 Lahore 631 PLJ 1997 Lahore 631 [Multan Bench] Present: RAJA MUHAMMAD KHUESHID, J. KHADIM HUSSAIN SHAH-Petitioner t versus JUDGE FAMILY COURT, MULTAN ETC.-Respondents W.P. No. 6672-F-1996, dismissed on 8-10-1996. 3 t smissed on 8-10-1996. (i) Constitution of Pakistan, 1973- Art. 199-Issues-Framing of-Compound issue-Validity of-Compound issue was framed but it did not prejudice trial because requisite evidence was brought on record and discussed by learned trial court and has been analysed. [P. 634] A (ii) Family Courts Act, 1964, (WP Act XXXV of 1964)-- -S. 12~Reconciliation at the conclusion of trial-Mandatory provision of law-Violation of--Effect of-First attempt for reconciliation was made by trial court before striking of issue, that effort had been unsuccessful- After the conclusion of trial, learned counsel for parties stated before court that reconciliation between parties was not possible, therefore, just to call parties in the court in order to inquire from them whether conciliation was possible or not would have been only a technical compliance without having any fruitful outcome-Mart any such attempt would have been an exercise in futility-Held : It cannot be said that trial court did not try for conciliation as required by Section 12 of Family Courts Act, 1964-Petition dismissed. [P 634] B Malik Mushtaq Ahmad Ojla, Advocate for Petitioner. Date of hearing : 8-10-1996. order This writ petition is filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to challenge the judgment and decree dated 20.6.1996 passed by Muhammad Irshad Sipra, learned Judge Family Court, Multan, whereby, suit for dissolution of marriage filed by Mst. Shido i.e; respondent No. 2 against the petitioner Khadim Hussain Shah was decreed and the marriage between them was dissolved. In the same decree, the suit for restitution of conjugal rights instituted by the petitioner against respondent No. 2 aforesaid was also dismissed. 2. Learned counsel for the petitioner has contended that the learned trial Judge has violated the provisions contained in Section 12 of the Family Courts Act, 1964 whereby, the parties were to be summoned and an effort was to be made to effect a compromise or reconciliation between them. In this regard, it was alleged that the parties were not summoned at the conclusion of the trial to effect the compromise or reconciliation between them and as such, a mandatory provision of law having been violated, the judgment and decree of the learned Judge Family Court were void. Secondly, it was contended that the learned trial Judge did not strike the proper issues on the controversial points. In this regard, it was alleged that issue No. 1 was framed as under :-- 3. In this connection, learned counsel for the petitioner submitted that in paragraph No. 3 of the plaint, the following points were raised that :-- (a) the defendant treated the plaintiff with habitual cruelty; (b) the defendant failed to perform conjugal rights with the plaintiff for three years; (c) the defendant failed to maintain the plaintiff and her children for about three years; (d) the defendant mis-appropriated the ornaments and clothes belonging to the plaintiff; (e) the defendant mixed up with women of ill repute and had illicit relations with them and; (f) the plaintiff had developed severe hatred against the defendant and as such, it was not possible to maintain the limits of God nor she was in a position to live with him. It was, therefore, urged that instead of framing separate issues, the learned trial Judge framed a single compound issue by stating that whether the plaintiff was entitled to a decree for dissolution of marriage on the grounds mentioned in paragraph No. 3 of the plaint, and as such, the trial was allegedly vitiated because there were no proper issues before the Court. 4. I have taken into consideration the points raised above and find that the provisions of the Family Courts Act aimed at the expeditious settlement and disposal of the disputes relating to marriage and family affairs between the parties. The strict procedural provisions contained in the Civil Procedure Code and the Evidence Act were dispensed with under the Act to achieve the purpose of expeditious disposal of the matters. Infact the rigidity and the technicalities of law were relaxed so that substantial justice may be provided to the parties instead of technical and conventional justice. 5. In the instance case, although the learned trial Judge Family Court should have framed distinct issues on each point of controversy given in paragraph No. 3 of the plaint instead of constituting a compound issue, but it is to be seen if the parties have been prejudiced during the proceedings on account of compound issue. If it is proved that they had been prejudiced and that the ends of justice have been defeated, a case for interference on the writ jurisdiction might be made out. In case no prejudice is caused to any of the parties, then there will be no case of interference. In the instant case, the parties had full opportunity to lead evidence on all the controversial points. The plaintiff while appearing as PW. 1 had stated that she was deserted about four years back and that while she was living with her husband i.e; petitioner/defendant, she was mal-treated and given physical beating. She was not maintained after her desertion as she was turned out only in three clothes after severe beating. She also added that she tried hard to live with the petitioner/defendant but it was all in vain as the latter had no intention to keep her in the house. The defendant was also blamed for having bad character being given to intoxicants. She added that she had developed extreme hatred against the defendant/petitioner and as such, it was not possible for her to live with him. She also stated that she was looking out her livelihood by stitching the clothes for others. The defendant has allegedly mis-appropriated her ornaments and clothes. The trend of cross-examination makes it clear that the allegations against the defendant/petitioner made by the plaintiff/respondent were strangely put to her, which she reiterated while under cross-examination. She added that the defendant/petitioner had illicit liaison with women of ill repute and was also addicted to 'Bhang' and opium. He allegedly used to prepare the intoxicant of 'Bhang' by pounding it in the house. These answers were enlisted to the questions during cross-examination which further shows that the allegations were not devoid of force. The plaintiff/respondent was also supported by PW. 2 namely Ghulam Asghar Shah. Though PW. 2 is the real cousin of the plaintiff yet this being a family matter, he is likely to know better that a stranger to the family. Hence his mere relationship with the plaintiff would not discard his evidence particularly when he has no enmity or interest adverse to the petitioner/defendant. In rebuttal, the petitioner/defendant appeared as DW.l. Though he denied the above allegations yet admitted that the plaintiff had lived with him for four or five years after the marriage which took place about eight or nine years back. In that way, it becomes clear that the plaintiff was deserted about four years back as claimed by her. The solitary statement of the defendant cannot upset the evidence of the plaintiff in the above situation, particularly when nobody was examined to support his testimony. 6. It follows from the above that a compound issue was framed but it did not prejudice the trial because requisite evidence was brought on record and discussed by the learned trial Court and has been analysed above. Likewise, there is no substance in the allegation that the provisions contained in Section 12 of the Family Courts Act were violated thereby rendering the impugned judgment and decree as void. In this respect, it may be pointed out that first attempt for reconciliation was made by the trial Court on 15.5.1995 before striking of the issues. That effort had been unsuccessful. After the conclusion of trial, learned counsel for the parties stated before the Court on 23.5.1996 that reconciliation between the parties was not possible and as such, the case was fixed for arguments. This shows that since the learned counsel for the parties had instructions that the conciliation between the parties was not possible, therefore, just to call the parties in the Court in order to inquire from them whether conciliation was possible or not would have been only a technical compliance without having any fruitful outcome. Infact any such attempt would have been an exercise in futility. As such, it cannot be said that the trial Court did not try for conciliation as required by Section 12 of the Family Courts Act, 1964. 7. In view of any above discussion, I do not find any ground for interference with the impugned judgment and decree in the extra-ordinary writ jurisdiction of this Court. The petition is accordingly dismissed in limine. 8. With the dismissal of the main petition vide my order of even date, this petition is also dismissed. (K.A.B.) Petition dismissed.
PLJ 1997 Peshawar 1 (DB) PLJ 1997 Peshawar 1 (DB) Present: abdur herman khan and mrs. khalida rachid, JJ. GHULAM SIDDIQUE and others-Appellants versus GOVERNMENT OF N.W.F.P. and others-Respondents Regular First Appeals No. 33 and 56 of 1987, decided on 2-4-1996 (i) Land Acquisition Act, 1894 (I of 1894)-- S. 54, Civil Procedure Code, O.I R. 10 & O.XLI R. 33-Award of compensation-Appeal against-Application for permission to be impleaded as party in appeal-No objection raised against award of compensation-Applicants already received amount of compensation without protestApplicants had approached Acquisition Collector as far back as 6-11-1982 to be impleaded as party but their prayer was turned down by order dated 19-5-1983-Applicants again applied to Acquisition Judge for transposition as petitioner but their application was dismissed on 24-10-1984-Applicants did not impugn these orders in any forum, therefore, application filed by them on 30-11-1993 besides being belated one was also hit by principle of estoppel-Applicants having kept quiet all along for a decade, orders passed against them attained finality. [P. 5] A (ii) Land Acquisition Act, 1894 (I of 1894)-- -Ss. 23 & 54-Compensation for acquired land-Factors in determination ofReferee court not taking into consideration potential value of land to which it could be put in future-Evidence on record clearly established that land in question was situated in Municipal Corporation areas and was surrounded by various commercial units and built up areaEvidenceof claimant remained un-rebutted, for no evidence to contradict same was produced-Property in question being situated in municipal area and on the road side could also be used for industrial and commercial purposes- Trial Court did not take such factors into consideration while granting compensation-Compensation was enhanced. [P, 9] B A.R. Sheikh and Mian Muhammad Younas Shah, Advocates for Appellants. Shah Jehan Khan, A.G. and Chaudhri Khurhsid Ahmad, Advocate for Respondents. Date of hearing: 11.12.1995. judgment Abdur Rehman Khan, J--This judgment will dispose of the above noted appeals alongwith C.M. No. 106 of 1992 filed in R.F.A. No. 33 of 1987 and C.M. No. 110 of 1992 moved in R.F.A. No. 56 of 1987. Both the appellants are aggrieved from the decision delivered by the earned Acquisition Judge on 28.1.1987 where the market value of the acquired land was fixed at Rs. 30 per sq. foot and the petitioners were also held entitled to the compulsory acquisition charges and interest on the enhanced rate. The appellants in Appeal No. 33 of 1987 were owners of the acquired land and they are not satisfied with the sale price determined by the referee Judge, therefore, they have filed the appeal under section 54 of the Land Acquisition Act (henceforth to be referred as the Act) as they claim that they are entitled to receive compensation at the minimum rate of Rs. 100 per sq. foot. The Collector, Land Acquisition and the acquiring department are aggrieved of the compensation as their stance is that the price worked out by the learned Acquisition Collector was correct and the enhancement in the market value made by the referee Judge was not legally justified. 2. The factual background of the controversy agitated in these (5) appeals is that by Award No. 9 drawn on 29.5.1978, the Acquisition Collector acquired Khdsra No. 5277/4905/2 measuring 4 Kanals of land for the construction of bus stand at G.T. Road, Peshawar, Notification under section 4 of the Act was issued on 15.3.1977. The Collector Acquisition fixed the price of the land at Rs. 3,895 per Kanal. The appellants in Appeal No. 33 of 1987 approached the Collector, Land Acquisition under section 18 of the Act to refer their objection petition against the fixation of the sale price in the award of the Collector for decision of the Court, The relevant averments of this objection petition are that the land owned by the objectors has been assessed at a very low price because on account of its location and potential value, its price was not less than R. 100 per sq. foot. It is alleged that the acquired land is situated in industrial and commercial area and is surrounded by Abadi. The Collector, Land Acquisition and the acquiring department, respondents 1 and 2, in their joint written statement opposed the claim of the petitioners to the enhancement and maintained that the price worked out by the Collector was correct. 3. It is to be noted at this stage that the applicants in C.M. No. 106 of 1992 in R.F.A. No. 33 of 1987 and in C.M. No. 110/92 in R.F.A. No. 56 of 1987 had been arrayed as respondents 3 and 4 in the objection petition. However, it appears that they did not contest the objection petition. It would be proper to dispose of the said two applications at this stage, as thereafter, in the judgment, the merits of the case would be determined between the contesting parties. The applicants in the two miscellaneous applications are Mst. Asmat-un-Nisa and Mst. Musarrat Munir. These applications have been submitted under Order XLI, Rule 33 read with Order 1, Rule 10 and sections 141 and 151 of the Civil Procedure Code to implead the said two applicants as appellants in the two appeals and to allow them compensation which may be fixed by the Court in respect of the acquired land. The material contents of these applications are that 20 Kanals of land was purchased by Firm M/s. Babu Munir Ghulam Siddique through sale-deed dated 23.11.1942 registered on 18.6.1943. Babu Munir, husband of Mst. Asmat-un-Nisa and father of Mst. Musarrat Munir was partnexing the said firm which was duly registered under the Partnership Act. It is alleged that the partnership still persists, and therefore, the reference should have been made in the name of the firm as the property was owned by the firm. Babu .Munir had died in the year 1954 and was survived by the said two ladies and, thereafter, Ghulam Siddique, petitioner No. 1, was running the affair of the firm, therefore, he was bound to file the reference in the name of the firm as the land was included in the assets of the firm. The exclusion of the Applicants from the objection petition was described as mala fide act on the part of Ghulam Siddique, petitioner No. 1. These applications were opposed both by the objectors as well as by the Land Acquisition Collector. In their reply, the applications were termed as barred by time and the petitioners were declared as estopped by their conduct from filing the objection petition. The existence of the firm at the time of filing of the objection petition was denied. It was replied that the objectors and the applicants had specified shares in the acquired land and the applicants received the compensation amount without any protest, therefore, they were estopped to agitate the matter of compensation further. Moreover, the applicants failed to file any objection petition in terms of sections 18 and 30 of the Act. Although the applicants had applied to the Acquisition Collector on 6.11.1982 to be impleaded as party but that application was rejected on 19.5.1983 holding it as misconceived. Similarly, they applied to the Acquisition Judge to be transposed as petitioners in the objection petition but that was rejected on 24.10.1984 as it was held that the applicants had not filed any objection petition within time and that they could not be legally transposed. It was, therefore, alleged that both the said orders against the applicants had attained finality and as such they were not legally entitled impugn these orders by way of collateral proceedings. 4. Arguments were heard in detail on these two applications. Mr. Khurshid Ahmad, Advocate, appearing for the applicants submitted that when an appeal is filed in an acquisition matter, then the entire Us comes before the Court, remains open for determination and, therefore, the Appellate Court can grant the relief even to non-appealing party under 1 Order 41, rule 33 and sections 141 and 151, C.P.C. In support of this ! proposition, he relied on PLD 1988 Pesh. 71, PLD 1964 SC 502, PLD 1989 SC 510, AIR 1927 Cal. 352, AIR 1963 Punjab 490, 1985 SCMR 401, 1992 SCMR 1208. The rules laid down in the said authorities were under different and distinct circumstances and cannot be applied to the facts of this case. In 1 PLD 1988 Pesh. 71, although the relief was given in appeal to the nonappealing party but that party had preferred objection petition in terms of section 18 of the Act. Moreover, the High Court in the appeal had held that the objectors were entitled to the relief which naturally included those who had filed the objection petition. Besides that, the entire land was in dispute in those proceedings. In the instant case, the applicants have not filed any 8 objection petition and they have received without protest the amount of I compensation for their specified share. 1992 SCMR 1208 also proceeds on J entirely different facts as in that case joint decree in favour of the co-sharer was passed, therefore, it was held that the decree could be executed even at d the behest of the decree-holder who was not party to the execution proceedinp. The relief granted in PLD 1989 SC 510 was made possible as the Advocate-General did not oppose it. In AIR 1963 Punjab 490, the dictum is that if the property is joint and the co-owner has no distinct and specific share therein, then a reference under section 18 of the Act by one co-ownerwould benefit the other co-owner. However, it was also held that in case of specified share, the objector would be competent to act only on his behalf. AIR 1927 Cal. 352, would also not apply as in that case, the property related M to Wakf property and it was held:- "Where the property acquired is Wakf property, although the subject of reference is valuation of the property, it is open to any one of the body of trustees to come forward and ask that he should be allowed to appear in the Court of the Judge and be permitted to place before the Court such material as he may have in his power to enable the Court to arrive at a proper decision as to the value of the trust property." PLD 1964 SC 502 has no bearing on the points raised in the present case. 1985 SCMR 401 was a case under Arbitration Act which had distinct provisions from the Land Acquisition Act. Moreover, the learned counsel was probably oblivious of the fact that the applicants had received the share of compensation for their specified share in the property and that too, without any protest. It is also on record that the applicants had approached the Collector Acquisition as far back as 6.11.1982 to be impleaded as party but their prayer was turned down by order dated 19.5.1983. They again applied to the Acquisition Judge for transposition as petition but that application was also dismissed on 24.10.1984. The applicants did not impugn these orders in any forum, therefore, the present application filed on 30.11.1993 besides being belated one is also bad under the principle of estoppel. The applicants knew about the acquisition proceedings and received the compensation amount without any objection. They also knew about the proceedings before the Acquisition Judge as they were arrayed respondents therein. They applied to be transposed as appellants but failed. However, they kept quiet all along for about a decade and therefore, the orders passed against them attained finality. The next contention advanced form the applicants' side was that the property was owned by the firm and it continued to be as such at the time of acquisition, therefore, the death of the predecessor of the applicants who was a partner of the firm would not affect the status of the property as property of the firm. This argument is devoid of substance as the applicants received compensation of their specified share without any protest which meant that they did not consider the property to be that of the firm. Moreover, there is no material on record to support the stance of the applicants that after the death of their predecessor in 1954, the partnership continued till 1977 when the property was acquired. The last contention was that the earlier decisions against the applicants, as referred to above, would not amount to res judicata. There is no cavil with this proposition and the applications are not dismissed on that count. However, no one can be permitted to circumvent the process of law. The applicants were required to have proceeded in the matter in accordance with law and no relief can be given in violation of the requirements of law. Section 18 of the Act provides the manner under which the Collector can be approached for reference of the objection petition to the referee Judge. Contents of such application and the time framed under which it is to be made have been prescribed In that section. The petitioner cannot be, therefore, permitted to bypass the relevant law and to be given relief which they never cared to obtain in a manner provided by law. The applications are, therefore, found without substance and are dismissed as such. 5. Now we would refer to the merits of the case to determine as to whether the compensation allowed in the impugned judgment is legal and borne out from the material on record. The contents of the objection petition and written statement have already been referred to above and now it would be pertinent to give brief summary of the evidence on record for proper understanding of the merits of the case of both the sides. 6. P.W. is Syed Imdad Ali Shah, Patwari, who brought on record Akas Shajara Kishtawar and certain mutations. He also stated: "The acquired Khasra No. 52777/4905 which is located on the main road i.e. G.T. Road". This witness also stated "that Mahal Hazar Khani is spread out in a huge area." P.W. 2 is Niaz Dil Khan who had some time remained the Land Acquisition Collector of P.D.D.E., Peshawar. He had submitted a report during his tenure in his office and brought on record a copy of that report as Exh. P.W. 2/1 according to which, the price of the land was worked out at the rate of Rs. 30 per sq. foot. It is to be noted that this report was made basis by the Acquisition Judge for fixing the market value in this case. P.W. 4 is Shamroz Khan, Patwari Halqa, Tukra No. 1. He deposed "the suit land acquired for the bus stand is at a distance of one furlong from Sikandar Town". P.W. 5 Syed Anwar Shah Bokhari is Record-keeper, Municipal Corporation, Peshawar. This witness produced the sale certificates in respect of Plots Nos. 3, 4, 5 and 20 situated in Khushal Colony and Sikandar Town as Exh. P.W. 5/1 Exh. P.W. 5/3. Sufi Abdur Rashid is P.W. 6 who stated that the suit land is situated on G.T. Road and this area is very populous. Pakistan Flour Mills, G.T.S. Workshop, and Sethi Town are close to it. Some 5/6 years back he had contacted Ghulam Siddique as he wanted to purchase a portion of the acquired land and the price demanded by Ghulam Siddique at that time was Rs. 120 per sq. foot and he had offered Rs. 100 per sq. foot as a purchase price. P.W. 7 Muhammad Ashraf is property dealer who almost confirmed the statement P.W. 6 about the price. He further clarified that the acquired land is situated on the road and Flour Mills, Azim Cold Storage and bulbs factory are situated hereby, out of which some have been constructed 5/6 years back while some 10/12 years back. He also stated that the rate in Sikandar Town in R. 100 to Rs. 125 per sq. foot. Ghulam Siddique petitioner appeared as his own witness who brought Sale Mutations Exh. P.W. 9/2 to Exh. P.W. 9/17. He also stated that Tukra No. 1 is close to Village Hazar Khani and that Sikandar Town, office of Municipal Corporation, Khushal Colony and Nishtar Abad are situated in Tukra No. 1. In cross-examination, he deposed: Against this evidence, the respondents produced no evidence in rebuttal. It is thus manifest that the documentary evidence in the case is contained in the sale certificate Exh. P.W. 5/1 to Exh. P.W. 5/4 and the sale mutation Exh. P.W. 9/2 to Exh. P.W. 9/17. According to P.W. 5 who produced the sale certificate "The Plots Nos. 3, 4 and 5 situated in Khusal Colony were auctioned in the year 1974. Plot No. 20 in Sikandar Town was sold in 1977." The total area of these four plots comes to 16748 sq. ft. while the total sale price is Rs. 10,31, 279. The average calculated per foot is Rs. 61.9. However, if we calculate the average per foot of Plots Nos. 3, 4, 5 which were sold in 1974, then the price per foot would come to Rs. 56. The number of mutations exhibited on record from Exh. P.W. 9/2 to Exh. P.W. 9/17 comes to 11 and according to the calculation, the average price per foot comes to 37.75. It is, however, to be explained that some of the mutations like No. 1887 was attested on 6.2.1970 (Exh. P.W. 9/14) and No. 6236 was sanctioned on 16.12.1972 (Exh. P.W. 9/17). One mutation Exh. P.W. 9/6 No. 5671 was attested on 25.10.1975. Out of the other mutations, some are of the year 1977 while three of them pertain to the year 1978. Notification under section 4 of the Act in this case was issued on 15.3.1977, therefore, the sale certificates of the auction which took place in 1974 and the mutations which were attested in 1970, 1972 and 1975 are of a date much prior to this notification. In any case, to adopt more safe and guarded method for assessing the market value, the price is to be worked out from the joint prices given in the sale certificates and sale mutations and on this calculation the average per foot comes to Rs. 49.76. It is in the evidence of the objectors that the area sold through the sale certificates is in the proximity of the acquired land and that the acquired land is in the Municipal Corporation and is surrounded by the Flour Mills, built up area etc. Although the period to be considered for determining the market value would be the date of notification under section 4 of the Act but it is not a rule of universal application and some period thereafter can also be considered on account of the upward trend of prices. In PLD 1992 FSC 398, it has been laid down that:- "Basic and fundamental date for fixation of compensation for the land acquired in the public interest was the market value on the date of actual acquisition on land-Date of the issue of notification under section 4, was not crucial date but it was the date of actual acquisition which followed the step taken in the matter of acquisition after disposal of objections under section 6, which was required to be substituted in S. 23(1) of the Land Acquisition Act, 1894." In a case reported in 1985 SCMR 767, the price per Kanal was enhanced from Rs. 23,000 to Rs. 25,000 on account of upward trend in the prices as award had been made two years later form the notification under section 4 of the Act. The gap between the notification and award in this case is more than one year. The rule laid down in PLD 1988 SC 32 is to the effect:- "It is, therefore, evident that the factors for determination of the market value of the land proposed to be acquired are not restricted only to the time of issuance of the notification under section 4 of the Land Acquisition Act or any period prior to it, but can also relate to the period in future (i.e. to period after the issuance of notification under section 4 of the Act). It is for this reason that the 'potential value' of the land i.e. the use to which it can put in future, has in a large number of cases been held to be a relevant factor."Similarly, the rule enunicated in PLD 1986 SC 158 is as under: - "There are factors which have to be taken into consideration (while determining the value of the land to be acquired) e.g. the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also by a reference to the uses to which it is reasonably capable of being put in future; and the market value is the potential value of the property, at the time of acquisition which would be paid by a willing buyer to a willing seller, when both are actuated by business principles prevalent in the locality at that time. This salutary principle is often ignored by the functionaries 1 of the Government while assessing the amount of compensation to be awarded to the persons whose land is compulsorily acquired. The principle that the use to which the land is capable of being put, to the advantage of the owner, is a factor which ought to be considered by the assessing authority, has been enunciated in a number of cases. While determining the value of the land acquired by the Government and the price which a willing purchaser would give to the willing seller, on the 'past sales' should not be taken into account but the value of the land with all its potentialities may also be determined by examining (if necessary as a Court witness) local property dealers or other persons who are likely to know the price that the property in question is likely to fetch in the open market. In appropriate cases there should be no compunction even on relying upon the oral testimony with respect to the market value of the property intended to be acquired, because even while deciding cases involving questions of life and death, the Courts rely on oral testimony alone and do not insist on the production of documentary evidence." The perusal of the judgment of the trial Court would reveal that it has not taken into consideration the location of the acquired land, its potentialities and the use to which it can be put in near future. The evidence on record and particularly the statement of the objector clearly proves that the disputed land was situated in Municipal Corporation Area and was surrounded by various commercial units and built up area. As has been earlier stated, the evidence of the petitioner goes unrebutted as no evidence has been led by the Collector in support of their stand. It is a matter of common knowledge and everyday observation that residential building, commercial building and industrial units springing up al) along very quickly and in this case as the property in question at the time of acquisition was situated in the Municipal Corporation Area and according to Aks Shqjra Kishtwar (Exh. P.W. 1/9). the original Khasra No. 4905 lay on the road-side. therefore, it could also be used for industrial and commercial purposes. The trial Court has, therefore, erred in not taking into consideration all the evidence, referred to above, the potential value and has only relied on a report which alone could not be made basis of the assessment. The steep rise in the prices and the devaluation of currency is also a factor which ought to have been taken into consideration by the learned referee Judge. The rule laid down in PLD 1970 Quetta 35 is: "Where the acquisition of land has to be made under the Land Acquisition Act, 1894, the compensation is to be assessed in accordance with the principles laid down under section 23 of this Act. It is well settled that under this section the owner is entitled to charge the price of his land fixed with reference to the probable use which will give him the best return and not merely in accordance with its present use and disposition. The compensation must be determined by reference to the price which a willing vendor might reasonably except to obtain from a willing purchaser. The land is not to be valued merely in accordance with the use to which it is being put, but also by reference to the uses to which it was reasonably capable of being put in the future Its value has to be assessed as a building site with all its potentialities for its development in the future." We accept this appeal for the reasons stated above and enhance the price of the land from Rs. 30 per sq. foot to Rs. 49.76 per sq. foot. We direct that simple interest at the rate of Rs. 6% per annum and compulsory acquisition charges should be paid to the appellants on the enhanced amount. There would be order as to costs. The connected R.F.A. No. 56 of 1987 automatically fails and is dismissed with no order as to costs. (S.R.) Order accordingly.
PLJ 1997 Peshawar 10 PLJ 1997 Peshawar 10 Present: sardar muhammad raza, J. Syed MEHR ALI SHAH-Petitioner Versus DISTRICT MAGISTRATE MANSEHRA-Respondent W.P. No. 134/96, accepted on 13.10.1996. (i) Maintenance of Public Order Ordinance, 1960-- S. 3(l)-Detention order by Distt. Magistrate for keeping petitioner one month under preventive detention-Reason stated that petitioner had been acting in manner prejudicial to public safety and interest by destroying precious forest and involving himself in smuggling of timbercreating law and order situation-An FIR U/S. 506/186/148/149/109 P.P.C. already registered against petitioner--What was material before Distt: Magistrate justifying his action U/S. 3(l)-Question ofHeld: When a person is charged for a specific offence or offences, relevant criminal law would take care of him and would punish him accordingly in case offence is proved-There is no reason to vex a man twice for same act-Held further : Material in shape of aforesaid FIR was neither sufficient nor justified to take action under preventive detention-Order withdrawn. [P. 12] A PLD 1992 Pesh. 7 and 1994 SCMR 1532 ref . (ii) Preventive Detention- Preventive detention cannot be used for punishing persons for their past actions yet past conduct of a person can be made basis of satisfaction of authorities ordering such detention.-If functionaries of forest department are true in their assertions, they should better initiate criminal proceedings qua each and every offence committed by petitioner or his men-If still activities remain uncontrolable and there comes sufficient material before Distt. Magistrate Mansehra, he is at liberty to take action under provisions of preventive laws. [P. 12] B Abdul Jan Mirza and EjazAfzal Khan, Advocates for Petitioner. Sardar Muhammad Irshad, Advocate for Respondent. Date of hearing: 9.10.1996. judgment The District Magistrate, Mansehra through his order dated 14.9.96 and the grounds of detention of the even date, directed the detention U/S 3(1) of the Maintenance of Public Order Ordinance, 1960, of Mehr Ali Shah s/o Farid Shah of village Devli Mansehra for a period of one month from the date of the execution of order, which detention, stands challenged through the instant writ petition under Article 199 of the Constitution. 2. The grounds of detention supplied to the detenu were to the effect that in the recent past the detenu had been acting in a manner prejudicial to public safety and interest by destroying precious forest and also by involving himself in the smuggling of timber, thereby creating law and order situation when never asked to desist from such activities. 3. The District Magistrate was issued a notice of the present petition against which he appeared personally alongwith the officers of forest department including the present DPO Mr. Saadat Khan. They also submitted comments and as the action was taken in connection with the affairs of the forest department, we heard the aforesaid DFO at length on different dates. 4. The first and the foremost question that arises for determination is as to what was the material before the District Magistrate justifying action under section 3(1) of the Maintenance Public Order Ordinance, 1960. Our own High Court in case "Muhammad Iqbal vs. Deputy Commissioner Mansehra" (PLD 1992 Peshawar 107) has also felt the necessity of such material that should reasonably persuade the District Magistrate for taking action under the Ordinance. Such material is required to satisfy the mind of the court as to whether the District Magistrate, in turn had applied had mind to the facts of the case and whether such application of mind was reasonable or not. This also implies that the grounds of detention prevailing with the District Magistrate should be solid and not at all vague so that the detenu should be able to resort to the authorities concerned, challenging such grounds specifically. 5. While going through such record, we have been able to see only one FIR # 405 dated 26.8.96 registered at PS Shinkiari Mansehra against the petitioner alongwith others, U/Ss. 506/186/148/149/109 PPC. The aforesaid FIR was registered at the instance of Sarfaraz Khan forester who is said to have had denied the contents of FIR through a supplementary statement but when summoned in court he denied having given any supplementary statement. That being besides the point, the above trouble had arisen because in the light of a judgment dated 31.5.94 of the Supreme Court of Pakistan, the functionaries of the Forest Department had visited the spot and made preparations to remove some illicit timber when they were forcibly restrained by the men of the petitioner. So far as the present case is concerned, the only material before us is the aforesaid FIR. 6. In a recent judgment given in case "Mrs. Arshad All Khan vs. Government of the Punjab" (1994 SCMR 1532), the Supreme Court has observed that where the police had already registered a case against the detenu under various provisions of the Penal Code, it clearly indicated that the detenu was accused of substantive offences and therefore, his preventive detention on the same allegations could not be justified in law. The simple and logical reason for the aforesaid finding was that when a person is charged for a specific offence or offences, the relevant criminal law would take care of-him and would punish him accordingly in case the offence is proved. There is no reason to vex a man twice for the same act. In this view of the matter we hold that the material in the instant case in the shape of the aforesaid FIR was neither sufficient nor justified to take action under preventive detention. 7. Apart from the aforesaid material, we were addressed in detail about the attending circumstances of the present case. It was alleged with all the force at the command of the forest functionaries that under the garb of the timber allowed to be removed by the Supreme Court, the petitioner is involved in the massive illicit cutting of the forest and removal of the same from the compartment and is least active in the removal of the old timber which provides him a dishonest garb. It was alleged that one FIR stands registered against him and his men but apart therefrom he is involved in the destruction of forest thereby rendering the department totally helpless. That he has kept scores of armed men in the forest who do not even allow the officials of the forest department to enter the compartment for the purpose of checking. That if this state of affairs is allowed to continue, the very lives of forest officials would be endangered at the hands or the timber mafia which by now has become uncontrolable ruthless and desperate. 8. In the circumstances of the case laid down before us in detail, we are not unmindful of the situation created by an agency which is turned into a mafia. A mafia goes beyond the clutches of law enforcement agencies. The situation created is so unmanageable that no one can practically deploy one watch man over each tree, extending over an area where even the checking of a compartment is not possible in one day, over and above the fact that most of the locations are such that by the time the law enforcement agencies reaches the spot, no one is present around within miles of radius. 9. Although preventive detention cannot be used for punishing persons for their past actions yet past conduct of a person can be made basis of the satisfaction of the authorities ordering such detention. If the functionaries of the forest department are true in their assertions, they should better initiate criminal proceedings qua each and every offence committed by the petitioner or his men. If still the activities remain uncontrolable and their comes sufficient material before the District Magistrate Mansehra, he is at liberty to take action under the provisions of preventive laws. 10. Consequently the impugned order of detention dated 14.9.1996 passed by the District Magistrate Mansehra is hereby withdrawn. If not required to be detained in any other cause, the petitioner detenu be released forthwith. 11. However, this order shall not debar the District Magistrate Mansehra from taking similar action against the petitioner in case sufficient material becomes available through any agency or is brought before him by the forest department. (S.R.) Petition accepted.
PLJ 1997 Peshawar 13 PLJ 1997 Peshawar 13 [Circuit Bench Abbottabad] Present: sardar muhammad raza, J . YADGAR FLOUR MILLS-Petitioner versus GOVT. OF NWFP etc.Respondents W.P. No. 52 of 1996, decided on 16.9.1996. (i) Cabinet Decision-- Cabinet decisions-Legal value of-Long and short of whatever decision is taken in Cabinet is that if approved by Governor, it can be converted into Ordinance by latter and thereafter it takes shape of law-A Cabinet decision if placed before Assembly and converted into an Act would also take shape of law~In all other cases it simply amounts to an internal working arrangement between department and Chief Minister-in- Cabinet. [P. 16] A (ii) Constitution of Pakistan, 1973- Art. 199 sub-Art. a(i) Issuance of wheat quota to flour mills-Refusal of-- Flour Mill duly approved by Provincial Govt.-Other Mills are getting their quota-Sanction refused by Chief Minister Cabinet-Held: Art. 25 of Constitution of Pakistan guarantees full equality before law to all citizen! of country-In instant case numerous business concerns are involved in similar business and production but three petitioners Mills were prevented from carrying on their business while other rival concerns are facilitated to go into production and to remain into production-This is a discrimination seriously offending Art. 25 of Constitution-Respondents are directed to issue wheat quote to petitioners-Petition allowed. [P. 16] B Mr. Adam Khan Jadoon, Advocate for Appellant. Mr. Tahir Hussain Lughmani, A.A.G. for Respondents. Date of hearing: 5.8.1996. judgment 1. Yadgar Flour Mills at Chappar Road Haripur, Kunhar Flour Mills at Mansehra and M/s Asif Flour Mills at Ganda Road, Chickrali Mansehra, after due approval by the Provincial Government, were constructed and established for the purposes of milling of wheat into flour and cleaning etc. Completion certificate was issued to all the three Mills by the Director/Assistant Director Industries. The three Mills aforesaid were included in the list of those 27 new/under installation flour mills which were approved by the Provincial Cabinet in its meeting held on 26.3.1992 headed by the then Chief Minister N.W.F.P. Their names appeared at Sr. # 24, 26 and 27 of the list concerned. 2. After such completion and being ready forgoing into production, all the three Mills mentioned above applied for wheat quota to the authorities concerned i.e. Director Food NWFP Peshawar but they were not supplied any quota despite repeated demands. Yadgar, Kunhar and Asif Flour Mills have challenged such action of the authorities as mala fide and have asked for a writ to be issued to the Government under Article 199 of the Constitution for issuance of such wheat quota. All the three writ petitions entered at Sr. # 52/96, 53/96 and 83/96, involving the same questions of law and fact, shall be disposed of through this single order. 3. This court had called for the comments of the authorities' concerned. Secretary to Government of NWFP Food, Agricultural, Livestock and Cooperation Department; Director Food NWPF Peshawar and District Food Controllers Haripur and Mansehra have filed their comments in the writ petitions of Yadgar and Kunhar Flour Mills while those of Asif Flour Mills we,re still awaited. A perusal of such comments had revealed that the case of all the three petitioners is fully identical and hence on such comments we propose to decide the matter in issue. 4. With the comments, the problem has been simplified by the Government-respondents to the effect that the approval of construction etc. of all the three Mills by the Government is admitted. The fact that the three Flour Mills were included into the list of 27 new/under installation Flour Mills duly approved by the Provincial Cabinet on 26.3.1992 is also admitted. The fact that all the three Mills applied for wheat quota is also admitted with the only difference that in case of Yadgar and Kunhar Flour Mills a summary was duly submitted to the worthy Chief Minister but the quota was refused while in case of M/s Asif. Flour Mills even the summary was not submitted. This denial of quota to the petitioners-Flour Mills is based on one and the only ground that the Provincial Cabinet in its meetings held on 26.3.1992 and 14.9.1994 had imposed ban on issuance of wheat quota to the new Flour Mills. 5. The learned counsel for the petitioners vehemently challenged such conduct on the ground that the Flour Mills duly approved by the Provincial Government numbering 27, inclusive of the three petitioners-Mills were not at all new and the condition of ban could not have been imposed on them. The most vehement allegation was to the effect that despite imposition of such ban (having no force of law) wheat quota was issued to nine Flour Mills which were never included even in the approved list of 27 Mills. All the three petitioners have given the names of such nine Flour Mills as (1) Jamal Flour Mills Nowshera, (2) Rezwan Flour Mills Peshawar, (3) Shahdab Flour Mills, Peshawar, (4) Juro Flour Mills Swabi, (5) Malakand Flour Mills, Malakand, (6) Super Al-Qurash Flour Mills, Haripur, (7) Komal Flour Mills, Haripur, (8) New Super Al-Qurash Flour Mills, Haripur and (9) Shaikh Abad Flour Mills, Charsadda. This factual aspect of the allegation stands commented upon by the authorities concerned to the effect that a summary was moved to the Chief Minister NWFP and the Chief Minister being the competent authority allowed regular quota of wheat to the aforesaid Flour Mills. Meaning thereby, that this aspect of the case is also admitted. The learned Assistant Advocate General appearing on behalf of the respondents has added that a summary in case of Yadgar and Kunhar Flour Mills was moved to the Chief Minister NWPF who declined to allow the desired quota while no summary at all was prepared regarding Asif Flour Mills by the authorities concerned for presentation before the Chief Minister NWFP. 6. So far as the preparation of summary and the permission of quota is concerned, the respondents, alongwith their comments have annexed the decisions of the meetings of the Provincial Cabinet held on 26th March, 1992 which, for convenience of ready reference, are'reproduced below: - (i) approved the recommendations of the committee contained in Para 3(1) of the summary regarding distribution of wheat quota to the flour mills; (ii) decided that the Food and Agriculture Department should obtain permission of the Chief Minister on case-to-case basis for issuance of wheat quota to the 27 new/under installation flour mills in whose favour the Food and Agriculture Department had already issued No Objection Certificates; (iii) decided that in future the Food and Agriculture Department should not issue NOC for wheat quota to new flour mills; Through such decisions permission of the Chief Minister was considered necessary on case-to-case basis for issuance of wheat quota to the 27 new/under installation Flour Mills, in whose favour the Food and Agriculture Departments had already issued No objection Certificates. 7. Extensive arguments were addressed before us in order to see the legal value of the Cabinet decisions aforesaid. The long and short of whatever decision is taken in the Cabinet is that if approved by the Governor, it can be converted into Ordinance by the latter and thereafter it takes the shape of law. A Cabinet decision if placed before the Assembly and converted into an Act would also take the shape of law. In all other cases it simply amounts to an internal working arrangement between the Departments and the Chief Minister-in-Cabinet. In the instant case the decision taken by the Cabinet on 26th March, 1992 has neither been translated into an Act nor into an Ordinance and thus would only be appreciated as a departmental arrangement. 8. Keeping in view the aforesaid legal position, we are led to observe that 27 new/under installation Flour Mills were approved by the Provincial Government in the year 1992. Under such approval the construction started and was ultimately completed in between 1994 and 1995, as per the completion certificates issued. The present three Flour Mills are one of such Mills which were duly approved by the Provincial Government. The quota is issued to all such Mills except the present three petitioners. Whatever be the reasons prevailing with the Provincial Government for refusal of quota to the present petitioners, adding insult to the injury is that nine Flour Mills mentioned above not included in the approved list were given an our-of-turn quota. This, in simple words is an utter discrimination whereby the petitioners are made to run into loss of millions, right under the protective entity of the Government which, under the principles of natural justice, is supposed to be equally protective for all involved under similar circumstances. The learned Assistant Advocate General could not give us a single reason for the discrimination metted out to the petitioners. 9. Article 25 of the Constitution of Pakistan guarantees full equality before law to all the citizens of the country. In the instant case numerous business concerns are involved in similar business and production but the three petitioners-Mills are prevented from carrying on their business while the other rival concerns are facilitated to go into production and to remain into production. This is a discrimination seriously offending Article 25 of the Constitution. 10. Accordingly, all the three petitions are accepted and the respondents are directed to release wheat quota to the petitioners-Mills. (S.R.) Petition accepted.
PLJ 1997 Peshawar 17 PLJ 1997 Peshawar 17 [Circuit Bench Abbottabad] Present: sardar muhammad raza, J. MAROOF SHAH-Petitioner versus Mst. TASLIM JAN and others-Respondents C.R. No. 83/95, accepted on 14.9.1996. (i) N.W.F.P. Pre-emption Act, 1987-- -Right of pre-emption-Suit for-Dismissed by trial court-Appellate Court reversed findings-Challenge to-Three stages of Talb are provided in shape of talb-i-muwathibat, talb-i-ishhad and talb-i-khusumat--E&ch and every stage is an independent requirement of Islamic Law of Pre-emption and has to be independently and individually complied with--If one takes for granted contents of notice of talb-i-ishhad and if one takes inference of talb-i-muwathibat therefrom, it would certainly amount to bye-passing practical proof of talb-i-muwathibat which is rather more important being foremost in series-It is therefore held that talb-i-muwathibat and talb-i- ishhad being two different phenomena and being two independent requirements of law are to be separately, individually and independently proved. [P. 18] A (ii) N.W.F.P. Pre-emption Act, 1987-- Talb-i-muwathibat is sine-qua-non for exercise of right of pre-emption-It is pure question of fact that entails upon legal consequences and hence has to be proved like any other material factUnder Order 6 Rule 2 of CPC a statement in a concise form of material facts is bound to be given in pleadings and evidence is to be brought in accordance therewith and never beyond thereof. [P. 18 & 19] B (iii) N.W.F.P. Pre-emption Act, 1987- Talb-i-Muwathibat and Ta/ft-i-Js/z/zad-Difference-To say that talb-iishhad is confirmation of talb-i-muwathibat, would tantamount to intermingling both independent requirements of law and would also , tantamount to putting cart before horse. [P. 19] C 1995 SCMR 973 Disting Mr. Ejaz Afzal Khan, Advocate for Petitioner. Mr. Muhammad Hussain Luqhmani, Advocate for Respondents. Date of decision: 14.9.1996. judgment A purchase of 25 kanals 17 Mis of land in village Seeri Khairabad Tehsil Balakot through Mutation No. 3185 attested on 17.1.1993 by Maroof Shah s/o Pir Badshah was pre-empted by Ali Khan s/o Saddar Ali who was non-suited by the learned Civil Judge, Balakot through his judgment and decree dated 6.11.1994. 2. The pre-emptor went in appeal which was heard by the learned Additional District Judge, Mansehra who reversed the findings of the trial court and granted a decree for possession through pre-emption on payment of Rs. 50,000/- as sale consideration. This judgment dated 21.5.1995 is challenged by the vendee Maroof Shah through the instant civil revision. 3. So far as the right of pre-emption, as such, and the amount of consideration involved is concerned, it is conceded at the bar and the matter was contested before this Court only and only on the ground of nonfulfilment of Talb-i-muwathibat. 4. Mr. Ejaz Afzal Khan learned counsel for the petitioner alleged, seeking re-inforcement from "Akbar Nawaz Khan vs. Sher Dil Khan" (1995 M.L.D. 1061), a judgment of this Court in support of the argument that the question of Talb-i-muwathibat being a question of fact, was not proved in ft manner so as to bring an accord between the evidence and the pleading. Mr. Muhammad Hussain Lughmani learned counsel for the respondent stated that any thing alleged in the plaint has satisfactorily been proved by the preemptor and moreover the factum of Talb-i-muwathibat stands already mentioned in notice of Talb-i-ishhad and as the latter was a document in writing, no evidence could be produced (oral) beyond the contents of notice of Talb-i-Ishhad. 5. The stance taken by the learned counsel for the respondent seems not to be a correct principle of law. In the N.W.F.P. Pre-emption Act, 1987 the three stages of Talbs are provided in the shape of talb-i-muwathibat, talbi-ishhad and talb-i-khusumat. Each and every stage is an independent requirement of Islamic Law of Pre-emption and hence has to be independently and individually complied with. If one takes for granted the contents of notice of talb-i-ishhad and if one takes the inference of talb-imuwathibat therefrom, it would certainly amount to bye-passing the practical proof of talbi-muwathibat which is rather more important being foremost in the series. It is therefore, held that talb-i-muwathibat and talb-i- ishhad being different phenomena and being two independent requirements of law, are to be separately, individually and independently proved. Let us see as to how the requirement was fulfilled in the instant case. 6. The law on the subject is so obvious and the case law is so clear to the effect that the factum of Talb-i-muwathibat is sine-qua-non for the exercise of right of pre-emption. Without the fulfilment of the former, the latter is not activated. The second aspect of Talb-i-muwathibat is that it is a pure question of fact that entails upon legal consequences and hence has to be proved like any other material fact. Under Order 6 Rule 2 of the C.P.C. a statement in a concise form of the material facts is bound to be given in the pleadings and the evidence is to be brought in accordance therewith and never beyond thereof. 7. A perusal of para No. 2 of the plaint indicates that talb-imuwathibat was made by the pre-emptor the moment he got the knowledge of attestation of mutation in that very meeting where he received information and before the witnesses. Although he failed to give the description cf the occasion and the persons present around yet in para No. 6 he specified that the mutation was attested on 17.1.1993 whereas he had obtained knowledge thereof on 24.1.1993. Ali Khan plaintiff while appearing in the witness box stated that he alongwith Siddique and Jamal Din was sitting when Baud came there and informed that a day earlier, the mutation had stood attested. This means that they had all gathered on 18.1.1993 and the plaintiff had received information on 18.1.1993. Obviously, he was supposed to have made talb-i-muwathibat on 18.1.1993 in the aforesaid meeting but he admittedly had made talb-i-muwathibat on 24.1.1993 as per para 6 of the plaint. The categorical discrepancy between the evidence and the pleadings would indicate that the performance of talb-i-muwathibat was delayed by six days. 8. The pre-emptor further went on to say that 5/6 days after receiving information he issued notice of Talb-i-isshad. This comes to 23 rd and 24th of the month whereas the notice was posted on 27.1.1993. If the knowledge is stretched back to 5/6 days from 27.1.1993 then the date of knowledge falls on 21/22-1-1993. This again negates the date given in the pleadings as 24.1.1993. In the cross-examination he straightaway denied having made talb-i-muwathibat on 24.1.1993. 9. His witness Jamal Din (PW-5) contradicted Ali Khan pre-emptor by saying that the informer Daud had never disclosed the day and date of the attestation of mutation while Muhammad Siddique Khan (PW-6) absolutely negated the very happening, as such. He stated that in his presence nothing was ever informed by any one to the pre-emptor. He was totally ignorant of anything but the notice of talb-i-ishhad. 10. In these circumstances one cannot have two opinions about the utter failure of the plaintiff to prove talb-i-muwathibat. To say that talb-iishhad is the confirmation of talb-i-muwathibat, would tantamount to intermingling both the independent requirements of law and would also tantamount to putting the cart before the horse. Gul Hussain Shah vs. Miilazam Hussain Shah (1995 SCMR 973) relied upon by the learned counsel for the respondent is not relevant to the ircumstances of the resent case because in the above ruling only leave to appeal was granted to consider as to whether the specific deposition (manner of making talb) made by the pre-emptor was sufficient to prove talb-i-muwathibat. In the instant case the manner of making t'alb-i-muwathibat is not at all disputed but the very incident thereof is challenged. 11. Consequently, the revision petition is accepted, the impugned judgment and decree dated 21.5.1995 passed by the learned Additional District Judge, Mansehra is set aside and that dated 6.11.1994 passed by the learned Civil Judge, Balakot is restored with no order as to costs. (S.R.) Revision accepted.
PLJ 1997 Peshawar 20 (DB) PLJ 1997 Peshawar 20 (DB) [Abbottabad Bench] Present: sardar muhammad raza and mehboob ali khan, JJ. ALLIED BANK OF PAKISTAN LTD.-Petitioner Versus M/s HIGH CLASS ELECTRIC CO. and others-Respondents W.P. No. 102/95 accepted, on 15.10.1996. Banking Tribunals Ordinance, 1984- S. 11(2) read with Art. 199 Constitution of Pakistan, 1973-Payment of decretal amount in installments without consent of decree holder- Installment fixed at time of decree-Validity of-Held: In section 11(2) of Banking Tribunals Ordinance 1984 it categorically provides that Banking Tribunal shall not allow decretal amount to be paid in installments without consent of decree holder-It is mandatory provision whereby certain action to be taken by Tribunal is imperatively prohibited and hence impugned order, being violative of mandatory prohibitory provisions of law, is without jurisdiction-Held further: It is a settled principle of law that during execution proceedings a court or a tribunal cannot go beyond decree--At time when decree was passed no installment was fixed-Order of Tribunal set aside-Petition allowed. [P. 21] A & B PLD 1987 Lahore 51 disting. Ehsan Ahmed G. Khawqja, Advocate for Petitioner. M-Haj Sardar Bahadur Khan, Advocate for Respondent. Date of hearing: 15.10.1996. judgment Sardar Muhammad Raza, J.-M/s Allied Bank of Pakistan Limited through Adamjee Road Branch Rawalpindi had advanced some loan to M/s High Class Electric Company (respondents No. 1 to 4) which remained unpaid and ultimately the bank obtained a decree from NWFP Banking Tribunal for the recoveiy of Rs. 53,43,800/39 plus cost of Rs. 20,394/-. 2. Such decree dated 22.5.1993 was being executed and some amount had been paid during execution proceedings when on 31.8.95 the learned Presiding Officer Banking Tribunal directed the payment of decretal amount through an installment of Rs. 2,50,000/- per month. The bank kept on receiving such instalments but at the same time has challenged the order through the instant writ petition under Article 199 of the Constitution, obviously, on the ground that the order was utterly without jurisdiction and at the same time not appealable having been passed during execution proceedings. 3. This Court, while exercising powers under Article 199 of the Constitution has to see as to whether the Tribunal concerned has or has not acted without jurisdiction. In this connection if one refers to section 11(2) of _ Banking Tribunals Ordinance, 1984, it categorically provides that the Banking Tribunal shall not allow the decretal amount to be paid in installments without the consent of the decree holder. It is a mandatory provision whereby certain action to be taken by the Tribunal is imperatively prohibited and hence the impugned order dated 31.8.95, being violative of the mandatory prohibitory provisions of the law, is without jurisdiction. 4. A perusal of the impugned order would also suggest that the representative of the decree holder bank Mr. Azhar Hussain did not even belong to the specific branch of the decree holder bank at Rawalpindi but belonged to a branch at Abbottabad. The decree holder bank never consented to, rather, strongly resisted the payment through installments. 5. Learned counsel for the respondents/judgment debtors argued that after the passage of the impugned order and during the pendency of this writ petition, the decree holder bank has been receiving the payment in the shape of installments aforesaid and hence was estopped to plead otherwise and was hit also by the principle of waiver. The learned counsel relied upon "Grindlays Bank Ltd. vs. Delite House Limited" (PLD 1987 Lahore 51) where acceptance of installments by plaintiff was considered to be the acceptance of mode of payment of the decretal amount. We have gone through the aforesaid ruling and have observed that it was passed in connection with the Banking Companies (Recovery of Loans) Ordinance, 1979 whereas the present case pertains to the recovery being made under Banking Tribunals Ordinance, 1984, section 11(2) whereof lays down a complete bar on the fixation of installments without the consent of the decree holder. 6. Moreover in the above case the installment was fixed at the time of passing of the decree to which the decree holder had agreed through its conduct, whereas, in the instant case the installment is fixed by the Tribunal during execution proceedings. It is a settled principle of law that during B execution proceedings a court or a Tribunal cannot go beyond the decree. At the time when the decree was passed in the instant case no installment was fixed. The authority is therefore distinguishable. 7. The learned counsel for the respondents further went on to argue that in the instant case the judgment debtor has been making payment egularly through installments and no injustice has at all taken place and further that only a few installments remain to be paid and thus, in the circumstances, this court should refrain from showing indulgence under Article 199 of the Constitution. In this behalf learned counsel relied upon a Division Bench judgment of this Court "Muhammad Gul vs. Mst. Shahru Bibi" (PLD 1995 Peshawar 77) where it was held that the Constitutional jurisdiction under Article 199 should not be exercised where no injustice was going to take place. We would have agreed with the learned counsel, had the point in the aforesaid ruling been limited to the factum of no injustice in the prospect. But in the above case, the factum of the forums below having acted without jurisdiction was also given a reservation. Meaning thereby that the provisions of Article 199 could also and always be invoked when ever there was a question of the forum below having acted without jurisdiction. In the instant case the learned Tribunal had utterly acted without jurisdiction. 8. In the circumstances, while accepting the present writ petition, we would set aside the impugned order qua the fixation of installments as the mode of payment. (S.R.) Petition accepted.
PLJ 1997 Peshawar 22 (DB) PLJ 1997 Peshawar 22 (DB) [Circuit Bench Abbottabad] Present: MEHBUB ALi khan and sardar muhammad raza, JJ. Hqji MUHAMMAD SHARIF KHAN-Petitioner versus SUB DIVISIONAL MAGISTRATE, ABBOTTABAD and othersRespondents W.P. No. 44/96, accepted on 23.7.1996. (i) Constitution of Pakistan 1973- -Jurisdiction of High Court under Article 199 of Constitution with regard to tribal areas-Held: Settled principle of law is that jurisdiction of superior courts cannot be excluded in matters in which any part of cause of action accrues at a place outside tribal area and inside settled area- Held further: A citizen of Pakistan stands arrested within limits of Abbottabad District and is removed therefrom to tribal area-The major infringement of right has admittedly taken place within settled area and thus High Court has got jurisdiction to hear matter and adjudicate upon under Article 199 of Constitution. [P. 24] A & B (ii) Constitution of Pakistan, 1973- Art. 199 read with S. 86-A Cr.P.C.--Removal of Citizen of Pakistan in custody to Tribal areas-Conduct of Court-Held: Such incidences of exploitation and unlawful removal of citizens of Pakistan from settled areas have become so frequent these days that we are constrained to remark that such dereliction from duty and blatant disregard of a mandatory provision of law by a Magistrate should be taken serious note of and in appropriate cases agisterial/Judicial powers should be withdrawn from such Magistrates. [P. 25] E (iii) Criminal Procedure Code, 1898- S. 86-A--Removal in custody of citizen of Pakistan to Tribal areas from settled areas of Pakistan--Guidelines--Held: Removal in custody is to be ordered only and only if such Magistrate is satisfied that evidence produced before him raises a strong or probable presumption that person arrested committed offence mentioned in warrantIn case such Magistrate is net satisfied, he shall not direct removal in custody of detenu to tribal area-Held further: This provision of law is enacted only to ensure that a citizen of Pakistan is neither harassed nor insulted nor black-mailed through malafide use of a hierarchy that sits away from territorial jurisdiction of normal course of law and far beyond applicability of normal and civilized laws of land. [P. 24 & 25] C & D Khan Afsar Khan, Advocate, for Petitioner. Ejaz Afzal Khan and Aslam Khan, Advocates for SDM. Date of hearing: 23.7.1996. judgment Sardar Muhammad Raza, J.--One Sarkari Khan resident of Ghandaho, Muhammad Agency lodged a Criminal Case U/Ss. 419/420/ PPC r/w section 11 of the Frontier Crimes Regulation before Assistant Political Agent Muhammad Ghalanai against Eaji Muhammad Sharif of village Langra Abbottabad. The lattar issued a non-bailable warrant of arrest against Haji Muhammad Sharif which either through proper or improper channel reached Abbottabad and so he was arrested by CIA Staff Abbottabad on 4.4.1996. On the same day Inspector C.I.A. produced the detenu Haji Muhammad Sharif in custody before the Illaqa Magistrate. 2. Sub-Divisional Magistrate, Abbottabad acting as District Magistrate, through his order dated 4.4.1996 forwarded the detenu in custody to the authority issuing the non bailable warrant. Such removal in custody to the tribal area is challenged by Haji Muhammad Sharif before this Court under Article 199 of the Constitution. 3. It may be stated at the very outset that Sarkari Khan complainant (respondent No. 7) before A.P.A. Ghalanai had subsequently admitted that the petitioner Haji Muhammad Sharif was not known to him and he had no business dealings with him at all and that the complaint was instituted at the behest of some one else. The petitioner alleges that it was initiated at the instance of Haji Muhammad Anwar of Shinkiari District Mansehra (respondent No. 8) with whom he had criminal as well as civil litigation and thus the entire proceedings initiated at tribal territory were mala fide in order to harrass the petitioner. It is most probably in this back ground that the petitioner was released on bail by APA Ghalani. As the release on bail by the said authority is not a proper relief for the petitioner, we would enter into the merits of the writ petition. 4. The Supreme Court of Pakistan in "Chaudhari Manzoor Elahi vs Federation of Pakistan etc., "Province of Balochistan vs. Malik Ghulam Jailani", "Government of Pakistan through Secretary Tribal Areas Rawalpindi vs. Hafiz Umar Gul" (PLJ 1995 SC 75) and in "Muhammad Siddique and others vs. Government of Pakistan" (1981 SCMR 1022), with reference to the matters of like nature has categorically laid down that the jurisdiction of the Supreme Court and High Courts with regard to the tribal areas is excluded only in matters exclusively concerned with tribal areas. The settled principle of law is that the jurisdiction of superior courts cannot be excluded in matters in which any part of cause of action accrues at a place outside tribal area and inside the settled area. 5. In the instant case a citizen of Pakistan stands arrested within the limits of Abbottabad District and is removed therefrom to the tribal area. The major infringement of right has admittedly taken place within the settled area and thus this Court has got the jurisdiction to hear the matter and adjudicate upon under Article 199 of the Constitution. 6. Removal in custody of a citizen of Pakistan from the settled areas of Pakistan to the Tribal areas is elaborately provided by section 86-A of the Cr.P.C. It is mandatory for a police officer in such circumstances to produce the person arrested before a Magistrate within the local limits of whose jurisdiction the arrest is made. So far as this procedure is concerned, to this extent the petitioner was rightly produced before the Illaqa Magistrate by Inspector CIA Abbottabad. 7. It is further provided under section 86-A Cr.P.C. that such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and power, including the power to order the production of evidence, as if the person arrested is charged with an offence committed within the jurisdiction of such Magistrate. Removal in custody is to be ordered only and only if such Magistrate is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant. In case such Magistrate is not satisfied, he shall not direct the removal in custody of the detenu to the tribal area. 8. This provision of law is enacted only to ensure that a citizen of Pakistan is neither harassed nor insulted nor black-mailed through the malafide use of a hierarchy that sits away from the territorial jurisdiction of the normal course of law and far beyond the applicability of normal and civilized laws of the land. Keeping this in view, we are shocked to observe that the S.D.M. Abbottabad through the impugned order dated 4.4.1996 has given an impression that he was even not aware of the fact that section like 86-A Cr.P.C. at all exists in the Criminal Procedure Code. He, in turn has given an illiterate impression that he is simply a post office or an octroi post which matters only in transit. 9. After narration of the back ground, the operative part of the order of SDM Abbottabad is that as the warrant stands issued "so the local police is therefore, directed to produce the accused before the said court" He never applied his mind as to whether the warrant issued was genuine, as to whether anyprima facie case existed against the detenu. He never called for the record and ever did not bother to see the FIR. It was in blatant disregard of section 86-A Cr.P.C. where not merely illegal but inhuman treatment was meted out to a citizen of Pakistan. Such incidences of exploitation and unlawful removal of citizens of Pakistan from settled areas have become so frequent these days that we are constrained to remark that such dereliction from duty and blatant disregard of a mandatory provision of law by a Magistrate should be taken serious note of and in appropriate cases the magisterial/judicial powers should be withdrawn from such Magistrates. 10. These were the circumstances and reasons for which we had accepted the writ petition of Haji Muhammad Sharif on 23.7.1996 and had set aside the order of removal of the petitioner to the tribal areas with direction that he needed not to surrender to the bail bonds already submitted before the political authorities at Mohmand Agency Ghalanai. (S.R.) Petition accepted.
PLJ 1997 Peshawar 26 PLJ 1997 Peshawar 26 [Circuit Bench Abbottabad] Present: mian muhammad ajmal., J. MUHAMMAD IQBAL-Petitioner versus SAID AKBAR-Respondent C.R. No. 13 of 1992, decided on 16.10.1995. (i) Qamm-e-Shahadat Order, 1984-- -Art. 79 read with S. 17,49 Registration Act-Land mortgaged to petitioner who by taking advantage of his absence from country attempted to grab property through designed, fake and fabricated documents of similar character, which did not fulfil legal requirements, hence, same could not confer any title on so-called transferees-Unregistered dubious documents, whose execution has been denied by executor, they had to be proved in terms of Article 79 of Qanun-e-Shahadat (corresponding section 68 of repealed Evidence Act), even if they were 30 years old as presumption is only available to genuine documents which too is rebuttable-Under sections 17 and 49 of Registration Act as amended by Registration (Amendment) Ordinance, 1962, said documents could not create any title in favour of petitioners, as they required compulsory registration and petitioner on basis of such papers could not claim any legal title as owner of land. [P. 29 & 30] A (ii) Civil Procedure Code, 1908 (Act V of 1908)-- S. 35-A, False and vexatious suits-Compensatory costImposition of« Held: All suits seemed to be false and vexatious and were so designed to grab respondent property on basis of "waste rotten papers" whereby they caused respondent to undergo long agony, as such he is entitled to grant of compensatory costs of Rs. 25,000/- under S. 35-A CPC enforced through NWFP (Enforcement of Certain Provisions of Law) Act, 1989 (Act II of 1989). [P. 30] B See: 1990 CLC 33 Mr. Muhammad Hussain Lughmani, Advocate for Petitioner. , Mr. Muhammad Younis Khan Tanoli, Advocate for Respondent. Dates of hearing: 15 & 16.10.1995. judgment By this single judgment I propose to dispose of Civil Revisions No. 11, 12, 13 and 14 of 1992 as the same have similar facts and are against the same respondents. 2. In Civil Revision No, 11/92, Muhammad Imran petitioner herein, brought a suit for declaration that he is owner in possession of the suit land bearing Khata No. 105/211 khasra No. 195 measuring 11 kanals 18 marlas on the basis of purchase from Said Akbar respondent and that entries in the revenue record regarding mortgage are incorrect and ineffective against his rights. In the alternative he prayed that he is in possession of the aforesaid land as mortgagee for more than 60 years therefore the rights of the defendants has extinguished. It was asserted in the plaint that the property was mortgaged vide Mutation No. 1056 attested on 30.7.1944 for Rs. 600/- and thereafter he verbally sold the land to the plaintiffs by receiving additional amount of Rs. 400/- and executed a memorandum dated 2.12.1945 acknowledging the sale. In 1945 the defendant left for Bombay, therefore mutation of ownership could not be attested. After his return he filed a suit for redemption of the land. Since 60 years has elapsed, hence the right of defendant has extinguished and he has become entitled to the suit land. The suit was contested by the respondents both on legal and factual premises and in view of the pleadings of the parties 10 issues were framed. Thereafter the parties led their respective evidence on the assessment whereof the learned Civil Judge-II Mansehra vide judgment and decree dated 17.3.1990 dismissed the suit where-against the appeal filed by the petitioner also met the same fate vide judgment and decree of the Additional District Judge, Mansehra dated 26.11.1991. 3. In Civil Revision No. 12 of 1992, Abdur Rehman and Muhammad Man, predecessors-in-interest of the present petitioners brought a suit against defendants for declaration that they are owners in possession of the suit land bearing Khasra No. 473 measuring 11 kanals 19 marlas and that entries in the revenue record regarding ownership of defendant-respondent No. 1 and that of mortgage in the name of defendant-respondent No. 2 are wrong, illegal and ineffective against his rights. In the alternative they also prayed for the permanent injunction. Suit was contested by defedt: respondent No. 1 while defdt-respondent No. 2 conceded the suit. In view of the pleadings of the parties 8 issues were framed. Thereafter the parties led their evidence on the assessment whereof the learned Civil Judge-II, Mansehra vide his judgment and decree dated 17.3.1990 dismissed the suit whereagainst the appeal was filed by the petitioner which was also dismissed vide judgment and decree of the Additional District Judge, Mansehra dated 26.11.1991. 4. In Civil Revision No. 13 of 1992 Muhammad Iqbal, petitioner herein, brought a suit against defendants for specific performance of sale agreement dated 24.6.1947 stating therein that defendant-respondent No. 1 being owner of the suit land entered into sale agreement with the petitioner in lieu of Rs. 4,500/- and received the sale consideration. Thereafter the defendant-respondent No. 1 left for India and came back to Pakistan about 6 months ago when he lodged a suit against defendant-respondents No. 2 to 4 for redemption of mortgage. Defendants No. 1 and 5 contested the suit while defendants No. 2 to 4 admitted the claim of the plaintiff. In view of the pleadings of the parties 9 issues were framed. Thereafter the parties led their respective evidence on the assessment whereof the learned Civil Judge-H, Mansehra vide his judgment and decree dated 17.3.1990 dismissed the suit whereagainst the appeal filed by the petitioner also met the same fate vide judgment and decree of the learned Additional District Judge, Mansehra dated 26.11.1991. 5. In Civil Revision No. 14 of 1992, Mst. Duri and others petitioners herein, brought a suit for specific performance of sale agreement dated 21.6.1946 in respect of land bearing khata No. 101/204, khasra No. 478 measuring 11 kanals 4 marlas situate in village estate of Kothar Tehsil and Distt: Mansehra. In the alternative permanent injunction was also sought. According to the plaint, defendant-respondent being owner of the suit land entered into a sale agreement dated 21.6.1946 with predecessor in interest of the plaintiff in lieu of Rs. 900/- who received the sale consideration and transferred the possession of the land; that thereafter he left for India and on his return he brought a suit or ejectment and produce against the plaintiff. Defendant-respondent contested the suit denying the alleged sale agreement and its genuineness. He stated that the plaintiffs are in possession of the suit land as mortgagees and a suit for redemption/restitution has been filed against them. Pleadings of the parties gave rise to as many as 9 issues. Thereafter the parties led their respective evidence and on the assessment whereof the learned Civil Judge-II Mansehra vide his judgment and decree dated 17.3.1990 dismissed the suit whereagainst the appeal filed by the petitioner herein also met the same fate vide judgment and decree of the learned Additional District Judge, Mansehra dated 26.11.1991. Hence the present civil revision. 6. I have heard learned counsel for the parties and have gone through the record of the case. It is pertinent to note that in all the suits plaintiffs have based their claims on almost similar types of documents which were neither stamped, registered nor admissible in law and they failed to provethe execution thereof. 7. In Civil Suit No. 33/1 of 1985, out of which Civil Revision No. 11 of 1992 has arisen, Ghulam Rabbani (PW 3) in cross-examination stated that formerly he was appointed attorney by the plaintiff but the same was revoked later on and then Muhammad Iqbal was appointed as attorney, who appeared as such as PW. 4 and R.W. 1 but his power of attorney Ex. PW4/1 is not available on the original file, as such his testimony cannot be attached any credence. Learned counsel for the petitioner conceded this fact and in view thereof did not press this revision petition, which even otherwise, is devoid of any merit as the petitioner's claim has not been proved through any evidence. According to the revenue record the respondent has been recorded as mortgagor while petitioner father has been recorded as mortgagee which was been admitted by PW. 4/RW. 1 but till the execution of the alleged deed Ex. RW1/1, which has not at all been proved besides being unstamped and unregistered which appears to be dubious, forged and manipulated one. 8. In Suit No. 13/1 of 1985, out of which Civil Revision No. 12 of 1992 has arisen, Muhammad Man (PW 5) appeared in support of the suit but he could not substantiate his claim. The so called deed Ex. PW2/1 which is unstamped and unregistered and has no legal value, could not be proved to have been executed by the defendant No. 1. Its bare look would show that the same is manufactured one and in order to give an impression of its being old, the same was water stained on some portions to spread the ink. The thumb impressions on the other side of the document suggest that thumb impressions on both sides of the plain paper were affixed prior to scribing the contents which rendered the document forged and fabricated. 9. In Suit No. 257/1 of 1985, out of which Civil Revision No. 13 of 1992 has arisen, Muhammad Iqbal who master minded the whole stratagem, appeared as PW 2, who could not prove the chit Ex. PW2/1 by any evidence. Such a chit, which is unstamped and unregistered, whereby land was purchased and thus infact is a sale document, cannot confer any title on the so-called transferee. It may be noted that if mortgage transaction in favour of the father and uncle of Muhammad Iqbal could be registered two months prior to the so-called chit why the sale in his favour could not be properly executed and registered. 10. In Suit No. 256/1 of 1985, out of which Civil Revision No. 14 of 1992 has arisen, the statement of Zarin Shah (PW2) attorney of the plaintiff No. 2 and 3 is very interesting. He in the cross-examination conceded that whatever he stated, it was tutored to him by Nobat Shah, late husband of plaintiff No. 1 and father of plaintiffs No. 2 & 3. Most of the questions he could not answer as he could not recollect whether answer to such a question had been provided to him by Nobat Shah or not. In this case too, water was used to make the rotten paper Ex. PW2/2 to look more old. The date 21.6.46 also seems to have been inserted therein later on as the ink used in writing of the body and the ink used in writing the date does not seem to be the same. This document like the others is also forged, fictitious and manipulated. 11. In all the cases the land had been mortgaged by the respondent to the respective petitioners or their predecessors-in-interest but they by taking advantage of his absence from the country attempted to grab his properly through the designed, fake and fabricated documents of similar character, which did not fulfil the legal requirements, hence the same could not confer any title on the so-called transferees. The unregistered dubious documents, whose execution has been denied by the executor, they had to be proved in terms of Article 79 of Qanun-e-Shahadat (corresponding section 68 of the repealed Evidence Act), even if they were 30 years old as the presumption is only available to genuine documents which too is rebuttable. Under sections 17 and 49 of the Registration Act as amended by Registration Amendment) Ordinance 1962, the said documents could not create any title in favour of the petitioners, as they required compulsory registration and the petitioners on the basis of such papers could not claim any legal title as owners of the land. 12. It is pertinent to note that all the suits were filed by the plaintiffs/petitioners or their predecessor-in-interest after the institution of the suits/applications for the redemption of the land by the respondent as a counter blast. The claim of the petitioners that respondent's rights in the property have extinguished due to the expiry of 60 years is without foundation as in none of the case 60 years had passed when the redemption was sought. The suits for specific performance were time barred and deserved dismissal on this score as well. The plaintiffs lawfully failed to substantiate their claim through any cogent evidence. The concurrent findings arrived at by both the Courts are well founded and well reasoned and do not suffer from mis-reading or nonreading of the evidence on the record, hence no exception can be taken. Consequently all the four revision petitions are dismissed with costs throughout. 13. From the facts and circumstances, all the suits seemed to be false and vexatious and were so designed to grab the respondent's property on the basis of "waste rotten papers" whereby they caused the respondent to undergo long agony, as such he is entitled to the grant of compensatory costs of Rs. 25.000/- under section 35-A C.P.C. enforced through N.W.F.P. (Enforcement of Certain Provisions of Law) Act, 1989 (Act II of 1989). The respondent shall be paid the said compensatory costs by the plaintiffs of all the four revision petitions, collectively. (S.R.) Revision dismissed.
PLJ 1997 Peshawar 30 (DB) PLJ 1997 Peshawar 30 (DB) [Circuit Bench Abbottabad] Present: mian muhammad ajmal and sardar muhammad raza, JJ. GOVERNMENT OF NWFP through COLLECTOR, MANSEHRA and others-Appellants versus Mst. JAMSHED BIBI and others-Respondents R.F.A. No. 27 of 1995 dismissed on 6.8.1996. (i) Land Acquisition Act, 1894 (I of 1894)-- -S. 23-Close examination of S. 23 of Land Acquisition Act, and very scheme of Land Acquisition would indicate that amount to be paid to owner is not price but compensation-Word compensation certainly has a different connotation as compared to word priceFormer is always higher than latter because numerous factors are brought into consideration while forcing a man to part with his property than making payment to a willing seller. [P. 32] A (ii) Land Acquisition Act, 1894 (I of 1894)- S. 18-Acquisition of land by Govt.-Compensation-Enhancement of- Mode of taking up matter by civil court-Held: Objections are entertained by Collector U/S. 18 of Land Acquisition Act and same are forwarded as reference to civil courtIt is never a civil suit where parties are subjected to impact of technicalities of civil law and even harmed at timesIt is a matter of reference and civil court despite being a court has to act like an arbitrator and is supposed to fix perfectly fair compensation, almost ignoring slight laxities of parties. [P. 32] B (Hi) Land Acquisition Act, 1894 (I of 1894)-- Ss. 23 & 24-Compensation-Determination of--Quantum of fair compensation-Criterion-Whether quantum of fair compensation is price that a buyer would pay to a seller if they voluntarily entered into a transaction-Question of-Held: Theory of willing seller and willing purchaser strictly relates to theory of supply and demand, inter action whereof determines price-Owner in view of Acquisition, is compensated and not merely paid market price-Theory of willing seller and a willing purchaser determines price and not compensation. [P. 33] C (iv) Land Acquisition Act, 1894 (I of 1894)-- S. 18-Compensation-Fixation of market value-Land is situated on Highway leading to Kashmir and Kaghan-It is within limits of Municipal Committee, Mansehra-Its potentiality was such that a modern hotel is being constructed to north of land-Residential houses of people are located close to suit land-Important offices of C&W Deptt. and official bungalows are just across road-Famous rest house holding a panoramic view and Sessions house are also across road-Offices of WAPDA and WAPDA residential bungalows are to south and close by is a colony known as Kashmir colony-High Court is surprised to observe that such an excellent location of property is altogether ignored and brushed aside by learned courts of reference. [P. 34] D Mr. Tahir Hussain Lughmani, A.A.G. and Malik Manzoor Hussain, Advocate for Appellant. Muhammad Azam Khan Swati and Saleh MahmoodAwan, Advocate for Respondent. Date of hearing: 6.8.1996 judgment Sardar Muhammad Raza, J.-The Provincial Government, through Award # .65 announced on 13.10.1986, acquired land measuring 73 kanals 14 marlas comprising khasras No. 3937/2090 and 5936/2090 to 5936/2090 in Mauza Mansehra for the construction of various public offices as well as circuit house. In the revenue record the property was classified as "Dhaka Darakhtan". The Collector fixed a sum of Rs. 21,253/60 as the amount of compensation per kanal. 2. All the owners filed three different objection petitions U/S. 18 of the Land Acquisition Act which were referred to the Court. The objection petition of Mst. Safia Bibi happened to be heard by Mr. Muhammad .Tamil Khan, Additional District Judge, Mansehra who by his order dated 22.3.1994 dismissed the objection petition and declined enhancement while, the objection petition of Mst. Jamshaid Bibi etc. and Jalal Khan etc. happened to be heard by Mr. Muhammad Arshad Khan, learned Additional District Judge, Mansehra, who vide his judgment dated 9.10.1995 enhanced the compensation to the tune of Rs. 31,243/-60 per kanal. 3. Government has filed the instant appeal (RFA No. 27) challenging such enhancement while Jalal Khan etc. and Mst Safia Begum etc. have also filed appeals (RFA # 28 & RFA # 36) seeking enhancement of compensation. Mst. Jamshaid Bibi etc. the objectors were impleaded by this Court as party to RFA # 36 of 1994. All the appeals shall be decided through this single order. 4. Before entering into the factual aspect of the present case, we may say at the very outset that a close examination of section 23 of the Land Acquisition Act, 1894 and the very scheme of the Land Acquisition would indicate that the amount to be paid to the owner is not the price but the compensation. Word compensation certainly has a different connotation as compared to the word price. The former is always higher than the latter because numerous factors are brought into consideration while forcing a man to part with his property than making payment to willing seller. Our discussion hereinafter would indicate that the courts below have not properly attended to this aspect of the case. 5. The second important feature of acquisition is that the objections are entertained by the Collector U/S. 18 of the Land Acquisition Act and the same are forwarded as reference to the Civil Court. It is never a civil suit where the parties are subjected to the impact of technicalities of civil law and even harmed at times. It is a matter of reference and the civil court despite being a court has to act like an arbitrator and is supposed to fix perfectly fair compensation, almost ignoring the slight laxities of the parties. We feel that the two Courts below especially Mr, Muhammad Jamil Khan has failed to appreciate the matter in such back ground. 6. The law on the subject is so liberal that in Ch. Kehar Singh vs. Union of India (AIR 1963 Punjab 497), a co-sharer having not applied for enhancement of compensation was held entitled to share of enhancement granted to the other co-owner applying U/S 18 of the Act. 7. Coming to the matter of enhancement, as such, the learned counsel for the appellants relied upon "Din Muhammad vs. General Manager Communications" (PLD 1978 Lahore 1135) where the value of property sold in the adjacent street was considered to be a good market value of the property in dispute. The learned single Judge of Lahore High Court has laid down a criterion that quantum of fair compensation is the price that a buyer would pay to a seller if they voluntarily entered into a transaction. We find ourselves in respectful disagreement with this latter part of finding because the theory of willing seller and a willing purchaser strictly relates to the theory of supply and demand, the inter action whereof determines the price. We have already held that the compensation is not only different from price but is always higher therefrom. The owner, in view of acquisition, is compensated and not merely paid the market price. We are of the view that the theory of willing seller and a willing purchaser determines the price and not the compensation. 8. In "Province of Punjab vs. Maulvi Muhammad Faizan" (PLD 1980 Lahore 632) the property was located in the vicinity of built area of the city. The buildings already stood constructed near and around whole of land under acquisition. Part of the property fell within the limits of Municipal Committee but because of the aforesaid qualities, the portion not falling within the limits of Municipal Corporation was also allowed the same compensation. 9. The building site potentiality and various sales having taken place in the vicinity for building purposes was considered another favourable aspect for the affectees by the Supreme Court in "Land Acquisition Collector vs. Abdul Qayum Malik" (1980 SCMR 63). 10. In the instant case the revenue record reveals the classification of land as "Dhaka Darakhtan" but mere classification in revenue record is never considered conclusive. Regardless of the classification, the value of a land is determined practically by the use which the land is capable of being put to. Similar was the case Sadiq Niaz Rizui vs. Collector Laxbtda" (PL! > 1993 SC 80) where such matters were given close consideration regardless <rt classification. In that case the property was located near the High way 11. At times, the acquiring agencies i.e. Collector etc. issue a notification U/S. 4 and thereafter the award is announced with considerable lapse of time during which there occurs some upward trend in prices. This situation was also considered by the Supreme Court in "Collector Abbottdbad Land Acquisition vs. Haji All Asghar Khan" (1985 SCMR 767). In that case there was a lapse of about two years but in Mansehra city the upward trend in prices is not in terms of years but is in terms of months. We would be attending to this aspect later on. 12. Our own High Court in "Land Acquisition Collector vs. Rokhan" (PLD 1995 Peshawar 78) had very amicably gone to the extent of observing that even one year's average in certain cases is not a proper yardstick to determine the real value of the land. Even Barani & Banjar lands could be equal in value to irrigated lands provided the location of the former class is attractive and ideal. In such circumstances the appointment of local commissioner to determine potentialities of land was considered advisable. 13. We have brought down our discussion to the appointment of the local commissioner because it is relevant in the present case as well and because in a latest judgment of our own High Court in "Sultan Eraj Zaman us. Land Acquisition Collector, Khanpur" (1996 CLC 287), this Court has held that a report of local commissioner cannot be brushed aside. 14. We are to observe with concern that in the instant case a local commissioner was appointed who had gone to the location and had given his detailed report on 21.5.1995. His report was accepted by both the parties and no objection at all had been raised on either side. The Courts had brushed aside the report of the local commissioner according to which the price per kanal at the time of the award was fixed as Rs. 1,30,OOG/- per kanal. It was also pointed out by the local commissioner that at the time of his report the value of the land in dispute was upto Rs. 6 Lacs per kanal, and it was bound to be further enhanced in due course. 15. With this back ground in view, we would revert to the land acquired. It is a land situated on the Highway leading to Kashmir & Kaghan. It is within the limits of Municipal Committee, Mansehra. Its potentiality was such that a modern hotel is being constructed to the north of the land. Residential houses of the people are located close to the suit land. Important offices of C&W Department and official bungalows are just across the road. Famous rest house holding a panoramic view and the sessions house are also across the road: The offices of WAPDA and WAPDA residential colony is to the west of the acquired land. Residential bungalows are to the south and close by his a colony known as Kashmir colony. We are surprised to observe that such an excellent location of the property is altogether ignored and burshed aside by the learned courts of reference. 16. In the circumstances we are constrained to set aside the impugned judgments and fix the market value of the suit land at Rs. 1,00,000/- (One Lac) per kanal which was demanded so by the objectors alongwith 15% compulsory acquisition charges and 6% simple interest from the date of taking over possession till the time of payment. It may be recalled that the local commissioner had fixed the amount at a rate higher than that demanded by the objectors themselves. 17. The appeal of Government etc. (No. 27/95) is hereby dismissed while appeals No. 28/94 & 36/94 are accepted. (S.R.) Appeal dismissed.
PLJ 1997 Peshawar 35 PLJ 1997 Peshawar 35 Present: qazi MUHAMMAD FAROOQ, J. MUHAMMAD NAWAZ and 2 others-Petitioners versus PROVINCIAL GOVERNMENT N.W.F.P. through COLLECTOR KARAK and 4 others-Respondents C.R. No. 420/91 accepted on 18.9.1996. West Pakistan Land Revenue Act, 1967-- -Ss. 53 and 172(2)-Correction of entry in record of rights, periodical record or register of mutations-Extent of-No doubt under clause (iv) of subsection (2) of section 172 of West Pakistan Land Revenue Act a Revenue Officer is empowered to order correction of an entiy in a record of rights, periodical record or register of mutations, but this power is restricted to correction of an entry which is patently wrong and cannot be exercised in regard to an entry which involves a question of right determinable by civil court within import of section 58 ibid or an entry which is long standing. [P. 38] A Mr. H.M. Zahir Shah and M. AsifKhan, Advocates for Petitioner. Mr. R.B. Khattak, Advocate for Respondents. Date of hearing: 7.7.1996. judgment This revision petition has been filed by the plaintiffs. It calls in question the dismissal of their appeal by the learned District Judge, Karak. vide judgment and decree dated 15.9.1991, which was directed against tiie judgment and decree dated 20.2.1991 of the learned Senior Civil Judge, Karak whereby their suit was dismissed. 2. The suit was declaratory in nature. It was filed on 16.3.1989 with the allegations that originally land measuring 516 Kanals 9 Marias including the suit land, situated in village Mianki, was jointly owned by the plaintiffs and the predecessor-in-interest of respondents No. 2 and 5. In due course it was privately partitioned and two mutations hearing No. 3579 and 11932 were attested in respect thereof in 1910 and 1918 respectively. The striking feature of the private partition was that in accordance with the prevailing custom of giving a larger share to the elders of the family the plaintiffs were given an area measuring 59 Kanals 11 Marias in excess of their due share. The share which had fallen to the lot of defendant No. 2 in private partition was transferred by him in favour of defendant No. 3 and 5 through gift mutation No. 272 dated 28.2.1979. However, an application was subsequently moved by defendant No. 4 for correction of the revenue record which was accepted by the Collector and resultantly correction mutation No. 1005 was attested on 14.2.1988 whereby not only the share of the plaintiffs was reduced to the extent of 59 Kanals 11 Marias but gift mutation No. 272 dated 28.2.1979 was also cancelled and substituted by mutation No. 995. The Collector was 4ot competent to set the private partition at naught and apart from that he had condemned the plaintiffs unheard and as such his order as well as the ensuring mutations were liable to be set aside. The suit was resisted by respondents No. 2 to 3 on the grounds, inter alia, that all the cosharers were entitled to get their legal share and the custom set up by the plaintiffs was a figment of their imagination. 3. The pleadings of the parties gave rise to the following issues:- 1. Whether the plaintiffs have got a cause of action? 2. Whether suit is within time? 3. Whether this court has got jurisdiction? 4. Whether the suit is incompetent in its present form? 5. Whether the plaintiffs are estopped to sue? 6. Whether suit is bad for non-joinder of necessary parties? 7. Whether the suit land was partitioned among the plaintiffs and predecessor of defendants No. 2 to 5 vide mutations No. 11932 attested in 1918 and 3579 dated 10.2.1910 which were incorporated in Fard Jamabandi 1974-75? 8. Whether correction mutation No, 1005 dated 14.2.1988 attested on the basis of fictitious file No. 103 decided on 30.8.1987 and gift mutation No. 995 dated 14.2.1988 are illegal, fraudulent, void and ineffective upon the rights of the plaintiffs? 9. Whether the plaintiffs heing elder were given 59 Kanals 11 Marias land extra than their shares? 10. Whether the plaintiffs are entitled to the decree as prayed for? 11. Relief. 4. The stand point of the plaintiffs had not prevailed at the lower forums mainly for the reason that they had failed to establish the custom on the strength whereof they had not a larger share. 5. The learned counsel for the petitioners sought reversal of the impugned judgments and decrees on the following grounds:- (i) The revenue authorities had no jurisdiction to change the long standing entries in the revenue record. (ii) The revenue authorities had deprived the petitioners of a huge area measuring 59 Kanals 11 Marias without giving them a notice or holding an enquiry. (iii) The factum of private partition stood established in view of mutations No. 3579 and 11932 attested in 1910 and 1918, delivery of possession of the partitioned property to the parties, gift mutation No. 272 and the failure of the respondents to challenge the partition mutations for about 70 years. 6. The learned counsel for the respondents on the other hand argued that under the provisions of Section 17(2)(vi) of the West Pakistan Land Revenue Act the revenue authorities had exclusive jurisdiction to deal with the matters pertaining to correction of entires in the reVenue record and the action taken by them in the present case was justified as the entries in the revenue record were obviously wrong and in any case the petitioners had failed to prove the private partition and the alleged custom of give extra land to the elders of the family in the event of partition. 7. The genesis of the dispute between the parties is traceable to partition mutations No. 3509 and 11932 which were attested in 1910 and 1918 and duly incorporated in the Revenue Record. The entries thus made subsisted for more than 70 years. Sometime in the year 1987 the defendant Mir Nawaz felt aggrieved by those entries but instead of filing a civil suit got the same obliterated by filing an application before an obliging Revenue Officer. No doubt under clause (iv) of Subsection (2) of Section 172 of the West Pakistan Land Revenue Act a Revenue Officer is empowered to order I correction of an entiy in a record of rights, periodical record or register of mutations but this power is restricted to the correction of an entry which is I patently wrong and cannot be exercised in regard to an entiy which involves I a question of right determinate by the civil court within the import of Section 53 ibid or an entry which is long standing. In the present case long standing entries in the revenue record involving determination of the question of private partition, with special reference to the existence of the local custom of allotting a larger share to the elders of the family, were altered by the Revenue Officer with utmost facility without holding a proper enquiry and affording an opportunity to the plaintiffs of being heard. The impugned orders of the revenue authorities with regard to the correction of the entries in the revenue record thus suffer from a serious jurisdiction defect and as such are not sustainable. The matter, however, does not end here because the findings of the learned lower courts on the issue of private partition are also not maintainable. 8. The plaintiffs were non-suited by the learned lower courts for the sole reason that they had failed to adduce evidence to prove the alleged custom on the basis of which their predecessors-in-office being the elders of the family were given an area measuring 59 Kanals 11 Marias in excess of their due share. The reason is rather lopsided as it undermines other forms of proof of a fact. The factum of private partition was admitted in most unequivocal terms by the defendant Bahadur Khan in his statement recorded at the trial on 15.2.1990. Besides, the possession of the subject matter of the partition mutations was delivered to the allottees, both the mutations were incorporated in the revenue record, the entires in the revenue record were never challenged by the predecessor-in-interest of the defendants and the defendant Mir Nawaz, at whose behest the forums in the revenue hierarchy had put an end to the private partition in the year 1987, had transferred the land given to his predecessor-in-interest Ghulam Haider in private partition in favour of his sons Bahadur Khan etc. through gift mutation No. 272 dated 28.2.1979 which clearly shows that he was fully aware of the entries in the revenue record. All these factors go a long way to establish the claim of the plaintiffs, therefore, there is no need to look for oral evidence which by now has become non-existent, or an instrument of partition, which is seldom prepared in the rural set up of far flung areas where mutation is a preferred option. For aforementioned reasons, this revision petition is accepted, the impugned judgments and decrees are set aside and the suit of the plaintiffsns decreed with costs throughout. (K.K.F.) Revision Petition accepted.
PLJ 1997 Peshawar 39 (DB) PLJ 1997 Peshawar 39 (DB) Present; jawaid jawaz khan gandapur and mian muhammad ajmal, J J. NASIR JAMIL-Petitioner versus DEPUTY SUPERINTENDENT CUSTOMS and 2 others-Respondents Writ Petition No. 895 of 1995, decided on 4-3-1996. (i) Constitution of Pakistan, 1973-- A. Hi'- Article 199 provides an extra-ordinary remedy to aggrieved person of invoking constitutional jurisdiction of High Court with underlying purpose to keep administrative and judicial authorities within bonds of their jurisdictionWhen law provides a remedy to another authority fully competent to give relief, any indulgence to contrary by High Court is likely to produce a sense of distrust in those authorities and to cast undeserved reflection on their integrity and competency and would defeat, legislative intent. [P. 42] B (il'i Constitution of Pakistan, 1973- Art. 199--lf a person voluntarily fails to avail himself all remedies available to him under Civil Law, he has no locus standi to maintain writ petition in High Court. [P. 42] C (iii) Customs Act 1969, (Act IV of 1969)-- -Ss. 168, 179, 171, 193 & 196-Seizure of car under section 168 of Customs Act, 1969-Challenge to-Matter has not been adjudicated upon by Customs Authorities under section 179-Can petitioner knock at the door of High Court under Article 199 of the Constitution of Pakistan- Petitioner cannot knock at the door of High Court and challenge validity of order of seizure in writ petition because when adjudication order is passed by Customs Authorities U/s. 171 of Customs Act, 1969, he has two more remedies available--Firs^v, he can file an appeal before Central Board of Revenue (CBR) under section 193 of Customs Act for redress of his grievance and secondly if he does not get his grievance redressed there then in case he had remedy to approach Federal Government by way of revision U/S. 196 of Customs Act, 1969. [P. 41] A Abdul Latif Afridi, Advocate for Petitioner. KG. Saber alongwith Muhammad Jamil, Law Officer for Respondents Nos. 1 to 3. order Jawaid Nawaz Khan Gandapur, J.-Briefly stated, the facts of the case in hand are that on 30-7-1995 Nasir Jamal petitioner, resident of Khojaki Killa, Tehsil and District Karak was on his way to Peshawar in his Motor Car Toyota Corolla Model 1989 Registration No. NDA-1211. He was stopped by the Deputy Superintendent, Customs, Mobile Squad, Bannu (respondent No. 1) at Soor Dag, Karak. The papers of the car were checked by him and the car was impounded/seized vide recovery memo, dated 30-7-1995. The petitioner was also served with a notice as required under section 171 of the Customs Act, 1969. 2. Later the Deputy Collector Customs (I) (respondent No. 2) addressed a letter to the Motor Registration Authority, D.I. Khan for the verification of the papers in respect of car in question vide his Letter No. V- CUIS(A)(8)DC-I/Misc/95/164, dated 9-8-1995. The Motor Registration Authority issued the requisite verification vide its Letter No. 2090/MV, dated 15-8-1995. However, in the said letter the Motor Registration Authority also mentioned : "The file of the Motor Car No. DNA-1211 is misplaced and in spite of all the best efforts, in this regard, the same could not be traced out. I have ordered an enquiry and have/appointed the Assistant Excise and Taxation Officer as enquiry officer to probe into the matter and submit a report in detail for necessary action..." 3. Since the Motor Registration Authority had issued the verification letter, mentioned above, therefore, the petitioner applied to respondent No. 2 for the release of the vehicle. Respondent No. 2 ordered the release of the vehicle subject to the condition that the petitioner would submit a Bank Guarantee amounting to Rs. 7,00,000 (Rupees seven hundred thousands). The petitioner could not manage to procure the Bank Guarantee, therefore, he submitted an application before respondent No. 2 for summary adjudication of the case vide his application dated 9-8-1995. It appears that the case has not been decided so far. 4. The petitioner has, thus, challenged the vires of the order of seizure by filing this writ petition. He has prayed that the Motor Registration Authority, D.I. Khan has properly verified the credentials of the case in question and therefore the seizure of the same and the subsequent refusal of the respondents to release/return the car to the petitioner is not in accordance with law and therefore without lawful authority. He has further prayed that the same be declared as without jurisdiction and of no legal effect and accordingly void ab initio because the petitioner had purchased the same from one Said Bad Shah son of Hukam Shah, resident of Khojaki Totakhel, Tehsil and District Karak presently residing at Topanwala Bazar, D.I. Khan) for a sum of Rs. 4,75,000 (Rupees four lacs and seventy-five thousand only) and that in this respect a proper transfer letter has also been duly executed by respondent No. 4 in favour of the petitioner. 5. On 12-9-1995 respondent No. 2 was directed by this Court to furnish comments within a fortnight. The needful was done. In his comments respondent No. 2 submitted that since the car was stopped, under reasonable suspicion, to find out as to whether or not it had been lawfully imported, therefore, the petitioner was directed to produce the requisite documents to show that he was in lawful possession of the same but the petitioner failed to produce any other documents except for the registration book. 6. Consequently the Motor Registration Authority, D.I. Khan was asked to furnish the documents on the basis of which the car in question was registered. The Motor Registration Authority, D.I. Khan informed the respondents that the entire record, in respect of the said car, was available in their office and had been misplaced. It was thus contended that all these events led to inevitable conclusion that the car in question was not imported lawfully and that the Government dues (levy of customs duty and sales tax),. in respect thereof, were evaded. It was further contended that in order to adjudicate the matter, Deputy Collector Customs (I) respondent No. 2 addressed memo..No. V-CUS(A)(8)DC-l/Misc/95/174, dated 24-8-1995 to the Director, Excise and Taxation, N.W.F.P., Peshawar for the verification of Registration No. DNA-1211 and as a result thereof, the said Director, Excise and Taxation addressed memo. No. 345/T/XXXV-B-56, dated 12-9-1995 to the Motor Registration Authority, D.I. Khan, directing him to trace out the file in question and send and the relevant papers directly to the respondents for doing the needful, that the papers have not been received so far from the concerned quarters, therefore, the matter could not be adjudication upon . It was further stated that the present writ petition is premature and is, therefore, liable to be dismissed in limine, 7. We have had the advantage of hearing the learned counsel for the petitioner Mr. Abdul Latif Afridi, Advocate and the learned State Counsel 'Mr. K.G. Saber, Advocate assisted by Mr. Muhammad Jamil, Law Officer, for respondents Nos. 1 to 3, at length. v 8. It may be stated at the veiy outset that the car in question was seized under section 168 of the Customs Act, 1969 (Act IV of 1969) and the matter has not been adjudicated upon by the Customs Authorities under section 179 till date. Therefore the petitioner cannot knock at the door of this Court and challenge the validity of the order of seizure in the writ petition because when the adjudication order is passed by the Customs Authorities under section 171 of the Customs Act. 1969 (Act IV of 1969), he has two more remedies available to him. Firstly, he can file an appeal before the Central Board of Revenue (CBR) under section 193 of the Customs Act for the redress of his grievance and secondly if he does not get his grievance redressed there then in the case he had die remedy to approach the Federal Government by way of revision under section 196 of the Customs Act. 9. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides an extraordinary remedy to the aggrieved person of invoking the Constitutional jurisdiction of the High Court with the underlying purpose to keep the administrative and judicial authoriues within the bonds of their jurisdiction. When the law provides a remedy to another authority fully competent to give relief, any indulgence to the contraiy by the High Court is likely to produce a sense of distrust in those authorities and to cast undeserved reflection on their integrity and competency and would defeat the legislative intent. (PLD 1958 Supreme Court 437), Tariq Transport Company v. Sargodha , Bhera Bus Serrii-n. Surged ha). 10. Similarly in case Ch. Abdul Qadir v. Lahore Commercial Bank Ltd. reported as 1980 Supreme Court Monthly Review 280 it was held :-- "If a person voluntarily fails to avail himself all the remedies available to him under the Civil Law, he has no locus standi to maintain writ petition in High Court." 1. There is yet another pronouncement of the Honourable Supreme Court of Pakistan on this point. In Wealth Tax Officer v. Shukat Afzal and others (1993 Supreme Court. Monthly Review page 1810) the Supreme Court did not approve the invoking of the Constitutional jurisdiction of High Court by abandoning or by passing the statutory remedy without reasonable cause. 12. Admittedly, this writ petition has been filed without resorting to the remedies provided by the Statute, i.e., the Customs Act, 1969 (Act IV of 1969) and therefore, we are of the view that, in the first instance, the petitioner should exhaust all the legal remedies available to him under the Customs Act and thereafter, if need be he may approach this Court. This writ petition being premature is accordingly dismissed in lirnine. 13. We would, however, like to direct the concerned Customs Authorities to dispose of the adjudication proceedings expeditiously/swiftly. Similarly, the Director, Excise and Taxation, N.W.F.P. Peshawar is directed to enquire into the matter, fix responsibility and take appropriate action, in accordance with law, against the defaulting officials within reasonable time. Copies of this judgment be sent to them immediately. CM. No. 1302/95. Since the writ petition has been dismissed in limine, therefore, this application has now become infructuous. The earlier order passed on 12-9-1995, vide which the car in question was ordered to he handed over to the petitioner, on his furnishing security bonds in the sum of Rs. 5,00,000, with two sureties, is hereby withdrawn/recalled. (A.P.) Petition dismissed.
PLJ 1997 Peshawar 43 PLJ 1997 Peshawar 43 Present: sardar muhammad raza, J. FOREST DEPARTMENT and others-Petitioner versus MUHAMMAD JAN KHAN-Responcient Civil Revision No. 209 of 1991, decided on 25.1.1996. Civil Procedure Code, 1908 (V of 1908)- -Ss. 79(b), 80(b) O.XXVII, R. 3 & S. 115-Plaintiff filing suit against Forest Department through Divisional Forest Officer and Irrigation Department through Executive Engineer for declaration to the effect that 95 Sheesham trees belonged to him and that defendant Department has no right or authority to bring those trees under their ownership through any demarcation or marking proceedings-Defendnats having been served failed to file written statement within three months after issuance of notice-Decree was granted against defendant Department under O.VIII, R. 10, C.P.C.-Negligent defendants having not taken any interest instead of filing appeal filed miscellaneous proceedings and when they failed then filed appeal but by that time appeal had become time-barred and same was dismissed-Delay was not condoned in filing of appeal-Conduct of defendants was so negligent and they had exhibited such irresponsibility qua property claimed by Government that they never informed their superiors-Plaintff/decree-holder had meanwhile cut the trees-Leaving aside merits of case, High Court suo motu in terms of S. 115, C.P.C. took notice of the fact that suit filed against Divisional Forest Officer and Executive Engineer was in clear violation of Ss. 79(b), 80(b) and O.XXVII, R. 3, C.P.C.-Judgments and decrees of Courts below are set aside and case is remanded to Trial Court with direction to invite amended plaint from plaintiff wherein Secretaries of concerned Departments would be impleaded as defendants. [Pp. 44 & 45] A & B M. Tahir Hassan Furshori, Advocate for Petitioners. Ziaur Rehman, Advocate for Respondent. Dates of hearing : 25th January, 1996. judgment Muhammad Jan Khan son of Faiz Muhammad of Bacha Killi Mauza Khanmai, Tehsil and District Charsadda brought a suit against Forest Department through Divisional Forest Officer, Mardan and Irrigation Department through Executive Engineer Irrgiation, Mardan; for a declaration to the effect that 95 Sheesham trees standing on the bank of his property belonged to him and that the defendant-Department had no right or authority to bring the trees under their ownership through any demarcation or making proceedings. 2. The defendants were granted time to file written statement and it was exactly three months after the issuance of first notice when they failed to file written statement and a decree was passed against the Department under Order 8, Rule 10, C.P.C., on 10-6-1989. 3. The negligent defendants having not taken any interest, instead of filing a regular appeal (the order being appealable), tiled an application before the same Court for setting aside the decree. Faced with his legal embargo the application was withdrawn on 8-10-1989 and an appeal was filed before the District Judge on 4-11-1989 alognwith an application for condonation of delay. The delay was never condoned considering the defendant-Department to the utterly inactive and grossly negligent and thus the appeal was dismissed by the District Judge on 24-3-1991. The Divisional Forest Officer has come up in revision. 4. The conduct of the defendants was so negligent and they had exhibited such irresponsibility qua the property claimed by the Government that they never informed the superiors. They never filed the written statement on time and so was the case with appeal which was rightly dismissed and where the delay was rightly declined to be condoned. 5. The said aspect of the case is, as I am told at the Bar that the plaintiff decree-holder has even cut the trees and the defendants have not bothered to obtain any stay order from the Court. This is a situation where negligence of a defendant-department is tried to be covered by a reference to Court decrees which other-wise are legally passed. This should be seriously taken note of by the authorities concerned. 6. Leaving aside the merits of the present revision, I tend to observe and hold suo motu under section 115, C.P.C the veiy suit brought by Muhammad Jan Khan against the Divisional Forest Officer and Executive Engineer concerned was had in law and was in clearly violation of section 79(b) and section 80(b) read with Order 27, Rule 3 of the C.P.C. It was a suit not against Divisional Forest Officer or the Executive Engineer nor was it the property thereof but it was a suit against the Government, the Secretaries whereof ought to have been sued on behalf of the Provincial Government. 7. Consequently, the impugned judgments and decrees are set aside and the case is remanded back to the trial Court with direction that amended plaint shall be invited from the plaintiff where Secretary Forest and Secretary Irrigation, to the Government of N.W.F.P. shall be implead as defendants. The trial Court immediately with the receipt of this order and record shall summon the plaintiff for the needful. As the plaintiff seems to have cut the trees, he might not feel interested, therefore, the copy of this judgment be sent to the aforesaid Secretaries concerned with direction to not only take notice of the suit but also to take action against the officers concerned. In case the plaintiff does not pursue the case, the trial Court shall call upon him to deposit the price of 95 trees out by him after obtaining a decree against improper parties. (A.P.) Case remanded.
PLJ Peshawar 45 (DB) PLJ Peshawar 45 (DB) Present: jawaid nawaz khan gandapur and mian muhammad ajmal, JJ. MUSHTAQ HUSSAIN-Peittioner versus COLLECTOR CUSTOMS and 3 others-Respondents Writ Petitions Nos. 1115 of 1995 and 33 of 1996, decided on 4.3.1996. Customs Act, 1969 (IV of 1969)-- --"S. 168 read with Art. 199 of Constitution of Pakistan 1973-Seizure of Car—Challenge to—Non-availing of alternate remedy—Effect of—Car was seized Customs Authorities from respondent and not from petitioner-Car had been seized under S. 168, Customs Act and matter had not yet been adjudicated upofl by Customs Authorities-After adjudication when order was passed by Customs Authorities, two more remedies would be available to aggrieved person i.e. to file appeal before Central Board of Revenue u/S. 193 of Customs Act, 1969 and thereafter, to file revision before Federal Government u/S. 196 of Customs Act, 1969-Petitioner, if so advised, could come to Court after exhausting all statutory remedies by challenging wires of impugned order—Petition dismissed. [P. 51]A Abdul LatifAfridi, Advocate for Petitioner. Saadat Hussain, Dy. A.G. Barrister K. G. Saber assisted by Muhammad Jamil, Law Officer for Respondents Nos. 1 to 3. Date of hearing : 4th March, 1996. judgment Jawaid Nawaz Khan Gandapur, J.-The brief facts, as alleged by the petitioner (Mushtaq Hussain), are that he is the bona fide purchaser of Toyota Corolla Car (Model 1989) bearing registration No. PRQ 4754, for valuable consideration as he had purchased the same on 8-9-1995 from Gul Mir (respondent No. 4), after taking all precautions. That in this respect, he had also approached the Motor Registration Authority, Peshawar who had verified that the car was duly registered. 2. It has been alleged in the writ petition that on 11-10-1995, when the car was being driven by Gul Mir (Respondent No. 4), it was stopped at Nowshera by respondent No. 3 (Deputy Superintendent, Customs Mobile Squad) who asked him to produce all the relevant documents to show that the car was legally imported. Since respondent No. 4 failed to do so, the car was seized by respondent No. 3. 3. Accordingly respondent No. 4, handed over the car to respondent No. 3. He also handed over the registration book of the car, alongwith a transfer letter dated 8-9-1995 (executed in favour of the petitioner by respondent No. 4). He further stated that the car, alongwith its registration book, is still in the custody/possession of respondent No. 3 whereas the photo copy of the transfer letter, which was returned, has been attached with this writ petition as Annexure A. 4. ^That, thereafter, the petitioner submitted an application to respondent No. 1 (Collector Customs and Central Excise, Customs House, Peshawar) for the return/release of the car. That the petitioner has not been informed so far about the fate of this application. However, he has been verbally told that this application has been turned down. 5. That no other efficacious/adequate remedy is available to him, therefore, he has set on foot this writ petition and has challenged the legality of the "seizure" by respondent No. 3 as the same is without lawful authority and hence illegal and as such of no legal effect. 6. The petitioner's grievance is that he, after due diligence, had purchased the car (duly registered) from the open market, therefore, he was a bona fide purchaser of the same and that a vested right had accrued to him in respect of the car in question. According to him the "seizure" of the car has violated the protection granted to him under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973. He therefore, prayed that the seizure/impounding of the car by respondents No. 1 to 3 be declared as illegal, without lawful authority and of no legal effect and that respondents Nos. 1 to 3 be accordingly directed to return the car to him forthwith. 7. Respondents Nos. 1 to 3 were directed to file parawise comments. The order was complied with and the requisite comments were filed on 20- 11-1995. 8. It was submitted that the car in question was not seized from the petitioner but from Gul Mir (respondent No. 4) on 11-10-1995 who was driving the car at relevant time. That respondent No. 4 was requested to produce the relevant documents showing the legal import of the car but he failed to do so. That only documents which respondent No. 4 produced before the seizing officer was an Auction Certificate (No. 493/CUS/86095 dated 24-1-1995) allegedly issued by the Headquarter, Assistant Collector, Customs House, Quetta. Since respondent No. 4 could not show that he was in lawful possession of the car, therefore, notice under section 171 of the Customs Act, 1969 was served on him. That in the first instance respondent No. 2 approached the Excise and Taxation Officer, Peshawar vide his Letter No. Nil dated 9-10-1995 and requested him to supply the photo copies of all the documents on the basis of which the vehicle was registered and was allotted Registration No. PRQ-4754. The E.T.O./Motor Registration Authority, Peshawar accordingly sent the photostat copy of "Form-E" (duly attested by him) wherein it was mentioned that the car was being "provisionally" registered on the basis of the Auction Certificate. Strangely the said Auction Certificate was not supplied to respondent No. 2. 9. Later, Letter No. V-CUS(DV)AS/54/95/5512, dated 18-10-1995, was addressed to the Assistant Collector (H.Q.) Customs House, Quetta, in this respect wherein it was mentioned :-- "This Custom House is investigating in case against Vehicle No. PRQ-4754. Photo copies of the Auction Certificate No. 493/CUS/86095, dated 14-1-1995 issued by he H.Q. Assistant Collector, Customs House, Quetta, on the basis of which the vehicle has been registered are enclosed. It is requested that the authenticity of the abovementioned Auction Certificate may kindly be confirmed to the undersigned at the earliest possible." 10. The Assistant Collector, Customs (Car Section), Quetta vide his Letter No. 8-Mis. /Veh./App/Car/PT./95/2103, dated 20-10-1995 replied as under :-- "Please referred to Peshawar Collectorate's Letters C. No. V-CUS (DV)AS/54/95/5512 dated 18-10-1995 and C. No. V.CUS/(DV)/AS/49/95/5527 dated 19-10-1995 on the subject cited above. It is to inform you that the vehicles Toyota Corolla (Saloon) Car bearing Engine No. 101335801, Chassis No. CE90- 5031046, Model 1989 and Vehicle Motor Car Toyota Corolla bearing Engineer No. 5A-3268090 Chassis No. AE91- 80003259 and Model 1989 have not been auctioned by this Collectorate and copies of the documents supplied by the owner are apparently fake and forged." 11. The respondents specifically alleged that the present writ petition is the result of collusion between the petitioner and Gul Mir (respondent No. 4) because the petitioner has no locus standi to knock at the doors of this Court as the car was not "seized" from his possession and that it was seized from Gul Mir (respondent No. 4) when he was driving the same. It was further alleged that, in the circumstances, the petitioner was not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and that, therefore, he had not come to the Court with clean hands. Accordingly he was not entitled to any relief to be given by the High Court in its extraordinary Constitutional jurisdiction. According to them, the writ petition was without any substance and was liable.to be dismissed. It was further contended that if the writ is accepted, in the circumstances of this case, it would amount to legalize the forgery committed by the petitioner/respondent No. 4, who had produced forged documents ^before the Motor Registration Authority, Peshawar, in respect of auction proceedings, allegedly conducted at Quetta and got the car registered. 12. Rejoinder to the abovementioned comments was submitted wherein the allegations contained in the written comments were controverted and the assertions made in the writ petition were reiterated. It was alleged that the car was duly auction by the Collector of Customs at Quetta and that the "Auction papers" were factually produced before the Motor Registration Authority, Peshawar on the basis of which the car was duly registered. That it was for this reason that on the request of the respondents the Motor Registration Authority, Peshawar had verified the correctness of the registration of the car and had also informed that the relevant documents were available in the office. It was further alleged that the "bogus" and "fake papers" were being introduced by the respondents in order to grab the car. It was submitted that the petitioner wanted to transfer the car in his name but the registration book was in the possession of the respondents and, therefore, he could not do the needful well within time. It was further alleged that the application submitted by the petitioner for the return of the car was not being decided by the Collector of Customs, Excise and Taxation, Customs House, Peshawar (respondent No. 1) because of ulterior motives as someone, amongst the respondents, was interested to grab the car. It was alleged that the petitioner is also considering to take an appropriate legal action against Gul Mir, respondent No. 4. 13. We have had the advantage of hearing Mr. Abdul Latif Khan Afridi, Advocate, the learned counsel for the petitioner and Barrister K.G. Saber, Advocate assisted by Mr. Muhammad Jamil, Law Officer, the learned counsel for respondents Nos. 1 to 3 at length and have also gone through the record of the case with some degree of care. 14. It may be stated at the very outset that Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 provides an extraordinary remedy to the aggrieved person of invoking the Constitutional jurisdiction of the High Court when he has no other legal remedy available to him under the ordinary law of the land. In case Ch. Abdul Qadir v. Lahore Commercial Bank Ltd., reported as 1980 SCMR 280, it was held that if a persons voluntarily fails to avail himself all the remedies available to him under the civil law, he has no locus standi to maintain writ petition in the High Court. Similarly, in Wealth Tax Officer v. Shaukat Afzal and others 1993 SCMR 1810 the Honourable Supreme Court of Pakistan did not approve the invoking of the Constitutional jurisdiction of the High Court by abandoning or by passing the statutory remedy available to the aggrieved person, without reasonable cause. 15. In the case in hand, after going through the record, we are of the view that the petitioner is not an aggrieved person at all because the car in question was registered in the name of Gul Mir (respondent No. 4) and was seized by the Customs Authorities from him. It was he who was served with a notice under section 171 of the Customs Act, therefore, only he had the locus standi to knock at the door of this Court for the redress of his grievance. In our opinion, the petitioner has no locus standi whatsoever to file the present writ petition. 16. The contention of the learned counsel for the petitioner, that the petitioner had purchased the car in question vide Open Transfer Letter dated 8-9-1995 (Annexure 'A') from Gul Mir (respondent No. 4), is vague, amorphous to the point of being indecipherable. If the petitioner had, in fact, purchased the car vide Annexure 'A', we fail to understand as to what prevented him from transferring the ownership of the said car in his name, in accordance with the provisions of section 32 of the Motor Vehicles Ordinance, 1965. For the sake of convenience the same is reproduced as under :-- "32. Transfer of ownership.-(l) Within thirty days of the transfer of ownership of any motor vehicle registered under this Chapter, the transferee shall report the transfer to the registering authority within whose jurisdiction he ordinarily resides and shall forward the certificate of registration of the vehicle to that registering authority together with the prescribed fee in order that particulars of the transfer of ownership may be entered therein. (2) A registering authority other than the original registering authority making any such entiy shall communicate the transfer of ownership to the original registering authority." 17. Accordingly, the petitioner was bound under the law to approach the registering authority on or before 8-10-1995 i.e., within 30 days from 8-9-1995, the alleged date of purchase of the car and get the car transferred/registered in his name. Needless to mention that the car was seized from respondent No. 4 much after the said date i.e., on 11-10-1995. In the circumstances, we are constrained to remark that the petitioner was/is not the owner of the car in question (as the Open Transfer Letter does not confer any title) and the intent and purpose of filing this writ petition was/is to circumvent/defeat the provisions as contained in section 32/25 of the Motor Vehicles Ordinance, 1965. This petition is, therefore, inspired/motivated by ill-will and mala fide and has been filed with the sole purpose, intention and objective to use the process of the Court to the advantage of the petitioner/respondent No. 4. 18. Secondly, the car has been seized under section 168 of the Customs Act, 1969 (Act IV of 1969) and the matter has not been adjudicated upon by the Customs Authorities under section 179 till date. After the adjudication order is passed by the Customs Authorities, then two more remedies are available to the aggrieved person (respondent No. 4) as in the first instance he can file an appeal before the Central Board of Revenue (C.B.R) under section 193 of the Customs Act and, therefore, if he fails to get and relief from there, then he can approach the Federal Government by filing a revision petition under section 196 of the Customs Act and after exhausting all the remedies, mentioned above, the aggrieved person may approach this Court by filing writ petition and challenge the vires of the said orders, if advised. 19. We would, however, like to direct the concerned Customs Authorities to dispose of the adjudication proceedings expeditiously/swiftly. Similarly, the Director, Excise and Taxation, N.W.F.P., Peshawar is directed to enquire into the matter, fix responsibility and take appropriate action, in accordance with law, against the defaulting officials within reasonable time. Copies of this judgment be sent to them immediately. 20. This writ petition is misconceived, without any substance and rejected accordingly. (A.P.) Petitions rejected.
PLJ Peshawar 51 (DB) PLJ Peshawar 51 (DB) Present: jalaluddin akbarji and qazi ehsanullah qureshi, JJ, \ GUJAR KHAN and 3 others-Petitioners versus GOVERNMENT OF N.W.F.P. and 16 others-Respondents Writ Petition No. 225 of 1995, decided on 2.4.1996 . (i) Forests Act, 1927 (XVI of 1927)-- Ss. 41 & 76--N.W.F.P. Management of Protected Forest Rules, 1975, R. 19-Constitution of Pakistan (1973), Art. 199-Forest in Provincially Administered Tribal Areas being State property; are controlled by R. 19, North-West Frontier Province Management of Protected Forest Rules, 1975-Payment of royalty to right-holders by Government-Entitlement of local right-holders. Forest in Provincially Administered Tribal Areas are the State property-The Commercial exploitation of forest in PATA are controlled by Rule 19 of N.W.F.P. Management of Protected Forest Rules, 1975. Local inhabitant where forests are situate, are to be paid concessions according to order published in aforementioned Notification dated 15-9-1972. Concession can be paid to local inhabitants besides 15% of sale proceeds in "Quomi Contracts". "Royalty" is paid only to owners of property usually mines etc. which are exploited by Government or any other agency. Since forest are State property, there is no provision of payment of royalty to any person including so-called local right-holders and it would be a concession to be paid to local inhabitants who are to be termed as local right-holders. This is a matter which can be negotiated by Government or any other agency on behalf of Government with local inhabitants of Forests. [P. 61] B (ii) Forests Act, 1927 (XVI of 1927)-- Ss. 41 & 76--N.W.F.P. Management of Protected Forest Rules, 1975, R. 19-Constitution of Pakistan (1973), Art. 199-Contracts and its legal obligations need not be decided by High Court in its Constitutional jurisdiction and same can be settled by Courts of ordinary civil jurisdiction after recording evidence in the matter and passing appropriate decrees. [P. 62] C (iii) Forests Act, 1927 (XVI of 1927)-- -Ss. 41 & 76--N.W.F.P. Management of Protected Forest Rules, 1975, R. 19-Constitution of Pakistan (1973), Art. 199-Constitutional petition- Local right-holders' entitlement for payment of 60 per cent royalty from sale proceeds of forests from commercial sales on basis of agreement-Direction issued by High Court in its Constitutional jurisdiction whether efficacious remedyHigh Court expressing its concern at law and order situation in Tribal Areas. Parliament or Provincial Assembly cannot provide law to Provincial Administered Tribal Areas. Executive Authority of Federation and of Province is seriously challenged in PATA-Politicians and other interested influential persons in PATA are more concerned with their own personal against at the cost of inhabitants of PATA beside drum-beating on religious solgans, unleashing Holy Terror in PATA by self-proclaimed custodians of religious law. In this melee it is doubtful that the writ of this Court in PATA will be efficacious remedy and curb the manifest illegalities perpetuated in PATA. Commercial Sale of the Forest produce in Provincially Administered Tribal Area is grabbed by influentials in Provincially Administered Tribal Areas who can score their own illegal against in concert with the politicians. The local inhabitants of Provincially Administered Tribal Areas stew in their own juice. The Provincial Government is well advised to act in accordance with the Forest Act (XVI of 1927) and the N.W.F.P. Management of Protected Forests Rules, 1975 and distribute the sale proceeds amongst the local inhabitants in accordance with the procedure provided in the Forest Act and Rules framed thereunder by suitable amendments in the Rules. [P. 62] D (iv) N.W.F.P. Management of Protected Forest Rules, 1975-- -R. 19-Forests Act (XVI of 1927), Ss. 41 & 76-Constitution of Pakistan (1973), Arts. 97 & 199-Entitlment to 60 per cent, royalty from sale proceeds of forest exploited by Government or on behalf of Government by any other person, agency or corporation-Local right-holders of specified area claiming such royaltyFederal Government's directive for payment of royalty-Validity-Forests are residuary subjects out of the ambit of Federal Legislative List and Concurrent Legislative List of Constitution-Directive of Federal Government (for payment of royalty in question) dated 14-3-1977, was thus, not within the meaning of Art. 97 of the Constitution-Notifciation dated 14-3-1977 being in conflict with Forests Act or Rules, could not be acted upon. [P. 59] A Abdul Haleem Khan, Shah Sanam Khan and Abdul Latif Afridi, Advocate for Petitioners. Saifur-Rehman Kiyani, A.G. and 'Saadat Hussain, D.A.G., for Respondents. Date of hearing: 2.4.1996. judgment Jalaluddin Akbarji, J.-Gujar Khan and others in their own capacity and as well as representatives for the persons/local right-holders of residents of Tehsil Kalam, District Swat, petitioners herein, have invoked the Constitutional jurisdiction of this Court (W.P. No. 225/95) for appropriate direction to the Provincial Government for payment of 60% royalty from the sale proceeds of the Forests from commercial sales on the basis of agreements dated 4-10-1981 limited for the period of 2 years i.e. from October, 1981 to 30-6-1983 and also on the basis of Notification SOFT (FAD) V-405/77 dated 14-3-1977 (Published Government Gazette, 10th June, 1977). Notice was issued to the Advocate-General, N.W.F.P. and the respondents 1 and 2 were directed to file comments, who provided the same and challenged the maintainability of the Constitutional petition for not arraying necessary parties and the contract agreement of the year 1981 having" expired and the petition in hand filed time-barred under the laws of contract. On facts nothing material was stated but it was insisted that the agreement dated 14-10-1981 was faithfully discharged. The respondents Nos. 1 and 2 were probably more satisfied with the comments furnished by the N.W.F.P Forest Development Corporation in the connected W.P. No. 488 of 1994 which Corporation incidentally is not respondent-party in this petition. M/s. Abdul Halim and Shah Sanam Khan, Advocates, for the petitioners vehemently argued that the petitioners and as well the inhabitants or local right-holders of Tehsil Kalam, District Swat, are entitled to 60% royalty from the sale proceeds of the Forests exploited by the Government or on behalf of the Government by any other person, agency or Corporation. Learned counsel in support of their arguments referred to the Working Plan for Atror-Desan Forest (Compartment Atror 1 to 15) of Kalam Forest Division 1985-86 to 1988-89, out of which relevant provisions will be reproduced later in this judgment, and urged that the Provincial Government should be directed to pay 60% royalty to the local rightholders/persons/inhabitants of Tehsil Kalam, District Swat as the Forests are exploited for commercial purposes by the Provincial Government and on their behalf by other agencies, persons, contractors and officials. Mr. Saifur Rehman Kiyani, learned Advocate-General, N.W.F.P. relied on the arguments advanced by Mr. M. Sardar Khan, Advocate in the connected Writ Petition No. 488 of 1994 and added that the Provincial Government owes nothing to the petitioners, this Constitutional petition is not maintainable as contractual obligations, if any, are involved in the case and that the contract has expired by now. Mr. M. Sardar Khan, Advocate, in the connected Writ Petition No. 488 of 1994 vehemently contended that the provisions of Order I, Rule 8, C.P.C. have not been followed strictly as the Code of Civil Procedure (C.P.C.) is applicable to the proceedings in the Constitutional jurisdiction by this Court. The agreements produced by the parties in the connected writ petitions are interpolated and it will be very difficult in this Constitutional petition to enter into inquiry about the legitimacy of each person entitled to 60% royalty as claimed in the connected W.P. No. 488 of 1994. The sum conclusion of Mr. M. Sardar Khan, Advocate was that these Constitutional petitions should not make this Court an enquiiy Court resulting into granting of decree in terms of money to be paid to the petitioners or any other person. The contractual obligations, if any, are to be settled by ordinary Courts of civil jurisdiction after recording evidence in the matter and passing appropriate decrees as it is in substance the sum of money which is claimed in the Constitutional petitions.Since th,e factual and the legal aspect in this Writ Petition (W.P. No. 225 of 1995) and W.P. No. 488 of 1994 Mutabar Khan and others v. N.W.F.P. Forest Development Corporation, Peshawar and others are the same, therefore, judgment is delivered in this petition. Qazi Muhammad Anwar, Advocate, for the petitioners in W.P. No. 488 of 1994 also vehemently argued on factual aspect of the case and submitted that the Government is not discharging its legal and moral obligation under the contracts and the law, therefore, appropriate directions may be issued to the Provincial Government for implementing and continuing the agreements dated 14.10.1981 and payment of royally @ 60% to the petitioners local right-holders from the sale proceeds of the Forests exploited by the Government or any other agency, corporation or persons of the forests range in Kalkot and Kalam, District Swat. 2. Before entering into merits of this Constitutional petition, it will be appropriate to refer to the statutes applied in the case: (i) The Governor of the North-West Frontier Province in exercise of his powers under clause (4) of Article 247 of the Constitution of Islamic Republic of Pakistan made Provincially Administered Tribal Areas (Application of Laws) (Second) Regulation, 1974 (Regulation II of 1974, Published Gazette of N.W.F.P., Extraordinary, 20th May, 1974) and applied certain laws to the Provincially Administered Tribal Areas Chitral, Dir, Kalam, Swat and Malakand Protected Areas and out of 53 laws applied as such the Forest Act (Act XVI of 1927) is mentioned at S. No. 20 column 2 of the Schedule to section 3 of the Regulation. All rules, notifications and orders made or issued under the laws were also made applicable under section 3 of the Regulation. Any law, instrument, custom or usage having the force of law corresponding to the provisions of applied law to PATA ceased to have effect under section 7 of the Regulation. (ii) The Government of the North-West Frontier Province by Notification No. SOFT (FAD) V-168/71 (i) dated 17.2.1976 (Published Gazette of N.W.F.P., Extraordinary, 17.2.1976) were pleased to apply the provisions of Chapter IV of the said Forest Act, 1927 to all Forest lands in Chitral, Dir, Swat, Kalam and Malakand Protected Area; and declared all the said Forest land as Protected Forest. (iii) The Government of N.W.F.P. by Notification No. SOFT (FAD) V-168/71 (ii) (Published, Gazette of N.W.F.P., Extraordinary, 17th February, 1976) were pleased to declare with immediate effect all trees within the said protected forest as reserved and prohibited with immediate effect quarrying the stone, the burning of lime or charcoal or collection or subjection to pay manufacturing process, or removal of, any forest produce in any such forest and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forests. (iv) For Management of Protected Forests the Government of N.W.F.P. in exercise of powers under section 32 of the Forest Act, 1927 were pleased to make Rules known as "North-West Frontier Province Management of Protected Forest Rules, 1975 (N.W.F.P. Gazette, Extraordinary, 17th February, 1976) and for the purposes of this case the relevant Rule 19 is reproduced as under:- "19. Commercial safes.--(1) Regular commercial sales will be conducted in the forests in accordance with the sanctioned working plans. Fifteen per cent, sales proceeds from commercial sale in Dir, Swat and Kalam and fifteen per cent, sales proceeds on concessional rates and quomi contracts in Swat will be distributed amongst the right-holders. (2) The Divisional Forest Officer will issue a cheque in the name of the Deputy Commissioner for the amount of share of the local inhabitants out of the sale proceeds. The amount will be distributed by the Deputy Commissioner or his representative amongst the right-holders, and the acquittance roll will be frowarded to the Conservator of Forests on each occasion the payment is made. The Conservator of Forests will maintain the accounts for audit purposes." 3. PATA mainly consisted of States known as Chitral, Dir, Swat and Kalam Area, which acceded to Pakistan, (i) The Forests in Swat were declared State property as under:- (Gazette Extraordinary page 193) Government of North-West Frontier Province Home, Tribal Affairs and Local Government Department. ORDER 15th September, 1972 No. 10/16-SOTA-II/72-1521.--In pursuance of clause (a) of paragraphs 3 of the Devolution and Distribution of Property (Dir and Swat) Regulation (Martial Law Regulation No. 122), and on the basis of the recommendations of the Dir-Swat Land Disputes Enquiry Commission, and in accordance with the directions of the President, the Governor of the North-West Frontier Province is pleased to order that:- (a) ......................................................................................................... (b) all Forests situated in the former State of Dir shall be the State property (subject to payment of fifteen per cent, of their income as royalty to the local right-holders)." (ii) The Forests in Dire were declared State property as under:- (Gazette Extraordinary page 167). Government of North-West Frontier Province Home, Tribal Affairs and Local Government Department. ORDER 15th September, 1972. No. 10/16-SOTA-II/72-1520.--In pursuance of clause (a) of paragraph 3 of the Devolution and Distribution of Property (Dir and Swat) Regulation (Martial Law Regulation No. 122), and on the basis of the recommendations of the Dir-Swat Land Disputes Enquiry Commission, and in accordance with the directions of the President, the Governor of the North-West Frontier Province is pleased to order that:- (a) ......................................................................................................... (b) all Forests situated in the former State of Dir Shall be the State property (subject to payment of fifteen per cent, of their income as royalty to the local right-holders)." (iii) The Provincial Government were pleased to issue Notification No. SOFT (FAD) V-405/77 dated 14.31.977 (Published N.W.F.P. Government Gazette, 10th June, 1977) which is as under:- "No. SOFT (FAD) V-405/77.-In pursuance of the provisions contained in clause (a) of paragraph 3 of the Dir and Swat (Devaluation and Distribution of Property) Regulation, 1972, and in accordance with the direction of the Federal Government, the Government of the North-West Frontier Province, is pleased to direct that:- (a) in Home Department Notification No. 10/16-SOTA- 11/72-1520, dated 15th September, 1972, in clause (b), for the brackets and words "(subject to payment of fifteen per cent, of their income as royalty too the local right-holders)", the brackets and words "(subject to payment of royalty to the local right-holders at the rate of eighty per cent, of the income of Painda Khel and Sultan Khel Forests, and sixty per cent, of the income of other forest)" shall be substituted; and (b) in Home Department Notification No. 10/16-SOTA- 11/72-1521, dated 15th September, 1972, in clause (b), for the brackets and words "(subject to payment of fifteen per cent, of their income as royalty to the local right-holders)", the brackets and words "(subject to payment of royalty to the local right-holders at the rate of eighty per cent, of the income of Buner Forests and sixty per cent, of the income of the other forests)" shall be substituted." 4. The Forest Act (Act XVI of 1927) was applied to Chitral, Dir, Kalam, Swat and Malakand Protected Areas by Regulation II of 1974 (20.5.1974) alongwith all Rules, Notifications and Orders made or issued under the Forest Act. The provisions of any law, instrument or usage having the force of law corresponding to Forest Act ceased to have effect. Earlier the Forests in Dir and Swat have been declared State property by Notifications dated 15.9.1972, referred hereinbefore, subject to payment of 15%^ of royalty to the local right-holders. No settlement of Forest has taken place under Chapter II of the Forest Act. The Provincial Government, therefore, per force is managing the Forest under Chapter IV of the Forest Act and have framed Rules (17.2.1976), referred hereinbefore, with Rule 19 for commercial sales in these forests reflecting the 15% payment of income as royalty to local right-holders, (Notifications dated 15.9.1972), to be paid as 15% of sale proceeds from commercial sales of Forests in Dir, Swat and Kalam to be distributed amongst the local right-holders. The words "royalty" and "local right-holders" have not been explained. The scheme of Forest Act, 1927 does not envisage any provision like the word "royalty". Precisely, this is the most agitated question in Dir, Swat and Kalam and rightly so in absence of Settlement of Forest under Chapter II of the Forest Act. The matter is further confounded by issuance of Notifications dated 14.3.1977 of the Provincial Government on the purported exercise of powers under MLR 122. The necessary intendment of MLR 122 was and is to determine the State property of Former States of Dir and Swat. On the application of the Forest Act to Dir and Swat by Regulation No. II of 1974 (20.5.1974) all other provisions of any law, instrument custom or usage having the force of law ceased to have effect under section 7 of the Regulation. The Forests are residuary subject out of the ambit of Federal Legislative List and Concurrent Legislative List of the Constitution and, therefore, the directive of the Federal Government as mentioned in Notification dated 14.3.1977 will not be within the meaning of Article 97 of the Constitution of Islamic Republic of Pakistan. The Notifications dated 14.3.1977 are in conflict with the Forest Act, 1927 and the N.W.F.P. Management of Protected Forest Rules, 1975 (17.2.1976) and unless Rule 19 is suitably amended which at present provides 15% of sale proceeds from commercial sales for distribution amongst the right-holders but sub-rule (2) provides cheque in the name of Deputy Commissioner for the amount of share of local inhabitants out of sale proceeds, the matter cannot be resolved. 5. It will not be irrelevant to refer to the working Plan for Utror- Desan Forests (Compartment Utror 1 to 15) of Kalam Forest Division (1985- 86 to 1989-99) produced by M/s. Abdul Halim and Shah Sanam Khan, Advocates, for the petitioners relatable to the distribution of royalty as appreciated by the Officers in drawing the working plan:- "1.10. Distribution of royalty: as already mentioned, 60% of the sale value of forest in Kalam-Kohistan is paid to the local right-holders as royalty. Eveiy community gets the royalty of its own forest and further distribution is made among the tribes of every community according to the internal distribution system. Internal distribution for Utrori community prevailing at present is as under:-The royalty is first divided between two big tribes, Narrat and Darakhel equally. Share of Narrat is then equally divided among three sub-sects of Narrat and those are Sangerkhel, Langerkhel and Jogarkhel. Share of Darakhel is equally divided among the 4 sects of Darakhel and those are Jalator, Funderkhel, Ushugi and Chara. Distribution among the tribesmen is made on the basis of equal share for each male. 1.11. People who are not entitled for getting royalty:- Those people who came from other areas and were permanently settled in Kala-Kohistan are not considered to be the bona fide residents and therefore, they do not get any share in royalty. Families from Kohistan (Indus Kohistan), Malizai (District Dir), Guhars and other nomadic tribes are included in this group. The person entitled for royalty can sell his share also and after selling his share he is no more entitled to receive royalty. Furthermore, those who have sold their share to other locals of community they are not deprived of the rights other than royalty. The can avail all other rights like grazing, collection of fire-wood, free grant of local quota etc. The purchase get only the share of royalty." 6. The forests in PATA were also dealt with under the Land Reforms Regulations. The Manual of Land Reforms published by the Land Commission, N.W.F.P. (31st December, 1976) observes on page 35, "Forest areas are situated mainly in Bahrain, Kalam, Madayan, Mian-Adam, Bar Swat, Sind Kohistan, Kana, Alpuri and Lilawani. Forests were controlled and managed by the State; but the owners were paid l/10th of the profit", on page 36. "Notwithstanding any decision that may be finally arrived at in respect of the various cases dealt with by the Commission and classification of the property of Badshah Sahib into private property and State property as may be made, all forests, minefields and minerals in Swat whether they originally belonged to the Wali/Badshah Sahib or other people or in any way acquired by them, may be treated as State/Government property. This point about forest has been discussed with the Local Division Forest Officer and he is also of the opinion that lot of complication will arise of forests are not declared as State/Government property. 10% of the sale proceeds, however, may cpntinue to be paid to the land owners of the village in which these forests are situated. The working plan, at present followed by the Forest Department may continue to be followed; but the Forest, minefields and minerals niay not be treated as private individual including Badshah Sahib/Wali", on page 39, "All forests may be treated as State property except some stray trees growing in cultivated area. It is a common principle that in the case of cultivated areas the trees go with the land. Except the pasture (Charagahs) and Shikargahs which the Central Government have already declared to be the private property of the Mehtar, all Charagahs, Shikargahs, hills and waste land may be treated as State property; but the existing grazing rights and rights of collecting fuel wood by the people and villagers may not be disturbed. The Charagah, Shikargah etc., already declared by the Central Government to be the private property of the Mehtar will be exempted from this." 7. From the above references, by now it is settled that the Forests in PATA are the State property. The commercial exploitation of the Forests in PATA are controlled by Rule 19 of the N.W.F.P. Management of Protected Forest Rules, 1975. The local inhabitants, where the forests are situated, are to be paid the concessions according to order published in the aforementioned Notification dated 15.9.1972. it will be relevant to refer to Rule 19 of the N.W.F.P. Management of Protected Forest Rules, 1975 and the concession can be paid to the local inhabitants besides 15% of the sale proceeds on "Quomi Contracts". The "royalty" is paid only to the owners of property usually mines etc. which are exploited by Government or any other agency. Since the forests are the State property, therefore, there is no provision of payment of royalty to any person including the so-called local right-holders and it will be a concession to be paid to the local inhabitants who are to be termed as local right-holders. This is a matter which can be negotiated by the Government or any other agency on behalf of the Government with the local inhabitants of the Forests. 8. The objection that Order 1, Rule 8 of Code of Civil Procedure has not been followed strictly in the proceedings of both the petitions is more of technical nature and subjective. If this rule is upheld in the proceedings of hearing a Constitutional petition then necessarily in the proceedings issues are to be framed and evidence is to be recorded on the issues and thereafter judgment delivered by and under the Code of Civil Procedure. This was never the purpose of the judgments, hereinafter referred, for the application of Code of Civil Procedure in the proceedings of hearing the Constitutional petitions. Since no rules have been framed, therefore, the nature of proceedings being civil the provisions of section 141 of the Code will apply as far it can be made applicable. In the judgment "Anjuman Araian, Bhera v. Abdul Rahsid and 5 others (PLD 1973 Lahore 500), a Division Bench while hearing Letters Patent Appeal in the circumstances of the case observed that if Anjuman wanted into file writ petition then it will be proper procedure to obtain the leave of the Court under Order I, Rule 8, C.P.C. Earlier in the judgment "Mian Fazal Din v. Lahore Improvement Trust Lahore and another (PLD 1969 SC 223), although delivered under Article 98 of the 1962 Constitution, the august Supreme Court of Pakistan ruled that, "The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise." In another case "Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) the august Supreme Court of Pakistan held that the High Court apart from its powers to correct errors apparent on face of record in exercise of its inherent jurisdiction has power under C.P.C. to review its order made in exercise of its writ jurisdiction. The rule in this respect was further laid down that if the proceedings involve the assertion or enforcement of a civil right then it is a civil proceeding and the provisions of the Code other than the specially excepted ones, shall apply in the exercise of High Court's jurisdiction in a civil matter whatever may be the nature of that jurisdiction. There is no need further to dilate upon the intricacies of procedure in hearing the writ petition and it will be sufficient to observe that even one local inhabitant of the Forest can maintain the Constitutional petition to secure his rights, if there is no other adequate and efficacious remedy available to the person. There is force and substance that contracts and its legal obligations need not be decided by this Court in the Constitutional jurisdiction as the same can be settled by Courts of ordinary civil jurisdiction after recording evidence in the matter and passing appropriate decrees. It is observed that the payment of concessions to the local inhabitants is to be paid according to sub-rule (2) of Rule 19 of the N.W.F.P. Management of Protected Forest Rule, 1975, therefore, thee is no need of delivering a judgment on these two objections at this stage. 9. The Parliament or the Provincial Assembly cannot provide law to PATA. The Executive Authority of the Federation and of the Province is seriously challenged in PATA. The politicians and other interested influen tial persons in PATA are more concerned with their own personal gains at the cost of inhabitants of PATA beside drum-beating on religious slogans, unleashing Holy Terror in PATA by self-proclaimed custodians of religious laws. In this melee it is doubtful that the writ of this Court PATA will be efficacious^ remedy and curb the manifest illegalities perpetuated in PATA. It is observed that the commercial sale of the Forest produce in PATA is grab bed by influentials in PATA who can score their own illegal gains in concert with the politicians. The local inhabitants of PATA rot in their own stew. The Provincial Government is well advised to act in accordance with the Forest Act (XVI of 1927) and the N.W.F.P. Management of Protected Forests Rules, 1975 and distribute the sale proceeds amongst the local inhabitants in accordance with the procedure provided in the Forest Act and Rules framed thereunder by suitable amendments in the Rules, if need be, as indicated in para. 4 and para. 7 of the judgment. With this observation this petition (W.P. 225/95) and W.P. No. 488/94 Mutabar Khan v. N.W.F.P. Forest Development Corporation are disposed of. (S.R.) Order accordingly.
PLJ 1997 Peshawar 63 PLJ 1997 Peshawar 63 Present: mrs. khalida rachid, J. Haji ZARBADSHAH and 2 others-Petitioners versus MUHAMMAD NAWAZ KHAN-Respondent Civil Revision No. 263 of 1994, decided on 7.3.1996. (i) N.W.F.P. Pre-emption Act, 1987 (X of 1987)-- S. 31 [as amended by N.W.F.P. Pre-emption (Amendment) Act (X of 1992)]--Civil Procedure Code (V of 1908), S. 155-Appellate Court restored suits holding those to be within time-Challenge to-Controversy between parties was whether sale effected before enforcement of amended S. 31 of the Act which was published in official Gazette on 16.12.1992, with retrospective effect 31.12.1991, providing 120 days to pre-emptor to exercise his right of pre-emption, would be hit by limitation or not-Provision of amended S. 31, N.W.F.P. Pre-emption Act, 1987 provides that period of limitation prescribed for suit for pre emption, would be from the day of sale-Sale even before 31.12.1991 would be time-barred if not challenged within 120 days-Sale in question effect on 26.10.1991 having been challenged through suit on 13.10.1992 i.e. after about ten months of target date of 31.12.1991 was time-barred. [P. 65] A (ii) N.W.F.P. Pre-emption Act, 1987 (X of 1987)-- S. 31 [as amended by N.W.F.P. Pre-emption (Amendment) Act (X of 1992)]--Limitation Act (IX of 1908), Ss. 5 & 14-Civil Procedure Code (V of 1908), Ss. 151 & 115-Suits filed beyond 120 days-Effect of- Condonation of delay-Prayer for-Provision of amended S. 31 of the N.W.F.P. Pre-emption Act, 1987 had made it clear that suit filed beyond 120 days would be barred by time-Plaintiff filing suits after about 10 months could not be deemed to have acted with due diligence or with bona fide mistake-Plaintiff was, thus, not entitled to condonation of delay under S. 5 or 15, limitation Act, 1908--Provisions of S. 151, C.P.C. could not come into play which could only be exercised when there was abuse of process of Court-Order of Trial Court dismissing suit on ground of being time-barred was restored while that of Appellate Court deeming suit to be within time was set aside in circumstances. [P. 65] B Qazi Zakiuddin, Advocate for Petitioners. Abdul Sattar Khan, Advocate for Respondent. Date of hearing: 28.1.1996. judgment Petitioners, Zarbadshah and others in C.Rs. Nos. 263 of 1994 and 264 of 1994 are aggrieved of an order dated 3.3.1994 passed by the learned Additional District Judge, Peshawar, holding pre-emption suits of the respondents within time, remanded the cases to the Trial Court for decision fresh. Since both the revisions involve same question of law and facts they are, therefore, disposed of by this single judgment. 2. The brief facts giving rise to present revisions are that respondent, Muhammad Nawaz, challenged the sale of land measuring 30 Kanals 4 Marias effected through Mutations Nos. 904 and 905 attested on 26.10.1991, by filing suits in Court of Senior Civil Judge, Peshawar on 13.10.1992. During the pendency of suits, petitioners-defendants filed applications for the dismissal of suits being time-barred on the basis of Amendment Act X of 1992. The applications prevailed with the learned Trial Court who vide order dated 28.7.1993 dismissed both the suits of respondents-plaintiffs. Appeals against the order of the Trial Court weighed with the learned Additional District Judge declaring the suits to be within time and thus remitted the cases of decision on merits, thus obliging the petitioners to invoke revisional jurisdiction of this Court. 3. Learned counsel for the parties have been heard at a considerable length and record has been perused. 4 The moot question for determination is whether the sale effected before the enforcement of Amendment Act X of 1992, in section 31 of the Pre-emption Act, 1987, published in official Gazette on 16.12.1992, with retrospective effect from 31.12.1991, providing 120 days to the pre-emptor to exercise his right of pre-emption, would be hit by limitation or not. 5. Qazi Zakiuddin, learned counsel for the petitioners, contended that sale of the pre-empted land, even before the cut off date of amendment, i.e. 31.12.1991 if not challenged within 120 days, would be time-barred as amendment in section 31 is made only to the extent of substitution of period of limitation from one year to 120 days. On the other hand Mr. Abdul Sattar Khan, learned counsel for the respondent, argued that at the time of sale, dated 26.10.1991, in question the amendment was not in place, therefore, limitation period would be governed by Pre-emption Act, 1987, in which one year is provided from the date of registration of the sale-deed. 6. I feel persuaded by the arguments of the learned counsel for the petitioners. The amendment in section 31 of the Pre-emption Act lays down that the period of limitation for a suit to enforce a right of pre-emption shall be 120 days from the date:- (a) of the registration of the sale-deed; or (b) of the attestation of the mutation; or (c) on which the vendee takes physical possession of the property; or (d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c). The Amendment Act X of 1992 clearly provides that in counting the period of limitation prescribed for a suit of pre-emption it shall be 120 days from the day of the sale within which the pre-emptor can exercise his right of pre emption which has been given effect from 31.12.1991. The sale even before 31.12.1991 shall be time-barred if not challenged within 120 days. The sale in the instant case was effected on 26.10.1991 and the suits challenging the sale were instituted on 13.10.1992, i.e., about ten months of the target date of 31.12.1991 which are apparently time-barred. Now reverting to the applications for condonation of delay, the learned counsel for the respondent/applicant argued that at the time of filing of the suits the amending act was not enforced and the applicant could not have known the expected legislation, therefore, the time if barred may be condoned. This argument of the learned counsel for the applicant has no weight for the simple reason that provisions of law on the subject-matter is very clear. The Amendment Act X of 1992 has made it clear that suit filed beyond 120 days shall be barred by time still respondent filed suits after almost one year which cannot be termed that he acted with due diligence and it was his bona fide mistake, therefore, condonation of delay under section 5 or 14 cannot be granted. As regards section 151, C.P.C. it can only be exercised when there is abuse of the process of the Court. There is no such circumstance in this case which could obstruct the ends of justice. In view of above these revision petitions are accepted and the order dated 3.3.1994 of the Appellate Court is set aside and that of the Trial Court is restored. However, the parties are left to bear their own Courts. (S.R.) Revision accepted.
PLJ 1997 Peshawar 66 (DB) PLJ 1997 Peshawar 66 (DB) Present: qazi muhammad farooq and qazi ehsanullah qureshi, JJ. Mst. SAIRA-Appellant versus Mian HAMIDUL HAQ and others-Respondents Regular First Appeal No. 91 of 1992, decided on 12.3.1996. Muhammadan Law- -Inheritance-Case of-Plaintiff (daughter) seeking entitlement to 7/104th share in accordance with Shariah in cash amount deposited by her father (deceased) in different Banks-During lifetime of deceased when he was allegedly on death bed some amount was stated to have been withdrawn illegally and fraudulently by one of defendants in the name of deceased- Plaintiff also claiming her share from that amount-Trial Court decreed plaintiffs suit in respect of amount which stood deposited at the time of death of deceased but ignored her claim that amount which had been withdrawn during lifetime of deceased by one of defendants on behalf of their deceased father-Plaintiff filed appeal against that claim which was rejected-Plaintiff could not claim her share in payments or funds exhausted during lifetime of deceased, for her suit was for her share in the heritage i.e. movable property left by deceased; plaintiff was only entitled ,to her 7/104th share in assets of deceased after his death- Plaintiff had produced no evidence that deceased was not in a position to understand what he was doing or that he was pressurised by defendant to sign specific cheques-Trial Court had, thus, rightly refused to grant decree to plaintiff for amount already drawn by her father before his death-Decree in favour of plaintiff was although against all defendants yet it could be executed against any one of judgment-debtors-Record showed that defendant against whom decree in question, was being executed had received the amount of legacy more than his due share in the estate left by his deceased father-Executing Court had thus, rightly rejected such defendant's objection application that decree be executed against all defendants. [Pp. 69 & 70] A, B & C Munir Paracha, Advocate for Appellant. Mian Muhammad Younis, Advocate for Respondents. Date of hearing: 25.1.1996. judgment Qazi Ehsanullah Qureshi, J.-Mst. Saira, the plaintiff, filed a suit before the Civil Court at Mardan in the year 1992 and sought a declaration to the effect that she being the daughter of deceased Mian Abdul Haq, the predecessor-in-interest of the parties, was entitled to 7/104th share in accordance with Shariah in the cash amount deposited by the deceased in different Banks and the National Savings Centre, Mardan Branch. Secondly that if any of the legal heirs/defendants had received the payment for the above deposits in excess of his Shari share it be also recovered from the defendant who had received it. She further claimed that the cheques drawn during the lifetime of the deceased were collusive and fraudulent because the deceased was on death bed and not in senses at that time. She also prayed for the grant of 15% profit from the date of such receipt from the bank till complete refund of entire amount. She, however, undertook that in case the amount of her share of plaintiff exceed Rs. 20,000 she would make up the deficiency in the court-fees. 2. Defendants Nos. 2, 4 and 5 resisted the suit by filing their written statement and the learned Trial Judge after framing as many as eight issues arising out of their pleadings, recorded evidence pro and contra and vide his judgment and decree dated 24.6.1992 granted the plaintiff a decree in the sum of Rs. 1,07,625 alongwith 15% profit and dismissed the remaining claim, as prayed for in the plaint. The plaintiff Mst. Saira not contented with trial Court decree filed an Appeal No. 91/92 in this Court and the respondents also filed cross-objection No. 21/93. It was during the pendency of the aforementioned appeal and the cross-objection that Mst. Saira initiated execution proceedings before the Executing Court for the recovery of the entire decretal amount plus 15% profit only against Mian Shamsul Haq defendant No. 2. The said respondent filed an objection petition before the Executing Court on the ground that the recoveiy was to be made from all the respondents/judgment-debtors severally and jointly as the decree had been passed against all the respondents. The Executing Court being not convinced dismissed the objection petition 2.3.1993. Mian Shamshul Haq aggrieved from the said order preferred an Appeal No. 14/93 in this Court. Both the Appeals Nos. 91/92 and 14/93 as well as cross-objection No. 2/93 came up for hearing before a Division Bench of this Court and the learned Division Bench vide order dated 21.11.1993 disposed of both the appeals and cross-objection with the observations that keeping in view the statement of learned counsel for the respective parties at the Bar that since the suit lodged on behalf of the plaintiff was for the recoveiy of her share in the stage of her deceased father from the other share-holders as she is entitled to recover the same from all the shareholders jointly and severally. Accordingly the appeals and cross-objections by Shamshul Haq and Mst. Saira were dismissed leaving the parties to bear their own costs. 3. Both Mst. Saira and Shamshul Haq filed three separate appeals before the Supreme Court of Pakistan which were allowed vide judgment dated 8.8.1995, the judgment dated 21.11.1993 of this Court was set aside and the case was sent back to this Court for fresh disposal. 4. We propose to dispose of the appeals filed by Mst. Saira (R.F.A. No. 91/92) and Mian Shamshul Haq (F.A.O. No. 14/93) as well as crossobjection No. 2 of 1993, through this single judgment. The learned counsel for Mst. Saira appellant submitted that admittedly deceased Mian Abidul Haq predecessor-in-interest of the parties had expired on 7.2.1986 leaving behind two widows, namely, Mst. Wajida Begum and Mst. Sabra Begum, two sons and nine daughters who all are entitled to their respective share in accordance with Shariah and the appellant Mst. Saira being the daughter was entitle to 7/104th share in the estate of her deceased father Mian Abidul Haq. After the death of her father whosoever had drawn any excess amount over and above his/her share from National Savings Centre, Mardan it was recoverable and payable to the appellant Mst. Saira. Counsel for appellant Mst. Saira elaborating the details of account added that initially the deceased father of the appellant deposited rupees thirteen lacs in National Saving Centre, Mardan on 7.5.1984 and the total credit reached to Rs. 24,59,000 inclusive of profit. During the lifetime of deceased while he was on death-bed a sum of Rs. 8,60,000 was drawn illegally and fraudulently by respondent No. 2 in the name of Mian Abidul Haq thus the balance at National Saving Centre, mardan at the time of death of Mian Abidul Haq deceased squeezed to Rs. 15,99,000. The learned trial Judge ignoring the claim of Mst. Sairia as per her share i.e. 7/104th in the drawn amount of Rs. 8,60,000 granted the decree of Rs. 107,625 with 15% profit in favour of appellant-plaintiff against defendants out of the balance amount of Rs. 15,99,000 left by the deceased after his death. In the circumstances the judgment and decree passed by the learned Civil Judge, Mardan needs modification and prayed for additional decree for the amount of Rs. 70,000 as the amount of Rs. 8,60,000 had been drawn on fictitious cheques, the fraud had been detected during evidence and the respondent No. 2, admitted the receipt of above payment. The father of the appellant was also having considerable landed properly to meet his life expenses. The cheques were encashed by respondent Shamshul Haq and the same had not been paid to Mian Abidul Haq. The learned counsel for the respondents refuted the contentions of the counsel for the appellant and advanced that the plaintiff-appellant had no cause of action altogether. Only those legal heirs are entitled to receive the payment from the deposited amount, who are included in the Nominees' List furnished by the deceased and the proportionate share/amount shown against their names in the Nominees' List. The interest at the rate of 15% is also un-Islamic and is not recoverable, the nomination list can be treated as will or gift and the amount drawn as per Nomination List is rightly made and received. 5. We have heard the learned counsel on both sides and perused the record carefully. It is in the statement of P.W. 1 that the deceased had left a sum of Rs. 15,99,000 which is lying in deposit in National Savings Centre, Mardan. In the first List of Nominees the name of the plaintiff Mst. Saira appears at Serial No. 10 of Exh. PW 1/3. A nomination under the Provident Fund Act is neither a will nor a gift nor trust and such nomination is merely a mandate, the validity of which expires with the death of the nominator, therefore, fund formed part of his own undisposed of estate on his death (PLD 1974 SC 185). In the same authority it has been laid down that "nomination merely meant to collect the money or to receive the money". It does not operate either as a gift or a will and thus cannot deprive the other heirs of their legal share. The Nominees list was sent for comparison to the Handwriting Expert whose report reveals that the questioned documents were not in conformity wit the routine signature of Mian Abidul Haq deceased. Even otherwise if the report was not there the list of Nominees did not affect the share of legal heirs of deceased under the law of Inheritance. The name of the plaintiff Mst. Saira was not mentioned in the second List of Nominees even then she being the daughter of the deceased is entitled to her share. 6. All payments made or funds exhausted during the lifetime of Mian Abdul Haq by whatever way the plaintiff cannot claim her share in that amount because her suit is for her share in the heritage, i.e. movable property left by the deceased and plaintiff is only entitled to her 7/104th share in the left estate/assets after death. There is no evidence worth the name on behalf of the plaintiff that the deceased was not in a position to understand what he was doing or that he was pressurised by the respondents to sign the cheques. In such circumstances the trial Court has rightly refused to grant decree to the plaintiff Mst. Saira for the amount already drawn by her father before his death. 7. So far the objection with regard to 15% profit allowed by the Trial Court to the plaintiff Mst. Saira is concerned, since defendant No. 2. unauthorisedly and illegally drawn excess amount he has been rightly held liable for payment of 15% profit. In this view of the matter both the cross-objection No. 2/93 as well as R.F.A. No. 91/92 are hereby dismissed and judgment of the learned Trial Court in this respect is maintained. 7-A. As regards F.A.O. No. 14/93 filed by Mian Shamshul Haq appellant who impugned the order of the Executing Court dated 2.3.1993 through which his objection petition was dismissed also merits no consideration. Much stress was laid on the point that the decree was granted in favour of Mst. Saira against all the defendants in the suit and the demand of whole decretal amount from him is illegal and that the decree was executable against appellant Shamshul Haq only to the extent of his own share. A plain reading of the plaint shows that there are eleven defendants in the suit and the decree was against all of them meaning thereby that it was joint decree. No doubt the decree has been passed against all the defendants in the suit but it can be executed against any one of the judgment-debtors. For facilitating the reference section 2(10), C.P.C. is reproduced below: - "2 (10). "Judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made. (b) A decree passed against several judgment-debtors jointly may be executed against any one judgment-debtor who will thereafter has a right of contribution against the other joint judgment-debtors." Besides above it is on record that defendant No. 2. namely Mian Shamshul Haq only had received the amount more than his due share in the estate left by his deceased father. The learned Executing Court in the circumstances of the case rightly rejected objection petition of appellant Mian Shamshul Haq. F.A.O. No. 14/93 also stands dismissed. No order as to costs. (A.P.) Order accordingly
PLJ 1997 Peshawar 71 PLJ 1997 Peshawar 71 Present: qazi ehsanullah qureshi, J. GHULAM RASOOL-Petitioner versus HAROON KHAN and anothers-Respondents Civil Revision No. 128 of 1995, decided on 7.3.1996. (i) N.W.F.P. Pre-emption Act, 1987 (X of 1987)-- Ss. 12 & 32 read with Civil Procedure Code (V of 1908), O.VII, R. 11- Rejection of plaint in pre-emption suit in terms of O.VII, R. 11, C.P.C.-- Challenge to-Notices under S. 12 by vendor and under S. 32, N.W.F.P. Pre-emption Act, 1987 by Registrar were not given although they were mandatory, and in absence of which ascertaining of time for purpose of Talb-i-Muwathibat and Talb-i-Ishhad required thorough probe which could not be done without evidence-Rejection of plaint was not called for. [P. 75] A (ii) N.W.F.P. Pre-emption Act, 1987 (X of 1987)-- Ss. 13, 12 & 32 read with Civil Procedure Code (V of 1908), O.VII, R. 11-- Plaintiff, despite making demands of Talbs after lapse of one year and seven months failing to mention date of knowledge of sale and date of Talb-i-Muwathibat and also not mentioning where and in what manner and in whose presence he declared his intention to pre-empt sale in question-In absence of such requirements on the part of plaintiff, cause of action and locus standi of plaintiff was not conspicuous, therefore, remand of case would serve no purpose for compliance of S. 13 of the Act. [P. 75] B & C M. Muhammad Zahir Shah, Advocate for Petitioner. M. Samiullah Jan, Advocate for Respondent. Date of hearing: 29.1.1996. judgment Ghulam Rasool, the petitioner herein, filed a suit before the Civil Court at Kohat in the year 1993 and asked for the grant of a pre-emption decree. It is averred in the plaint that the defendants-respondents purchased a vacant plot on the basis of a registered sale-deed dated 19.5.1992. Plaintiff has based his superior right of pre-emption on the qualifications of contiguity and participation in amenities and appendages. He has stated that an inflated amount has been mentioned in the sale-deed in order to defeat the right of pre-emption. In the written statement the respondents resisted the suit on various legal and factual pleas, inter alia, contending therein that the suit of the plaintiff-petitioner is barred by time. The respondents also filed an application under Order 7, Rule 11, C.P.C. for dismissal of the suit on the ground of limitation which was resisted by the petitioner by filing a replication. The learned trial Court after hearing the arguments of the learned counsel for the parties on the said application dismissed the suit of the plaintiff-petitioner by holding that the suit of the plaintiff is not within time through the impugned judgment. The appeal preferred by the plaintiffpetitioner before the District Judge, Kohat was dismissed on 22.1.1995. Hence the instant revision petition under section 115, C.P.C. 2. The learned counsel for the petitioner vehemently argued that the Courts below have legally erred in declaring the suit as time-barred. He further argued that notice under section 32 of the N.W.F.P. Pre-emption Act, 1987 was neither advertised in the newspaper nor any such notice was served on the petitioner which is mandatory in nature. He lastly submitted that the suit of the plaintiff was within time because the same was instituted from the date of knowledge of sale in question. That the period of 120 days is to be counted from the date of knowledge. He also argued that the matter involves mixed question of law and facts it was incumbent upon the Court to provide opportunity to the petitioner to load evidence in support of his claim. Counsel for the respondents resisted the contentions of the petitioner's counsel by stating that the s uit is hopelessly time-barred in that the provisions of section 31 of the Act ibid are applicable to the facts of the instant case and that the provisions of section 32 of the N.W.F.P. Pre emption Act, 1987 are not attracted because the sale was a registered one which itself is a notice to the public and no other notice is required in the matter. He further argued that in the instant case the "Talabs" as required by section 13 of the Act (supra) have not been complied with by the petitioner, therefore, the case of the petitioner cannot proceed. 3. I considered these submissions in the light of relevant law. I have also carefully perused the dictums laid down in 1995 CLC 541, 729 and 744 as well as 1994 CLC 1730. It would be proper to reproduce the relevant sections:- "12. Notice of intention to sell.--(l) Where any person proposes to sell any immovable property in respect of which a right of pre-emption exists, he may give notice to all such persons having such right iof the price at which he is willing to sell the property. (2) The notice under subjection (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be struck upon the main entrance of a mosque and of any other public place of the village, city or place where the property is situated. 13. Demand of Pre-emption.-(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:- (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-e-Khusumat. Explanations. (i) "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. (ii) "Talb-i-Ishhad" means demand by establishing evidence. (iii) "Talb-i-Khusumat" means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i- Muwathibat. (3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge whichever may be earlier, make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendees, confirming his intention to exercise the right of pre-emption. Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre emption." Section 31. Limitation.-The period of limitation for a suit to enforce a right of pre-emption under this Act shall be 120 days from the date:- (a) of the registration of the sale-deed; or (b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or (d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (c). Section 32. Notice.-The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation. (2) The notice under subsection (1) shall be deemed sufficiently given if it be struck upon the main entrance of a mosque and on any other public place of the village, city or place where the property is situated:-Provided that if the property is situated in a city, the notice shall be given through a newspaper having large circulation in such city. (3) The charges for the notice under subsection (2) shall be recovered from the vendee by the registrar of the Revenue Officer, as the case may be, at the time of registration or attestation of mutation. 4. Section 12 is with regard to notice of intention to sell whereby procedure and method of notice is laid down while section 13(3) provides two weeks time for Talb-i-ishhad from the date of notice under section 32 or knowledge or whatever is earlier. Section 32 is regarding notice by the Registrar registering the sale-deed or the Revenue Officer attesting the mutation of sale, shall within two weeks of the registration or attestation in either case given public notice in the manner and procedure provided in subsections (2) and (3). 5. After perusal of the above provisions if it is crystal clear that notice under section 12 by the seller and section 32 by the Registrar have not been given and in absence of such compliance by the concerned, ascertainment of time period for the purpose of Talb-i-Muwathibat and Talbi-Ishhad required through probe and without evidence conclusion is not possible hence rejection of plaint under Order 7 Rule 11, C.P.C. in the circumstances is not called for. 1994 CLC Peshawar, 1730 and 1995 CLC Peshawar 541, 729 and 744 indicate that the above said provisions were not perhaps agitated before their Lordships while arguing the pre-emption cases. It is, therefore, directed for future guidance that the Registrar registering the sale document or the Revenue Officer attesting a mutation shall strictly follow the provisions of section 32 and the trial Court while adjudicating the suits must keep in mind the application of sections 12 and 32 of the Act ibid and avoid rejection of plaint under Order 7, Rule 11, C.P.C. in like cases. 6. It is, however, noted in the case in hand that the petitioner despite making the demands of "Talabs" after lapse of one year and seven months still he failed to mention date of knowledge of sale and the date of "Talib-i-Muwathibat" and also that he did not mention where and in what manner and in whose presence he declared his such intention. There is no single word in the plaint regarding the said salient features and mandatory requirements given thereof in the relevant provision as laid down in 1994 CLC Peshawar 1730. The petitioner should have been alert and vigilant of the situation and he should have filed the plaint properly in the light of section 13 (ibid). In absence of such requirements on the part of the plaintiff the cause of action and locus standi of the petitioner is not conspicuous, therefore, remanding the case on the point of limitation in view of above observations on sections 12 and 32 of the Act would be a futile exercise and would serve no purpose as the compliance of section 13 of the Act ibid has not been strictly made. 7. In view of what has been stated above, the judgments and decrees of both the Courts below are maintained but on different grounds and the revision petition being short of substance is dismissed. No order as to costs. (S.R.) Revision dismissed.
PLJ 1997 Peshawar 76 PLJ 1997 Peshawar 76 Present: sardar muhammad raza, J. BAKHT KARAM and 3 others-Petitioners versus FAZAL KARIM-Respondent Civil Revision No. 374 of 1995, decided on 7th April, 1996 . North-West Frontier Province Pre-emption Act, 1950 (XTV of 1950)-- S. 23--Civil Procedure Code (V of 1908), O.VII, R. 11-Non-deposit of pre emption money-Trial Court dismissed plaintiffs suit for non-deposit of specified amount in terms of Court's order-Appellate Court allowed one month's time to plaintiff for deposit of same-Validity-Trial Court had ordered dismissal of suit when order of deposit of specific amount was impugned before Appellate Court-Trial Court would have jurisdiction to proceed unless proceedings before him were stayed through specific order to that effectNo specific order was ever made for stay of proceedings- Pendency of appeal against interlocutory order would not by itself operate stay of proceedings in lower forum-Trial Court was bound to order deposit of pre-emption money at any time, before settlement of issues- Provision of S. 23, North-West Frontier Province Pre-emption Act, 1950, itself provides that non-deposit of pre-emption money within the time fixed by Court or within such further time as granted by Court, would entail rejection of plaint or dismissal of appeal, as the case might be- Where pre-emption money was not deposited and stay order was not obtained from Appellate Court, non-compliance thereof, was bound to result into dismissal of suit-Appellate Court had acted with illegality in allowing further time to pre-emptor for deposit of pre-emption money at a stage when even more than one year had passed after the default and when no extension of time had been asked by pre-emptor, before initial expiry. [P. 78] A & B Abdul Halim Khan, Advocate for Petitioners. Usman Khan, Advocate for Respondent. Date of hearing: 7.4.1996. judgment The instant revision filed by Bakht Karam vendee in a pre-emption suit against the order dated 19.7.1995 of the learned District Judge/Zilla Qazi, Swat arises in the background that Fazal Karim respondent had filed a pre-emption suit against Bakht Karam the petitioner. The sale-deed contained the sale consideration as Rs. 1,30,000. 2. Civil Court under PATA Regulation on 14.12.1993 directed the pre-emptor Fazal Karim under section 23 of the N.W.F.P. Pre-emption Act, 1950 to deposit a sum of Rs. 43,000 as pre-emption money on or before 8.1.1994. The pre-emptor went in appeal before the Additional Commissioner on 24.1.1994. Such appeal was pending when on 12.2.1994 the Courts constituted under PATA Regulation were abolished. The appeal still remained pending and the adjournments were sought by the appellantpre-emptor despite the fact that the forum had changed and the Additional Commissioner had time and again commented so. Ultimately on 21.9.1995 such appeal was returned. 3. In the meanwhile, due to change of forum, the original file was returned to the Court of Illaqa Qazi/Civil Judge, Khwaza Khela where the vendee filed an application for dismissal of suit under section 23(4) of the Pre-emption Act on the ground that pre-emption money was never deposited. The learned Civil Judge accepted the application and dismissed the suit vide order dated 2.4.1995. The learned District Judge/Zilla in appeal set aside the order vide his judgment 19.7.1995 and granted one month time to the pre-emptor to deposit the pre-emption money on or before 19.8.1995. Hence this revision. 4. The learned counsel for the respondent advanced three-fold arguments to the effect, firstly, that when the learned Civil Judge passed the order dated 2.4.1995, no suit was pending before him. This argument is not correct because during pendency of an appeal against interlocutory order the file can be returned to the Trial Court for proceedings or may not be requisitioned at all and hence the Trial Court can have jurisdiction to proceed unless such proceedings are stayed through specific order to that effect. No specific order was ever made for the stay of proceedings in the instant case. Rather, the very file was sent by the Appellate Court to the Trial Court and hence it had no impediment to proceed. 5. The second argument was that the Civil Judge could not pass the order of dismissal because the very appeal of the pre-emptor was pending in the first appellate forum. This also is not relevant because no order at all was obtained from the Appellate Court for stay of proceedings in the lower Court and hence the pendency of an appeal against interlocutory order does not by itself operate to stay the proceedings in the lower forum. 6. The last objection was to the effect that the first order dated 14.12.1993 of deposit of pre-emption money under section 23 of the Pre emption Act was also without jurisdiction because there was dispute over sale consideration and hence it could not be resolved without reference having been made to Jirga. The fact is that the matter was to be referred to Jirga only after resolving legal matters and only for determination of facts in issue. In the instant case the veiy section 23 of the Act provides that the deposit of pre-emption money was bound to be ordered at, or at any time before, the settlement of issues. Thus this order was bound to be made before the main dispute was referred to Jirga. 7. After having answered the objections of the learned counsel for the respondent, one comes to the real matter in issue whether the pre emption money was not deposited in contravention of the provisions of section 23 of the Pre-emption Act. The very section provided that the non- deposit or pre-emption money within the time fixed by the Court or within such further time as the Court may allow, shall entail upon the rejection of the plaint or the dismissal of the appeal, as the case may be. 8. In the instant case the amount of pre-emption money was to be deposited on or before 8.2.1994 but it was never so deposited. The appeal was filed on 24.1.1994 but no such order was obtained from the Appellate Court even till 21.9.1995, the date up to which the appeal remained with the Additional Commissioner. The Additional Commissioner had lost jurisdiction on 12.2.1994 but no application was filed before him till that date. In the circumstances when the pre-emption money was not deposited and when a stay order also was not obtained from the Appellate Court, the non-compliance thereof is bound to result into the dismissal of the suit. One can have reference in this behalf to Malik Almgir and 3 others v. Salam Gul and 10 others (1990 CLC 1915). 9. In this view of the matter the learned District Judge had acted with illegality as well as material irregularity in allowing further time to the pre-emptor for deposit of pre-emption money at a stage where more than a year had passed even after default and when no extension of time had ever been asked for by the pre-emptor before the initial expiiy. 10. The v revision petition is accepted, the impugned order dated 19.7.1995 is set aside and that order dated 2.4.1995 is restored with the modification that instead of dismissal of suit, the plaint shall stand rejected. (S.R.) Order accordingly.
PLJ 1997 Peshawar 79 (DB) PLJ 1997 Peshawar 79 (DB) Present: mian muhammad AJMAL and sardar muhammad raza, JJ Messrs ASIF FLOUR MILLS-Petitioner versus GOVERNMENT OF N.W.F.P.-Respondent Writ Petition No. 83 of 1996, decided on 16.9.1996 Constitution of Pakistan (1973)- Arts. 25 & 199-Quota was issued to all such Mills execept petitioner Flour Mills-Challenge to~Article 25 of the Constitution guarantees full equality before law to all citizens of country-Numerous business concerns were involved in similar business and production but petitioners were prevented from carrying on their business while other rival concerns were facilitated to go into production and to remain into production-Such discrimination was seriously offending Art. 25 of the Constitution-Authorities were directed to release wheat quota to petitioners. [P. 82] A M. Younis Khan Tanoli, for Petitioner. Tahir Hussain Lughmani, A.A.G for Respondent. Date of hearing: 5.8.1996. judgment Sardar Muhammad Raza, J.-Yadgar Mills at Chappar Road Haripur, Kanhar Flour Mills at Mansehra and M/s. Asif Flour Mills at Ganda Road, Chickrali Mansehra, after due approval by the Provincial Government, were constructed and established for the purposes of milling of wheat into flour and cleaning etc. Completion certificate was issued to all the three Mills by the Director/Assistant Director Industries. The three Mills aforesaid were included in the list of those 27 new/under installation flour mills which were approved by the Provincial Cabinet in its meeting held on 26-3-1992 headed by the then Chief Minister N.W.F.P. Thier names appeared at Serial Nos. 24, 26 and 27 of the list concerned. 2. After such completion and being ready for going into production, all the three Mills mentioned above applied for wheat quota to the authorities concerned i.e. Director Food, N.W.F.P., Peshawar but they were not supplied any quota despite repeated demands. Yadgar, Kunhar and Asif Flour Mills have challenged such action of the authorities as mala fide and have asked for a writ to be issued to the Government under Article 199 of the Constitution for issuance of such wheat quota. All the three writ petitions entered at Serial Nos. 52/96, 53/96 and 83/96 involving the same questions of law and fact, shall be disposed of through this single order. 3. This Court had called for the comments of the authorities concerned. Secretary to Government of N.W.F.P. Food, Agricultural, Livestock and Cooperation Department; Director Food, N.W.F.P., Peshawar and District Food Controllers, Haripur and Mansehra have filed their comments in the writ petitions of Yadgar and Kunhar Flour Mills while those of Asif Flour Mills were still awaited. A perusal of such comments has revealed that the case of all the three petitioners is fully identical and hence on such comments we propose to decide the matter in issue. 4. With the comments, the problem has been simplified by the Government-respondents to the effect that the approval of construction etc. of all the three Mills by the Government is admitted. The fact that the three Flour Mills were included into the list of 27 new/under installation Flour Mills duly approved by the Provincial Cabinet on 26-3-1992 is also admitted. The fact that all the three Mills applied for wheat quota is also admitted with the only difference that in case of Yadgar and Kunhar Flour Mills a summary was duty submitted to the worthy Chief Minister but the quota was refused while in case of M/s. Asif Flour Mills even the summary was not submitted. This denial of quota to the petitioners-Flour Mills is based on one and the only ground that the Provincial Cabinet in its meetings held on 26-3-1992 and 14-3-1992 and 14-9-1994 had imposed ban on issuance of wheat quota to the new Flour Mills. 5. The learned counsel for the petitioner vehemently challenged such conduct on the ground that the Flour Mills duly approved by the Provincial Government numbering 27, inclusive of the three petitioners- Mills were not at all new and the condition of ban could not have been imposed on them. The most vehement allegation was to the effect that despite imposition of such ban (having no force of law) wheat quota was issued to nine Flour Mills which were never included even in the approved list of 27 Mills. All the three petitioners have given the names of such nine Flour Mills as (1) Jamal Flour Mills Nowshehra, (2) Rizwan Flour Mills, Peshawar, (3) Shahabad Flour Mills, Peshawar, (4) Juro Flour Mills, Swabi, (5) Malakand,Flour Mills, Malakand, (6) Super Al-Qurash Flour Mills, Haripur, (7) Komal Flour Mills, Haripur, (8) New Super Al-Qurash Flour Mills, Haripur and (9) Shaikh Abad Flour Mills, Charsadda. This factual aspect of the allegation stands commented upon by the authorities concerned to the effect that summary was moved to the Chief Minister, N.W.F.P. and the Chief Minister being the competent authority allowed regular quota of wheat to the aforesaid Flour Mills meaning thereby, that this aspect of the case is also admitted. The learned Assistant Advocate-General appearing on behalf of the respondent has added that a summary in case of Yadgar and Kunhar Flour Mills was moved to the Chief Minister, N.W.F.P. who declined to allow the desired quota while no summary at all was prepared regarding Asif Flour Mills by the authorities concerned for presentation before the Chief Minister, N.W.F.P. 6. So far as the preparation of summary and the permission of quota is concerned, the respondent, alongwith their comments have annexed the decisions of the meetings of the Provincial held on 26th March, 1992 which, for convenience of ready reference, are reproduced below :- (i) approved the recommendations of the committee contained in para. 3(1) of the summary regarding distribution of wheat quota to the flour mills; (ii) decided that the Food and Agriculture Department should obtain permission of the Chief Minister on case-to-case basis for issuance of wheat quota to the 27 new/under installation flour mills in whose favour the Food and Agriculture Department had already issued No-Objection Certificates; (iii) decided that in future the Food and Agriculture Department should not issue NOC for wheat quota to new flour mills; Through such decisions permission of the Chief Minister was considered necessary on case-to-case basis for issuance of wheat quota to the 27 new/under installation Flour Mills, in whose favour the Food and Agriculture Department had already issued No-Objection Certificates. 7. Extensive arguments were addressed before us in order to see the legal value of the Cabinet decisions aforesaid. The long and short of whatever decision is taken in the Cabinet is that if approved by the Governor, it can be converted into Ordinance by the latter and thereafter it takes the shape of law. A Cabinet decision if placed before the Assembly and converted into an Act would also take the shape of law. In all other cases it simply amounts to an internal working arrangement between the Department and the Chief Minister-in-Cabinet. In the instant case the decision taken by the Cabinet on 26th March, 1992 has neither been translated into an Act nor into an Ordinance and thus would only be appreciated as a departmental arrangement. 8. Keeping in view the aforesaid legal position, we are led to observe that 27 new/under installation Flour Mills were approved by the Provincial Government in the year 1992. Under such approval the construction started and was ultimately completed in-between 1994 and 1995. as per the completion certificates issued. The present three Flour Mills are one of such Mills vt hich were duly approved by the Provincial Government. The quota is issued to all such Mills except the present three petitioners. Whatever be the reasons prevailing with the Provincial Government for refusal of quota to the present petitioners, adding insult to the injury is that nine Flour Mills mentions i above not included in the approved list were given an out-of-turn quota. Tiiis, in simple words is an utter discrimination wereby the petitioners are made to run into loss of millions, right under the protective entity of the Government which, under the principles of natural justice, is supposed to be equally protective for all involved under similar circumstances. The learned Assistant Advocate-General could not give us a single reason for the discrimination metted out to the petitioners. 9. Article 25 of the Constitution of Pakistan guarantees full equality before law to all the citizens of the country. In the instant case numerous business concerns are involved in similar business and production but the three petitioner-Mills are prevented from carrying on their business while the other rival concerns are facilitated to go into production and to remain into production. This is a discrimination seriously offending Article 25 of the Constitution. 10. Accordingly, all the three petitions are accepted and the respondents are directed to release wheat quota to the petitioner-Mills. (K.K.F.) Petitions accepted.
PLJ 1997 Peshawar 82 (DB) PLJ 1997 Peshawar 82 (DB) Present: mian muhammad ajmal and khalida rachid, JJ. KHUDA BUKHSH and 4 others-Appellants Versus DR. PEER MUHAMMAD KHAN and 33 others-Respondents R.F.A. No. 60 of 1994, dismissed on 10.3.1997. (i) Default- -Any body who waits for last day to do act which he is required to do under law if fails to perform that act within given time due to any lapse then he has to suffer consequences of his default. [P. 88] A (ii) N.W.F.P. Pre-emption Act, 1987 (X of 1987)--
N.W.F.P. pre-emptor Act, 1987 has been extended to PATA CProvincially Administer Tribal Areas) through Notification No. Legis: l(9)/70-Vol. VIII dated 25.9.1994. [P. 89] C (iii) N.W.F.P. Pre-emption Act, 1987 (Act X of 1987)-- -S. 13-Under Section 13 of Act X of 1987, right of pre-emption of preemptor would stand extinguish unless pre-emptor had made demands of pre-emption in form of (i) Talb-i-Muwathibat (ii) Talb-i-Ishhad and Talbi-Khusumat, and right of pre-emption would only become exercisable if aforesaid talabs have been roperly and adequately made, and in absence thereof or there being any defect or deficiency therein, right of pre emption would extinguish. [P. 90] E (iv) N.W.F.P. Pre-emption Act, 1950 (XIV of 1950)-- -S. 23(4)-Non-complaince of order of deposit of probable sale value- EffectConsequence provided by sub-section (4) of section 23 of N.W.F.P. Pre-emption Act, 1950 for non-compliance of order of deposit of probable sale value was to reject plaint or dismiss appeal, as case may be, which was mandatory in nature-Appellant lawfully failed to honour orders of court in time-Held: Learned court was justified to non-suit pre emptions. [P- 88] B (v) N.W.F.P. Pre-emption Act, 1987 (X of 1987)- S. 35(3)-Pre-emption-Case of-Repealed N.W.F.P. Pre-emption Act, 1950-Status of-Cases and appeals filed under repealed N.W.F.P. Pre emption Act 1950 in which final judgment/decree had been passed, further proceedings relating to such cases and appeals was to be governed under repealed Act and continued in accordance thereof, arid where no such judgment/decree in cases and appeals have been passed and were pending at commencement of new Act, they would lapse and suit would stand dismissed, except those wherein right of pre-emption has been claimed under new Act, 1987. [P. 89] D . Mian Muhammad Younas Shah, Advocate and Irbab Hussain Shah, Advocate for Appellant. Mr. Abdul Sattar Khan, Advocate for Respondents. Date of hearing: 10.3.1997. judgment Mian Muhammad Ajmal, J.--This Regular First Appeal is directed against the judgment and decree of the learned Senior Civil Judge, Swat dt: 7.7.1994, whereby on acceptance of the application of the defendant/respondent No. 1, the suit of the plaintiffs-appellants was dismissed. 2. Facts of the case are that Khuda Bakhsh and 4 others plaintiffsappellants instituted a suit for possession through pre-emption on 25.2.1992 in the Court of EAC exercising the powers of Deputy Commissioner. Swat under PATA Regulation No. II of 1975. As per order sheet dated 1,10.1992 defendant/respondent No. 1 moved an application that plaintiffs have not deposited the sale price/pre-emption amount of the land in dispute hence, they should be directed to deposit l/3rd of the sale price of Rs. 15 laces in cash and to furnish Bank guarantee for the remaining 2/3rd. The plaintiffs were directed to submit written reply to the application and to argue it on 10.10.1992, but the plaintiffs filed an application before the Deputy Commissioner, Swat on 8.10.1992 for transfer of the case from the Court of EAC-I to some other Court as they had allegedly lost confidence in him due to the fixation of the case for arguments on the application, however the application was dismissed on 9.12.1992 by the Deputy Commissioner. The plaintiffs filed an appeal against the order of rejection of application before the Additional Commissioner, Malakand Division, who vide his order dated 13.3.1993 accepted the appeal and transferred the case from the Court of EAC-I Swat to EAC (Revenue) Swat. On 9.6.1993 the defendant-respondent No. 1 submitted his written statement and the plaintiffs were directed to deposit l/3rd of the sale price in cash and to furnish Bank guarantee of the remaining 2/3rd within a week. Against this order the plaintiffs filed an appeal before the Additional Commissioner, Malakand Division who vide his order dated 17.10.1993 modified the order to the effect that the plaintiffs should deposit l/5th of Rs. 15 lacs or security within one week from 10.11.1993 in the lower Court. Defendant/respondent No. 1 filed an application for clarification of this order as it could not be construed whether l/5th in cash was to be deposited or security was to be furnished and for remaining 4/5th, the order was absolutely silent. The Additional Commissioner vide his order dated 18.12.1993 clarified that in the earliest order it was ordered that plaintiffs should deposit l/5th in cash of Rs. 15 lacs but due to typing error it was omitted. It was redirected that the plaintiffs should deposit l/5th of Rs. 15 lacs in cash before 18.1.1994 and submit security for remaining 4/5th, in the lower Court. The plaintiffs assailed this order in a revision petition before Additional Secretary Home who vide his order dated 19.1.1994 modified the order directing the plaintiffs to deposit the l/5th of Rs. 15 lacs within a period of two months. The plaintiffs through an application dated 19.3.1994 sought permission from the Additional Deputy Commissioner, Swat to allow them to deposit the amount, the application was marked to the Reader/Mo harrir for necessary action. On 20.3.1994 the EAC observed that the Courts constituted under PATA Regulation-U of 1975 cease to have jurisdiction in view of the judgment of the Supreme Court thus it cannot pass any order and the Court to which the suit shall be transferred shall pass the order for the deposit of the pre-emption money. On 14.5 1994 the EAC (Revenue) Swat with the concurrence of the learned counsel for the parties transferred the case to the Senior Civil Judge, Swat for further proceedings. On 17.5.1994 the Senior Civil Judge, Swat directed the plaintiffs to deposit l/5th of Rs. 15 lues within three days subject to valid objections of the defendant as the amount has not been deposited within a specified period in the Court having the jurisdiction under PATA Regulation. The plaintiffs deposited Rs. 3 lacs on 18.5.1994 and the issues were framed on 25.5.1994. The defendant/respondent No. 1 filed an application on 9.6.1994 for the dismissal of the suit on account of non-deposit of sale consideration as directed by the Additional Secretary Home which was accepted vide impugned order and the suit was dismissed by the Senior Civil Judge, Swat on 7.7.1994. The plaintiffs aggrieved of the judgment and decree dated 7.7.1994 filed an appeal before the District Judge, Swat on 13.7.1994 which was later on withdrawn and accordingly the appeal was dismissed as withdrawn on 22.9.1994 by the Additional District Judge, Swat. 3. Learned counsel for the appellants contended that the Court constituted under PATA Regulation after ceasure was divested with the jurisdiction to transfer the case to the civil Court. However, it could return the plaint to the plaintiffs for proper representation before the competent forum. Further contended that the appellants in compliance with the order of the Court deposited the pre-emption money and thus they could not be non-suited. ', 4. On the other hand, learned counsel for the defendant respondent No. 1 argued that NWFP Pre-emption Act, 1987 has been extended to the PATA area vide Notification No. Legis: l(9)/70-Vol:VlII dated 25.9.94, as such, in view of the judgments of the August Supreme Court of Pakistan in cases of Government ofN.W.F.P. vs. Said Kamal Shah (PLD 1986 SC 360), Rozi Khan v. Syed Karim Shah (1992 SCMR 445) and Sardar Alt vs. Additional Secretary, Home and Tribal Affairs Department (1996 SCMR 1480), the suit instituted under the NWFP Pre-emption Act, 1950, since repealed, had to be dismissed, hence the impugned judgment/decree warrants no interference. Further contended that the plaintiffs have alleged that prior to the institution of the suit they served a notice upon the respondents which at the most can be termed as 'Talab-i-Ishhad\ but in absence of the first 'Talab' i.e. Talab-i-Muwathibat even if second Talab has been made, it would not make the case of the plaintiffs maintainable as second talab is made in confirmation to the first talab and when there is no first talab, there cannot be any confirmation thereof. Further contended that under NWFP Preemption Act, 1987 the Court had no jurisdiction to extend the period for deposit of preemption money. He urged that the conduct of the plaintiffs throughout has been to avoid the compliance of the Court orders and to defeat them on one pretext or the other. He urged that if the argument of the learned counsel for the appellants is accepted that the transfer of the case was illegal from the PATA forum to the civil Court, as it ceased to have jurisdiction to transfer it, then it is equally applicable to the plea taken by the appellants counsel that plaint should have been returned. The Court if had no jurisdiction to transfer the case, it had no jurisdiction either to return the plaint. 5. Wh have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case. 6. The resume of the case history given above in para 2 would reflect the conduct of the appellants that they have been constantly and deliberately avoiding the compliance of the orders of the Courts regarding deposit of preemption money and to furnish security within the period allowed to them by various Courts. Their modus operandi throughout has been to flout the deposit orders by challenging them before the higher forum in order to avoid compliance of the same. On the submission of the application by respondent No. 1 on 30.8.1992 seeking direction against the pre-emptors to deposit l/3rd of Rs. 15 lacs in cash and to furnish Bank Guarantee for the remaining 2/3rd, plaintiffs prepared an application on 8.10.1992 before the Deputy Commissioner, Swat for transfer of the case on the ground that since the Court had fixed a dated for submission of written reply and arguments for 10.10.92, therefore, they have lost confidence in the Court, which application was dismissed by the Deputy Commissioner Swat on 9.12.1992, holding that there was no good ground for the transfer of the case. The plaintiffs filed an appeal against the aforesaid order before the Additional Commissioner who in his order dated 13.3.1993 observed that no progress has been made in the suit and due to applications the suit is shuttling between the various courts. The appeal was accepted and the suit was transferred from the Court of EAC-I to EAC (Revenue) Swat who passed the order of deposit of pre emption money on 9.6.1993 directing the plaintiffs to deposit l/3rd of Rs, 15 lacs in cash and 2/3rd in the form of Bank guarantee within a week. Instead of complying the order and depositing the pre-emption money, the plaintiffs appellants filed an appeal before the Additional Commissioner who modified the order by reducing the deposit of preemption amount from 1/3rd to l/5th. It may be mentioned here that appellants repeatedly committed default to deposit the pre-emption money in Court. As per order dated 9.6.1993 the appellants were bound to deposit the pre-emption money within a week which was not complied with and an appeal was filed assailing the same before the Additional Commissioner, who, as per impugned judgment herein, suspended the order of the lower Court and ordered the maintenance of status quo upto 3.7.1993. There is nothing on the record to suggest that the statue quo order was extended or the order dated 9.6.1993 was held in absence beyond 3.7.1993. In absence of any such order it can be safely presumed that there was no suspension order beyond 3.7.1993 and merely an appeal/revision would not render the order of deposit to become inoperative during the pendency thereof, unless specific suspension order was in the field. The Additional Commissioner in his clarification order dated 18.12.1993 re-directed the plaintiffs to deposit l/5th of Rs. 15 lacs in cash and to furnish security for the remaining 4/5th before 1&. 1.1994 but this order was yet not complied with and the same was assailed before the Home Secretary who extended the period by two months for the deposit of the pre-emption amount vide his order dated 19.1.1994. There is nothing on the record to indicate that the order of the Additional Commissioner dated 18.12.1993 was either suspended or held in abeyance, as such failure to deposit the pre-emption money before 18.1.1994 rendered the suit/appeal of the plaintiffs-appellants liable to dismissal u/s 23 (4) of the N.W.F.P. Pre emption Act, 1950. Even the final order passed by the Additional Secretary, Home and Tribal Affairs, under the PATA Regulation, was not complied with in the extended period of two months. On 19.3.1994 the pre-emptors filed an application before the Additional Deputy Commissioner, Swat seeking permission for depositing Rs. 3 lacs, which was marked to the Reader/Moharrir for necessary action. The Presiding Officer was on leave on 19.3.1994, therefore, the Reader through his note fixed the application for the next date i.e. 20.3.1993. The trial Court on that date observed that the Court has been divested of the jurisdiction, in view of the judgment of the Supreme Court, therefore, it cannot proceed to pass any order on the application. The pre-emptors cannot claim any premium through this application which was made on 19.3.1994 i.e. after the expiry of the extended period of two months which period had expired when the application was filed. Any body who waits for the last day to do the act which he is required to do under the law if fails to perform that act within the given time due to -"any lapse then he has to suffer the consequences for his default. The consequence provided by sub section (4) of section 23 of the N.W.F.P. Pre emption Act, 1950 for non-compliance of the order of Deposit of probable sale value was to reject the plaint or dismiss the appeal, as the case may be, B which was mandatory in nature. Since the appellants awfully failed to honour the orders of the Courts in time, therefore, learned Court was justified to non-suit the pre-emptors. 7. The contention of the learned counsel for the appellants that the Court under PATA Regulation had no jurisdiction to transfer the case to civil court, has no merit. Firstly, the Court under PATA Regulation transferred the case to the civil court with the concurrence of the learned counsel for the parties and as such learned counsel cannot turn around at this stage to object to such transfer of the case. Secondly, his objection from another point of view hits his own case, as the court which ceased to have jurisdiction ceases to have jurisdiction for all intent and purposes. If the transfer of case by it was without jurisdiction, the return of the plaint would have been equally without jurisdiction. The argument of the learned counsel, if is accepted then there was no competent suit before the civil court and it deserved to be dismissed outright being incompetent and un maintainable. Learned counsel half heatedly conceded that a fresh suit should have been filed in the civil court after the repeal of PATA Regulation II of 1975, thus he in a way admitted that suit was bad, incompetent and unmaintainable. 8. NWPF Pre-emption Act, 1987 has been extended to PATA a read through Notification No. Legis: 1 (9)/70-Vol.VIII dated 25.9.1994, and no decree in the case had been passed, till then, hence this appeal under sub section (3) Section 35 of the Act ibid would lapse and the suit of the preemptor would stand dismissed, for convenience sake section 35 of the Act ibid is reproduced hereunden- "35. Repeal.--(l) The North-West Frontier Province Pre emption Act, 1950 (NWFP Act X of 1950), is hereby repealed. (2) In the cases and appeals filed under the Law referred to in sub-section (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not converd undersub-section (2) and instituted under the law, referred toin sub-section (1) and which immediately beforethe commencement of this Act were pending beforea Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act." In view of the above law, the cases and appeals filed under the repealed NWFP Pre-emption Act 1950 in which final judgment/decrees had been passed, further proceedings relating to such cases and appeals was to be governed under the repealed Act and continued in accordance thereof, and where no such judgment/decree in the cases and appeals have been passed and were pending at the commencement of the new Act, they would lapse and suit would stand dismissed, except those wherein right of pre-emption has been claimed under the new Act. The above section of law came under consideration before the Supreme Court of Pakistan in Rozi Khan's case reported in (1992 SCMR 445), wherein it was held as under:- "We observe that in sub-section (3) of section 35 it is provided that other cases and appeals not covered under sub-section (2) and instituted under the Act of 1950 which were pending before a Court before the commencement of the Act of 1987 shall lapse and suits of pre-emptors shall stand dismissed, except those in which the right of pre-emption is claimed under the provisions of Act X of 1987." 9. In this case right of pre-emption has not been claimed under the new Act but under the repealed Act, wherein no decree has been passed so far, hence this appeal would stand lapse and the suit would stand dismissed. 10. Under Section 13 of the Act X of 1987, the right of pre-emption of the pre-emptor would stand extinguish unless pre-emptor had made demands of pre-emption in the form of (i) Talb-i-Muwathibat (ii) Talb-i- Ishhad and (iii) Talb-i-Khusumat, and right of pre-emption would only become exercisable if the aforesaid 'talabs' have been properly and adequately made, and in the absence thereof or there being any defect or deficiency therein, the right of pre-emption would extinguish. The plaintiffs have alleged in the plaint that they made 'Talb-i-Muwathibaf after they came to know about the sale and thereafter they made 'Talb-i-Ishhad' through notice. 'Talb-i-Muwathibat' is the immediate demand by a preemptor in a sitting or meeting in which he comes to know about the sale declaring his intention to exercise his right of pre-emption. The plaintiffs have not said even a word in the plaint or in the alleged notice that when, where, in which sitting and before whom 'Talb-i-Muwathibat' was made as it is required to be made immediately on attaining the knowledge of sale in the sitting or meeting. The time and the place of sitting or meeting and its participants, before whom the right of pre-emption was declared to be exercised, has not been disclosed by the plaintiffs, thus 'Talb-i-Muwathibat' as envisaged by the law has not been made, and likewise the alleged notice of 'Talab-Ishhad is also defective and deficient as it has not been attested by two witnesses nor it appears to have been sent under registered cover acknowledgment due to the vendee. In the circumstances the required talabs which are condition precedent for asserting the right of pre-emption have not been set up in accordance with law, as such the right of pre-emption shall stand extinguished. Even prior to the extention of NWFP Pre-emption Act 1987, the August Supreme Court of Pakistan held in of Sardar Ali and others versus Additional Secretary Home and Tribal Affairs Department reported in 1996 SCMR 1480, that 'Talabs' are preconditions for asserting the right of pre-emption under the Muslim law and failure to make the requisite 'Talabs' in the mode and the manner prescribed under the law would render the pre-emptors" right to extinguish. The observations of the apex court of the country in the aforesaid ruling are to the following effect :- "3. In support of this petition, the learned counsel for the petitioners contended that as the NWFP Pre-emption Act, 1987 has not been extended to the Provincially Administered Tribal Areas the judgment of the learned Peshawar High Court was untenable merely on the ground that Talabs had not been made by the pre-emption/ petitioners. The contention of the learned counsel for the petitioners is untenable, in that, it is now settled once for all that the requirement of Talabs being a sine qua non for the enforcement of the right of pre-emption recognized by the Muslim Law, its non-compliance had the effect of extinguishing the pre-emptive rights of all the pre-emptors. This statement of law makes no distinction between the cases under the statutory law of pre-emption or under the Muslim Law, pure and simple. Admittedly, the areas under Regulation No. II of 1975 are governed by the pre-emption law under the general Muslim Law under which, as stated earlier, the requirement of Talab is one of the essentials for exercising the right of pre-emption. It would not, therefore, make any difference if the NWFP Pre-emption (Act No. X of 1987) has not been extended to the Provincially Administered Tribal Areas," 11. After the extension of NWFP Pre-emption Act 1987, it has become all the more necessary and obligatory to make the talabs as required under Section 13 of the Act ibid as without talabs right of pre-emption would extinguish. After the application to the Act ibid the cases and appeals instituted under the old law since repealed, pending before a court would lapse and suits of the pre-emptors would stand dismissed, except those in which right of pre-emption has been claimed under the provisions of the new Act, as enunciated by sub-section (3) of Section 35 of the Act ibid. As stated above, in this case right of pre-emption has not been claimed under the provisions of the new Act, therefore, this appeal is hit by Section 35(3) of the Act ibid. In view of the above discussion, we do not find any substance in this appeal which is also hit be Section 35(3) of NWFP Pre-emption Act, 1987. Accordingly it is dismissed with no order as to costs. (K.K.F.) Appeal dismissed.
PLJ 1997 Peshawar 92 PLJ 1997 Peshawar 92 [D.I. Khan Branch Registry] Present: malik hamid saeed, J. SHAH NAWAZ KHAN KUNDI-Petitioner versus GOVT. OF N.W.F.P. THROUGH CHIEF SECRETARY, N.W.F.P. PESHAWAR and 2 others-Respondents W.P. No. 106 of 1991, dismissed on 18.3.1997. Constitution of Pakistan , 1973- Art. 212(2) read with Art. 199-Civil Servant-Case of--Contention that his temporary promotion to post of EAC should not be treated on 'Adhoc' and be declared as regular posting from the date he has been promoted to the post of Extra Assistant-Held: Impugned order concerns with terms and conditions of service of petitioner which is not open to challenge under Article 199 of Constitution but could be challenged under Art. 212 before Service Tribunal-Petition dismissed [Pp. 92 & 94] A & B Mr. Gohar Zaman Khan Kundi, Advocate for Petitioner. Mr. Shaukat Hayat Khan Khakwani, Advocate for Respondents Date of hearing: 18.3.1997. judgment By this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner had prayed for directing the respondents to give to him his due seniority from the date it became due. 2. Facts of the case are that the petitioner was appointed as a Tehsildar directly through a notification dated 5.8.1965 and regular seniority list was published by the Board of Revenue NWFP in the year 1978. He was promoted in due course of time as EAC on 4.7.1979 and in the seniority list of P.C.S .( EB) of NWFP prepared during 1982, his name was missing. After unsuccessive representations to the quarters concerned, he filed an appeal before the NWFP Services Tribunal for redress of his grievance but in vain as his services by that time as EAC were not regularized. Unsuccessful to get his services regularized through making representation to Govt., he again filed an appeal before the Tribunal ibid, but that too was dismissed for want of jurisdiction in ordering the Government to give promotion to him from a particular date. Thereafter, he filed an appeal before the Supreme Court of Pakistan where the Provincial Selection Board was directed to dispose of his case within two months. There his case was not considered, due to his indifferent, service record, for regular appointment and hence this Constitutional Petition on the ground that his temporary promotion to the A .post of EAC should not be treated on 'Adhoc' and be declared as regular posting from the date he has been promoted to the post of Extra Assistant- Commissioner. 3. Mr. Gohar Zaman Khan Kundi, Advocate appearing on behalf of the petitioner, vehemently stressed that the order of Provincial Selection Board, refusing regularization of his client in E.A.C (E.B) Cadre due to his indifferent service record, despite the fact that on his recruitment as a Tehsildar directly his promotion to the post of EAC was temporary and not on adhoc basis, is unwarranted. His contention was that the objection of the respondents that the petitioner's case could be considered only after getting his services regularized is absolutely incorrect, because he was holding the regular post of Tehsildar and promoted therefrom in accordance with the rules by a competent authority and withholding promotion to him is against all the canons of justice and in violation of the Fundamental Rights guaranteed by the Constitution. 4. We are, however, not persuaded with the arguments advanced by the petitioner's counsel and reproduce Article 212 of the Constitution which read as under : "ARTICLE - 212 - ADMINISTRATIVE COURTS AND TRIBUNALS. (1) Notwithstanding anything hereinbefore contained, the appropriate legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:-- (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan , including disciplinary matters; (b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or; (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law; '(2) ....................................................................... - ...... (3) ............................. being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal". 5. From perusal of aforementioned Article 212 of the Constitution of Islamic Republic of Pakistan 1973, we are clear in our unxiu that the jurisdiction of all Courts including this Court has been taken away in matters in respect to which Service Tribunal has been empowered Subclause (2) of Article 212 ibid also excludes the jurisdiction of this Court under Article 199 thereof. 6. We, therefore, hold that the impugned order concerns with the terms and conditions of service of the petitioner which is not open to 3 challenge under Article 199 of the Constitution but could be challenged under Article 212 before the Services Tribunal. 7. In consequence, we are left with no option but to dismiss this writ petition for want of jurisdiction. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 94 PLJ 1997 Peshawar 94 Present: sardar muhammad raza, J. MAROOF ETC.-Petitioners versus GHULAM MUHAMMAD ETC.-Respondents C.R. No. 85 of 1992, dismissed on 12-10-1996. Civil Procedure Code, 1908 (V of 1908)-- -S. 115-Pre-emption-Suit for-Decreed to-Revision against-Respondent, by merely being an owner in "Shamilat deh" cannot exercise any right of milk' or ownership in any Khata in which he is not a co-sharer at all- Petitioner, rival pre-emptor by making a purchase in khata even without a share in 'Shamilat' was in fact a co-sharer in Khata, hence he was wrongly declared to be not a co-sharer-But he had failed to obtain a decree on or before 31-7-1986 and thus without resorting to performance of 'talb-i-muwathibat' and 'talb-i-ishkad' he cannot exercise right of preemption-Both pre-emptors fail-Petition dismissed and cross objections of vendee accepted by setting aside judgments and decrees of courts below. [Pp. 96 & 97] A & B Muhammad Hussain Lughmani, Advocate for Petitioners. Mr. Muhammad Aslam Khan, Advocate for Respondent No. 1. Mr. Mubarak Ahmed Lughmani, Advocate for Respondents No. 2 to 7. Date of hearing : 12-10-1996. judgment One Ghulam Muhammad s/o Khaista Gul of Manchoora cum Tarawara Oghi, through separate mutations # 2382 & 2402 attested on 18-7-1982 purchased property in Khata 174 Khasras # 419,421, 421/1 & 422 of Village Tarawara from different vendors named Fazal-ur-Rehman and Abdul Manan respectively. 2. The aforesaid transactions were pre-empted through suit # 276/1 by one Abdul Hassan and through suit # 280/1 by another rival pre-emptor Gul Hassan. The suits were decided by Mr. Farooq Sarwar Khan learned Civil Judge, Mansehra on 8-5-85. Suits of Abdul Hassan were decreed holding him to be a co-sharer while those of Gul Hassan were dismissed holding him not to be a co-sharer. The cases were remanded on 23-2-86 by Mr. Amir Gulab Khan on a flimsy ground and after remand the same decision was maintained by Mr. Saleem Jan Khan, Civil Judge, Mansehra vide his judgment dated 10-4-1988. Mr. Alam Zeb Khan, Additional District Judge, Mansehra in his judgment dated 18-3-89 upheld the decision but in a revision before the High Court Honourable Mr, Justice S. Ibne Ali on 11-12- 1989 again remanded the case on the ground that these be decided in the light of the latest laws prevailing regarding 'talbs' etc. 3. Mr. Jehangir Khan, Additional District Judge, Mansehra vide his judgment dated 21.3,1992 once again uphold the same initial findings of the trial Court. The defeated rival pre-emptor Gul Hassan was dead by then and hence Maroof etc, his legal heirs, filed two Civil Revisions # 85/92 & 86/92. Ghulam Muhammad vendee also filed cross-objections # 4/92 & 5/92, all challenging the decrees granted in favour of Abdul Hassan. 4. I would first take up the case of Abdul Hassan pre-emptor. Fard Jamabandi for the year 1968-69 (Ex.PWl/1) and the statement of Abdul Qayyum PW2, the general attorney of Abdul Hassan the Pre-emptor, if seen together, would reveal that the actual transactions had taken place in khata 174 in which Abdul Hassan is not at all a co-sharer. He intact happened to be a co-sharer in khata 156 as revealed in thejamabandi Ex. PWl/2. One thing is categorically settled from the revenue record as well as from the statement ofPatwari Halqa that Abdul Hassan pre-emptor is not a co-sharer in khata 174 wherein the sale had taken place. 5. On the other hand he is an owner in khasra # 187/341-369 which is a "shamilat Tarf Tarawara". The Courts below have granted him a decree because of being a co-sharer not in the khata itself but in the "Shamilat Deh Tarf Tarawara". Whether such an owner can exercise right of pre-emption in the given circumstances. In this behalf Mr. Muhammad Hussain Lughmani learned counsel for Gul Hassan, the rival pre-emptor has placed reliance on "Ghulam Sarwar vs. Allah Bakhsh" (PLD 1956 Peshawar 64) where the term co-sharer in section 12 of the Pre-emption Act was held attributed to co-sharers holding similar title and not inferior or superior, as the case may be. The terms "Adna Malik" and "AJila Malik" were discussed and explained and held to be connotating different rights which could never b,e called joint. While referring to the above case, the learned counsel attempted to reiterate that a person's co-sharership in 'Shamilata Deh' cannot be held to be a co-sharership in a specific khata in the village other then that of shamilat. This was with regard to attack on Abdul Hassan. 6. The Courts below while granting a decree in favour of Abdul Hassan, had also held that Gul Hassan was not a co-sharer, whereas as per jamabandi Ex. PW 1/1 it was Gul Hassan who was co-sharer and not Abdul Hassan. The only different was that Gul Hassan had purchased property from one Abdul Latif in the column of cultivation and without having purchased any share in shamilat. This verdict was assailed on the basis of "Muhammad Muzaffar Khan vs. Muhammad YousafKhan" (PLD 1959 SC 9) wherein it was held that vendee of specific plot becomes a co-sharer in that khata and can retain possession of that specific plot until a petition of khata takes place. In this view, it was alleged that Gul Hassan even without purchasing various khasras in khata # 174 in cultivation column. What is a holding, was exhaustively discussed and held in "Muhammad Yousaf us. Sikandar" (PLD 1970 Peshawar 160) that holding is khata and one khata is one holding regardless of how many khasras it contains. In the light of such observation it was held that a person contiguous to one khasra becomes contiguous to the whole khata of which that khasra forms a part. In view of these verdicts as well Gul Hassan is a valid co-sharer in khasra 174 even if purchased without any share in shamilat. 7. In "Sikandar vs. Sultan Muhammad" (PLD 1974 SC 11) it was held that where pre-emption is claimed, the pre-emptor must have the "milkiet" or ownership in that property on account of which he claims the right of pre-emption. According to the verdict no right weaker than "milk" or ownership was recognized in connection with the exercise of right of pre emption. In the case of "Sikandar" "milk, "milkiet" was discussed with reference to a mansion or building. Dacca High Court had confined such right to a mansion while a Full Bench of Bombay High Court "Dhashrat Lai Jhagal Lai Vs. Bai Dhendo Bai" (AIR 1941 Bombay 262) had extended such right to the landed property as well. So with reference to a 'milkiet', any right weaker than a 'milk' should not be equated with 'milk' or 'milkiet'. This was with reference to the right of Abdul Hassan pre-emptor who provenly had no right in the khata itself but was an owner in shamilat. By being an owner in the khata, he might be able to exercise certain rights in shamilat Deh but being an owner in "shamilat deh" alone, one cannot exercise any right in various holdings in the village. 8. In the light of the law discussed before me, I am convinced and holds a view,that Abdul Hassan by merely being an owner in 'shamilat deh' cannot exercise any right of 'milk' or ownership in any khata in which he is not a co-sharer at all. I am further convinced and hold that Gul Hassan rival pre-emptor by making a purchase in the khata even without a share in 'shamilat' was infact a co-sharer in the khata, a property essentially in dispute in the present case. Gul Hassan having made purchase in the cultivation column could retain the possession thereof and could ask for even the partition of khata at any time in future. In the light of such findings and legal position on the subject, Abdul Hassan was wrongly declared to be a successful pre-emptor and Gul Hassan was wrongly declared to be not a cosharer. 9. Such being the conclusion qua the individual right of pre-emption of the rival pre-emptors, one can safely hold that the pre-emption suit of Abdul Hassan cannot succeed. 10. Coming to the rival pre-emptor Gul Hassan, one is faced with an unavoidable circumstance that he had failed to obtain a decree on or before 31-7-1986 and thus without resorting to the performance of 'talb-imuwathibat' and 'talb-i-ishhad', he cannot exercise the right of pre-emption. Although this condition applies to Abdul Hassan the pre-emptor as well, in addition to his not being a co-sharer yet the non-fulfilment to talbs cannot be used against him because he had already obtained a decree once and for the first time on 8-5-85. Gul Hassan pre-emptor cannot avoid under any circumstances the effect of verdict in "Government of N.W.F.P. through Secretary, Law Department vs. Malik Said Kqmal Shah" case (PLD 1986 SC 360) it was for such consideration that this court had remanded the case on 11-12-1989. 11. Consequently both the pre-emptors fail and hence civil revisions 85 & 86 of 1992 filed by Gul Hassan rival pre-emptor are hereby dismissed. The cross-objections # 4/92 & 5/92 filed by Ghulam Muhammad vendee are accepted, the judgments and decrees of the courts below are set aside and both the pre-emption suits of both the pre-emptors are hereby dismissed. No order as to costs. (MYFK) Petition dismissed.
PLJ 1997 Peshawar 97 PLJ 1997 Peshawar 97 Present: NASIR UL MULK, J. SARDAR and others-Petitioners versus GOVERNMENT OF N.W.F.P. and others-Respondents W.P. No. 38 of 1995, dismissed on 8-12-1996. Land Acquisition Act, 1894 (I of 1894)- Ss. 5, 5A, 6, 9, 10, 11, 18, 40 & 41-Acquisition of land for installation of Cement Factory-Challenge to-Petitioners had fully participated in acquisition proceedings-Assessment of situation for purpose exercising power is subjective and lies with CommissionerLand was being acquired for installation of a big project that was to be installed on foreign &4>»ial--Sigmfieant progress has been made towards completion of project-Construction has been raised on site and L.C's have been opened for import of machinery--248 owners including 150 petitioners, have also withdrawn compensation awarded to them--Held: In such circumstances, petitioners by their conduct have disentitled themselves to equitable relief-Petition dismissed. [P. 102] A & B Kh. Abdur Rashid and S. Abdus So/am Sarwar, Advocates for Petitioners. Rqja Muhammad Bashir and Javid Qureshi, Advocates for Respondents No. 2 to 4. A.A.G. for Respondent No. 1. Date of hearing: 8-12-1996. judgment For the purpose of installing Cement Factory, Tharmal Power Plant and Cement Bags in Tehsil and District Haripur, Best Way Cement Ltd., a company having its head office at Islamabad, approached the Collector Land Acquisition, Haripur for the compulsory acquisition of land for the setting up of the Project. Accordingly the Collector on 26.10.1994 issued a notification under section 4 of the Land Acquisition Act for the acquisition of 1015 kanals of land in village Shadi.and 551 kanals 6 marlas in village Raniwah. A corrigendum was issued on 6.11.1994 by which the land to be acquired in village Raniwah was deleted from the notification whereas the land in village Shacii was enhanced to 1882 kanals 17 malras and 197 kanals of land in village Kamalpur was included in the notification. Yet another corrigendum was issued on 21.11.1994 and the land in village Shadi was reduced to 1627 kanals, whereas 197 kanals land in village Kamalpur remained unchanged. On 28.11.1994 an agreement, as envisaged under section 41 of the Land Acquisition Act, regarding the terms and conditions of the acquisition was entered into between the Government of NWFP and the company. The Commissioner Hazara Division, considering the urgency of the acquisition, issued a notification under section 17 of the Act on 1.12.1994, dispensing with the requirement of the provision of section 5 and 5-A of the Act in the process of the acquisition. The same notification also included a declaration by the Commissioner under section 6 of the Act of his satisfaction that the land was required for the company. Thereafter notices under sections 9 and 10 of the Act were issued to the interested persons to file their demands and objections. A number of owners filed their objections before the Collector Land Acquisition. After considering the objection the Collector drew his awarcl under section 11 of the Act on 18.12.1994, fixing compensation of the land according to its nature on the basis of the average of the sale prices of one year. On the objections of land owners as to the amount of compensation fixed references under section 18 were made to the Court At the same time 150 owners, whose lands have been acquired, filed the present Constitutional petition questioning the very acquisition of the land. 2. The case of the petitioners as revealed from the grounds taken up in the petition and from the arguments advanced on their behalf at the bar is that firstly, the corrigendums to the notification under section 4 are to be considered as fresh notification and therefore the entire procedure regarding publicity is to be followed after each corrigendum; secondly, that since the land was acquired for Commercial Enterprises there was no urgency to invoke the provisions of section 17 of the Act and thirdly, no inquiry was conducted under section 40 of the Act let alone notice of it to the petitioners. For his first contention the learned counsel relied upon Central Government of Pakistan vs. Sardar Fakhar-e-Alam and others (1986 SCMR 188), Naeem Engineering Corporation and others vs. Government of Punjab (1986 SCMR 316) Rao Maqsood Ali Khan and others vs. Collector, Sheikhupura District and others (PLD 1988 Lahore 272). For the second proposition reliance was placed on Murari Lai Gupta vs. State of Punjab and others (AIR 1964 Punjab 477) that section 17 can be invoked in exceptional cases. For the last contention the learned counsel referred to Ch. Khushi Muhammad vs. The Commissioner Multan etc. (PLD 1965 W.P.) Lahore 250), Ghulam Bhik vs Govt. of West Pakistan through Secretary Revenue Deptt. Lahore etc. (PLD 1973 Lahore 617), Faqir Muhammad and others vs. Govt. of West Pakistan Through Secretary Revenue Department Lahore and others (PLD 1973 Lahore 665) to argue that though in those cases the Lahore High Court had held that notice of an inquiry under section 40 of the Act was not necessary to the effected party, the rule laid down there was inapplicable to the present case as these lands were acquired before the amendment in section 40 of the Act by West Pakistan Ordinance, No. XLJX of 1969, whereby clause (c) was added to sub-section (1) of section 40. It was argued that since clause (C) provided that the Commissioner should also during the inquiry as to the acquisition of land for Company see the reasonableness of the proposed area for the purpose for which it was being acquired the affected persons ought to be associated with the inquiry to enable them to put their view point regarding reasonableness. Reliance was placed on the case of Federation of Pakistan vs. Province of Punjab (1993 SCMR 673) for the proposition that the interested parties have a right to a hearing during the inquiry by the Commissioner under section 40 of the Act. 3. In their written statement, Best Way Cement Ltd., respondent No. 4, took a preliminary objection £hat the writ petition suffers from laches as the respondent was delivered possession of the land and had taken irrevocable steps for the completion of the Project by spending huge amount on construction and had moblised advances and opened irrevocable letters of credit in the amount of US $ 40 Million for the import of machinery. It was pleaded that urgency of the situation for the purpose of issuing notification under section 17 was to be determined subjectively by the Commissioner and was thus unquestionable. The learned counsel representing respondent No. 4, during his arguments, submitted that there was urgency in the present case as the Directors of the Company are British Nationals of Pakistani Origin, who had decided to invest in Pakistan, and any delay in the acquisition of the land might have changed their minds. Further, that according to the Government report there was & dire need for the installation of Cement Factories in the North of the Country. In view of the judgments of the Lahore High Court relied upon by the learned counsel for the petitioner it was contended that the participation of the effectees in an inquiry conducted under section 40 of the Act was not necessary. The learned counsel referring to the two corrigendums however, pointed out that the changes in the area had occurred as a result of inquiry under section 40. 4. In the comments filed by the Collector Land Acquisition it was averred that due publicity of the notification under section 4 was made. It was further pleaded that since compliance of the provisions of Section 5-A was dispensed by the notification under section 17(4) no notice to the objectors was required during the inquiry under section 40. 5. The learned Assistant Advocate General, who appeared for the Collector, pointed out that the petitioner had acquiesced in the acquisition proceedings and had not only withdrawn the compensation deposited by the company out had also participated in the proceedings for fixing the compensation before the Collector and had now preferred objection under section 18 of the Act for enhancement of the compensation. It was argued that it was too late to return the land to the petitioners. 8. The case law cited regarding the status and effect of corrigendum to a notification under section 4 of the Land Acquisition Act does enunciate the rule that each corrigendum notification under section 4 is to be considered a separate notification and the entire procedure that follows the issuance of the notification under the section shall be observed. Section 4 provides for the publicity of notification issued under it at convenient places in the locality where the land is to be acquired. Further the persons interested in the land to be acquired may under section 5-A of the Act, within 30 days of the issuance of notification under section 4, file objections to the Collector. The failure by the Collector to give notice of the successive notifications under section 4 has been alleged in para 2(iv) of the writ petition, which has been denied by the Collector in the corresponding paragraph in his comments. As for the publicity of the notification no where In the writ petition has it been averred that the petitioners were set aware of the notifications, or lor that matter of the acquisition proceedinp. In fact their participation in the proceedings for the drawing of the award by the Collector bears ample testimony of their awareness of the notifications. Moreover the purpose behind the publicity of the notification under section 4 is ,to enable the effected persons to file objections under section 5-A, the provisions of which in the present case have been excluded by the notification issued under section 17(4) of the Act. Thus no illegality was committed by th« Collector izi tlie publicity of notification under section 4 nor any prejudice was caused to the petitioners who had fully participated in the acquisition proceedings. 7. Where land is being acquired for a company the consent of the Commissioner is required under section 39 of the Act which is accorded after bis satisfactioa on the report of the Collector under section 5-A or through an inquiry carried out under section 40, Such inquiry is held to see inter alia the usefulness of the acquisition to the public, and after insertion of clause (C) in sub-section (i) of section 40 by the West Pakistan Ordinance XL3X of 1994, the reasonableness of the area proposed for the purpose for which it was being acquired. Since the provisions of section 5-A has been made inapplicable by the notification under section 17(4) thus no objection could be filed by the effected persons under that section. According to the comments of the Collector Land Acquisition the inquiry under section 40 was undertaken. The respondents have also pleaded that the two corrigendum which brought about changes in the area to be acquired was the result of such an inquiry. The main grievance of the petitioners is that they were not associated with such an inquiry. The question of issuance of notice to the persons interested in the land to be acquired during an inquiry under section 40 came up before the Lahore High Court in the case of Chaudhry Khushi Muhammad ibid and Mr. Justice Yaqoob Ali J, as he then was, held that a comparison of provisions of sections 4,5 T 5-A and 9 with the provisions of section 40 of the Land Acquisition Act, 1894 will show that wherever it was intended by the Legislature that the person effected will have a right to show cause, a distinct provision to that effect is made. The omission in section 40 with regard to notice to persons interested in the land to be acquired for the benefit of a company is, thus deliberate. It was thus found that non issuance of notice to the petitioner in an inquiry under section 40 had no effect on the validity of the consent given by the Commissioner to the acquisition in question. His lordship declared that the rule of natural justice is not of universal application. The rule was followed by the Lahore High Court in cases of Ghulam Bhik and Faqir Muhammad, referred to above. The argument of the learned counsel for the petitioners that since these judgments dealt with acquisition proceedings commenced prior to the insertion of clause (b) under sub section (1) of section 40 of the Act has no force. If the argument that determination of the reasonableness of the area under clause (c) would require participation of the interested parties in the inquiry is accepted the same argument would be available while determining, under clause (b), the usefulness of the land to the petitioners. But despite the existance of clause (b) at the time of the acquisition in the above cited cases the Lahore High Court did not consider the issuance of notice to the interested parties necessary under section 40. Even otherwise the reasonableness of the area essentially is to be determined between the company, which requires the land, and the acquiring authority. Moreover no allegation has been made that the area acquired is unreasonable as regards its location or area. Though an argument was advanced at the trial that the area was enormous yet the learned counsel for the petitioner failed to state as to what would be the area requisite for the project. On the other hand the learned counsel for the company produced a copy of a study titled "Investment Opportunities in Pakistan", with a Sub-title "Portland Cement", prepared by the Prime Minister Secretariat, Board of Investment, wherein it has been stated in paragraph 3.4.1 that 300 acres of land is required for the installation of a project to manufacture Ordinary Protiand Cement. In view of this aspect the acquisition of just over 1800 kanals of land is not beyond the estimated area. 8. The case of the Federation of Pakistan vs. Province of Punjab ibid, cited for the proposition that notices to the effected persons are necessary in an inquiry under section 40 is distinguishable. In that case the question of notice was not involved as it was given to the owner, which was the Pakistan Telephone and Telegraph Department, whose land was being acquired for the construction of residential colony for the Punjab Board of Revenue Employees Housing Society Lahore Limited. The august Supreme Court held that since the Telephone Department had also earlier purchased the land for a public purpose from the Settlement Department the Commissioner ought to have assessed as to whether the public purpose of the acquiring company was superior that of the owners. The Supreme Court found for a fact that the purpose for which the owner had purchased the land was superior than the construction of residential colony of the acquiring company. No such situation exists in the instant case nor the usefulness to the public of the land acquired for the company has been disputed. 9. As regards the objection to the use of the emergency powers under section 17 of the Act is concerned, though there is some case law in support of the proposition that the power be used in exceptional circumstances, it is by now well settled that the assessment of the situation for the purpose exercising power is subjective and lies with the Commissioner. Even the facts support the exercise of the power. The land was being acquired for the installation of a big project that was to be installed on foreign capital. Delay in the acquisition proceedings may have had the effect of discouraging the investors, thereby causing loss to the national economy. 10. We are also not unmindful of the fact that significant progress has been made towards the completion of the project. The construction has been raised on the site and L.C's have been opened for the import of the machinery. Further more the petitioners instead of approaching this Court straightaway after issuance of notification under section 17 of the Act, participated in the award drawing proceedings of the Collector and had also filed objection petitions under section 18 of the Act. It was claimed by the Assistant Advocate General, and not controverted by the learned counsel for the petitioners, that 248 owners, including the 150 petitioners, have also withdrawn the compensation awarded to them. In such circumstances the petitioners by their conduct have disentitled themselves to the equitable relief of the issuance of writ. 11. Above are .the reasons for which the writ petition was dismissed by a short order dated 8.12.1996. The parties are left to bear their own costs. (MYFK) Petition dismissed.
PLJ 1997 Peshawar 103 (DB) PLJ 1997 Peshawar 103 (DB) [Abbottabad Bench] Present : TARIQ PERVAIZ KHAN, SECOND JUDGE'S NAME IS NOT DISCEPHERABLE J. MUHAMMAD MAHROOF-Petitioner versus Mst. MAHANOORI etc.Respondents W.P. No. 84 of 1996, dismissed on 19-3-1997. (i) Constitution of Pakistan, 1973-- Art. 199-West Pakistan Family Courts Act, 1964 S. 5, item 3 of Schedule read with S. 20, Muslim Family Laws Ordinance 1961, S. 9~Suits for dower and maintenance-Decreed to-Challenge to-Non-payment of dower amount is accepted by husband-Petitioner, but he disagrees with amount-Evidence of Dost Muhammad who is totally disinterested witness, rather relative to both parties has gone unchallenged that dower amount was fixed Rs. 20,000/- Petitioner produced no documentary evidence to prove that dower amount was Rs. 500/ There is no illegality in finding of trial court determining amount of dower as Rs. 10,000/-It has come in evidence of plaintiff-Respondent, that she with her son is residing in house of her father since February 1989 and there is no evidence that they were ever given any maintenance allowance-Held : Judge Family Court had jurisdiction and power to direct husband past maintenance allowance to wife and also to children-Petition dismissed. [Pp. 105, 106 & 108] A to D, F & G PLD 1972 SC 302, PLD 1966 Lah. 703, PLJ 1981 Lah. 424, PLJ 1994 Lahore 387 and 1992 MLD 134 ref. (ii) General and Special Law-- It is established principle that general law shall yield in favour of special law. [P. 108] E Hqji Ghulam Basil, Advocate for Petitioner. Muhammad Hussain Lughmani, Advocate for Respondents No. 1 Date of hearing: 19-3-1997. judgment Tariq Pervaiz Khan, J.--A suit was instituted, bearing No. 217/FC, by respondent Mst. Chanwari (wrongly recorded in the heading of the petition as Mahanoori and another suit bearing No, 230/FC both in the court of Civil Judge/Judge Family Court Mansehra. The former suit, was for Rs. 20,000/- as dower payable to the plaintiff-respondent and also for maintenance from February 1989 to November 1994 at the rate of Rs. 500/- per month. The later suit was filed by the plaintiff-respondent as next friend of her minor son Mir Afzal, who was born, out of the wedlock when plaintiffrespondent and the petitioner's marriage was still subsisting. 2. The marriage of the spouses was contracted about 10 years back to the date of divorce, which was pronounced in the month of August 1994 by the husband. 3. The two suits were consolidated and the learned trial court, thereafter, framed issues. The case of the plaintiff before the Judge Family Court as reflected in the plaint was to the effect that at the time of their nikah Rs. 20,000/- were fixed as dower amount and the whole of its remains unpaid. That, right from the beginning the attitude of the petitionerdefendant remained cruel which ultimately resulted in desertion of the wife plaintiff from the house of the husband in the month of February 1989. It was also asserted that since then the petitioner defendant has never maintained the wife nor has paid the dower amount, notwithstanding the fact, that irrespective of many attempts for reconciliation the petitionerdefendant sent 'talaqnama'. 4. The second suit filed by Mst. Chanwari as next friend of her minor son was to the effect that the minor son was residing with the mother and since their desertion from the house of the petitioner-defendant the petitioner has never paid any maintenance amount to his son. The written statement filed by the petitioner-defendant, set up the case that dower amount was fixed @ Us. 500/- which remained unpaid. As to the maintenance to the wife and the son the claim of the petitioner-defendant was that, he has been continuously paying them the maintenance allowance and that both, the wife and the son are still living in his house. 5. To resolve the dispute on facts the trial court after framing consolidated issues in both the suits proceeded to record evidence of the parties. The plaintiff-respondent in support of her case as to desertion, non payment of maintenance allowance and the dower amount being outstanding, produced following evidence. 6. PW Aslam Parvez a Muharrir of Police Station Darband produced a copy of daily diary No. 7 dated 27.2.1989 and exhibited as Ex. P.W1/1, to show that the father of plaintiff-respondent has reported, that his daughter namely Chanwari the plaintiff-respondent has been turned out from house by her husband. Mst. Chanwari appeared as her own witness as PW-2 and reiterated the facts taken up in the plaint both for dower and non-payment of maintenance to herself and the son. Mohbeen the father of the plaintiffrespondent appeared as PW-3 and confirmed the facts stated to by his daughter and so is the case of PW-4 namely Dost Muhammad. 7. The petitioner-defendant produced three witnesses namely Maulvi Muhammad Ayub who had allegedly recited the nikah between the parties, the petitioner-defendant himself and one Faiz Ali to prove that dower amount was not Rs. 20.000/- but 500/- and that the maintenance has been regularly paid. 8. That after the conclusion of the evidence of the parties and giving them opportunity to wind up their respective cases, arguments were heard and the learned Judge Family Court pronounced its judgment dated 20.3.1996 and passed a decree in the terms that the plainti f-respondent was granted decree of Rs. 10,000/- as dower amount and past maintenance allowance at the rate of Rs. 250/- per month with effect from February 1989 to November 1994. Simultaneously in the above stated judgment, a decree for past maintenance at the rate of Rs. 250/- per month with effect from February 1989 to 20th March, 1996 was passed in favour of the son with further direction that the future maintenance allowance of the son, shall be Rs. 300/- per month till he attains majority. 9. Aggrieved from the judgment and decree of the Judge Family Court the husband defendant has challenged the same through this writ petition. 10. The legal grounds taken up in the petition are to the effect that the judgment and decree are liable to be set aside as the court was not competent to allow past maintenance, the consolidation of both the suits was also challenged, the dower amount was said to be Rs. 500/- and not Rs. 20,000/- as decreed by the trial court and that the trial court has misread the evidence. 11. We have heard the arguments of the learned counsel for the parties at sufficient length. This case has got two aspects, actual and legal. On facts, a resume of evidence has been given in the preceding part of the judgment. The non-payment of dower amount is accepted by the husband- petitioner but he disagree with the amount. The wife in order to prove that the dower amount was Rs. 20,000/- has appeared as her own witness, categorically stating therein the amount of dower to be Rs. 20.000/-. The same amount has been reaffirmed by her father. It is important to note that Dost Muhammad PW-4 when appeared in the witness box also stated that the dower amount was fixed as Rs. 20.000/- which is still unpaid. He has also stated that the parties are related to him. In this back ground the B evidence of Dost Muhammad who is totally disinterested witness, rather relative to the parties has gone unchallenged. No suggestion has been, advanced to this witness to nullify the effect of his statement made in examination inchief. 12. The petitioner defendant has also produced oral evidence to the effect that dower amount was Rs. 500/- but in this behalf produced no documentary evidence. 13. No objection has been taken qua the jurisdiction of the trial court viz, granting a decree for dower except, to the quantum of amount 14. No doubt that either party has failed to produce documentary evidence as to the amount of dower fixed at the time of marriage (nikah) but, from the evidence of the plaintiff-respondent which has gone unchallenged it is crystal clear that the amount ftaod was not Rs. 500/-. The question is whether it was Rs. 20,000/- or less, has been determined by the learned trial D court, exercising its discretion on the basis of evidence to be Rs. 10,000/-. We find no illegality in this finding. 15. Now comes the question of 'past maintenance' in respect of wife i.e. plaintiff-respondent. Learned counsel for the petitioner relied on a judgment reported as Syed Hamid Ali Shah vs. Mst. Razia Sultana (1991 CLC 766). The said judgment has dealt with the past maintenance in respect of wife as well, minor child. The child was granted a decree of past maintenance allowance while the wife was refused. It appears that the learned single Judge in the Judgment cited above was pursuaded by referring to The Hedaya ( Hamilton 's Second Edition, page 149). 16. The point whether or not under section 9 of Muslim Family Law Ordinance (VIII of 1961) past maintenance can be claimed by the wife. The august Supreme Court of Pakistan has given authoritative judgment reported in PLD 1972 SC page 302 titled Muhammad Nawaz vs. Mst. Khurshid Begum etc. Beside referring the Ordinance (ibid) the august Supreme Court has also referred to the book of Hamilton and have quoted from page 142 which is as follows : "Arrears of maintenance not due unless the maintenance has been decreed by the Kazee or the rate of it previously determined on between the parties. If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time, except when the Kazee had before determined and decreed it to her, or where she had entered into a composition with the husband respecting it. in either of which cases she is to be decreed her maintenance for the time past because maintenance is an obligation in the manner of a gratuity, as by a gratuity is understood a thing due without a return, and maintenance is of this description, the underlining is by us. It not being held according to our doctors) to be as a return for the matrimonial propriety; and the obligation of it is not valid but through a decree of the Kar^p, like a gift, which does not convey a right to possession but through seisin, which establishes possession; but a composition is of equal effect with a decree of the Kazee, in the present case, as the husband, by such composition, makes himself responsible, and his power over his own person is superior to that of the Magistrate. This reasoning does not apply to the case of dower, as that is considered to be a return for the use of the wife's person". In the same judgment their Lordships of the Supreme Court while deciding the issue have considered a judgment of Lahore High Court reported as PLD 1966 Lahore 703 which has held: "further support is lent to the latter view from the fact that the competency of the Kazee to grant maintenance for the past has also been admitted by the Hanafi School of thought as is clear from the following Heading of the excerpt from Hamilton's Hadaya quoted earlier which reads: 'Arrears of maintenance not due unless have been decreed by the Kazee'. Thus the competency of the courts of today which have stepped into the shoes of the Kazees for the purposes of adjudication of these matters flows as a necessary corollary therefrom. The mere fact that a neglected wife has been hesitant in promptly coming to the court or has been pursuing alternative remedies out of court cannot in all fairness be so construed as to deprive her of the right of maintenance from the day when the cause of action accrued to her. The courts have thus the jurisdiction to grant such maintenance subject of course to consideration of limitation and the relevant circumstances of each case, and we hold accordingly". The two passages reproduced above reflect the concept on the issue of maintenance allowance which has been incorporated by the judgment of the Supreme Court. A perusal of Section 9 of the Ordinance (ibid) does not prohibit the court from granting past maintenance. 17. Section 5 of West Pakistan Family Courts Act, 1964 which deal with the jurisdiction of the Family Court has empowered it, to adjudicate upon all such matters which are specified in the schedule of the Act (ibid). The schedule prepared under section 5 at serial No. 3 deals with 'Maintenance'. The accumulative effect of section 5 read with schedule and section 9 of the Ordinance (ibid) does not put any restriction on the power of the Judge Family Court in passing a decree for past maintenance. It only empowers the court to have jurisdiction in matter of 'maintenance' and does not specify future or past. 18. We are conscious of the fact that section 488 of the Criminal Procedure Code, also empowers the Judge Family Court to order maintenance in case the husband neglects or refuses to maintain his wife or legitimate or illegitimate child. It also prescribe a time limit from which date such maintenance monthly allowance shall be ordered as given in section 488 sub-section (2). 19. Section 9 of the Ordinance (ibid) section 5 of the Act (ibid) read with schedule are provisions of special law whereas section 488 Cr.P.C. is general kw. It is established principle that the general law shall yield in favour of special law. 20. The question cf past maintenance arose in case of Syed Mudassar Altaf vs. Deputy Commissioner Collector Lahore and others (PLJ 1994 Lahore 387) where it was held that "a Muslim husband is under a legal obligation to maintain his wife and if she is forced to live away from him for no fault on her part, even then he has to provide maintenance allowance to her". It was also held that as C.P.C. is not applicable, in proceedings before the Judge Family Court, hence Article 181 of the Limitation Act will not be relevant but the relevant Article of the Limitation Act would be Article 120 which will entitle the wife to past maintenance to the extent of 6 years and so is the case of a child. 21. In case of Muhammad Akhtar vs. Mst. Shazia and others (1992 MLD 184) placing reliance on PLD 1972 SC 302, it was held that under section 5 and item 3 of schedule of West Pakistan Family Courts Act 1964, which is catering for the maintenance does, not distinguish the period in term of past or future and is in consonance with the" Injunction of Islam. In support of the view point that a wife is entitled to past maintenance by virtue of section 5 read with section 20 of the Act (ibid) reference can also be made to PLJ 1981 Lahore 424. 22. In view of the matter we hold that the Judge Family Court had the jurisdiction and power, under section 5, item 3 of schedule read with section 20 of West Pakistan Family Courts Act, 1964, and section 9 of Muslim Family Laws Ordinance 1961 to direct the husband to pay past maintenance allowance to the wife and also to the children. To apply the principle of past maintenance to the facts of this case, it has come in the evidence of the plaintiff-respondent, and also her father, coupled with the report made in the daily daily of Police Station Darband Exhibit PW1/1, and more particularly the statement of Faiz Ali defendant's witness who has stated thatMsf. Chanwary i.e. plaintiff-respondent is residing in the house of her father, would negate the assertion of the petitioner that till to-date i.e. the date on which the statement was recorded by the trial court, the wife and the son were living in his house. This being the evidence, we are left with no option, but to accept that, plaintiff-respondent and her son are not living with the petitioner since February 1989 and there is no evidence that they were ever given any maintenance allowance. A reference has been given by the petitioner in his evidence that he has been sending the expenses to the wife through Noor Rehman and Muhammad Khan shop-keepers, but none has been produced in witness box. The petitioner-defendant having withheld the best evidence, this Court will be right to presume that what was stated by the husband-petitioner was not correct. 23. Keeping in view the factual position of the case of the parties and the law as has been consistently held by the superior court of this Country we would dismiss this writ petition as we find no^ error of facts or kw in judgment and decree of the Judge Family Court. These are our detailed reasons in support of our short order dated 18.3.1997 whereby the writ petition was dismissed. (MYFK) Petition dismissed.
PLJ 1997 Peshawar 109 PLJ 1997 Peshawar 109 Present : 'malik hamid saeed, J. UMER KHAN-Petitioner versus GOVT. OF NWFP and others-Respondents Civil Revision No. 206 of 1994, accepted on 4-4-1997. Civil Procedure Code, 1908 (V of 1908)- S. 115Appointment as Chowkidar-Suit againstDecreed toRevision against-Moment, petitioner assumed charge of chowkidar, he became Government Servant for all practical purposes and means and hence, any matter which relates to terms and conditions of his service would exclusively fall within jurisdiction of N.W.F.P. Services Tribunal alone since respondent No. 4/plaintiff had impugned in his plaint terms and conditions of service of petitioner, therefore, by decreeing suit in favour of plaintiff/respondent No. 4, trial court had exceeded her jurisdiction- Appellate Court too had fallen in an error by concurring with finding of trial Court and not applying its own mind to facts of case-Petition accepted. [P. 112] A & B S. Zafar Abbas Zaidi, Advocate for Petitioner. Mr. Muhammad Khan, Advocate for Respondents No. 1 to 3. Sh. Muhammad Bashir Gotiar, Advocate for Respondent No. 4. Date of hearing: 4-4-1997. judgment This petition in revision arise in the background that Khuda Bakhsh son of Amir Bakhsh had filed a declaratory suit against the Government of .NWFP and others with permanent injunction against appointment of Umar Khan, petitioner herein, as Chowkidar per office order No. 5196-5271 dated 7.9.1989 on the ground that he being a Class-IV part-timer for the last nine years was entitled as such on regular basis in view of the instructions issued by the Government and that the appointment of petitioner Umar Khan by respondent No. 3 as Chowkidar on permanent basis was in violative of the prescribed rules and policy of the Government on the subject. 2. The suit was contested by the petitioner by filing written statement and from the averments of the pleadings, the following issues were framed : 1. Whether the plaintiff has got a cause of action and locusstandi ? 2. Whether the plaintiff by his own conduct was estopped to sue? 3. Whether defendant No. 4 has been lawfully appointed and plaintiff is not entitled to the decree as prayed for ? 4. Whether the Court has got the jurisdiction to entertain the present suit? 5. Relief? 3. After recording evidence of the parties pro and contra, the learned trial Judge decreed suit of the plaintiff vide judgment dated 10.7.1994. Feeling dis-satisfied from the said judgment of the trial Court, the petitioner Umar Khan went in appeal before the learned District Judge D.I. Khan where too he met the same fate vide judgment dated 10.10.1994. Hence this revision petition. 4. I have heard S. Zafar Abbas Zaidi, advocate for the petitioner and Sh. Muhammad Bashir Gohar advocate for plaintiff-respondent No. 4 and perused the record. 5. The plaintiff besides himself had produced four witnesses in support of his claim. During pendency of the suit, Umar Khan petitioner had moved an application on 18.11.1991 under Order 7 Rule 11 CPC for rejection of the plaint on the ground that since the matter related to the terms and conditions of service, therefore, it exclusively falls within the jurisdiction of Services Tribunal of NWFP. The trial Judge admitted this fact to the extent that the Court cannot consider the factum of appointment of the petitioner being a Govt. Servant, but as the plaintiff-respondent No. 4 is a part-time servant being paid from Contingency, as such the Civil Court could entertain such types of cases of employees who are not Govt. Servants and case of the defendant/plaintiff was, therefore, entertained. 6. After completion of evidence of the plaintiff-defendant No. 4 herein, Umar Khan, petitioner was directed to deposit the expenses for summoning of the official-witnesses which was complied with. Mr. Gul Muhammad Khan, Clerk Registration Office D. I. Khan appeared as DW.l, while Karim Bakhsh clerk tl the office of DistL Education Officer D.I. Khan and Nizamuddin, Head-Teacher were examined as DWs 2 and 3 on 2.3.1993 and 26.7.1993 respectively. However, till 19.5.1994 the petitioner was unahle to produce rest of the evidence and the Court, therefore, struck-off his defence under Order 17 Rule 3 CPC. 7. Defendant No. 4 produced three official witnesses before the trial Court. Of them, Qazi Sirajuddin had brought Fard Jamabandi for the year 1979-80, Khata No. 514, Khasra No. 1461, copy Ex. PW.1/1, Nizamuddin, Head-Teacher of the School appeared as PW. 2 and stated that the defendant Khuda Bakhsh is working in the School since April 1979 and getting his pay regularly in his capacity as Sakka Khakrob, while Zafrullah, Junior Clerk office of Distt Education Officer (Male) D.I. Khan had appeared as PW. 3 and brought the minutes of the meeting of District Development Advisory Committee held on 22.9.1987 at Peshawar, copy of which is Ex. PW.3/1. Defendant No. 4 had, however, appeared as his own witness and stated that he is working in the School since 1979 and on creation of a post of Chowkidar, he was legally entitled to be regularized there against under the Govt Policy, copy Ex. PW.3/1 but instead the petitioner was appointed as such. He had, however, admitted that he is working against the post of Sakka Khakrob and he had never been appointed as Part-time Chowkidar nor he is working against the same post. 8. Mr. Nizamuddin, Head-Teacher of the School had also appeared as DW.3 and corroborated his statement as PW. 2 by reiterating that the defendant/respondent No. 4 was appointed as Chowkidar against a'newly created post vide order dated 7.9.1988 and had assumed his duties as such on 10.9.1988 vide Ex. DW.3/1, but on receipt of status quo order on 12.9.1988, the petitioner/defendant was not allowed to perform his duties. 9. The only point which prevailed upon the learned trial Court was that the defendant/respondent No. 4 per the policy of the Provincial Government referred above was entitled to be appointed as Chowkidar instead of petitioner Umar Khan who never remained in service and appointed newly on the recommendations of Chairman, Distt. Development Advisory Committee D.I. Khan. Reliance was also placed on the case reported in 1993 SCMR 1287 wherein it was observed that all such appointments are null and void and may be declared as such by all the Courts. 10. Careful perusal of the record reveals that prayer of the petitioner made on 18.11.1991 for rejection of the plaint under Order 7 Rule 11 CPC was acceded to due to lack of jurisdiction to consider his appointment in service as Chowkidar but had opined that the Court is competent to consider the suit filed by defendant No. 4 as he was not a Govt. servant being a part-time employee. In his declaratory suit, the plaintiff had prayed for appointment as Chowkidar being a part-timer since 1979 and that the appointment order 7.9.1988 of Umar Khan petitioner was liable to be set aside. By decreeing the suit, the learned trial Judge has violated her own order dated 8.12.1991 by striking down the appointment order of a Government servant which does not fall within her jurisdiction. 11. The Policy Decision of the Government produced as Ex. PW.3/1 by P.W. 3 at its serial No. 5 speaks as under :-- "The persons who have already been appointed as part-time Chowkidars be regularised. However, the genuineness of their appointment be ascertained by the M.P.As before regularization. The remaining posts be filled up by the persons who donated lands free of cost for the School/on the recommendations of concerned M.P.A." The said policy decision was also not favourable to respondent No. 4, as it is in the evidence that he was working as Sakka Khakrob-P&rt-Time Service and was not posted as Part-time Chowkidar. Therefore, he cannot get any benefit of the said policy decision. Further, the moment petitioner assumed the charge as Chowkidar, he became a Government Servant for all practical purposes and means and hence any matter which relates to the terms and conditions of his service would exclusively fall within the jurisdiction of NWFP Service Tribunal alone. Since respondent No. 4/plaintiff had impugned in his plaint the terms and conditions of service of the petitioner Umar Khan, therefore, by decreeing the suit in favour of plaintiff/defendant No. 4, the trial Judge had exceeded her jurisdiction. The dictum laid down by the august Supreme Court in the authority (1993 SCMR 1287), relied upon by the learned trial Judge, was also not followed by the trial Court in its true prospective, because in the said judgment it was held that ordinary Civil Courts had no jurisdiction in reference to the service matters which was not the case before the Court below. The appellate Court too had fallen in an error by concurring with the finding of trial Court and not applying its own mind to the facts of the case. 6. In the light of foregoing discussion, the revision petition has substance and is, therefore, accepted. The impugned judgmenti/decrees of the Courts, below are set aside and suit of respondent No. 4 Khuda Bakhsh stands dismissed with no order as to costs. (MYFK) . Petition accepted.
PLJ 1997 Peshawar 113 PLJ 1997 Peshawar 113 Present: MIAN SHAKIRULLAH JAN, J. COLLECTOR and others-Petitioners versus Mst. SHEHZAD BIBI and others-Respondents Civil Revision No. 191 of 1993, accepted/dismissed on 1.12.1994. (i) Administration of Evacuee Property Act, 1957 (XII of 1957)-- -S. 2(3)--Meaning of Evacuee Property-'Evacuee property means any property in which evacuee has any right or interest and includes, (a) (b) property of evacuee obtained by transfer on or after first day of March, 1947, until transfer is confirmed by custodian; and evacuee has been defined by sub-section (2) of section 2 of Said Act gist of which is; that" who, on account of sotting up of dominions of Pakistan and India, or on account of civil disturbance on or after first day of March, 1947 or who is resident in any place in territories now comprising India and unable to occupy, supervise or manage in person his property in Pakistan." [P. 117] A (ii) Administration of Evacuee Property Act, 1957 (XII of 1957)-- S. 7-Execution of sale deed in favour of Manohar Lai who left for India in 1947-Whether property so purchased by him could be termed as evacuee property, when no entiy as made in revenue record of registered deed-Question ofWhen ownership and title had been transferred through registered deed to Manohar Lai, the evacuee, then by not making any entry of registered deed in revenue record by revenue officer would make no difference and it would not divest Manohar Lai of ownership of Property, as first of all revenue officer was under obligation to attest mutation even in absence of parties as transfer had taken place through registered deed and even otherwise entries in revenue record are for fiscal purposes and rebuttal presumption of correctness may be attached to 'Jamabandi', but in instant case more stronger proof has come in shape of registered deed in name of Manohar Lal-Thus it is clear that Manohar Lai was an evacuee-Held : Manohar Lai got right and interest in property and, therefore, same could be considered as evacuee property. [P. 117] B (iii) Administration of Evacuee Property Act, 1957 (Act XII of 1957)- S. 7-Sale deed executed in favour of Manohar Lai, who left India in 1947- Mutation was cancelled and property held to be evacuee property by revenue authorities-Vandor gifted away property to his son and meanwhile Muhammad Akbar Khan applied for redemption which was , rejected-Civil Court decreed suit on point of title and decision upheld in appeal-Whether Civil Court had jurisdiction to adjudicate upon matter- Question of-Having facts of instant case and law on subject property in dispute is evacuee property without any ambiguity as it belong to Manohar Lai, the evacuee and when fact that he being evacuee is evident from document on record i.e. mutation which was cancelled because of fact that he had gone Jo India and which was transferred to him through registered deed during period between 1946 and December, 1947 two dates, one that of registered deed and other of rejection of mutation because of absence of Manohar Lai and by virtue of Section 6 property vested in custodian from first day of March, 1947 and u/S. 7, it was obligatory on part of Ghulam Sarwar if he was in possession, supervision or management of property as he claimed ownership to surrender same in favour of custodian and by not doing so by him would, not divest custodian of its ownership-After holding properly to be evacuee property and proceedings having been initiated in year 1973 before coming into force of Repealing Act i.e. Evacuee Property & Displaced Persons Laws (Repeal) Act was exclusive job and adjudication of Authorities and hierarchy mentioned in relevant repealed law-Held : This law oust jurisdiction of civil Court-Revision petition filed by Collector/Deputy Custodian etc. accepted and that of defendant No. 1 dismissed. [P. 119]C,D&E Malik Hameed Gul Khan, Advocate for Collector & others. Mr. Muhammad Aslam Khan, Advocate for Respondents No. 1 to 5. S. Saved Hassan Sherazi, Advocate for respondent No. 6. Date of hearing: 1.12.1994. judgment I propose to dispose of these two Civil Revisions No. 173/93 and 191/93 as both have arisen out of a civil suit filed by Haji Muhammad Nawaz Khan predecessor-in-interest of respondents No. 1 to 5. 2. Plaintiff Haji Muhammad Nawaz instituted a civil suit on 27-6- 1977 challenging the orders of Deputy Custodian dated 26-2-1976, Additional Custodian dated 18-1-1977 and Member Board of Revenue dated 21-5-1977 (of evacuee property) vide which the property was declared to be an evacuee property and the mutation attested in favour of the plaintiff by Haji Ghulam Sarwar was cancelled. In the said suit the plaintiff also made a prayer for declaration of his title to the suit property and in the alternative for a declaration mortgage with a claim of costs of improvements. The suit was decreed in favour of plaintiff and the appeal of the defendant-petitioners before the appellate court also failed who now approached this court through the instant revision petitions. 3. Facts of the case are that the property in dispute is measuring 56 kanals 18 marks comprising in different khasra numbers in the revenue estate of D.I. Khan, which was originally owned by Ghulam Sarwar a convert Muslim son of Tak Chand who sold the same to a non-muslim Manohar Lai vide registered sale deed dated 11.12.1946. A mutation No. 2741 to that effect was duly entered but was rejected on 11.12.1947 by the revenue officer on the ground that the vendee (Manohar Lai) was not present who since left for India. As no effect was given in the revenue record because of not attestation of mutation the said Ghulam Sarwar, the original owner, was shown as owner in the revenue record of the disputed property who subsequently transferred the same to one Muhammad Akbar Khan Niazi, the father of the plaintiff, vide sale mutation No. 3520 dated 29.5.1958. Later on the property was shown to have been transferred on 4.2.1960 through a gift mutation No. 3655 by Muhammad Akbar Khan in favour of his son, the plaintiff. The entries in various columns of mutation No. 2741 show that the property was previously mortgaged with Suraj Bhan. Manohar Lai had purchased it subject to mortgage's rights. After attestation of mutation in favour of Muhammad Akbar Khan applied for, for redemption of land to Revenue E.A.C, D.I. Khan and his application was rejected on 22- 12-1959. He again submitted another application for the same purpose which was allowed by Revenue E.A.C. on 5-2-1960. 4. The impugned orders of the Custodian mentioned above were passed on an application submitted by Rehanul Hassan Siddiqui vide his application dated 3-2-1973 to the authorities concerned alleging therein that the property in dispute is an evacuee property and not that of Ghulam Sarwar who sold the same and the proceedings were initiated on his this application. The evidence was recorded and ultimately the Deputy Custodian Evacuee Property D.I. Khan vide his order dated 26-2-1976 holding the property in question as an evacuee property observed : "In the light of above discussion I hold the property in question is an evacuee property for all intents and purposes and could not be considered otherwise for the very reasons that the mutation having not been attested, the sale was to given effect in the revenue record. This property could not be considered as disputed property but would be considered as an evacuee property throughout and the rights would be deemed to be transferred to the Central Government." The appeal of the plaintiff before the Commissioner, D.I. Khan exei'cising the power of Additional Custodian (Evacuee Property) was also dismissed and his revision petition filed before the Board of Revenue also met the same fate, who then knocked at the door of the civil court by challenging the impugned orders as mentioned above. 5. The learned trial court while granting decree to the plaintiff held under issue No. 1 which is with regard to the cause of action that the plaintiff has got the cause of action by holding him as the owner of the property and declaring the impugned orders as illegal and void and with regard to the jurisdiction in respect of issue No. 5 had been framed and it was concluded that the civil court had got the jurisdiction as the question of title is involved in the suit. Similarly, the appellate court also held that the disputed property is not an evacuee property and the plaintiff was held to be the owner and also concurred with the trial court on the question of jurisdiction of the civil court with a similar observation that the question of title involved in the case and the civil court had got the jurisdiction. There were two appeals before the appellate forum one filed by the Government functionaries and the other by Said Rehanul Hassan on whose application the proceedings had been initiated and similarly both the appellants whose appeals had been dismissed approached this court through the above two mentioned revision petitions. 6. The moot questions in the case are that whether it is an evacuee property or not and whethor Ghulam Sarwar has got any right or interest in the property after its sale through a registered deed in 1946 to Manohar Lai and whether he could transfer the same as alleged through mutation No. 3520. The original title of Ghulam Sarwar is not in dispute. The plaintiffs have also admitted in para-3 of their plaint that the title in the property was transferred by said Ghulam Sarwar through a registered sale deed on 11.12.1946 is favour of Manohar Lai by describing Manohar Lai as 'Tarekecn-e-Watan' . A mutation No. 2741 was also entered but the same was rejected by the revenue officer on 11.12.1947 with the following endorsement- But the claim of the plaintiff in plaint is that this registered deed was not acted upon but otherwise with regard to the transfer through registered sale deed to an evacuee had been admitted. It is evident from the endorsement on mutation and para No. 2 of the plaint ( ???? ) Manohar Lai (through a registered sale deed dated 11.12.1946) had left Pakistan for India after 11.12.1946 (as at time of registration of deed he had been shown as present) and before 11.12.1947 (date of order of Revenue Officer on mutation). In the year 1947 after partition there was a large scale influx of people (refuyee/evacuee) from India to Pakistan and from Pakistan to India. This necessitated, in addition to the administrative management, the making up of some legal provisions and drawing up of some statutes for (i) the protection, administration and management of properties of persons who left Pakistan i.e. of the evacuee and (ii) the rehabilitation and orderly settlement of th.e; refugee and which resulted in several Ordinances and Acts with amendments and modifications but were mainly of two types, commonly known as Evacuee Property Law & Rehabilitation Law respectively. In addition to certain Provincial Ordinances on the subject (Administration of Evacuee Property) promulgated earlier, the first law making step taken by the Central Government was the promulgation of the Pakistan (Protection of Evacuee Property) Ordinance of 1948 (XVIII of 1948) on the 10th October, 1948. This Ordinance was repealed by the Pakistan (Administration of Evacuee Property) Ordinance, 1949 which in its turn was repealed by the Pakistan (Administration of Evacuee Property) Ordinance XVIII, 1956. This Ordinance then was replaced by the Pakistan (Administration of Evacuee Property) Act XII of 1957. All the Ordinances and Acts mentioned above which were dealing with the Evacuee property have given the same meaning to the evacuee and Evacuee property with little modification or changes. According to section 2(3) of the Pakistan (Administration of Evacuee Property) Act, 1957, "evacuee property" means any property in which an evacuee has any right or interest and includes, (a) (b) property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodian; and the evacuee has been defined by sub-section (2) of section 2 of the said Act very elaborately and the gist of which is; that "who, on account of the setting up of the dominions of Pakistan and India, or on account of civil disturbances on or after the first day of March, 1947 or who is resident in any place in the territories now comprising India and unable to occupy, supervise or manage in person his property in Pakistan." Thus on looking at endorsement written on the mutation No. 2741, the reference of which had been given in the plaint referred to above, and the word 'Tarekeen-e-Watan' mentioned in para 3 of the plaint would leave no doubt that Manohar Lai would be an evacuee within the meaning of the Act ibid. When the ownership and title had been transferred through a registered deed to Manohar Lai, the evacuee then by not making any entiy of the registered deed in Revenue record by the revenue officer would make no difference and it would not divest Manohar Lai of the ownership of the property, as first of all the revenue officer was under an obligation to attest the mutation even in the absence of the parties as the transfer had taken place through a registered deed and even otherwise the entries in the revenue record are for fiscal purposes and rebuttal presumption of correctness may be attached to the 'Jamabandi' but in the instant case a more stronger proof has come in the shape of a registered deed in the name of Manohar Lai. Thus it is clear that Manohar Lai was an evacuee and he got a right and interest in the property and, therefore, the same could be considered as an evacuee property. 7. Another seemingly insurmountable, hurdle that comes in the way is to consider this property as an evacuee property in view of section 3 of the Act ibid. In section 3 it has been specifically stated that-the property not treated as evacuee immediately before the first day of January, 1957 shall not be treated as an evacuee property on or after the said date, which section i.e. section 3 as under :-- Section-3. "Property not to be treated as evacuee property on or after 1st January 1957. --(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as Evacuee nor, as the case may be, as evacuee property, on or after the said date. (2) Nothing in subsection (1) shall apply:- (a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian." According to section 6 of the Ordinance XV of 1949, all the evacuee properties were declared to be vested in the custodian and which is reproduced as below:-- Section-6. "Vesting of evacuee property in custodian.--(I) all evacuee property shall vest and shall be deemed always to have vested in the custodian with effect from the first day of March, 1947." There is another section i.e. section 7 which also having the same provisions for the surrender of the evacuee property which is reproduced as under :-- Section-7. "Holding of evacuee property and its surrender.-- (1) Eveiy person who is, or has at any time after the twentyeighth day of February, 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian. (2) Every person who is in possession, supervision or management of any Evacuee property or property which he knows or has reason to believe is evacuee property shall, as soon as may be but not later than sixty days from the commencement of this Ordinance, intimate to the Custodian in writing his willingness to urrender such property to the Custodian or to any person authorised by the Custodian in this behalf upon receipt of a notice from the Custodian that the property is evacuee property, and shall surrender the name if called upon by the Custodian or any person authorised as aforesaid. (3) The provisions of sub-section, (2) shall not apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority." 8. Having the facts of the instant case and the law on the subject the property in dispute is an evacuee property without any ambiguity as it belonged to Manohar Lai an evacuee and when the fact that he being evacuee is evident from the document on record i.e. mutation which was cancelled because of the fact that he had gone to India, and which was transferred to him through a registered deed i.e. during the period between the December 1946 and December, 1947, the two dates, she is that of the registered deed and the other is of the rejection of the mutation because of the absence of Manohar Lai and by virtue of section 6 the property vested in the custodian from the first day of March, 1947 and u/S. 7 it was obligatory on part of Ghulam Sarawr if he was in possession, supervision or management of the property as he claimed its ownership, to surrender the same in favour of the Custodian and by not doing so by him would not divest the Custodian of its ownership, thus the Pakistan (Administration of Evacuee Property) Act XII of 1957 continued its evacuee character by virtue of clause (b) of subsection (2) of section 3 of that Act referred to above. Even otherwise it is evident from the impugned orders that the property was treated as evacuee property and also from the record, relating to the enquiiy and proceedings of the custodian I respect of which the impugned orders were passed. The statements of the Rehabilitation patwaris were recorded and who without any cross examination unambiguously had stated that the disputed property was temporarily allotted vide temporary allotment No. 22 to Shamroz, displaced persons and this allotment was since Rabi 1948 and continued till 1980 respect of which 'Malia of Rs. 122.13 was also deposited by the said Shamroz, so both on legal property as well as on factual side the property is an evacuee property. After holding the property to be as evacuee property and the proceedings having been initiated an the year 1973 before of coming into force of Repealing Act Le. the Evacuee Property & Displaced Person Laws (Repeal) Act 1975 adjudication on such a question was the exclusive job and jurisdiction of the authorities and hierarchy mentioned in the relevant repealed law and which law oust the jurisdiction of the civil court, and by which act the pending proceedings have been saved and to be adjudicated under relevant law by the Notified Officers and in which respect Deputy Commissioner had been given power to act as Deputy Custodian which had been done in the instant case. 9. In view of foregoing discussion, I accept this Revision Petition No. 191/93 filed by Collector/Deputy Custodian etc. set aside the judgments and decrees of the two courts below on the question of cause of action and the jurisdiction as well. However Revision Petition No. 173/93 filed by Rehanul Hassan defendant No. 1 is dismissed as he neither the plaintiff to have asked for some relief not given by the forum concerned nor he succeeded before the hierarchy (Custodian) in getting any relief as the Custodian etc. had only declared the property as evacuee which orders have been challenged by pltifrespdt to declare those orders as null and void and in which efforts he also failed. Moreover both the lower courts has also held that he (Rehanul Hassan) is not entitled in view of decision of High Court in W.P. No. 589/78 that his claim had already been satisfied. Parties are however left to bear their own costs. (B.T.) Revision dismissed.
PLJ 1997 Peshawar 120 (DB) PLJ 1997 Peshawar 120 (DB) Present: mian shakirullah jan and khalida rachid, JJ. MUSLIM COMMERCIAL BANK LTD.-Appellant versus M/s ADAMJEE PAPER & BOARD MILLS LTD. and two others-Respondents F.A.O. No. 11 of 1995 announcement on 13.3.1997. (i) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)-- -S. 12-Civil Procedure Code, 1908 (V of 1908), Order 43, Rule 1 (ii), (Ordinance of 1908), S. 5-Whether appeal against order of Special Court would competent under any provision of law except section 12 of Ordinance-Question of-Opening sheet as well as caption of appeal indicate that appeal was intended by appellant to have been filed under order 43 Rule 1 (ii) C.P.C. read with Section 15 of Ordinance of 1990- Admitted before Judge of High Court but he was not acting as Judge Special Court establishment under Ordinance-Right of appeal has been given to aggrieved party against judgment and decree or order which shall be heard by Bench of not less than two Judges-By reading of Section No. 11 and 12 it is manifest that if any person is feeling aggrieved of order of Special Court, he can file appeal only under Section 12 and not under any other provision of law as section 3 precludes applicability of any other provision of law which has been provided for in Ordinance and section 12 with regard to filing grounds upon which appeal will have to be filed, with complete bar with regard to filing of appeal against interlocutory order-According to Section 2 (f)(ii) of Ordinance, High Court while trying suit under ordinance would be Special Court and act in exercise of its civil original jurisdiction-Then for purpose of section 12 of Ordinance it will be also treated as Special Court-Held: In view of bar contained in section 12(1) of Ordinance, appeal against interlocutory order was held to be barred and would not be competent under any other provision of law-Held further : Appeal apart from section 15 of Ordinance 10 of 1980 is not competent under Order 43, rule 1 C.P.C.- Appeal not maintainable and accordingly dismissed. [P. 133,134 & 137] J, K, L, M & N PLD 1987 Kar. 501, PLD 1993 SC 109, PLJ 1981 Lahore 583, PLJ 1981 SC 795 and PLD 1970 Lah. 641. (ii) Civil Procedure Code, 1908 (V of 1908)-- O. XLIII, Rule 3-Issuance of notice to respondents by appellant before presentation of appeal-Whether obligatory-Wehther non compliance of law in present case does not render provision of Rule 3, futile, inutile and nugatory-Question of-In instant case, learned Division Bench had issued pre-admission notice to advocate of respondents (Petitioner herein) and their Advocate on pre-admission notice-Thus, he could contest admission of appeal and seeks its dismissal in limine--No grievance, furthermore, was made by him to the effect that during hearing of appeal has not been supplied to him or that he was otherwise taken by surprise-Thus, in this case all objects for which Rule 3 was inserted in Order XLIII of C.P.C. were satisfied in substance-Held : Decision of Learned Judges of Division Bench to reject preliminary objection is upheld-Held further : Non-Compliance of Order XLIII, Rule 3 CPC by not giving notice for filing appeal to respondent would be of no consequence as objection is over ruled. [Pp. 131 & 132] F, G, H & I PLD 1983 SC 693. (iii) Limitation Act of 1908 (V of 1908)-- -S. 22, Civil Procedure Code (V of 1908) S. 107, 151, Order 41, Rule 20 & Order I Rule 10Impleading of party during pendency of appeal- Whether S. 22 of Limitation Act, 1908 is applicable to appeals-Is there any analogous provision with respect of appeal-Question of-According to ' Section 22 of Limitation Act, if party is added to suit which has already been instituted, then as regards newly added partly suit shall be deemed to have been instituted when it was so made party-Here in this case, it is not suit but appeal to which respondent No. 3 was added at instance of appellant after period of limitation-Order 41, Rule 20 of Civil Procedure Code empowers appellate court to direct that man who ought to be party in appeal to be made respondent-Rule 10 of Order 1, C.P.C. when had with Section 107 C.P.C. is applicable also to appeal-Order 1, rule 10 of C.P.C. which empowers court to add person as party who ought to have been joined or whose presense before court is necessaiy in order to enable court to adjudicate effectually and completely upon all questions involved in suit-According to Section 107 C.P.C. appellate court shalj have same powers and to perform same duties as are conferred and imposed by C.P.C. on courts of original jurisdiction in respect of suits-By reading these provisions together, then appellate court can add party to appear, if necessary-Court even otherwise, has got sufficient powers under S. 151 C.P.C. to add any party to appeal-Held : Respondent No. 3, has been impleaded when period of limitation has rule out for filing appeal but that would be of no consequence in view of its subsequent impleadment in appeal-Held further : Provisions of S. 22 of Limitation Act are not applicable to appeals. [Pp. 128, 129, 130 & 131] A, B, C, D & E PLD 1989 SC 532, AIR 1930 Lah. 295 and 1988 MLD 113. M/s. Abdul Sattar Finger & Ghulam Nabi, Advocates for Muslim Commercial Bank alongwith Sher Bahadur, Controller M.C.B. M/s Fazal Ghani Maalik, M. Sardar Khan, Mr. Samiullah Jan and Bashirullah Khan, Advocates for Respondent. Dates of hearing: 16 and 17-9-1996 and 13-3-1997. judgment Mian Shakirullah Jan, J.--This appeal is directed against the judgment and order of the Special Court established under the Banking Companies (Recoveiy of Loans) Ordinance, 1979 (hereinafter referred to as the Ordinance) whereby, during the execution proceedings, .the application submitted by the appellant under Order XXI Rule 58 C.P.C. was turned down. 2. M/s. Adamjee Paper and Board Mills Ltd., respondent No. 1 (hereinafter referred to as respondent No. 1) a company, obtained loan and availed banking facilities from the Pakistan Industrial Credit and Investment Corporation Ltd. (respondent No. 2) and on account of failure of respondent No. 1 to pay the amount alongwith interest and other charges to respondent No. 2, the latter filed a suit for the recoveiy of an amount of Rs. 2,38,87,876/- before the Special Court Banking Companies and in which respect a preliminary decree was passed on 13.10.1993, and final decree was, stated to have been, passeii on 30.3.1994. The respondent No. 2 in pursuance of the decree obtained, initiated execution proceedings during which proceedings, the factory/property of respondent No. 1 was attached. The appellant, The Muslim Commercial Bank Ltd., during the execution proceedings, submitted an application under Order XXI Rule 58 C.PJ., making a prayer for the vacation of the order of attachment/sale of stocks, goods, assets which are lying at the factory premises of the judgmert-debtor, respondent No. 1. In the application, the appellant has stated thft it is also a Banking Company and the judgment-debtor has requested theappellant for credit and banking facilities against hypothecation of stock md fixed assets in the sum of Rs. 6,05,00,000/- and agreed to create a sg.ond charge and which facility was availed by respondent No. 1. It has alsobeen stated therein that in view of the continued failure and default on tie part of the appellant in making payment of the outstanding dues, thf appellant sewed respondent No. 1 with a notice dated 18.2.1993 callingupon it (respondent No. 1) to make payment of the amount then outstanding, due and payable and efter which the winding up proceedings were ?so initiated before the High Court of Sindh at Karachi vide J. Misc. No. 5>/94. The appellant stated tlut it had got the knowledge of the execution 'roceedings on 15.4.1995 when a public notice was published in the Bail' Mashriq, Peshawar to the effect that all the assets of respondent No. 1 vould be sold in the execution of a decree obtained by the decree-holder (jjspondent No. 2) and that the sailed bids for the same were invited. Thus the application in question was submitted before the Executing Court ftereinafter called as the Court) :>n 24.4.1995 vide C.M. No. 2/95. The or-er sheet of-the Court dated 24.4.1995 reveals that an auction was held in-he Court whereby after giving fulldetails of the auction proceedings, it was^lso observed :-- "The leaned counsel for the decree-holcer and the Deputy Managing Director PICIC after lonsented to accept the offer of Mr. Moazzam Ali Klan of Abid International. ................. They submitted writtei consent for the Acceptance of the improved bid of M/s Adil international an 4 a l so specified the schedule of payment whici is accepted t, the bidder." v % This bid was fr Rs. 22,00,00,000/- out of which rupees sevei crore was promised to te deposited on the acceptance of the bid and th: remaining amount wou3 be paid in annual installments of rupees thre crore per annum for t»e first three years and the balance of rupees six crae would be paid in the^th year. This order sheet, whereby the auction proeedings, as stated abfve, were ordered, also contains at the end with regard to the submission of application ia question by the appellant and after calling for reply fo' the said application and also the application for staying of the execut&n proceedings, 27.4.1995 was fixed for arguments on which late the impujned order was passed. 3. The learned Special Court after examining the merits of th> case am relevant provisions of law; arrived at the conclusion that the application tad been designed to unnecessarily delay the execution proceedings. The ippellant was in perfect knowledge of the fact that the Mills and the asets thereof were already mortgaged/hypothecated with the decree-holder and a reference was made to para-5 of the affidavit annexed with the application whereby the appellant had expressed its consent to create a second charge over the assets of the company/respondent No. 1 against the hypothecation of stock etc. for providing of facility of Rs. 6,05,00,000/-. The other factor which weighed with the learned Special Court was the conduct of the applicant by holding that the application had been designed to prolong the execution matter. It has been further observed in the impugned order that the record also shows that the property of the judgment-debtor both moveable and immovable was attached on 30.3.1994 and the advertisements were ordered to be published for the sale of the property in the newspaper on 25.9.1994 after which another publication was also issued in various leading newspapers of the country with a similar exercise for the third time and the application was submitted on 24.4.1995, that is, after a period of more than a year of the order of attachment The application was held by the Court to be time barred, as the same was neither filed within a reasonable time or within one year of the date of attachment in execution and no explanation was offered for this unnecessary delay in submission of the application. 4. The winding up proceedings, as stated earlier, had already been initiated by the appellant before the High Court of Sindh, Karachi and during which proceedings the Hon'ble Judge has ordered that the respondent-company was to be wound up vide his order dated 14.9.1995. As the instant appeal was pending in this court so the appellant approached the Sind High Court by submitting an application under section 316 of the Companies Ordinance, 1984 seeking permission to proceed with the instant appeal which application was accepted and the permission was granted, vide order dated 17.10.1995. 5. The learned counsel for the respondent No. 3, i.e. Adil International has raised two objections with regard to the lUJuntainability of appeal; (i) Limitation, i.e., that the appeal is time barred qua respondent No. 3; and (ii) Incompetency of the appeal on twofold ground : (a) Non-service of notice under Order XLIII Rule 3 C.P.C. (b) In view of the provisions of Section 12 of the Ordinance. 6. While stating the first objection regarding the limitation the learned counsel has contended that respondent No. 3 is a necessaiy party being an auction purchaser who has purchased the industiy through auction and a p>art of payment in this respect has also been made and it has been impleaded after the expiiy of the period of limitation. 7. The first part of the second objection is regarding the incompetency of appeal, it has been submitted that though an interlocutory order has been challenged through an appeal under the provisions of C.P.C. as the caption of the appeal indicates by mentioning Order XLIII Rule I (ii) read with Section 15 of the Ordinance, 1980 (Code of Civil Procedure Amendment Ordinance, 1980) and no notice as contemplated under Order XLIII Rule 3 C.P.C. has been given to the respondent and it has rendered the appeal as incompetent. 8. The other part of the second objection relates to the maintainability of appeal, as stated above, in view of the provisions of Section 12 of the Ordinance. The learned counsel for the respondent has submitted that the appeal is not maintainable as the order of the Special Court is under the Ordinance which has been challenged and the only provisions of the law for filing of the appeal is provided therein in the Ordinance which is Section 12 and if the appeal is not, and cannot be filed unde.r the provisions of Section 12 of the Ordinance then an appeal under any oth^r provision of law is not competent. 9. The learned counsel for the appellant was asked to meet the preliminary objections of the respondent but instead of giving .reply firstly, specifically, to the objections, he dilated upon the merits of the case by stating that the same can betterly be answered after elaborating tbe facts of the case and raising his contentions on that aspect of the case. His this lengthy argument mainly on the facts of the case obliged this Court to record the rival contentions of both the parties before giving finding on the preliminary objections. 10. The learned counsel for the appellant, in addition to his othfer contentions to the effect: (i) that the amount of Rs. 22,00,00,000/- for which the company has been auctioned is a lesser one and it could have been auctioned for Rs. 50,00,00,000/- if proper care and caution had been taken, and ; (ii) that no detail of the company assets had been given in tha auction notice and in the absence of which no proper offer could have been made, has laid much emphasis on the point that no investigation in the claim was held by the Court as envisaged in Order XXI Rule 58 C.P.C. and without carrying out any investigation the application was summarily dismissed which, according to him, required an investigation and thus an illegality was committed by the Court. Without regard to his contention (i) that the factory and its assets could fetch much more higher price, than the one for which it was auctioned, amounting to Rs. 50,00,00,000/-, the learned counsel for the auction purchaser expressed their readiness to transfer the company and its assets purchased by them through auction for the said amount to the appellant but their this offer was not responded positively on behalf of the appellant. In reply to the second contention it has been submitted on behalf of the respondent that during the execution proceedings it was not for one time that the publication was made for the auction of the company but it was several times and mainly on the ground that the offer used to be a lesser one and not acceptable to the decree-holder. The contention with regard to the details of the assets in tae auction notice, it has been submitted that, it is also not maintainable as if a,look is made at the notice then in addition to the brief resume given therein it had also been mentioned that the full detail could be ascertained from the Additional Kegistrar of this Court It has been further contended t^at these are objections pertaining to post attachment proceedings and ncc pre-attachment proceeding whereby the requirement of law is that it would be shown that the property was not liable to attachment on the basis offanafide claim and invoking of provisions of Order 21 rule 58 CPC were not £>r curing the defects in post auction proceedings. 11. With regard to the main point of the appellant that is, the nonholding of the investigation by the Court, it has been argued by respondents counsel ti'at it would be proper that a reference be made to the relevant provisions of law. According to Order 21 rule 58 CPC, the jurisdiction of the Court is invoked by a person who is having a claim or interest in the attached property and his assertion is that the property is not liable to such attachment by reason of his claim or interest. According to Order 21 Rule 60 C.P.C. in case the claimant succeeds then the property so attached is released wholly or partly on the ground that it is not liable to attachment on the basis of the title, right or interest of the claimant. Normally such like situations happen when a person has laid a claitti over the attached property by contending that it is his property and not of the judgment-debtor or that he is having a claim over the same on the basis of certain transactions or undertaking prior to the establishment of the claim of the decree-holder. It has been further argued that here in this case it is not the case of the appellant that the property is not belonging to the judgment-debtor or that the decree-holder is not having a claim over the said property but rather appellant's plea is that because of the creation of the second charge over the movable assets of the company the attachment of the whole of the property is not proper. The question is that the person who is having a claim on the basis of a second charge without any denial to the first charge of the decreeholder or that the property is not belonging to the judgment-debtor asserts that the property is not liable to attachment on the ground of a second charge. It has been submitted that the answer to the question would be in the negative because when the claim of the decree-holder is admitted .and the title of the judgment-debtor is also admitted then the natural consequence of such admitted facts, hi ease of a decree, would be the attachment of the property and no one would be allowed to have an objection to the attachment of the property. The conclusion derived by the learned counsel for respondent is, if one looks at the matter from this angle then it can definitely be said, that the property is liable to attachment and if anybody is having any claim at the most he could ask the court that any amqunt in excess of the decree should not be given or disbursed to the judgment-debtor but he kept or be given to him, or the decretal amount be distributed proportionately subject to agreement, if any, in case he proves his right to the said amount etc. 12. The learned court dismissed the petition mainly on the ground that it had been designedly or unnecessarily delayed and that the appellant had not filed the application within reasonable time or within a period of one year of attachment. It has been contended on behalf of respondents that it was not only once that the advertisements were made in the newspaper but, as stated earlier, the advertisements to this effect were made several times and not in one newspaper but in several newspapers having a wide circulation like "Dawn Karachi", "Muslim Islamabad", Mashriq Peshawar", "Nawa-e-Waqt" and "Jang Rawalpindi". It is the case of the appellant that it got knowledge through a publication published in the Mashriq Newspaper dated 15-4-1994 and still waited till a date when the auction was made on 24.4.1995 on which date the application was submitted in the court and the sequence of the order reveals that it was submitted subsequent to the auction and sale proceedings in the Court. Lastly it has been contended that when it is the case of the appellant that it got the knowledge through a publication in the newspaper then what the reasons were that through the previous publication in the various newspapers for various times spreading over months the same were not noticed by it. 13. We refrain to give our findings on the above-mentioned contentions of both the parties lest it may prejudice the parties in one way or the other as the appeal has been decided on the ground of preliminary objection i.e. maintainability of appeal in view of provisions of Section 12 of the Ordinance on the reasons to be discussed hereinafter in para 24 and onward. 14. The objection with regard to the limitation is taken first The impugned order was passed on 27-4-1995 and the appeal was filed on 3-5- 1995. The case was fixed for preliminary hearing at 8-5-1995 on which date a pre-admission notice was given. The appeal was again fixed for hearing on 30-5-1995 on which date it was admitted to full hearing. The appellant submitted an application for impleadment of Aadil International in the appeal as respondent on 30-5-1995 and an order to that effect was passed by this Court on 15-6-1995 for the impleadment of Aadil International, the auction purchaser. An application beai-ing C.M. No. 99/95 was also submitted on 14-6-1995 for the maintenance of status quo and restraining the respondents and on which application the order was passed on the said date, i.e., 15-6-1995 to the following effect:-- "Notice. Meanwhile the respondents are directed that no sale certificate shall be issued in favour of Aadil International." M/s Adamjee Paper and Board Mills was also impleaded in the appeal vide order dated 23-10-1995 of this Court. 15. The period prescribed for filing an appeal under section 12 of the Ordinance is 30 days while the period for filing an appeal under the Code of Civil Procedure is three months under Article 156 of the Limitation Act. According to the learned counsel for the respondent as the order of. The Special Court Banking is under challenge, the appeal would be considered under section 12 if otherwise competent, and has submitted that~the application for impleadment of Aadil International was filed on 30-5-1995 and the order was passed on 15-6-1995 for its impleadment and both are beyond the period of limitation of 30 days. Now it will be seen that a party which ought to have been made as such was not made inadvertently or by omission in due time, i.e., the period prescribed for filing of the appeal, then the delay is condonable and if it is, then under what provision of law. In this respect reference may be made to section 3 of the Ordinance and for the sake of convenience the same is reproduced as under :-- S. 3. Ordinance not to derogate from other laws The provisions of this Ordinance shall be in addition to and, save as hereinafter expressly provided, not in derogation of any other law for the time being in force. This section has clearly made applicable all the relevant laws of a particular aspect of subject of the case provided that has not been expressly excluded. 16. The learned counsel for the respondents, supporting their this contention, referred to Sections 3, 22 and 29 of the Limitation Act. According to Section 3, when an appeal or suit has been instituted or preferred after the period of limitation, shall be dismissed. According to Section 29, if any special or local law prescribed for any suit or appeal, a period of limitation different from the period prescribed by the Limitation Act, the provisions of section 3 shall apply. Section 22 alongwith other sections has been made applicable to cases under special law. According to Section 22, if a party is added to the suit which has already been instituted, then as regards the newly added party the suit shall be deemed to have been instituted when it was so made a party. Here in this case, it is not the suit but the appeal to which respondent No. 3 was added at the instance of the appellant after the a period of limitation and Section 22 is not applicable to the appeals. In this respect & reference may be made to a judgment of a Division Bench of the Lahore High Court reported as Syed Rahat Hussain Zaidi vs. Settlement Commissioner (1988 MLD 113) and while dealing with the question that Section 22 is applicable to the appeals or not it was observed as follows :-- "Now from the language used herein the counting of time limit is there but it is applicable only to the suits and there is no parallel provision as to appeals within the Limitation Act or to say that a plaintiff and a defendant shall include an appellant and respondent respectively, so the appellate Court has the discretion to substitute or add an appellant or respondent after the period of limitation prescribed for an appeal." Reliance was also placed in above referred case on a judgment of the Court of Wards on behalf of the Raja of Kanti vs. Gaya Parsad and others (ILR Allahabad Series Vol. II (1879) wherein it was held :-- "The first question arising in this appeal is whether or not the appeal so far as it affects Ram Manorath is barred by limitation.-By some carelessness he was not at first made a respondent and the period prescribed for appeal had expired before he has brought on the record as a respondent. By 22nd section of the Limitation Act it is provided that when after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall as regards him will be taken to have been instituted when he was so made a party. There is no analogous provision with respect to appeals, and therefore, it is competent-to the Court to exercise its discretion in allowing a party to be added to the record after the period prescribed for the admission of an appeal has elapsed ....................... " 17. Furthermore Order 41 rule 20 of the Civil Procedure Code empowers an appellate Court to direct that a person who is ought to be a party in appeal to be made a respondent. In ,a judgment reported in Said Muhammad and others vs. M. Sardar and others (PLD 1989 SC 532), while dealing with the question with regard to the impleadment of a person during the pendency of appeal under Order 41 rule 20 and while interpreting the words "interested party" which finds its mention in the above mentioned rule, it was held that if a person is not a party to the appeal, then holding him that it is not an interested party is not inviolable rule and while making reference to certain judgments of the Privy Council it was observed :-- "It did not foreclose the exercise of discretion to be exercised in the circumstances of the case and that this carried with it the power to condone the delay." While making reference to another judgment, it was observed :-- "the language of Rule 20 of Order JCLI does not show that it is exclusive or exhaustive so as to deprive a Court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by section 151 C.P.C." 18. While again referring to another judgment of the Indian jurisdiction Jalal Din vs. Karim Bakhsh (AIR 1930 Lahore 295), it was held as under :-- "If by omission the name of a party is left out due to oversight, the proper course for the appellate Court is to exercise its powers under Order XLI rule 20 and implead the party so omitted in appeal." In the case (PLD 1989 Supreme Court 532) supra the nonimpleadment of a person as party in the case was held as an inadvertent error and while remanding the case back to the appellate Court it was directed to implead him as a respondent in the appeal and to dispose it of in accordance with law. 19. Order I rule 10 of the C.P.C. which empowers a Court to add any person as a party who ought to have been joined or whose presence before the Court is necessary in order to enable'the Court to adjudicate effectually and completely upon all the questions involved in the suit. According to section 107 C.P.C. the appellate Court shall have the same powers and to perform the same duties as are conferred and imposed by the C.P.C. on courts of original jurisdiction in respect of suits. By reading these provisions together, then the appellate Court can add a party to appeal if necessaiy. In the case referred to above as 1988 MLD 113, it was held that this rule when read with section 107 CPC is applicable also to an appeal. It was observed :-- "In the present case it is true that the right of the coappellants to appeal therefrom the judgment, has become time barred by 65 days when they were added as coappellants to this appeal but this will not have its impact upon their position when so added so as to say that the appeal regarding them will be treated to have been filed when they are added as parties as in the suits." In this context a reference was made to Section 22 of the Limitation Act that-the provisions of which are not applicable to appeals. 20. The court even otherwise, has got sufficient powers under section 151 CPC to add any party to the appeal and in this respect a reference can be made to a judgment reported as Shanti Lai and others vs Firm Hira Lai Sheo Narain (A.I.R. 1941 Lahore 402) wherein it has been held:-- "Apart from 0.41, R. 20 the Court has ample power under S. 151, Civil P.C. to add a party to the appeal even after the expiiy of the period of limitation prescribed for appeals, if in the circumstances of the particular case before it, it thinks fit to do so." 21. The result of the above discussion would be that though respondent No. 3, Aadil International has been impleaded when the period of limitation has run out for filing the appeal but that would be of no consequence in view of its subsequent impleadment in the appeal. 22. The non-compliance of Order XLIII rule 3 of the CPC by not giving a notice for filing of appeal to the respondent, in the instant case, would be of no consequence. Both the parties have relied upon the judgment reported as Mrs. Dina Maneji Chinoy vs. Muhammad Matin (PLD 1983 S.C. 693) wherein it was held that notice under Order XLVIII rule 3 CPC is a mandatoiy one and no appeal can be entertained without issuance of the requisite notice and this part of the judgment as relied upon by respondent No. 3. In this judgment it was also held that when all the objects for which the above mentioned provision inserted were satisfied in substance then it should not stand in the way of the appellant to make his appeal liable to dismissal by observing that a party could not be allowed to be defeated for failure to comply with the form where the substance had, in fact, been complied with. A pre-admission notice has been given in the appeal and now it has been admitted that an opportunity has been afforded to the respondents to present their case and it is not their case that any document to which reference is being made during the hearing of the appeal has not been supplied to him or that he is otherwise taken by surprise. The relevant' portion of the judgment gives a complete answer to the contention/objections of both the parties which is reproduced herein below :- "18. The above portion highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limine stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not to possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be last and resultantly the provisions of sub-rule (2) of Rule 3 would be rendered futile, inutile and nugatoiy. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is ' obligatory and no appeal can be entertained without ' issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his advocate to submit, alongwith the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his advocate by delivering him a copy of the memorandum and grounds of appeal alongwith the copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained. 19. In the instant case, we observe that the learned Division Bench had issued a pre-admission notice to advocate of the respondents (the petitioner herein) and their advocate Mr. Akhtar Mahmood was present on pre-admission notice. Thus, he could contest the admission of the appeal and seek its dismissal in Hmine. No rievance, furthermore, was made by him to the effect that any document to which reference was being made during the hearing of the appeal has not been supplied to him or that he was otherwise taken by surprise. Thus, in this case all the objects for which rule 3 was inserted in Order XLIII of the CPC were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pcerzada, should be utilized as "stepping stones" rather than we might add, as stumbling block; the right of a party in this case to have his appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtaiz Ahmad vs. Ghulam AH and others (1) and Manager, J & K State property in Pakistan vs Khudayar (2). 20. On this view of the matter, we would uphold the decision of the learned Judges of the Division Bench to reject the preliminary objection and in finding that the appeal preferred before them by the respondent herein was liable to be disposed of on merits." This objection of the respondents, in view of discussion above, is also over-ruled. 23. If the appeal is found maintainable in view of the provisions of Section 12 of the Ordinance then these two objections would not stand in way of the appellant and which (maintainability u/s 12) will be seen hereinafter. 24. The last but'no least objection of the respondent is in respect o!' j the maintainability of the appeal on the ground of the provision of section li! J of the Ordinance. The opening sheet as well as the caption of the appeal indicate that the appeal was intended by the appellant to have been fileJ under Order 43 rule (1) (ii) CPC read with section 15 of Ordinance X of 1980. The admitted position is that though the proceedings were pending before a Judge of the High Court but he was not acting as a Judge of the High Court but he was acting as a Judge of the Special Court established under the Ordinance. Right of appeal has been given to an aggrieved party against a judgment and decree or order of the Special Court to be filed in the High Court which shall be heard by a Bench of not less than two Judges. This section is having a proviso whereby filing of an appeal from an interlocutory order which does not dispose of the entire case has been debarred. Section 11 gives finality to the orders of the Special Court by dis allowing any challenge to it before any Court or other authority except in accordance with the provision of appeal under section 12. By reading sections 3, 11 and 12 it is manifest that if any person is feeling aggrieved of an order of a Special Court he can file an appeal only under section 12 and not under any other provision of law as Section 3 precludes the applicability of any other provision of law which has been provided for in the Ordinance and section 12 with regard to the filing of appeal provides the relevant forum and the grounds upon which an appeal will have to be filed, with a complete bar with regard to filing of an appeal against an interlocutory order. Section 11 also excludes the challenge to an order of the Special Court before any forum or authority except provided in Section 12 of the Ordinance. Moreover, the Ordinance is a special statute which would exclude the application of any other law which comes in conflict with its (Ordinance) provisions and as it has been seen above, section 3 of the Ordinance gave an over riding effect to the provisions of the Ordinance, 25. The question is that whether any such appeal against the order of a Special Court would be competent under any other provision of law except section 12 of the Ordinance, as has been filed in the instant case under Order 43 rule 1 (ii) C.P.C. Section 12 on one hand gives a right to a person against whom a decree or order has been passed to file an appeal in the High Court yet at the same time it makes certain provision debarring a person against whom interlocutory order, which does not dispose of the entire case, has been passed to file an appeal. For this purpose a reference will have to be made to the Constitution of the Special Court and also the High Court while acting as the appellate Court under the Ordinance. According to section 2(f) (ii) of the Ordinance, the High Court while tiying a suit under the Ordinance would be a Special Court and will act in the exercise of its civil original jurisdiction. Then for the purpose of Section 12 of the Ordinance it will be also treated as a Special Court. 26. In a case reported as PLD 1987 Karachi 501 while commenting upon the provision of Section 12 of the Ordinance and the filing of an appeal "A perusal of the above caption of the appeal indicates that the appellant has also referred to Section 12 of the Ordinance. In our view since the application was decided by the Je<ss-/?ed SJ^gJe Jxdg& tvhJJe dexJJxg- HvtJ? g jutt ftied under the provisions of the Ordinance the right of appeal, if any, is to be pressed into service in terms of the provisions of the Ordinance and not from any general law on the subject. Proviso to subsection (1) of section 12 of the Ordinance bars an appeal from an interlocutory order which does not dispose of the entire case before the Special Court ." 27. The appellant by filing appeal against the order of Special Court under other provisions of Section 15 of Ordinance X of 1980 and Order 41 rule l(ii) itself treating the order as interlocutory otherwise would have filed appeal under section 12 of the Ordinance. However, this by itself would not non-suit the appellant or debar the Court to treat the appeal under relevant provision of law instead of having been mentioned in the memorandum of appeal if otherwise competent. The case pending before the court is in the nature of execution proceedings and which have not been finalized as according to the parties sale has taken place in favour of respondent No. 3 and according to whom the possession has been delivered but admittedly the sale certificate as required under Order 21 rule 94 has not been issued. Moreover, it is the attachment/auction which have been challenged after which certain steps are required to be taken i.e., the confirmation of sale under Order 21 rule 92 and issuance of sale certificate as stated above. Thus the order has not disposed of the entire case, i.e. the entire execution proceedings but still pending and order of stay dated 15-6-1995 has been obtained from the Court during the pendency of the appeal that the sale certificate not be issued, (order reproduced in para 14 supra). 28. In view of the bar contained in Section 12(1) of the Ordinance, the appeal against an interlocutory order was held to be barred and would not be competent under any other provision of law as stated earlier. Though the appeal is a substantive right but the forum to which the appeal lies as a matter of procedural law and which is provided by the enactment itself and which in the instant case has been provided under section 12 of the Ordinance. 29. Such points have been dealt with by the august Supreme Court in a number of cases which have been decided through a single judgment as reported in Pakistan Fisheries Ltd., Karachi and others us. United Bank Limited (PLD 1993 Supreme Court 109). In all those cases the appellants/customers applied for grant of appeal to defend the suit and a learned Single Judge of the High Court, acting as Special Court, by means of different orders granted conditional leave of the suit subject to furnishing of the security in each case. The appellants' claim was that they were entitled to unconditional leave to defend the suits and thus aggrieved of imposition of the condition as to the furnishing of security, they challenged the leave granting orders through appeal under section 15 of Ordinance 10 of 1980. While interpreting the word 'case' used in the proviso of Section 12(1) of the Ordinance in the context as under :-- "interlocutory order which does not dispose of the entire case before the Special Court ." and after discussing the contention raised by the learned counsel for the appellant and also by making a reference of the word 'case' used in other section of the Ordinance with a particular reference to Section 13, it was concluded as follows :- "We have no doubt that the word 'case' appearing in this clause signifies 'suit' and not some controvertial matter arising out of or forming part of the suit." It was further observed : "As a result of this analysis we are firmly of the view that the word 'case' has been used in the proviso in the sense of a suit and not to convey the meanings canvassed by the learned counsel on the analogy of section 115 C.P.C." The other question before the august Supreme Court was also the very nature of the jurisdiction and status of the High Court while acting as a Special Court and the competency of the appeal under section 15 of the Ordinance 10 of 1980 in this respect findings of the Hon'ble Supreme Court were as under :-- "So far as Section 12 is concerned, there is nothing therein to construe the High Court as different from the Special Court defined in Section 2(f) of the Ordinance." It was further observed :-- "It seems to us that by expression "original civil jurisdiction" as used in the Ordinance is meant the trial of the suit on the original side of the High Court. The term has not been used in the technical sense as understood with reference to the Letters Patent of some High Court Sub-Continent, but has been employed in centra-distinction to the appellate and revisional jurisdiction exercised by the High Court. The jurisdiction conferred on the High Court under the Ordinance is special jurisdiction and while exercising such jurisdiction the High Court bears fictional character of a Special Court as defined in the Ordinance."and at the end it was concluded to the following effect :-- "Combined effect of these provisions is that the judgment and order passed by a Special Court cannot be assailed before any forum except in accordance with the provisions of Section 12." In the said judgment the object of the Ordinance was also held to be to secure expeditious disposal of the cases by the Special Court. The challenge to the interlocutory order was disapproved and ultimately the appeals filed before the Supreme Court were dismissed, upholding the judgment and order of the High Court whereby the appeals filed by the appellants were held as incompetent. 30. Another aspect of the case is also considered that if the appeal is not competent then whether the same can be treated as revision. This point came up for consideration in cases reported as Azhar liussain vs. Chartered Bank Ltd. Faisalabad and 17 others (PLJ 19S1 Lahore 5S3) Muhammad Ayub Butt vs. Allied Bank Ltd. Peshawar and others (PLJ 1981 Supreme Court 795). The question involved in the cases was whether a revision petition preferred against an interlocutory order of a Special Court was competent or not wherein it was held after making a reference to Section 3 of the C.P.C. that the Special Court under the Ordinance was not a subordinate to the High Court and the revision petition was held to be incompetent. Section 3 of the C.P.C. is reproduced with advantage :-- "3. Subordination of Courts :-- For the purposes of this Code, the District Court is subordinate to the High Court and every civil Court of a grade inferior to that of a District Court and eveiy Court of Small Causes is subordinate to the High Court and District Court." The relevant portion of the judgment of the Supreme Court is reproduced below :-- "No amendment has been made in section 3 of the Code of Civil Procedure so as to declare a Special Court also as a Court Subordinate to the High Court nor is there any ' provision in the Ordinance to the effect that a Special Court shall be deemed to be a Court subordinate to the High Court for the purposes of Section 115 of the Code of Civil Procedure." Reliance was placed on Wqjahat Mi Hasni vs. Mst. Ghazala (PLD 1970 Lahore 641). According to Section 4 of the Code of Civil Procedure, an over-riding effect has also been given to any provision of special statute over the provision of the Civil Procedure Code and it reads :-- "4. Savings.--(l) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force." 31. In this respect some observations with regard to Section 4 of the Civil Procedure Code and sections 11 and 12 of the Ordinance have also been recorded in the above-referred cases of Supreme Court which are to the following effect :-- "Undoubtedly, a Special Court is a Court of special jurisdiction and sections 11 and 12 of the Ordinance preclude the High Court from exercising its rcvisional jurisdiction qua the orders of the Special Court. It would, therefore, follow that in view of the provisions of sections 11 and 12 of the said Ordinance read with section 4 of the Code of Civil Procedure the orders of the Special Court cannot be assailed before the High Court in revision by resorting of the provisions of section 115, C.P.C., i.e., revision is also not maintainable." 32. In view of the matter the appeal, apart from section 15 of Ordinance X of 1980, is also not competent under Order 43, rule l(ii), C.P.C. The conclusion would be that the appeal has been filed against an interlocutory order of the Special Court would not be competent under section 12 of the Ordinance and no appeal can be filed under any other provisions of law. 33. Though some references have been made in para supra of this judgment to certain provisions of the Civil Procedure Code for example e.g., Order 21 rules 60 and 90 but as under section 6 of the Ordinance the power of execution has been given to the Special Court and the application of those provisions have not been ousted by Section 3 of the Ordinance like Section 12. 34. -Consequently, we hold that the appeal being incompetent, not maintainable is, therefore, dismissed with no order as to costs. (B.T.) Appeal dismissed.
PLJ 1997 Peshawar 138 (DC) PLJ 1997 Peshawar 138 (DC) [D.I. Khan Bench] Present: first judge's name is not decipherable and mian shakirullah jan, J J. M/s. REHMANIA HOSPITAL-Petitioner versus GOVERNMENT OF PAKISTAN through MINISTRY OF FINANCE etc.--Respondents Writ Petition No. 11 of 1995, dismissed on 23.10.1996. Income Tax Ordinance, 1979 (XXXI of 1979)-- -Art. 199--Income Tax Ordinance, 1979 S. 63--Self Assessment Scheme- Case selected for total audit-Challenge to-Writ Jurisdiction in Tax matters-One of conditions for grant of relief in writ jurisdiction of High Court is that petitioner before it should not have any alternative adequate remedy-In this case, a remedy by way of appeal, was available-- Therefore, no relief could be granted to petitioner under Article 199 of Constitution-Petition has no force, hence, dismissed. [P. 141 & 143] A & B NLR 1993 Tax 27, PLD 1989 SC 109, PLD 1992 SC 847, 1993SCMR1108re/. Muhammad Saleem Jan, Advocate for Petitioner. Mr. Eid Muhammad Khan Khattak, Advocate for Respondents. Date of hearing: 7.10.1996. judgment Mian Shakirullah Jan, J.-The petitioner, who is Income-Tax Assessee, felt aggrieved originally of a notice dated the 27th March, 1993, informing him with regard to the selection of his case for total audit under para-4(ii) of the Self Assessment Scheme for the Assessment Year, 1992-93 and subsequently by the orders of the Income Tax Authorities, approached this Court through the present writ petition. 2. The brief facts of the case are that the petitioner runs a Hospital and being an Income Tax Assessee, filed his return of income for the assessment year, 1992-93 at net income of Rs. 50,000/- and paid Income-Tax at Rs. 2,300/- under the Self Assessment Scheme vide Circular No. 16 of 1992 (Income-Tax). The petitioner, as stated above, was informed through a letter No. 96367 dated 27.3.1993 by the Income-Tax Officer, Dera Ismail Khan Circle, D.I. Khan that his case has been selected for total audit and in consequence of which proceedings were initiated by the Assistant Commissioner of Income Tax, Circle-16, D.I. Khan (respondent-6) and the assessment was framed ex parte under Section 63 of the Income-Tax Ordinance, 1979 (hereinafter referred to as the Ordinance). The assessment so framed exparte under Section 63 of the Ordinance reads as unden- "Income is computed as under: Gross receipts are taken from all heads discussed above including services rendered by the four doctors, on estimate. Less expenses claimed at Rs. 1,21,200/- but restricted to Rs. 1,20,000/- Balance net income Assessed as per IT-30 Issue DNC. Dated 23.1.1994." The petitioner challenged the said order of assessment through an appeal before the Appellate Additional Commissioner of Income-Tax, Peshawar Range (respondent No. 5) who passed the following orden- "Under the circumstances and in the absence of any clue regarding the status claimed on the face of the return filed for the year under appeal, it is considered appropriate to set aside the assessment with the directions that while making fresh assessment appellant's application dated 25.4.1993 should be given full consideration and assessment made accordingly." The petitioner instead of facing the proceedings before the forum concerned approached this Court through its Constitutional jurisdiction by challenging the order/action of the respondents. 3. The emphasis of the learned counsel for the petitioner was mainly on the ground that, according to Para-4(ii) of Circular No. 16 of 1992 (Income-Tax), once the return had been filed by the assessee under the Self Assessment Scheme, then his case could not be selected for total audit unless the authorities having a definite information based on material evidence as is the requirement of the said para. But in the instant case, such a material and definite information was lacking and the selection of the petitioner for total audit was unwarranted and without jurisdiction and, he was of the view that, in such like situation the Constitutional jurisdiction of this Court can be invoked. 4. For the sake of convenience, the relevant Para-4(ii) of Circular No. 16 of 1992 (Income-Tax) is reproduced below: - "Circular No. 16 of 1992 (Income Tax). "Selection of Cases for Audit. 4. From amongst those qualifying for the Self Assessment Scheme returns may be. selected for audit: - (i) through computer; ............................................... (ii) with approval of Regional Commissioner of income tax where gross under statement of income is suspected on the basis of definite information based on material evidence." 5. With regard to competency of the writ petition, in view of availability of other adequate remedies under the Statute, the learned counsel for the petitioner has relied on: (i) Cannon Products Limited vs. Income-Tax Officer, Companies Circle, Karachi and 2 others (1985 PTD 549) (Karachi High Court), (ii) M/s. Spiceco International vs. Revisional Commissioner of Income-Tax, Southern Region, Karachi and another (1993 PTD 1007) (Karachi High Court), (iii) Messrs Muhammadi Oil Trading Co. through Partner, Karachi vs. Regional Commissioner of Income-Tax, Southern Region, Karachi and another (1994 PTD 494) (Karachi High Court) and (iv) Messrs Kamran Industries vs. The Collector of Customs (Exports), Customs House, Karachi and 4 others (PLD 1996 Karachi 68). 6. On the other hand, the learned counsel for the respondents has vehemently argued that other adequate remedies were available to the petitioner under the Statute in the shape of appeal/revision and reference to the High Court and in such circumstances a recourse to the High Court in writ jurisdiction is unwarranted particularly when he has made a recourse to the forum of appellate authority provided under the Statute and in this respect he relied upon: (i) Commissioner of Income-Tax, Companies-II and another (PLD 1992 SC 847), (ii) The Commissioner of Income Tax etc. vs. M/s N.V. Philip's Gloeilampenfabnaken (NLR 1993 Tax 174), (iii) Adamjee Insurance Company Ltd. vs. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad etc. (NLR 1993 Tax 227), (iv) Income-Tax Officer and another vs. M/s. Chappal Builders (1993 SCMR 1108), (v) M/s Grays of Cambridge (Pak) Limited, Sialkot vs. The Deputy Commissioner of Income-Tax, Circle-01, Sialkot and another (Civil Petitions Nos. 1229 and 1230-L of 1995 decided on 18.3.1996), (vi) Messrs Samee Electronics vs. Assistant Commissioner of Income-Tax, Circle-10, Lahore (1996 PTD-36) (Lahore High Court) and (vii) Writ Petition No. 372/1993 (M) decided on 12.10.1993 (Peshawar High Court). 7. While examining the above quoted judgments, it seems that the preponderance and the recent trend of the judgments of the Superior Courts favouring the respondents on the view point i.e. that in the presence of statutory remedy under the Income-Tax Ordinance approach to the High Court thl'ough a writ petition has been disapproved In the case of Adamjee Insurance Company Ltd. (NLR 1993 Tax 227) cited above their Lordships of the Supreme Court observed as unden- " ....... But where a notice under Section 65, culminates into an assessment order, which can be assailed through an appeal, but no appeal is filed and the assessee approaches the High Court, very strong reasons are needed to allow him to by-pass that remedy. 10. In Muhammad Arif Dar v. Income-Tax Officer (PLD 1989 SC 109) this Court upheld the High Court's refusal to interfere in exercise of writ jurisdiction with re-assessment order passed in pursuance of notice under Section 65 and maintained:- 'One of the conditions for grant of relief in writ jurisdiction of the High Court is that the petitioner before it should not have any alternative adequate remedy. In this case, a remedy by way of appeal, as mentioned in the impugned order, was such remedy. Therefore, it is correct that no relief could be granted to the petitioner under Article 199 of the Constitution.' Similar was the view expressed in Commissioner of Income-Tax vs. Hamdard Dawakhana (Waqf) (PLD 1992 SC 847, at p. 861-862) re-produced below:- Before parting with the judgment we may obsei-ve that in cases where any party resorts to a statutory remedy against an order he cannot abandon or by-pass it without any valid and reasonable cause and file Constitution petition challenging the same order. Such practice, in cases where statute provides alternate and efficacious remedy upto High Court, cannot be approved or encouraged. In a recent judgment of this Court in C.A. 79-K of 1991, one (Ajmal Mian, J.) in similar situation observed as follows:- 'We may now revert to the question, whether the appellant was justified to file above Constitution petition against the order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Rehan Naqvi, a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been head. The same could be true for a Constitution petition.' 'The tendency to by-pass the remedy provided under the relevant statute and to press into service Constitutional jurisdiction of the High Court has developed lately which is to be discouraged. However, in certain cases invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper.' . ' 'In the present case, the appellant had opted to avail of the hierarchy of forums provided for under the Ordinance upto the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a Constitutional petition. In our view, once a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet will switch over to ..Constitutional jurisdiction of the High Court in the mind of the proceeding in the absence of any compelling and justifiable reason.' For all these reasons, we hold that the discretion exercised by the High Court in dismissing the writ petition on the rectitude of availability of adequate alternate remedy, is well grounded and does not call for interference. There is no merit in these appeals, which are dismissed, leaving the parties to bear their own costs." 8. In the case of Income-Tax Officer and another (1993 SCMR 1108) cited above the Honourable Judges in the Supreme Court held the case of the assesses good on merits but the approach to the High Court through a writ jurisdiction was disapproved without exhausting the statutoiy remedy and it was observed as under:- "When after considerable arguments we had already reached the above conclusion and had also announced it and the consequential dismissal of the appeals was yet to be announced, the learned counsel for the appellants brought to our notice that the respondent in this case approached the High Court in its writ jurisdiction without seeking and exhausting the statutoiy remedies. In several of the veiy recent judgments we have not approved in such situation the interference by the High Court in tax matters, when the normal course being adopted by almost all the High Courts in matters other than tax, rule of alternate remedy is being followed." 9. As a sequel to the above discussion, this writ petition has got no force and is dismissed accordingly. The parties are, however, left to bear their own costs. (MYFK) Petition dismissed.
PLJ 1997 Peshawar 143 (DB) PLJ 1997 Peshawar 143 (DB) [D.I. Khan Bench] Present: first judge's name is not decipherable and mian shakirullah jan, J J. M/s. REHMANIA HOSPITAL D.I.K.-Petitioner versus GOVT. OF THE PAKISTAN through MINISTRY OF FINANCE, ISLAMABAD and 4 others-Respondents W.P. No. 17, 20, 22, 23, 53 & 54 of 1995, dismissed on 7.10.1996. Income Tax Ordinance, 1979 (XXXI of 1979)-- S. 63-Self-assessment scheme Para-4(ii) read with Circulation No 9 of 1994-Contention that according to Para-4(ii) of Self-Assessment Scheme a ease can only be selected for total audit when income is suspected on the basis of definite information based on material evidence-Held: Entire edifice of petitioner falls to the ground in view of amendment of Para-4(ii) in Circular No. 9 of 1994 wherein conditions of definite information and material evidence have been omitted and selection of case for total audit can be made by relevant authorities without fulfillment of any precondition-Petition dismissed. [Pp. 145 £ 146] A & B Mr. Saleem Jan Khan, Advocate for Petitioner. Mr. Eid Muhammad Khan, Khattak, Advocate for Respondent. Date of hearing: 7.10.1996! judgment Mian Shakirullah Jan, J.-By this single judgment we propose to dispose of this writ petition alongwith W.Ps. Nos. 20/1995, 22/1995, 23/1995, 53/1995 and 54/1995 as in all these writ petitions common questions of -law i.e., the legality of selection of cases for total audit under Para-4(ii) of Circulars Nos. 16 of 1992 and 9 of 1994 relating to Self Assessment Scheme, are involved. 2. In this writ petition, the petitioner M/s Rehmania Hospital filed its return of income for the assessment year, 1994-95, under the Self Assessment Scheme declaring net income at Rs. 60.000/- and tax paid thereon as Rs. 3.300/- vide Circular No. 9 of 1991 (Income-Tax). By letter No. 96367 dated 23.2.1995 the Assistant Commissioner of Income-Tax respondent No. 5 herein, informed the petitioner that its case had been selected for total audit under Para-4(ii) of the Self Assessment Scheme. 3. In W.P. No. 20/1995 the petitioner Fazal and Co. filed its return of income for the assessment year, 1994-95 under the Self Assessment Scheme declaring the net income at Rs. 68,000/- and tax paid thereon as Rs. 4,100/- vide Circular No. 9 of 1994. By letter No. 96395 dated Nil the Income-Tax Officer, respondent No. 5 herein, informed the petitioner that its case had been selected for total audit under Para-4(ii) of the Self Assessment Scheme for the year, 1994-95 and, therefore, its return could not be accepted. 4. In W.P. No. 22/1995 the petitioner Akhtar Munir and Partners filed their return of income for the assessment year, 1994-95 under the Self Assessment Scheme declaring net income at Rs. 32.000/- and tax paid thereon Rs. 500/- vide Circular No. 9 of 1994. By letter No. 154002 dated Nil the Income-Tax Officer, respondent No. 5 herein, informed the petitioner that its case had been selected for total audit under Para-4(ii) of the Self Assessment Scheme for the year, 1994-95 and, therefore, its return of income could not be accepted. 5. In W.P. No. 23/1995 the petitioner Muhammad Younis and brothers filed its return of income for the assessment year, 1994-95 under the Self Assessment Scheme declaring net income at Rs. 32.000/- and tax paid thereon as Rs. 500/- vide Circular No. 9 of 1994. By letter No. TR-167 dated Nil the Income-Tax Officer, respondent No. 5 herein, informed the petitioner that its case had been selected for total audit under Para-4(ii) of the Self Assessment Scheme for the year, 1994-95 and, therefore, its return of income could not be accepted. 6. In W.P. No. 53/1995 the petitioner Alamgir Khan filed his return of income for the assessment year, 1994-95 under the Self Assessment Scheme declaring net income at Rs. 33,000/- and tax paid thereon as Rs. 600/- vide Circular No. 9 of 1994. By letter No. 125475 dated 28.2.1995 the Income-Tax Officer, respondent No. 5 herein, informed the petitioner that his case had been selected for total audit under Para-4(ii) of the Self Assessment Scheme for the year, 1994-95 and, therefore, his return could not be accepted. 7. In W.P. No. 54/1995 the petitioner Amaldar Khan filed his return of income for the assessment year, 1994-95 under the Self Assessment Scheme declaring net income at Rs. 33,000/- and tax paid thereon as Rs. 600/- vide Circular No. 9 of 1994. By letter No. 125477 dated 28.2.1995 the Income-Tax Officer, respondent No. 5 herein, informed the petitioner that his case had been selected of total audit under Para 4(ii) of the Self Assessment Scheme for the year, 1994-95 and, therefore, his return could not be accepted. 8. The respective letters in each case as aforesaid selecting the cases of the petitioners for total audit under the Self Assessment Scheme have been impugned in these writ petitions. 9. The main contention of the learned counsel for the petitioner is that according to Para-4(ii) of the Self Assessment Scheme a case can only be selected for total audit when the income is suspected on the basis of definite information based on material evidence and in this respect the said Para 4(ii) has also been reproduced in paras (ii) and (iii) of the grounds of respective writ petitions. The petition further indicates that the case of the petitioner has been selected under Para-4(ii) under the Scheme as contained in Circular No. 9 of 1994, a copy of which has also been placed on the file of each petition. The perusal of Para 4 (ii) does not show that the case can only be selected if the income is suspected on the basis of definite information based on material evidence as referred to at the time of arguments and also in the writ petitions. However, such conditions were available in Circular No. 16 of 1992 (Income Tax) but the same are omitted from the said para of Circular No. 9 of 1994. In order to appreciate the distinction between the two relevant paras, first para of Circular No. 16 reads as urider:- "Circular No. 16 of 1992 (Income-Tax) ± Selection of Cases for Audit. 4. From amongst those qualifying for the Self Assessment Scheme returns may be selected for audit:- (i) through computer ................................... (ii) with the approval of Regional Commissioner of income tax where gross under statement of income is suspected on the basis of definite information based on material evidence." Similarly, the relevant para of Circular No. 9 of 1994 is reproduced bclow:- "Circular No. 9 of 1994. Selection of cases for Audit. (i) through computer .................................. ; (ii) by the Regional Commissioner of Income Tax on initiation by the Commissioners of Income-Tax." The above mentioned subsequent para referred to and applicable to the case of the petitioner does not visualise any such condition of definite information and material evidence as referred to by the learned counsel for the petitioner. 10. On the other side, the learned counsel for the respondents has, contended that in view of statutory remedies available to the petitioners in the form of appeal/revision etc. and that the petitioner could have advanced the grievance by availing of the said remedies before the concerned authorities, the writ petitions are not maintainable. Reliance in this respect has been placed on: (i) Commissioner of Income-Tax, Companies-H and another (PLD 1992 SC 847), (ii) The Commissioner of Income Tax etc. vs. M/s N.V. Philip's Gloeilampenfabriakcn (NLR 1993 Tax 174), (iii) Adamjee Insurance Company Ltd. vs. Pakistan through the Secretary to Governmen of Pakistan in the Ministry of Finance, Islamabad etc. (XLR 1993 Tax 227), (iv) Income-Tax Officer and another vs. M/s. Chappal Builders (1993 SCMR 1108), (v) M/s Grays of Cambridge (Pali) Limited, Sialkot vs. The Deputy Commissioner of Income-Tax, Cirde-01, Sialkot and another (Civil Petitions Nos. 1229 and 1230-L of 1995 decided on 18.3.1996), (vi) Messrs Sameer Electronics vs. Assistant Commissioner of Income-Tax, Cirde-10, Lahore (1996 PTD 36) (Lahore High Court) and (vii) Writ Petition No. 372/1993 (M) decided on 12.10.1993 (Peshawar High Court). 11. The learned counsel for the .petitioner, in reply, has placed reliance in support his contention with regard to the maintainability of the writ petition on: (i) Cannon Products Limited vs. Income-Tax Officer, Companies Circle, Karachi and 2 others (19S5 PTD 549) (Karachi High Court), (ii) M/s. Siceco International vs. Regional Commissioner of Income Tax, Southern Region, Karachi and another (1993 PTD 1007) (Karachi High Court), (iii) Messrs Muhammad Oil Trading Co. through Partner, Karachi vs. Regional Commissioner of Income-tax, Southern Region, Karachi and another (1994 PTD 494) (Karachi High Court) and (iv) Messrs Kamran Industries vs. The Collector of Customs (Exports), Customs House, Karachi and 4 other» (PLD 1996 Karachi 68). 12. The examination of the rulings referred to above on both sides reveals that the view point of the respondents is having the support of the latest judgments of the Superior Courts including the Supreme Court. Apart from the above mentioned prevailing objection of the learned counsel for the respondents, the entire edifice of the learned counsel for the petitioner falls to the ground in view of amendment of Para-4(ii) in Circular No. 9 of 1994 wherein the conditions of definite information and material evidence have been omitted and the selection of the case for total audit can be made by the relevant authorities without fulfilment of any pre-condition like the one referred to above. ,13. Resultantly, we see no substance in these writ petitions and the same are" dismissed. The parties are, however, left to bear their own costs." Above are the reasons for our short order. (K.K.F.) Petitions dismissed.
PLJ 1997 Peshawar 147 PLJ 1997 Peshawar 147 Present: sardar muhammad raza and mahboob ali khan, JJ. RIASAT KHAN-Petitioner versus - THE STATE and another-Respondents Writ Petition No. 20 of 1997, decided on 16-2-1997. Criminal Procedure Code (V of 1898)-- Ss. 516-A, 523/550 & 88-Constitutional petition-Custody of Truck on Superdari-Contention that truck in dispute being neither a stolen property nor having been used in commission of any offence, recovery and procession of the same by police under S. 523/550, Cr.P.C. was illegal and without jurisdiction-Impression was given by police that owner of truck was an absconder-Police cannot acquire possession without obtaining a warrant under -Section S3, Cr.P.C. and no such warrant was taken-Recovery is unlawful on this score as well-Petition accepted. [P. 148] A & B M. Abdullah Khan Tanoli, for Petitioner. A.A.-G. for the State. Date of hearing: 16-2-1997. judgment Sardar Muhammad Raza, J.--A Truck No. MR-1G9G stands taken into possession by the Police of Havelian apparently under section 523/550, Cr.P.C. Riasat Khan 'son of Khushal Khan claimed to be the owner thereof but the delivery of truck was refused to him on Superdari and hence the has come to this Court invoking its Constitutional jurisdiction under Article 199 of the Constitution. 2. After hearing both sides at length, and specially Mian Inayat-ur-Rehman, the S.H.O., Police Station Havelian, we have come to notice that the trucS in question was recovered by the police from Village Langral and hence was kept in custody with reference to the ~ provisions of section 523/550, Cr.P.C. On the one hand the aforesaid sections are applied to the recovery and on the other hand it is claimed that the truck is the ownership of one Muhammad Saleem who is an absconder in some murder case. 3. If the police is definite about the title of the truck, we have no hesitation in concluding that it is neither a stolen property nor a property used in the commission of offence and hence the application of section 523/550, Cr.P.C. is utterly illegal. The recovery being illegal and without jurisdiction, the question arises as to whom the delivery should be given pending the dispute. 4. Riasat Khan claims to be the purchaser of the truck from the aforesaid absconder Muhammad Saleem many months prior to seen the commission of the murder attributed to Muhammad Saleem. He has open transfer letter in his possession. Against this evidence there is nothing in rebuttal with the State except the argument that the registration of Mr-1696 pertains to a Bus and not a Truck with the Motoir Registration Authority at Mardan. 5. To the last objection of the State the learned counsel for the petitioner alleged that it was no doubt a bus initially registered in the year 1964 but was subsequently converted into a truck in the year 1993 in accordance with the procedure provided therefor. In this behalf as well, he has a few documents in his possession and so the matter should better be decided in a forum before which the question of title arises. In that case as well, it cannot be kept in custody under section 523/550, Cr.P.C. 6. Last is the stance of the police that the truck in fact belongs to Muhammad Saleem an absconder. Although the S.H.O. was not very clear on the reason that the truck is taken into possession because it belonged to an absconder yet from the conduct of the police it appears to have been taken into custody under such impression. Even if it is kept in custody under'such impression and seen if the truck will belongs ! to Muhammad Saleem, the police cannot acquire the possession thereof without obtaining a warrant under section 88, Cr.P.C. It is admitted at the bar by the learned A.A.-G. as well as the S.H.O. that no such warrant has so far been obtained. The recovery is unlawful on that score as well. 7. As the vehicle No. MR 1696 is not a stolen property and as it apparently belongs to the petitioner Riasat Khan, it is directed to be handed over to him on his furnishing a bond in a sum of Rs. 3,00,000 with two sureties to the satisfaction of Deputy Registrar oft this Court and on his jj undertaking that he would produce before the Court when ever required and also produced before the Court when ever an owner with a better title comes up with a claim. The writ petition is accepted accordingly. (K.K.F.) Petition accepted.
PLJ 1997 Peshawar 149 PLJ 1997 Peshawar 149 Present: shah jehan khan, J. Dr. ABDUL WAHEED and others-Petitioners Versus COMMISSIONER D.I. KHAN DIVISION etc.-Respondents W.P. No. 1 of 1995, decided on 9.5.1997. ., Constitution of Pakistan, 1973- Art. 199--Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975-S. 2(2)-Allotment of land through verified claim-Part of land transferred to Respondent No. 3 to 8 through auction purchase- Challenge to-Restoration of-Revision against-Acceptance of-Writ against-Respondents No 3 to 8 after surrendering before jurisdiction of Respondent No. 2 (Deputy Settlement Commissioner) placed on record a General Power of Attorney but without putting any defence absented themselves without any reasons and seems to be watching proceedings from outside the Court, and as an order was passed against which they rushed to Court of Respondent No. 1 with a Revision-This conduct of Respondent No. 3 to 8 may cause a pre-sumption that they had nothing to offer in defence of their title-If they could not defend their title, transfer order in their favour must be collusive and fraudulantHeld : Fraud vitiated whole proceedings-An order obtained on fraud is a voidable order and a Court can suo moto set aside such order-Held further : Respondent No. 1 (Settlement Commissioner) has not decided to matter in aid of justice rather injustice has been done by setting aside a well reasoned judicious order through technicalities-Case remanded back to respondent No. 1 to decide afresh. [P. 154] A to C Mr. Gohar Zaman Kundi, Advocate for Petitioners. Haji Saadullah Khan, Advocate for Respondent No. 1 and 9. S. Zafar Abbas Zaidi, Advocate for Respondents No. 3 to 8. Date of hearing : 14-4-1997. judgment Petitioner in the instant writ petition has sought the indulgence of this Court to declare the judgment of Settlement Commissioner, D.I. Khan Division (hereinafter to be called as Respondents No. 1) dated 1.2.1995 being unlawful, without jurisdiction, void, without lawful authority and of no legal effect. By the said judgment the order of EAC Revenue/Dy. Settlement Commissioner (Lands), D.I. Khan (hereinafter to be called as respondent No. 2) dated 13.6.1996 passed in'exercise of suo moto jurisdiction was set aside & transfer through Auction proceedings by Assistant Commissioner/Dy. Settlement Commissioner, D.I. Khan (hereinafter to be called as respondent No. (9) dated 3.1.1979 was resorted^ 2. Facts behind this writ petition are, briefly, that the predecessorin-interest of the petitioners namely Sirajuddin alias Sirajoo S/O Hafeeza, a displaced person having a verified claim of 44 Produce Index Unit was allotted an are of 12 Kanals and 19 Maria of land bearing Khasra Nos. 115, 401, 404, 426 and a part of Khasra No. 437 (to the extent of 2 Kanals, 8 Marias out of total 3 kanals, 18 marks) situated in Village Dewala, Tehsil and District 'D.I, Khan vide LR-II No. 65 duly approved and allotted by Assistant Rehabilitation Commissioner, D.I. Khan vide his Endst./Order dated 9.3.1961. Necessary entries in the settlement record were also directed vide Daily Diaiy of 5.7.1961. Out of the aforesaid Khasra Nos., the land bearing Khasra No. 437 which was subsequently amalgamated with Kliasra No. 437 and renumbered as 310 measuring 4 Kanals, 5 Marias, is the subject matter of present litigation. The allotment order for the rest of property bearing Khasra Nos. 115, 401, 404, & 406 aforementioned is undisputedly still intact. This is also established from the record the Khasra No.,437 was proposed to be allotted, to one Mst. Bashiran widow of Naseeb Khan on 8.12.1960 vide LR II No. 54 but the proposal was not accepted and cancelled by order of Assistant Rehabilitation Commissioner, D.I. Khan. On the promulgation of Evacuee Property and Displaced Persons Laws '(Repeal Act) of 1975 known as Act-XTV of 1975, in the year 1979 the then respondent No. 9 put to auction Khasra No. 437 (new Khasra No. 310) measuring 4 Kanals, 5 Marias. The predecessor-in-interest of respondent No. 3 to 8 was transferred this land through an auction purchase for a nominal consideration of Rs. 1000/-. The auction was conducted and approved on 3.1.1979 and Robcar was issued on 23.1.1979 for giving it effect in the revenue record, consequently mutation No. 610 was attested on 30.1.1979 in favour of predecessor-in-interest of respondent No. 3 to 8. 3. In the year 1993 respondent No. 2 in exercise of his suo-motu powers issued a notice for cancellation of auctioned transfer order dated 3.1.1979 and Mutation No. 610 attested on 30.1.1979 against respondent No. 3 to 8 as their predecessor, the transferee under auction purchase had died by then. On the next date of hearing petitioners submitted an application for impleadment as necessary party on the strength of allotment order dated 9.3.1961 in favour of their predecessor. In response to the said notice Sibghatullah Qazi in this own cause as well as duly appointed General Attorney for other legal heirs of Qazi Saeed Muhammad arrayed as respondents No. 3 to 8 in this petition, made appearance before respondent No. 2 on 14.4.1993. The general power of attorney dated 27.9.1986 executed in his favour was also produced on the subsequent date i.e. 20.4.1993 when directed by Geurt to tile written statement to the notice served upon them and also replication of the present, petitioner for impleadment as party to the proceedings and- the case was adjourned for the said purpose to 25.4.1993. The said attorney absented himself in the onward proceedings'. He was issued repeated summons but he denied its executed. On the report of Naib Quaid dated 24.5.1993 they were proceeded ex parte. The application of petitioner for impleadment as party was also allowed the same day and ex parte evidence was called as Court witnesses in the Court of respondent No. 2. One Khalid Dad Khan, Senior Clerk in the office of Rahibilitation D.I. Khan appeard with relevant record and examined as CW/1, Muhammad Amir, Patwari Halqa D.I. Khan alongwith record as CW/2, Gul Janan Khan Naib Saddar Kanoongo D.I. Khan with record as CW/3 and Ahdul Wahid Khan one of the petitioner as AW/1. On the assessment of evidence and record produced hefore him, respondent No. 2 passed a detailed judgment dated 13.6.1993 with the result that the Auction proceedings dated 3.1.1979, its approval and subsequent mutation No. 610 attested on 30.1.1979 in favour of the predecessor in interest of respondent No. 3 were cancelled and the allotment order dated 9.3.1961 in favour of the predecessor in interest of the petitioners was restored to the extent of 3 Kanals, 2 Marias in Khasra No. 437 (new No. 310) and its remaining part measuring 1 Kanal, 3 Marias was restored to Central Government. 4. Respondent No. 3 preferred a revision petition to the Additional Commissioner, D.I. Khan Division which was subsequently entrusted to respondent No. 1 by order of the Member Board of Revenue dated 25.9.1994 and ultimately disposed off on 1.2.1995 and it was held that since the Displaced Persons (Land Settlement) Act 1958 was repealed through Evacuee Property and Displaced Persons Laws (Repeal Act) of 1975, the Dy. Settlement Commissioner (Respondent No. 2) was divested of powers to hear the evacuee property cases and the order and judgment of respondent No. 2 dated 13.6.1993 was set aside and the auction purchase and subsequent mutation in the name of predecessor-in-interest of Respondent No. 3 was restored. 5. It was contended by'the learned counsel for the petitioner that since the disputed land was allowed to the predecessor of petitioners as displaced person against a verified claim vide a valid order dated 19.3.1961 the competent authority after due enquiry and process was not available to the Provincial Government for onward allotments. The auction proceedings conducted on 3.1.1979 were carried out without any notice to them although in the official record of the Settlement and Rehabilitation do contain the order of allotment in the name of predecessor of petitioner, as produced by CW/1 as Ex. CW. 1/2. It was further contended that allotment in the name of predecessor of petitioners was made by Assistant Commissioner, D.I. Khan exercising the powers of Dy. Settlement Commissioner duly empowered by Notification No. F. KD/64 SEI dated 12th February, 1964 issued .under Displaced Persons (Land Settlement) Act, 1958. On repeal of the said Act by Evacuee Property & Displaced Persons Laws (Repeal) Act of 1975 the Secretary to Government of N.W.F.P Rehabilitation and Settleriient Department and Additional Deputy Commissioners were granted certain powers under Section 3(1) of the Act ibid vide Notification No. 4693 dated 29th March, 1977. The Notification ibid was modified vide Notificaaon No. 6876 dated 10th August, 1977 and Revenue EAC of the D.I. Khan District was substituted for Additional Deputy Commissioner. These Notifications still hold the filed. Respondent No. 2 being successor of functionaries under the Displaced Persons (Land Settlement i Act 1958 on coming to light the illegal auction purchase on 3.1.1979 issued a suo moto notice to beneficiaries thereunder and after holding a detailed enquiry passed the order dated 13.6.1993. It was also contended that respondent No. 1 has passed an arbitrary order i.e. 1.2.1995 which is evident on the face of it. The points mentioned as (ii) & (iii) in the said impugned judgment though argued before him were left undecided. Lastly it, was contended that on the promulgation of Act XIV of 1975 Scheme No. 2 was enforced on 16.6.1976 for the disposal of those lands which were found available in that pool, but since the disputed lands were already disposed of in 1961, therefore, the same were not available for disposal under the said Scheme in 1979. In these circumstances it was submitted that the impugned order dated 1.2.1995 is illegal ; arbitrary, fanciful, without jurisdiction and of no legal effect and is liable to the struck down under Constitutional jurisdiction of this Court. 6. The learned counsel for the respondents 3 to 8 while opposing the counsel for petitioners strongly supported the impugned order of Respondent No. 1 and argued that no payment has been shown by predecessors of petitioners and even if an allotment orderwas made in his favour the same was not acted upon because it was not given effect in revenue papers. To substantiate his arguments he referred to copy of Jamabandi for the year 1967-68 Ex. CW. 2/1 showing Mst. Bashiran W/o Nasib Khan as owner. The same entries also appear in Jamabandi for the year 1970-71 Ex. CW. 2/2, in the subsequent jamabandies prepared in 1979- 80 Ex. C.W. 2/3 of 1983-84 Ex. C.W.2/4 and of 1987-88 Ex. C.W. 2/5 the predecessor of respondents 3 to 8 has been recorded as owner in ownership column. He contended that alleged allotment order dated 9.3.1961 is a forged document which was never produced to Revenue Staff and no mutation was entered upon it. Had it been a valid document petitioner should have approached the concerned authorities when the land was put to auction in 1979. Even the instant proceedings were initiated under the suo-rnotu powers in 1993 after more than 14 years of auction purchase by predecessor of respondents and petitioners were subsequently joined in it on their request, for impleadment as paity. It was also contended that only the Chief. Settlement Commissioner or his authorized Officer was competent to transfer/allot property from the compensation pool as envisaged under section 10 of Displaced Persons (Comp, & Rehb.) Act, 1958 while allotment order dated 9.3.1961 has been shown to be approved by A.RC. The learned counsel referred to Section 2(2) of the Evacuee Property and Displaced Persons -Act 1975 whereby only pending proceeding were allotted to be disposed off by an authorized officer of the Provincial Government, but since there were no proceedings pending regarding disputed land, respondent No. 2 was "functus offtcio" to usurp suo moto power and passed an order dated 13.6.1993. Respondents No. 3 to 8 are the heirs of auction purchaser of the disputed land and in its possession since 1979 without any interference, their title at this belated stage can not be called in question by petitioners as well as by respondent No. 2 The learned counsel also referred to an application and an order overleaf of the then Assistant Commissioner/Deputy Settlement Commissioner dated 6.2.1984 to the effect that any claim in respect of suit land could not be entertained under existing rehabilitation Repealed Act i.e. Act XI of 1975. But this order was also set asi.de in a veiy slip-shod manner by respondent No. 2 in his order dated 13.6.1993. In these circumstances, the learned counsel prayed for dismissal of writ petition. 7. The learned counsel for respondents No. 1 and 2 while supporting the stand taken by counsel for respondent No. 3 to 8 also contended that petitioners could not be granted any relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as the functionaries under Displaced Persons (Compensation and Rehabilitation) Act 1958 are not in existence. Even if the impugned order is found arbitrary and of no legal effect no legal direction could be made for re-adjudication of the matter. 8. After going through the record with the assistant of the learned counsel for the parties, the following are glaring features of the case. (i) The laud in dispute bearing Khasra No. 437 as explained above was allotted to the predecessor of petitioner vide document Ex. C.W. l/l/ and a Robkar Ex. CW. 2/6 was also issued for giving it an effect in the Revenue Record. (ii) The aforesaid allotment was neither given any effect in the Revenue Record nor cancelled by a competent authority. (iii) The rest of the lands allotted vide. Ex. C.W. l/l/ undisputedly still intact and only the disputed land bearing Khasra No. 437 was reported to be available for disposal without notice to petitioners and resultantly disposed of through open auction. The predecessor of respondent No. 3 to 8 was granted the same being highest bidder on 3.1.1979. (iv) The auction purchase was not challenged by any one including the petitioners till a suo moto notice was issued by Respondent No. 2 in the year 1993. (v) Respondents 3 to 8 though appeared through General attorney in response to the said notice but without filing their reply or otherwise defending themselves absented from the proceedings resulting in a decision against them i.e. 13.6.1993. 9. Respondent No. 1 has disposed of the revision petition of respondents No. 3 to 8 on the ground that EAC/DSC. D.I. Khan had no jurisdiction to her the case due to repeal of Displaced Persons (Land Settlement) Act, 1958 and the aforesaid glaring facts were not considered all. Although in this own judgment he has mentioned that arguments were addressed on the following points :- (a) Whether the piece of land in question put to auction was actually available in compensation pool as Siraju had not deposited the settlement fee ? and (b) Whether the land was purchased for nominal price and the element of fraud was predominant in the entire transaction, therefore, the order of AC/DSC. D.I. Khan dated 3.1.1979 esd void ab initio ? 10. The finding on the aforesaid points were essential for determination of question of jurisdiction. Had it been held that disputed land was not available in compensation poor for allotment as alleged by petitioner, then the subsequent auction proceedings or its transfer to predecessor of respondents No. 3 to 8 was not legal, without any justification and not protected under Section 2(2) of Act-XIV of 1975. As observed in the case of "Sher Afzal Khan and others vs Qazi Abdullah and Others" reported in S.C.M.R. 1984-228. 11. The impugned judgment of respondent No. 1 is also self contradictory in the sense that had respondent No. 2 no jurisdiction to adjudicate the dispute; then how respondent No. 1 entertained a revision against the order of respondent No. 2 when Act-XIV of 1975 does not provide for such powers. 12. As stated above, respondents 3 to 8 after surrendering before the jurisdiction of respondent No. 2 placed on record a General Power of attorney but without putting any defence absented themselves without any reasons and seems to be watching the proceedings from outside the Court and as an order was passed against which they rushed to the Court of Respondent No. 1 with a revision. This conduct of respondents 3 to 8 may cause a presumption that they had nothing to offer in defence of their title. If they could not defend their title, the transfer order in their favour must be a collusive and fraudulent. By now it is well established that fraud vitiated the whole proceedings and as held in "Chief Settlement Commissioner Lahore Vs. Raja Muhammad Fazil Khan" reported in PLD 1975-331 that an order obtained on fraud is a avoidable order and the Court or a Tribunal of limited jurisdiction under inherent powers can suo moto set aside the same. 13. Respondent No. 1 has not decided the matter in aid of justice rather injustice has been done by setting aside well reasoned judicious order thorough technicalities without considering the aim and purpose of Section 2(2) of the Act v XIV of 1975, which empowers respondent No. 2 as notified Officer to enquiry into a fraudulent and collusive transaction/deed. 14. For the .reasons stated above by setting aside the order of respondent No. 1 dated 1.2.1995 being illegal, arbitrary, fanciful and of no legal effect, remand this case back to him to decide the same afresh in the light of observations made above and if he comes to a conclusion that the matter requires further probe, the same should he entrusted to a notified Officer under Section 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. No order as to costs. (MYFK) Order accordingly.
PLJ 1997 Peshawar 155 (DB) PLJ 1997 Peshawar 155 (DB) Present: malik hamid saeed, and shah jehan khan, JJ. Sh. KHALID MEHMOOD-Petitioner Versus BANKING TRIBUNAL N.W.F.P. and another-Respondents W.P. No. 6 of 1996, dismissed on 9.4.1997. Constitution of Pakistan, 1973- Art. 199-Writ petition-Banking Tribunal passed a decree for recovery of total advanced loan-Challenge to-Seeking relief by invoking extra ordinary jurisdiction of High Court through filing a writ petition under Article 199 of Constitution is not a vested right of any person and could be availed of only when no other alternate efficacious remedy is available-Petitioner had a legal right of appeal under Section 9 of Banking Tribunals Ordinance and its non-availing speaks of malafide on his part so as to avoid statutory obligations of deposit of decretal amount under protest-Petitioner has, therefore, not come up to High Court with clean hands and points agitated herein could easily be taken in appeal- Petition dismissed. [P. 157] A S. Zafar Abbas Zaidi, Advocate for Petitioner. Date of hearing : 9.4.1997. order Malik Hamid Saeed, J.-This petition under Article 199 of the Constitution challenges the validity of an order passed by the learned Banking Tribunal in Suit No. 5/1-Nim dated 20.9.1995 being in excess of the jurisdiction vested in it and of no legal effect against the petitioner, as respondent No. 2 has not processed the matter in accordance with the decision of Ombudsman. 2. Briefly, the background giving rise to this petition is that petitioner obtained loan/financial assistance from the respondents for establishing a Diary Farm at D.I. Khan and after observance of requisite formalities, the loan was advanced to the petitioner. The parties entered into an agreement whereafter the petitioner suffered loss due to natural calamities in the business and requested the respondents to re-schedule the said loan but in vain and instead a legal notice was served upon the petitioner for its repayment. 3. With a view the frustrate the legal process of the Special Banking Tribunal, the petitioner made dash to the office of Ombudsman through an application dated 21.11.1994. Meanwhile, the respondent-Bank had also filed Suit No. 5/1 on 8.1.1995 before respondent No. 1 i.e. the Banking Tribunal NWFP Peshawar. Both the Special Banking Tribunal and Ombudsman office simultaneously proceeded with the case but in meanwhile, the Ombudsman through an undated order on the complaint of the petitioner allowed reschedulement of the loan in eight equal installment vide his letter No. Reg. P/1759/94 dated 19.3.1995. Thereafter on 20.9.1995, respondent No. 1 (Banking Tribunal NWFP) passed a decree for the recovery of the total advanced loan which is now under challenge in this Constitutional Petition. 4. The main stress of the petitioner's counsel was that the order of the learned Ombiidsman was binding upon the respondents and referred to the provisions of Section 29 read with Section 37 of the Presidential Order I of 1983 under which the Office of the Federal Ombudsman was established and which relates to the bar of jurisdiction of Court or other authority and over-ride all other laws. For ready-reference, the same are reproduced as under :- "Section 29-Ear of Jurisdiction. No Court or other authority shall have jurisdiction:- (1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or (2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by or under the orders or at the instance of the Mohtasib". He, therefore, argued that the Banking Tribunal was legally not possessed with the powers to grant the decree in question. 5. We are, however, of the view that the aforesaid contention is mis conceived; Firstly that bar contained in Section 29 ibid operates only if the validity of any action taken or to be taken under the said order is specifically questioned before any other Court/Tribunal which is not the case before us, and Secondly because the suit of the ADPB was simply for recovery of loan which exclusively falls within the statutory cover of law in approaching the Tribunal which too was not barred in any manner to take cognizance of the matter. 6. Banking Tribunal Ordinance 1984 (Ordinance No. LXIII of 1984) was promulgated on 31st December 1984 and under Section 4 thereof, the Federal Government in exercise of its powers constituted the NWFP Banking Tribunal under Section 5 thereto, while subsection (3) of the same section excludes the jurisdiction of all other Courts in the subject matter. Right of appeal is given under Section 9 of the Ordinance ibid to the aggrieved person. 7. It is a settled proposition of law that if two provisions of the different enactments are in clash with each other and cannot be reconciled, then the latter in date shall prevail. The Banking Tribunals Ordinance was effective from 31st December, 1984 while the Presidential Order I through which the office of Ombudsman was created was promulgated on 24 th January, 1983. This being the legal position, the provision of the Banking Tribunals Ordinance shall prevail upon the President Order I referred above. Even otherwise, the Banking Tribunal Ordinance is a special law on the subject while the President Order I is a general law and on this view too, the Baking Tribunal Ordinance had an over-riding effect on the Presidential Order I of 1983. 8. Seeking relief by invoking extraordianry jurisdiction of this Court through filing a Writ Petition under Article 199 of the Constitution is not a vested right of any person and could be availed of only when no other alternate efficacious remedy is available. In the case in hand, the petitioner had a legal right of appeal under Section 9 of the Ordinance ibid and its nonavailing speaks of malafide on his part so as to avoid statutory obligations of the deposit of the decretal amount under protest. The petitioner has, therefore, not come up to this Court with clean hands and the points agitated herein could easily be taken in appeal, if so "desired. Further, the "petitioner had concealed the fact of filing suit by the Bank before the Banking Tribunal in the proceedings before the Ombudsman. 9. For the reasons aforesaid, we find no substance in this petition which is hereby dismissed in lirninc. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 158 (DB) PLJ 1997 Peshawar 158 (DB) Present: malik hamid saeed and shah jehan khan, JJ .. TAHIR BINYAMIN KHAN-Petitioner versus Mst. DR. MUMTAZ BEGUM GANDAPUR and 9 others-Respondents W.P. No. 33 of 1995 and 65 of 1996, dismissed on 13.5.1997 (i) N.W.F.P. Pre-emption Act, 1987 (X of 1989)-- -Under Act XIV of 1950, right of pre-emption vested with a co-share, participator in immunities and appendages, continuous owner and a landlord (in case of sale by an occupancy tenant of his occupancy rights)-- But in Act X of 1987 no such right is available to a landlord, pre-emption right of a tenant under MLR 115 of 1972 was also taken away, being held repugnant to Injunctions of Islam-Likewise, in the earlier law right of pre-emption on a foreclosure existed which is not available under new Pre-emption Act. [P. 162] A (ii) N.W.F.P. Pre-emption Act, 19H7 <X of 1989)-- S. 24Deposit of pre-emption moneyTo .grant extensionPowers of Court-By amending section 24 by Act X of 1992, only words "30 days" have been omitted and rest of provisions has been kept intact-This would mean that after amendment fixation of time has been left open for discretion of court-By now court can fix a time either more or less than 30 days keeping in view circumstances of case-But when once a time is fixed plaintiff/pre-emption shall be bound to comply with, within the time so fixed, and neither extension he (plaintiff) would be allowed to apply for further extension nor court would be competent to allow extension. [Pp. 163 & 164] B <iii) N.W.F.P. Pre-emption Act, 1987 (X of 1989)-- -S. 24 read with section 148 of Civil Procedure Code 1908-Applicability of Section 148 CPC in pre-emption mattes-As far as section J48 of C.P.C. is concerned suffice it to say that Pre-emption Act, is a special law vis-à-vis which provides procedure for adjudication of civil disputes generally, but Pre-emption Act 1987 by itself provides for certain matters-It is generally recognised principle of law that special law shall prevail upon general law-Even otherwise wording of section 148 CPC does not cover orders to make deposits under any other law but covers only those orders passed under different provisions of C.P.C.. [P. 164] C (iv) N.W.F.P. Pre-emption Act, 1987 (X of 1989)-- -S. 24 (2) word "shall" used in sub-section (2) of section 24 of N.W.F.P. Pre-emption Act, 1987 is not mandatory but obligatory-It is true that word "shall" used in different statutes is interchangeable 'nd could be construed as "may"'hut it is equally true that sometimes "may" he constructed as "shall"-In pre-emption cases intention of legislature by inserting section 24(2) can be inferred that non-deposit of "Zare-e-Soam" by pre-emptor at~the first instance under orders of court would be detrimental and fatal, and court has been left with power to extend time for such deposit. [P. 164] D Mr. Muhammad Ayaz Khan Qasuria, Advocate for Petitioners Mr. Liaqat All Khan, Advocate for Respondent. Dates of hearing : 27.3.1997 and 13,5.1997. judgment Shah Jchan Khan, J.-This judgment shall dispose of two Writ Petitions No. 33/95 and 65 of 1996, as both involved identical-question of law and facts. 2. Facts of the case giving rise to Writ Petition No. 33/95 are that the petitioner had filed a pre-emption suit in the Court of Senior Civil Judge D.I. Khan on 1.6.1994 in respect of a house allegedly purchased by respondent No. 1 through a registered sale deed dated 10.2.1994 for a consideration of Rs. 50,000/-. Vide order dated 6.6.1994 he was directed to deposit l/3rd of the sale consideration before 7.7.1994 but in vain where after on his application a period of further four days was given to him for doing the needful subject, to all valid objections by the other side. However, an amount of Rs. 17,000/- was duly deposited on the same day. i.e. 7.7.1994. The defendants/respondents felt aggrieved by the non-deposit of 1/3rd of the pre-emption amount before 7.7.1994 and had filed an application dated for dismissal of the suit but was rejected by order dated 26.9.1994. Not satisfied with the said order of the trial Court, the defendants wen in revision before the District Judge D.I. Khan, who vide his order dated accepted the same arid while setting aside the order impugned therein, dismissed suit of the plaintiff/petitioner. 3. Facts of the case giving rise to Writ Petition No. 65/96 in brief are that the petitioner had pre-empted the transaction of a plot measuring 4 kanals, 10 marlas in the Court of Senior Civil Judge D.I. Khan on the grounds, inter alia, than the plot in question was allegedly sold by the defendant/vendee (respondent No. 8 herein) in favour of respondents No. 1 to 7 through a registered sale deed dated 10.11.1994 for an amount of Rs. 2,00,000/- but in order to defeat the pre-emption right of the petitioner, a fictitious amount of Rs. 20,00,000/- was mentioned in the registered sale 'deed. The learned trial Judge ordered the deposit of l/3rd of Rs. 20,00,000/- mentkmed in the deed before 24.4.1995, but the plaintiff failed to comply with. Thereafter on his application the time was extended for further nine (9) days upto 3.5.1995. However, on 2.5.1995 l/3rd of the pre-emption money was deposited, i.e. nine (9) days, after the date fixed earlier by the trial Court for the purpose. This non-deposit of the pre-emption amount with in time, i.e. before the date fixed, i.e. 24.4.1995 feeling aggrieved the defendant vendee No. 1 to 7 tiled two separate applications, one for review of the order dated 23.4.1995 allegedly passed in their absence and against the provisions of NWFP Pre-emption Act (Act X of 1987), and the second for dismissal of the suit due to non-deposit of the pre-emption amount in time, as ordered by the Court on 8.3.1995. The extension of time was also challenged on the grounds of being illegal and without jurisdiction. Respondent No. 8 and also filed an application on 29.5.1995 for deletion of her name from the panel of defendants as she had only sold two kanals 10 marlas of land which is explicitly mentioned in the deed and that she is still having title over the remaining area, i.e. two kanals. 4. After hearing the parties, applications of the defendants/respondents No. 1 to 7 were dismissed by their trial Court on 1.10.1995 whereafter they filed F.A.O. No. 1/96 in this Court which was returned due to lack of jurisdiction for presentation before the District Judge vide order dated 24.4.1996. Thereafter, they filed a revision petition before the District Judge D.I. Khan which was accepted, the impugned order dated 1.10.1995 was set aside and suit of the plaintiff/petitioner was dismissed. Hence the instant two petitions in both the matters. 5. Learned counsel for the petitioners in both the writ petitions vehemently challenged the legality of the impugned orders of the revisional Court on the grounds; Firstly that the order of extending time for deposit of pre-emption money was legally correct and Secondly that the revisional Court has exceeded its jurisdiction by setting aside the same as it was deposited with the extended period, they argued that subsection (2) of Section 23 of the NWFP Pre-emption Act 1987 stands amended by Act X of 1992 and under.Section 148 of the CPC, the trial Court is empowered to extend the time for deposit of pre-emption money even suo rnnto. In support of their views, reliance was placed on the case reported as "Ch. Muhammad Yaqoob uk. Nazim Hussain (NLR 1995-CLJ 139 (El, wherein it was observed that the trial Court can extend t.he time fixed for deposit of pre-emption amount. We are, however, not in agreement with the petitioners' counsel, as in the cited judgment five pre-emption suits were filed, and in four the 'Zare- Soam' was deposited well within the stipulated period out in T.he fifth case it was deposited on the following day which aggrieved the opposite side but without any success as the trial Court itself condoned they delay on the ground of inadvertence suo mofo and held that the delayed deposit was within the ambit of Section 24 of The Punjab Pre-emption Act'. 6. Learned counsel for the petitioners also referred to case reported as H. Cooper and others vs. The Sfate Life Insurance Corporation Limited" (SCMR 1994-2115) wherein while commenting upon Section 8 of the Sind Rented Premises Ordinance (XVII of 19791 it was held that where Statute does not provide a specific period for doing an act, the Court can fix the time for its doing. They argued that after the amendment of Section 24(2) of the NWFP Pre-emption Act, 1987 by Act X of 1992. it is discretionary with the- Court to fix any period for the requisite deposit, and hence the orders of the revisional Court in the case in hand were termed as unlawful. While interpreting the word "shall" used in Section 24(2) of the NWFP Pre-emption Act 1987, their stand was that the words "shall and May" are oftenly interchangeable and should be construed in prospective circumstances and the language used in the Statute is affirmative and not negative. In this context, reliance was placed on the case reported as Abdul Rahim and two others Vs. M/s. United Bank of Pakistan (PLD 1997 Karachi 62). 7. In reply, learned counsel for the answering respondents in W.P. No. 33/95 opposed the aforesaid contentions by contending that the stance taken by the plaintiff for non-compliance of the Court's order to deposit the pre-emption money before the date fixed is untenable on the ground that he was duly represented by a counsel who was well conversant of the legal consequences arising therefrom. As regards the amended Act X of 1992, it was submitted that only the specified time of 30 days was omitted but the consequential clause thereof was kept intact. Under the NWFP Pre-emption Act, 1950 the Courts were to fix a time for deposit of any sum not exceeding the probable value of the suit property or to give a security bound to the satisfaction of the Court not exceeding such value, whereas under the new NWFP Pre-emption Act, 1987, the Court shall require the plaintiff/pre-emptor to deposit l/3rd of the pre-emption amount in cash within a fixed time whereafter the Court would not be competent, to extent the same. His next submission was that under section 23(4) repealed Pre-emption Act of NWFP on failure of the plaintiff/pre-emptor to make the deposit in cash or produce security bond within the time fixed or within the extended time, as the case may be, the plaint, was to be rejected, whereas under Subsection 241,2) of the amendment Act in case of failure of the plaintiff to deposit. l/3rd of the pre-emption money within the period fixed, his suit is to be dismissed. It was, therefore, argued that the trial Court had no power to extend the time and in this respect placed reliance on a case reported in NLR 1992 (Civil)-133). He submitted that the subsequent order of extention of time amounted to review of the earlier order and without fulfilment requirements of Section 114 read with Order 47 of the C.P.C. thereof, sxich an order was not open to Review. Reliance was placed on 1995 SCMR 135. He referred to the case of Muhammad Ashraf etc. vs. Ziarat Gul, reported as PLD 1994 Peshwar 48 wherein the existing NWFP Pre-emption Act, 1987 was held more strict and exhaustive than the earlier one as presently without making Talbs. i.e. Talb-c-Muwathibat and Talb-e-Ishhad, pre-emption suit shall be dismissed and description of the Court to grant extension has been taken away. ' 6. As regards the jurisdiction of Court to extend time under Sections 148 CPC, it was argued that the same is irrelevant in case of an order passed u/S. 24 of the prevailing NWFP Pre-emption Act, 1987 and hence the writ petitioners, according to them, merits dismissal. 7 After giving a thorough consideration to their respective arguments and the materials placed on file, we are to consider; Firstly whether the trial Court after Act X of 1992, is left with an option to extend time to deposit l/3rd of the pre-emption amount; Secondly whether Section 148 CPC has an over-riding effect upon Section 24 of NWFP Pre-emption Act, 1987 and, Thirdly whether the word "Shall" used in Section 24(2) of the new NWFP Pre-emption Act 1987 has an obligatory and mandatory effect upon the Courts. 8. Before the enforcement of the existing NWFP Pre-emption Act of 1987, various provisions of the previous Pre-emption Act of 1950 were declared to be repugnant to the Injunctions of Islam in the case of Said Kama! Shah reported in PLD 1986 S.C. 360 directing the Government to bring in conformity with the Injunctions of Islam the law of Pre-emption before 31.7.1986. However, in exercise of its suo rnoto jurisdiction the august Supreme Court in the case reported as PLD 1990 S.C. 865 reviewed its verdict in Said-Kamal Shah's case and maintained its previous view. Nonetheless, in compliance of the directions given in Said Kamal Shah's case, the Government amended the NWFP Pre-emption Act 1950 by Act X of 1987 vide which discretionary powers of the Courts were taken away. Under Act XIV of 1950, in cases of Agricultural land or immovable village property a suit could be brought within a year from the date of taking of physical possession by the vendee, whereas Section 31 of the new Act provides a period of 120 days from the date of registration of sale deed or from the date of attestation of mutation if the sale is made otherwise, or from the date of taking physical possession of the property if the sale is through a registered sale deed or mutation. Not only that a glaring change in the limitation was brought, but a stigma in the shape of demands, i.e. Talb-e-Muwathibat. Talbe-Ishhad and Talb-c-Khasumat (filing suit in the court of Law) were introduced, in absence of which pre-emption suit could not proceed irrespective of the fact that, the pre-emptor had a preferential right of pre emption. 9. Under Act XIV of 1950, right of pre-emption vested with a co- sharer, participator in immunities and appendages, contiguous owner and a landlord (in case of sale by an occupancy tenant of his occupancy rights). But in the existing Act X of 1987 no such right is available to a landlord, the pre emption right of a tenant under NLR 115 of 1972 was also taken away, being held repugnant to the Injunctions of Islam. Likewise, in the earlier law rights of p're-emption on a foreclosure existed which is not, available under the new Pre-emption Act. As such, shops, serais, katra club, a dartnasala, mosques, church or a charitable institution or building and agricultural land or village immovable properties no morethan two kanals for houses or a vacant site of one kanal were exempted from pre-emption while under the prevailing law only waqf property used for charitable, religious or public purposes are exempted. Accordingly, the controversy in the case in hand can conveniently be resolved. 10. It would be advantageous to reproduce Section 23 of Act XIV of 1950 which reads as under :- "Deposit of Pre-emption money :- 1. In every suit for pre-emption the Court shall at any time before the settlement of issues require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed probable value of the land or property or require the plaintiff to give security to the satisfaction of the Court for payment, if required, of a sum exceeding such probable value within such time as the Court may fix in such order. 2. In any appeal ........................................ 3. Every sum deposited .............................. 4. If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in Sub-Section (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be. 5. (a) ......................................................... (b) ..................................................... 6 ................................................................. 11. On repeal of Act XIV of 1950 and its replacement by Act X of 1987 read with amendment through Act X of 1987, the following corresponding section was introduced :- "24. Plaintiff to deposit sale price of property. 1. In every suit for pre-emption the Court shall require the plaintiff to deposit in cash one-third of the sale price of the property within such period as the Court may fix. Provided that if no sale price is mentioned in the sale deed or in the mutation, the Courts shall require to deposit l/3rd of the probable value of the property. 2. Where the plaintiff fails to deposit one-third of the sale price or the probable value of the property within the period fixed by the Court, his suit shall be dismissed." 12. A bare reading of the afore-mentioned Sections of law makes it. clear that under the prevailing law the Court is powerless to grant extension for the deposit of pre-emption money. Under the unamended section 24 of the new Act the Act the Courts were debarred to fix the date for deposit of Zar-e-Soam beyond 30 days together with fulfilment of requirement of 'Talab' as laid down in CLC 1993-622, Law Notes 1993 Lahore 801. By amending section 24 by Act IX of 1992, only the words "30 days" have been omitted and rest of the provisions has been kept intact. This would mean that after the amendment the fixation of time has been left open for discretion of the Court. By new the Courts can fix a time either more or less than 30 days keeping in view the circumstances of the case, as in both the cases before us the first order for deposit of Zar-e-Soam was fixed beyond 30 days. But when once a time is fixed the plaintiff/pre-emptor shall be bond to a comply with, within the time so fixed, and neither he (plaintiff) would be allowed to apply for further extension nor the Court would be competent to allow extention. The pre-emption right being a feeble right, pre-emptor seeking to exercise such right was bound to perform and fulfil its requirements meticulously and any failure in that behalf would deprive him of success in getting a pre-emption decree. 13. So far as the contention of applicability of Section 148 C.P.C. is concerned suffice it to say that the Pre-emption Act is a special law vis-a vis C.P.C. which provides procedure for adjudication of civil disputes generally, but Pre-emption Act 1987 by itself provides procedure for certain matters. It is a generally recognized principle of law that special law shall prevail upon general law. Even otherwise the wording of Section 148 CPC does not cover the orders to make deposits under any other law but covers only those orders passed under different provisions of CPC. Some of the provisions containing dictum can be referred to as instances of the Code itself, i.e. Order 7 Rule II and Order 29 Rule 14 C.P.C, whether the Court directs a plaintiff to supply requisite stamp paper, and direction to deposit purchase money respectively in a stipulated period which can be extended by Court under Section 148 of the C.P.C. 14. For the aforesaid reasons we are of the firm opinion that the word "shall" used in sub-section (2) of Section 24 of the NWFP Pre-emption Act 1987 is not mandatoiy but obligatory. It is true that the word "shall" used in different Statutes is interchangeable and could be construed as "may" but it is equally true that sometimes 'may' be constmed as 'shall'. In pre emption cases the intention of legislature by inserting Section 24(2) can be inferred that non-deposit of "Zar-e-Soam" by the pre-emptor at the first instance under the orders of the Court would be detrimental and fatal, and the Court has been left with no power to extend the time for such deposit. 15. As a result of the above discussion the impugned orders of the lower appellate Court in both the cases are will-founded and need no interference in exercise of our Constitutional jurisdiction. The writ petitions are without force and are hereby dismissed with no orders as to costs. (K.K.F). Petition dismissed.
PLJ 1997 Peshawar 165 (DB) PLJ 1997 Peshawar 165 (DB) Present: mahboob ali khan, and tariq pervez khan, JJ. CHAN MUHAMMAD & another-Petitioners versus COLLECTOR LAND ACQUISITION GHAZI BROTHA HYDRO POWER PROJECT and 56 others-Respondents. W.P. No. 121 of 1996, dismissed on 15.4.1997. Land Acquisition Act, 1894 (I of 1894)-- -Ss. 18 & 30-Constitutional Petition under Article 199 of Constitution of Pakistan, 1973-Acquisition of land-Objection petition dismissed-Challenge to-Whether petitioner is entitled to compensation for improvement made by him on land not belonging to him-Question of-Person, who knowingly makes improvement on land which in fact never belong to him and who has taken all benefit of its produce for years, will not be entitled to compensation amount, because what he spent was at his own risk and cannot take benefit of his mistake-Petition dismissed. [P. 167] A & B. PLD 1953 Pesh. 65. Mr. Ejaz Ahmad Khan, Advocate for Appellants. Mr. Iqbal Ahsan, Advocate for Respondents. Date of hearing: 15.4.1997. judgment Tariq Pervez Khan, J.-This petition was admitted to full hearing on 16.9.1996 inter alia on the ground that "whether an objection petition filed by affectees under sections 18 and 30 of the Land Acquisition Act, is bound to be referred by the Collector to the Court of reference or it remains his discretion to withhold the same". 2. The brief facts, relevant for disposal of this case are that, respondent No. 2 the Chairman Wapda acquired land, through respondent No. 1, for the construction of Ghazi Brotha Dam. Notification u/s. 4 of the Land Acquisition Act was issued vide No. 726/Rev. dated 10.1.1994 for acquiring Land comprising of large number of different khasras. 3. Award No. 3 of Mauza Ghazi was given by respondent No. 1 on 31.2.1995. In the Award, the amount of compensation was determined for different classes of land, including, trees, building structure or other installation such as electricity poll, tubewells etc. 4. The subject matter of the award included same of the khasra numbers of which the petitioners were ownej-s. It has been admitted in the petition that petitioners are occupying land which does not belong to them, purportedly, under some misconception on the ground, that the said land was adjacent to the property, and they, in their own wisdom, control such property under their ownership. The further stated that, under such wrong assumption they have affected improvements in the said property. 5. That on acquisition of land the petitioners made reference for grant of compensation in respect of improvements carried out by them in the same land, which did not belong to them. The Collector, while acceptiag their demand, gave them the compensation amount in respect of constructed house and tube well, but, did not grant compensation in respect of other improvements made by them, including protection wall. Consequently, they filed an objection petition under sections 18 and 30 of the Land Acquisition Act and wanted the same to be referred to Court. 6. The objection petition has been placed on this file on page 32. In the objection petition petitioners claim compensation amount at the rate of Rs. 10,00,000/- per kanal, Rs. 3,50,000/- per tubewell, Rs. 1,00,000/- for machinery installed or water supply and Rs. 2,80,000/- for electricity poll, transformer and other like assessories. They have also claimed the development charges. 7. The learned Collector, on receipt of said objection petition dated 27.6.96, did not refer the same to Court for determination and has passed order dated 8:8.1996, which is impugned before us. 8. Before entering into the question, as formulated at the time of admission of this petition, the learned counsel appearing on behalf of respondent, brought to our notice that, the petitioner is in no manner entitled to any relief within the scope of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He produced two certified copies of objection petition filed before District Judge Haripur, by the present petitioner which are pending. The subject matter of those petitions is the same, as in the present petition. Beside, the petitioner has already taken the compensation in respect of House and tubewell, allegedly installed by him at the basis of some other khasra number and, through this petition, under the garb of bonafide possession of the land which were not belonging to the petitioner, he wants compensation with regard to the same improvements. We have perused the contents of the said objection petition and will agree with the learned counsel for the respondent. The petitioner, is seeking equitable relief from this Court, but as it appear from the record, he has not come up with clean hands. He has suppressed the .facts. The claim, in the instant writ petition is based on khasra numbers 469, 470,454,453,1373/1169/455, whereas the same claim is made in respect of same mbject matter on the basis of khasra numbers 1372/1169/455, in objection petition dated 20.3.1996, and on khasra number 1524/774 in petitiondated the same, in respect of other improvements. A reading of impugned order dated 8.8.1996 clearly show that petitioners were never entered in 'Khana Malkiat' as owner nor on basis of possession. 9. Learned counsel relied in PLD 1953 Peshawar 65 (Ghulam Haqani etc. Vs. Mst. Zulekha etc.) to which a reference is also made in the order of Collector, which judgment has held :"Normally a wrong-doer cannot claim any compensation for the improvements made by him, but where a person has taken possession of certain land by mistake, believing that land to be his own. and builds on it or improves the land an equity arises in his favour, which entitled him to claim compensation for the improvements. This will be on the well-known principle, on which section 51 of the Transfer of Property Act is based, namely, that a man cannot enrich himself at the expense of another". We do not want to disagree with the above cited judgment, which is laying down the principle of application of goods conscious, but, would observe that, a person, who knowingly make improvement on land which in fact never belong to him, and who has taken all the benefit of its produce for years, will not be entitled to compensation amount, because, what he spent was at his own risk, and cannot take benefit to his mistake. We would not make any further observation on the issue, less this may not prejudice the cause of the petitioner before the court where his reference is pending. 10. There are no merits in this petition, as such, the same is dismissed, with order, to pay cost to the respondents. (B.T.) Petition dismissed.
PLJ 1997 Peshawar 167 (DB) PLJ 1997 Peshawar 167 (DB) Present: JAWAID NAWAZ KHAN GANDAPUR AND NASIR-UL-MULK, JJ. Dr. SHER MUHAMMAD-Petitioner versus D.G. HEALTH SERVICES, NWFP, PESHAWAR and 2 others-Respondents. W.P. No. 1167/97, dismissed on 18.6.1997. Civil Servants Act, 1973 (LXXI of 1973)-- S. 10-Civil Servant-Case of-Transfer-Challenge to-Provisions of section 10 of Civil Servants Act, 1973 are quite clear wherein it has been provided that every civil sei^vant is liable to serve anywhere within or outside country, on any post, under Federal or Provincial Government-Petitioner was, therefore rightly transferred/posted and required to work at posted station-This could be legally done even without his consent. [P. 168] A Mr. Sohail Akhtar, Advocate for Petitioner. Date of hearing: 18.6.1997. order Jawaid Nawaz Gandapur, J.--Briefly, stated the facts of the case are that petitioner Dr. Sher Muhammad, a Senior Medical Officer, was transferred from Tehsil Headquarter Hospital , Dargai, Malakand Agency to Central Jail Hospital , Peshawar by the Director General, Health Sendees, N.W.F.P. (respdt No. 1) Vide. : his order No. 17312-24/E-I dated 19.5.1996. On the 3rd day of his taking over the charge i.e. on 21.5.1997, he was against transferred to Tehsil Headquarter Hospital, Dargai and instead Dr. Nasratullah posted at the Police Hospital, Peshawar (Respdt. No. 3) was transferred and posted at the Jail Hospital , Vide : Order No. 10161-70/E-l dated 21.5.1997, impugned in this writ petition. 2. Aggrieved, by the said order, the petitioner has challenged its validity by filing this Constitutional Petition U/A 199 of the Constitution of Islamic Republic of Pakistan, 1973. 3. We have heard the learned counsel for the petitioner and have also gone through the available record. 4. From the material, placed on file, it cannot be said, by any strength of imagination, that the impugned order is either perverse or arbitrary: The same is not tainted with malice. Besides, the learned counsel for the petitioner patently failed to point out that the competent authority had no jurisdiction to transfer the petitioner to Tehsil Headquarter Hospital, Dargai or that the petitioner was not liable to be transferred to the said Hospital. 5. Provisions of Sec. 10 of the Civil Servants Act, 1973 are quite clear wherein it has been provided that every civil servant is liable to serve anywhere, within or outside the countiy, on any post, under the Federal or ^ Provincial Government. The petitioner was, therefore, rightly transferred/posted and required to work at, the posted station. This could be legally done even without his consent. 6. Before parting with the case we would like to observe that before a person is permitted to invoke the discretionary Constitutional jurisdiction of the High Court U/A. 199 of the Constitution of Islamic Republic of Pakistan 1973, he has to show that the impugned order sought to be set aside was either illegal or without jurisdiction and was in any manner tainted with malice i.e., it was male fide. On the other hand, if the order is not illegal and without jurisdiction, then in that case extra-ordinary jurisdiction shall not be allowed to be invoked. 7. This writ petition having no substance and is dismissed in limine. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 169 PLJ 1997 Peshawar 169 Present: MALIK HAMID SAEED, J. GUL WALI KHAN--Petit.ioner versus SAFDAR SALIM and 10 others-Respondents Civil Revision No. 13 of 1997, dismissed on 4.6.1997. Civil Procedure Code, 1908 (V of 1908)-- S. 115-Revision-Grounds of-Revisional jurisdiction of High Court under section 115 CPC are very limited and concurrent findings of courts 'below should not be interfered with in revision petition, unless such findings are based on no evidence or were fanciful or arbitrary. [P.170 ] A S. Zafar Abbas Zaidi, Advocate for Petitioner. Date of hearing : 4.6.1992. order This revision petition calls in question the concurrent findings of the two Courts below dated 29.5.1996 and 16.11.1996 respectively vide which the pre-emption suit of the plaintiff/petitioner was dismissed. 2. Facts of the case giving rise to this petition are that the plaintiff had filed a pre-emption suit in the Court of Civil Judge Bannu on the ground that the suit land was actually sold to defendant No. 1 for an ostensible sale price of Rs. 4,000/- but no sale deed was executed between the parties and that due to contiguity and participator in immunities and appendages had got superior right of pre-emption over the suit land. 3. It was vehemently argued by the learned counsel for the petitioner that the learned trial Judge has materially erred in not giving his findings on the question of Talabs, market value and sale consideration. He argued that the registered power of attorney in favour of the vendees together with the fact of delivery of possession were sufficient to have prevailed upon the rial Court to have hold that a sale transaction had taken place. He submitted that the learned lower appellate Court by discussing Talb-e-Muwathibat and Talb-c-Isshad in his impugned judgment has rather accepted the factum of sale It was averred that even if the lower appellate Court had to confine itself to the questions of Talbs, its verdict should been in variance with that of the trial Court by setting aside the impugned conclusion before it on the question of sale. It was lastly argued that the lower appellate Court had mis-read the evidence on the plea of Talbs, because the plaint itself disclosed a specific date of coming to know of the plaintiff about the transaction of sale and sending of notice on target date. He also argued that non-discussing of each and every issue framed in the case is a material irregularity curable under Section 115 CPC by this Court in exercise of its revisional jurisdiction. 4. I have anxiously considered the arguments advanced by the petitioner's side and thoroughly scanned the record with his valuable assistance. 5. It is true that in suits in which issues have been framed, the Court shall sate its finding or decision with the reasons therefor upon each separate issue, as envisaged by Order 20 Rule 5 CPC, but it is equally true that there is no bar upon the Courts to decide the case on merits. For the sake of convenience, a Court can discuss more than one issues together. I have gone through the judgment of learned Civil Judge and find no force in the contention of the learned counsel for the petitioner that the learned trial Judge has not given its findings on each and eery issue. It is true that the learned Judge "has not discussed each issue separately, but findings on all the issues have been given by him. In the case in hand when the basic issues 6, 7 and 8 have been discussed and when the remaining issues were the outcome of the same issues, its discussion at length is not required having become redundant. The bone of dispute between the parties is the factum of sale transaction and in absence of any documentary proof in support thereof, the suit could not succeed, and hence the question of Talbs and market value being of secondary nature were rightly not taken into consideration by the trial Court. 6. The learned District Judge in para-8 of his judgment, no doubt has discussed the points regarding Talb-i-Muwathibat and Talb-e-Isshad, but with a clear observation, i.e. "WITHOUT GOING TO THE QUESTION OF SALE". Therefore, the impression gathered by the petitioner's counsel that with the said discussion in Paras 8,9 and 10 the lower appellate Court has accepted the factum of sale transaction between the parties is totally incorrect. 7. Revisional Jurisdiction of this Court under Section 115 CPC are veiy limited and concurrent findings of Courts below should not be /^interfered with in revision, unless such findings are based on no evidence or were fanciful or arbitrary. 8. In the instant case, no jurisdictional defect or material irregularity or error of procedure was pointed out. Besides, the conclusion arrived at by the two Courts below is not the result of ignoring any material evidence or outcome of mis-reading of evidence or based on extraneous considerations and hence are not open to an interference. Reliance in this context, can be placed on the case reported as Mst. Ambrin Begum. Vs. Dr Development Kishan alias Kishan Q991 MLD 318). 9. For what is discussed above, I find no merit in this revision petition and the same is hereby dismissed in limine, together with C.M. No. 15/97. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 171 (DB) PLJ 1997 Peshawar 171 (DB) [D.I. Khan Bench] Present: jawaid nawaz khan gandapur and malik hamid saeeq, JJ. KHALIF DAD-Petitioner
versus MUHAMMAD GUL and 2 others-Respondents W.P. No. 135 of 1997, dismissed on 11.6.1997. Civil Procedure Code, 1908 (V of 1908)-- S. 115RevisionAcceptance ofWrit Petition againstAfter close of plaintiffs evidence, defendant got examined two witnesses and his evidence was not yet closed when he filed an application for impleadment of sons of petitioner/defendant being necessary party in whose names property was transferredTrial judge dismissed application, where against a revision filed in the court of Additional District Judge, was accepted and hence this writ petition-ADJ has rightly accepted revision petition of defendant/respondent and his findings do not suffer from any jurisdictional defect as described in Section 115 CPC-Constitutional jurisdiction of High Court could only be invoked if discretion exercised by forum below is arbitrary or preversePetition dismissed. [Pp. 171 & 172] A&B Mr. Dost Muhammad Khan, Advocate for Petitioner. Date of hearing: 11.6.1997. order Malik Hamid Saeed, J.--This writ petition is directed against the judgment and order dated 10.4.1997 of the learned Additional District Judge, Lakki vide : which revision petition of the petitioner against the judgment and order dated 6.11.1996 of the learned Civil Judge, Lakki was accepted. 2. Facts of the case, briefly stated, are that respondent No. 1 herein had filed a pre-emption suit in the Court of Civil Judge, Lakki where while filing written statement, a preliminary objection regarding non-joinder of necessary party was raised. 3. After close of the plaintiffs evidence, the defendant got examined two witnesses and his evidence was not yet closed when, on 17.7.1996, he filed an application for impleadment of sons of the petitioner/defendant being necessary party in whose names the property was transferred. The learned trial Judge vide : his order dated 6.11.1996 dismissed the application, where against a revision filed in the Court of Additional District Judge, Lakki was accepted on 10.4.1997 and hence this writ petition. 4. The only grievance of the petitioner is that when in the written statement an objection regarding non-joinder of necessary party has been taken, but the plaintiff paid no heed to it so much so that a specific issue was framed in this behalf. The application dated 17.7.1996 at such a belated stage when the plaintiffs evidence had been closed and even the defendant evidence was almost near to completion was liable to dismissal and hence the impugned order of the trial Court was legally founded. 5. The objection of the petitioner that sons of the plaintiff were the necessary party and in their absence the suit was defective but when the defendant petitioner reqxiestecl for this purpose, the same was opposed only on the ground that it was not made in time, is utenable. 6. The learned District Judge, has, therefore, rightly accepted the revision petition of the defendant/respondent and his findings do not suffer from any jurisdictional defect as described in Section 155 CPC. d Constitutional Jurisdiction of this Court could only be invoked if the discretion exercised by the forum below is arbitrary or perverse. The petition being mis-conceived and having no merit is, therefore, dismissed in limine. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 172 (DB) [D PLJ 1997 Peshawar 172 (DB) [D.I. Khan Bench] Present: shah jehan khan yousaf zai, J and second judge's name is NOT DECIPHERABLE MUHAMMAD DIN-Petitioner versus PROVINCE OF NWFP , through SECRETARY PUBLIC HEALTH ENGINEERING DEPARTMENT etc.-Respondents Writ Petition No. 85 of 1995 accepted on 28-5-1997. Constitution of Pakistan 1973-- Art. 199Recommendation of petitioner for appointment as mechanic (B-7) on merits-Appointment of respondent No. 5 on recommendation of Minister on the same post without merit-Challenge to-Appointment of respondent Z was made clearly in violation of recruitment rules--There is a procedure prescribed for appointment to be made on a post by Government functionary and every body is to follow the same-Minsiter or M.N.A. or Senator is no where figured in appointment of a civil servantHe is under an oath to discharge his duty in accordance with constitution and lawPost of mechanic came into existence on retirement of father of petitioner-After completion of legal requirements, he was strongly recommended by respondent No. 4 placing him at serial No. 1 keeping in view of his fitness and field experience certificate-However appointing authority later slipped from legal track and ignored service lawsThis act speaks of inefficiency and insufficiency on part of said authority-Order of appointment, of respondent, Z declared illegal- Petition accepted with costs to be recovered from pocket of respondent No. 4. [Pp. 174 & 175] A to D 1993PLC (C.S.)797re/: Mr. Muhammad Bashir Gohar, Advocate for Petitioner. Mr. Muhammad Khan Khakwani, Advocate for Respondent No. 1 to 4. Mr. Inamullah Khan YousafZai, Advocate for Respondent No. 5 Date of hearing : 28-5-1997. judgment Shah Jehan Khan Yousufzai, J.-This Constitutional Petition assails the legality of the order dated 1-8-1995 passed by the Executive Engineer, Public Health Engineering Division, Bannu, respondent, No. 4 herein, whereby the respondent, Zahid Ali has been appointed against the post of Mechanic (B-7) which had fallen vacant on the retirement of one Nooruddin. The prayer made by the petitioner Muhammad Din is to be effect that, the impugned order of appointment of respondent No. 5 may be declared as illegal, without lawful authority and void ab irntio with direction that irrespective of the recommendation of the Minister or any other authority the issue may be decided strictly on merits. 2. The facts giving rise to the instant writ petition are that on the retirement of one Nooruddin father of the petitioner Muhammad Din a post of Mechanic (B-7)'in the Public Health Engineering Division, Lakki Marwat had fallen vacant. The post was advertised in the daily newspaper inviting applications and after fulfilling the requisite formalities a date i.e. 23-4-1995 was fixed for interview which was later postponed to 25-4-1995, on which date the petitioner and four .,iher candidates were interviewed. The respondent No. 4 recommended the petitioner vide letter dated 31-5-1995 to respondent No. 3 placing him as No. 1 on the merit list having secured highest markers in the aforesaid interview, mainly on the grounds, firstly, that he belonged to Lakki Marwat where the post had fallen vacant in view of. retirement of his father Nooruddin and; secondly, that on account of practical filed experience with his father while in service vide certificate issued by the S.D.O. Public Health Engineering Development, Sub-Division, Lakki Marwat. Meanwhile, the Minister for Public Health Engineering Department, N.W.F.P. Peshawar forced respondent No. 4 to substitiite his 'letter of recommendation and include the name of respondent No. 5 for interview. Consequently, another letter of recommendation vide No. 18 dated 6-7-1995 was issued by respondent No. 4 placing the name of . respondent No. 5 therein at No. 6. In the said letter it, has been specifically stated in the remarks column that "respondent No. 5 herein did not appear for interview, however, was tested later on the recommendations." Nonetheless, respondent No. 4 in utter disregard of the legal requirements and the earlier recommendations made by him vide letter dated 31-5-1995 passed the impugned appointment order in favour of respondent No. 5. 3. Respondents Nos. 1 to 4 in their joint comments filed on 10-9-1995 took a very vague stand saying that respondent No. 5 was found most competent in the Trade test/interview among all the candidates and further maintained that the appointment of respondent No. 5 was made under the order of the competent authority and was legally correct. A rejoinder to the comments of the respondents was filed by the petitioner wherein the allegations were entirely refuted. 4. The learned counsel for the petitioner contended before us, firstly, that the petitioner was eligible to the appointed as Mechanic (B-7), for, he had applied for the same in response to the advertisement in the newspaper and had appeared for interview on the crucial date; secondly, that respondent No. 5 neither applied for the post within the prescribed period nor attended the interview on the date fixed: and, thirdly, that the petitioner was strongly recommended by respondent No. 4 in his letter dated 31-5-1995 in view of the experience certificate and the merits' position but respondent No. 5 was appointed on the post, as a result of illegal interference of the Minister for Public Health Engineering Department. N.W.F.P. Peshawar. In this context, reliance was placed by the learned counsel for the petitioner on the case reported as Mwiawar Khan etc. Vs. Niaz Muhammad and others (1993 PLC(C.S.) 797). 5. The learned counsel appearing for respondents Nos. 1 to 4 flatly conceded that vigorous irregularity has been committed by issuing the impugned order dated 1-8-1995 and showed his inability to defend the said order. 6. Before going through the contentions of the learned counsel for the petitioner, it will be pertinent to mention here that Ayub Gul XEN of the concerned Department (respondent No. 4), who was summoned for today to appear in person and apprise the Court of the factual position that when respondent No. 5 did not appear for interview on the crucial date how he was appointed, stated at the bar that although respondent No. 5 did not appear on the date of interview but subsequently since the Minister for Public Health Engineering Department. N.W.F.P. Peshawar recommended him only for interview and not for appointment, therefore, the appointment of respondent No. 5 was made by independent mind with any force or pressure. 7. We have given our anxious consideration to the contentions raised by the learned counsel for the petitioner and have perused the available material on file. Admittedly, the post of Mechanic (B-7) in the Public Health Engineering Divisions, Lakki Marwat came into existence on ithe retirement of father of the petitioner. After the completion of the legal ^J requirements the petitioner and four other candidates were called for (interview out of whom the petitioner was strongly recommended by respondent No. 4 placing him at Serial No. 1 in the letter of recommendation dated 31-5-1995 (Annexnre 'C') keeping in view of his fitness and field experience certificate. However, the appointing authority later slipped from the legal track and ignored the service laws when the Minister of the Department concerned recommended the respondent Zahid Ali merely for interview. This act speaks of inefficiency and insufficiency on the part of the said authority. In Munawar Khan V.s. Niaz Muhammad etc. (1993 PLC iC.S.) 797) reliei upon by the learned , tinsel for the petitioner and to which we are also inclined it has been observed by their Lordships of the Supreme Court as under :- "....Service laws designate, in the case of all appointments, a departmental authority competent to make such appointments, whose judgment and discretion has to be exercised honestly and objectively in the public interest and could not be influenced or subordinated to the judgment of any one else including bis superior." What we have unticed in the case which is under consideration before us is that rhe appointinein 01 the respondent Zahid Ali was made clearly in violation of the recruitment rules There is a procedure prescribed for appointment, to be made on a post by the Government functionary and every body is to follow the same. Article '21 of the Constitution of Pakistan, 1973 is indicative of tin- iegai position that no citizen otherwise qualified for appointment in the service ->i Pakistan shall be discriminated against in respect o, .,ucb appoininu'iit. In I Civil Servants (Appointment, Promotion and Transfer) Rules, 197:? the Minister or M.N.A. Senator or M.P.A. is no where figured in the appointment of a civil servant. In a way the responsibility of Public representative is greater than the others to see that the relevant law is not violated by an act/omission of an appointing authority. He is under an oath to discharge his duty in accordance wit the Constitution and the law. 8. For the aforegoing reasons, while accepting this writ petition, the order of appointment of the respondent Zahid Ali issued by respondent No. 4 on 1-8-1995 is declared as unconstitrti mal :md illegal aft initin and as such is struck down with cosl.s to be recovered from the pocket of the Executive Engineer, Public Health Engineering Division. Lakki Marwat who had issued the subsequent letter of recommendation dated 6-7-1995 under the influence of directive of the Minister concerned and the aforesaid order of appointment was issued. It is further directed that by ignoring all the subsequent recommendations further order be made on the basis of the earlier recommendation dated 31-O-1995 strictly in accordance with law. (MYFK) Petition accepted.
PLJ 1997 Peshawar 176 PLJ 1997 Peshawar 176 Present: tariq pervez khan, J. Mst. SAADAT-UR-REHMAN-Petitioner Versus MUHAMMAD ZAARAT KHAN & 3 others-Respondents Civil Revision No. 154 of 1993, dismissed on 4.7.1997. Civil Procedure Code, 1908 (V of 1908)-- -S. 115 read with Section 12(2)~Dismissal of application summarily ~ Revision against-It cannot be presumed even by any stretch of imagination that during all the time, petitioner was not in knowledge of fact that house allegedly constructed and owned by him was subject matter of dispute between parties-It is also admitted by him that litigation between parties was going on and that he was residing in said houseConduct of parties and their respective evidence led before trial court and their attempt to set at naught judgments and decrees of lower courts through this revision petitioner(s) have got no forceHeld : If it appears to Court that application is filed to cause delay and is vexations and it, likely to hamper with quick administration of justice same may be dismissed summarily-Petitions dismissed. [Pp. 179 & 181] A, B, C, & D PLD 1988 Lahore 398. Mr. Muhammad Younis Khan, Advocate for Petitioner. Haji Ghularn Basil, Advocate for respondents. Date of hearing : 12.6.1997. judgment My this order shall dispose of three petitions (C.R. Nos. 128. 129 of 1995 & 154 of 1993) of which two have be field by Dr. Mian Haseeb Ahmad and one by Mst. Saddat ur Rehman. All these revisions are directed against jiidgment dated 3-12-1995 of the learned Additional District Judge, Haripur. 2. The factual back ground giving rise to the instant revisions stated in brief, is that land measuring 41 kanals 5 marlas old khasra No. 1314 was jointly owned by Mst. Saadat ur Rehman With Muhammad Zaarat Khan and Muhammad Iqbal. The land is situated in village Pandak Tehsil Haripur. Two partition mutations bearing No. 3648 and 3649 were attested on 2-11- 1972 and in such partition 10 kanals 6 marlas fell into the share of Mst. Saadat-ur-Rehrnan and was given khasra No. 1314/1 while the remaining land measuring'-30 kanals 19 marlas (khasra No. 1314/2) was determined to be the share of Muhammad Zaarat and Muhammad Iqbal. 3. In the year 1981-82 during the settlement proceeding khasra No. 1314/1 was allotted three new khasra numbers 1433, 1434 and 1460 whereas khasra No. 1314/2 was allotted new numbers as 1461, 1463 and 1464. 4. Through an award dated 6.6.1972 land Acquisition Collector acquired 2 kanals 7 marlas of land on behalf of the Irrigation Department which was shown as khasra No. 1434 in the revenue record. Later, it transpired that the irrigation department, although have made payment in respect of 2 kanals 7 marlas to Mst. Saadat ur Rehman but was shown in possession of the whole Khasra No. 1434 measuring 3 kanals 4 marlas. 5. A suit bearing No. 525/1 titled "Muhammad Zaarat Khan and others vs. Mst. Saadat-ur-Rehman" was field on 24-9-1985 on the ground that the defendant has made encroachment in Khasra No. 1561 by constructing a house thereon. It was prayed that the house be demolished and possession underneath of the house be given to the plaintiff. 6. Mst. Saadat ur Rehman defendant in case in Suit No. 524/1 also filed a suit bearing No. 767/1 seeking declaration that her landed property measuring 17 marlas which was wrongfully occupied by the irrigation department should be treated towards Muhammad Zaarat Khan and Muhammad Iqbal, defendant in her suit. She also demanded that her deficient shares of 17 marlas be made good out of khasra No. 1461. 7. The learned trial Court on acceptance of Suit No. 524/1 passed a judgment and decree and ordered the plaintiff the deposit Rs. 1,30,080/- as compensation for the improvements carried out by construction of a house which amount was duly deposited by the respondents/decree holders. Suit No. 767/1 filed by Mst. Saadat-ur-Rehman was however, dismissed. 8. Mst. Saadat-ur-Rehman aggrieved of the two orders of the trial Court both in Suit No. 524/1 and 767/1 filed to separate appeals but the same were dismissed. 9. That when the execution proceedings in respect of Suit No. 524/1 commenced, Dr. Mian Haseeb Ahmad (son in law of Mst. Saadat ur Rehman) filed an objection petition coming forth with a claim that the decree property was in this possession as owner. He based his claim by pleading that the said property was given to him by his mother-in-law as gift and he was in the actual and physical possession of the property comprising a house. 10. Dr. Mian Haseeb also filed an Application U/S. (12(2) read with section 151 CPC in the Curt of Additional District Judge and challenged that the judgment and decree passed in Appeal No. 19-/13 in respect of Suit No. 524/1 was based on fraud and hence being the donee of the suit land has constructed a house thereon and was in his occupation. He prayed that he was a necessary party to the entire proceedings but, was intentionally left out and was not impleaded as party in the suit in order to conceal the fact of gift in his favour made hy Mst. Saadat ur Rehman which tantamount t« fraud. 11. Mst. j3aadat-ur-Rehman (now dead) also filed an application U/S. 12(2) CPC challenging the legality of the judgment and decree passed in Appeal No. 19/13 on the ground that the same has been obtained through fraud, the detail whereof she has stated in her application in paras 2, 3 and 4 which are to the effect that Zaraat Khan being Ex-Girdawer in the Revenue Department through deceitful means and by collusion with the Revenue Staff has wrongly shown in the Settlement of 1981-82 the land in possession of irrigation department as 3 kanals 4 Mis instead of 2 kanals 7 marlas. She also alleged that Zarrat Khan was respondent No. 1 in her petition, being an influential person has removed/conceled the original document as such the land acquired by the Irrigation Department could not be correctly determined while deciding suit No. 767/1 and 524/1. Her stand was that the acquisition record (if produced) would prove the collusion and fraud whereby she has been deprived of 17 marlas. 12. Mst. Saadat ur Rehman on her death was substituted and her cause was pleaded by her legal heirs. The learned counsel for the heirs of Mst. Saadat ur Rehman ordinately argued that the learned appellate court should not have disposed of the application U/S. 12(2) CPC in a summary manner and without recording evidence. It was also argued that the record and tampered with at initial stage and after the same was tranced out, it was incumbent upon the learned appellate court to have requisitioned the record. Learned counsel was of the view that if it was accordingly done the collusion could have been proved. 13. A perusal of the record of case (suits No. 524/1 767/1) no where shows any tampering therein. The deficiency of area or the non-availability of the requisite record appears to be fallacious and baseless. 14. Mst. Saadat ur Rehman throughout, the proceedings in either of the suits has accepted that she has received compensation in respect of the acquired land. The statement of Patwari Halqa who produced Fard (Ex. PW 1/1), shows that total area of 10 kanals 6 marlas against three khasra numbers namely 1433, 1460 and 1434. The acquisition record on perusal also shows that it has not changed the position of the respective shares of the parties. The apparent fault which appears from the record is that the Irrigation Department has been shown in occupation of 3 kanals 4 marlas instead of 2 kanals 7 marlas. It does not mean that there is deficiency in the share of Mst. Saadat ur Rehman of 17 marlas. The learned is there, but appear to have been wrongfully shown in occupation of the Irrigation Department 15. Learned counsel for the petitioners while referring to 1988 SCMR 1380 and 1982 CLR 625 vehemently argued that as held in the referred judgments the appellate Court was not vested with powers to have dismissed these applications in a summary manner. 16. As two of the petitions are arising out of applications filed u/S. 12(2) CPC as such, at this stage I would like to discuss the scope of application of the said section and thereafter it has to be applied to the facts of the instant case. 17. Sub-section (2) to section 12 CPC was added through Ordinance X of 1980. The section in its original form debars a plaintiff from instituting fresh suit in respect of any particularly cause of action. But, through the introduction of sub-section (2) to the section the Legislation has given a right to any person to challenge the validity of the judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction. The scope of this sub-section appears to be further enhance by giving right to file an application under this sub-section before the Court which has passed the final judgment, decree or order. 18. The objected of newly added sub-section appears to be to avoid multiplicity of litigation over the same subject-matter/cause of action. 19. This is a beneficial legislation for both the parties to the suit and also those who are not arrayed as party, during the proceedings but whose interest in indirectly or indirectly involved and it saves all such parties from the agency of a prolong fresh trial. This sub-section gives inherent power to the court passing judgment, decree or order to set aside its own findings, if the same was found to be obtained/passed through fraud and mispresentation etc. 20. The Court on receipt of an application under this sub-section should first see its maintainability and the bona fide.s intentions of the person filing the same. If it appears to the Court, that the application is filed to cause delay and is vexatious and is likely to hamper with quick administration of justice the same may be dismissed even summarily. Otherwise the court on consideration of facts as alleged in the application may, by providing an opportunity to all the concerned parties of leading evidence come to a final conclusion about the correctness or otherwise of the application. ' 21. It is a known fact that a civil suit generally takes years in its conclusion. The parties to the suit are well versed with the facts of their cases. They are given opportunity of adducing evidence in support thereof. As such the conduct of Mst. Saadat ur Rehman who came with an application at a belated stage praying the setting aside of the judgment.and decree appears to be noting more than to delay the execution of the judgment and decree passed by the competent court. Similarly, the conduct of Dr..Mian Hasib Ahmad is exceptionable, according to his own admission he is in possession of house constructed on the disputed property since long. It is also admitted by him that the litigation between the parties was going on and that he was residing in the said house. It cannot be presumed even by any stretch of imagination that during all this time, petitioner was not in knowledge of the fact that the house allegedly constructed and owned by him was subject-matter of the dispute between the parties namely Ms?. Saadat ^ir Rehman and Muhammad Zaraat Khan and others. He kept on sitting on fence observing the conclusion of the trial and only filed the application before the appellate court. True, that he could have filed the application at any stage but I will retierate and say that, his conduct throughout remained such that he appears to have shown his acquiescence. 22. In a case reported in PLD 1988 Lahore 398 an application U/S. 12(2) CPC was dismissed when it was found that the same was filed to misuse the process of the court. 23. Another fact which cannot be oversighted in the conduct of the parties namely Mst. Saadat ur Rehman that she did not challenge the finding of the appellate curt in Appeal No. 17/13 arising out of Suit No. 767/1 and the same has become final. 24. As far as Dr. Mian Hassib Ahmad is concerned, his main submission are that :- (a) he is a donee of land from Mst. Saadat ur Rehman and has constructed a house thereon, (b) that an application was moved by him for the appointment of a local commission on which no order was passed, (c) that the original acquisition of the land was effected from khasra No. 1314/2 and the same was to the extent of 2 kanals 7 marlas and it could not be shifted towards khasra No. 1314/1. 25. A perusal of his application shows that it is only confined to his first contention given above (a). He was got to concern with the other two points, as earlier a commission was appointed during the pendency of the lis between the real parties. He contention that the sketch map showing the construction of house duly approved by the municipality in his name is not sufficient evidence neither of the ownership nor of its construction. 26. There is yet another circumstance that belies the stand of Dr. Mian Hasib Ahmed when Mst. Saadat ur Rehman in her written statement has denied to have transferred any land/site to Dr. Mian Hasib Ahmed and she has categorically stated that he only used to visit the house occasionally. 27. On the non-appointment of local commission the learned counsel relief on PLD 1983 Lahore 349, 1990 CLC 889 and PLD 1991 Karachi 205. There is difference between avoiding to decide an application in a suit and "not deciding an application. It appears that before the lower court the application for the appointment of local commission was never pressed as such while placing reliance on P.L.D. 1987 Peshawar 40 and 1982 SCMR 489 it is held, that where a ground was taken but was not pressed. The same to be regarded as having been abandoned for the legal intend and purposes. 28. Award through which the land measuring 2 kanals 7 marlas was acquired shows that the same was in respect of khasra No. 1314/1. The payment of vouchers in respect of the acquired land also contains reference to two partitions and the receipt of total amount by Mst. Saadat ur Rehman. The acquisition was competed in the year 1972 and the oral evidence in respect of so called gift is to the effect that the property was gifted in the year 1978. 29. In view of the facts and circumstances given above, the conduct of the parties and their respective evidence led before the trial Court and their attempt to set at naught the judgments and decrees of the lower courts through this revision petition(s) have got no force. 30. Resultantly all the three petitions are dismissed. The parties are however, left to bear their own costs. The judgment and decree passed by the trial Court and confirmed in appeal are upheld. (B.T.) Petition dismissed.
PLJ 1997 Peshawar 181 PLJ 1997 Peshawar 181 Present: SHAH JEHAN KHAN YOUSUFZAI, J. GHULAM MEHMOOD-Petitioner versus HUKAM KHAN and others-Respondents Civil Revision No. 276 of 1990, decided on 22.2.1997. Specific Relief Act, 1877 (I of 1877)- ....S. 42-Civil Procedure Code (V of 1908), S. 115-Suit for declaration of title and possession in property-Plaintiff claimed to be brother of defendants who in collusion with Revenue Authorities had got his name removed from record-One of two defendants admitted plaintiffs claim while other refused to acknowledge him as his brother-Suit dismissed but decreed by Appellate Court-Validity-To deprive plaintiff of his legacy, there was heavy burden on defendant to bring cognent evidence in support of his assertion that plaintiff was born after their mother was divorcedWhile admitting in his statement before Court that he could produce proof of divorce, defendant failed to bring any such proof-Evidence on record clearly showed that plaintiff and defendants were born in wedlock of their father and mother and that their mother was never divorced by their father-Settlement in area was carried out in the absence of plaintiff and non-entiy of plaintiff in Settlement Record was ineffective Judgment and decree of Appellate Court was well-reasoned, based on law and deserved to be maintained. [P. 186] A 1983 SCMR 626 ref. Mr. Khalil Khan Khalil, Advocate for Appellant. M. Ismail Khalil, Advocate for Respondents. Date of hearing: 22.2.1997. judgment This is a revision petition against the judgment and decree of the learned Additional District Judge, Swabi, dated 21.3.1990 whereby the appeal filed against the judgment and -decree of the learned Additional Civil Judge, Swabi, dated 15.1.1989 dismissing the suit of the plaintiff/respondent No. 1, was accepted and the suit was decreed. 2. The facts relevant for the disposal of this revision petition, briefly stated, are that Hukarn Khan respondent No. 1 brought a suit against Ghulam Mehmood, petitioner and respondents Nos. 2 to 26 herein for declaration to the effect that land measuring 189 Kanals 15 Marias bearing Khasras Nos. 2307, 47/1, 47/3, 105/2, 183, 187, 189, 190, 112, 109, 68, 71 and 114 situate in village Sandua, Tehsil and District, Swabi, is being his ancestral property and that he is owner of l/3rd share; that due to his absence from the village his brothers i.e. petitioner and respondent No. 2 have collusively entered the same in their names and rest of the defendants/respondents have been recorded as mortgagees; and that his name was collusively omitted from the revenue record. The suit was contested by the defendant/petitioner through filing written statement while defendant/respondent No. 2 admitted the claim of the plaintiff and rest of the defendants were proceeded against ex parte. The plaintiff/respondent No. 1 in support of his claim produced his special attorney Qaim Khan as P.W. 2 examined Mirza Ghayas, Patwari Halqa as P.W. 1 and Noor Mehmood defendant as P.W. 2. In rebuttal Ghulam Mehmood defendant/petitioner appeared as D.W. 1 and produced Ghulam Qadir as D.W. 2. The trial Court framed as many as 12 issues out of the pleadings of the parties which are as under:- (1) Whether the plaintiff has a cause of action? (2) Whether the suit is within time? (3) Whether the plaintiff is estopped to bring the present suit? (4) Whether the suit is competent in its present form? (5) Whether the plaintiffs is the son of Khan Baz? (6) Whether the suit has been brought collusively by the plaintiff alongwith defendant No. 1 and is fraudulent? (7) Whether the defendants have collectively entered the suit land in their names in the revenue papers and have eliminated the name of the plaintiff? (8) Whether the plaintiff is owner up to l/3rd share in the suit property? (9) Whether the suit land is mortgaged and the plaintiff is entitled to redeem the same? (10) If issue No. 9 is decided in affirmative, then what is the mortgage charge? (11) Whether the plaintiff is entitled to the declaration prayed for? (12) Relief. The learned trial Judge decided Issues Nos. 1, 8 and 11 against the plaintiff and held on Issue No. 5 that the onus for proving the plaintiff/respondent No. 1 to be the son of Khan Baz was on the plaintiff which has not been established by any cogent evidence and decided the issue in the negative. On Issue No. 3 it was held that if the plaintiff/respondent No. 1 was proved to be brother of the defendants then the suit would have been in time hence, while referring to Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) the issue was held to have become redundant. Issues Nos. 6 and 7 were decided in the negative holding that there was no sufficient proof to establish the collusiveness between the plaintiff/respondent No. 1 and defendant No. 2. On issues Nos. 9 and 10 it was held that the suit land was shown mortgaged in the revenue record but there existed no such evidence and the issues were decided accordingly. In the light of the above findings, the suit of the plaintiff respondent No. 1 was dismissed on 15.1.1989. 3. Feeling aggrieved of the judgment and decree as aforesaid, the plaintiff/respondent No. 1 preferred an appeal before the Additional District Judge, Swabi, who vide his judgment and decree dated 21.3.1990 accepted the appeal, set aside the judgment and decree of the trial Court and decreed the plaintiffs suit for declaration and joint possession to the extent of his share in the suit land. 4. Mr, Khalil Khan Khalil, learned counsel for the petitioner argued that respondent No. 1 has failed to establish that he was born of the wedlock of Khan_Baz and Mst. Badro; that neither the plaintiff/respondent No. 1 appeared himself to face the cross-examination of defence nor any cogent evidence was brought in this regard; that P.W. 2 appeared as special attorney of respondent No. 1 but his power of attorney was objected to by the petitioner; and that even P.W. 2 was not in a position to answer the material questions raised in the cross-examination. The learned counsel emphasized that none from the vicinity or relation was produced to substantiate the claim of respondent No. 1; that Noor Mehmood respondent No. 2 was not in good faith with the petitioner and criminal cases were going on between them; that the suit was collusively brought by the plaintiff/respondent No. 1 at the instigation of his brother Noor Mehmood respondent; that the plaintiff/respondent No. 1 was born after 6/7 years of the divorce between Khan Baz and Mst. Badro the mother of the plaintiff and contesting defendant; that since 55 years the petitioner is in possession of the suit land without interference by any body; and that the suit is barred by time. 5. Mr. Muhammad Ismail Khalil, learned counsel for respondent No. 1 on the other hand, argued that the plaintiff/respondent No. 1 has established his claim by producing cogent evidence of P.W. 3 who is undisputedly real brother of the contesting defendant; that one cannot commit collusion against his. own interest and further that the said witness had made a clean-breast statement in this, regard; that it was for the petitioner to prove the onus of factum of divorce between Khan Baz and Mst Badro; that although D.W. 1 has said in his cross-examination that be can produce the proof of divorce but no such proof was brought on record and even he failed to furnish the proof of divorce at the appellate stage as well as in this Court; that since the D.Ws. have admitted that the plaintiff/respondent No. 1 was born of Mst. Badro and Mst. Badro was the legally-wedded wife of Khan Baz, therefore, the burden was heavily lying on the shoulder of the petitioner to prove by cogent evidence; that the learned trial Court has failed to appreciate the evidence in its true perspective and thus wrongly decided Issue No. 5 against respondent No. 1. While supporting the judgment and decree of the learned Appellate Court, the learned counsel urged that it was based on well-reasons, proper appreciation of evidence and in accordance with law. As regards objection of limitation, the learned counsel contended that as the contesting parties being coowners, possession of one owner shall be considered possession of all the coowners, therefore, the objection of limitation cannot be entertained and in support of his contention relied upon the case of Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) wherein the point of limitation raised by the petitioners therein was not entertained. 6. I have given my anxious thought to the respective contentions of the learned counsel for the parties and have gone through the record. 1 find no substance in the first contention of the learned counsel for the petitioner that respondent No. 1 had failed to prove himself as son of KhairBaz because he did not appear as his own witness but Qaim Khan appeared on his behalf as special attorney which was also subject to objection by the petitioner. The record shows that the suit was filed by respondent No. 1 on 14.2.1987. The power of attorney also bore thumb-impression of the plaintiff/respondent No. 1. It has been stated at the Bar that respondent No. 1 is labouring in Middle-East since institution of the suit, till today. The plaintiff, therefore, appointed P.W. 2 as his special attorney to pursue the case and under the law he was competent to do so. The petitioner has raised a baseless objection over the authority of P.W. 2 as the power of attorney in his favour was executed on 25.3.1987 duly attested by the Notary Public, Swabi, witnessed by the marginal witness and exhibited as Exh. PW. 2/1. The contents of the deed show that he was empowered to given statement. The respondent No. 1 also examined Noor Mehmood defendant, as P.W. 3 who is undisputedly real brother of the petitioner and enjoying the suit property equally. The learned Appellate Court has rightly held that no one could give a statement detrimental to his own lights. There is no possibility of committing collusion with the petitioner because he has to give l/3rd of h'is share to respondent No. 1 in view of the decree. The evidence brought by the petitioner to the effect that respondent, No. 1 has undertaken to pay rupees one lac to Noor Mehmood if. his suit is decreed and that Noor Mehmood has contacted him demanding rupees one lac otherwise he will deposit in favour of the plaintiff/respondent No. 1 is not convincing for the reason that the property involved is very much of great value and how Noor Mehmood for the sake of one lac rupees would deprive hirhself of so rmich valuable property being a sane person. In the presence of statement of P.W. 3 there was no need of further any other evidence of his native village because P.W. 3 is undisputedly real brother of the petitioner and enjoying the usufruct of plaintiffs share. P..W. 3 was subjected to lengthy crossexamination but not a single question as to the deprivation of respondent No. 1 was asked. The settlement record was prepared in the absence of the plaintiff/respondent No. 1 as he was not present in his village and also in the absence of Noor Mehmood P.W. 3 who was undergoing imprisonment in jail. The said settlement record was made prejudice in the instant case and nonentry of the plaintiff/respondent No. 1 as son of Khan Baz in the pedigreetable or non-entry of the suit land is his name does not deprive him of his legal rights. In these circumstances, the plaintiff/respondent No. 1 has established that he being the son of Khan Baz is entitled to get l/3rd as A inheritance in his legacy. The claim of respondent No. 1 could not be rejected had the petitioner established through evidence that his father had divorced his mother Mst. Badro and that the plaintiff/respondent No. 1 was born after the stipulated period of divorce. But not a single witness was produced in whose presence his father Khan Baz had affirmed the divorce of his wife. To deprive the plaintiff/respondent No. 1 of his legacy, there was heavily burden on" the petitioner to bring cogent evidence in this regard. Even admitting in his statement before the trial Court that he can produce a proof of divorce but he failed to bring any such proof at the appellate stage and even in this Court. The learned counsel for the petitioner was asked during arguments about the alleged proof but he showed his inability on the pretext that his client has been sentenced to imprisonment in some criminal case and the son of the petitioner present in Court is not helpful in this respect, D.W. 2 was produced to prove the factum of divorce but his deposition is hardly helpful in this regard. His statement is in a narrative form and has not deposed as witness to the alleged divorce or the so-called marriage of Mst. Badro with one Sher Afzal rather he has admitted that the plaintiff, petitioner and Noor Mehmood were sons by Mst. Badro. In the conclusion of aforementioned facts, it is crystal clear that the petitioner and respondents Nos. 1 and 2 were born of the wedlock of Khan Baz and Mst. Badro and Mst. Badro was never divorced by Khan baz till his death. The settlement in the area was earned out in absence of the plaintiff/respondent No. 1 and nonentry of the plaintiff in the said record is ineffective against him. The judgment and decree of the learned Appellate Court as against the judgment and decree of the trial Court are well reasons, based on law and deserve to be maintained. 8. The other contentions raised by the learned counsel for the petitioner having no force are not, entertaihable. As regards point of limitation, in view positive findings on Issue No. 5, the plaintiff/respondent No. 1 being co-owner cannot be deprived of his Shari share in the legacy of his father and the judgment in the case of Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) fully supports the case of the plaintiff/respondent No. 1. 9. No other point was agitated before me. This revision petition fails and is hereby-dismissed. The parties are, however, left, to bear their own costs. (AAJS) Revision dismissed.
PLJ 1997 Peshawar 187 (DB) PLJ 1997 Peshawar 187 (DB) Present: tariq parvez khan, mahboob ali khan, JJ. MIAN YAMIN-UL-HAQ-Petitioner versus MUNICIPAL COMMITTEE and 5 others-Respondents W.P. No. 30 of 1990, dismissed on 11.6.1997. N.W.F.P. Public Property (Removal of Encroachment) Act, 1977 (V of 1977)-- S. 13-Constitutional Petition under Article 199 of Constitution of Pakistan, 1973-Advertisement in press for auction of Empire Cinema Abbotabad-Challenge to-Status of Municipal Committee in conducting auction and powers of Tribunal to go into question of lease-There is sufficient evidence on tile including statement of petitioner recorded by Tribunal that suit property was declared as 'Evacuee property' after partition of sub-continent, before that it was on lease, hence even if petitioner was transferee, he could not be given better right than original lessee as he will step into his shoes and cannot had higher or better status than original lesseeLease was for 99 years which was cancelled for non-payment of lease amount, hence propriety rights vested back in the name of Municipal Committee, AbbotabadParamount consideration in disposing of this Constitutional petition is to see conduct of parties which reflects in negative as for petitioner is concerned-Held : Section 13 of Act is unimbiguous and clearly empowers to Tribunal to go into question of lease etc. in respect of public property-Petition dismissed. [Pp. 191 & 192] A & B Mr. Mushtaq AH Tahirklicli, Advocate for Petitioner. Alhqj Sardar Bahadur Khan, Advocate for Respondents. Date of hearing: 11.6.1997. judgment Tariq Pervez Khan, J.--Brief facts of this case are that Mian Yamin ul Haque petitioner herein, having learnt through advertisement which appeared in Newspaper on 14.2.1979 that, respondent Municipal Committee Abbottabad has fixed date and time for the auction of Empire Cinema Ahbottabad on 17.2.1979 at. 10 AM, filed a suit in the court of District Judge Abbottabad constituted under Section 12 of NWFP Public Property (Removal of Encroachment) Act of 1977 (hereinafter called the Act). 2. The suit so filed, was given No. 17/1 of 1979. The plaintiff in the said suit sought two reliefs one for a declaration to the effect, that the plaintiff is owner in possession of the whole building of Empire Cinema including the land underneath and that defendant Municipal Committee has got no legal right to auction the aforesaid property as the defendant had no title in it. It was further prayed that the notice (advertisement) dated 14.2.1979 whereby the building in question was shown to be the ownership of defendant Municipality and 17.2.1979 the date fixed for its auction is ab initio ineffective illegal and of no legal consequences. The second relief, was for obtaining permanent injunction against the defendant committee restraining it from transferring the building and the land through aforesaid auction. 3. The respondent-defendant i.e. Municipal Committee Abbottabad was issued notice and they have filed their written statement contesting the stand taken by the petitioner. 4. When the suit, of the petitioner was at the initial stages one Malik Jehandad also filed a civil suit bearing No. 161/1 claiming therein that he being a tenant of Yaminul Haq plaintiff of Suit No. 17/1 the respondent Municipality shall be restrained from auctioning the suit, property. As the subject matter of the two suits was the same the learned Tribunal constituted under the Act ibid framed consolidated issues of which issue No. 2 was to the effect:- "Is the disputed property "Public Property" within the meaning of Clause (hi of Sub-section (2) of the NWFP Act V of 197 7'?" It, appears that an application was filed by one Safdar Jang and three others on 29.4.1982 requesting for their impleadment as party to the suit which was granted on 13.4.1993. Because of the newly added respondents the Tribunal framed 7 additional issues of which issue No. 5 was to the effect:- "Whether plaintiff has lease rights in the property?" 5. The evidence of the parties was recorded and the learned trial court while deciding the suit came to the conclusion that the plaintiff has acquired the property from the Settlement Department in year 1960. It was held that the revenue papers have no where mentioned the ownership and possession of the defendant committee. Consequently the suit was decreed in favour of the plaintiff vide judgment and decree dated 23.5.1985. 6. Feeling aggrieved of the judgment by the Tribunal. Municipal Committee Abbottabad filed a writ petition in the Court AWP No. 2 of 1986 which was heard by a Division Bench of this Court the judgment wherein was accounted on 12.2.1989. The writ petition was accepted and the case was remanded back to-the trial court, (Tribunal) with the direction to give its findings on issues framed on 21.3.1979. 7. On remand the case went back to the District Judge Abbottabad Where the trial court after considering all the issues framed on 21.3.79 came to the conclusion that the plaintiff-petitioners are not the owners of the suit property and that they were possessing the same as lessee under Municipal Committee Abhottabad which lease was terminated and the Municipality being the sole owner of the property was well within its right to dispose of the same the manner the like and the suit was dismissed on 7.4.1990. 8. The order of the Tribunal whereby suit of the petitioner-plaintiff was dismissed has been challenged in this writ petition. 9. It appears from the record that the petition was admitted to full hearing on 13.5.1990 whereafter the case was adjourned one ground or other. On 27.6.1994 a Division Bench consisting of His Lordship the Chief Justice (as he then was) Mr. Justice Abdul Karim Khan Kundi and Mr. Justice Saleem Dil Khan, passed the following order:- "The learned counsel for the petitioner states that after a detailed study he has arrived at a conclusion that since the Municipal Committee has not served a requisite notice on him under the NWFP Public Property (Removal of Encroachment) Act. 1977 that he was the unauthorised occupant and that the suit property was a public property and that he was required to remove the encroachment and deliver the possession, as such he was not supposed to bring a suit in the Court of District Judge constituted as Tribunal under the said Act. Accordingly, he requests to withdraw from his writ petition and seeks permission of the Court to seek redress about the subject matter from an authorised forum under the law. In fact he is at liberty to do anything but as far the present, writ petition is concerned it is hereby dismissed as withdrawn with costs." The aforesaid order remained in field when the petitioner filed a review petition bearing No. 7 of 1994. The review application to limited extent was allowed by this Court vide^gnler dated 6.5.1997 with the direction that the main Writ Petition No. 330/90 be decided on merits. 10. We heard the learned counsel for the parties at sufficient length. Learned counsel for the petitioner argued that by virtue of different documents issued by the Settlement Department he is transferee of the suit property and as such full owner with possession. He further submitted that having attained the ownership and possession of the Cinema, the land underneath the Cinema automatically becomes the property of the petitioner. He has assailed the judgment, of the learned Tribunal on the ground that the tribunal under the Act ibid is vested with limited jurisdiction within the framedwork of Act ibid and cannot exercise jurisdiction beyond the frame work as provided in Statute itself. He was of the view that the Tribunal could not, decide the title of the parties and was concerned with the encroachment if any and not beyond this. He also contended that by virtue of Section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act No. XXVII of 1958) all orders made hy an official/officer appointed under the said Act are final and cannot be called in question in any Court. He further contended that under section 3 of the Act ibid the Tribunal could pass an order in respect of vacation of Public Property or removal of any structure thereon and could not decide the inter se propriety rights of the parties. The learned counsel also questioned the order of the Tribunal wherein a statement given by one Sardar Balbir Singh in respect of the property in some other proceedings were taken note of. He also submitted that neither the Provincial nor the Central Government (Federal Government) have ever challenged the allotment order made by the Settlement Authorities in favour of the petitioner. The learned counsel argued that entries in record of right or any other revenue paper are not final and though presumption of correctness are attached to such entries but the same are rebuttable presumptions. The learned counsel in support of his submissions submitted that after 23.9.1958 by virtue of Act of 1957 (Administration of Evacuee Property Act) section 3- A, 4, 7, 22 and 41 no property shall be declared by any forum as evacuee property hence the Tribunal was wrong in holding the suit property to be as such. In support of his arguments the learned counsel relied on the following judgments: (i) PLD 1983 SC page 243 on the point that a court or tribunal cannot be vested with the jurisdiction by consent of the parties which jurisdiction is not available under the Statute. PLD 1976 Karachi page 995 and PLD 1975 Lahore page 1349 were referred to, in support of the proposition that the Tribunal of Special jurisdiction cannot go beyond the provisions of Statute creating them and also that the entires in record of right are not proof of ownership. The learned counsel also relied on PLD 1986 SC page 447 wherein the august Supreme Curt of Pakistan has held that a Tribunal which is empowered the law to adjudicate upon the matter is bound tff decide it rightly and not wrongly. 1987 CLC page 1193, 1988 CLC 123 and 1990 CLC 1513 were also referred to. 11. The learned counsel for the respondents while arguing his case submitted that the petition is misconceived as the petitioner wants adjudication about the title through this Court. He also submitted that the order of this Court dated 27.6.1997 is hurdle in the way of the petitioner. The case was fully argued on that date and it was learned counsel for the petitioner who withdrew the petition admitting that the Tribunal had no jurisdiction in the light of a Full Bench decision of this Court reported in PLD 1988 Peshawar page 88. As such he cannot blow hot and cold in the same breath. He also submitted the stand of the petitioner is based on two documents which are annexed with the petition as Annexure A and "C" which are self contradictory and hence cannot create any valid title about the ownership. It was also argued that the Tribunal constituted under the Act ibid was fully empowered to go into all questions relating to the suit property by virtue of section 13 of the Act ibid which reads as under:- "13. Exclusive jurisdiction.-A Tribunal shall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of this Act." 12. After hearing the learned counsel for the parties we need not reproduce the facts these are given in detail in the judgment of the Tribunal firstly when the suit was decreed in favour of the petitioner 23.5.1985 and secondly in the impugned judgment. The consolidated facts which are apparent from the record by reading the revenue document and the documents annexed with the petition, it appears that the suit property is situated in khasra No. 838 owned by the Municipal Committee the respondent and was given to one Malik Herishan Singh on lease for 99 years. The lessee constructed a cinema and after the partition of Sub-continent the property was transferred in the name of Control Government. The Central Government was holding the same sometime through Provincial Government or the Garizon Engineer and later through Municipal Committee Abbottabad as reflected in the revenue record. The petitioner, it appears is relying on a transfer letter issued on 15.3.1963 claiming to be owner in possession on the basis of this document. A perusal of column 4 of Annexure A would show that no PTO was issued in the name of the transferee namely Yamin ul Haq. Similarly Annexure C also indicates that the transferee did not make the full payment of the lease amount. 13. There is sufficient evidence on the file including the statement of the petitioner recorded by the Tribunal that the suit property was declared as 'Evacuee Property' after partition of the Sub-Continent, before that it was on lease hence even if the petitioner was a transferee he could not be given better right than the original lessee as he will step into his shoes and cannot had a higher or better status than the original lessee. The lease was for 99 years which was cancelled for non-payment of the lease amount hence the propriety rights vested back in the name of Municipal Committee Abbottabad. A perusal of the statement of the petitioner also shows that he, though claimed to have purchased the property is open auction but could not give the name of single bidder beside him nor he has established the mode of payment of his bid. 14. , Mere existence of two letters which are also self contradictory and are issued by the Settlement Department cannot create ownership right in respect of the petitioner as against respondent Municipal Committee of which the ownership is established by virtue of a number of entries recorded in thejamabandis of numerous years. 15. The conduct of the petitioner who is seeking discretionary relief from this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is also exceptionable. He accepted the jurisdiction of the Tribunal in 1985 when the suit was decreed in his favour but filed the present petition challenging the jurisdiction of the said Tribunal as this time the order was passed against him. 16. A perusal of order dated 27.6.1994 also reflects on the conduct of the petitioner that although a Full Bench judgment of this Court (PLD 1988 Peshawar page 88) was in the field yet he withdrew his writ, petition seeking permission to approach the proper court for his redress but once again by fling the review petition the petitioner took a summersault adult and approached this court for adjudication of the writ petition on merits. It is with an advantage to mention here that this court while deciding writ petition AWP No. 2/96 in its order dated 12.2.1989 has clearly dealt with the proposition of the jurisdiction of the Tribunal in para 4 and there is a reference to the jtulgment of the Full Bench. Notwithstanding the full knowledge, the petitioner remained silent till 1994 when order dated 27.6.1994 was passed. We are dealing with this petition in exercise of our original jurisdiction vested by Article 199 of the Constitution. The paramount consideration in disposing of this constitutional petition is to see the conduct of the parties which in the instant case reflects in negative as for the petitioner is concerned. Section 13 of the Act ibid which has been reproduced above is unambiguous and clearly empowers the Tribunal to go into the question of lease etc, in respect of public property. We do not find any illegality, non-exercise of jurisdiction or mis-reading or non-reading of evidence in the impugned judgment as such dismiss this writ petition with costs. (B.T.) Petition dismissed.
PLJ 1997 Peshawar 192 PLJ 1997 Peshawar 192 Present: mahboob ALI khan and TARiq parvez khan, JJ. JAWAD HABIB-Petitioner versus ' SECRETARY EDUCATION DEPARTMENT, GOVT. OF X.W J.P. PESHAWAR and 6 others-Respondents W.P. 21 of 1997, accepted on 2.7.1997. Educational Institution-- Declaration of 1st Position of petitioner in Pre-Engineering Group Part II (F.Sc) in Annual Examination of 1996-Withdrawal of 1st Prize and Gold MedalChallenge through Constitution petitionMost Important and legal point involved is that petitioner having been once declared to have secured 1st position was vested with valuable right which had entitled him to 1st prize and Gold Medal, same could not have been drawn from him without giving him opportunity of being heardIt is also to be noted that official notification/result has not been rescinded/withdrawn till today-Petitioner was not given opportunity of being heard-Held : Principle of audi altcram partcm is fully applicable to this case and as such reversal of petitioner from position No. 1 to that of No. 2 on this legal ground alone is not sustainable-Petition accepted. [Pp. 194 & 195] A, B & C 1997 SCMR 15. Malik Muhammad Asif, Advocate for Petitioner. Syed Shabbir Hussaut Shah, Advocate for Respondents. Date of hearing: 2.7.1997. judgment Tariq Parvez Khan, J.--Jawad Habib, the petitioner has filed this writ petition, seeking declaration that he having been declared to have achieved 1st position in the Pre-Engineering Group Part-II (F.Sc) in the Annual Examination of 1996. therefore any decision for lowering his position is ultra uires, illegal and void. He has further sought a declaration that he be awarded the 1st prize and the Gold Medal. 2. The brief facts of the case are that the petitioner is a student of Abbottabad Public School and College. He appeared in the aforesaid Examination. The result whereof was declared and published in the official gazette of Board of Intermediate & Secondary Education (BISE) on 1.10.1996 wherein he was shown to have secured 906 marks out of 1100. As such was placed as at position No. 1 in the entire Board. The result was communicated to the Press which gave sufficient publicity/cove rage wherein the petitioner was shown to have achieved 1st position in Pre-engineering Group of BISE Abbottabad. 3. Lateron, when the petitioner went to get his Detail Marks Certificate, and also, when saw a news clipping which has been annexed with the petition as Annexure-J, learnt that Tahir Hussain respondent No. 7 has been shown to have stood first in the Pre-Engineering Examination of BISE. 4. The petitioner has challenged changed of his position from 1st to position 2nd, inter alia, on the ground that respondent No. 5 (Assistant Controller of Examination BISE Abbottabad) is the real brother of respondent No. 7 who was later shown at the 1st position. As such the action of respondents No. 2 to 5 was malafide. It was also the contention of the petitioner, that once the annual result was declared the respondents No. 2 to 5 could not change the achieved position of the petitioner. The respondents filed parawise comments in this court, accepted the position to the extent that the petitioner was declared to have secured 1st position in the gazette and the result declared on 1.10.1996. They have also admitted that respondents No. 5 and 7 are real brothers. The defence taken by the respondents was that although they declared the petitioner to be on position No. 1 but in the said examination the result of respondent No. 7 was to be declared lateron. The reason whereof, was, that the respondent No. 7 took his Part I Pre-Engineering Examination from Peshawar Board and his detail marks certificate was not available at the time of compilation of the result of the Abbottabad Board. It was also contended on behalf of the respondents that the mistake/error or omission was not wilful but infact as under the rules if a student who has appeared in Part I from a particular Board cannot appear for Part II of the same examination from other Board. For that purpose the rules could be relaxed by the Governor of the Province. It was also asserted in para 9 of the parawise comments that the Governor of NWFP had relaxed the rule in case of respondent No. 7. 5. While hearing the learned counsel for the parties, certain questions were posed to the learned counsel for the respondent to clarify the factual as well as the legal position, but the learned could not furnish any plausible reply to either of the questions. The first question which comes to the mind, is that if the result of certain student/candidate was deferred to be declared lateron why the BISE Abbottabad did not waited for securing the clearance of respondent No. 7 before determining and publishing the top position of the candidate. The second question, is, that the DMC of Part I was available with the Principal namely respondent No. 6 as at the time of admission to Part II the same was necessary to be filed. The third question was what compelled/respondent No. 7 to appear in Part II from BISE Abbottabad instead of BISE Peshawar where he has earlier appeared in Part Examination. The fourth question is, that why the approval of the Governor in relaxing the rule by allowing respondent No. 7 to appear in part Examination from BISE Abbottabad has not been placed on our file. All these above questions have put us on guard and have created a substantial suspicion in our mind as to the conduct of the respondent No. 7 particularly when respondent No. 5 is admittedly his brother. 6. When this writ petition was admitted notices were issued to the respondents and on three dated namely 14.1.1997, 12.2.1997 and 26.3.1997 respondent No. 7 was represented through a learned counsel but thereafter notwithstanding the fact that summons were issued but he did not turn up, which appears to be wilful. 7. Most important and the legal point involved is that the petitioner having been once declared to have secured 1st position was vested with a valuable right which had entitled him to the 1st prize and the Gold Medal, the same could not have been withdrawn from him without giving him an opportunity of being heard. The principle of audi alterarn partcm is fully applicable to this case and as such the reversal of the petitioner from position No. 1 to that of No. 2 on this egal ground alone is not sustainable. 8. Malafide is difficult to prove because it relates to the mind of an individual for which no substantive evidence is possible to be led but the same is to be inferred from the facts and circumstances of each case which is manifest in this case. 9. I recent judgment reported in 1997 SCMR 15 (Chairman, Selection Committee/Principal Kind Edward Medical College, Lahore and 2 others vs. Wasif Zarnir Ahmed and another) the principle of locus pocntitentiae was put, into service where the admission of a student was withdrawn and other was admitted on his seat on the pretext that the admission given was due to mistake of the Computer. It was held by the august Supreme Court of Pakistan that principle of locus poenticntiae was although available to the authorities whereby any order which was made by mistake could not be un-done yet such order could not be withdrawn or rescinded once it had taken legal effect and had created certain rights in favour of the individual. 10. As discussion above where we have found that the petitioner was not given opportunity of being heard and the mistake even if genuinely committed by the concerned respondent cannot be condoned and shall not put the petitioner to disadvantageous position. It is also to be noted that the official notification/result has not been rescinded/withdrawn till to-date. 11. On 12.11.1996 this Court has passed the order directing that in the Prize distribution ceremony which was scheduled on 14.11.1996 the Medals/Awards pertaining to Pre-Engineering Group shall not be awarded/distributed. We hope that the said order has been respected and has been given effect, but if not. so, we would direct that the petitioner be awarded the Medal/Award in which he achieved First position in his Group. 12. Accordingly, we accept this writ petition in terms of prayed made therein. The parties are left, to bear their own costs. (B.T.) Petition accepted.
PLJ 1997 Peshawar 195 PLJ 1997 Peshawar 195 Present: MAHBUB ALI KHAN, J. Qazi MUHAMMAD ARIQ-Petitioner Versus MUHAMMAD JAN and 6 others-Respondents C.R. No. 124 of 1993, accepted on 11.8.1996. N.W.F.P. Pre-emption Act, 1987 (X of 1987)-- -S. 13-Pre-emption-Case of-Pronouncement of to/whs-Question of-Civil revision-Requirement, of law is that registered nonce carn-ing talh-iishhad shall be attested by two truthful witnesses which pre-emptor did and produced one of the witnesses before court in evidence-Even notices not only have been received by vendees but have been duly answered through a lawyer-Held: Learned lower Courts have misread evidence and erred thus in exercise of jurisdiction illegally on with material irregularityCase remanded. [P. 197] A & B Qazi Ghularn Rauf, Advocate for Petitioner. Malik Manzoor Hussain, Advocate for Respondent. Date of hearing: 11.3.1996. judgment Qazi Muhammad Ariq, the petitioner herein, pre-empted certain sale transactions against the respondents entered on the basis of Mutations No. 3504, 3505 and 3506 dated 12.2.1990 by filing three separate suits against Muhammad Jan etc., the defendants-vendees. The pre-emptor allegedly got knowledge of these sales on 15.2.1990 and immediately pronounced his intention to address the right of pre-emption followed by sending a notice in writing to the vendees under registered cover acknowledgement due on 20.2.1990 confirming his intention to exercise the right of pre-emption and afterwards on 3.3.1990 filed these suits. The respondents resisted the suits. The learned trial Judge after settling all such issues arising between the parties out of the pleadings and recording evidence pro and contra dismissed all these suits in view of his negative finding on issue No. 5 relating to demands of pre-emption, vide judgment and decree, dated 27.6.1991. The pre-emptor agitated the matter before the appellate Court but in vain. His appeals were dismissed by the learned District Judge, Abbottabad on 27.4.1993. Hence these civil revision petitions No. 124, 125 and 126 of 1993 lodged under section 115 C.P.C. 2. I have heard Qazi Ghulam Rauf Khan advocate on behalf of the pre-emptor-petitioner and Malik Manzoor Hussain advocate for the vendeesrespondents. The learned advocate while speaking for the petitioner stated that the pre-emptor had made demands of pre-emption in all the three suits in the order as laid down under section 13 of the NWFP Act, 1987 and no sooner he got knowledge of the sale transactions in his house on 15.2.1990 he immediately pronounced his intention to exercise the right of pre-emption. That the petitioner afterwards on 20.2.1990 rent registered written notices to the vendees attested by two truthful witnesses under registered cover acknowledgment due confirming further his intention to exercise the right of pre-emption. A plain reading of the plaints filed in three suits would indicate, that the pre-emptor in unequivocal terms has mentioned in para No. 2 that he got knowledge of the transactions on 15.2.1990 and immediately pronounced his intention to exercise right of pre-emption and subsequently on 20.2.1990 sent registered notices of talb-i-ishhad to the vendees and afterwards in his court statement reiterated on this stand. The registered notice of talb-i-ishhad in each case (Ex. P.W. 3/1) was signed by two persons, namely, Abdul Qayum and Mohabat Khan. Abdul Qayum has been produced- in evidence. Mohabat Khan had gone to Saudi Arabia and could not be as such examined in evidence before the trial Court. A perusal of the notice Ex. P.W. 3/1 would further show, that the pre-ernptor had clearly mentioned of his knowledge of the impugned Transactions on 15.2.1990 and immediately pronounced his intention to exercise right of pre emption followed by sending of written notices duly signed by two persons namely, Mohabat Khan son of Karam Khan and Abdul Qayum son 01 Qalandar Khan on 20.2.1990 through registered Post A.D. The rtet'endantvendee Muhammad Jan in his trial Court statement has frankly admitted the receipt of these notices and stated that the respondents bad duly sent replies of the said notices to be the plaintiff through their counsel. The learned Courts below, as it seems, have been impressed by few minor discrepancies occurring in the statements of the pre-emptor and his witness. namely, Abdul Qayum regarding the writing and sending of these notices, which could be easily ignored and particularly in view of the admission made by Muhammad Jan vendee-defendant in his statement before the Court that respondents have not only received these notices but also sent replies of the notices to the petitioner through their lawyer. The pre-emptor in the circumstances of all this evidence has been thus able to prove that he made demands of pre-emption, i.e., 'talb-i-muwathibat' and 'talb-i-ishhad' correctly in the order as laid down under section 13 of the NWFP pre-emption Act, 1987 and could not be non-suited in his suits on this ground. There would be " as such no force in the argument that in the plaints and notices the exercise of fliese demands with relevant dates and time were not sufficiently mentioned by the petitioner. Similarly, no premium can be drawn from this fact that the other witness of the notice, namely, Mohabat Khan could not be produced in evidence by the pre-emptor having gone to Saudi Arabia. The requirement of law is that the registered notices carrying talb-i-ishhad shall be attested by the truthful witnesses which the pre-emptor did and produced one of these persons before the Court in evidence who was available. These . notices not only have been received by the vendees but have been duly answered through a lawyer on their part. 3. In this view of the matter I find that the learned lower Courts Jiave misread evidence on the issue of "talb-i-muwathibaf and 'talb-i-ishhad' and erred thus in the exercise of jurisdiction illegally on with material irregularity. Accordingly these civil revision petitions shall be accepted and the impugned judgments and decrees set aside. The cases are sent back to the trial Court for disposal on merits in accordance with law. This judgment shall be equally read in the connected Civil Revision Petitions No. 125 and 126 of 1993. No order as to costs. (K.K.F.) Case remanded.
PLJ 1997 Peshawar 198 PLJ 1997 Peshawar 198 Present: NASIR-UL-MULK, J. FAQIR KHAN and others-Petitioners versus NIAMATULLAH-Respondent Civil Revision No. 231 of 1994, decided on 30.10.1996. Civil Procedure Code, 1908 (V of 1908)-- ---O. VII, R. 10, O.XLL R. 24 & O.XLIII, R. l--Jurisdiction--Question of- Provision of O.XLI, R. 24, C.P.C. empowered Appellate Court to pronounce judgment on issues not determined by Trial Court if sufficient evidence was on record instead of remanding the same for re-Trial-Order XLI, R. 24 C.P.C., however, was restricted to appeals against decrees and was not applicable to appeals against orders-There being no finding on any of issues apart from question of jurisdiction by Trial Court, Appellate Court was not empowered under any provision of C.P.C. to adjudicate upon those issues-Issue of jurisdiction, however, having been decided by Trial Court finding of Appellate Court on that issue that Civil Court was possessed of jurisdiction, was correct-Judgment and decree of Appellate Court relating to decision on merits was set aside and suit was remanded to Trial Court for decision on all issues. [P. 200] A, B & C AIR 1927 Oudh 218 rel. 1985 CLC 516; 1976 SCMR 388; PLD 1984 SC 62 and AIR 1927 Oudh 218 ref. M. Zahoor Qureshi, Advocate for Petitioner. Mr. Muhammad Waris Khan, Advocate for Respondents. Date of hearing: 30.10.1996. judgment Ihsanullati and others instituted a suit against Niamatullah and others first in the Courts established under N.W.F.P. Regulation II of 1975 and then on 7.9.1989 in the Court of Senior Civil Judge, Malakand after it was found that the interest of the minors was involved in the case which excluded the jurisdiction of the forums established under the Regulation. The suit was for declaration that the plaintiffs were owners in possession of 59 "toras" out of 64 "toras" of the suit land situate in village Thana, Swat Ranizai, Malakand Agency further described in the plaint. The basis of he claim was that the property was jointly owned as it originally belonged to their common predecessor-in-interest, Shah Hussain Baba. Written statement was filed. The suit was contested, issues framed and evidence recorded. The trial Judge on 13.4.1993 decided Issue No. 2 against the plaintiffs by holding that since the dispute between the parties was that of partition it was within the exclusive jurisdiction of the Revenue Courts and thus the jurisdiction of the Civil Court was barred. Consequently, the plaint was returned to the plaintiff under Order VII, rule 10, C.P.C. for presenting it to competent Court. Against this decision the plaintiff went in appeal to the District Judge, who by his judgment and decree dated 1.2.1994 while holding that the Civil Court did possess jurisdiction as question of declaration of title was involved, dismissed the suit on merits after examining the evidence under Order 41, Rule 24, C.P.C. The District Judge found that the suit was hit by the principle of res judicata as the subjectmatter of the suit had already been adjudicated upon between the parties by competent forums. It was also held to be barred by time. The plaintiffs have now assailed the judgment and decree of the Appellate Court. 2. The learned counsel appearing for the petitioner advanced only one argument namely, that since the return of the plaint by the trial Jiidge was an order, it was appealable under Order 43, Rule 1 (clause 'a') whereas the powers of the Appellate Court under Order 41, Rule 24, C.P.C., to adjudicate upon issues not already decided by trial Court, is restricted to appeals against decrees. Reliance was placed on judgments from Indian jurisdiction, Rameshwar Prasad Misra v. Industrial and Prudential Assurance Co., Bombay and another (AIR 1927 Oudh 218). It was thus contended that once the Appellate Court concluded that the Civil Court had jurisdiction, he ought to have remanded the case to the trial Court for decision without adjudicating the merits. 3. On the other hand, the learned counsel for the respondent contended that there was sufficient evidence for the Appellate Court to pronounce judgment in the case and that remand of the case at this juncture will only prolong the agonies of the parties. In this context it was contended that no prejudice had been caused to the petitioner on account of disposal of the appeal on merits. Reliance was placed on Wall Muhammad vs. Dur Muhammad 1985 CLC 516, Nasir Ahmad v. Khuda Bakhsh (1976 SCMR 388) and Mst. Sardar Begum etc. v. Muhammad Saleem alias Secma PLD 1984 SC 62. It was further urged that the merits of the case be aL-,o adjudicated upon by this Court as the Appellate Court had done. 4. The decision of this revision hinges upon the interpretation of Order 41, Rule 24, Civil Procedure Code as the Appellate Court had pressed into service this provision of law to decide all the issues in the case despite the absence of finding on any of them by the trial Court. The r Je reads as under:- "24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable tin Appellate Court to pronounce judgment, the Appellate Court may. after resettling the issues, if necessaiy, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds." The rule undoubtedly empowers the Appellate Court to pronounce judgment on issues not determined by the trial Court if sufficient evidence exists instead of remanding it for retrial. But the rule also makes it clear that it can be invoked only where the appeal is preferred against a decree. In the present case, no decree had been passed by the trial Court but the plaint was returned to the plaintiff under Order VII, Rule 10, C.P.C., which was an appealable order under clause (a) of Rule 1 of Order 43, C.P.C.,. The same question came up before the Oudh High Court in the case of Rameshwar Prasad Misra ibid, where it was held that when appeal is filed against the order of return of plaint by the trial Court the Appellate Court could only try the issue of jurisdiction and if it considers the lower Court's order to be wrong it should simply direct that Court to tiy the suit and that decision by the Appellate Court on merits is ultra vires. Like the present case, in that case too the Appellate Court had pressed into sendee Order 41, Rule 24 and decided all the issues on the evidence of the parties when the appeal was against the order of return of plaint. 5. There can be no two views that Order 41, Riile 24, C.P.C., is restricted to appeals against decrees and is not applicable to appeals against orders. Since there had been no finding on any of the issues, apart of Courts from the question of jurisdiction by the trial Court the Appellate Court was not empowered under any provision of the C.P.C. to adjudicate upon those issues. No doubt, the remand of ihe case would entail further delay in the adjudication of the suit but the omission by the Appellate Court was not insignificant so as to be overlooked. Not only that the law has not been followed but prejudice has been caused to the plaintiffs as they have been deprived of findings on issues by one Court, and that of the trial Court. Thus the case deserves to be sent back to the trial Court for decision on all the issues. 6. The question of jurisdiction of the Civil Courts already stands decided by the Appellate Court. No error could be pointed out in the decision. The suit was not only for partition but essentially for declaration as to title of a major portion of the suit land. The Appellate Court thus rightly held that the Civil Courts were possessed of jurisdiction in the matter. 7. For the reasons above stated the revision petition is allowed and the judgment and decree of the Appellate Court to the extent of decision on merits is set aside and the suit is remanded to the trial Court for decision on all the issues. Before parting with the judgment, I may observe that the trial Court while deciding the case shall ignore the findings of the Appellate Court on merits and that the suit being an old one should be disposed of within three months from the receipt of the record. The parties are left to bear their own costs. (K.K.F.) C ase remanded.
PLJ 1997 Peshawar 201 [DB] PLJ 1997 Peshawar 201 [DB] Present: sardar muhammad raza, and shah jehan khan yousafzai, JJ. MASAL KHAN-Petitioner Versus DISTRICT MAGISTRATE PESHAWAR etc.-Respondents W.P. No. 1268/97, accepted on 16.7.1997. (i) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- -S. 3 read with Art, 199 of Constitution of Pakistan, 1973-Detention order-Challenge to-Whether writ, petition is maintainable or not- Question of-Writ petition against impugned detention order is maintainable, firstly because freedom and liberty of detenu is involved which is a constitutional guaranteed right of citizen-Secondly, this (High) court has got supervisory jurisdiction over judicial, quasi-judicial and executive functionaries of Provincial and Federal Governments under Art. 199 of constitution. [P. 203] A (ii) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- -S. 3-Preventive detention-Challenge to-Before an act is held to be prejudicial to public order, it must be shown that Act or activity is likely to affect to Public-at-large-As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to public peace and tranquility cannot fall within ambit, of S. 3 of Ordinance. [P. 205] B (iii) Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)-- -S. 3-rPreventive detention-Powers of District Magistrate-Misuse of- Where definite charges are brought against detenu for substantive offences and detenu is under going prosecution, therefore, administration . has made up their mind and choice, that is, that detenu should be prosecuted these offences, and, having made this choice, it would ordinarily not be open to administration to also use such charges as ground of preventive detention under Order 1960. [P. 205] C Mr. Saeed Baig, Advocate for Petitioner. Mr. Talat Qayum, A.A.G. for Respondents. Date of hearing: 16.7.1997. judgment Shah Jehan Khan Yusafzai, J.-Petitioner herein has challenged the vires of the order of detention dated 1.7.1997 passed by District Magistrate, Peshawar (Respondent No. 1) under Section 3(i) of Maintenance of Public Order Ordinance 1960, whereby Umardaraz alias Darazai, a cousin of the petitioner was arrested and detained in Central Jail, Haripur for a period of one month. 2. The above stated detention order discloses that District Magistrate, Peshawar being satisfied on the alleged receipts of reports showing the indulgence of the detenu in activities prejudicial to public peace and to disturb the law and order situation in Peshawar District, passed the same under the authority u/s 3 M.P.O read with Notification No. 3/10/4-H- Spl: 1/64 dated 27.2.1965. The grounds for detention served upon the detenu as required u/s 13(b) M.P.O. reveals as follows:- "You are a habitual offender, gambler, and desperate, also indulge in drug trafficking and other anti-social and prejudicial activities against law and order." 3. The learned counsel for petitioner contended that the detenu has been detained on the vague grounds of habitual offender, gambler, desperate person, indulging in drug trafficking and other criminal activities. The grounds alleged against were denied and submitted that detenu was arrested in a case registered on 23.6.1997 vide FIR 234 for a charge punishable u/s 365-A PPC, but has been released on bail. He was also arrested in an other untraced case of committing Harabbah. but also released on bail. After getting release order from Court, he was not allowed to come out from jail and was served with impugned detention order. The learned counsel termed the impugned order unconstitutional, illegal, malafide and wrong exercise of powers vested in Chief Executive of the District. In support of his contentions he relied upon Mrs. Arshad Ali Khan vs. Government of Punjab (1994 S.C.M.R. 1532) wherein the expression "public order" has been explained to the effect that before an act to be held prejudicial to public order, it must be shown that the act or activity is likely to effect the publicat-large. An act which concerns only to an individual and does not amount to an activity prejudicial to public peace and tranquillity cannot fall within the ambit of Section 3 of the Public Order Ordinance, 1960. Further held that when police had already registered a case against the detenue under the P.P.C., clearly show that the detenue was accused of substantive offences and his preventive detention on the same allegations could not be justified in law. To further substantiate his contentions he referred to a reported judgment Abdal Hamid Khan vs. District Magistrate. Larkana (PLD 1973 Karachi 344) wherein it was held that preventive detention could not be used for punishing a person for his past actions. He also referred to a reported judgment of this Court Muhammad Iqbal and 3 others vs. D.C./D.M. Mansehra (PLD 1992 Peshawar 107) and argued that on the basis of allegations for which an accused has faced the trial or is an under-trial could not be detained as preventive measures. 4. The learned Addl. Advocate-General appearing on behalf of Respondents alongwith S.H.O. of the concerned Police Station, who was ordered on the previous date to personally appear and to explain the matter, placed before the Court, a summarised chart of convictions of the petitioner right from 1980 to 1994, and maintained that on the basis of past history of the detenu on the report of local police the preventive detention order, was issued against him. While supporting the impugned order he submitted that the detenu has also been supplied with grounds of detention wherein he has been informed that he may prefer a representation to the Government of NWFP. It was further argued that writ petition under Article 199 of the Constitution is not maintainable, as an adequate remedy by way of representation to Provincial Government is provided under the Ordinance. 5. After hearing the learned counsel at the bar and giving our anxious consideration to the respective contentions of the learned counsel we are of the firm opinion that writ petition against the impugned detention order is maintainable, firstly because the freedom and liberty of the detenu is involved which is a constitutional guaranteed right of the citizen. Secondly, this Court has got the supervisory jurisdiction over judicial, quasi-judicial and executive functionaries of the Provincial and Federal Governments under Article 199 of the Constitution. This Court in reviewing an order of detention is entitled to be satisfied that the detaining authority was in fact satisfied that the order of detention was in fact necessary for public peace and it was not a mere pretend for ulterior motive. The Court can also look into the matter that whether the material placed before authority were sufficient for taking away the constitu-tional guaranteed right of a citizen. If the Court comes to the conclusion that the order of detention was either malafide or without any substance, it shall set aside the detention order and set free the detenu. The right of making representation to the detenu has been provided under clause (6-a) of Section 3 of the Maintenance of Public Order Ordinance, 1960 which reads as follows :- "3. (6-a) Where a representation is made to the Government under sub-section 6 Government may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, confirm, or rescind the order." A Division Bench of the Karachi High Court has discussed the aforesaid provision of law in the case of Abdul Hamid Khan vs. The District Magistrate Larkana (PLD 1973 Karachi 344) in these words:- "It is true that the provision authorises the detenue to make a representation to Government and also require the Government to afford him the earliest opportunity of doing so. I can read in subsection (6-a), however, no duty on the Government to consider the representation and to give the person detained an opportunity of being heard before deciding to modify, confirm or rescind the order. The subsection certainly authorises the Government to do so but does not require it to do so. Now, Article 201 of the Constitu tion confers power on the High Court to pass certain orders if it is satisfied that no other adequate remedy is provided by law. I think if we are to accept the argument of the learned Additional Advocate-General we would have failed to give full effect to the word "adequate". No doubt the provision quoted provides a remedy but certainly in the absence of any requirement that the Government shall consider the representation I cannot consider this to be an "adequate" remedy in matters which concern the liberty of a subject." After holding the instant writ petition maintainable, the next question for consideration is that whether the impugned order of detention was passed in accordance with law? The West Pakistan Maintenance of Public Order Ordinance, 1960 was promulgated for the object inshrined in its pre-amble which says:- "Whereas it is expedient to amend and consolidate the law providing for preventive detention and control of persons and publications for reason connected with public safety, public interest and the maintenance of public order in the Province of West Pakistan." The Government has been granted powers of preventive detention under Section 3(i) of the Ordinance, whereunder after being satisfied with a view to prevent any citizen from acting in any manner prejudicial to public safety or maintenance of public order, it is felt, necessaiy to detain a person shall pass such an order for a specified period subject to further extention by the Board constituted under the Ordinance. The Ordinance itself has not defined the word 'public order'. Thus it has to be construed in the ordinary context as being synonymous with public peace, safety and tranquility. Their lordships of the Supreme Court in the case of Mrs. ArshadAli Khan us. Government of Punjab (1994 S.C.M.R. 1532) observed as follows:- "The word 'public order' is accordingly referable to public order of local significance as distinguished from national upheavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order and of security of State. Law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may be prejudi-cial to public order may not necessarily affect security of the State." It was further observed in the judgment as under- "before an act is held to be prejudicial to public order, it must be shown that the act or activity is likely to affect the public-at-large. As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquility cannot fall within the ambit of Section 3 of the Ordinance." In the instant case the impugned detention order has been based on the registration of pitty criminal cases under local and special law or other minor offences wherein the detenue was awarded fine of a meagre amount with sentence till rising of the Court. The learned A.A.G. failed to show any case of public nuisance or public tranquility or his conviction for any offence establishing him as desperate or dangerous criminal. Even the summarised chart of punishment of the detenue produced before us shows that no case of such a nature for which he was awarded punishment from 1980 to 1994, has either been registered against him or he has been awarded punishment, Prima facie the detenue seems to have abandoned his previous criminal activity in which he has been shown involved in between 1980 and 1994. The allegation on which a person has faced the trial and was either granted acquittal or conviction never form bases for preventive detention, as held in the case of Muhammad Iqbal and 3 others us. D.C./D.M. Mansehra and 3 others (PLD 1992 Pesh. 107). Yet in another case titled Muhammad Younas vs. Province ofSindh, reported in PLD 1973 Karachi, 694, it was observed in the following words: - "where definite charges are brought against the detenue for substantive offences and the detenue is undergoing prosecution, therefore, the administration has made up their mind and their choice, that is, that the detenue should be prosecuted for these offences, and, having made this choice, it would ordinarily not be open to the administration to also use such -charges as ground preventive detention under the West Pakistan Maintenance of Public Order Ordinance, 1960. Mr. Jamaluddin Ahmed was unable to show any cogent reason that the present deteuue should not only undergo prosecution for a substantive offence, but should also be preventively detained for the same offence. In my view, to base the order of detention on a charge for which the detenu are facing regular trial in a Criminal Court is unreasonable exercise of the power to order preventive detention." 6. It is argued hefore us that recently the detenu was arrested in a case punishable u/s 365-A of the PPC but. released on bail by a competent Court of law. He was also shown under arrest in another case punishable under Article 17 of the Offences Against Property (Enforcement of Hudoodi Ordinance, 1979. Even in that case he was allowed bail by Court of law. On getting bail order in the aforesaid cases he was not allowed to come out of the jail, was served with the impugned order inside the jail. All these facts constitute malafidc on the part of local police and District administration. 7. In view of the facts stated above, we are clear in our minds that the impugned order of detention bearing No. 1240-44 dated 1.7.1997 issued by respondent No. 1 is based on rnalafide and not in accordance with law. We, therefore, while accepting this petition set aside the aforesaid impugned order and release the detenu Umar Daraz Khan alias Darazai forthwith, if not required to be detained in any other case. These are the reasons for short order announced on 16.7.1997. (K.A.B.) Petition accepted.
PLJ 1997 Peshawar 206 PLJ 1997 Peshawar 206 Present: malik hamid saeed, J. SH. ABDUR RASHID-Petitioner versus EHSANULLAH and others-Respondents C.R. No. 60 of 1995, accepted on 6.6.1997. Civil Procedure Code, 1908 (V of 1908)-- -S. 115 read with O. 23 R. 1-Suit for declaration-Preliminary objection regarding non-joinder of necessary party thereto-Dismissal of suit- Appeal against-Application for withdrawal of suit with permission to file a fresh one after removing legal defect, in plaint-Permission of-Revision against-object of O. 23 R. 1 is not to empower plaintiff who has not filed suit with due care and diligence and after coming across weakness of his case at any stage to withdraw suit on a ground which existed from beginning and even had been pointed out by defendant but no heed was paid to the same-Error committed by respondent could not be termed as a formal defect therefore, he could not be permitted with an opportunity to commence a fresh trial by filing a fresh suit-It is true that plaintiff is vested with powers to withdraw his suit at any time after its institution, but if is equally true that he does have such right at his free will affecting rights of defendants which might have been created by orders passed in suit-Impugned order has certainly prejudiced petitioner/defendant which is liable to he dismissed-Petition accepted, [P. 209] A to C 1992 SCMR 485, 1989 SCMR 506 rcf. S. Mushtaq All Shah, Advocate for Petitioner. Sardar Allah Nawaz Khan, Advocate for Respondents. Date of hearing: 27.5.1997. judgment This revision petition calls in question the judgment and order of the learned District, Judge D.I. Khan dated 9.2.1995 vide which application of the plaintiff/respondent No. 1 herein for withdrawal of suit with permission to file a fresh suit was accepted and the judgment, and decree dated 18.9.1989 of the learned Civil Judge D.I. Khan was set aside. 2. Ehsanullah Khan, respondent No. 1 herein, had sought a declaration to the effect that he is owner in possession of the- property fully described in the heading of the plaint and that the defendants had no concern whatsoever with the same. It was averred that sale mutation No. 510 attested on 28.10.1983 on behalf of Ali Muhammad son of Ramzan through petitioner herein in favour of respondent No. 1 was fake, artificial and fabricated. It was also averred that the general power of attorney in favour of respondent No.'3 is also absolutely fake and fictitious. Prayer for permanent injunction restraining the said respondent No. 3 from claiming ownership of the said property and correction of revenue record was also made. Ehsanullah Khan, respondent No, ] herein, also claimed that he is the general attorney of the original owner named Ali Muhammad son of Ramzan. 3. Written statements in the suit were filed by the respondents on 29.7.1986 wherein a preliminary objection regarding nonjoinder of necessary party of said Ali Muhammad was raised due to which dismissal of the suit was claimed. After framing issues and recording evidence of the parties pro and contra, the suit was dismissed vide judgment and decree dated 18.9.1989. The said order was challenged in appeal by Ehsanullah Khan, respondent No. 1, before the learned District Judge and during its pendency an application for amendment of plaint was filed on 1.3.1970 there which was referred to the learned Additional District Judge D.I. Khan who in turn vide his order dated 1.3.1993 accepted the said application and allowed the required amendment in the plaint. A revision petition filed in this Court there against was accepted on 27.10.1994 and remanded the case to the District Judge D.I. Khan for decision afresh. Thereafter on 29.1.1995, respondent No. 1 submitted an application before the learned District Judge for withdrawal of the suit with a permission to file a fresh one on the grounds of some legal and formal defects in the plaint. The said application was allowed on 9.2.1995 and respondent, No. 1 was permitted to withdraw the suit with permission to file a fresh one after removing the requisite formal and legal defects in the plaint. Hence the instant revision petition against the said order dated 9.2.1995 of the lower appellate Court. 4. Arguments of both the parties heard at length and record of the was scrutinized anxiously. 5. It was arg^ied on behalf of the petitioner that in the written statement filed by the petitioner in the year 1986 it was specifically mentioned that the suit was bad for non-joinder of necessary party, i.e. Ali Muhammad, but even then respondent No. 1 had remained mum and contested the suit which is a material irregularity not curable under Order 23 Rule 1 CPC so as to permit to withdraw the suit with permission to file another one. He argued that no doubt under the said Order 23 Rule 1 CPC. no time limit is given and the plaintiff is at liberty to withdraw his suit at any time, but the basic requirements for satisfaction of the Court are that there must be some formal defects and that there are other sufficient grounds for allowing the plaintiff to institute a fresh one on the same subject matter or a part thereof. 6. In reply, learned counsel for respondent No. 1 contended that the grounds which prevailed with the learned District Judge in allowing permission to withdraw the suit and to file afresh one were sufficient for the purpose and hence the impugned order is,not open to any further exception. 7. After considering the arguments of the learned counsel for the parties and scanning the record, I am of the view that this revision petition merits acceptance. It would be advantageous to reproduce Order 23 Rule 1 CPC which reads as under: - Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants withdraw his suit or abandon part of his claim; (2) Where the Court is satisfied:- (a) that a suit must fall by reason of some formal defect. or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or a part of claim, it may. on such terms as it thinks fit, grant permission to withdraw from such suit or abandonsuch part of a claim with liberty to institute a fresh suit in respect of the subject matter or such suit or such part of a claim; (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in subrule (2), he shall be liable to such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim." 8. From bare reading of the aforesaid provision of law it is crystal clear that the object of the law is not to empower the plaintiff who has not filed his suit with due care and diligence and after coming across the weaknesses of his cause at any stage to withdraw the suit on a ground which existed from beginning and even had been pointed out by the defendant but no heed was paid to the same. He remained silent over it and uptil the time when the case was remanded to the District Judge for decision afresh when at the verge of its conclusion there, he felt the necessity of its withdrawal with permission to file a fresh one over the same subject matter and without disclosing sufficient grounds for the purpose. The error committed by him by not making the necessary party which was rightly pinpointed at the very early stage of the suit by the defendant/respondent in his written statement could not be termed as a formal defect as envisaged by Order 23 Rule 1(2) CPC and, therefore, in the circumstances, respondent No. 1 herein could not be permitted with an opportunity to commence a fresh trial by filing a fresh suit. The impugned order of the learned Appellate Court has certainly prejudiced the petitioner/defendant which is liable to be set aside. 9. It is true that the plaintiff is vested with powers to withdraw his suit at any time after its institution, but it is equally true that he does not have such right at his free will affecting the right of the defendants and also the rights of the third party which might have been created by or arising from the orders passed or proceedings taken in the suit. Reliance in this respect can be placed on Amjad Rashid Khan Malik vs. Mrs. Shahida Naeem Malik and others reported as (1992 SCMR 485). In identical situation, the august Supreme Court in an appeal arisen from a Constitutional Petition decided by this Court on 7.6.1974 had held that objection raised in the written statement for not impleading necessary party was an enough notice to the appellant and hence his appeal dismissed. Reference, in this context, can be made to 1989 SCMR 506, titled Akhtar Ali Khan and another vs. ' Settlement Commissioner Peshawar and 4 others. 10. There is yet another aspect of the case which too goesagainst the respondent, i.e. limitation. Even if the requisite permission granted by the Court below is kept in field, then the date of filing fresh suit will be considered and not the date over which the suit was initially filed and hence the instant suit is liable to dismissal on this score alone. 11. The upshot of the above discussion is that this revision petition is-accepted, the impugned order dated 9.2.1995 of the learned District Judge D.I. Khan is set' aside and suit of the plaintiff/respondent No. 1 stands dismissed with no order as to costs. (MYFK) Petition accepted.
PLJ 1997 Peshawar 210 (DB) PLJ 1997 Peshawar 210 (DB) Present: FIRST JUDGE'S NAME IS NOT DECIPHERABLE, shah jehan khan yousafzai, JJ. MUHAMMAD SALEEM etc.-Petitioners versus CHIEF SECRETARY etc.-Respondents W.P. No. 1220 of 1995, dismissed on 7.8.1997. Constitution of Pakistan, 1973-- -Art. 199-Promotion of Tracers in B.P.S-10 instead of B.P.S-11 as in case of promotions before 19.8.1976-Challenge to-Objection raised by learned Additional Advocate General that petitioners are Civil Servants and issue involved relates to terms and conditions of service, jurisdiction of this court is barred under Art. 212 of constitution, is based on facts-On date of promotion as draftsman, they have accepted said terms and conditions of service-Petitioners have challenged Notification after lapse of more than 18 years without any explanation for delay-Held: Writ petition is hit by laches and want of jurisdiction and is accordingly dismissed. [Pp. 212, 213 & 214] A, B, C & D 1991 SCMR 1041; 1988 C.L.C. 1680. Mr. Shahzada Shahpur Jan, Advocate for Petitioners. . Mr. Talat Qayyum Qurcshi, Addl. Advocate General for Respondents. Date of hearing: 18.6.1997. judgment Shah Jehan Khan Yousafzai, J.--Petitioners herein were inducted in service as Tracers (PBS-5) in the Civil Service of Public Works Department (Irrigation Branch). Petitioners after qualifying departmental examination with a five years service experience on the basis of seniority-cum-fitness promoted to the post of'draftsman on 22.6.1982, 10.7.1982 and 1.7.1982 respectively. Under the rules the direct recruited draftsman are required to be a diploma holder. The minimum qualification for appointment as Draftsman is Matriculation plus three years diploma course in any branch of engineering from a recognised Institution. The directly recruited Draftsman with the above qualificatiop were to be appointed in BPS-11. However, in certain Organisations keeping in view the experience of certain Tracers -were also granted promotions/appointment as Draftsman without having the required qualification of diploma in the concern branch of engineering. In these circumstances the Deputy Secretary Government of Pakistan issued a letter dated 3.5.1976 conveying therein that existing incumbents of that categoiy be treated as entitled to BPS-11. However it was advised that in future no one should be appointed as Draftsman without the required qualification of Diploma. Vide impugned Notification No. FD(SR- I)20(3)/77 dated 13.6.1977 the Provincial Government amended Col. 4 of Schedule II of the Civil Services (National Scales of Pay Rules, 1972) to the following effect: - Col: 2 Col: 4. Draftsman: I. 250-18-340/20-440/20-540 (No. 10) after 19.8.1976. II. 275-20-375/20-475/25-600 (No. 11) before 19.8.1976. Vide impugned circular No. PD (SR-I) 1-67/83 dated 24.8.1983 the Secretary to Government of N.W.F.P. Finance Department circulated in all concerned the sanction granted by the Government of N.W.F.P. to the scheme of Basic Pay Scales, Allowances and other Fringe Benefits, 1983 for the Provincial Civil Servants. The relevant portion is reproduced as under:- "IRRIGATION/FORESTS/AGRICULTtJRE/ANIMAL HUSBANDARY/COOPERATIVES DEPARTMENTS. Name of Post Existing scale Basic scale 1. Field Assistant: 2. Stock Assistant/Poultry Supervisor/Poultry Assistant/ Sheep Dev. Assistant/ Laboratory Assistant/Cattle Dev. Assistant. 3. Veterinary Compounder. 4. Draftsman 5. Inspector Cooperatives. 6. Zilledar. RNPS-5 Rs. 290-10- 350/12-470- 14-540. -do- -do- RNPS-8 Rs. 370-16-514/18 -640- 22-750. RNPS-10 Rs. 410-22-520/24 -760- 28-900. ' -do- B. 6 (Rs. 540-20- 940) with l/3rd of total posts as selection grade in B. 9 (Rs. 620-29- 1200). -do- B-6 (Rs. 540-20- 940) with l/3rd of total posts as selection grade in B. 8 (Rs. 590-26- 1110) B-ll (Rs. 700-35- 1400). -do- B. 14 (Rs. 850-50- 1850). Yet within a week time a corrigendum was issued directing the deletion of serial No. 4 (Draftsman) from the circular and serial No. 5 and 6 were re numbered as No. 4 and 5. 2. The petitioners through the instant writ petition filed on 4.12.1995 seek indulgence of this Court under its constitutional jurisdiction to struck down the notification issued by the Government of N.W.F.P. No. FD (SR-1) 20,(3)/77 dated .13.6.1977 effective from 30.4.1977 and circular No. FD(SR-I) 1-67/83 dated 24.8.1983. It is further prayed that no recovery should be effected from them of the emoluments of BPS-11 paid to them in past and drawn by them in good faith. 3. The learned counsel for the petitioners contended that under the Government of N.W.F.P. Public Works Department Code, it is prescribed under clause 83-C that those Tracers who . qualify the departmental examination shall be eligible for appointment or promotion as Assistant Draftsman. The subjects to be qualified at departmental examination includes (i) Engineering Drawing, (ii) Estimates and analysis of rates (hi) Applied Mechanics and (iv) Building construction and Civil Engineering. The standard of examination is at par with the standard of examination for the ordinary certificate of Assistant Draftsman at the Government School of Engineering Rasul. Further contended that the petitioners are being dealt with discriminatory, those who were promoted as Draftsman before 19.8.76 were allowed BPS-11 while petitioners who were promoted after 19.8.76 are granted BPS-10. Equality before law is a constitutional guaranteed right winch is being refused to the petitioners. 4. The learned Additional Advocate General at the very out-set objected to the maintainability of the writ petition on two grounds, firstly. that the petitioners have challenged the Notification of 1973 which is hit by laches. Secondly, that the petitioners are civil servants and issue involved relates to terms and condition of service, the jurisdiction of this Court is barred under Article 212 of the Constitution. Therefore, no relief could be granted to them in the instant writ petition. 5. The objection raised by the learned Additional Advocate General with regard to the maintainability of the writ petition is based on facts. The petitioners have challenged the vires of Notification dated 13.6.1977 after more than 18 years. They were promoted as draftsman on 22.8.1982, 10.7.82 and 1.7.1982 respectively when the impugned notification was holding the field. All the petitioners were in service as Tracers when the impugned notification dated 13.6.1977 was issued effective from 30.4.1977. On the date of their promotion as Draftsjnan, they have accepted the said terms and conditions of service. It has been held by the August Supreme Court of Pakistan in "LA. Sharwani & others vs. Gout, of Pakistan & others (1991 SCMR 1041) in the following words, the relevant part of the judgment is reproduced below: - "From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant,- the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioner's case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. F\nthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot, bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights? 1 6. There is no question of discrimination or violation of Fundamental Rights of the petitioners involved. Petitioners are treated at par with all those draftsman who were promoted as such after 19.8.1976. The rjetitionfits and all Qtlvei draftsvaaa. ^Naft'mre. ml q\%\fe<i BvjsVam holders as required the minimum qualification for appointment as Draftsman, but promoted as such under the rules after notifying the amendment on 13.6.1977 have been granted BPS-10. The petitioners failed to establish a case of discrimination or violation of constitutional fundamental rights. 7. The petitioners have challenged .the notifications issued on 13.6.1977 and 13.8.1983 after a lapse of more than 18 years and ,12 years respectively without any explanation of delay, which is hit by laches. The explanation put forward by the learned counsel at the time of arguments, that since the cause of action accrued to the petitioners is a continuous one and the writ petition could not hit by laches. This explanation is not acceptable in the circumstances of the ease, as they did accept the terms and condition of B.P.S. science their promotion as draftsman and failed to agitate their grievance at least for the last more than 12 years, they could not claim any relief through the instant constitutional petition. In this regard the dictum laid down by the August Supreme Court of Pakistan in case, "Messrs Valika Properties Ltd. vs. Government of Pakistan and others" (1988 C.L.C. 1680) is as under:- "There is absolutely no explanation from the petitioner for presenting the petition after about, four years of the decision in the above case and at least for two and a half years of the publication of that decision in the Law Journal. In addition to it, the learned counsel for the respondent rightly pointed out that the petitioner having themselves offered to pay the amount of assessment by their letter' dated 11.1.1987 addressed to respondent No. 2 which was long after the decision of Supreme Court in the case of New Jubilee Insurance Company there was hardly'any room for the argument that the petitioners were still entitled to challenge the order dated 15.7.1982." 8. For the reasons stated above, this writ petition is dismissed for want of jurisdiction and also being hit by laches. No order as to costs. (B.T.) Petition dismissed.
PLJ 1997 Peshawar 214 PLJ 1997 Peshawar 214 Present: mian shakirullah jan, J. Haji ABDUR REHMAN KHAN-Petitioner versus RETURNING OFFICER and 6 others-Respondent. Writ Petition No. 174 of 1997. decided on 1 :l:2 1 'I97 Representation of the People Act, 197tt (LXXXV of 197Hi- -Ss. 39(6) & 103(b)--Constit.utioti of Pakistan U97.)i Art 199- Application for recount of entire ballot papers cast in constituency of Provincial Assembly-Returning Officer accepting such application- Application for recount was accepted on account of thin difference of votes and that most of valid votes had been excluded from count and invalid votes were included-Order of account passed by R.O. appeared to be within ambit of law and rules which empowered him to pass any such order-Under S. 103(b) of Representation of the People Act. 1976 any order passed by any officer under said Act, or Rules could lie reviewed by Election Commission, petitioner, therefore, had remedy under the Act- No justification having been made out for interference-Petition dismissed. [P. 216] A 1994 SCMR 1299 and PLD 1989 SC 396 rc.f. Qazi Muhammad Anwar, Advocate for Petitioner. Mr. Jehanzeb Rahim, Barrister for Respondent No. 4. order Through this petition the petitioner wants the relief in respect of an order passed by respondent No. 1 on 11.2.1997 wherein it was ordered that the recounting of the entire constituency in respect of PF-5, Peshawar 5 shall be done at 10.00 a.m. on 12.2.1997. 2. The brief facts are that the petitioner and respondent No. 4 alongwith others contested elections for the constituency given above. That according to the petition the petitioner won the elections by 48 votes as it was unofficially declared on 3.2.1997. The said lead of 48 votes of the petitioner was reduced to 43 votes on 6.2.1997 at the time of consolidation of the results by the Returning Officer. It was further alleged that the counting for the reconsolidation could not be completed on 6.2.1997 and was postponed to 11.2.1997 as in-between there were 'Eid Holidays'. It appears that on 11.2.1997 when the Returning Officer resumed consolidation an application was moved by respondent No. 4 requesting for the recount of the entire constituency. The said application was accepted vide order dated 11.2.1997 which is impugned in the petition. The application was based on the assertions that thin difference of votes between the unofficially declared returned candidate and the runners up. Secondly on the ground that most of the valid votes were excluded from count and similarly the invalid votes were included. 3. The learned counsel for the petitioner in support of his contention referred to section 39 of the Representation of the People Act, 1976 and submitted that the election process was complete because in his view the election process starts when the voters are called upon to elect their representatives for the constituency and it ends on the day of polling whereas learned counsel for respondent No. 4 who had accepted notice on 12.2.1997 submitted that section 39 shall be read in totality, i.e.. subsection (6) of the section ibid. His contention was that the consolidation of results will be held final only if in case of a request or challenge made in writing the recount process is also complete. The learned counsel for the petitioner also objected to the application and the impugned order on the ground that the allegations made therein are vague and not specific while the learned counsel for respondent No. 4 contended that the Returning Officer is vested with the power to order recount of ballot papers upon request, or challenge in writing made by a contesting candidate only pre-condition for such order is the satisfaction of the Returning Officer in respect of request or challenge to be reasonable. 4. The learned counsel for the petitioner does not dispute the power of the Returning Officer but was of the view that without cogent or sufficient material no order could have been passed to which view we cannot subscribe as section 39 subsection (6) does not cater for recording of evidence of sufficient material. The judgment reported as Ghularn Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others (1994 SCMR 1299) was relied by the leaned counsel for the petitioner on the point of maintainability of the writ petition in response to the objection raised by the learned counsel for respondent No. 4 who relied on Election Commission of Pakistan through its Secretary u. Javaid Hashmi and others (PLD 1989 Supreme Court 396). The two judgments of the Hoh'ble Supreme Court were considered by us and it appears that some below room is left for the exercise of Constitutional jurisdiction of this Court in such matters. As we are not in agreement with the learned counsel for the petitioner as to the merits of the case in respect of the impugned order we will not enter into the arena of jurisdiction of this Court and would confine ourselves to the impugned order which appears to be within the ambit of law and rules which empowers the Returning Officer to pass any such order. We will also refer to section 103, sub-clause (b) wherein any order passed by an officer under this Act or the Rules may be reviewed by the Commission, as such, the petitioner has a remedy under the statute. 5. For the facts and reasons stated above, we would hold that there is no force in this petition and the same is dismissed in limine. C.M. No. 206/97 also stands dismissed with the resultant vacation of the order with regard to interim relief. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 216 (DB) PLJ 1997 Peshawar 216 (DB) Present: tariq pervez khan and mahboob ali khan, JJ. ' Syed MUHAMMAD MUMTAZ SHAH and others-Petitioners versus THE CANTONMENT BOARD, ABBOTABAD and 3 others-Respondents W.P. No. 81 of 1993, dismissed on 24.4.1997. Constitution of Pakistan, 1973-- -Art. 199 read with Articles 4, 8, 23, 24 & 25-Cantonment Act (II of 1924), . S. 60-Imposition of development charges by Cantonment Board- Challenge to-It is undisputed that, it is within power and scope of Board to Impose Tax by virtue of Section 60 of Act-There is no evidence that petitioners have ever raised any objection, to contrary, they have appended two receipts with petition showing deposit of development charges-Perusal of notification show, same to have been, with prior approval of Federal Government-Held: No legal exception can be taken to imposition of development charges-Petition without force, is accordingly dismissed. [P- 219] A, B & C PLD 1975 SC 57. Mr. Abdullah Jan Mirza, Advocate for Petitioners. Malik Fazal Hussain, Advocate for Respondents. Date of hearing: 24.4.1997. judgment Tariq Pervez Khan, J.-Petitioners are residing within the Cantonment Board Limits of Abottabad. They have assailed, in this petition, the imposition of "Development Charges" by respondent No. 1. The "charge" is levied on different rates, on different plots-on the basis of their nature and use. The amount of charge is higher on commercial while, that on residential it is less. 2. The petition, as drafted, tends to bring the case, within the ambit of Articles 4, 8, 23, 24 and 25 of Constitution of Islamic Republic of Pakistan, 1973, inter alia, on the ground, that all citizen shall be treated in accordance with law, they are entitled to equal treatment and, different charges being imposed on civilian, residing within the territorial limits of Cantonment area are being discriminated i/iz. other retired army personals and alike. It is also contended, that, imposition of "development charge" is in fact a Tax, and no Tax can be imposed, except with the prior sanction and approval of the Federal Government. Next, it was submitted, that, even if the 'development charge' was leviable, and with in the competence of respondent No. 1, the amount thus collected is not properly used by providing better Civic condition to the tax payees. It was contended that the respondents are legally bound to provide facilities to the residents by constructing school, hospitals and other such like required facilities, including good roads, proper severage, drainage etc. Many other grievances have been high lighted in the averment of the petition which are not relevant for adjudication by this Court. 3. The respondents have contested all the contentions of the petitioner and they filed their written statement, wherein they have denied all such allegations as raised in the petition. With the written statement a detail of development works and programme has been annexed.
4. With regard to powers of the Cantonment Board, in imposing the "development charges", it was argued, that the charge was first levied in the year 1966 by the competent authority, and has been charged from them in accordance with law and rules framed thereunder. 5. This petition was admitted on a point of law. which does not appear in the grounds of petition, which was to the effect, that the area on which the "development charge" is imposed has not been notified under section 3 of Cantonment Act. This point was not agitated, nor raised at the time of argument before use. Section 60 of Cantonment Act, 1924, which is reproduced below empowers the Board to impose any Tax: "60., General Power of Taxation.-(l) The Board may, with the previous sanction of the Central Government, impose in any cantonment any tax which, under any cantonment for the time being in force, may be imposed in any municipality in the Province wherein such cantonment is situated (2) Any tax imposed under this section shall take effect from the date of its notification in the official Gazette." Section 61 of Act (ibid) provide for the procedure to be adopted, and is coached in the following words: "61. Framing of preliminary proposals.-When a resolution has been passed by the Board proposing to impose a tax under section 60, the Board shall in the manner prescribed in section 255 publish a notice specifying:- (a) the tax which it is proposed to impose; (b) the persons or classes of persons to be made liable and the description of the property or other taxable thing or circumstance in respect of which they are to be made liable; and (c) the rate at which the tax is to be levied. Learned counsel for the Cantonment Board had raised some preliminary objections to the maintainability of the petition. He submitted that "Development charges" were initially imposed in the year 1966, and, latter notified and rate increased through different Notifications namely: Notification No. 404/71 dated 19.2.1971. Notification No. SRO 546(1) 76 dated 7.6.1976. Notification No-. SRO 281(1) 83 dt. 21.3.1987. Notification No. SRO 648(1) 84 dt. 22.7.1984. His contention was, that the petition being filed, in the year, 1993. is hit by laches, and is to be dismissed on this ground alone.He also contenced, that, the petitioners of their own admission have been paying "Development charges" and have acquiescence to it, hence, are estopped by their conduct to raise any objection at a belated stage. He, further submitted, that all the required legal procedure was followed at the time of initial imposition, and on occasion of any further alteration or modification, by giving full publicity in the 'newspaper' and by asking objection from the residents of Cantonment Board, with regard to imposition of Tax. He submitted, that, there is not a single objection received by the respondent. He lastly submitted that no specific order has been impugned in the petition, and, that the prayer made therein is also vague, hence no relief be given to the petitioners. 6. We have carefully gone through the record, as made available to us by both the parties and have heard the arguments. 7. It is undisputed that, it is within the power and scope of Board to impose tax by virtue of Section 60 of Act (ibid). There is no evidence that, the petitioners have ever raised any objection, to the contrary, they have appended two receipts with the petition showing the deposit of "Develop ment Charges". 8. Perusal of notification referred to above show, same to have been, with the prior approval of the Federal Government (photo copies have been placed on file). 9. In view of the facts stated above, we see no merits in the petition, and while placing reliance on Pakistan through the Secretary, Ministry of Defence vs. Province of Punjab and others (PLD 1975 SC 37) we are of the view that no legal exception can be taken to the imposition of "Development Charges" and as such there is no force in this petition, which is accordingly dismissed. The petitioners are directed to pay cost to the respondent No. 1. (B.T.) Petition dismissed.
PLJ 1997 Peshawar 219 [DB] [D PLJ 1997 Peshawar 219 [DB] [D.I. Khan Bench] Present: javaid nawaz khan gandapur and malik hamid saeed, JJ. MUHAMMAD ISHAQ-Petitioner Versus GOMAL UNIVERSITY and others-Respondents W.P. No. 46 of 1993, dismissed on 11.6.1997. Constitution of Pakistan , 1973- -Art. 199-Constitutional petition-Discretionary relief-Prayer for- Petitioner after examination applied for re-checking of his papers on 16.10.1990--He kept silent for a period of about three years and there after instituted writ petition on 30.5.1993. This petition suffers from laches and is accordingly liable to be dismissed-It is not a fit case where discretionary powers U/A 199 should be exercising in favour of petitioner-Petition dismissed in liminc. [Pp. 220 & 221] A & B S. Zafar Abbas Zaidi, Advocate for Petitioner. Rustarn Khan Kundi, Advocate for Respondents. Date of hearing: 11.6.1997. judgment Javaid Nawaz Khan Gandapur, J.--The petitioner who was directed to furnish address of respondent No. 4 on 6.6.1994 has failed to comply with the orders of this Court in spite of the passage of three years. The conduct, of the petitioner, in the circumstances, is definitely disgusting. When confronted with this situation, the learned counsel for the petitioner failed to give any explanation, worth the name, as to why the orders of the Court were deliberately flouted. This petition, therefore, deserves to be dismissed solely on this ground. 2. Besides, we have also noticed, with concern, that a noval procedure had been adopted by the office in the fixation of this writ petition inasmuch as this writ petition was fixed once a year, the details of which are that for the first time it was fixed before the Court on 20.10.1993. Thereafter it was laid before another Hon'ble Bench of this Court on 6.6.1994. For the 3rd time it came up for hearing before another Bench of this Court on 2.5.1995. Then it was fixed on 6.10.1996 and thereafter on 18.3.1997. 3. The Deputy Registrar has been directed to look into the matter and find out as to why this writ petition was given special treatment. He shall submit his report to us within 15 days positively to be placed before His Lordship, the Chief Justice, for information. 4. Even otherwise this petition is without any merits. The petitioner after the examination applied for the re-checking of his papers on 16.10.1990. He kept silent for a period of about three years and thereafter instituted the present writ petition on 30.5.1993. We are, therefore, of the view that this petition also suffers from laches and is accordingly liable to be dismissed . 5. In the circumstances mentioned above we feel that it is not a fit case where discretionary powers U/A 199 of the Constitution of Islamic Republic of Pakistan, 1973 should be exercised in favour of the petitioner. This petition, pending disposal in motion, since 30.5.1993, is obviously frivolous and is, therefore, dismissed in limine alongwith the C.M. (K.A.B.) Petition dismissed.
PL J 1997 Peshawar 221 PL J 1997 Peshawar 221 Present -. justice sardar muhammad raza, election tribunal MUHAMMAD AZAD GUL-Petitioner versus SAID MUNEER SAID and 11 others-Respondents Election Petition No. 1. of 1997, decided on 18-3-1997. (i) Representation of the People Act, 1976 (LXXXV of 1976)-- -Ss. 55 & 63 read with Civil Procedure Code, 1908 (V of 1908), O.VI, R. 15-Election petition-Compliance with provision of S. 55, Representa tion of the People Act, 1976, not only mandatoiy and prerequisite for filing election petition but failure thereof,, would entail dismissal- Petitioner not only omitted to give details of corrupt practices but he also failed to file names of witnesses alongwith gist of evidence to be given by them before Tribunal and to file affidavits of such witnesses, if any- Election petition was, thus, liable to be dismissed on account of failure to comply with mandatory and punitive provisions of Act, 1976. [Pp. 223 & 224] A, B & F AIR 1986 SC 1253; 1991 CLC 175; 1993 CLC 929; 1994 CLC 1366 and 1995 CLC 394 ref. (ii) Representation of the People Act, 1976 (LXXXV of 1976)-- -Ss. 55 & 63 read with Civil Procedure Code, 1908 (V of 1908), O.VI, R. 15- -Election petition-Signing and verification of election petition-Omission to sign and verify election petition-Effect-Provision of S. 55(3), Act, 1976, would indicate that election petition is required to be signed by petitioner, and in addition to such signature, same is required to be verified in terms of C.P.C.-Conjunctive "and" used in-between "signed by the petitioner" and "verified in the manner" would isolate subsequent act of verification from previous act of signing by petitioner and verification in the manner laid down were thus, independent acts and were to be complied with independently of each other. [P. 225] C (iii) Representation of the People Act, 1976 (LXXXV of 1976)-- -Ss. 53 & 63 read with Civil Procedure -Code, 1908 (V of 1908), O.VI, R. 15-Omission to verify pleading in civil suit was not fatal and verification on oath can be got done at subsequent stage-Omission to verify contents of election petition however, is visited by penal consequence to the effect that verification of election petition being mandatoiy, Election Tribunal was bound to dismiss such petition-No penal consequences of non-verification on oath are mentioned in O. VI, R. 15, C.P.C. while in Act, 1976 special section (S. 63) has been provided therefor providing no room for use of discretion by Election Tribunal Non-verification on oath of election petition is, thus, fatal necessitating dismissal of election petition stimmarily-Non-verification of annexures of petition, however; would not entail dismissal of election petition provided "such annexures did not go to root of allegations levelled by petitioner against respondent concerning question of fact. [Pp. 226 & 227] D & E PLD 1963 SC 62; PLD 1967 SC 486; PLD 1986 FSC 242 and 1995 CLC 158 ref. Mian Mohibullah Kakakhel, Advocate for Petitioner. Saleem Dil Khan, Advocate for Respondents. Date of hearing : 18-3-1997. judgment General elections on the basis of adult franchise were held on 3rd February, 1997 for National Assembly Seat. NA-29 Tribal Area-Ill (Orakzai Agency). 2. Numerous candidates contested election ou.t of whom Said Munir Said emerged victorious. Muhammad Azad Gul having secured the second highest position challenged the aforesaid election through the instant election petition before the Election Commission of Pakistan, forwarded to this Tribunal for trial. 3. The main grievances of Muhammad Azad Gul, inter alia, were that the returned candidate Said Munir Said belonged to Kurram Agency and was not domiciled in Orakzai Agency, that one whole tribe called Sheikhano Tribe of Orakazi Agency had not participated in the election. That the respondent No. 1 had resorted to illegal and corrupt practices and instead of identity cards, plain 'chits' were issued to the voters. 4. In answer to the notice issued to all respondents concerned, the returned candidate alongwith some others appeared and filed his written ' statement raising, inter alia, certain preliminary objections. Mr. Salim Dil Khan learned counsel for the respondent alleged at the" very outset that before the commencement of regular trial, the preliminary issues must be settled because, in his opinion, those went to the very root of the case. General issues arising out of the pleadings were framed out of which the preliminary issues, restricted to present discussion, are as follows :-- (1) Whether the pre-condition of deposit of prescribed fee for an election petition has not been fulfilled is so, to what effect? OPP (2) Whether the petition is bad for misjoinder and non-joinder of the parties ? OPR (3) Whether the list of witnesses and the gist of their evidence is not annexed alongwith the petition; if so, to what effect ? OPP (4) Whether the election petition is duly verified as provided . under the law, if so, to what effect? OPP 5. Prior to the filing of a writ petition before Election Commission of Pakistan, a sum of Rs. 1,000 is to be deposited by the petitioner under " section 52 of the Representation of the People Act, 1976. The non-deposit of such fee, under section 52(2) of the Act empowers the Commissioner, under section 56 thereof, to dismiss the petition forthwith. Such power is exercisable by the Commissioner and not by the Tribunal. It is even otherwise immaterial because the amount of Rs. 1,000 as per original receipt attached stands deposited in the National Bank on 6th February, 1987 and hence the petition cannot fail under such objection. 6. All the contesting candidates have been arrayed as respondents in addition to the election functionaries.within the meanings of section 54(a) of the Act and hence the petition does not suffer from non-joinder of necessaiy parties. Under the aforesaid section, the- omission to join might be accountable but the unnecessary joinder should not affect the maintainability of the petition. This objection is also not fatal. . 7. The most important preliminary objections require now to be attended to. These are concerned with the list of witnesses and the gist of their evidence, alongwith the affidavits of such witnesses to be filed compulsorily alongwith the petition under section 55(1 Ha) of the Act. Subclause (b) of subsection (1) of section 55 of the Act also required full particulars of corrupt or illegal practices, including as full statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act, alongwith the date and place of such commission of such practice or act. 8. Subsection (3) of section 55 of the Act further provides that every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, for the verification of pleadings. These were the important objections covering preliminary issues Nos. 3 and 4. 9. The learned counsel for the respondent claimed that the petitioner had seriously violated the provisions of section 55 of the Act and hence the petition was liable to be dismissed summarily under section 63 of the Act. It may be stated at the outset before entering into further discussion that the aforesaid provisions of section 55(l)(b) and section 55(3) of the Act, are not complied with by the petitioner in the instant case. 10. The learned counsel placed reliance on a ruling of the Supreme Court from Indian jurisdiction in Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253). It was held with reference to the corresponding identical sections of our own Act, that the non-compliance therewith shall entail forthwith dismissal of the election petition and further that "power to dismiss can be exercised at the threshold". Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175), Mian Shah Jehan v. Haji Lai Karim (1993 CLC 929), Tariq Mahmood Bajwa v. Muhammad Afzo.1 Sahi (1994 CLC 1366) and Peter John Sahotra v. Returning Officer and others (1995 CLC 394) were further relied upon by Mr. Salim Dil Khan. In view of the undeniable principle of law, within the contemplation of section 55 of the Act, the compliance is not only mandatory and a prerequisite for filing an election petition but the failure thereof entails upon the dismissal at the threshold, as worded by the Supreme Court of India. The petitioner has neither given the details of corrupt practices in his petition by giving in particular the names of the persons indulging into such practice alongwith the date and time of the act or occurrence. The petitioner has failed to file the names.of the witnesses alongwith the gist of evidence to be given by them before the Tribunal. He has also failed to file affidavits of such witnesses, if any. In view of the consistent view taken by the Courts and above all, in view of the mandatory and punitive provisions of section 63 of the Act, the instant petition is liable to be dismissed summarily. 11. Coming next to the question of verification, it is admittedly under section 55(3) of the Act, as said, earlier, that the petition in hand is not verified on oath/solemn affirmation within the contemplation of Order VI, Rule 15, of the C.P.C., and hence is liable to be taken notice of under section 63 of the Act. 12. Mian Muhibullah "Kakakhel learned counsel for the petitioner came to the rescue of the petitioner saying that the simple verification done by the petitioner at the end of the petition is sufficient under Order VI, Rule 15 of the C.P.C. This, I am afraid, is not tenable because any oath or solemn affirmation is to be made before an authority, so empowered under the law, in the shape of verification in so many words to be deposed to before such authority. It is after such practical deposition or utterance that the authority happens to attest the deposition in accordance with law. Only this procedure makes a statement verified on oath or solemn affirmation. Otherwise, it remains a simple narration by the petitioner without being verified on oath or solemn affirmation. 13. Another aspect of verification on oath or solemn affirmation' is that the oath/solemn affirmation is practically administered to the deponent by the authority so empowered to administer oath or affirmation. Until and unless the oath is practically administered to the deponent, the statement/deposition cannot be attested or. verified. It is, therefore, unimaginable that a statement without being made on oath solemn affirmation before an authority so empowered, becomes a verification within the meanings of Order VI, Rule 15, C.P.C. 14. To further elaborate the matter, I would refer to the actual words of section 55(3) of Representation of the People Act, 1976, reproduced as follows for facilitate of ready reference :-- Section 55 (3): "Every election petition and every Schedule or Annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings." The words of the aforesaid section would indicate that a petition is required to be signed by the petitioner and, in addition to such signatures, i&, required to be verified in the manner laid down in the Code of Civil Procedure. The conjunctive and used in-between "signed by the petitioner" and "verified in the manner...." isolates the subsequent act of verification from the previous act of signing by the petitioner. Meaning thereby, that the two acts of signing by the petitioner and verification in the manner laid down are independent acts and are to be complied with independently of each other. We are wellacquainted with the pleadings which are always verified on oath either by the Oath Commissioner or by the Registrar/Additional Registrar/Deputy Registrars of the Court. Such verification on oath is not a new phenomenon 'to be altogether differently appreciated for the purposes of this petition alone. 15. Mian Muhibullah Kakakhel learned counsel for the petitioner further went on to argue that if such verification is required to be done under the provisions of Order Vl r rule 1& of the C.P.C., then the law as such also demands that the omission to do such verification should not entail upon the rejection of petition and the same verification should be got done inside the Court at any stage. By going through the provisions of Order VI, Rule 15 of the C.P.C., one realises that in that law the omission is not fatal and verification on oath can be got done at any subsequent stage but, so far as the mandatory provisions of section 63 of the Special Law in hand are concerned, the omission is visited by a penal consequence to the effect that the Tribunal is bound to dismiss such petition. No penal consequences of non-verification on oath are mentioned in Order VI, Rule 15 of the C.P.C., but in the Representation of the People Act, 1976, special section is provided (section 63) therefore providing no room for the use of discretion by the Tribunal. In the circumstances, the non-verification of petition on oath, in the instant case is fatal and the petition requires to be dismissed summarily. 16. A perusal of the verification of petition in hand would suggest that, the condition of oath/solemn affirmation and the attestation thereof being apart, it is not even otherwise in accordance with Order VI. Rule 15 of the C.P.C. The petitioner has failed to give reference to the numbered paragraphs of the pleadings what he either happened to verify of his own knowledge and what he happened to verify upon information received and believed to be true. He also failed to give the date on which and the place at which it was signed. 17. Abdul LatifNiazi v. Government of West Pakistan PLD 1963 SC 62-B is relied upon by the learned counsel claiming that the omission to verify on oath/solemn affirmation in the instant case was curable. The aforesaid ruling is not on all fours with the facts of the present case because the authority does not pertain to election laws and moreover, is distinguishable to the effect that in view of section 63 of the Representation of the People Act, 1976. No discretion is left with the Tribunal to cure the omission. S. M. Ayub v. Syed Yousaf Shah etc., PLD 1967 SC 486 also pertains to a law that existed prior to 1976 and also dealt with the power of the Tribunal to ask for certain amendment. Such power exists in the present law as well and is altogether different from Order VI, Rule 15 of the C.P.C. 18. ZulfikarAli Bhutto v. The State PLD 1979 SC 53 (c) is also not applicable to the present case because in that case the point is controversy was with regard to the deposition of some witness in Court and had no identity with verification of pleading on oath. The concession or the advantage provided by section 13 of the Oaths Act, 1873 is also not applicable to the controversy in the instant case. The provisions of section 13 of the Oaths Act can be read together with the provisions of Order VI, Rule 15 of the C.P.C., but not with the provisions of section 55 of the Representation of the People Act, against in the presence of section 63 of the Act that follows, with no discretion to-be left with the Tribunal and with specific punishment provided for the omission. 19. Learned counsel further relied upon Shah Nawaz and another v. The State PLD 1986 FSC 242 but this case pertained to criminal law and the statement of the accused recorded under section 342, Cr.P.C., any defect wherein was held curable if it otherwise did not affect the merits and was not prejudicial to the defence of the accused. Such is not the situation before this Tribunal. The authority aforesaid was inadequately chosen. Last was the reliance so vehemently placed on Haji Amanullah Khan v. Sahibzada Tariqullah 1995 CLC 158, an authority given by our own Election Tribunal concerning election held in the year 1993. The Hon'ble Tribunal with reference to section 55(3) of the Representation of the People Act, 1976 had ruled that non-verification of annexures attached tp election petition would not be fatal to election petition if it does not make any additional allegation of substantive character or furnish better particulars of allegations made in the petition. 20. There is no cavil with the proposition that for non-verification of annexures to the petition, an election petition cannot be dismissed summarily provided such annexures do not go to the root of the allegations levelled by the petitioner against the respondent concerning a question of fact. This was held in so many other cases already decided but before me today is not the question of verification of annexures but that of the verification of election petition which, in view of the law on the subject and the authorities discussed, is mandatory and unavoidable. 21. Consequent upon what has been discussed above, it is undisputedly clear that the petitioner has failed to give full particulars of corrupt practices including as full statement as possible of the names of the parties alleged to have committed such corrupt 'or illegal practice and has failed to give the date and place of the commission of such practice. The petitioner has further failed to give the names of the witnesses to be produced at the trial alongwith the gist of their evidence with affidavits of such witnesses, as provided by Election Commission Notification No. F1(7)85-CORD dated 16-3-1985 and has utterly failed to verify the election petition on oath duly attested by the authority concerned within the meanings of Order VI, Rule 15 of the C.P.C., and hence the petition, without further proceedings, is hereby summarily dismissed under section 63 of the Representation of the People Act, 1976. No order as to costs. (AAJS) , Petition dismissed.
PLJ 1997 Peshawar 228 PLJ 1997 Peshawar 228 Present: mian shakirllah jan and JAWAID nawaz khan gandapur, JJ. GHANl-UR-REHMAN-Petitioner versus Pir HAIDER ALI SHAH and 4 others-Respondents Writ Petition No. 203 of 1997, decided on 22-3-1997. Representation of the People Act, 1976 (LXXXV of 1976)-- -Ss. 39 (6) (b) & 103-AA--Constitutional petition under Article 199 of Constitution of Pakistan, 1973-Election Commission could not exercise jurisdiction after publication of Notification in official Gazette with regard to election showing therein returned candidates, for issuing directions for recounting of votes under S. 39(6) (b) of the Act-Such power, however, could be exercised under S. 103-AA of the Act-Jurisdiction of Election Commission to interfere with such matter would arise only where it was, ex facie, found on facts that grave illegality or violation of law or rules governing election process, including count of votes had occurred- Violation of such nature would invoke jurisdiction of Election Commission before Gazette Notification of successful candidates but not thereafter-Election Commission after Gazette Notification of successful candidates would become functus offtcio-Order passed by Election Commission was void ab initio, without lawful authority and of no legal effect and, therefore, was set aside. [Pp. 229, 231, 233, 234 & 235] A, B, C & D 1995 SCMR 684 and PLD 1989 SC 396 ref. PLD 1966 SC 1; PLD 1967 SC 569; PLD 1970 SC 98; PLD 1990 SC 352; PLD 1994 SC 738; 1994 SCMR 1299 and 1995 SCMR 684 rel Jehanzeb Rahim, Advocate Bar-at-Law for Petitioner. Saeed Baig, Advocate for Respondent No. 1. Muhammad Bashir Zafar, Deputy Election Commissioner, N.-W.F.P., Peshawar for Respondent No. 4. Saadat Hussain, D.A.-G. for Respondent No. 5. Dates of hearing : 20, 21 & 22-3-1997. judgment Mian Shakirullah Jan, J.--The question involved in this Constitutional petition, is that whether the Election Commission on "the application under section 103-AA of the Representation of the People Act, 1976" (hereinafter referred to as the Act) can decide "that the Returning Officer should he directed under section 39(6)(h) to carry out the recount of votes." 2. The petitioner contested the election for membership of the Provincial Assembly, N.-W.F.P. from Constituency No. PF-31 Hangu. Initially he was declared unofficially as returned candidate with a difference of 165 votes. Respondent No. 1, Pir Haider Ali Shah, submitted an application on 4-2-1997 to the District Returning Officer for recount of the votes in four polling stations mentioned in the application and for the rest he specifically mentioned in the application to have no objection. In consequence of the said application the Returning Officer, at the time of the consolidation of the result, also recounted the votes polled in the said four polling stations. The petitioner submitted his second application on 6-2-1997 to the Returning Officer for the recount of the votes in all the polling stations but this time his this application was rejected by the Returning Officer mainly on the ground that as he, respondent No. 1 had expressed his no objection over the result of other polling stations except the four mentioned in his earlier application. Respondent No. 4 dissatisfied with the order, then approached the Election Commission through an application making a prayer for the recitification. of the illegalities committed in the count by recounting the votes polled on the basis of which the impugned order dated 16-2-1997 was passed. It is pertinent to mention here that the notification was issued by the Election Commission, as stated, on 14-2-1997 whereby the petitioner was shown as a returned candidate (copy of the Gazette Notification placed on the file bearing the date 15-2-1997, as a fax date). The petitioner also received a letter dated 15-2-1997 from the Deputy Commissioner informing him to attend the session of the Provincial Assembly to be held on the 19th of February, 1997. A reference has been made in this letter of the Provincial Assembly N.-W.F.P. dated 13-2-1997 whereby the Deputy Commissioner was asked to inform the petitioner about the session of the Assembly. The impugned order was passed on 16-2-1997 as it bears the said date and it is this order against such which the petitioner has approached this Court through the present Constitutional petition. 3. Pre-admission notices were also issued to the respondents and after hearing the parties the writ petition was admitted to regular hearing. The averments made in the writ petition were not controverted through any reply/written statement/comments and the facts as stated in the writ petition will be taken as correct subject to any objection on good grounds, may be advanced during the course of hearing of the writ petition which with regard to various dates was none. 4. The main contention of the learned counsel for the petitioner was the once the petitioner had been declared as a returned candidate and a Notification had been issued in that respect then the Election Commission becomes functus officio and could not pass the impugned order for the recounting of votes which contention was controverted by the learned counsel for the respondents that as the order had been passed on the application of respondent No. 1 and in which the illegalities had been alleged and on the basis of which such an order could have been passed. The application submitted before the Election Commission by respondent No. 1 was not on the file of the writ petition, however, during the course of hearing of the writ petition, it was submitted by the learned counsel for respondent No. 1. The petitioner's counsel justified the non-filing of the case application with the writ petition on the ground that the impugned order was passed in his absence and moreover, he could not get the copy of the case application despite of his best efforts. 5. The very impugned order, the relevant portions of which have been reproduced in para. No. 1 above, indicates that the Election Commission be exercised the jurisdiction by invoking the provisions of section 103-AA of the Act and directions were issued for recounting of the votes, under the provision of sectio'n 39(6)(b) of the Act. The question which pose itself for consideration as mentioned in para. No. 1 above, is that whether the Election Commission can issue directions for recounting of the votes under section 103-AA of the Act and particularly when a Gazette Notification has been issued with regard to the successful candidates. If a reference is made to section 103-AA it contemplates that the Election Commission is having the power to declare the election as void within sixty days after the publication of the Notification but with certain pre-conditions, i.e. when grave illegalities or violations of the law and rules are found and which are also apparent on the face of the record. Here in this case the impugned order reveals that no illegalities or violations of the law or rules were found to have taken place by not making a reference in that respect and that the election has also not been declared as void but only a recount was ordered under section 39(6)(b) of the Act. Though the allegations of illegalities were alleged in the application but those were of general nature with a further elaboration that the postal ballot-papers were not properly dealt with and with the allegations of the exclusion of valid ballot-papers and inclusion of the invalid and at the end with a prayer that in view of the apparent illegalities in the count of the ballot papers and the same can be rectified by the recounting". Though the Election Commission can exercise the jurisdiction under section 103-AA of the Act suo motu when the "illegalities" or "violation of the law and rules" are brought to its notice and "apparent" on the face of the record irrespective of any application by any person. If the application filed by respondent No. 1 is to be taken of no consequence with regard to the illegalities as alleged whether mentioned or not therein, even then the impugned order by itself does not speak of the abovementioned pre-conditions i.e. illegalities, violation of the law and rules as envisaged by section 103-AA of the Act and the declaration of the election in the constituency as void. The learned counsel for the respondent No. 1 insisting upon the allegations made by him in the application, submitted to the Election Commission, by stating that the commission of illegalities have been mentioned therein but when asked about the satisfaction of respondent No. 1 with the impugned order passed by the Election Commission, the answer was in the positive and thus the respondent No. 1 was not aggrieved of the order by not passing the one as contemplated by section 103-AA of the Act on the basis of illegalities mentioned by him in the application and to which no reference was made at all in the impugned order. Hence apart from the fact that the averments made in the application by respondent No. 1 are of no consequence as no illegalities of the type as required under section 103- AA of the Act were mentioned therein, the non-challenging of the impugned order by respondent No. 1 and his satisfaction with the said order, the assertion made in the application would be of no help to him. 6. As discussed above, the Election Commission cannot exercise jurisdiction after the publication of the Notification in the official Gazette , with regard to the election showing therein the returned candidates, for issuing directions for the recounting of the votes under section 39(6) (b) of the Act which, however, can be exercised under section 103-AA with the conditions and relief mentioned therein which in the instant case are lacking. In this respect reliance can be placed on a case reported as Bartha Ram v. Lala Mehar Lai Bheel and another (1995 SCMR 684), the relevant paras. 5 and 8 are reproduced hereunder :-- "5...We have considered the arguments addressed by the learned counsel for the parties carefully. On our independent appreciation of the relevant provisions of law and examination of the judgment relied on by the learned counsel for the appellant, we are of the view that in the instant case the only remedy for the appellant was to challenge the election of the respondent through Election Petition before the Election Tribunal constituted under the Act and his petition seeking only the recount of votes before the Election Commission after the issuance of the Notification of the name of the respondent as returned candidate was misconceived. That being the position, the High Court was fully justified in declaring the proceedings taken by the Election Commission in the petition of the appellant coram nonjudice. 8 .... As regards section 103-AA, the reading of this section will also show that this section would apply when by reasons of grave illegalities or violation of the provisions of the Act or the rules the poll in any constituency is sought to be declared void. In the petition pending before the Election Commission, the allegations of grave illegalities and violation of the provisions of the Act or rules have not been levelled by the appellant. So, the petition of the appellant before the Election Commission for recounting of the votes on account of the mistake in the counting of the votes does not fall within the ambit of section 103-AA of the Act." 7. Consequently in view of the above discussion, this writ petition is accepted, the impugned order of the Election Commission of Pakistan dated 16-2-1997 is declared to be unlawful and is hereby set aside. 8. Before parting with the judgment, however, it may be mentioned here that this order will have no effect on the rights of respondent No. 1 to avail any remedy available to him under the law e.g. a petition under section 52 of the Act as this order will have an effect only to exclude the impugned order out of the file. Above are the reasons for our short order of even date. (Sd.) Shakirullah Jan, J. Jawaid Nawaz Khan Gandapur, J.--I have gone through the judgment of my Lord Mr. Justice Mian Shakirullah Jan and am in respected agreement with him that this writ petition be allowed. However, I am adding this judgment because on some points my line of reasoning is not the same. 2. The bone of contention between Ghaniur Rehman, M.P.A. petitioner on the one hand and Pir Haider Ali Shah, contesting respondent No. 1, on the other, relates to an effective issue of recount of votes. The facts of the case, stated briefly, are narrated as under:. 3. That the petitioner contested the election for the Membership of Provincial Assembly N.-W.F.P. from Constituency PF-31 Hangu. He was unofficially declared as returned candidate, with a margin of 165 votes; that respondent No. 1 on 4-2-1997, submitted an application to respondent No. 3 (District Returning Officer) of votes in only four polling stations mentioned in the application and no other. 4. The said application was marked to respondent No. 2 (Returning Officer) for necessary action; that respondent No. 2, on 6-2-1997, held the consolidation of election results in which he recounted the votes polled in the four polling stations as requested by respondent No. 1; that respondent No. 1 after the recount, submitted another application to respondent No. 2 (Returning Officer) for recount of the entire votes polled in the Polling Stations of the constituency. The said respondent rejected the said application, prepared the consolidation statement of the result of the count furnished by the Presiding Officer, under Rule 26(1) of the Representation of People (Conduct of Election) Rules, 1977 and intimated the same to respondent No. 4 (Election Commission of Pakistan) for Notification; that respondent No. 4 on receipt of the consolidated result, issued notification under section 42 of the Representation of People Act, 1976 and notified the petitioner as returned candidate for the said constituency. 5. The petitioner, after the above Notification, received a letter from the Deputy Commissioner, Hangu in which he was informed that the sessions of the Provincial Assembly had been summoned on 19-2-1997 and was requested to attend the session. 6. It appears that after the rejection of his request for the recounting of the votes in the entire constituency, respondent No. 1 knocked at the doors of the Election Commission (respondent No. 4) by invoking the provisions of section 103-AA of the Representation of People Act, 1976. Resultantly the Commission allowed the application for total recount vide: its order dated 16-2-1997. 7. This order is now sought to be impeached in this writ petitio on a variety of grounds, legal as well as factual, main amongst these are :-- firstly: that no case on factual and legal basis for recount has been made out by respondent No. 1; secondly: that the contesting respondent had himself in his earlier application dated 4-2-1997 asked for recount of votes for limited purposes i.e. in connection with only 4 (four) nominated polling stations therein; thirdly: that no grave illegality or violation of provisions, of the Act or the Rules framed thereunder had taken place nor was so found by the Returning Officer PF-31, respondent No. 2, as is apparent from his order dated 6-2-1997; fourthly: that in view of the above finding and the fact that recount was sought in respect of only four polling stations, respondent No. 1 was precluded/estopped by his own conduct for making a further prayer for the recount of votes in the entire constituency; and lastly: that prayer for recount could not be legally made to the Election Commission after the notification declaring the petitioner having been duly elected as Member of the Provincial Assembly, N.-W.F.P. 8. We have had the benefit of hearing Barrister Jehanzeb Rahim, Advocate learned counsel for the petitioner and Mr. Saeed Baig, Advocate learned counsel for respondent No. 1, at length and have perused the record of the case carefully. 9. At the very outset we tend to agree with the substance, in the line of arguments, advanced on behalf of the petitioner. For the jurisdiction of the Election Commission, to interfere with a matter like the one in hand arises only where it is ex facie found on facts that grave illegality or violation of law or the rules governing the electoral process, including count of votes, has occurred. A violation of such a nature will, in our considered opinion, essentially invoke the jurisdiction of the Election Commission before the Notification but definitely not thereafter. The Commission therefore becomes functus officio. If the Commission takes cognizance of a matter of the like nature, after the Notification, then in that case any order passed by it would be void ab initio, being without lawful authority and shall be consequently declared coram nonjudice and accordingly struck down. 10. In this view of the matter, we are supported by the following cases: (a) Main Jamal Shah's case PLD 1966 Supreme Court 1. (b) Saddruddin Ansari's case PLD 1967 Supreme Court 569. (c) Lt.-Col Farzand All's case PLD 1970 Supreme Court 98. (d) Haji Behram Khan's case PLD 1990 Supreme Court 352. (e) Pir Sabir Shah's case PLD 1994 Supreme Court 738. (f) Ghulam Mustafa Jatoi's case 1994 SCMR 1299. (g) Bartharam's case 1995 SCMR 684. 11. No counter-authorities were cited except Jawaid Hashim's case (PLD 1989 Supreme Court 396). However, it may be pointed out that the Supreme Court had itself made certain exceptions while dealing with the case mentioned above. In Bartharam's case the Hon'ble Supreme Court held:- "We have considered the arguments addressed by the learned counsel for the parties carefully. Oh our independent appreciation of the relevant provisions of law and examination of the judgment relied on by the learned counsel for the appellant, we are of the view that in the instant case the only remedy for the appellant was to challenge the election of the respondent through election petition before the Election Tribunal constituted under the Act and his petition seeking only the recount of votes before the Election Commission after the issuance of the Notification of the name of the respondent as returned candidate was misconceived. That being the position, the High Court was fully justified in declaring the proceedings taken by the Election Commission in the petition of the appellant coram nonjudice." 12. We have, therefore, no hesitation in declaring .the impugned order of the Election Commission dated 16-2-1997 void, without jurisdiction and of no legal consequence. Resultantly this writ petition succeeds in the above terms. 13. No order as to costs. (AAJS) ... Petition accepted.
PLJ 1997 Peshawar 235 PLJ 1997 Peshawar 235 Present: shah jehan khan yousufzai, J. SHAH MAZAI and others-Petitioners Versus MUHAMMAD AFZAL and others-Respondents Civil Revision Nos. 104 and 105 of 1996, decided on 22.2.1997. Provincial Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation!! of 1994)-- Regln. 3~Civil Procedure Code (V of 1908), S. 115-Dispute relating to title of land was refused mediator for decision in accordance with Shariat-Mediator found that plaintiffs were real owners of land in question; that defendants had not purchased land in question; and that defendants had forcibly possessed land in question-Trial Court after receipt of Award of mediator and after giving opportunity to parties to file objections, if any, on award, decreed plaintiffs suit-Judgmnt and decree of Trial Court were affirmed-Held :-Defendnats could no point out any misreading or non-reading of material evidence on which concurrent finding of fact of two Courts below was based-High Court could not interfere in impugned judgments and decrees in revision in absence of material irregularity or illegality in proceedings conducted by Courts below. [P. 238] A Mazullah Barkandi, for Petitioners. order By this order I intend to dispose of the captioned revision petitions as in both the cases common questions of law and facts are involved. 2. The facts out of which both the revisions petitions arise, briefly stated, are that Muhammad Afzal etc. and Haji Faqir Khan, plaintiffs/respondents herein, had filed suits against Abdul Malik etc. and Shah Mazai, defendants/petitioners herein, in the Court of E.A.C., exercising the powers of Deputy Commissioner under PATA Regulation n of 1975, for declaration that the land, details of which are given in the heading of both the plaints, is their ancestral property and that the defendants are not entitled to deny their title over the suit land or to transfer it or change its nature in any manner. It was also alleged that the sale-deed scribed as 'Raseed' dated 27-4-1979 annexed with the plaint is fraudulent, collusive, illegal and thus ineffective upon the rights of the plaintiffs/respondents. Perpetual injunctions were also prayed for. In the alternative, the possession of the suit land was claimed The suits were contested by the defendants. Haji Faqir Khan, respondent No. 7 in C.R. No. 104/96 however, admitted the claim of the plaintiffs by filing separate written statement. The contesting defendants raised preliminary objections on factual side claiming the title of the suit land on the basis of the sale-deed dated 27-4-1979. 3. It is pertinent to note that no settlement record has been prepared so far in that part of the country and that the disputed sale-deed is an unregistered document. 4. During the proceedings, PATA Regulation II of 1975 under which the suit was brought by the plaintiffs/respondent, was repealed by the judgment of the Supreme Court of Pakistan and the Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (N.- W.F.P.) Regulation No. II of 1994) was promulgated and thus the case was transferred to the Court of Senior Civil Judge/Aala Illaqa Qazi, Malakand, where both the parties made a joint statement that the dispute may be referred for decision in accordance with Shariah to one Syed Khan Badshah, Mediator who, on receipt of file, recorded the evidence of Muhammad Afzal,' plaintiff No. 1 wherein he stated that the suit land, namely, 'Bostai' is their ancestral property and that Shah Mezai was in possession as his tenant since his forefather. He alleged that till the death of his father in 1985 Shah Mezai tenant used to pay the share of produce regularly and then refused to pay the share of produce uptil now. He deposed that the sons of Shah Mezai, namely, Rashid and Ajmal Shah contacted him to sell the suit land to them on consideration of Rs. 22,000 but he refused to sell it and further added that whenever he intended to sell the suit land he will sell it to them on the prevailing market rate. In support of the above allegations the plaintiff Muhammad Afzal produced one Habib-ur-Rehman who deposed that the suit land, namely, 'Bostai' is the ancestral property of Muhammad Afzal etc. and that Shah Mezai etc. are their tenants., Being Paracha he used to collect the share of produce from Shah Mezai etc. and hand over to Muhammad Afzal etc. A few year back when he come to Shah Mezai for the share of produce, he refused to pay the share of produce on the protect that he had purchased it. To further strengthen his allegations, Muhammad Afzal plaintiff also produced on Hqji Fazalur Rehman who happened to be a witness to the exchange deed between Saeed Khan father of the plaintiffs/ respondents on the one hand and Faqir Khan his brother on the other. The witness deposed that the disputed land known as 'Bostai' is different than the land known as 'Painda Kandaro' rather laying at some distance from each other. He sated that the disputed land, namely, 'Bostai' was neither measured nor transferred through exchange to Faqir Khan, the alleged vendor in the sale-deed dated 27-4-1979. 5. In rebuttal, Shah Mezai defendant appeared as his own witness and deposed that the disputed land, namely, 'Bosti' was given in exchange to Faqir Khan defendant/respondent No. 7 and that the suit land is a part of 'Painda Kandaro' which was purchased by him.through a written deed in 1979. He stated that in 1985 Faqir Khan uncle of Muhammad Afzal plaintiff sued him and in 1988 Muhammad Afzal field the instant suit against him. He denied the payment of share of produce to the plaintiff. In support of the evidence he produced one Muhammad Murad, resident of 'Painda Kandaro' who stated before the Mediator that the disputed land, namely, 'Bostai' was given to Faqir Khan in exchange by the father of Muhammad Afzal plaintiff since its purchase by Shah Mezai. He further stated that Muhammad' Afzal plaintiff has not been paid any share of produce. 6. The Mediator part from recording the evidence of both the parties and spot inspection tried to'patch-up the matter but no compromise was effected and, therefore, he gave his Award in the case with the findings that the suit land, namely, 'Bostai' has not been purchased by Shah Mazai defendant from Muhammad Afzal etc. plaintiffs; that Shah Mezai etc. defendants forcibly possessed the suit land; and that Muhammad Afzal etc. plaintiffs were the real owners. The learned Senior Civil Judge/Aala Illaqa Qazi, after the receipt of Award of the Mediator and giving full opportunity to the parties to raise objections, made the same Award as the rule of the Court and passed a decree in favour of the plaintiffs on 26-10-1995. 7. The defendants/petitioners, being dissatisfied with the judgment and decree of the trial Court, preferred an appeal before the District' Judge/Zila Qazi, Malakand at Batkhela which was dismissed on 10-12-1995. Hence these revision petitions against the aforesaid judgments and decrees of the Courts below. 8. The learned counsel for the petitioners is support of the revision petitions argued that the Mediator has not provided an opportunity of Crossexamining the witnesses and that it was established in evidence before the trial Court that the suit land is the purchased property of the defendants/petitioners vide sale-deed dated 27-4-1979. The learned counsel read some portions of the new Regulation II of 1994 relating to Mediators and argued that the Mediator was bound to deliver the Award based on Shariah. He further urged that the burden \ r as on the plaintiffs/respondents to prove their case. 9. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners are has thoroughly examined the record I find that there is no substance in the present revision petitions, for, the learned counsel for the petitioners have not been able to point out any misreading or non-reading of material evidence rather there is concurrent finding of fact recorded by the two Courts below wit h regard to factual controversy. I am, therefore, afraid that in the absence c >f any misreading or non-reading of evidence or material irregularity or illegality in the proceedings conducted by the lower Courts, this Court cannot interfere in the impugned Judgments and decrees. The petitioners were given full opportunity to adduce evidence as they wished to produce but they have miserably failed to prove that they were owners by purchase of the suit land, namely, Bostai'. The unregistered sale-deed relied upo.n by the petitioners is in respect of a culturable part of the suit land, namely, 'Painda Kandaro' and the petitioners are enjoying usufruct of the said cultunable land and nobody had denied their rights over the same. In so far as the land known as 'Bostai' and unculturable land, namely, 'Painda Kandaro' are concerned, the defendants/petitioners have failed to produce any evidence in the shape of documentary or oral, therefore, both the lower Courts have rightly decreed the suits brought by Muhammad etc plaintiffs/respondents against the defendants/petitioners in Civil Revision No. 104/1996 and Haji Faqir Khan plaintiff/respondent No. 1 against Shah Mezai etc. i:n Civil Revision No. 105/1996. 10. For the abovestated reasons, both the revision petitions stand dismissed in limine alongwith the Miscellaneous Application Nos. 259 and 260 of 1996 and the status quo order issued on 21-4-1996 is recalled. (K.K.F.) Revision dismissed.
PLJ 1997 Peshawar 239 PLJ 1997 Peshawar 239 Present: JAWAID NAWAZ KHAN GANDAPUR, J. MUHAMMAD JAN etc.-Petitioners versus THE DEPUTY SUPERINTENDENT OF POLICE, MARDAN etc.--Respondents Writ Petition No. 1006 of 1996, decided on 13.10.1996. Constitution of Pakistan, 1973- Art. 199-Direction sought by petitioner against police personnel who raided his house illegally in a false case and committed several offences- Held : Such issues cannot be resolved by High Court in exercise of writ jurisdiction. [P. ] A Mr. Khalil Yousafzai, Advocate for the Petitioners. order The petitioners have alleged in the petition in hand that they had some dispute with the relatives of ASI, Fazal Elahi, respondent No. 2, who is posted at Police Station, Kalu Khan, District Swabi, that at the instance of respondent No. 2 the house of the petitioners was raided by the Police Party, consisting of 40/50 Police officials, on the false pretext that they were harboring the proclaimed offenders. The police party entered the house, open the locks of different rooms, disgraced the female/children and stole golden ornaments weighing 7 "Tolas" and took away hard cash amounting to Rs. 21,000/-. In addition, they also took into their possession two licences pistols and a gun. The matter did not end there. They also registered several false FIR's against petitioner No. 1, the father of petitioners No. 2 to 6 who are all Government Servants and are working at Islamabad . 2 It has been alleged that petitioner No. 1 then approached respondent No. 4, DIG. Police, Mardan Division, Mardan and the matter was brought to his notice. The DIG enquired into the matter and it came to light that all the allegations against the petitioners were baseless. Resultantly, the DIG issued directions that all the cases registered against the petitioners, at Chura, Police Station be cancelled. The needful was done and the cases were cancelled by respondent No. 5 the Illaqa Magistrate. 3. The petitioners have further alleged that respondents No. 1 to 3 have committed heinous offence inasmuch as they have raided the house of the petitioners, without any rhyme or reason, disgraced their women-folk and have stolen their property. That the Police action has defamed the petitioners in the public and their reputation has been damaged greatly. According to the petitioners sin^e respondents No. 1 to 3 have not only trespassed into their house but have also stolen golden ornaments/cash amount and are thus guilty of committing dacoity too. They have, accordingly prayed that respondents (No. 1 to 3) actions be declared as illegal and without lawful authority and a direction be issued to register a criminal case against them. 4. Mr. Khalil Yousafzai, Advocate, learned counsel for the petitioner present and heard. Record of the case perused. 5. Admittedly the petitioners house was raised and cases were registered against petitioner No. 1 Later, when the petitioners approached the DIG Mardan he enquired into the matter and issued directions that the cases falsely registered against the petitioner be withdrawn. In consequence thereof the Illaqa Magistrate cancelled 1 the cases in question. 6. In the circumstances we are of the view that the main grievance of petitioners has already been redressed by the DIG, Police. Regarding the second grievance of the petitioners that their family members were disgraced, locks of their rooms broken, boxes opened and golden ornaments/cash amount stolen by the raiding party, we are of the view that in this respect evidence shall have to be recorded. Such issues cannot be resolved by this court in the exercise of its writ jurisdiction under Article 199 of the Islamic Republic of Pakistan, 1973. 7. Regarding the prayer of the petitioners for registration of case FIR, against respondents No. 1 to 3 it would suffice to say that there is nothing on the file to suggest that the petitioners had approached the relevant authorities for the redress of their grievance and that their prayer had been turned down. If the DIG could, on their application, order the cancellation of the various FIR"s registered against them (Petitioners), then in that case if they had approached him he could also issue order for the registration of case against, respondents No. \ to 3 under the relevant provisions of law. Specially when the DIG in his letter No. 161 dated 24.3.1996 addressed to the Senior Superintendent of Police has mentioned as under :- "Please take departmental action against all the concerned Police Officials, for wrongfully registering cases U/S. 16 A.O When the arms were recovered from the house during th raid." 8. In the circumstances, we hold that this writ petition is not only misconceived but is also without any substance. The same is accordingly dismissed in limine. (K.K.F.) Petition dismissed.
PLJ 1997 Peshawar 241 PLJ 1997 Peshawar 241 Present: shah jehan khan yousufzai, J. BAKTIAR KHAN etc.-Petitioners versus GOVERNMENT OF PAKISTAN etc.Respondents Writ Petition No, 1015 of 1996 decided on 11-6-1997. Zakat & Usher Ordinance < 1980)- -4fs amended-A Provincial Department later on federalized-Effect- £,iability of payment of salaries of employees of department-Held : claim of petitioners pertaining to period from July, 1995 till 31.1.1997 when law was amended by Finance Act, 1994 was holding and Federal Government was to bear expenditure of salaries and after 31st of January, 1997 Provincial Government shall be responsible to meet same expenditure as petitioners were at the disposal of Board of Revenue. [Pp. 242 & 245] A & B Mian Fasihul Mulook, Advocate for the Petitioner. Mr. Talat Qayyum Qureshi, AAG for the Respondent. Date of hearing: 11.6.1997. judgment On the promulgation of Zakat and Ushr Ordinance No. XVIII of 1980) (hereinafter to be called as the Ordinance) the Provincial Zakat and Ushr Department was established wherein the petitioners were appointed as Junior clerks/Naib Qasids. Initially fhe recurring expenditures were borne by the Provincial Government but subsequently the law was amended to the effect that Zakat was federalised and the assessment and collection of ushr was entrusted to the Board of Revenue of each Province. In this connection of S.R.O. No. 762(l)/93 dated 5.9.1993 was issued whereby section 8(2) of the Finance Act (No. VII of 1990) (hereinafter to be referred to as the Act) substituting Section 6 of the Ordinance was given effect from Kharif, 1993. There was some confustion regarding liability of payment of salary to the staff engaged in assessment and collection of ushr, that whether the Federal Government or the Provincial Government shall be liable to pay. In this respect, a decision was taken in a 2nd Inter-Provincial Ministerial section helding on 3.11.1994 in the following words :- "The staff which has been recruited by the Provincial Government for establishment of Zakat and usher system under the Zakat and Ushr Ordinance, 1980 would be the liability of the Federal Government because of its re organization, except for those on deputation or those engaged for collection of usher which is still assigned to the Provincial Government, under the amended Ordinance." The Provincial Government taking shelter of the Ordinance as amended upto 1.7.1994 regretted the liability to release budget and salaries of the petitioners (employees) of Usher) and informed the Secretary to Government of'NWFP, Board of Revenue accordingly. The matter was once again referred to the Federal Government through the concerned Department and in a letter dated 2.7.1995 issued by the Section Officer FA- 1), Ministry of Finance, Zakat and Usher Division to the Assistant Secretary, Board of Revenue, NWFP Peshawar, while quoting the above decision of Inter-Provincial Ministerial Meeting, it was clarified that Payment of salary to the staff employed for the enforcement of Usher is not the liability of the ,-~- Federal Government (Zakat and Usher Division) and that, therefore, the staff engaged for the enforcement of Usher shall be adjusted in the . Provincial set-up and the salary be paid from the Provincial Budget. As a result of the aforementioned correspondence the Secretary to Govt. of NWFP, Revenue Department released a sum of Rs. 16,90,910/- as salaries of the Usher employees for the period from 1.1.1995 to 30.6.1995 which was to be met out from the sanction budget for the year, 1994-95. The matter was v still handing fire because neither the Federal Government nor the Provincial Government was inclined to accede to the liability of payment of salaries to the petitioner. However, in a letter dated 22.7.1996 (Annexure "H") the Secretary to Government of NWFP., Revenue Department conveyed to all -~ the Commissioners/Deputy commissioners in the NWFP orders of the Chief Secretary (respondent No. 2) which are as under :- "PL. revert the Tehsildars/Naib Tehsildars to their original posts, as the Deptt: stands disbanded. The cases of J.Cs./N. Qs. may be disposed of by .the Appointing Authorities concerned." In view of above orders the petitioners were neither accommodated in any other Department nor terminated and their salaries since July, 1995 are still outstanding and both the Federal and Provincial Government are not yet according to their liability to pay. In this state of affairs, the petitioners having no other adequate and efficacious remedy have filed this Constitutional petition under Article 199 of the Constitution of Pakistan, " 1973 wherein it has been prayed that the respondents be directed to do what they are required under the law to do and to pay forthwith the salaries to the petitioners alongwith arrears. 2. Respondent No. 1 maintained in his parawise comments, while replying to Para-2 and ground(b) of the Writ Petition, that Zakat and Ushr system was federalised with effect from 1.7.1994 by amendments in the Ordinance of 1980 and that following the said system of federalization the Government of NWFP (Zakat and Social Welfare Department) had placed the services of those employees who were appointed in connection with enforcement'of Ushr at the disposal of Board of Revenue for their adjustment. In these circumstances and the legal position respondent No. 1 denied the lability to deal with the payment of Salaries of the petitioners. 3. Respondent No. 3 (Secretary Finance) in his parawise comments, which were disclosed to be vetted on 5.4.97, took the stance that the liability to pay salaries to the petitioners was put on the shoulder o£ the Federal Government for the reason of Federalizing the Zakt and Ushr system, while giving reply to para 6 it was pleaded that earlier the salaries for the perisd from 1.1.1996 to 30.6.95 amounting to Rs. 16,90,910/- were paid from the sanction budget for the year 1994-95 on the condition that the Board of Revenue will obtain re-imbursement of the Fund from the Federal Government on priority basis and that the department has filed to get the \amount reimbursed from the Federal Government. 4. Respondent No. 4 (Secretary Social Welfare Department) has mostly admitted the factual position. However, it was opined that the petitioners were recruited in pursuance of a Federal Legislation (Zakat and Ushr Ordinance, 1980) and the financial liabilities shall also be born by the Federal Government. It was disclosed that initially when Zakat was not federalized and collection and distribution were to be made by Provincial Zakat Council, which was also competent to constitute District Zakat Committees, the expenditure on administrative side was also borne by the Provincial Government. But after the change in law and taking over control by the Federal Government the responsibility of the Provincial Government to bear expedite on,administrative side also came to an end. 5. We have heard the learned counsel for the petitioners and the learned Additional Advocate General in support of their respective contenting and have also gone through the available material on record and the relevant law. It is not disputed that the petitioners were duly appointed to carry-out the functions of Zakat and Ushr and still they are in service. Their appointments were made under the Ordinance. The administrative control of Zakat and Ushr was vested in the Provincial Government. It is also a fact that the petitioners were never paid their salaries by the Federal Government. Even after the federalization of Zakat and leaving the assessment and collection of Ushr with the Provincial Government the petitioners were paid from the Provincial Exchanequer for the period from 1.1.1995 to 30.6.95. 6. Now we will revert to the relevant provisions of the Ordinance. Section 8 of the Ordinance reads as under :- "8. Utilization of Zakat Funds.-- The moneys in a Zakat Funds shall be utilized for the following purposes, namely, -- (a) assistant to ...... " (b) expenditure on the collection, disbursement and administration of Zakat and Ushr :-
Provided that :- (i) the expenditure on the adminstrative Division and the Central Council shall be met by the Federal Government. (ii) the expenditure on the administrative organization of a Regional Administrator and a District Committee ^ shall be met by the Federal Government." The Ordinance was amended in 1991 wherein Section 8 of the Ordinance reads as under:- "8. Utilization of Zakat Funds.-- The moneys in a Zakat Funds shall be utilized for the following purposes, namely, ~ (a) assistance to ...... " (b) expenditure on it .... " collector, disbursement and administration of Zakat and Ushr: Provided that the expenditure on the Central Zakat Council and the administrative organization of the Administrator-General shall be met by the Federal Government that on a Provincial Zakat Council and the administrative organization of a Chief Administrator, and that on a District Committee, Tehsil Committee, Taluqa Committee or Sub- Division Committee by the Provincial Government concerned and that on a Local Committee from the Local Zakat Fund not exceeding ten per cent of the receipts in that fund during the year." The above provision of the Ordinance was substituted by Act XII of 1994 in the Finance Act, 1994 wherein it has been added as under :- Explanation.-On commencement of the Finance. Act, 1994, the Provincial Zakat Funds shall cease to exist and the balance in these funds shall be transferred to the Central Zakat Funds :- (5) in section 8.... ... (a) assistant to~ (b) expenditure on the collection, disbursement and administration of Zakat and Ushr : Provided that- (i) the expenditure on the Administrative Division and the Central Council shall be met by the Federal Government. (ii) the expenditure on the administrative organization of - a Chief Administrator a District Committee and the Sub-Divisional Zakat Office shall be met by the Federal Government; and (lii) the funds not exceeding ten per cent approved in the budget shall be retained in the Central Zakat Fund to meet such additional expenditure of a District Committee, a SuVDivisional Zakat office and Local Committee as may be approved by the Zakat and Ushr Division." The above provision of law was further amended through Zakat and Ushr (Amendment). Ordinance promulgated on 23rd of January, 1997 wherein Section 8 (c) reads as under :- "8. Utilization of'Zakat Funds.- The moneys in a Zakat Fund shall be utilized for the following purposes, namely,- "~~<mlf (a) assistance ...... " (b) assistance to the needy ... ; (c) expenditure on the collection disbursement and Administration of Zakat and Ushr :- Provided that- (i) the expenditure of the administrative Division and the Central Council shall be met by the Federal Government; (ii) the expenditure on the administrative organization of a Chief Administrator, the Provincial Council, and a District Committee shall be met by the Provincial Government. 7. From thj above quoted relevant law we have noticed that the claim of the petitioners Certaining to the period for July, 1995 till 31.1.1997 when the law as jmended by the Finance Act, 1994 was holding the field B and the Fee ral ( overnr ent was to bear the expenditure of salaries and after the 31s of January 1997 Provincial Government shall be responsible to meet the sam expenditure. 8. For ,he aforegoing reasons, we direct respondent No. 1, Secretary to Government of Pakistan, Zakat and Ushr Division in the Ministry of Finance that the petitioners be paid their salaries from July, 1995 till January, 1997. Similarly, we also directed respondents Nos. 2 to 5 herein to made payment of the outstanding salaries to the petitioners from February, ^ 1997 and on words if they are not absorbed in any other Administrative Department. This Writ Petition is allowed in the above terms with no order as to costs. (AAJS) Petition allowed.
PLJ 1997 Peshawar 246 PLJ 1997 Peshawar 246 Present: MALIK HAMID SAEED, J. HUMAYUN KHAN--Petitioner versus REGISTRAR HIGH COURT PESHAWAR etc. -Respondent W.P. 106 of 1997 dismissed on 19-9-1997. Constitution of Pakistan, 1973-- -Art. 199 (5) read with Delegation of Powers Rules, 1960, Rule 3 (a)~ Appointment as Superintendent (BPS-16)/Clerk of Court-Challenge to- According to Rules 1960, appointing, punishing and transferring authority to appoint clerks of Court is Chief Justice of High Court- Respondent No. 1 after obtaining approval of appointing authority (Chief Justice) with respect to appointment of respondent No. 2 issued impugned orders, which is quite within competence of appointing authority-Even otherwise under Article 199(5) of Constitution, High Court is excluded from purview of said Article while defining "person" therein-No Constitutional petition under Article 199 could be entertained against High Court itself-Petition dismissed. [P. 247] A to C Mr. Adam Khan, Advocate for Petitioner. Date of hearing : 19-9-1997. Humayun Khan, petitioner has called in question the appointment order of Muhammad Rashid, respondent No. 2 made by the Registrar, Peshawar High Court, Peshawar, respondent No. 1, on the newly created vacancy of the Clerk of Court/Superintendent (BPS-16) for the Court of District and Sessions Judge, Alipuri, District Shangla. The grievance of the petitioner is that he had applied through proper channel for appointment as Superintendent in the Court of District and Sessions Judge, Alipuri and had also participated in the test and interview held by the District and Sessions Judge, Alipuri for the purpose. The learned District and Sessions Judge, Alipuri after conducting test and interviews of the candidates prepared a merit list wherein the name of the petitioner was paled at S. No. 1 for appointment as Superintendent whereas respondent No. 2 was placed in the said merit list much behind him, as his name finds mentioned at S. No. 5 of the list. The District and Sessions Judge, Alipuri out of the 7 contesting, candidates, forwarded the names of only 4 candidates i.e., the petitioner, respondent No. 2 and two other candidates for appointment of one of the candidate with the remarks recommendation that the said candidates are having experience in official and judicial work. The Registrar, Peshawar High Court, Peshawar (respondent No. 1) issued the impugned appointment order for appointment of respondent No. 2 as Superintendent and also made his posting in the Court of District and Sessions Judge, Alipuri as such. The petitioner has, therefore, questioned the said appointment order of the Registrar, Peshawar High Court through the instant writ petition. Comments were called for from respondents No. 1 and 3 on 29.5.1997. The Registrar, Peshawar High Court in compliance with the orders dated 29.5.1997 submitted his comments on 20.6.1997 wherein it has been stated that in view of Rule-XI of Rules and Orders of the High Court, Vohime-I, read with Rule-3(a) of Delegation of Powers Rules, 1960, the Chief Justice has exclusive powers in respect of the appointment, punishment and transfer of the Gazetted and Non-Gazetted Establishment unde'r the High Court, and respondent No. 2, who was fulfilling the requirement for appointment under the Rules was appointed on the said vacancy and his appointment is, therefore, legal and correct. It has been further submitted in the comments that sanction for appointment of respondent No. 2 was duly obtained from the higher authority (Le., the Hon'ble Chief Justice). We have also perused the relevant provisions of the High Court of West Pakistan Delegation of Powers Rules, 1960, under which it has been provided that for the purpose of appointments of the Clerks of Court and Chief Ministerial Officers to the District and Sessions Judges, the appointing, punishing and transferring authority is the Chief Justice of the High Court. In this case the District and Sessions Judge after conducting test and interview of the candidates for the post of the Clerk of Court/Superintendent forwarded a panel containing 4 names of the candidates suitable for appointment and the Registrar, Peshawar High Court, respondent No. 1, after obtaining approval of the appointment authority (Hon'ble Chief Justice) with respect to appointment of one of the candidate from the said panel forwarded by respondent No. 3 accordingly issued the impugned orders dated 17.11.1996. In our view, it is quite within competence of the appointing authority to appoint suitable persons on the vacant posts. Even otherwise, under Article 199(5) of the Constitution, the High Court is excluded from the purview of the said Article while defining 'person' therein. Hence no Constitutional petition under Article 199 of the Constitution could be entertained against the High Court itself. A similar question arose for determination before a learned Division Bench of the Lahore High Court in the case of M/s. Nusrat Ilahi and 41 others vs. The Registrar, Lahore High Court and 68 others 1991 MLD 2546) wherein juniors to the petitioners were appointed/promoted by the learned Chief Justice, Lahore High Curt and the appointment/promotion orders of the respondents were .challenged by the petitioner/employees through a constitutional petition. The relevant observations of the learned Division Bench are to the following effect :- Constitutional petition against High Court-Maintain ability-Provisions of Article 199(5) while defining'person' excluded Supreme Court, High Court or a Tribunal established under law relating to the Armed Forces of Pakistan from its purview-No petition thus, could be entertained under Article 199 of the Constitution against the High Court itself. Impugned orders ere passed by the Chief Justice who had exercised powers and had acted on behalf of the High Court-Registrar had carried out orders of Chief Justice and the Judges of the High Court. Appellant's contention that orders passed on executive side by the .Chief Justice or the Registrar were not protected from the purview of Article 199 of the Constitution was fallacious by reference to Article 208 of the Constitution vesting powers to frame Rules in respect of employees of High Court in the High Court itself....." Keeping in view the above mentioned ruling; we are of the view that the present writ petition is not maintainable on this score also. Resultantiy, the writ petition in hand, being misconceived and devoid of any force, is hereby dismissed in limine. (MYFK) Petition dismissed.
PLJ 1997 Peshawar 248 PLJ 1997 Peshawar 248 Present. jawaid nawaz khan gandapur, J. MUHAMMAD AZAM KHAN etc.-Petitioners versus GOVT. OF N.W.F.P. etc.Respondents W.P. NO. 1529 of 1997 dismissed on 23.9.1997 Constitution, of Pakistan, 1973- Art. 199-Writ of Mandamus-A person claiming entitlement for issuance of writ of Mandamus, must at least, have a clear legal right to performance by respondents of a particular duty sought to be enforced- Duty must be one which is manifestly defined, imposed or enjoined by law-A writ of Mendamus cannot be issued to enforce contractual obligations which have been legally settled between parties with their mutual consentPetitioners were appointed on contract basis, they have no legal/vested right to impose condition of their own choice on respon dents-Held, no statutory duty is involved nor any legal right is being enforced nor performance of a public duty is being claimed, hence, writ of Mandamus cannot be issued-Petition dismissed. [Pp. 249 & 251] A to C Mr. Mir Adam Khan, Advocate assisted by Mr. Abdul Hamid Khan, ---t- Advocate for Petitioners. Date of hearing: 23-09-1997. order The petitioners, all Civil Judges/Judicial Magistrates, appointed on contractual basis, have by this writ petition invoked the Constitutional jurisdiction of this Court and have prayed for the issuance of writ of Mendamus to the respondents/Provincial Government to honour the recommendations of His Lordship, the Chief Justice, Peshawar High Court, Peshawar and to regularise their services, including the services of the other contractual selectees. 2. Mr. Mir Adam Khan Advocate assisted by Mr. Abdul Hamid Khan Advocate learned counsel for the petitioners present and heard. Record of the case perused carefully. 3. At the very out-set it may be stated that a person claiming entitlement for the issuance of writ of Mendamus, must, at least, have a clear legal right to the performance by the respondents of a particular duty sought to be enforced. The duty must be one which is manifestly defined, imposed or enjoined by law. In other words and to put it differently the applicant for Mendamus must ex-facie show that he has a legal right to the performance of a legal duty by the other party against whom the relief is sought. In the case in hand, the petitioners seek to enforce contractual right and liability on ferms devised by them and say that although they were appointed on contract basis yet when their case was recommended by His Lordship, the Chief Justice, for regularisation of their services, the same should have been honoured by the respondents/Government (Chief Minister) and their services should have been regularised. In other words, they are casting a duty on the respondents/Provincial Government to make alterations in the service rules as devised by them. The petitioners want that the executive machinery should act in accordance with their wishes. Thus specific performance of a contract is sought in terms, dictated by them. Obviously a writ of Mendamus cannot be issued to enforce contractual obligations which have been legally settled between the parties with their mutual consent. The petitioners, to our mind, have no legal/vested right to impose condition of their own choice on the respondents/Provincial Government nor are they possessed of a legal right to devise a new mode of performance of functions by the Provincial Government/respondents. 4. Again we cannot ignore a fundamental rule that before a writ of £ Mandamus could be issued to compel the party to do something, it must be prior shown that the statute had imposed a duty in that respect. This factual/legal position is wanting altogether in the instant case. It is only in respect of legal right that a writ of Mendamus can be issued. What legal right the petitioners, who were appointed on contract basis, have to enforce on the respondents/Government to appoint them on regular basis, we have not been able to understand. 5. Not only that contractual obligations cannot be enforced through constitutional petition but the petitioners have not challenged the filling up of the post presently held by them through the Public Service Commission in violation of the terms and conditions of their appointment, and quite rightly so, because paragraph 2 (i) of the terms of their appointment reads:- "The period of contract appointment shall be one yew with effect from the date of taking over charge or tifl the availability of selectees of the Public Service Commissioner whichever is earlier". 6. Subs-paragraph (iv) further requires the appointees to execute an agreement bond with the Government on the prescribed from for contract appointment. It is not denied that such a bond was executed by the petitioners. It would thus be seen that the decision of the respondents/ Government to fill up the post in question, by regular appointees to be selected by the Public Service Commission is squarely in accord with and not in violation of the petitioners terms of appointment. 7. Furthermore, issuance of writ of Mendamus as prayed for by the petitioner to direct regularisation of the petitioners service would be violative of statutory law, namely, section 7 of the N.W.F.P. Public Service Commission Ordinance, 1978 read with Rule 3 and Schedule 'A' of the N.W.F.P. Public Service Commission (Functions) Rule 1983, which prescribes that appointments to the post in the Province in BPS-16 to 20 are to be made on the advice of the Public Service Commission, based on the test and examination conducted by the Commission for the purpose. The post held by the petitioners are in BPS-17 and therefore can only be filled up in the manner prescribed by law. The argument by the learned counsel that since the petitioners were appointed after a completive examination conducted by a Committee of Judges of this Court (through a transparent process) their non-regularisation by the Provincial Government erodes upon the independence of the judiciary and is violative of the concept of the separation of judiciary from the executive, is not only baseless but is also untendable for many reasons. Firstly it is true that the examination was conducted, as claimed by the petitioners, but the same was conducted only for appointments on contract basis. This is clear not only from the petitioners' terms of appointment but also from the advertisement of the said posts. Secondly, the argument is not available to the petitioners whose appointment had already been made on specific terms and conditions. And thirdly without explicit prayer for declaration to strike down the statutory provisions relating to, the regular appointment in BPS-17 qua Civil Judges/Magistrates, as ultra vires the constitution, it is legally not possible to grant relief on the basis of this contention. 8. In the circumstances, we are of the view that the petitioners are not legally clothed with a right to enforce a right not vested in them nor can they compel the performance of a right not yet born on the premises which do not exist either in point of fact or law. The petitioners stand bereft of such a right from its inception. 9. Be that as it may no statutory duty is involved nor any legal right is being enforced nor indeed performance of a public duty is being claimed, therefore, in our opinion, a writ of Mendamus cannot be issued. This writ petition being devoid of merit/substance is therefore dismissed in limine alongwith the C.M. (MYFK) Petition dismissed.
PLJ 1997 Peshawar 251 PLJ 1997 Peshawar 251 Present: SARDAR MUHAMMAD RAZA, J. ABDUL HAQ-Petitioner versus ALI AKBAR etc.-Respondent Civil Revision No. 88 of 1992 dismissed on 12.9.1997. Civil Procedure Code, 1908 (V of 1908)-- S. 155~Limitation Act, S. 20-Redemption of mortgaged land-Suit for- Decreed to~Appeal dismissed-Revision against-No revenue Court, how high so ever in its heirarchy, had authority of ignoring findings of civil Court concerning title-Mortgage is created in circumstances when owner parts with possession and income of land under most pressing demand for money-Mortgagee annually and some time twice a year receives price of parting with capital and hence, fulfils all ingredient of interest-Right of rightful owner should service and one who has enjoyed possession and produce and has recovered his amount manifold should not be allowed to get away with land as well-Petitioner came into picture as mortgagee on l-12-1944~it was redeemed on 11-12-1944 by bringing two other persons as mortgages in addition to petitioner-So it was a new contract giving, fresh start of limitation~On 7-2-1948, mortgage was redeemed from all three.persons and once again mortgaged to petitioner, with increase of charge as well-It was a novation of contract because old mortgages were ousted and thereafter new mortgage was created-Where, mortgaged land is in possession of mortgagee, receipt of rent or produce of such land under section 20(2) of Limitation Act is deemed to be a payment on account of a debt or of interest u/s 20(1) of that Act, and amounts to an acknowledgement, giving fresh time of limitation; provided such receipt of rent or produce is before expiration of prescribed period of limitation- Held, with existing circumstances, no period of Limitation would run against mortgagor at all beyond one year-Property can be redeemed at any stage-Held further, when mortgagee is in possession of mortgaged property and in receipt of usufruct, such receipts are treated as payments to mortgagee for purpose of limitation regardless of what intention of party receiving produce may be or might have been-Simple possession of mortgagee and receipt of rent or produce by him are sufficient ingredients to constitute absolute acknowledgement-Mortgage in hand was rightly ordered to be redeemed-Petition dismissed with Costs. [Pp. 253, 254 & 255] A to K Haji Ghulam Basit, Advocate for Petitioner. Qazi Muhammad Ilyas, Advocate for Respondents. Date of hearing : 11.1.1997. judgment The dispute in the instant case is about the prescription of title by the mortgagee who claims that the title of the mortgagors stands extinguished with the lapse of sixty years without redemption of mortgage. 2. One Zabar Dast Khan being the owner had created the instant mortgage in favour of Rahmatullah vide Mutation No. 197 dated 19.4.1918 against a sum of Rs. 100/-: The property, then measuring 53 Kanals 11 Marias situated in old Khasra No. 184 is located in village Mari Shah Wali. Abdul Haq son of Mir Alam of village Hamsheian happens to have attained the rights of a mortgagee while Ali Akbar son of Muhammad Khan of Hado Bandi and others happen to be have attained the rights of a mortgagee while Ali Akbar son of Muhammad Khan of Hado Bandi and others happen to be the owners/mortgagors. Abdul Haq mortgagee filed a Suit No. 101/1 in the year 1979 claiming prescriptive title to the suit land but his suit failed before the learned Civil Judge Mansehra on 5.2.1980 as premature. His Appeal No. 73/13 also failed before the first Appellate Court on 6.5.1981. 3. Ali Akbar etc, the mortgagors on the other hand applied for restitution/redemption of the suit land before the Collector but the application was dismissed on 7.10.1982, holding that the mortgagee had become owner thorough time barred mortgage. His appeal before Additional Commissioner and revision before the Board of Revenue also failed on 7.8.1984 and 7.11.1987 respectively. 4. Another round of litigation started when Ali Akbar etc the owners filed a Civil Suit No. 54/1 on 27.1.1988 challenging all the decisions of the Revenue hierarchy being unlawful and without jurisdiction. Such suits was decreed by the civil court on 19.2.1991. The appeal of Abdul Haq mortgagee failed before the learned Additional District Judge Mansehra on 11.1.1992 and hence he has come up to this Court in revision under section 115 C.P.C. 5. Decisions of civil court dated 5.2.1980 in Civil Suit No. 101/1 upheld by the first Appellate Court on 16.5.1981 in Civil Appeal No. 73/13 and not challenged any further, had become final in so far as the quest''"! of prescription of title by the mortgagee was concerned. Such title was categorically denied to the mortgagee by a forum which had the exclusive jurisdiction to adjudicate upon the Res and whose decision had already become final. The revenue court had no jurisdiction to hold otherwise. 6. A Civil Court is a court of universal jurisdiction and, with regard to mattes falling within its exclusive jurisdiction, its decision is final and biding upon all other forums. Acquisition or otherwise of title by prescription is a pure question of title and any finding whereon given by civil Court, having become final as well, was an absolute determination of rights between the parties. No revenue court, how high so ever in its hierarchy, had the authority of ignoring the findings of civil court concerning title. The Collector, the Additional Commissioner and the Board of Revenue thus acted without jurisdiction and their finding were rightly set aside. The impugned judgments of the civil courts do not therefore require to be interfered with. 7. Coming to the question of mortgage, we must reflect that it is created in the circumstances when the owner parts with the possession and income of land, obviously, under most pressing demand for money. No doubt it is his demand which result into creation of a mortgage yet one hard reality is always over looked that just one moment of weakens of a need owner in exploited for a life time by the mortgagee. He enjoys the usufruct under the circumstances that the thing in his possessions increases in value in geometrical progression while his money with the mortgagor devalues in arithmetical progression. Soon the mortgagee recovers the amount from the produce that he receives and still receives his original amount back at the time of redemption. He annually and some time twice a year receives the price of parting with capital (the principal amount being in tact) and hence fulfils all the ingredients of interest. 8. In the wake of these circumstances and in view of what has been held in Maqbool Ahmed vs. The Government of Pakistan" (1991 SCMR 2063) we should realise that the interpretations have tended towards a change which is more akin to natural justice and Quranic ideology. 9. Mortgage, the subsistence thereof and prescription of title by mortgagee, are the conditions that militate against the right of a rightful owner, therefore, the courts of law which also are the courts of equity, should construe various transactions concerning mortgagee is such a liberal way that the right of rightful owner survives and the now who has enjoyed the possession and produce for nearly sixty years and has recovered the amount manifold, should not be allowed to get away with the land as well. 10. Keeping this principle in mind, we revere to the original mortgage in hand which admittedly was created through Mutation No. 197 on 19.4.1918. The title under which the parties shine, is also admitted. Matter came before the courts of judicial hierarchy four times and every time it-was held that through Mutation No. 823 and 823/1 of 11.12.1944 it was redeemed and recreated and subsequently through mutations No. 13 and 14 attested on 7.2.1948, a novation of contract had taken place and a fresh period of limitation had started, thereby rendering the prescriptive claim as premature. 11. We believe that a receipt of mere additional charge on mortgage does not necessarily amount to a novation of contract but it certainly does if the parties intend so to do with their mutual agreement or when the circumstances give a clear indication thereof. So was it held long ago in Nazif vs. Abdul Ghaffar (PLD 1966 Supreme Court 267). 12. Abdul Haq petitioner mortgage came into picture for the first time by purchase of mortgagee rights through Mutation No. 822 attested on 1.12.1944. It was redeemed through Mutation No. 823 of 11.12.1944 but this mutation though entered of "Fak Tekmeeli" (or Fak-e-Farzi as described in PLD 1966 SC 267) and additional mortgage amount through charged yet it cannot be treated merely that of "Fak Takmeeli" because new mortgage vide mutation No. 823/1 was created by bringing in two other persons as mortgagees in addition to Abdul Haq. So, there is no reason as to why it should not be called as a new contract giving fresh start to limitation. Similar was a change in the number of parties and area involved when vide Mutation No. 13 of 7-2.1948, the mortgage was redeemed from all the three persons and once against mortgaged to Abdul Haq petitioner with the increase of charge as well. There is no reasons why this also should not be interpreted as novation of contract because in addition to additional charge, the old mortgagees including Abdul Haq, were ousted and thereafter new mortgage was created in favour of petitioner. 13. Right from first litigation between the parties upto the last, one very important aspect of the case happened to lose sight of every one. Let us advert to the original creation of mortgage through mutation No. 197 attested on 19.4.1918, the copies whereof are on record as Ex. P.W. 1/11. The unsufructuary mortgages are known and are entered in revenue record as "Rehn-ba-Qabza !1 . This is the only term known to revenue officials describing such mortgages. The mortgage in question, as per ColumiLNo. 13, was entered on the basis of a Daily Diary No. 381 dated 12.4.1918, the gist whereof is reproduced in Column No. 15, to the effect that "Zebar Dast Khan and Ghulam Khan owners got entered in the Daily Diary that land Khasra No. 184 measuring 53 Kanals 11 Marias is mortgaged in favour of Rehmatullah son of Nasirullah against a sum of Rs. 100/- as mortgage amount with right of cultivation (Rehn-haq-e-Kasht) on payment of l/3 rd share of 'batai' without hay and Stalks Mortgage amount is received and possession delivered 14. The aforesaid peculiar and specific entries are quite distinct and completely different from entries of a normal 'Reh-ba-Qabza' mutation. The contract between the parties and the conditions thereof are glaringly visible. The mortgagee has a right to cultivate and a specific share of produce (excluding Hay and stalks) is ear-marted. Such entry continues repeatedly ( and consistently in almost all relevant Jambandis and all subsequently relevant mutations concerning the mortgage. Where, montaged land is in possession of the mortgagee, the receipt of the rent of produce of such land under section 20(2) of the Limitation act is deemed to be a payment on account of a debt or of interest under section 20(1) of the Act and amounts to an acknowledgement, giving fresh time of limitation; or voided such receipt of rent or produce is before the expiration of prescribed period of limitation. 15. As mentioned earlier, the mortgage in hand is created and continues throughout under the conditions that squared fall within the parameter contemplated by sub-section (2) of Section 20 of the Limitation Act and hence amounts to acknowledgement under section 20(1) of the Limitation Act; which acknowledgment is repeated with every crop every year, if not twice a year. Thus, with the existing circumstances, no period of limitation would, run against the mortgagor at all beyond one year. The property can be redeemed at any stage without the mischief of the law of Limitation bearing redemption after the passage of sixty years. 16. When mortgage is in possession of the mortgaged property and in receipt of the usufruct, such receipts are treated as payments to the mortgagee for purposes of limitation regardless of what the intention of the parly receiving the produce may be or might have been. Subsection (2) of Section 20 of the Limitation Act does not expressly refer to the intention of such parly. Particular insertion of subsection (2) in Section 20 and the specific words thereof make it altogether self contained and even independent of the proviso preceding it concerning handwriting or signature of the person making acknowledgment. Simple possession of mortgagee and the receipt of rent or produce by him are sufficient ingredients to constitute | absolute acknowledgment. 17. For all such reasons, the mortgage in hand could never become time barred, it was rightly ordered to be redeemed. The revision petition is hereby dismissed, with costs. (MYFK) Petition dismissed.
PLJ 1997 Quetta 1 (DB) PLJ 1997 Quetta 1 (DB) Present : / MUNAWAR AHMAD MlRZA, CJ AND IFTIKHAR MUHAMMAD chaudhary, J. SENATOR DR. ABDUL HAYEE-Petitioner versus GOVT. OF PAKISTAN through SECRETARY MINISTRY OF PETROLEUM AND NATURAL RESOURCES ISLAMABAD and 3 others- Respondents C.P. No. 176/1996, decided on 10.10.1996. (i) Constitution of Pakistan, 1973-- - Art. 199 read 184 (1) (3)--Jurisdiction--Question of-Whether after riling of civil suit by Provincial Government of Balochistan against Federal Government of Pakistan, present proceedings (Constitutional Petition under Article 199) stand terminated, within perview of Article 184 (1)(3) of Constitution-Question of-There is no expi-ess provision which excludes High Court from exercising jurisdiction in a matter which is prior in time and was already subjudice, before filing, civil suit by Provincial Government-There is no doubt about it that a private party is debarred to seek remedy before Hon'ble Supreme Court under Article 184 of Constitution and except approaching High Court under Article 199, no other remedy is available to him, therefore, relief cannot be denied to him, merely for reason that another party, subsequent to filing of instant Constitutional petition has invoked original jurisdiction of Honble Supreme Court-Held : Exclusory clause incorporated therein debar jurisdiction of any other court, where dispute is in between any other or more Governments and in such events no other court shall exercise jurisdiction-Howewer, where there are private parties, remedy is available to them, to seek relief before eveiy other court, functioning tinder ordinary law as well as Constitution and as on factor of priority in time, instant Constitutional petition was subjudice, when subsequently Prpvincial Government, instituted civil suit against Federal Government of Pakistan, without joining petitioner and remaining private respondents, as party, therefore, instant proceedings cannot be terminated. [Pp. 27 & 29] I, J & L (ii) Constitution of Pakistan, 1973-- Art. 184 (1) and (2)-Jurisdiction-Question of-On bare perusal of sub- Article (1) of Art. 184 of Constitution, it emerges that exclusory clause has been inserted therein to bestow original jurisdiction upon Hon'ble Supreme Court of Pakistan, concerning dispute between any two or more Governments-It is manifest that Framers of Constitution, with intent to provide an exclusive Judicial Forum to Federating Units and Federation itself, to settle their disputes, has conferred original jurisdiction upon Hon'ble Supreme Court, to pronounce Declaratory judgments, in terms of Sub-Article (2) of Article 184 of Constitution-Apparently object and aim of conferring such jurisdiction upon Hon'ble Supreme Court is that within frame-work of Constitution, at any juncture, when two Federating Units i.e. Provincial Governments or Federation itself are at variance on any particular point, High Court functioning within Province, would not be in a position to effectively resolve dispute, especially for want of territorial jurisdiction. [P. 29] K (Hi) Words and Phrases- The Oxford Encyclopedic English Dictionaiy, P. 495. Exclusion: The act or an instance of excluding the state of being excluded. Exclusion Order: An Official order preventing a person (esp. a suspected terrorist) from entering the UK. [P. 22] D (iv) Words and Phrases- West's Legal Thesaurus/Dictionary, Special Delux Edition by William Stateky, P. 293. Exclusion: Denial of entry or admittance (the exclusion of evidence). Ban, rejection, dismissal, nonadmission, preclusion, prohibition, disallowance, elimination, omission, exclusion, purge, segregation, repudiation, boycott, bar, non-acceptance, banishment, blackball, eviction, prevension. See also exception (2), romoval. [P. 22] E (v) Words and Phrases-- -CORPUS JURIS SECUNDUM Vol. 33. P. 112: Exclusion : The act of excluding or shutting out, whether by thrusting out or by preventing admission ; a debarring rejection; extension; prohibition; rejection. In the plural, the word has been defined as meaning things barred and not admitted. [P. 23] G (vi) Words and Phrases- Legal Thesaurus/Dictionary by William Stateky page 294. "Exclusive: Not allowing others to participate; belonging to one person or group (exclusive possession). Restricted, closed limited, selective, sole, private, personal individual, shuttingout, unique, complete, entire, whole, all, total, Ant. Unrestricted. [P. 22] A (vii) Words and Phrases- -Oxfort Encyclopedic English Dictionaiy page 495, column 2; Exclusive: 1 excluding other things. 2. not including; except for, 3 tending to exclude others, esp. socially select. 4 catering for few or select customers; high class, 5a (of a commodity) not obtainable elsewhere, b (of a newspaper article) not published elsewhere, 6 restricted or limited to; existing or available only in, 7 (of terms etc.) excluding all but what is specified. 8 employed or followed or held to the exclusion of all else (my exclusive occupation; exclusive rights), an article on stoney published by only one newspaper or periodical, Exclusive Brethren a mere exclusive section of the Plymouth Brethren, exclusively exclusiveness exclusivity. [P. 22] C (viii) Words and Phrases- Black's Law Dictionary Sixth Edution page 564, column 1 & 2. Exclusive, Appertaining to the subject alone, not including, admit ting, or pertaining to any others, Sole, Shutting out, debarring from interference or participation, vested in one person alone. Apart from all others without the admission of others to participation, people on complaint of samboy V. Sherman, 158 N.Y.S. 2d 837. [P. 23] H (ix) Words and Phrases- Exclusively: Apart from all other (exclusively used for chartiable purposes). Only solely, substantially all, for the greater part, to the exclusion of all others, fully, entirely, completely. [P. 22] B (x) Words and Phrases 'Words And Pharases, Permanent Edit on ISA, P.179: "Exclusively" since "wholly" is but a synonym of "exclusivity," ts definition being to the exclusion of other things"; and hence, where the use made of city property has direct reference to the purposes for which it was authorized to be owned and held, and tends to directly promote such purposes, such use is within the provision exempting the property from taxation, though revenue or profit is derived from it. [P. 23] F M/s. Muhammad Aslam Chishti and Mian Saqib Nisar, Advocates for Petitioner. M/s Abdul Hafeez Pirzada, Muhammad Riaz Ahmad, Zahid Hussain Burhani, Advocates, Mr. Yaqoob Khan Yousuf Zai A.G. and Raja Rob Nawaz DAG ofPakistan for Respondents. Date of hearing: 7.10.1996. judgment Munawar Ahmad Mirza, C.J.--The facts giving rise to present Constitutional Petition briefly stated are, that large deposits of petroleum and gas fields exist in various parts of Balochistan, Functions, concerning exploration and production of petroleum or gas is controlled and regulated by Ministry of Petroleum and Natural Sources. Pakistan Petroleum Limited (hereinafter referred as "PPL") a Company registered under the Companies Act 1939 (presently Companies Ordinance, 1984) is engaged in exploration, production and transmission of petroleum and gas within the country. This company is sole lessee and operator of Sui-Gas field in Balochistan, besides having considerable interest in gas fields located at Qadirpur, Kandh Kot, Adhi, Kandra and Mazarani covering more than 50% supply of gas within Pakistan. 2. It is the case of petitioner that Burmah Castrol pic a public limited company incorporated in UK (formerly known as Burmah Oil Company) was also engaged in exploration and production of Petroleum and Gas at different places since last Century, Burmah Castrol pic, is majority shareholder of P.P.L. in Sui-Gas Project. Respondent No. 4 (Hashoo Holdings (Pvt.) Ltd.) is a private Company incorporated in Pakistan under the Companies Ordinance, 1984, primarily interested towards hotel industiy, but has started participation in the exploration of several petroleum and gas fields. 3. Averments in the petition expressly suggest that Hashoo Holdings are intending to acquire from Burmah Castrol its shares in P.P.L. by resorting to various collusive and maiafide measures. Petitioner has also referred to indirect arrangement regarding manipulation of acquiring 7% shares of P.P.L. in Qadirpur Gas Field by "Hashoo Holdings" through Australian Company known as Broken Hill Property. Relevant details necessary for determination of controversy between the parties, are mentioned in Paras "(6) to (10)" of Constitution Petition which are reproduced hereunder:-- "6. That in order to under stand the hackdrop to the present transaction it is necessary to refer to a very important development which took place in 1981. At that time P.P.L. needed to finance the installation of a gas compression plant. As Burmah Castrol refused to introduce fresh equity the Government of Pakistan arranged a loan from the IFC and guaranteed repayment, This was done under the terms of Gas Price Agreement which the Government signed with Burmah Castrol. This Agreement provided that: (a) All cash inflows from all of P-P.L's operations would be lumped together. The Government would set the gas price for sui. thereby determining revenue. It would then deduct operating expenses, debt servicing, cash dividend to share-holders, payment of royalties, corporate income tax, etc. The balance would accrue to the Government of Pakistan as Gas Development Surcharge (hereinafter referred to as "GDS") (b) The dividend paid but by P.P.L. to Burmah Castrol was fixed at 22 \ c
t. This was later increased to 25% thereby currently giving Burmah Castrol an annual dividend of Rs. 60 million. 7. That under the terms of the loan agreement between P.P.L., IFC and the Government of Pakistan Burmah Castrol would require a No Objection Certificate from the Government of Pakistan before it could sell its shares in P.P.L. 8. That under Article 161 of the Constitution, all royalties in relation to gas, go to the Provinces. The GDS (which is far greater than the royalties) is dividend between the Federal Government and the provinces in accordance with the terms of a National Finance Commission Award. Under the current award the Provinces get 99% and the Federal Government gets 1% as handling charges. 9. That currently the Government sets the producer price at which gas producers can sell their gas to the gas distribution companies namely Sui Northern Gas Pipelines Ltd. and Sui Southern Gas Co. The Government also sets the seller price at which SNGPL and SSGC sell the gas to the final consumer. 10. That P.P.L. owns a 7% share in the Qadirpur gas field which is the second largest gas field in the country. Therefore P.P.L. gets 1% of the gas produced there. It then sells this gas, alongwith the gas it gets from other fields. Then, in accordance with the terms of the 1981 Agreement referred to earlier, its production costs, royalties, taxes, and then Rs. 60 million divided in substracted from the revenue it gets and the balance is given to the Government of Pakistan as GDS. Last year this came to Rs. 7 billion (out of which Rs. 300-400 million came from the Qadirpur gas field. The important point to note is, of course, that although Burmah Castrol, the majority share holder of P.P.L. only receives Rs. 60 million, it is the Government which is the main beneficiary to the extent of 7 billion. It is this entitlement which is now in question because of the illegal and malafide acquisition of Burmah Castrol's shares by the Hashoo Group and B.H.P. 4. Petitioner depicting various aspects of national interest, expressed that after certain limit, under regulatory ^obligations profits eventually, stand transferred to Federal Government through 'P.P.L.' which is maximum and lucrative source of national exchequer. However, for any reasons if complexion, control and management in the existing Company, is changed; same would adversely affect the economy causing devastating results to nation. The assertions made in the petition further disclose that Burmah Castrol during 1986 attempted to sell its share in pic through 'Shell and National Petroleum; but Government of Pakistan declined to grant 'No Objection Certificate'. Again in 1992 efforts were made when The Saudi Baraka Group and Premier Consolidated Oil fields (a British Company) reportedly gave an offer of 16 million pounds when conditional 'No Objection Certificate' was also issued; but Hashoo Holdings, filed Constitution Petition No. 664/1992 before Sindh High Court challenging legality of such sale ainly on the ground that permission from Council of Common Interest" had not been obtained as contemplated by Article 154 of the Constitution. In this back ground petitioner Dr. Abdul Hayee has specifically averred that Hashoo Holdings without fulfilment of mandatoiy requirement contained in Article 154 of the Constitution, is clandestinely negotiating for purchase of share from Burmah Castrol, which thus has no sanctity. 5. It is alleged that transaction regarding sale of 7% PPL in Qadirpur gas field by Broken Hills Property, which forms part of No Objection Certificate subject matter of challenge, in this petition was placed before The President of Pakistan, who strongly objected to its propriety through a letter dated 4th January, 1996, copy whereof has been placed on record as Annexure 'B'. Some of the extracts from said letter, correctness whereof was not challenged by respondent No. 1 having relevancy to the dispute are reproduced below :-- "Para-1 .............................................................................. Para-2 ...................................................................................................... (a) .......................................................................................................... (b) .......................................................................................................... (c) Is the Hashoo Group really appropriate or qualified for the transaction? The seller i.e. Burmah Castrol does not appear to have discussed the transaction with Hashoo Group. Does Hashoo Group possess the required experience, track record and management depth to justify this level of responsibility? After all the deal if it goes through will place half of the countries total gas resources in the hands of one inexperienced private group which has only recently entered the Oil/Gas business. It could have important monopolistic implications leading to potentially and significantly higher prices for the consumers and resultantly low receipts of gas development surcharge revenue for the government. (3) The sale of Burmah Castrol interest in Qadirpur Gas Field i.e. BONE TO BHP is unrelated to an end out side the P.P.L. transaction. However how is bn it in Pakistan 's interest to agree to PPL's 7% share holding in Qadirpur Gas Field to be sold to BHP ? 2/3 The Burmah Castrol sale of BONL to BHP may have been prompted out of distress situation. As the ECC Summary brings out Burmah Castrol is no longer interested to continue to operate in Pakistan, since they have withdrawn from all international exploration and production operatives. But PPL is under no such disress PPL ownership of Qadirpur Gas Field acts as an important cashion for government and contributes significantly to the Gas Development surcharge accruing to the government. The gas Development Surcharge amounted to over Rs. 8 billion in 1994-95. Of this almost Rs. 7 billion came from PPL from its Sui Kandh Kot and Qadirpur Gas Field operations. Qadirpur contributed between Rs. 300 to 400 million in 1994-95. Removal of Qadirpur from PPL shares will immediately impaction of Gas Development Surcharge and place an upward pewaauew on gas prices to the consumers. This will have highly adverse political and revenue implications for the provinces. (e) (f) (g) The importance of any assurance from BHP/Hashoo Group in the matter of gas pricing is equally flawed. It is well known that the Government of Pakistan and International Finance Corporation (IFC the World Bank affiliate) signed a Memorandum of Understanding on Natural Gas Pricing issue about a year ago. The IFC have proceeded to approve a major loan to provide the bulk of financing for PPL's US $80 million Compression project currently under implementation. Any assurance which cut across this Memorandum understanding could expose the Pakistan Government to acting in bad faith. In any event reliance on any such new assurances on natural Gas pricing issue are not credible or consistent with arrangements with IFC already in place. (h) .............................................................................. (j) At a fiture date, say in 8 or 10 years time, the Sui Gas fields could be called upon to serve, as an important potential reservoir for gas storage for the country in the event one or more of the gas imports schemes get implemented. It would be in Pakistan's interest to retain the maximum operations so that strategy and policy with regard to this field remain free from interference from any private group acting in its own narrow economic interests. 3. The ECC should have considered the points and implications noted above. The ECC should also have considered this matter in the light of the broad strategy approved by the Cabinet and the Government's Petroleum Policy. I would like to invite their attention also to my note under the subject "Revitalization and re-structuring of Oil & Gas Development Corporation (PGDC)" sent to the Prime Minister under No. 1411/1/President of 10 October, 1994, especially para (vi) wherein I had stated that Oil and Gas Fields already discovered and in production should as a matter of principle never be framed in whether through joint venture partners or otherwise. The recommendations made in that note had subsequently been approved by the Cabinet. 4 5 6. If such an arrangement were to be worked out, the Government of Pakistan would have 82.6% shares and IFC 17.05% Under such circumstances Government and IFC could reach an agreement within (illegible) or so would bring about a major and fundamental restructuring of PPL, with the aim of ; reserving it as an ongoing, independent and professionally managed undertaking. This would also allow existing share holders of PPL (which includes the government) to obtain a fair market value for this asset. Other element of restructuring could include both government and IFC divesting the additional shares accruing to them from purchase of Burmah Castrol shares. Such a divestiture could provide for sale of some of the shares to the employees, induction of a reputable technical partner and a major floatation ; n Pakistan or in the Foreign Capital Market with suitable safeguards to insure widest dissemination. Since the ECC meeting ft 18 December, 1995 was held in absence of the Prime Minister and in fact chaired by the Advisor 'Finance), It will be appropriate if this note is brought to the notice of the Advisor (Finance) and he also be asked to place it before the Prime Minister who could have the entire matter reviewed in the light of the points made above". 6. Petitioner thus attempted to emphasize that by raising objections the President of Pakistan also proposed to the Government of Pakistan to purchase share of Qadirpur gas field from Burmah Castrol pics., in Pakistan Patroleum Limited. Evidently Sui-Gas field is vaster than Qadirpur gas fields and source of providing enormous benefits to public and government. It is alleged that letter of President referred to above highlights extra ordinary damage to the economy of the country pursuant upon proposed sanction for selling Burmah castrol shares in PPL to any other private company. Considering repercussions the Baluchistan Assembly through unanimous resolution passed in June, 1996 has expressed that any transaction regarding sale of Burmah castrol in P.P.L. to private entrepreneur shall seriously harm the interest of province. Petitioner also strongly objected to the grant of sanction for sale, without approval by the "Council of Common Interests". Genuine fear about adverse effect on the future generation and economic conditions of Balochistan Province, if sale is permitted to any private 'entrepreneur' was felt. Contents of petition further elucidate back drops of real grievance for invoking Constitutional jurisdiction, which appears in Paras "30 to 37" and are reproduced below : "30. That the consequences of the proposed deal with be that the country's gas reserves will be handed over to an untested group which has entered this sector only within the last three years. This is an aspect which has caused concern to the President. In this letter at Para 2
he asks. "Is the Hashoo Group really appropriate qualified for the transaction?...Does Hashoo Group possess the required experience, track record and management depth to justify this level of responsibility? After all the deal if it goes through will place half of the country's total gas resources in the hands of one inexperienced private group which has only recently entered the Oil/Gas business. It could have important monopolistic implications leading to potentially and significantly higher prices for the onsumers and resultantly low receipts of gas development surcharge revenue for the government". 31. That one of the reasons for giving the Government the power to block any transfer of Burmah Castrol's shares in P.P.L. was so that the Government could ensure that only a technically competent and financially sound company should buy the shares and hence get control of over 50% of the nation's gas reserves. It is submitted that the Hashoo Group manifestly does not come up to the required standards. The Hashoo Group is run by Mr. Hashwani. In a debate in the National Assembly on June, 10, 1996 on this proposed deal, the House was informed of the followingfacts about Mr. Hashwani by the Opposition. He is a bank defaulter to the tune of Rs. 1.7 billion. He has been served notice by the authorities for evading taxes of Rs. 180 million in his Pearl Continental operations He has been accused of tax evasion of Rs. 10 Million in Exide. duty evasion of Rs. 4.4 million in Premier Tobacco. Finally he owes U.S $20 million to Habib Bank, New York. 32. That if P.P.L.'s current management is replaced by the Hashoo Group which is inexperienced in managing such a large concern, it may well be the case that there is a drastic fall in P.P.L.'s efficiency. This would firstly result in a fall in the gas supply in the country at a time when supply is barely sufficient to me the existing needs. Secondly this will adversely affect the realization of the Gas Development Surcharge. Given that in 1994-95 almost Rs. 7 billion of the Gas Development Surcharge came from P.P.L. from its Suit, Kandh Kot and Qadirpur gas field operations, it is very clear that huge sums of money are involved. Responsibility for realizing these sums would be given to the Hashoo Group, without the Government of Pakistan having any effective system of control to protect the national interest. And this is despite the fact that the Government is aware that Mr. Hashwani the person in charge of the Hashoo Group, has apparently defaulted on his loans to the extent that he owes Rs. 1.7 billion. As if this were not enough, he is in addition and alleged tax evader. And this is the person, whom the Government in its wisdom, feels is trustworthy enough to handle billions of rupees belonging to the nation. 33. That since the Government of Pakistan holds 29.41% shares in P.P.L., a fall in productivity and hence profitability would obviously be detrimental to government revenue. This is an additional reason to block the deal. 34. That giving the NOC to Burmah Castrol for the sale of its shares in P.P.L. to the Hashoo Group would result in a single group's gaining control of over 50% of the country's gas reserves. It will thus have a stranglehold over the country's energy resources. This is clearly a potentially disastrous scenario for the nation. 35. That in his letter the President (at para (h) had also stated that in case there was a change in the producer pricing mechanism of P.P.L. there would be a potential windfall profit of U.S $150-200 million per year. He has voiced the apprehension that given this fact, the Government will continuously find itself under pressure to change to existing pricing. At this point it would be pertinent to look at some of the arguments advanced by the Hashoo Group when they were urging the Government not to sell P.P.L. to the Premier-Al Baraka consortium. In a letter to the Secretary, Ministry of Petroleum and Natural Resources, they stated: "It is also not quite understandable as to why the Premier-Al Baraka consortium is interested at all in acquiring shares in P.P.L. given the "cost-plus formula" generally considered to be rather unattractive to foreign companies. It seems that the real interests of the Premier-Al Baraka consortium lies in enhancing the costs or in the Rs. 2.350 billion reserves of the P.P.L. which appears an attractive proposition to any foreign entity wishing to employ them in the payment of (excessive) managerial and technical fees. Allowing that can hardly, however, be considered in the national interest.... ................................... Once they (the Premier-Al Baraka consortium) are allowed to acquire controlling shares in P.P.L. they would only be in a stronger position to, and almost certainly will, ask for a revision of the 'cost plus' formula, since they would then be controlling energy reserves of great strategic importance to Pakistan. It is submitted that all these factors are applicable with equal force to the Hashoo Group, their disclaimers notwithstanding. 36. That interestingly in 1992-93 when the Hashoo Group was opposing the sale of Burmah Castrol's shares in P.P.L. to the Premier-Al Baraka consortium one of its main objections was that this decision could only be taken by the Council of Common Interests. In the aforementioned letter they stated : "The matter fal's in terms of the "Constitution, exclusively within the jurisdiction of the Council of Common Interest, and no other authority is competent to take decision in respect thereof. The proceedings before the Secretary Ministry of Petroleum and Natural Resources, Government of Pakistan, thus amounts to an exercise in futility and coram non juiUcc ..a meeting of the Council of Common Interests should be convenied for a consideration of and decision in the matter" The mala fide of the Ilashoo Group aic therefore beyond doubt. 37. That further more as the- President pointed out in para 2(j) of his letter at a future date the Sui-Gas fields could be needed as a reservoir fcr storing imported gas. It would not then be in the national interest to restrict the Government's options in this field It should be noted that the Government has signed separate deals with Qatar , Iran and Turkmenstan for the supply of gas to Pakistan via pipelines. These pipelines will become operational in about then years time. The Government of Pakistan is committed to pay for a fixed amount of gas regardless of whether or not it actually takes this gas. Given the fact that demand is significantly lower in summer than it is in winter, the Government will almost certainly have large amount of surplus gas during the summer. It. will then have to either return the gas which it is receiving via these piplmes even though it will have paid for this gas, or it will have to store it in some reservoir and then use it during the winter when it will be needed. One of the options being seriously considered is to store this foreign supplied gas at Sui. Obviously if the Sui gas fields are owned by a private party they will be in a position to charge an exorbitant fee and thur pivfit at the nation's expenses." 7. Petitioner alleged that despite disclosure of serious adverse affect to the country's economy and consumers of the Sui Gas, the fellow conspirators of "Hashoo Holdings" in connivance with certain government functionaries by flagrantly violating the requirements of Constitution and law have manipulated No Objection Certificate for selling Burmah Castrol shares in P.P.L. to said private limited concern. Petitioner, a public representative being member of Senate from Balochistan and aggrieved from factors with led to grant of 'No Objection Certificate' for selling P.P.L. shares has approached this Court praying for following reliefs : (a) Declare that the decision to issue a N.O.C. for the sale of Burmaft Castrol's share in PPL and to permit the sale of P.P.L.'s 7% share in the Qadirpur gas field is contrary to law and of no legal effect. (b) Declare that the NOC issued by the Government is contrary to law and is null and void. (c) declare that only the Council of Common Interests can take decisions as to the sale of Bui mah Castrol's shares in PPL and as to the disposal of PPL's 7% share in the Qadirpur gas field. (d) Declare that if the Council of Common Interest, decides to dispose of the shares, then it can only be on the basis of open, fair and free bidding, or a public auction. (e) °Such other order as may be deemed appropriate by this Honourable Court. (f) Costs of the petition. Respondent No. 4 (Hashoo Holding (Pvt.) Ltd.) filed rejoinder to interim injunction on 8.7.1996 rebutting broadly assertions regarding maneouvering the grant of N.O.C. Several preliminary objections were also raised. However, counter affidavit to main petition was submitted on 8th August, 1996. Maintainability of Constitution Petition was specifically challenged on the ground that : (i) petition is not an aggrieved person ; (ii) No Objection Certificate was issued by the Government in exercise of executive discretion which is not justiceable; (iii) grievance pertaining to Qadirpur Gas field falls beyond the territorial jurisdiction of Balochistan High Court; (iv) Petitioner has not approached with clean hands; (v) Controversy relates to benefits of commercial transaction between private parties which is not amenable to judicial review. Detailed factors justifying propriety and bonafide of purchasing shares of Burmah Castrol in P.P.L. by Hashoo Holdings were explained. It was specifically mentioned that respondent No. 4 is reputable company carrying progressive and successful business through actively participating in Petroleum exploration production and transmission. Hashoo Holdings enjoys comprehensive management and high technical expertise for petroleum and gas exploration. Respondent No. 4 strongly disputing the assertion in Constitutional Petition elucidated that Hashoo Holdings being a Pakistan Based Company is most suitable for economic emancipation in the country and would be more watchful to the benefits of consumers. Allegations regarding malafide, manipulation, or conspiracy were explicitly repudiated. 8. Raja Rab Nawaz, learned Deputy Attorney General filed parawise comments on behalf of respondent No. 1 towards 8th August, 1996. Preliminary Objections regarding maintainability of Constitution Petition were raised. It is the case of respondent No. 1 that N.O.C. was issued under Rule 68 of Pakistan Petroleum (Exploitation and Production) Rules, 1986 by complying with requisite formalities. Assertions relating to collusion or malafide of Federal Government or its functionaries were strongly refuted. The stand of respondent No. 4 (Hashoo Holdings (Pvt.) Ltd.) for carrying exploration in the field of gas and petroleum, however has not been disputed. The requirement proposed by IFC by laying condition to the existing 'costplus-formula' with its possible replacement by market related formula has not been accepted by giving explanation in its reply to paragraph 36. Accord-ing to the Federal Government, issuance of N.&.C. was merely regulatory and not policy matter. It is further mentioned that Government of Pakistan had no concern with commercial transaction amongst private parties. It may be pertinent to point out that genuineness of letter by the President, raising serious objections to the sale of Burmah Castrol share referred in the main Constitution Petition has not been specifically disputed. Subsequently on 27th August, 1996 two separate rejoinders to the counter affidavit were filed by the petitioner whereby averments in parawise comments of respondent No. 1 and counter affidavit of respondent No. 4 were expressly disputed re-affirming assertions made in the Constitution Petition. Objections raised by respondents regarding maintainability of petition were also opposed. 9. Respondent No. 2 through Chief Secretary Balochistan field reply on 17th September, 1996. It was pleaded that any potential change in gas prices will have adverse affect on the income of Balochistan keeping in view condition concerning transfer of gas development surcharge. According to stand of respondent No. 1, matter concerning grant of N.O.C. falls within the exclusive jurisdiction of Council of Common Interest and no other authority was competent for said purpose. It was further pleaded that to safe guard strategic national resource-base and ensuring maximum returns, if at all sale of P.P.L. shares in permitted, same should be transparent and profit oriented. Respondent further expressed necessity of associating the Provincial Government for any change of status regarding Sui gas field because same was main revenue generating source of income to Balochistan Province . Respondent No. 2 prominently pleaded that petition under Article 184 of the Constitution for settlement of issues with Federation has been filed before Honourable Supreme Court. Copy of Civil Suit No. 1/96 was also placed on record alongwith said reply. 10. Respondent No. 3 (Pakistan Petroleum Limited) filed written reply towards 8th August, 1996 through Mr. Zahid Hussain Burhani Advocate, explaining its obligation to transfer the shares when duly supported by transfer-deed. While answering paras 6 to 10, respondent No. 3 admitted execution of agreement with Federal Government on 28th July, 1982 where Burmah Castrol was not party. Salient feature of said 1982 agreement have also been enumerated. 11. On 17th September, 1996 after reply was filed by respondent No. 2 (Balochistan Province) Mr. Abdul Hafeez Pirzada, learned counsel for respondent No. 4 urged that on filing the suit by Provincial Government under Article 184 (1) (3) proceedings initiated by the petitioner (Dr. Abdul Hayee) stand terminated. Mian Saqib Nisar Advocate sought adjournment for examining this aspect being unaware about such plea regarding maintainability which initially was not raised in the counter affidavit. The matter-was however, postponed to 24.9.1994. Mr. Abdul Hafeez Pirzada counsel for respondent No. 4 and D.A.G. appearing for respondent No. 1 concluded arguments on 25th September, 1996. It was inter alia argued by respondent No. 1 that Burmah Castrol Oil Company was necessary party and petition merits dismissal for non-impleading the same. Mian Saqib Nisar Advocate confining himself to jurisdiction within the perview of Article 184(1) and (3) of the Constitution raised by respondent No. 4 concluded his arguments on 7th September, 1996. Similarly Mr. Yousuf Qasim Advocate for respondent No. 3. made submissions supporting his stand taken in written reply. Learned Additional Advocate General emphatically supported the petitioner. 12. Main thrust of arguments addressed by learned counsel for respondent No. 4 revolves around maintainability of present proceedings on filing of civil suit by Provincial Government of Balochistan invoking original jurisdiction of Honourable Supreme Court. It was urged that dispute between Federal Government and or any of the Provinces concerning any controversy is exclusively determinable by Supreme Court and none else. Learned counsel emphatically argued that word "dispute" occurring in Article 184 embraces potential and actual difference. He maintained that Balochistan Provincial Government has admittedly filed suit before Honourable Supreme Court relating to common question of law and fact, which according to him discloses 'Actual' and 'Tangible' dispute, therefore, jurisdiction of all other forums stand completely ousted. To supplement the submissions reliance was placed on observations contained in case, Khawaja Muhammad Sharif vs. Federation of Pakistan (1989 C.L.C. 13817). Learned Counsel added that original jurisdiction is comprehendable from every Us instituted for the first occasion before competent forum. Reference was made to observation of P.L.D. 1996 Supreme Court 543 (Brother Steel Mills Ltd. and others vs. Mian Ilyas Miraj and others). In this context it was canvassed that Article 199 of the Constitution can be resorted to only if no other alternate remedy is available to aggrieved person. Proper original civil jurisdiction vested in apex court having been invoked the extraordinary Constitutional petition ought to be terminated. Reliance was placed on the observations of Miss Benazir Bhutto vs. Federation of Pakistan and others (P.L.D. 1988 Supreme Court 416). Answering the objection raised by other side Mr. Abdul Hafeez Pirzada stressed that Honourable Supreme Court exercising original jurisdiction was competent to implead any party whose presence is necessaiy for effectual determination of real controversy. Therefore, provisions of Article 184(3) have to be read in conjunction with Order-I Rule 10(2) C.P.C. and Order-V rule 2(3) the Supreme Court Rules, 1956. Reference was also made to case of Murree Brewery Company Limited, and others versus The Province of Punjab and the Province of Sindh (Constitutional Petition No. 19 of 1995) decided on 28.5.1995 through agre2tnent arrived between them. Learned Deputy Attorney General had also challenged jurisdiction and competency of Constitution Petition on identical points. Additionally question regarding territorial jurisdiction was also passed. Placing reliance on (i) N.L.R. 1990 Civil 184 (Muhammad Jawaid Iqbal (Advocate) versus Pakistan Atomic Energy Commission. Locus standi of petitioner was also challenged referring to observations in case P.L.D. 1956 Federal Court page 72 (The Punjab Province vs. The Federation of Pakistan). Mr. Saqib Nisar learned counsel for petitioner vehemently opposing jurisdictional questions raised by respondents contended that scope for agitating dispute before Hon'ble Supreme Court under Article 184(3) is restricted only to specified parties. According to him controversy involving interest of private persons is not emanable to original jurisdiction of the Supreme Court. Learned counsel stressed hard that Constitutional provisions have supervening effect over other enactments. He maintained that any substantive law or sub-legislation cannot be imported for changing nature of dispute amongst parties specifically prescribed under the Constitution. Mr. Saqib Nisar laid emphasis for highlightening veriaiy of powers which may be exercised by competent court such as : (i) inherent jurisdiction (ii) territorial jurisdiction (iii) pecuniary jurisdiction (iv) when subject matter is exclusively specified (v) where parties for raising dispute or expressly nominated. According to him scope of Article 184 is circumvented between two or more Governments for resolving dispute of any nature. But competence of private person to invoke original jurisdiction under Article 184 of the Constitution is conspicuously excluded. Learned counsel also made reference to scope of original jurisdiction exercisable by Supreme Court envisaged in various Constitutions from the creation of Pakistan and comparing the same with American and Indian Constitution. 13. Now in the background of above circumstances we would like to refer below parallel provision from various Constitutions for ascertaining scope of real controversy emerging in the instant matter:-- Government of India Act, 1935. "204-(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other Court have and original jurisdiction in any dispute between any of the following parties, that is to say, the Federation, any of the Provinces if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends : Provided that the said jurisdiction shall not extend to:~ (a) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend to such a dispute. J (2) The Federal Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment." "Constitution of Pakistan , 1956 (Art. 156) 156(1) Subject to the provisions of the Constitution, the Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between :-- (a) the Federal Government and the Government of one or both Provinces: or (b) the Federal Government and the Government of a Province on the one side, and the Government of the other Province on the other; or (c) the Governments of the Provinces, if and in so far as the dispute involves :-- (i) any question, whether of law or of fact, on which the existence or extent of a legal right depends; or (ii) any question as to the interpretation of the Constitution. (2) The Supreme Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment." "Constitution of Islamic Republic of Pakistan, 1962 (Article- 57):-- 57(1) The Supreme Court shall to the exclusion of every other Court, have original jurisdiction in any dispute between one of the Governments and one or both of the other Governments. (2) In the exercise of the jurisdiction conferred on it by this Article, the Supreme Com! shall pronounce declaratory judgments only. (3) In this Article, "the Governments" means the Central Government and the Provincial Governments." "Article-184 Constitution of Islamic Republic of Pakistan , 1973. 184. (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments. Explanation.--ln this clause, "Governments" means the Federal Government and the Provincial Government. (2) In the exercise of the jurisdiction by clause (1), the Supreme Court shall pronounce declaratory judgments only, (3) Without prejudice to the provisions of Article 199, the Supreme shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article." "The Constitution of India Article, 131 131. Original Jurisdiction of the Supreme Court. -Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute :-- (a) between the Government of India and one or more States, or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, "The Constitution of the United States of America III. Section I. The juridical Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their offices during good behaviour, and shall, at stated Times, receive for their services a compensation which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority to all cases affecting Ambassadors, other public Ministers and Consuls, to all cases of admiralty and maritime Jurisdiction,- to Controversies to which the United States shall be a Party; to controversies between two or more States; between a State and Citizens of another State;-Between Citizens of different States;-- between citizens of the same State claiming Lands under Grants of different States, and between a State Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party the Supreme Court- shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The trial of all Crimes, except in cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. Treason against the United States , shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same Overt Act, or on Confession in open Court." 14. Brief survey of above quoted provisions of different Constitutions is helpful in fixing scope of Article 184 of 1973 Constitution. Article 204, Government of India Act 1935 regulates determination of dispute by Federal Court in exercise of its original jurisdiction; when same arises between Federation or any of the Provinces (involving law or fact) concerning existence or extent of legal right amongst them. The scope and authority of Federal Court under Article 204(2) is however, restricted for adjudicating upon and pronouncing judgments merely to claims of declatory nature and non-else. Besides, jurisdiction of Federal Court is explicitly barred with regard to agreement where its authority has been mutual!^ excluded. 15. Article 156 of the 1956 Constitution is mostly identical to Article 204 of the Government of India Act, 1935. However, scope of Article 156 has been enlarged to cover questions arising between Federation or Provinces concerning interpretation of Constitution. 16. Whereas Article 57 of 1962 Constitution is considerably narrow in its scope and application, merely envisages determination of dispute relating to declaratory nature between one or more Provincial Governments or the Federation. 17. Article 131 of Indian Constitution has slightly larger ambit, and provides authority to Supreme Couit for embracing all types of disputes arising between Federal Government or any more Provinces. However, factum of exclusivity and specification of parties, is obviously common in all the Constitutions referred above. Significance of dispute between specified parties has been elucidated in cases reported as (i) AIR 1970 S.C. 1446 (relevant para-11) and (ii) AIR 1984 S.C. 1675 (relevant para-12). Relevant paras are re-produced herein below :-- "AIR 1970 S.C. 1446 (Para-11). 11. Although Article 131 does not define the scope of the disputes which this court may be called upon to determine in the same way as Section 204 of the Government of India .Act, and we do not find it necessaiy to do so, this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up. However, there can be no doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly or jointly with another unit or the Government of India." AIR 1994 S.C. 1675 (Para-12) 12. On a careful consideration of the whole matter in the light of the decisions of this Couii referred to above, we feel that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the powers, rights, duties, immunities, liabilities, disabilities etc. etc. flowing therefrom. Any dispute which may arise between a State in the capacity of an employer in a factoiy, a manufacturer of goods subject to excise duty, a holder of a permit to run a stage carriage, a trader or businessman carrying on business not incidental to the ordinary functions of Government, a consumer of railway services etc., like any other private party on the one hand and the Union f India on the other cannot be construed as a dispute arising between the State and the Union in discharge of their respective executive powers attracting Article 131 of the Constitution. It could never have heen the intention of the framers of the Constitution that any ordinary dispute of this nature would have to be decided exclusively by the Supreme Court: It is well to remember that the constitutional proposals of the Sapru Committee advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction on the original side so that the Federal Court could act as an interpreter and guardian of the Constitution and as a Tribunal for the determination of the disputes between the constituent units of the Federation. The Joint Committee on Indian Constitutional Reforms was also of opinion that the object of conferring exclusive original jurisdiction on the Federal Court was that the dispute of the kind specified between the Federation and the Provinces as the constituent units of the Federation should not be left to be decided by Courts of law of a particular unit but be adjudicated upon only by the highest Tribunal in the land which would be beyond the influence of any one constituent unit. The Special Committee consisting of Sriyuts S. Varandachariar, Alladi Krishnaswami Ayyar, B.L. Mitter, K.M. Munshi and B.N. Rau appointed by the Constituent Assembly to consider and report on the Constitution and powers of the Supreme Court suggested "that the Supreme Court, like the Federal Court under the 1935 Constitution, would be the best available forum for the adjudication of all disputes between the Union and a unit and between one unit and another and proposed that the Court should have an exclusive original jurisdiction in such disputes. (Vide The Framing of India's Constitution--A Study by Shri B. Shiva Rao at p. 483). Considered in the light of the foregoing the conclusion becomes inevitable that disputes of the nature involved in this case could not have been in the contemplation of the framers of the Constitution when they adopted Art. 131 of the Constitution. 18. Article III Section 2 from American Constitution has a very large scope for resolving disputes of various natures between Federation, States and States or Citizens of no State and that of other. Therefore, same will be of little benefit for examining legal point involved in present petition. 19. Now examining afore-quoted parallel provisions from different Constitutions it is quite clear that Article 184 (1) of 1973 Constitution has broader scope encompassing jurisdiction for deciding any dispute. But Article 184 (2) conceives merely grant of declaratory judgment for variety of dispute which might crop-up amongst Federation and one or more Provinces. Nevertheless there appears community of feature in all the parallel provisions of above-referred Constitutions suggesting total exclusion of all other Courts for adjudicating 'disputes' specified in the respective articles which exist between the Federation and Provinces or any of the Provinces. Therefore, it is necessary to attach real meaning to word 'Exclusion' or exclusivity keeping in view 'prescribed parties' and 'scope of powers' for arriving at correct conclusion. 20. Definitions or meanings of words 'Exclusive' 'Exclusion' or 'Exclusivity' contained in law books and dictionaries are mentioned below for convenience and guidance :-- (i) Legal Thesaurus/Dictionary by William Stateky page 294. (a) "Exclusive: Not allowing others to participate; belonging to one person or group (exclusive possession). Restricted, closed limited, selective, sole, private, personal individual, shuttingout, unique, complete, entire, whole, all, total, Ant. Unrestricted. (b) Exclusively: Apart from all other (exclusively used for chartiable purposes). Only solely, substantially all, for the greater part, to the exclusion of all others, fully, entirely, completely. (ii) Oxfort Encyclopedic English Dictionary page 495, column 2; C Exclusive: 1 excluding other things. 2. not including; except for, 3 tending to exclude others, esp. socially select. 4 catering for few or select customers; high class, 5a (of a commodity) not obtainable elsewhere, b (of a newspaper article) not published elsewhere, 6 restricted or limited to; existing or available only in, 7 (of termsetc.) excluding all but what is specified. 8 employed or followed or held to the exclusion of all else (my exclusive occupation; exclusive rights), an article on stoney published by only one newspaper or periodical, Exclusive Brethren a mere exclusive section of the Plymouth Brethren, exclusively exclusiveness exclusivity, (iii) The Oxford Encyclopedic English Dictionary, P. 495. D Exclusion: The act or an instance of excluding the state of being excluded. Exclusion Order: An Official order preventing a person (esp. a suspected terrorist) from entering the UK . (iv> West's Legal Thesaurus/Dictionary, Special Delux Edition by William Stateky, P. 293. E Exclusion: Denial of entiy or admittance (the exclusion of evidence). Ban, rejection, dismissal, nonadmission, preclusion, prohibition, disallowance, elimination, omission, exclusion, purge, segregation, repudiation, boycott, bar, nonacceptance, banishment, blackball, eviction, prevension. See also exception (2), removal. (v} Words and Pharases, Permanent Edit on ISA, P. 179 : "Exclusively" since "wholly" is but a synonym of "exclusivity," its definition being to the exclusion of other things"; and hence, where the use made of city property has direct reference to the purposes for which it was authorized to be owned and held, and tends to directly promote such purposes, such use is within the provision exempting the property from taxation, though revenue or profit is derived from it. (vi) CORPUS JURIS SECUNDUM Vol. 33. P. 112: Exclusion : The act of excluding or shutting out, whether by thrusting out or by preventingadmission ; a debarring rejection; extension; prohibition; rejection. In the plural, the word has been defined as meaning things barred and not admitted. (vii) EXCLUSIVE, EXCLUSIVE AGENCY, Black's Law Dictionaiy Sixth Edution page 564, column 1 and 2. Exclusive, Appertaining to the subject alone, not including,' admitting, or pertaining to any others. Sole, Shutting out, j H debarring from interference or participation, vested in one j person alone. Apart from all others without the admission of others to participation, people on complaint of samboy . Sherman, 158 N.Y.S. 2d 837. Thus examining above terminologies and meaning attached thereto, we are persuaded to observe that original civil jurisdiction bestowed upon Supreme Court under Article 184 (1) shuts-out and entirely takes away authority of other courts subject to condition specified in said provision and Article 184 (2) of the Constitution. It therefore, suggests that if parties to dispute are two or more Governments, than invocation of original civil jurisdiction shall operate as complete ouster of other forums. 21. Mr. Abdul Hafeez Pirzada attempting to emphasise this aspect strenuously argued that original civil jurisdiction supervenes authority exercizeable by court having ordinary original civil jurisdiction under the statute or special original jurisdiction of High Court by invoking writ. 22. These aspects and implication of above referred variety of jurisdiction has been authoritatively discussed in case. PLD 1966 S.C. 543; (Brother Steel Mills Ltd. vs. Ilyas Mirza). The crux of above phraseologies appears at pages 558 and 561 said judgment. It would be highly instructive to reproduce below relevant portion for understanding :- "The same view was expressed in Eastern Co. (Pvt.) Ltd. It may be noted that in that case the entire judgment turned on the interpretation of the expression "Ordinary jurisdiction" used in section 202 and not "original civil jurisdiction" as contained in section 3 of the Law Reforms Ordinance which convey a completely different meaning. A close scrutiny of the judgments holding that the Court under the Ordinance does not exercise original civil jurisdiction shows that they are based on the observation made in Ahmad Khan (supra), in which Cornlius, CJ. has specifically mentioned that the ordinary original civil jurisdiction is confined to trial of suits. Although in some judgments the word ordinary has not been used, yet where the proceedings are initiated by filing a plaint as provided by the Code of Civil Procedure, it should be termed as ordinary original civil jurisdiction and not merely original civil jurisdiction. To clearly understand the meaning and impact of the term "original civil jurisdiction", it is necessary to differentiate between these two terminologies. The original civil jurisdiction cannot be restricked to proceeding initiated by filing plaint which in my view is ordinary original civil jurisdiction of a court, as jurisdictions are conferred on the High Courts by statutes which provide for initiating proceedings before the High Court itself. It has been emphasised that such jurisdiction should be called statutory jurisdiction, but in any even it has to be considered whether it is an original jurisdiction or an appellate jurisdiction within the framework of even a statutory jurisdiction conferred by a statute. In Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 it was observed that "as proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction. Judged from these aspects a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding although the High Court's jurisdiction in such a proceeding is Constitutional jurisdiction of an original kind". It clearly indicates that Constitutional or statutory jurisdiction can be of original nature having all the characteristics of an original jurisdiction. It was followed in D.F. Hasan v. Habib Bank Ltd. PLD 1974 Lahore 117 where Nasim Hasan Shah, J. (as he then was) observed that "the exercise of what is commonly termed as the writ jurisdiction, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction". 8. Under Article. 175 of the Constitution a Court is vested with jurisdiction "as is or may be conferred on it by the Constitution or by or under any law". Therefore, the jurisdiction can be conferred on any Court including a High Court by a statute which may provide for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil dispute it will be termed as original civil jurisdiction. It is not uncommon that statutes are promulgated conferring jurisdiction on the High Court to initiate proceedings as a Court of first instance for purpose of exercises of jurisdiction. For instance under section 2(i) (ii) of the Banking Companies (Recoveiy of Loans) Ordinance, 1979, in respect of cases in which the amount of loan exceeds Rs. 1 million, the High Court in exercise of original civil jurisdiction is the Special Court. Hereby statute jurisdiction has been conferred on the High Court to exercise original civil jurisdiction and tiy the cases as specified. All the High Courts are exercising this jurisdiction. If a technical meaning to the term original civil jurisdiction (i.e. having authority to entertain suits and try it) is given, then Lahore High Court, High Court of Balochistan and Peshawar High Court not having original civil jurisdiction in this technical sense cannot exercise jurisdiction conferred by the Banking Companies (Recovery of Loans) Ordinance. This will create absurdity which cannot be attributed to law. Therefore, in the statute under consideration the term 'Original civil jurisdiction' has been used in the general sense." 23. Now we would revert to pivotal question, considering whether ouster with regard to matter being examined under special Original jurisdiction between private parties and two Governments having similarity of fact shall stand automatically terminated when 'Original Civil jurisdiction is invoked for settlement of dispute between two Governments. 24. It may be seen that various legislations specify nature of parties or subject matter exclusively triable by prescribed forums. We are aware that Rent Restriction Laws primarily regulate the dispute between landlord and tenant and none else can seek relief through said enactments. Family Courts under the Family Courts Act have exclusive jurisdiction merely for settling the dispute specified in the Schedule. Out sider may have remedy by invoking jurisdiction of ordinary Civil Courts. Frontier Crimes Regulation empowers District Magistrate to take cognizance and refer the matter for adjudication to Council of Elders where parties are indigenous tribesmen or the incident emanates from blood fuels amongst such parties. Likewise Banking Tribunals under Ordinance LVIII of 1984 deal with only those categories of disputes which are mentioned in the said enactments. Factually survey of different legislations reveal that some times status of parties to be arrayed is prescribed and some case subject matter is specified. However, case under consideration before us obviously does not have any controversy with regard to subject matter and relates to parties competent for invoking original civil jurisdiction of Honourable Supreme Court. 25. Now looking to arguments; learned counsel for respondent No. 4 has emphatically urged that subject matter of present Constitution Petition and civil suit instituted by Provincial Government of Balochistan before Supreme Court are identical. This aspect has not been seriously controverted by learned counsel for petitioner. However, question arises whether any of the parties not specified under Article 184 could invoke the jurisdiction or arrayed during adjudication of grievance under Article 184 (1) of the Constitution and said provision can be extended to private persons. We have noticed with great caution that in normal circumstances where parties are expressly described such as : (i) landlord and tenant in Rent laws; (ii) landlord and lessee (bazgar) under the Balochistan Tenancy Ordinance, 1978. (iii) spouses in Family Courts and similarly other legislation, outsider could not claim relief. The Controller obviously will have no jurisdiction if parties arrayed before the court, does not enjoy status of landlord and tenant. Similarly the persons other than spouses cannot legitimately seek relief before the Family Court and so forth. There is plethora of reported judgments of superior Courts to supplement this aspect. It is thus quite apparent that even ordinary legislation when regulate claim between the specific parties does not permit different categoiy of persons than expressly specified. On this analogy we would now examine constitutional dictates expressly mentioning about type or status or parties who may invoke jurisdiction which is obviously Federal and Provincial Governments. According to our humble view provisions of Order I Rule-10 C.P.C. and Order-V Rule 2(3) of Supreme Court Rules, 1956 may be attached if any province or Federal Government likely to affect by proceedings instituted before Supreme Court under Article 184(1) we feel that said provision cannot be utilized for impleading private person. We would not like to dilate further on this aspect because same primarily deals with competency powers and jurisdiction of Honourable Supreme Court. Nevertheless we may express that reference to Murree Brewary's case instituted under Article 184(1) of the Constitution which had been concluded through settlement, no objection about competency of private person or invoking jurisdiction was ever raised. Therefore, reference to said petition is inapt. Iftikhar Muhammad Chaudhary, J.--I have had an opportunity to go through proposed Judgment written by his lordship, the Hon'ble Chief Justice and respectfully I am in agreement with the conclusion drawn therein. However, I add following additional reasons thereto. 26. Since facts and relevant Constitutional Provisions have already been noted, therefore, I would only state that Senator Dr. Abdul Hayee Baloch, being a chosen Representative, instituted instant Constitutional Petition on 19th June, 1996, wherein, besides Federal Government of Pakistan and Provincial Government of Balochistan, Pakistan Petroleum Limited, a Company incorporated under the Companies Ordinance, 1984 and Hashu Holdings (Pvt.) Limited, were also arrayed as Respondents, for the purpose of claiming relief against them in terms of Prayer Clause of petition. The petition having been found prima facie competent on merits, not only was admitted for regular hearing on 20th June, 1996, but at the request of petitioner, while passing order on C.M. 699/96, Respondent No. 1, was restrained from allowing sale, transfer or delivering of shares, directly or indirectly to unofficial Respondent; Hashu Holdings (Pvt.) Limited. After filing and exchanging pleadings by parties, during hearing, on 17 th September, 1996, Mr. Abdul Hafeez Pirzada, learned Senior Counsel, pointed out that Provincial Government of Balochistan has invoked the jurisdiction of Hon'ble Supreme Court under Article 184 (1) read with Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as 'Constitution'). Copy of petition filed by Provincial Government of Balochistan, was also submitted, which indicates that subsequent to filing of instant petition, a Civil Suit No. 01/1996, was instituted by Provincial Government, wherein except Government of Pakistan, no one else amongst Respondent in the Constitutional Petition, have been arrayed as Party. 27. The learned Counsel for parties were heard, in support of their respective contentions, relating to Constitutional jurisdiction of this Court, after filing of suit by Provincial Government. 28. Precisely the question for determination is; whether after filing of Civil Suit No. 01/96, by the Provincial Government of Balochistan against Federal Government of Pakistan, present proceedings stand terminated, within the perview of Article-184(l)(3) of the Constitution? 29. On bare perusal of sub-Article (1) of Article 184 of the Constitution, it emerges that exclusionary clause has been inserted therein to -bestow original jurisdiction upon Hon'ble Supreme Court of Pakistan, concerning dispute between any two or more Governments. It is manifest that Framers of the Constitution, with intent to provide an exclusive Judicial Forum to the Federating Units and Federation itself, to settle their disputes, has conferred original jurisdiction upon the Hon'ble Supreme Court, pronounce Declaratory Judgments, in terms of sub-Article (2) of Article 184 of the Constitution. Apparently object and aim of conferring such jurisdiction upon the Hon'ble Supreme Court is that within the frame-work of the Constitution, at any juncture, when two Federating Units i.e. Provincial Governments or Federation itself are at variance on any particular point, the High Courts functioning within the Province, would not be in a position to effectively resolve the dispute, especially for want of territorial jurisdiction. It is known principle of interpretation of Constitution that its all parts should be understood, according to their practical significance and the phrases and words used therein should be defined in plain and unambiguous manner, in order to construe them in their original sense, without stretching them to cover the cases, which are never intend to govern. It may be seen that expression 'jurisdiction' has not been defined by any Statutory provision, except its Dictionary meaning, or by the Superior Courts. Since question of exclusionary clause, is under consideration, therefore, it would be appropriate to reproduce following para from the case of State vs. ZiaurRehman (P.L.D. 1973 S.C. 49), hereinbelow :-- "It may well be asked at this stage as to what is meant by 'jurisdiction'? How does it differ from 'judicial power'? Apart from setting up the organ the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial powers to hear and determine will be exerciseable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject-matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction, therefore, a right to adjudicate concerning a pai ueular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court." The Hon'ble Supreme Court in above quotation has specifically laid down that jurisdiction demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specifies the person, in respect of whom, judicial powers to hear and determine, will be exerciseable. 30. It was emphasized by Mr. Abdul Hafiz Pirzada, learned Advocate that petitioner had no personal interest in reliefs claimed by him, as he invoked Constitutional jurisdiction of this Court, in capacity of a Public Probono to motivate the Provincial Government of Balochistan, either to initiate legal proceedings to challenge action of Federal Government in granting 'No Objection Certificate' to Burma Cestrol Oil Company, to sell their share to Hashu Holdings (Pvt.) Limited, on any permissible ground or to offer its own bid for purchasing the share and as now he had succeeded to activate the Provincial Government, as a suit has been filed on its behalf, therefore, no further relief, as prayed for, can be allowed to him, in view of the fact that except two additional reliefs, same reliefs have been claimed in the original Civil Suit, by the Provincial Government, itself. Thus proceedings be terminated by dismissing the petition. 31. I am afraid that argument raised by learned Counsel to say that instant petition be dismissed, is not based on any recognized principle of rejecting the petition. In this behalf, it is to be seen that solely for the reason that Hon'ble Supreme Court is ceased with the matter, in which neither the petitioner nor respondents 3 and 4 are party, will not divest this Court from exercising jurisdiction, because under Article 184(1)(3) of the Constitution, there is no express provision which excludes this Court from exercising jurisdiction in a matter which is prior in time and was already subjudice, before filing of Civil Suit, by the Provincial Government of Balochistan. There is no doubt about it that a private party is debarred to seek remedy before the Hon'ble Supreme Court under Article 184 of the Constitution and except approaching this Court under Article-199 of the Constitution, no other remedy is available to him, therefore, the relief cannot be denied to him, merely for the reason that another party, subsequent to filing of instant Constitutional Petition has invoked the original jurisdiction of Hon'ble Supreme Court. In this behalf, it is to be mentioned that even under general rule of res-subjudice, a suit which is prior in time will not be abeted, because another Hon'ble Court has concurrent jurisdiction in respect of same remedy, but it can only be availed by the parties, specified in the Statute, which confers jurisdiction on said Court. 32. Thus, I am inclined to conclude that on strictly contruing to Article 184(1) of the Constitution, it is held that the exclusionary clause incorporated therein debar the jurisdiction of any other Court, where dispute is in between any two or more Governments and in such event, no other Court shall exercise jurisdiction. However, where there are private parties, the remedy is available to them, to seek relief before every other Court, functioning under ordinary law as well as Constitution and as on the factor of priority in time, instant Constitutional Petition was subjudice, when subsequently Provincial Government of Balochistan, instituted Civil Suit No. 01/96, against Federal Government of Pakistan, without joining the petitioner and remaining private respondents, as party, therefore, instant proceedings cannot be terminated. COURT ORDER 33. For the above reasons we are inclined to over-rule the objection causing termination of present proceeding. Matter should be listed for regular hearing to a date in office. (K.K.F.) Order accordingly
PLJ 1997 Quetta 30 (DB) PLJ 1997 Quetta 30 (DB) Present: AMiR-UL-MuLK mengal, and javed iqbal JJ. M/s ITTEHAD CEMENT INDUSTRIES LTD.-Petitioner Versus GOVT. OF BALOCHISTAN through SECRETARY INDUSTRIES ETC.-- Respondents C.P. No. 142/95, dismissed on 25.3.1996. (i) Constitution of Pakistan, 1973-- Art. 199--Writ jurisdiction-Scope of--High Court in exercise of writ jurisdiction does not act as a court of fact, it can only interfere if finding is based on no evidence or is based on complete misreading of evidence and simultaneously controversial question of fact cannot be adjudicated in writ as High Court in writ jurisdiction cannot embark upon enquiry into realm of facts. [P. 36] A Mr. AshrafKhan Tanoli, Advocate for Petitioner. Mr. H. Shakeel Ahmed, Advocate for Respondents No. 1 to 4. Mr. ZahidMaquim Ansari, Advocate for Respondent No. 5. Date of hearing: 18.10.1995. judgment Javed Iqbal, J.--This is a Constitutional Petition preferred on behalf of M/s Ittehad Cement Industries Ltd. under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer- "It is, therefore, most respectfully prayed that this honourable Court may be pleased to:- (a) Declare that the order dated 27.4.95, passed by the respondent No. 2 is illegal and of no legal effect and as such is liable to be set aside. (b) Declare that the petition is the lawful guarantee of the Prospecting Licence for an area specified in the revised consolidated plans containing Lime Stone and Shale respectively and the respondent No. 5 does not have any concern/right in respect of the said mining areas. (c) Declare that the respondent No. 3 cannot reduce the area granted in favour of the Petitioner on 28.9.91, without issuing a show cause notice and affording opportunity of hearing and carrying out physical inspection of the areas of the petitioner as well as the respondent No. 5, in light of orders dated 27.4,94 passed by the respondent No. 3. (d) Declare the conversion of P.L. into M.L. by the respondent No. 3 in respect of Lime-Stone as well as "Shale" vide letter dated 30.8.94, in favour of respondent No. 5 during the pendency of Appeal No. 341/94 was illegal and steps taken thereafter including extension of mining lease and or extension of date of assignment with by respondent No. IV to respondent No. V are illegal and of no legal effect; (e) Declare that letter dated 22.2.94 does not have any legal affect in respect of the areas of the petitioner for both the minerals and same is issued without any lawful authority. (f) Declare that the respondent No. 4 cannot open any letter of credit in favour of the respondent No. 5 by means of having pledge of said mining areas or portion thereof belonging to the petitioner. (g) Any other relief which this Hon'ble Court consider appropriate and fit in the peculiar circumstances of the case. (h) Declare that order dated 25.7.92 passed by the respondent "No. II is illegal, perverse and the notification dated 8.11.92 issued as consequence thereof are of no legal effect, (j) Costs." 2. Briefly stated the facts of the case are that the petitioner was allotted an area measuring 2926.80 acres to excavate Lime Stone and further area measuring 2355.78 acres for Shale for which Prospecting Licence No. PL-Lime Stone (1145) and PL-Shale (5) respectively were issued after completion of the mandatoiy prerequisite and after formalities including N.O.C., from Commissioner Kalat at Khuzdar. Subsequently the petitioner applied for another free area for allotment measuring 2103.30 acres for Lime and an area measuring 2479.33 acres for Shale on 9.7.91,, as the above mentioned areas were located adjacent to the areas already allotted in their favour. The above mentioned areas and the areas allotted already were consolidated and petitioner took over the possession and started excavation after investing handsome amount in order to establish a Cement Plant. The petitioner after completion of the spade work applied for conversion of its Prospecting Licence into Mining Lease which was declined on the ground that a major portion of the allotted area was restored in favour of M/s Galadhari Cement (Gulf) Ltd., (respondent No. 5) inspite of the fact that requisite deed rent was regularly paid by the petitioner and the entire area also remained in his possession and cancellation whereof could not have been made without adopting prescribed legal procedure. An appeal was filed before the Appellate Authority which was dismissed and subsequently the petitioner approached this Court by way of filing a Constitutional Petition wherein the varies and proprietory of order dated 25.7.92, 8.11.92, 22.2.94, 30.8.94 and 27.4.95 passed by Secretary Industries-cwm-Appellate Authority (respondent No. 2) and Director Mineral Development (respondent No. 3) were challenged. 3. It is mainly contended by Mr. Muhammad Ashraf Khan Tanooli Advocate on behalf of petitioner that order dated 27.4.95 passed by Secretary industries-cuTO-Appellate Authority (hereinafter referred to as the impugned order) being perverse, illegal and arbitraiy is liable to be set aside as the same is based on mere surmises and conjectures and is not sustainable in law because, the documentary evidence on record was not taken into consideration. It is urged with vehemence that petitioner is the lawful allottee of the area as per revised consolidated maps and thus is legally entitled to hold it for the purpose of Cement Plant, which was allotted after completion of all necessary formalities and the area in question after allotment falls within the ambit of "PROPERTY" and petitioner cannot be deprived of the same without having proper opportunity of hearing and after following the prescribed legal course. It is also contended that the area in question was allotted being free and it subsequent cancellation was with malafide intention to deprive the petitioner from his lawful possession of the area. It is also mentioned that the petitioner had paid all the rents and dues in respect of the disputed area and as such, the Appellate Authority ought to have re-verify all the relevant aspects before passing any order. It is next argued that Secretary Industries-cwm-Appellate Authority (respondent No. 2) has seriously erred by holding in its impugned order that respondent No. 5 had carried out Prospecting satisfactorily, and as such were entitled to conversion of P.L. into M.L. It is urged strenuously that the area granted to the petitioner cannot be reduced by Director Mineral Development (respondent No. 3) arbitrarily without issuance of proper notice to the petitioner enabling him to substantiate his claim by adducing documentary and oral evidence. It is further argued that reduction in area could not have been made without carrying physical inspection of the area for which notices were served, but subsequently for the reasons best known to the authorities concern, the same were withdrawn without any lawful justification. It is also urged that M/s Galadhari Cement (Gulf) Ltd., (respondent No. 5) had violated the obligation as contemplated under Rule 32(D) of the Balochistan Mining Concession Rules, 1970 and in consequence whereof Director Mineral Development had issued a Show Cause notice and in reply whereof it was admitted by respondent No. 5 that Mining operation could not be carried out for certain reasons, but amazingly the findings of the Appellate Authority are contradictory and no supporting material is available and the verdict given vide impugned order is based on conjectural presumptions and the judgment dated 25.7.92, to which petitioner was not a party, hence it cannot be made applicable to him. It is also pointed out that after grant of Prospecting Licence in favour of petitioner and payment of dues including deed rent as calculated by Director Mineral Development, Government of Balochistan, a vested, a right has accrued in favour of the petitioner which cannot be infringed without following the due process of law and in accordance with natural justice. Mr. Muhammad Ashraf Khan Tanooli Advocate also contended that no intimation or notice whatsoever was received from Director Mineral Development, Government of Balochistan Quetta, (respondent No. 3) regarding cancellation, reduction or withdrawal of the allotted area to the petitioner and on the contrary respondent No. 3 had been demanding all the rents and dues from the petitioner which wa paid accordingly. It is also pointed out that the petitioner has yet to receive any intimation about the number of co-ordinate which have been reduced. It is also submitted that M/s Galadhari Cement (Gulf) Limited, (respondent No. 5) is mainly interested to procure loan on the basis of Mining Lease Area and the land allotted was mortgaged with Bankers Equity Limited (respondent No. 40, but no letter of Credit could be opened on the basis of pledging of the said land. It is also urged that the petitioner was not aware about the decision dated 25.7.92 made by the Appellate Authority, as no official intimation was given except a letter dated 22.2.1994 whereafter the petitioner filed appeal before the Appellate Authority in view of Provisions as enumerated under Rule 71 of Balochistan Mining Concession Rules, 1970. It is also alleged that M/s Galadhari Cement (Gulf) Ltd., is a Company which has no interest with the economy of Pakistan or to do any service to the local people of District Lesballa, but on the contrary the Directors of M/s Ittahad Cement Industries Ltd., (petitioner) are the bonafide residence of Tehsil Hubb and have by now established various other Industrial Units at Hub and Winder in order to promote the economy of the country. It is further agitated that during subsistence of P.L. in favour of the petitioner regarding area in question no M.L. could have been granted in favour of any other party except the petitioner but inspite of it, M.L. was granted in favour of respondent No. 5 by respondent No. 3 whereas respondent No.. 2 withheld the decision of the appeal in order to favour respondent No. 5. It is also mentioned that there is no alternative or efficacious remedy available to the petitioner except this Constitutional Petition. 4. Mr. H. Shakeel Ahmed Advocate appeared on behalf of Bankers Equity Limited (respondent No. 4) and strictly controverted the position as canvassed by Mr. Muhammad Ashraf Khan Tanooli Advocate, by arguing that petitioner was aware about all the development and he was never condemned unheard. It is urged vehemently that area in dispute was allotted in favour of M/s. Galadhari Cement (Gulf) Ltd., (respondent No. 5) which was cancelled on 6.7.91 and surprisingly allotted to petitioner on 9.7.91 which speaks the malafide. It is further argued that on 1.6.91 when the petitioner applied for the disputed area it stood allotted in the name of respondent No. 5 whose appeal was pending before the Appellate Authority regarding cancellation of the area. It is also contended that first order was passed by the Appellate Authority on 25.7.92 but petitioner remained silent and no action whatsoever was initiated by him for the redressal of his grievances. He also seriously questioned the maintainability of petition as disputed question of facts are involved. It is also argued that petitioners have not mentioned their exact status as to whether it was a public limited Company or Private Company and the petitioner itself is not clear as contradictory stand wastaken by showing it as Private Limited Company before Hon'ble Supreme Court of Pakistan and counter affidavit to this effect was filed. It is urged with vehemence that the petitioners have not approached this court with clean hands and a civil suit filed earlier on the similar grounds wherein identical relief was sought has not been mentioned in the petition and this fact has deliberately been superseded. Mr. H. Shakeel Ahmed Advocate, has further pointed out that huge amount worth million of rupees has been spent by now and more than 37 different contracts have been executed including credit agreement guaranteed by Local Banks by mortgaging valuable property and besides that more than 34 Engineers are performing their duties at site to establish a Cement Factory. It is also submitted that the area in question was not admittedly vacant and appeal filed regarding its cancellation was pending adjudication before the Appellate Authority when the petitioners with ulterior motive got the area in dispute allotted in their favour which could have not been done till the final decision of the matter. It is also urged that there is no jurisdictional defect in the impugned order as passed by learned Appellate Authority on 25.7.92 and there is no justification for second appeal filed by the petitioner who remained associated in the proceedings of appeal decided on 25.7.92 and impugned order itself would indicate that Mr. Ehsan-ul-Haque appeared on behalf of petitioners and opportunity of hearing was afforded. It is also pointed out that this petition has been filed by incompetent person as resolution from Directors of the petitioner's Company has not been filed alongwith the petition and admittedly the petitioner is not a Director. 5. Chaudhaiy Ejaz Yousaf Addl. Advocate General appeared on behalf of official respondents and supported the impugned orders passed on 25.7.92 and subsequently on 24.7.94, by the learned Appellate Authority on the ground that no illegality or irregularity whatsoever was committed by the Appellate Authority. It is also mentioned that the powers as conferred upon the Appellate Authority was exercised judiciously and in absence of any patent illegality no interference is called for merely on the ground that a different view can be taken. He also referred the Provisions as contained under Order 29 Rule 1 CPC which mainly deals with Suits to be filed by or against Corporation. He also urged that the petitioner has no locus standi and is not an aggrieved person as neither any right whatsoever was accrued in his favour nor it was infringed. It is further argued that the petitioner was never condemned unheard and proper opportunity of hearing was afforded before decision dated 25.7.92 made by the Appellate Authority and Mr. Ehsan-ul-Haque appeared on his behalf and argued the matter but favourable decision could not be made in favour of petitioners. It is also mentioned that Provisions as contained in Rule 71 of the Balochistan Mining Concession Rules, 1970 provide only one appeal and as such, the second appeal filed by the petitioner before Appellate Authority was unlawful. In order to substantiate his version he relied on 1980 S.C.M.R. 711 + 1995 S.C.M.R. 362. 6. Mr. Zahid Muqeem Ansari Advocate appeared on behalf of M/s Galadhari Cement (Gulf) Limited (respondent No. 5) and object strenuously that the Constitutional Petition as filed was not maintainable and besides that the petitioner has not approached this Court with clean hands and suit filed previously on similar lines was not brought to the notice of this Court. He further contended that fair opportunity of hearing was afforded to the petitioner whose counsel remained present before Appellate Authority and as such it cannot be agitated after lapse of about considerable period and as such the petitioner is hit by laches. It is next argued that keeping in view the factual controversies, the petition deserves to be dismissed as no conclusion can be derived by this Court without calling for evidence which is not possible while exercising Constitutional jurisdiction which otherwise is discretionary. On the remaining points he followed the arguments as adduced by Mr. H. Shakeel Ahmed Advocate who appeared for Bankers Enquiry Limited (respondent No. 4). 7. We have carefully examined the respective contentions as adduced on behalf of the parties in the light of relevant Provisions of law and record of the case. We have minutely perused the order of Appellate Authority dated 25.7.92 and 27.4.95. Let we make it clear at the out set that constitutional relief being discretionary can be refused, if circumstances so justify and constitutional jurisdiction could not be exercised to force the court to exercise its discretionaiy power in a particular manner. It must not escape unnoticed that Constitutional remedy being extra ordinary, no one is entitled to claim as of right, the exercise of discretionaiy powers (1986 C.L.C. 1813 + 1985 C.L.C. 2546) which can only be exercised within the limits as prescribed by the Provisions as contained in Article 199 of the Constitution. The pivotal question to be determined is as to what illegality has been committed by the Appellate Authority or what in justice has been done to the petitioner. We have carefully examined the impugned order passed by the Appellate Authority on 25.7.92 and relevant portion whereof is reproduced hereinabove for ready reference:- "I have heard the parties at length and have carefully examine the record where from I find that the appellants had carried out prospecting satisfactorily and were entitled to the conversion of prospecting Licence into Mining lease within the purview of Rule 38 of Balochistan Mining Concession Rules, 1970. There was no breach or violation of any rule of obligation on the part of the appellants and that there was no reasons to keeping the conversion of the lease in abeyance for such a long period. The show cause notices were misconceived and vague and the Notifications No. ML. Lime stone (2)/4961-71 and No. M.L-Shale (D/4972-82 dated 6.7.91 based on different grounds which were vague and unsubstantiable on record are void and illegal and the rejection of applications for conversion of prospecting licence into mining leases also unjust and unwarranted. However the fact that the appellant failed to utilize/do mining in the area as also Cement plant could be established for such a long time is correct. Since appellant were not given ample chance to explain his position therefore, the impugned notifications are hereby set aside directing the respondent to deal with the matter in accordance with law. As such the appeals are allowed." 8. A bare perusal would indicate that following definite findings have been made by the Appellate Authority:- (a) that the appellants (M/s Galadhari Cement (Gulf) Limited had carried out prospecting satisfactorily and were entitled ._ to the conversion of PL into Mining Lease within the purview of Rule 38 of Balochistan Mining Concession Rules, 1970. (b) There is no breach or violation of any rule or obligation on the part of the appellants (M/s Galadhari Cement (Gulf) Limited. ' (c) The notifications whereby the disputed area was cancelled were set aside. Nowhere the question arises that upto what extent interference can be made by exercising our constitutional jurisdiction. It is to be kept in mind that Appellate Authority is a validly constituted forum under Balochistan Mining Concession Rules, 1970 duly framed in exercise of powers as /~~ conferred by Section 2 of the Regulation of Mines and Oil-Fields and Mineral Development (Federal Control) Act, 1948 (XXIV of 1948) by the Government of Balochistan, by whom certain conclusions have been drawn after scrutiny and perusal of relevant record and rules which are neither patently illegal nor arbitrary and requires some concrete base and cogent justification to get ,1 it reversed which apparently is lacking. It is well settled by now that the High Court in the exercise of writ jurisdiction does not act as a Court of fact, it can only interfere if the finding is based on no evidence or is based on complete misreading of evidence and simultaneously controversial questions of fact cannot be adjudicated in writ as High Court in writ jurisdiction cannot embark upon enquiiy into realm of facts. (P.L.D. 1985 Lahore 353 + P.L.D. 1976 Ki. 728 + P.L.D. 1961 S.C. 636 + P.L.D. 1964 Ki. 468 + P.L.D. 1966 Lah. 616 + P.L.D. 1962 Lah. 364 + P.L.D. 1963 Ki. 726 + P.L.J. 1975 Lah. 385 + P.L.D. 1968 Lah. 938). 9. We have not been able to persuade ourselves to agree with Mr; Ashraf Khan Tanooli Advocate that proper opportunity of hearing was not afforded. The order dated 25.7.92 potraits altogether a different picture which is as under: - "On the file there is an application dated 29.12.1991 made by Mr. Ehsan-ul-Haque Advocate on behalf of one Ittihad Cement Factoiy seeking adjournment in appeal captioned as Ittihad Cement Factoiy versus Director General Appeal under section 71 of Mining Concession Rule 1971. saying that the counsel of the appellant was busy in connection with some other cases. Although the application was irrelevant, so as the present appeals are concerned, as also stressed in reply to the same filed by the appellants, still Mr. Ehsan-ul-Haque was called and heard, who for the first time disclosed that some portion of the area under appeal has been allotted to M/s Ittehad Cement Factory and as such he is interested in the matter. However there record to show that any area has been allotted to any one and the rejoinder filed by the respondent is silent in this behalf and does not disclose/mention as such. He further argued that appellants failed to make use of the Lease allotted and that they "have not been able to show any material evidence that they are going to establish Cement Factory." 10. The said reproduced portion makes it clear that Mr. Ehsan-ul- Haque Advocate was heard and as such it cannot be agitated that petitioner was condemned unheard. At opportunity moment and before Appellate Forum the petitioner even failed to show that disputed area was allotted in his favour. The failure of petitioner to establish its case on the basis of documentary evidence as opined by the Appellate Authority cannot be re opened being a past and closed transaction. It is well settled by now "that cases in which transactions had become past and closed due to efflux of time could not be re-opened. (P.L.D. 1987 Ki: 670)". It is worth while to mention here that petitioner has sought for declaration that order dated 25.7.92 being illegal and perverse and Notification dated 8.11.92 issued in pursuant to that should be declared as unlawful and without having legal effect. The action taken in accordance with law in the year 1992 cannot be reversed in 1996 on flimsy grounds. It is an admitted fact that petitioner was well aware regarding repercussion of the order dated 25.7.92 in pursuance whereof the Notification as mentioned above was issued. We have also focused our attention to order dated 27.4.95 passed by Appellate Authority whereby appeal filed by petitioner against order dated 22.2.94 and 30.8.94 were decided. The relevant poition whereof is reproduced herein below for ready reference:- "9. In support of his claim the appellant has referred to an NOC purported to have been issued by the Commissioner for grant of area on 19.11.1991. This obviously does not help the appellant nor does it relate to the present matter as according to appellant the alleged prospecting licences had been granted to him on 9.7.1991, furthermore, appellant has stated in his appeal that after taking possession of the area i.e. 9.7.1991 the appellant started prospecting the area with the help of foreign consultants but the appellant has produced no proof, documentary or otherwise, to the contrary the same is belied by the fact as borne out from the appellate authorities judgment dated 25.7.1992, where in it has been observed that prospecting has been carried out satisfactorily by M/s Galadari Cement Factory (Gulf) who had also submitted audited report verifying expenses of about 23 Lacs of rupees on prospecting. This fact is further available in the judgment that the said Galadari Cement Ltd. had invested about Rs. 60 Million or so on the project till 1991. In appeal the appellants have also stated that they have made payment of Government dues. According to the appellant and also as borne out/from the impugned order itself the appellant has other areas over and above the areas granted to the Galadari Cement (Gulf) Limited. Therefore, the appellants were liable to make payment for those areas also to the Government. If any access? payment has been made that can be adjusted. 10. The crux of the whole matter is that the cancellation of the prospecting licences of Ms Galadari (Gulf) Cement Limited i.e. Respondent No. 2 having been set aside and the area restored to them, all rights in the area vest exclusively in M/s Galadari Cement (Gulf) Limited and the appellant has no right thereto. The record shows that the Prospecting Licences of M/s Galadari (Gulf) Limited have already been converted into mining lessee duly registered on 9.10.1994 and since then the said Galadari Cement (Gulf) Limited is in possession of the areas as lessee. The appellant were also granted approximately areas measuring 3000 acres in to Blocks (2200 + 800) for Lime Stone and 1800 -acres for Shale. These areas has no concern with the areas granted to Galadari Cement (Gulf) Limited. As such the order/letter dated 22.2.1994 by the respondent No. 1 was perfectly in order." 11. "The High Court in writ jurisdiction can only examine the legality of the impugned order. (P.L.D. 1967 Lah. 1251 (D.B.)) Where discretion is vested under a law in a statutory body, the mod of exercising the discretion cannot be interferred with by the High Court." (1982 S.C.M.R. 969). A careful scrutiny of the above reproduced paragraph would indicate that various controversial points have been adjudicated such as to whether Prospecting has been carried out satisfactorily by M/S Galadhari Cement (Gulf) Limited (respondent No. 5) who had also submitted audit report verifying the expenses of about Rs. 23 lacks on prospecting. It also transpires that other areas over and above areas granted to the M/s Galadhari Cement (Gulf) Limited was allotted in favour of the petitioner. It is to be noted that we cannot upset the findings regarding satisfactorily prospecting by M/s Galadhari Cement (Gulf) Limited (respondent No. 5) and as such, it was entitled to conversion of PL to ML, this aspect of the matter was to be dealt with by the Department concerned and after taking into consideration the technical aspect of the matter, the conclusion was derived and upheld by the Appellate Authority cannot be reversed. It is further to be noted that we have no material before us to infer as to whether M/s Galadhari Cement (Gulf) Limited, had violated the obligation as enshrined in Rule 32 of the Balochistan Mining Concession Rules 1970. It is also controversial as to whether the main object of respondent No. 5 is to obtain loan as alleged by the petitioner on the basis of leased area instead of establishing a Cement Plant. How much area would be required for setting up a Cement Plant cannot be determined by us. It also requires evidence to determine whether the Mining Lease in question was got registered after 13.9.94 if so what would be its impacts. The disputed question as to whether the Cement Plant has been sold to M/S Bibojee Services (Private) Limited, as alleged by petitioner also requires a thorough probe which cannot be made while exercising our Constitutional jurisdiction. It also requires evidence to establish who has spent how much amount? Keeping in view the factual controversies as mentioned above and many others, no definite findings can be given without looking into the evidence which might be available with the petitioner and respondents but it cannot be called by this Court for the simple reasons that such practice would neither be advisable nor desirable. High Court will not go into disputed question of fact in Constitutional jurisdiction (1991 C.L.C. 2004 + 1991 M.L.D. 1492 + 1989 S.C.M.R. 918 + P.L.J. 1985 Lah. 292 + 1984 S.C.M.R. 963). This is moreso, when it is supported by attending circumstances and relevant record (P.L.D. 1976 Lah. 880 + P.L.D. 1974 S.C. 139). The Constitutional jurisdiction of High Court cannot be converted into that of an Appellate Court. Disputed question of facts cannot be entered or allowed to be re-agitated in writ jurisdiction (1982 C.L.C. 1972), when the relevant law provides other forums for the purpose (1987 P.Cr.L.J. 1413 (D.B.)). It is worth while to mention here that while exercising Constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid (1990 M.L.D. 563 (D.B.)), unless it is shown that such controversies devoid of supporting record, or perverse (1990 M.L.D. 344). It is pertinent to mention here that a Civil Suit was also filed by the petitioner on 8.12.1994 meaning thereby that they opted to approach for redressal of their grievances but it was dismissed in default on 16.5.95 and no action was taken to get it restored. In our view the Civil Court was the appropriate forum to determine all the controversies after recording evidence. "The superior Court should not involve themselves into investigations of disputed questions of facts which necessitate taking of evidence which can more conveniently be done in the ordinarily Civil Procedure for litigation by a suit. The Constitutional jurisdiction which is extra ordinary is preliminary intended for providing an expeditious remedy in case where the illegality of the impugned action of an executive or other authority can be established without elaborate enquiry into complicated or disputed facts (1991 C.L.C. 1078 + 1986 S.C.M.R. 598 + P.L.D. 1987 Quetta 103 (D.B.)). It is also well settled by now that controversial questions of fact, adjudication of which is possible only after obtaining all types of evidence in power and possession of parties, can be determined only by Courts having plenary jurisdiction in matter and on such ground Constitutional Petition cannot be filed. (P.L.D. 1982 S.C. 280 + P.L.J. 1983 S.C. 256). 12. It is also to be noted that the area restored to M/s Galadhari Cement (Gulf) Limited, remained vacant for a few days when appeal was pending, but department concerned for reason best known to it, in undue haste allotted the area to petitioner and endless litigation started thereafter. 13. In view of various factual controversies and above mentioned discussion we are not inclined to interfere in the matter. Therefore, question of fact on which findings had already been given by a forum of exclusive jurisdiction and the findings attained finality is not opened to challenge in constitutional jurisdiction. This court can neither determine the question whether the finding of a Tribunal is based on sufficient evidence or not, nor can it substitute its own finding for that of Appellate Authority whose duty is to decide the factual controversy (PLD 1963 Kar. 219 + PLD 1962 Lahore 364 + PLD 1987 Qta 103 + 1985 CLC 2807). Besides, that Appellate forum has exercised its authority as conferred upon it under relevant rules, and there is neither any patent illegality nor grave irregularity as such it is not proper in the circumstances as mentioned above to exercise our jurisdiction under Article 199 of the Constitution, the petition is resultantiy dismissed with no order as to cost. (K.A.B.) Petition dismissed.
PLJ 1997 Quetta 40 (DB) PLJ 1997 Quetta 40 (DB) Present: amir ul mulk mengal, and javed iqbal JJ. DR. ASADULLAH KHAN TAREEN etc.-Petitioners versus GOVT. OF BALOCHISTAN etc.--Respondents. Constitution of Pakistan, 1973-- -Art. 199--Writ Jurisdiction-Nature and scope of--Question whether petitioner is in grade-18 or grade-19 or accommodation in question is that of "A" or "B" type being controversial questions cannot be looked into while exercising constitutional jurisdiction-While exercising constitutional writ jurisdiction High Court does not make a thorough probe regarding ticklish, complicated and controversial questions of fact as they could only be resolved by a competent civil court or any other forum provided for such purposes-Petitioner is not an aggrieved person as no legal right vested in him has been infringed-Being grade-18 officer he is not entitled to get accommodation meant for grade-22 officer as a matter rightIf previously some illegality has been Committed by Allotment Committee that cannot be followed by High court-Petition dismissed. [Pp. 44 & 46 ] A & B Mr. H. Shakeel Ahmad, Advocate for Petitioners. Mr. Yaqoob Khan YousufZai, Advocate for Respondents. Date of hearing: 5.6.1996. judgment Javed Iqbal, J.--This is a Constitutional Petition preferred on behalf of Dr. Asadullah Khan Tareen and Dr. Ali Khan Tareen under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer: - "It is accordingly respectfully prayed that- (i) It may be declared that the petitioner is eligible and entitled to allotment of Bungalow No. 44-A Masoom Shah Street of Anscomb Road Quetta (Procedure for Allotment) Rules, 1982 and the respondents No. 1 to 3 are under legal obligation to do so. (ii) That the Allotment Order No. CEO (S&GAD) 44- A/95 dated 27.2.1996 issued by respondent No. 2 is illegal, void, in violation of rules as well as unconstitutional, arbitrary and discriminatory, therefore, liable to be declared as such. (iii) That the respondent No. 1 to 3 be directed to allot the house in question to the petitioner as contemplated under the rules, in the meanwhile the respondents No. 1 to 4 may be restrained from dispossessing the petitioners from the house in question. (iv) Any other relief as may be deemed fit and appropriate in the circumstances of the case may also be granted alongwith cost of the petition." 2. Briefly stated the facts of the case are that Dr. Asadullah Khan Tareen is an Assistant Professor, Head of Operative Dentistry, Dental Section Bolan Medical College and Civil Hospital Quetta and is Grade-19 Officer of Health Department Government of Balochistan. He is real brother of Petitioner No. 2 who was Professor and Head of Dermatology Section Bolan Medical College. The wife of Petitioner No. 1 Dr. Mrs. Tehmina Asad is also Assistant Professor and Head of Prosthetic Dentistry Bolan Medical College and Civil Hospital, Quetta. Dr. Asadullah Khan Tareen and his wife are living with Petitioner No. 2 to whom House No. 44-A Masoom Shah Street Anscomb Road was allotted which remained in his occupation for the last 22 years. The Petitioner No. 2 was in BPS-20 and the stood retired with effect from 31.12.1995. Dr. Asadullah Khan Tareen does not had his own house and he had been living with petitioner No. 2 for the last so many years. The official respondents allotted Bungalow No. 42-B Anscomb Road Quetta to Dr. Asadullah Khan Tareen vide Allotment Order dated 2.9.1992 but subsequently it was allotted in favour of Mr. E.B. Malghani Director NIPA Quetta vide order dated 17.3.93. The Petitioner No. 1 filed an appeal and resultantly the allotment was restored but possession of the allotted house was not handed over to him and it was subsequently allotted to Mr. Muhammad Ayub Buledi Revenue Minister and subsequently it was occupied by Mr. Tariq Mehmood Khetran Minister for Population Welfare who is residing in it. An other attempt was made by Petitioner No. 1 for allotment of Bungalow No. 30 Anscomb Road Quetta but it was allotted to Mr. Munir Badini. The Petitioner No. 1 on 23.5.95 submitted an application informing the official respondents about retirement of his brother with request that Bungalow No. 44-A Masoom Shah Street may be allotted to him in pursuance of the provisions as contained in Rule-14 of the Residential Accommodation at Quetta (procedure for Allotment) Rules 1982 (hereinafter called as the Rules) as he was residing with Petitioner No. 2 but it was allotted to Mumtaz-ur-Rehman Additional Secretary Finance Department Quetta and Deputy Commissioner/District Magistrate Quetta was directed to get the house vacated forcibly. The petitioner No. 1 filed an appeal to Chief Secretary immediately which is yet to be decided. In view of expected forcible eviction this petition has been filed. 3. It is mainly contended by Mr. Shakeel Ahmed, Advocate that allotment order dated 22.2.1996 issued by respondent No. 1 and 2 in favour of respondent No. 5 is patently illegal, void and without any lawful authority as such of no legal effect as it was made in violation of the relevant provisions of the rules because petitioner No. 1 is eligible and entitled to get accommodation in pursuance of provisions as contained in Rule-14 (IV) of the Rules as he is in physical occupation of the house which was allotted to his brother. It is next contended that un-disputedly petitioner No. 1 is in BPS-19 and the accommodation in question is B or C type and the petitioner is entitled for its allotment. It is urged with vehemence that the action of the official respondents whereby the petitioner has been refused allotment and the house in question was allotted to respondent No. 5 is in clear violation of the rules and the respondents cannot be frustrate the very object of the rules and therefore, the impugned action being un-constitutional is liable to be setaside. It is urged that the Petitioner No. 1 has been discriminated by the official respondents and better accommodation of higher classification has been provided to the Officers of BPS-17 and BPS-18 in violation of the rules. It is mentioned that various Officers who have been transferred to different places but they are still occupying the accommodation at Quetta as well as at their place of posting. In this regard Mr. Shakeel Ahmed Advocate quoted the instances of Commissioner Sibi Mr. Mubashar Ahmed Zafar, and Commissioner Nasirabad Mr. Abdul Ghaffar Nadeem. It is alleged that the Respondent No. 5 belongs to the class of hureaucrates who also have authority in the matter of house allotment, therefore, in preference to Petitioner No. 1 he has been accommodated out of turn and such action of the official respondents is in excess of jurisdiction and arbitrary which is liable to be declared as such. It is further contended that official respondents No. 1 to 3 have issued directives to the District Magistrate/Deputy Commissioner Quetta for getting the possession of the house forcibly which action is also in violation of the rules and Petitioner No. 1 cannot be dispossessed from the house in question until and unless alternate accommodation is provided to him as contemplated under the rules. Mr. Shakeel Ahmed, Advocate also referred the provisions as contained in Article 4 and 24 of the constitution and argued that the action has initiated by the official respondents is in violation of the above referred to constitutional provisions and as such is liable to be declared as unlawful. 4. Mr. Yaqoob Khan Yousafzai learned Advocate General appeared on behalf of respondents and strenuously contended the position as explained on behalf of the petitioner by arguing that the petition itself is not maintainable as alternate remedy is available which has already been availed and appeal filed by the petitioner is pending before the competent authority for disposal. Learned Advocate General contended that simultaneously the relevant provisions of the rules and constitutional jurisdiction of this court cannot be invoked. It is urged with vehemence that various controversial questions of facts are involved which cannot be determined by this court while exercising its constitutional jurisdiction and as such the petition deserves dismissal. It is pointed out that under the rules Allotment Committee has been constituted which is exercising its authority as conferred upon it and no illegality whatsoever has been committed in allotment of the house in question to respondent No. 5 who was entitled for it being Additional Secretary and besides that no vested legal right of the petitioner has been infringed. In view of learned Advocate General the Allotment Committee has constituted under the rules was equivalent to that of an Administrative Tribunal and may be allowed to work within domain of its authority and no interference is called for on the ground that a house could not be allotted in favour of petitioner who otherwise was not entitled to it. Learned Advocate General also mentioned the difference in between entitlement and eligibility and argued that by no stretch of imagination the petitioner was having any legal right for allotment of the house in question. Learned Advocate General also pointed out that the provisions as contained in Rule 8 and Rule 12 cannot be invoked as the Petitioner No. 1 and his wife are getting house rent illegally and therefore, the Petitioner No. 1 has not approached this court with clean hands and concealed the above mentioned fact. It is also argued that it is prerogative of the Allotment Committee to determine the eligibility of petitioner and accommodation classified as "A" cannot be allotted in favour of Petitioner No. 1 as he was not regularly promoted in BPS-19 and categorization/classification cannot be questioned. Learned Advocate General also mentioned that there is no question of any discrimination and the case of Petitioner No. 1 was not considered alongwith those whose list has been provided but his case was considered alongwith Additional Secretary Finance (Respondent No. 5) who was given preference in view of the provisions as contained in Rule-8 (3) of the Rules. It is also informed that Dr. Ali Khan Tareen (Petitioner No. 2) has moved an application to occupy the house till 30th June, 1996 and therefore, petitioner being stranger cannot occupy the house without any lawful justification. Learned Advocate General has referred NLR 1995 Lah. P. 95 + PLD 1982 Lah. P. 401 + PLD 1982 Quetta P. 126 in support of his above mentioned contentions. 5. We have carefully examined the respective contentions as dduced on behalf of petitioner and for respondents in the light of relevant provisions of law, rules and record made available. The main questions to be etermined are as to whether the petitioner is an aggrieved person and he as any vested right for allotment which has been infringed. It is also to be een whether the petitioner has any alternate remedy to get his grievances edressed. The jurisdiction and competency of Housing Allotment Committee is also to be examined. In order to answer the above mentioned questions it seems inevitable to have a thorough examination of the esidential Accommodation at Quetta (Procedure for Allotment) Rules 1982 herein after referred to as the rules. The said rules are promulgated in pursuance of the provisions as contained in Fundamental Rule 45. A bare eading of the rules would reveal that the same are capable enough to met all sort of eventualities but there are certain ambiguities which are to be removed. Let we make it clear at the outset that undoubtedly in view of Rule 4(2) a Government Servant shall be eligible to a Residential Accommodation f his status but this is subject to availability of accommodation of his status, however, inferior accommodation to that of his entitlement, subject to vailability, can be allotted if so desired by the incumbent concerned. The limits of entitlement has been specified in Rule 4 (1) in a categorical manner nd there is hardly any scope of superior accommodation beyond entitlement. 'A' and 'B' type of residences are meant for grade-20 to 22 and grade-19 respectively. There appears to be some overlapping in rules for determination of entitlement as on the one hand entitlement revolves rround 'grades' and simultaneously it an be based on "Emoluments". For example if a Government Servant is in grade-17 and gets selection grade-18 and by virtue of up-gradation his emoluments are increased then he would be entitled for grade-18 accommodation on the basis of emoluments or Dtherwise. The rules in its present shape are not clear to face such a situation in crystal clear manner and as such suitable amendment for the
ake of clarity would be essential. The petitioner being grade-18 officer as nformed by learned Advocate General cannot claim 'A' or 'B' type of iccommodation as a matter of right. The question whether the petitioner is n grade-18 or grade-19 or the accommodation in question is that of 'A' or 'B' ype being controversial questions cannot be looked into while exercising our onstitutional jurisdiction under Article 199 of the constitution. It is well tablish by now that while exercising constitutional writ jurisdiction High Jourt does not make a thorough probe regarding ticklish, complicated and ntroversial questions of fact as they could only be resolved by a competent ivil court or any other forum provided for such purposes (PLD 1986 Qta P. 14 + KLR Crl. C.P. 641 D.B.). 6. We have also focused our attention to part (V) of the rules which eeds radical changes as the procedure specified therein seems to be defective. The allotment should be made at the direction of committee and it should not left exclusively to the sweetwill of Chairman who by virtue of clause (III) of Rule-6 will sit again as Chairman of the Committee to decide appeals preferred against his order which is in violative of the principles of natural justice, fair play, equity and settled norms of justice. The procedure of appeal as provided in Rule 8 which deals with 'out of turn allotment' should be made applicable to all case and clause (III) of Rule 6 may be deleted. 7. We have dialated upon clause (IV) of Rule-14 which is reproduced herein below for ready reference:- "Allotment of accommodation may be transferred to the father/mother/real brother/real sister/real son or wife/husband of the allottee, if he/she is eligible for the same or for a higher type of accommodation at the time of the event or becomes eligible within 2 months of the event and beneficiary had been ordinarily residing with the allottee. In case he/she is entitled to a lower class accommodation he/she shall be allotted the first available quarter in that class and till such time an alternative accommodation is made available, he/she may retain the accommodation in his/her occupation on payment of normal rent." 8. A bare perusal would reveal that transfer of accommodation is subject to eligibility which is different than that of entitlement, "eligible means legally qualified or fit to be chosen" and eligibility is to be determined in the light of rules by the committee, "entitlement" obviously refers to the determination of a person's right to a certain position, office or status based on the correct assessment of his claims in the light of the legal requirements and prescribed qualifications. According to the Stroud's English Dictionary, the expression "entitled to" used in relation to property has been described as most comprehensive and under it all kinds of property will pass in which the person spoken of has any title at law or in equity. The word "entitled" like "vested" prima faice refers to the rights, and not to the possession. According to the Oxford English Dictionary, "entitled" has been used in the sense of furnishing with a title or giving a rightful claim to possession or designation etc. According to Black's Law Dictionaiy "to entitle" in its usual sense is to give a right or titie. Saeed Hassan v. Pyar All and 7 others (PLD 1976 S.C. 6). 9. In view of what has been mentioned above "eligibility" depends upon fulfilment of certain condition while "entitlement" speaks about right. It would be appropriate to see here at this conjecture that what does a "right" mean. "A right is an interest which is recognised and protected by law. As it is recognised by law a man is entitled to have it. As it can be protected by law, the possessor can enforce it by an appropriate action in a court" (Civil Procedure Code (Amendment) Act, 1951 Sec. 20; Adaptation of Laws Order, 1950, Sec: 2QMaloji NarsingRao v. Shanker Saran, 1958 All, 775). Before a right could be enforced it must have legal recognition which cannot without a base and solid foundation. The question whether petitioner has some solid foundation to press his claim as "right" cannot be solved without considering the record which is controversial regarding grade of petitioner and type of accommodation to which he is entitled, cannot be determined while exercising our constitutional j urisdiction. 10. It is also to be noted that word "may" has been used regarding transfer of accommodation in above reproduced clause and it cannot be given the meanings of "shall" as the use of word "may" is not an accidental omission but it is deliberate and Rule Making Authority appears to be conscious about the implication of words "may" and "shall". The said view finds support from the rules where word "shall" and "may" have been used in accordance with situation. For example the word "shall" has been used in Rule-3(2), Rule 4(2), Rule 5 and Rule-6 but in clause III of Rule 6 the word "may" has been used. Similarly in clause-I and clause II of Rule 8 word "shall" has been used but in clause-Ill and clause-IV of Rule 8 word "may" has been used. It is to be noted that in the same provision two different words "may" and "shall" have been used and it appears that the two words have been deliberately chosen in first context. It can thus safely be inferred that the allotment of accommodation by way of transfer is not must and .mandatory. 11. We have observed that flagrant violation of rules and infringement of the principle "First come First serve" enunciated in Rule- 7(IV) in allotment has been made in utter violation of the rules and even grade-17 officer is occupying accommodation meant for grade-22 officer. In this regard allotment of Bungalow. No. 514-A Cantt. can be referred. We do not want to dislodge all the officers as they have not been impleaded as parties but it is high time that such irregularities must be regularised in the interest of smooth administration and to avoid hard burning and time consuming litigations in different courts. 12. We have considered the main objection as argued by learned Advocate General that the petitioner is not an aggrieved person, therefore, constitutional jurisdiction cannot be invoked. It is well settled by now that A 'person' aggrieved must be a'man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In order that a person is an 'aggrieved pe son' within the meaning of Article 98 he may not have right in strict juristic sense but he must show that he had a "personal interest in the performance of the legal duly" and that the non-performance of the duty is to result in the loss of some "personal benefit or advantage or the curtailment or a privilege". Unless he shows that he will loss "some benefit or advantage which would have gained if the order was in accordance with law" he cannot be an aggrieved person. (PLD 1972 P. 848). 13. A bare perusal of the above reproduced verdict would show that legal speaking the petitioner is not an aggrieved person as no legal right vested in him has been infringed. It is an admitted feature of the case that being grade-18 officer he is not entitled to get accommodation meant for grade-22 officer as a matter of right. If previously some illegality has been committed by the Allotment Committee that cannot be followed by this court. A thorough scrutiny of the rules would indicate that provision of appeal is not only available but this remedy has been invoked by the petitioner whose appeal is pending adjudication before worthy Chief Secretary. There is no cavil to the proposition that "non-existence of adequate remedy provided by law is a sine qua non for exercise of jurisdiction under Art. 199. Resort to jurisdiction under Art. 199 should not be permitted if it amounts to circumvention of normal process of law. Writ jurisdiction is not available to a person seeking to circumvent and defeat law by initiating parallel proceedings and substituting writ jurisdiction for remedy otherwise available in law. (NLR 1995 P. 96). It is remarkable to note that the courts generally refused to interfere in the decision of Administrative Tribunals unless there is any patent illegality or irregularity in procedure with some concrete prove that the rules were in violation of the principle of natural justice or that they were not properly adhered to or that there was malice or mala fides in arriving at the decision. In this regard we are fortified by the dictum laid down in PLD 190 Kar. P. 325. The allotment Committee has not transferred the house in question to petitioner for which an appeal is lying pending before Chief Secretary but it cannot be inferred that Allotment Committee has exercised its jurisdiction wrongly which was not conferred upon it. In view of what has been stated above, we are inclined to direct Chief Secretary being appellate authority to dispose of the appeal filed by petitioner within three weeks and till then petitioner should not be evicted from Bungalow No. 44-A Masoom Shah Street of Anscomb Road , Quetta . The appeal should be decided in accordance with law and interpretation of various rules as made herein above. The petition being devoid of merits is dismissed. (K.A.B.) Petition dismissed.
PLJ 1997 Quetta 47 (DB) PLJ 1997 Quetta 47 (DB) Present: AMIRUL MULK MENGAL AND JAVED IQBAL, JJ. PAKISTAN WAPDA HYDRO ELECTRIC CENTRAL LABOUR UNION through its GENERAL SECRETARY, LAHORE-Petitioner versus GOVT. OF PAKISTAN through SECRETARY MINISTRY OF LABOUR MANPOWER & OVERSEAS PAKISTANIS, ISLAMABAD and 10 others-Respondents C.P. No. 254/1996, dismissed on 9.10.1996. (i) Alternate Remedy- Since alternate remedy by way of appeal is available to petitioner, hence constitutional petition is not competent as petitioners had an adequate and effective remedy. [P. 54] B (ii) Defect Doctrine-- Member NIRC--Defective appointment of--Validity of orders passed by him-Actions taken or orders passed by Member NIRC on the basis of defect in his appointment are fully saved by de facto doctrine. [P. 52] A Mr. Asghar Malik, Advocate for Petitioner. Rqja Rob Nawaz, DAG for Govt. of Pakistan Syed Ayaz Zahoor, for Respondent No. 4. Mr. Muhammad Ayaz Khan Sawati, Advocate for Respondents No. 6 toll. Date of hearing: 9.10.1996. judgment Amirul Mulk Mengal, J.--This Constitutional ^Petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 with the following prayers:- "It is therefore respectfully prayed that it may kindly be declared that the Respondent No. 4 has no authority under law to act as Member of the Respondent Commission and his appointment as Member of the Respondent is coram non judice and without lawful authority. It is further respectfully prayed that it may kindly be declared that the petition No. 4A(2ID/96 filed by the Respondent No. 5 Union before the Respondent No. 4 and orders dated 25.6.1996 and 30.7.1996 passed by the Respondent No. 4 were so initiated/passed without lawful authority and are thus of no legal effect. Any other relief appropriate in the circumstances of the case may kindly be granted. Costs may also be awarded". Relevant facts for filing of the petition are that the petitioner is a Trade Union and according to it respondent No. 4 does qualify to be appointed as member of National Industrial Relations Commission (hereinafter referred to as the NIRC). Similarly respondent No. 5 is a registered establishment and CBA for Electricity Operation in the Province of Balochistan. The petitioner union was initially formed and registered under the name and style of "West Punjab Hydro Electric Central Labour Union Lahore vide Registration Certificate No. 362 dated 10.3.1948. Subsequently on the Establishment of West Pakistan its name was changed to West Pakistan Hydro Electric Central Labour Union Lahore. It claims that respondent No. 5 Union which is a CBA is a small union of Thermal Power Station Sheikhmanda and not for all establishments of the Respondent Authority. The Registrar Trade Unions Balochistan opined that respondent No. 5 is rRnresfint.incr pmnlnvpfis wnrkincr in all winas n Authority in the Province of Balochistan. He also informed respondent No. 6 that it is CBA for all establishments. The Registrar further is of the view that petitioner union has no locus-standi to act as CBA in respondent authority for Province of Balochistan vide memorandum No. 13/RTU/DLW/QTA 615 dated 4.1.1986. Feeling aggrieved of the action taken by Registrar Trade Unions Balochistan petitioners filed a Petition No. 7(35)/1986 under section 34 of the Industrial Relations Ordinance 1969 (hereinafter referred to as the "IRQ") before the NIRC. Alongwith the main petition an Application No. 24(113)/1996 for grant of interim relief was filed in which following order was passed: "to allow the petitioner union to act as a CBA in the Establishment of respondent Authority in the Province of Balochistan Until further orders. This order was passed on 24.2.1986. Respondent No. 5 Union filed Constitutional Petition No. 18/1986 against interim order dated 24.2.1986 and a Division Bench of this Court vide order dated 18.3.1986 passed the following orders:- "However, we may observe that from the material placed on record by both the contesting parties, it seems that the Petitioners have been entering into settlements with the local establishments of WAPDA in Baluchistan as the Collective Bargaining Agent, whereas the Respondent No. 2 has also been entering into settlements on Pakistan basis including in respect of Balochistan with WAPDA. In our view it will be just and proper to clarify that the Petitioner as well as the Respondent No. 2 shall continue to function as they were doing prior to the passing of the impugned order." The petition filed by petitioner union under section IRO was subsequently dismissed by the learned Senior Member of the Commission. However, on appeal the case was remanded for fresh decision vide order dated 6.5.1987. On remand the Senior Member of NIRC accepted the petition and held that respondent No. 5 union was no longer CBA in the Province of Balochistan vide order dated 21.11.1992. Feeling aggrieved respondent No. 5 union filed appeal before Full Bench of NIRC. The appeal was admitted for regular hearing and operation of the impugned order dated 21.11.1992 was suspended vide order dated 2.12.1992. However, on application filed by petitioner union for vacation of stay the Commission directed that state of affairs as it existed before the passing of the impugned order would continue till the disposal of appeal vide order dated 4.1.1993. The Balochistan unit of petitioner union filed Petition No. 4A(204)/96 under section 22-A(8)(g) of IRO alongwith application No. 24(270)/96 for grant of interim relief before respondent No. 4 on which orders were passed on 18.6.1996 and matter wa fixed for 21.7.1996. Similarly respondent No. 5 Union filed petition No. 4A (21D/96 under section 22-A(8)(g) of IRQ alongwith another Application No. 24(285)/96 for grant of ad-interim relief on 24.6.1996. Respondent No. 4 issued restrained order which is impugned in this petition. Heard ,Mr. M. Asghar Malik, Advocate for petitioner, Mr. Tariq Mehmood, Advocate, Syed Ayaz Zahoor, Advocate for Respondent No. 4, Mr. H. Shakeel was absent despite Service. Mr. Muhammad Ayaz Khan Swati, Advocate for respondents No. 6 to 8 and Deputy Attorney General. At the final date of hearing Deputy Attorney General at the very outset raised an objection on the maintainability of petition on the ground that the Government of Pakistan has been pleased to issue Notification No. F.No. l(l)/94-Admn. II. dated 30.10.1996 with the effect that Respondent No. 4 is no more holding public office or judicial office of member NIRC, therefore, the petition has become infructuous. As far as-orders impugned dated 25.6.1996 and 30.7.1996 are concerned, it was contended that alternate remedy for the same by way of filing petition before Full Bench of NIRC is available but the same has not been availed, hence the petition is liable to be dismissed. In the first instance it may be observed that since the Federal Government has been pleased to issue notification that Respondent No. 4 is no more holding public office as Member NIRC, hence the first prayer in which a writ in the nature of Quo Warranto had been made become infructuous. However, we heard the counsel for petitioner as regards the second prayer wherein orders passed by respondent No. 4 have been impugned in this petition. The counsel for petitioner assailed the order impugned herein on various grounds including the point that appointment of Respondent No. 4 was not in accordance with law as he was not qualified at the relevant time to be appointed as Member NIRC, therefore, any order passed by him-ls a nullity in the eye of law. We have already stated that the Government of Pakistan has removed the Respondent No. 4 as Member NIRC, therefore prayer in the nature of quo warranto has become infructuous. The only question left to be determined is whether actions taken, decisions made or orders passed by Respondent No. 4 in the capacity of Member, NIRC can be challenged on the sole ground that his appointment was defacto and not dejure? In this respect passage in Cooley's "A Treatise on the Constitutional Limitations" (8th Edition, Vol. 2; pages 1355-1358) as reproduced in AIR 1937 S.C. 237 will be of much assistance thus are reproduced as under: - "An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties. By being thus chosen and observing the precedent conditions, such a person becomes of right entitled to the possession and enjoyment of the office, and the public, in whose interest the office is created, is entitled of right to have him perform its duties", ........ In all other cases the acts of an officer defacto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be question collaterally." Although in AIR 1977 S.C. 237 it was clearly held that it is the duty of the High Court to strike down usurpation of office in exercise of their constitutional jurisdiction and when a matter is directly challenged in the High Court in the nature of quo warranto the High Court must exercise such powers. But .herein case in hand the Government has rectified the wrong as the respondent No. 4 has been removed as Member NIRC. The question of actions taken by respondent or orders passed by him had been protected in view of the above quoted passage. Similarly in view of a decision of the Ontario Supreme Court in Re Toronto R. Co. v. City of Toronto, 46 DLR 547 in which it was observed:- "That it is not open to attack, in a Collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear. I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information.' From the above authorities, the conclusion likely to be drawn is that it is not open to attack action taken, orders passed or decision made by a. de facto Judge having at least a colourable title to the office. The petitioner's counsel, however, in order to controvert this principle of de facto doctrine relied on 1971 PLC 491. Facts in the said case were that an award given by the Labour Court partially constituted under East Pakistan Labour Disputes Act, 1965 was challenged on the ground that two members of the court had not been selected in accordance with the provisions of section 9(4) of the Act. It was, therefore, urged that the entire proceedings before the Labour Court were null, void and without jurisdiction. It was further held that proceedings by such court are coram non judice. With all respect it may be stated that the defacto doctrine was not considered in the above case. In Gokaraju Rangaraju vs. State ofAndhra Pradesh reported in AIR 1981 S.C. 1473, it was held by Indian Supreme Court that the de facto doctrine is now well established and that the acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were acts of an officer dejure. It was further held that a Judge de facto is one who is not a mere intruder or usurper but who one holds office under colour of lawful authority though his appointment is defective and may later be found to be defective. In Pakistan jurisdiction we can find case of Abdul Salam Qureshi vs. Special Court of Banking reported in PLD 1984 Karachi 462 which discussed de facto doctrine as regards appointment of Mr. Ahmad Mi U. Qureshi as a District Judge while he was performing the functions of Banking Court under the Banking Companies (Recovery of Loans) Ordinance, a Division Bench of Sindh High Court held that orders, judgments and decrees passed by him were saved by de facto doctrine. Similarly Mr. Justice Ajmal Mian in case of Sabir Shah vs. Federation of Pakistan in PLD 1994 S.C. 738 observed as under:- "In my view for orderly governance and as a matter of public policy, the validity of the appointment of'an incumbent of a public office or a Government functionary cannot be impugned through a collateral proceeding. In this view of the matter, I am inclined to hold that it is not necessary in the above proceedings to hold, whether the Acting Governor was validly appointed or not for the reason that the acts, actions taken or orders passed by the Acting Governor are covered by the de facto doctrine." Following the said principle it may be seen that respondent No. 4 in capacity of Member, NIRC has passed several orders and has made various decisions, thus the same cannot be called in question on the de facto doctrine. Thus the challenge to the actions taken or orders passed by respondent No. 4 on the basis of defect in his appointment are fully saved by de facto doctrine. Now attending to the preliminary objection raised by learned Deputy Attorney General supported by Mr. Tariq Mehmood, as regards alternate remedy it may be observed that the petitioner's counsel canvassed that Rule of Policy and convenience are not equivalent with rule of law and that if an order is nullity in law the bar of alternate remedy shall not be available. Reliance was placed on 1972 S.C.M.R. 257, PLD 1972 S.C. 279 and PLD 1967 S.C. 294. The counsel, however, could not satisfy us how the order was a nullity in law except that there might be some de fects in appointment of Respondent No. 4 who passed such orders about which we have already held that his actions were covered under defacto doctrine. The order impugned is appealable under section 22-D of I.R.O. which is reproduced as under:- "22-D. Appeals: (1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission, other than a Full Bench may, within thirty days of such award, decision or, sentence or order prefer an appeal to the Commission. (2) An appeal preferred to the Commission under subsection (1) shall be disposed of by the Full Bench of the Commission which shall:- (a) if the appeal is form an order determining a collective bargaining unit, have the power to confirm, set aside, vary or modify such an order; and (b) if the appeal relates to any other matter, have the ame power in relation to the appeal as the Labour Court, the Tribunal or the High Court, as the case may be, would have had if the matter to which the appeal relates were a matter in relation to which an appeal can be preferred to the Labour Court, the Tribunal or the High Court." Bare perusal of above provision would reveal that any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission other than the Full Bench may within thirty days of such award, decision or sentence or order prefer an appeal to the Commission. Applying this principle to the facts of the present case it is evident from the impugned order dated 30.7.1996 that the Member NIRC declared that petitioner shall have no entitlement to claim the rights of collective bargaining agent in the Establishment of WAPDA, for the Province of Balochistan, therefore, the petition is accepted and Respondents No. 1 to 6 are permanently restrained from entertaining the respondent No. 7 as collective bargaining agent. This clearly shows that the order falls in the purview of section 22-D IRQ which is appealable before the NIRC. The same may be further clarified from the fact that the petitioner has already invoked the jurisdiction of the Commission as regards the similar order earlier passed and it is main ground that since against such order the Commission has already passed orders, therefore, the impugned order is hit by res judicata. Thus the petitioner in similar circumstances and against an order of like nature has already invoked jurisdiction of the Commission under section 22-D of IRQ but this time he without having resort to alternate remedy of filing an appeal directly challenged the impugned order in Constitutional petition ostensibly under impression that appointment of Respondent No. 4 has not been validly made. But since the Respondent No. 4 has already been removed by the Government of Pakistan, as such his order would be conveniently assailed before the Commission. There is no cavil to the proposition that petitioners have already filed appeals against similar orders but this time they by circumventing the process of appeal directly approached this Court in constitutional petition which fact was emphatically and vehemently opposed by learned Deputy Attorney General as well as Mr. Tariq Mehmood. The petitioners counsel while trying to prove that the order is a nullity in the eye of law contended that the Member N1RC ignored order of High Court of Balochistan passed by a Division Bench on 3.8.1986. Thus he had to directly come in constitutional jurisdiction bringing this fact to the notice of this Court. In Division Bench the following order was passed as back as in 1986:- "By consent of the parties the following order is passed: (i) That the petitioner and the respondent No. 2 shall continue to. operate as they were operating prior to the order dated 24.2.1986 passed by the learned Member of N.I.R.C, and prior to the directive issued by the Registrar on 19.11.1984 and 4.1,1986. (ii) That both the parties shall be entitled to raise whatever factual or legal objections they wish to raise beforp the N.I.R.C, (iii) That it is clarified that the interim order dated 18.3.1986 passed by this Court in this petition did not intend to create any new situation or confer any right upon the petitioner or upon respondent No. 2 which they were not enjoying, prior to the passing of the above interim order of the N.I.R.C. dated 24.2.1986 and prior to the above two directives of Registrar Trade Unions dated 19.11.1984 and 4.1.1986. (iv) The petition stands disposed off in the above terms with no order as to costs." Mr. Tariq Mehmood, however contended and rightly so that the said order has merged into the appellate order passed by the Commission in prior proceedings. This order in fact was passed with clear intention that both the parties shall be entitled to raise whatever factual legal objections they want to raised before NIRC. It was not. intended to strangulate the jurisdiction of the N.I.R.C. but to allow breathing time to the parties to maintain status-quo and approach the NIRC. NIRC is competent in law to determine about C.B.A. and that is what the Member NIRC has done in this matter. Since alternate remedy by way of appeal is available to the petitioner, hence present petition is not competent as the petitioners had an adequate and effective alternate remedy. Besides the petitioner's counsel raised several questions in order to show that impugned order suffers from infirmities as the Member NIRC could not take a decision without recording of evidence and that the second application on the same subject matter could not have been initiated again before Member NIRC when the matter is pending before Full Bench of the Commission or question of locus-standi to file second petition on the same subject. He also took exception to the conduct of Mr. Hafeez Amjad, Advocate who in derogation of ethical standards appeared for Respondent No. 6 although he had been representing the petitioner in the High Court. All such question? are open and could be conveniently urged before Full Bench of NIRC, We have already mentioned that in peculiar circumstances the petitioners have approached the Full Bench and obtained certain orders passed by Member NIRC even prior to this. Thus they could again adopt the same course as the law has given them a right of appeal within the meaning of section 22-D of IRQ. In the circumstances and for foregoing reason we are not inclined to interfere with an ad-interim order passed by member NIRC determining CBA for which an alternate remedy by way of appeal was available. However, we notfid with concern that this matter is pending since 1986 and for last 10 years the same has not been disposed of by NIRC which in any case is not commendable. Resultantly the petition is dismissed. However, in view of intricate legal questions we don't pass any orders as to costs. (M.S.N.) Order accordingly.
PLJ 1997 Quetta 55 (DB) PLJ 1997 Quetta 55 (DB) Present: iftikhar muhammad chaudhry and mir muhammad nawaz marri, JJ. M/s GATRON (INDUSTRIES) LTD.--Petitioner, versus FEDERATION OF PAKISTAN through SECRETARY MINISTRY OF FINANCE GOVT. OF PAKISTAN , ISLAMABAD and two others-Respondents. Constitution Petition No. 325 of 1994, dismissed on 11.11.1996. Constitution of Pakistan , 1973-- Arts. 199,18,24 £ 25-lncome Tax Ordinance (1979) S. 80-D--'Turnover'--Levy of Tax under S. 80-D of Income Tax Ordinance, 1979-Vires of legislation-Legislature has not over-stepped its jurisdiction on levying Income Tax 0.5% of amount representing 'turnover' of companies and registered Firm from all sources to be income of Assessee Company or firm and to avoid evasion of tax at large scale and also to widen taxation base it was necessary to stretch term "Income Tax" to presumptive taxation, in largest interest for economy of country and qualifications of tax payers falling within mischief of S. 80-D of Ordinance-Held: It is in no manner unreasonable nor it violates to Articles 18, 24 and 25 of Constitution-Petitions without substance are accordingly dismissed. [P. 67] A Income Tax Ordinance, 1979 (XXXI of 1979)- Second Schedule, clause 188(c)--Income Tax on aggregate, turn over'- Exemption-Perusal of explanation to sub-section (1) of S. 80-D of Ordinance clearly indicates that as for exemption in clause 188(c) is concerned that would not be applicable while charging Income Tax on aggregate declared 'turnover' if Tax is not being paidfor any reason, whatsoever, including exemption from Tax-In addition to it, nothing has been brought on record to indicate that petitioner's industry also fulfils conditions laid down under item 118(c)(2)--Held: Argument put forth by learned counsel is not entertainable. [P. 69] B & C Mr. Iqbal Naeem Pasha, Advocate for Petitioner. M/s Nasarullah Awan and Shaikh Haider, Advocates for Respondents No. 2 & 3. Date of hearing: 31.10.1996. judgment Iftikhar Muhammad Chaudhary, J.-In Constitutional Petitions No. 325/94, 375 and 376 of 1995, validity of section 80-D of the Income Tax Ordinance, 1979, (herein-after referred to as 'Ordinance') being Ultra vires to the provisions of Constitution of Islamic Republic of Pakistan, 1973 (herein-after referred to as 'Constitution') has been challenged. Therefore, we have proposed to dispose of all these matters by this common Judgment. The petitioners are engaged in the manufacture and export/local sale of Polyester Yarn. Messrs Gatron (Industries) Limited, declared a net loss of Rs. 208,942,298/- and Rs. 153,290,208/- for the Assessment years 1994-95 and 1995-96, at the close of financial years i.e. 30th June, 1994 and 30th June, 1995, respectively. Whereas case of Lafayette Industries Synthetics Limited, covered by C.P. No. 376/95, is that vide clause (188-D) of Part-I, of the 2nd Schedule to the Ordinance, no income Tax is liable to be paid under section 80-D of the Ordinance, because specific exemption has been granted to it, It is the case of petitioners that their Industrial Units are not yielding profit or otherwise exemption from liability to pay Income Tax has been accorded, therefore, no liability an be imposed upon them under section 80-D of the Ordinance. As such, demand being made from them on 'turnover' basis at the rate of half percent is illegal, because the provisions of law i.e. section 80-D of the Ordinance, is ultra vires to Entiy No. 47 of Part I, of the Fourth Schedule to the Constitution. Therefore, on declaring said section of the Ordinance being void and of no legal effect; relief as has been prayed for, be granted to them. Mr. Iqbal Naeem Pasha, Advocate appeared on behalf of petitioners. Raja Rab Nawaz, Deputy Attorney General, Mr. Sheikh Haider, Advocate and Mr. Nasrullah Awan, Advocate opposed petitions on behalf of respondents, respectively. Learned Counsel for petitioners, contended that section-80-D of the Ordinance has been enacted by Legislature without jurisdiction and powers, as Income Tax, cannot be imposed on 'turnover/Gross receipts' basis, because it is universally accepted phenomena that tax is to be paid on profits of a Trade or business. Expression 'Income' employed in Entry 47 of Part I, of the Fourth Schedule to the Constitution, is to be interpreted inview of the definition of 'Tax on Income' as it has been defined in Article 260 of the Constitution. Therefore, law givers over-stepped these Constitutional provisions, while enacting section 80-D of the Ordinance, thus, deserves to be struck down being unconstitutional. To strengthen his arguments, he relied on Excess Profits Tax Act, 1940. The Business Profits Tax Act, 1947, PLD 1984 Kar 01, AIR 1928 (Privy Council) 282, AIR 1930 (Privy Council) 209 and 1971 (82)1T.R. 794. Raja Rab Nawaz, learned Deputy Attorney General, contended that petition is not maintainable, because the Company or Firm is not legally authorized to challenge vires of any statutory provision, at the touch stone of Articles 18, 24 and 25 of the Constitution, as according to him, under these Articles, only citizens can challenge a law, if it is inconsistent with or in derrogation with fundamental rights, as it has been specified by Article 8 of the Constitution. Majlis-e-Shoora (Parliament) in view of Entry 47 of Part I, of the Fourth Schedule to the Constitution, has lawfully enacted section 80-D of the Ordinance. He also relied on the definition of term 'Income' from the Judgments delivered in the cases of Pakistan Industrial Development Corporation vs. Pakistan through Secretary, Ministry of Finance (1992) 65 Tax 84, Bhagwan Das Jain vs. Union of India and others (AIR 1981 S.C. 318) (This Judgment has also been reported in 1981 (128) I.T.R. 315 S.C.) and Elel Hotels & Investment Ltd. & ors vs. Union of India (AIR 1990 S.C. 1664). Learned Counsel for Respondent No. 2, contended that term 'Income' is to be construed in a wider sense in view of its definition under section 2(24)(c) of the Ordinance, to provide a wider tax base for generating revenues, enabling Federal Government to meet requirements of modern age, otherwise, if this expression is used in a narrow sense, it would tantamount to give licence to those Traders, who although are running Industries, successfully making hug profits, which is being used for installing other Industrial Units, only for purpose of their personal benefits, but when Income Tax returns are filled, they desist and pay nothing on pretext of sustaining heavy losses. Therefore, the Legislature to motivate the Industrialists, owners of registered Firms and also to expand the Tax base, imposed a minimum tax of 0.5% on annual 'turnover' in view of broader definition of term 'Income' given in the Constitution. He also relied on Judgements cited by learned Deputy Attorney General, besides referring to Judgment delivered by learned Division Bench of Lahore High Court in Writ Petition No. 8621 of 1991 arid number of other connected identical Constitutional Petitions, on 22nd January, 1995. Learned Counsel for respondent No. 3, argued that any term/expression used in the Constitution is required to be interpreted in its widest sense and should not be made subservient to any limited definition. According to him, Constitution itself has not defined the term 'Income' and as for as expression 'Tax on Income' defined in Article 260 of the Constitution is concerned, it has no nexes with the proposition under consideration, because presently in Pakistan, no law to levy Income Tax on excess profits in Trade or business, exist. Therefore, term 'Income' is to be interpreted in a liberal manner to obey the command of Constitution. He also stressed that presumptive tax is not alien to existing and repealed Income Tax Laws. To support his arguments he made reference to number of provisions from the Ordinance, wherein mere on basis of expected profit, it has been held that it would be deemed to be the Income of Assessee. It was also contended by him that section 80-D of the Ordinance, contains nonabstante clause, on account of which, definition of term 'Income' has been made wider in order to cover the case of those Traders, who although are making profits but showing loss in returns. Learned Counsel also emphasised that Legislative body had not over-stepped any constitutional provision, while enacting section 80-D of the Ordinance and it was within its competence to legislate beneficiary law in largest interest of Nation. He also contended that petitioners have not been able to show that on what basis, section 80-D of the Ordinance, should be declared ultra vires to the Constitution. He relied on number of Judgments, including those, which have been referred to hereinabove, while noting arguments of learned counsel for respondents 1 and 2. Reference was also made by him to Interpretation of Taxing Statutes to define the term 'Income' and Words and Phrases Volume 28A and Corpus Juris Secundum Volume LXVI, to define word 'Notwithstanding'. We have heard the parties' Counsel at length and also considered their respective contentions, in view of relevant substantive and precedent law, cited at bar. Since term 'Income' is required to be interpreted therefore, for sake of convenience, relevant provisions i.e. Entiy 47 of Part-I, of the Fourth Schedule to the Constitution, sections 2(24) and 80-D of the Ordinance, are reproduced herein-below:- "Entrv 47 of Part I. of the Fourth Schedule to the Constitution. 47. Taxes on income other than agricultural income. Section 2(24) of the Ordinance. (24) 'Income' includes:- (a) any income, profits or gins, from whatever source derived, chargeable to tax under any provision of this Ordinance under any head specified in Section 15; (b) any loss of such income, profits or gains; and (c) any sum deemed to be income, or income accruing or arising or received in Pakistan under any provision of this Ordinance. but does not include, in the case of a shareholder of a domestic company, the amount representing the face value of any bonus shares or the amount of any bonus, declared, issued or paid by the company to its shareholders with a view of increasing its paid up share capital;" Section 8Q-.D of the Ordinance. 80-D Minimum toy on income of certain companies (and registered firm), ~(I) Notwithstanding anything contained in this Ordinance or any other law for the ume being in force, where no tax is payable (or paid) by a company (or a registered firm) resident in Pakistan or the tax payable (or paid) is less than one-half percent of the amount representing its turnover from all sources the aggregate of the declared turnover shall be deemed to be the income of the said company (or registered firm) and tax thereon shall be charged in the manner specified by sub-section (2). (Explanation.-Yor the removal of doubt, it is declared that the expression Svhere no tax is payable or paid' and 'or the tax payable or paid' apply to all cases where tax is not payable or paid for any reason whatsoever including any loss of income, profit or gains or set off of loss of earlier years, exemption from tax, credits or rebates in tax, and allowances and deductions (including depreciation) admissible under any provision of this Ordinance or any other law for the time being in force.) (2) The company (or a registered firm) referred to in sub section (1) shall pay as income tax:- (a) an amount where no tax is payable (or paid) equal to one-half percent of the said turnover; and (b) an amount, where tax payable (or paid) is less than one-half percent of the said turnover, equal to the difference between the tax payable and the amount calculated in accordance with clause (a). Explanation.-For the removal of doubt, it is declared that 'turnover' means the gross receipts, exclusive of trade discount shown in invoices or bills, derived from sale of goods or from rendering, giving or supplying services or benefits or from execution of contracts." A cursery perusal of above quoted provisions, reveal that they are inter linked with each other, because term 'Income' has been used commonly in Constitution and remaining two statutory provisions. There is yet another similarity in section 2(24)(c) and section 80-D of the Ordinance, because connotion 'deemed to be income' has been consciously employed in both the provisions by the Legislature. The recognized principle of Interpretation of Statutes is that it is the safest guide that when construction of sweeping general words which are difficult to apply in their full literal sense is to examine other words of like import in the same instrument and to see that limitations must be imposed on them and it is found that a number of such expressions have to be subjected to limitations and qualifications and that such limitations and qualifications are of same nature, that circumstance forms a strong . argument for subjecting the expression in dispute to a like limitation and qualifications (Maxwell on the Interpretation of Statutes 10th Edition 29). Hurriedly surveying the Ordinance, one can visualize that connotation 'deemed to be income' has been used repeatedly with certain limitation and qualifications in the Ordinance, while taking care of different situations in respect of accruing or arising income, for purpose of levying Income Tax. Reference can be made to sections 12(1), 13, 19(4), 22A, 59C(a), 18(2), 18A(l-A)(b), 18AA(1), 18B, 18(C), 18CC, etc. of the Ordinance. At this juncture it is to be kept in mind that under these sections instead of actual/physical income, the income which will accrue/arise subsequently being presumptive income, has been accepted as income for purpose of leaving Income Tax. Therefore, in such situation, where the same Instrument had used identical expression of 'deemed to be income' in its different parts, it would mean that not only while enacting section 80-D, even prior to it, 'Income Tax' has been imposed/levied not on the basis of profit/gain, but even on such amount which could only be deemed/believed to be gain of an Assesses. This connotation i.e. 'deemed to be income' was also used invariably at different places with reference to relevant context in repealed Income Tax Act, 1922. So is the position in the Income Tax Act, 1961, presently applicable in India. This phenomena of collecting Income Tax is based on the theory of presumptive taxation, introduced by Richard Musgrave, In this behalf Kerala High Court in 1989 (176) ITR 481, examined this theory with reference to Entiy 82 of List of seventy Schedule to the Constitution of India. Relevant discussion having persuasive value, for convenience is reproduced hereinbelow:- "The first contention may be dealt with first. The constitutional entry reads "tax on income", 'Income', aceemingly simple word has created a world of confusing concepts. Lord Me Naughten's speech about income-tax is classic and has remained thought-provoking in all climes and times. "Income-tax, My Lords, if I may say so, with respect, is a tax on income." The be wildering connotation of the term 'Income' came to be. indicated and illustrated in long passages and a catena of judicial decisions rendered even thereafter. Could it be said that without actual income, no income-tax is possible or possitable? That query which has been raised long ago has been clearly answered by the Supreme Tribunal of the land. In variety of situations, income-tax has been fixed rigidly and artificially. Artificial fixation of house property income is demonstrated by the decision in Bhagwan Dass Jain v. Union of India (1981) 128 ITR 315 (SC). The exercise has been indulged in not merely by Parliament but also by the State Legislatures. The base of profession tax was given such an artificial structure by the Maharashtra and Gujrat States. Different standards could be selected for fixation of income-irrespective of the actuality of the situation. Illustrations are the actual value of one's own building and the undistributed profits of a company in the context of taxation for income-tax purposes. It would be sufficient if the income figure is reached by standards which are sufficiently just. Legislative entires should receive the widest interpretation - is a basic tent put forward for sustaining such statutory fictions and schemes. Income is subjected to taxation whether it is actually received or has notionally accrued. (See CIT/CEPT v. Bhogilal Laherchand (1954) 25 ITR 50 (SC) and CIT v. Lady Kanchanbai (1970) 77 ITR 123 (SC) (126). In a sense, the practice can be traced back even to the earlier decisions in Shaw Wallace and Co. v. CIT (1932) 6ITC 178 and Navin Chandra Mafatlal v. CIT (1954) 26 ITR 758 (SC). Later decisions also are available illustrating the principles. Gross receipts, without giving deduction for expenditure being treated as income was uphled in Travancore Robber and Tea Co. Ltd. v. State of Kerala (1963) 48 ITR (SC) 102. Legal principles laid on similar lines are discernible from the decision in Punjab Distilling Industries Ltd. v. CIT (1965) 57 ITR 1 (SC). It is unnecessary to refer to the multiplicity of decisions on the point when the proposition is clear enough. It would then be sufficient to hold that irrespective of the actual receipt of an income or the factual situation in relation to the real income, it would be competent for Parliament to make a fictional computation of the income and tax it as such. True, there have been extreme instances where attempts at taxation of receipts which had no connection with an income or income-earning activity, have been stifled by court decisions, Judicial thoughts in that area, and in that strain, can possibly b'e traced even to the time when Rowlatt J. observed in Leigh v. IRC (1928) ]»KB 73, 77, that for tax purposes, "receivability without receipt is nothing." It is, however, useful to refer to the observations of Stamp L.J. in the recent decision (Dunmore v. McGowan (1978) 2 All ER 85 at 87) that Rowlatt J.'s dictum was actually rejected in the case. (See the comment by John Tiley: Receivability and Receipt: The Problem of Timing under Income-Tax Legislation 1982, British Tax Review 23). The decisions relied on by counsel for the petitioners (CIT v. Harprasad and Co. (P) Ltd. (1975) 89 ITR 266 (SC), do not lay down anything contrary to the view leaning in favour of the wider interpretation and permissibility of the artificial definition of the term 'income', The decision in State Bank ofTrawancore v. CIT (1986) 158 ITR 102 (SC), contains a corollary observation. At page 788, the Supreme Court observed: "If real income arises, interpretation Should not be such that the provisions of the Act are rendered useless." Viewed from the background of legal practice and judicial decisions, it will then be open to Parliament to deem a portion of the price of the commodity dealt with as income in the hands of the man dealing with them. The legal principles laid down by authoritative decisions holding the field do not in any way rule out such an impost. On the contrary, the practice was been well set and well-recognised and even well-accepted by assessees and authorities alike. Looked at from a theoretical angle also, the position is not different. Many have been the experiences and experiments with income-tax, after it was introduced as a temporary measure, in England, in pressing circumstances. It is unnecessary to refer to all those events and marks in the taxation's march to modern days. When rates became High the temptation to avoid and even evade was stronger. Then it was a keen and competing race between the Reverlue and the assessee. The big sharks quite of ten burst the net, when only minor fiy was cought. That was unfair Vigilant legislatures were alert enough to repair the meshes and tighten the ropes. The theorists and administrators made close observations about the loopholes and bestowed excruciating thoughts on the best ways to plug such holes. The long experience of the tax administrators revealed that in relation to some articles, evasion was easy. It was not merely a case of moonlighters as that therm as in now referred to in taxation parlance. (A moonlighter is a person who has considerable income, some from known and disclosed sources and come substantial portion from undisclosed sources). Certain businesses have witnessed "flyby-light" operators, as referred to in the taxman's colloquium, in other words, there are businesses where accounts are hardly kept; where, even if accounts are kept, the opportunities for manipulations are vast and wide. Businesses are there, where, as soon as income is amassed, the income earned could vanish mysteriously giving the slip even to the watching tax-gatherer. There are businesses were a common alibi could be easily employed or where any one could be an easily available name-lender. Such trades, therefore, rightly, needed stringent and corrective approaches and additional vigilant watch. It was Richard Musgrave who championed this device of presumptive taxation, in his well-known work on public finance. At considerable pains, and at length, he explained the merits of the system. The additional revenue which accrued were welcome advantages for the State, looking for chunks of money to carry out the very many welfare schemes. The Musgrave doctrine made out a case for a differential approach in less advanced countries According to him: "A more realistic approach is needed, using presumptive taxation, applied outside and in lieu of the regular framework of income and sales taxation, as well as estimated tax, basis applied within the context of the regular tax system". It may be seen that deeming provisions containing definition of 'Income' and section 80-D as well as other various provisions of the Ordinance, actually guides an Assessee to pay tax on fictional profit, where he can only expect gains but has been bound down to pay income tax. From above discussion definition of term 'Income' can be streched to a considerable large scale on following the theory of Presumptive taxation. Petitioner's counsel had vehemently argued, on the strength of AIR 1930 (Privy Council) 209 and 1971 (82) ITR 794, that 'Tax is upon income, profits and gains. It is not a tax on gross receipts' and 'the tax Collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax the profit of a trade or business'. To meet with his this arguments, learned Counsel for respondents referred to case of Mst. Samina Shaukat Ayub Khan vs. Income Tax Officer (PLD 1981 SC 85) (This Judgment has. also been relied upon in the case of Pakistan Industrial Development Corporation vs. Pakistan through Secretary of Finance, (1992) 65 Tax 84. " Interpretation of term 'Income' from the case of Mst. Samina Shaukat Ayub Khan, for guidance is reproduced herein-below:- "It will be seen that the term 'Income' as used in the Income Tax Act, is indeed, a term of wide significance and generally and ordinarily it connotes a periodical monetary return, coming in with some sort of regularity or expected regularity, from a definite source; but, as observed by the Privy Council, the multiplicity of forms which income may assume is beyond enumeration; and income need not necessarily be the recurrent return from a definite source; though it is generally of that character. It may consist of a series of separate receipts, as for instance happens in the case of professional earnings. In the last analysis, the question whether a particular kind of receipt is income or not would depend for its answer on the peculiar facts and circumstances of the case. If the nature of the receipt and its source are not satisfactorily explained by the assessee, facts which are generally within his peculiar knowledge, the income tax Officer may legitimately presume that the amount in question is an income of the as of the assessee from an undisclosed source. Once a finding is recorded that the amount in question could be treated as income within the meaning of the charging section, Section 3 of the Income Tax. Act, the burden of proving that the income qualified for exemption under any of the clauses of section 4 of the Act was on the assessee. Subsection (1) of Section 4 of the Act provides that 'subject to the provisions of the Act, the total income of any previous year of any person includes all incomes, profits, and gains from whatever source derived ........................................................................ sub-section (3) of the same section then enumerates exemptions, and the operative words are' 'any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them ....". It was for the appellant to show that she was covered by the exemption granted by clause (vii) of sub-section (3). This she clearly failed to do, for the reason that she could not satisfactorily explain the source of the entire amount of cash found in her hands, nor of the total accertions thereto in subsequent years;". It does not need much reasoning to see that if the source of income Is not disclosed or satisfactorily explained, then it is riot possible to hold that the income was not from business or from the exercise of a profession, vocation or occupation." Similarly in the case of Bhagwan Dass Jain, the Supreme Court of India, while interpreting term 'Income' as used in Entiy 82' of the list of seventh Schedule to the Indian Constitution, which is corresponding to Entry 47 of Part I, of the Fourth Schedule to our constitution, held as under:- "Entiy 82 of list of the Seventh Schedule to the Constitution empowers Parliament to levy 'taxes on income other than agricultural income." Now it is well settled that the entries in the lists in the Seventh Schedule to the Constitution should not be read in a narrow or restricted sense and each and every subject mentioned in the entries should be read as including within its scope all ancillary and subsidiary matters which can fairly and reasonably be comprehended in it. Words in the Constitution conferring legislative power should be interpreted in their widest amplitude." Like wise the Supreme Court of India in the case of Ellel Hotels interpreted term 'Income' as follows:- "On a consideration of the matter, we are of the opinion that the submission of the learned Attorney General as to the source of the legislative power to enact a law of kind in question require to be accepted. The word 'income' is of elastic import. In interpreting expression in the legislative lists a very wide meaning should be given to the entries. In understanding the scope and amplitude of the expression 'income' in Entry 82, list I, any meaning which fails to accord with the plenitude, of the concept of 'income' in all its width and comprehensiveness should be avoided. The cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a riarrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matter which can fairly and reasonably be said to be comprehended in it. The wides possible construction, according to the ordinary meaning of the words in the entry, must be put upon them. Reference to legislative practice may be admissible in reconciling two conflicting provisions in rival legislative lists. In construing the words in a constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude." The Hon'ble Lahore High Court in Writ Petition No. 8621/91, examined constitutional validity of section 80-D of the Ordinance with reference to Entry 47 of Part I, of the Fourth Schedule to the Constitution and on taking into consideration relevant judgments concluded as follows: - "The ration deducible from the foregoing examination is as follows:- (i) That the Constitution is a living document that it reflects the ideological aspiration of the people and is made through their will, that it deals with the governance of the State; that it lays down the frame work of the distribution of the powers and subjects between the federation and federating units. That it delimits the power of various limbs of State; i.e. legislature, executive and judiciary. Being a permanent document it is to be considered liberally and with wide and comprehensive connotation designed to meet the exigencies of the State and changing conditions of socio-religio and economical dynamic of the State. It is to be given purposive, organic construction; each and eveiy provision of the Constitution is to be construed such a manner that it is not rendered suplusage. If there is any conflict between the two provisions, the same are to be interpreted on the basis of the theoiy of reconciling them. (ii) The entries in the Schedule to the Constitution are not to be given any circumscribed pedantic construction. These are to be examined in widest possible spectrum. These entries are the fields in which the legislature of the State are empowered to act and frame laws. (iii) The word 'income' embodied in Section 2(24) of the Ordinance is not of exhaustive import but in inclusive in nature. This word like 'income' in Entry No. 47 is to be construed as largely as possible, (iv) The constitutionality of Statute/law is presumed till it is reputted on the showing of some irrefutable circumstances. Applying these principled to the contentions of parties, we are in no manner of doubt that the Federal legislature was fully competent to enact the challenged provisions. These did relate to the income." Thus over-all effect of above discussion leads us to hold that .in view of the scheme of the Ordinance and interpreting term 'Income' used in the Constitution; it is held that legislature has not over-stepped its jurisdiction on levying Income Tax O.5% of the amount representing the turnover' of Companies and registered Firm from all sources to be the Income of Assessee Company or firm and to avoid evasion of tax at a large scale and also to widen the taxation base, it as necessary to stretch the term 'Income Tax' to presumptive taxation, in the largest interest for the economy of the Country and qualifications of tax payers falling within the mischief of section-80-D of the Ordinance, in no manner is unreasonable nor it violates to Articles 18,24 and 25 of the Constitution. Now turning towards the case of Messrs Lafayatte Industries (C.P. No. 376/95), it is to be observed that section 80-D of the Ordinance, contains non-abstante clause, which has been defined in Dictionary of Modern Legal Usage:- "notwithstanding anything to the contrary contained herein, an ungainly phrase often placed in complex contracts to introduce the most important provisions, can be fairly said to mean" the true agreement is as follows." It is best used when the certain provision is to override another, arguably inconsistent provision." Above expression has also been defined in Corpus Juris Secundum, which reads as follows:- "Notwithstanding. Without prevention of obstruction from or by; in spite of. It has been held to be equivalent to "nevertheless." Similarly in Words and Pharases Volume 28A it has been defined as under:- "Notwithstanding Penalty imposed by local firearms ordinance for discharge of firearms could lawfully exceed that imposed by state firearms statute in light of exception to statute preempting field of firearms regulation; term "notwithstanding," within meaning of statute conditionally authorizing municipalities to restrict discharge of firearms "notwithstanding preemption statute, meant that preemption statute and its restrictions, including penalty restrictions, were to be disregarded. City of Seattle v. Ballsmider, Div. 1, 856 P. 2d 1113,1115, 71 Wash. App. 159. Bowaters corporation does not have unfettered authority to are boat charter vessels for transportation of non-proprietary cargo as common carrier in coastwise trade; "notwithstanding" language of Bowaters Amendment does not mean that Amendment supersedes Shipping Act section requiring corporations operations operating vessels in coastwise trade to be 75% owned by United States citizens, and "shall be deemed a citizen" language does not render Bowaters corporation a citizen for all purposes." In view of the above definitions, it would be seen whether still petitioner is entitled for exemption to pay Income Tax on aggregate 'turnover' during the Assessment year or not? Mr. Naeem Pasha, Advocate contended that petitioner has got protection under Act. XII of 1992 (Protection of Economic Reforms Act, 1992), as according to its section 6, petitioner enjoys fiscal incentives for setting up of Industry. Learned Counsel also referred to SRO 1283(1)/90 dated 13.12.1990, according to which schedule of Income Tax Ordinance under section 14(2) was amended and a new clause was added. It would be appropriate to reproduce the same herein-below:- "(118C).--(1) Profits and gains derived by an industrial undertaking set up between the first day of December, 1990, and the thirtieth day of June, 1995, both days inclusive, for a period of eight years beginning with the month in which the undertaking is set up commercial Production is commenced, whichever is the later. (2) The exemption under this clause shall apply to an industrial undertaking which fulfils the following conditions, namely:- (a) that it is set up in the Province of Balochistan (excluding Hub Chowki Area), the North West Frontier Province, the Federally Administered Tribal Areas, the Northern Areas Azad Kashmir, the divisions of Dera Ghazi Khan and Bahawalpur in the province of the Punjab or tke divisions of Sukkur and Larkana in the province of Sind; (b) that it is owned and managed by a company formed exclusively for operating the said industrial undertaking and registered under the Companies Ordinance, 1984 (XLVII of 1984, and having its registered office in Pakistan; (c) that it is not formed by the splitting up to the reconstruction of reconstitution of business already in existence or by transfer to a new business of any machineiy or plant used in a business which was being carried on in Pakistan at any time before the commencement of the new business; and (d) that it is engaged in the manufacture of goods or materials, or the subjection of goods or materials to a manufacturing process, or mining (excluding petroleum and gas) or extraction of timber." A perusal of explanation to subsection (1) of section 80-D of the Ordinance, clearly indicates that as for as exemption in clause 188(c) is concerned that would not be applicable while charging income tax on the aggregate declared 'turnover' if the tax is not being paid for any reasons, whatsoever, including exemption from tax. In addition to it, nothing has been brought on record to indicate that petitioner' Industry also fulfils conditions laid down under item 118(c)(2). Thus for this reason argument putforth by the learned counsel is not entertainable. The upshot of above discussion leads us to concluded, that petitions have no substance, which are accordingly dismissed, leaving the parties to bear their own costs. (B.T.) Petitions dismissed.
PLJ 1997 Quetta 70 (DB) PLJ 1997 Quetta 70 (DB) Present: iftikhar muhammad chaudhary and Mm muhammad nawaz marri, J J. M/s CARTON (INDUSTRIES) LIMITED-Petitioner Versus THE FEDERATION OF PAKISTAN AND 20 others-Respondents Constitutional petition No. 325/1994, dismissed on 11.11.1996. Income Tax Ordinance, 1979 (XXXI of 1979)- Ss. 80-D, 2 (24)(c), clause (188-D) Part I of 2nd Schedule read with Arts. 18, 24, 25, 260, 199 and Entry 47 of Part I of Fourth Schedule to Constitution of Pakistan, 1973~"Turnover/Gross receipts"--Income tax imposed on the basis of--Whether S. 80-D of Income Tax Ordinance, 1979 is ultra vires to the provisions of Constitution of Pakistan-Question of-In view of scheme of ordinance and interpreting term "Income" used in Constitution; it is held that legislature has not over-stepped its jurisdiction on levying income tax 0.5% of the amount representing "turnover" of companies and registered firms from all sources to be income of Assessee Company or firm and to avoid evasion of tax at a large scale and also to widen taxation base, it was necessary to stretch term "Income tax" to presumptive taxation, in largest interest for economy of country and qualifications of tax payers falling within mischief of S. 80-D, in no manner is unreasonable nor it violates to Articles 18, 24 and 25 of Constitution~A perusal of explanation to sub-section (1) of S. 80-D clearly indicates that as far as exemption in clause 188(c) of Ordinance is concerned that would not be applicable while charging income tax on aggregate declared "turnover" if tax is not being paid for any reasons, whatsoever, including exemption from tax-Petition dismissed. [Pp.81&83]A&B Mr. Iqbal Naeem Pasha, Advocate for Petitioner. Mr. Raja Rob Nawaz, D.A.G. for Federation of Pakistan . Mr. Nasurllah Auvan and Sheikh Haider, Advocate for Respondents 2 and 3. Date of hearing: 31.10.1996. judgment Iftikhar Muhammad Chaudhary, J.-In Constitutional Petitions No. 325/94, 375 and 376 of 1995, validity of section 80-D of the Income Tax Ordinance, 1979, (hereinafter referred to as "Ordinance) being ultra vires to the provisions of Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution") has been challenged. Therefore, we have proposed to dispose of all these matters by this common judgment The petitioners are engaged in the manufacture and export/local sale of Polyester Yarn. Messrs Carton (Industries) Limited, declared a net loss of Rs. 208,942/298/- and Rs. 153,290/208/- for the Assessment Years 1994-95 and 1995-96, at the close of financial years i.e. 30th June, 1994 and 30th June, 1995, respectively. Whereas case of Lafayette Industries Synthetics Limited, covered by C.P. No. 376/95, is that vide clause (188-D) of Part-I, of the 2nd Schedule to the Ordinance, no Income Tax is liable to be paid under section 80-D of the Ordinance, because specific exemption has' been granted to it. It is the case of petitioners that their Industrial Units are not yielding profit or otherwise exemption from liability to pay Income Tax has been accorded, therefore, no liability can be imposed upon them under section 80-D of the Ordinance. As such, demand being made from them on 'turnover' basis at the rate of half per cent is illegal, because the provisions of law i.e. section 80-D of the Ordinance, is ultra vires to Entry No. 47 of Part I, of the Fourth Schedule to the Constitution. Therefore, on declaring said section of the Ordinance being void and of no legal effect; relief as has been prayed for, the granted to them. Mr. Iqbal Naeem Pasha, Advocate appeared on behalf of petitioners. Raja Rab Nawaz, Deputy Attorney General, Mr. Sheikh Haider, Advocate and Mr. Nasrullah Awan, Advocate opposed petitions on behalf of respondents, respectively. Learned Counsel for petitioners, contended that section 80-D of the Ordinance has been enacted by Legislature without jurisdiction and powers, as Income Tax, cannot be imposed on 'turnover/Gross receipts' basis, because it is universally accepted phenomena that tax is to be paid on profits of a Trade or business. Expression 'Income' employed in Entry 47 of Part I, of the Fourth Schedule to the Constitution, is to be interpreted inview of the definition of 'Tax on Income' as it has been Defined in Article 260 of the Constitution. Therefore, law givers over-stepped these constitutional provisions, while enacting section 80-D of the Ordinance, thus, deserves to be struck down being unconstitutional. To strengthen his arguments, he relied on Excess Profit Tax Act, 1940. The Business Profits Tax Act, 1947, PLD 1984 Kar. 01, AIR 1928 (Privy Council) 282, AIR 1930 (Privy Council) 209 and 1971 (82) I.T.R. 794. Raja Rab Nawaz, learned Deputy Attorney General, contended that petition is not maintainable, because the Company or Firm is not legally authorized to challenge vires of any statutory provision, at the touch stone of Articles 18, 24 and 25 of the Constitution, as according to him, under these Articles, only citizens can challenge a law, if it is inconsistent with or in derogation with fundamental rights, as it has been specified by Article 8 of the Constitution. Majlis-e-Shoora (Parliament) in view of Entry 47 of Part I, of the Fourth Schedule to the Constitution, has lawfully enacted section 80- D of the Ordinance. He also relied on the definition of term 'Income' from the Judgments delivered in the cases of Pakistan Industrial. Development Corporation vs. Pakistan through Secretary, Ministry of Finance (1992) 65 Tax 84, Bhagwan Das Jain vs. Union of India and others (AIR 1981 S.C. 318) (This Judgment has also been reported in 1981 (128) I.T.R. 315 S.C.) and Elel Hotels & Investment Ltd. & others vs. Union of India (AIR 1990 S.C. 1664). Learned Counsel for Respondent No. 2, contended that term 'Income' is to be construed in a wider sense in view of its definition under section 2(24) (c) of the Ordinance, to provide a wider tax base for generating revenues, enabling Federal Government to meet requirements of modern age, otherwise, if this expression is used in a narrow sense, it would tantamount to give licence to those Traders, who although are running Industries, successfully making huge profits, which is being used for installing other Industrial Units, only for purpose of their personal benefits, but when Income Tax returns are filled, they desist and pay nothing on pretext of sustaining heavy losses. Therefore, the Legislature to motivate the Industrialists, owners of registered Firms and also to expand the Tax base, imposed a minimum tax of 0.5% on annual 'turnover' in view of broader definition of term 'Income' given in the Constitution. He also relied on Judgments cited by learned Deputy Attorney 'General, besides referring to Judgment delivered by learned Division Bench of Lahore High Court in Writ Petition No. 8621 of 1991 and number of other connected identical Constitutional Petitions, on 22nd January, 1995. Learned Counsel for respondent No. 3, argued that any term/ expression used in the Constitution is required to be interpreted in its widest sense and should not be made subservient to any limited definition. According to him, Constitution itself has not defined the term 'Income' and as for as expression 'Tax on Income defined in Article 260 of the Constitution is concerned, it has no nexes with the proposition under consideration, because presently in Pakistan,'no law to levy Income Tax on excess profits in Trade or business, exist. Therefore, term 'Income' is to be interpreted in a liberal manner to obey the command of Constitution. He also stressed that presumptive tax is not alien to existing and repealed Income Tax Laws. To support his arguments he made reference to number of provisions from the Ordinance, wherein mere on basis of expected profit, it has been held that it would be deemed to be the Income of Assessee. It was also contended by him that section 80-D of the Ordinance, contains non-absante clause, on account of which, definition of term 'Income' has been made wider in order to cover the case of those Traders, who although are making profits but showing loss in returns. Learned Counsel also emphasised that Legislative body had not over-stepped any constitutional provision, while enacting section 80-D of the Ordinance and it was within its competence to legislate beneficiary law in largest interest of Nation. He also contended that petitioners have not been able to show that on what basis, section 80-D of the Ordinance, should be declared ultra vires to the Constitution. He relied on number of Judgments, including those, which have been referred to hereinabove, while noting arguments of learned counsel for respondents 1 and 2. Reference was also made by him to Interpretation of Taxing Statutes to define the term 'Income' and 'Words and Phrases' Volume 28A and Corpus Juris Secundum Volume LXVI, to define word 'Notwithstanding'. We have heard the parties' Counsel at length and also considered their respective contentions, in view of relevant substantive and precedented law, cited at bar. Since term 'Income' is required to be interpreted therefore, for sake of convenience, relevant provisions i.e. Entry 47 of Part I, of the Fourth Schedule to the Constitution, sections 2(24) and 80-D of the Ordinance, are reproduced herein-below:- !Entry_47_ of Fart I. of the Fourth Schedule to the Constitutipji. 47. Taxes on income other than agricultural income. Section 2 (24) of the Ordinance. (24) "Income, includes:- (a) any income, profits or gains, from whatever source derived, chargeable to tax under any provision of this Ordinance under any head specified in Section 15; (b) any loss of such income, profits or gains; and (c) any sum deemed to be income, or income accruing or arising or received in Pakistan under any provision of this Ordinance, but does not includes, in the case of a shareholder of a domestic company, the amount representing the face value of any bonus shares or the amount of any bonus, declared, issued or paid by the company to its shareholders with a view of Increasing its paid up share capital;" gecfiori.._80-D. of the Ordinance, 80-D Minimum tax on income of certain companies (and registered firm). (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, where no tax is payable (or paid) by a company ( or a registered firm) resident in Pakistan or the tax payable (or paid) is less than one-half percent of the amount representing its turnover from ail sources, the aggregate of the declared turnover shall be deemed to be the income of the said company (or registered firm) and tax thereon shall be charged in the manner specified by sub-section (2). (Explanation.-^ 'or the removal of doubt, it is declared that the expression Svhere no tax is payable or paid' and 'or the tax payable or paid' apply to all cases where tax is not payable or paid for any reason whatsoever including any loss of income, profit or gains or set off of loss of earlier years, exemption from tax, credits or rebates in tax, and allowances and deductions (including depreciation) admissible under any provision of this Ordinance or any other law for the time being in force.) (2) The company (or a registered firm) referred to in sub section (1) shall pay as income tax:- (a) an amount where no tax is payable (or paid) equal to onehalf percent of the said turnover; and (b) an amount, where tax payable (or paid) is less than one-half percent of the said turnover, equal to the difference between the tax payable and tie amount calculated in accordance with clause (a). Explanation.--}!! or the removal of doubt, it is declared that turnover' means the gross receipts, exclusive of trade discount shown in invoices or bills, derived from sale of goods or from rendering, giving or supplying services or benefits or from execution of contracts." A cursery perusal of above quoted provisions, reveal that they are inter linked with each other, because term 'Income' has been used commonly in Constitution and remaining two statutory provisions. There is yet another similarity in section 2(24)(c) and section 80-D of the Ordinance, because connotation 'deemed to be income' has been consciously employed in both the provisions by the Legislature. The recognized principle of Interpretation of Statutes is that it is the safest guide that when construction of sweeping generals words which are difficult to apply in their full literal sense is to examine other words of like import in the same instrument and to see what limitations must be imposed on them and it is found that a number of such expressions have to be subjected to limitations and qualifications and that such limitations and qualifications are of same nature, that circumstances forms a strong argument for subjecting the expression in dispute to a like limitation and qualification (Maxwell on the Interpretation of Statutes 10th Edition 29). Hurriedly surveying the Ordinance, one can visualize that connotation 'deemed to be income' has been used repeatedly with certain limitation and qualifications in the Ordinance, while taking care of different situations in respect of accruing or arising income, for purpose of levying Income Tax, Reference can be made to sections 12(1), 13, 19(4), 22A; 59 C(a), 18(2), ISA (l-A)(b), 18AA(1), 18B, 18C, 18CC, etc. of the Ordinance. At this juncture it is to be kept in mind that under these sections instead of actual/physical income, the income which will accrue/arise subsequently being presumptive income, has been accepted as income for purpose of levying Income Tax. Therefore, in such situation, where the same Instruement had used identical expression of 'deemed to be income' in its different parts, it would mean that not only while enacting section 80-D, even prior to it, 'Income Tax' has been imposed/levied not on the basis of profit/gain, but even on such amount which could only be deemed/believed to be gain of an Assessee. This connotation Le. 'deemed to be income' was also used invariably at different places with reference to relevant context in repealed Income Tax Act, 1922. So is the position in the Income Tax Act, 1961, presently applicable in India. This phenomena of collecting Income Tax is based on the theory of presumptive taxation, introduced by Richard "Musgrave. In this behalf of Kerala High Court in 1989 (176) ITR 481, examined this theory with reference to Entry 82 of List of seventh Schedule to the Constitution of India. Relevant discussion having persuasive value, for convenience is reproduced hereinbelow:- "The first contention may be dealt with first The constitutional entry reads "tax on income", "Income", a seemingly simple word has created a world of confusing concepts. Lord McNaughten's speech about income-tax is classic and has remained thought-provoking in all climes and times. "Income-tax, My Lords, if I may say so, with respect, is a tax on income." The bewildering connotation of the term "income" came to be indicated and illustrated in long passages and a catena of judicial decisions rendered even thereafter. Could it be said that without actual income, no income-tax is possible or positable? That query which has been raised long ago has been clearly answered by the Supreme Tribunal of the land. In variety of situations, income-tax has been fixed rigidly and artificially. Artificial fixation of house properly income is demonstrated by the decision in Bhagwan Das Jain v. Union of India (1981) 128 ITR 315 (SC). The exercise has been indulged in not merely by Parliament but also by the State Legislatures. The base of profession tax was given such an artificial structure by the Maharashtra and Gujarat States. Different standards could be selected for fixation of income-irrespective of the actuality of the situation. Illustrations are the actual value of one's own building and the undistributed profits of a company, in the context of taxation for income-tax purposes. It would be sufficient if the income figure is reached by standards which are sufficiently just. Legislative entries should receive the widest interpretation - is a basic tent put forward for sustaining such statutory fictions and schemes. Income is subjected to taxation whether it is actually received or has notionally accrued. (See CIT/CEPT v. Bhogilal Laherchand (1954) 25 ITR 50 (SC) and CIT v. Lady Kanchanbai (1970) 77 ITR 123(SC) (126)). la a sense, the practice can be traced back even to the earlier decisions in Shaw Wallace and Co. v. CIT (1932) 6 ITC 178 and Navin Chandra Mafatlal v. CIT (1954) 26 ITR 758 (SC). Later decisions also are available illustrating the principles. Gross receipts, without giving deduction for expenditure being treated as income was upheld in Travancore Robber and Tea Co. Ltd. v. State of Kerala (1963) 48 ITR (SC) 102. Legal principles laid on similar lines are discernible from the decision in Punjab Distilling Industries Ltd. v. CIT (1965) 57 ITR 1 (SC). It is unnecessaiy to refer to the multiplicity of decisions on the point when the proposition is clear enough. It would then be sufficient to hold that irrespective of the actual receipt of an income or the factual situation in relation to the real income, it would be competent for Parliament to make a fictional computation of the income and tax it as such. Tine, there have been extreme instances where attempts at taxation of receipts which had no connection with an income or income-earning activity, have been stifled by court decisions, Judicial thoughts in that area, and in that strain, can possibly be traced even to he time when Rowlatt J. observed in Leigh v. IRC (1928) 1 KB 73,77, that for tax purpose, 'receivability without receipt is nothing.' It is, however, useful to refer to the observations of Slump L.J. in the recent decision (Dunmore v. McGowan (1978) 2 All ER 85 at 87) that Rowlatt J.'s dictum was actually rejected in the case. (See the comment by John Tiley: Receivability and Receipt: The Problem of Timing under Income-tax Legislation 1982, British Tax Review 23). The decisions relied on by counsel for the petitioners (CIT v. Harprasadand Co. (P.) Ltd. (1975) 99 ITR 118 (SC), CITv. Birla Gwalior (P.) Ltd. (1973) 89 ITR 266 (SC), do not lay down anything contraiy to the view leaning in favour of the wider interpretation and permissibility of the artificial definition of the term 'income', The decision in State Bank of Trawancore v, CIT (1986) 158 ITR 102 (SC), contains a corollary observation. At page 788, the Supreme Court observed: "If real income arises, interpretations should not be such that the provisions of the Act are rendered useless." Viewed from the background of legal practice and judicial decisions, it will then be open to Parliament to deem a portion of the price of the commodity dealt with as income in the hands of the man dealing with them. The legal principles laid down by authoritative decisions holding the field do not in any way rule out such an impost. On the contrary, the practice has been well set and well-recognised and even well-accepted by assessees and authorities alike. Looked at from a theoretical angle also, the position is not different. Many have been the experiences and experiments with income-tax, after it was introduced as a temporary measure, in England, in pressing circumstances. It is unnecessary to refer to all those events and marks in the taxation's march to modern days. When rates became high the temptation to avoid and even to evade was stronger. Then it was a keen and competing race between the Revenue and the assessee. The big sharks quite often burst the net, when only minor fiy was caught. That was unfair. Vigilant legislatures were alert enough' to repair the meshes and tighten the ropes. The theorists and administrators made close observations about the loopholes and bestowed excruciating thoughts on the best ways to plug such holes. The long experience of the tax administrators revealed that in relation to some articles, evasion was easy. It was not merely a case of moonlighters as that term as is now referred to in taxation parlance. (A moonlighter is a person who has considerable income, some from known and disclosed sources and some sustantial portion from undisclosed sources). Certain businesses have witnessed "flyby-light" operators, as referred to in the taxman's colloquium. In other words, there are businesses where accounts are hardly kept; where, even if accounts are kept, the opportunities for manipulations are vast and wide. Businesses are there, where, as soon as income is amassed, the income earned could vanish mysteriously giving the slip even to the watching tax-gatherer. There are businesses where a common alibi could be easily employed or where any one could be an easily available name-lender. Such trades, therefore, rightly, needed stringent and corrective approaches and additional vigilant watch. It was Richard Musgrave who championed this device of presumptive taxation, in his well-known work on public finance. At considerable pains, and at length, he explained the merits of the system. The additional revenue which accrued were welcome advantages for the State, looking for chunks of money to carry out the very many welfare schemes. The Musgrave doctrine made out a case for a differential approach in less advanced countries According to him: "A more realistic approach is needed, using presumptive taxation, applied outside and in lieu of the regular framework of income and sales taxation, as well as estimated tax, basis applied within the context of the regular tax system." It may be seen that deeming provisions containing definition of "Income" and section 80-D as well as other various provisions of the Ordinance, actually guides an Assessee to pay tax on fictional profit, where he can only expect gains but has been bound down to pay income tax. From above discussion definition of term "Income" can be stretched to a considerable large scale on following the theory of Presumptive taxation. Petitioners' counsel had vehemently argued, on the strength of AIR 1930 (Privy Council) 209 and 1971 (82) ITR 794, that "Tax is upon income, profits and gains. It is not a tax on gross receipts' and "the tax Collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax the profit of a trade or business". To meet with his this arguments, learned Counsel for respondents referred to case of Mst. Samina ShaukatAyub Khan vs. Income Tax Officer (PLD 1981 SC 85) (This Judgment has also been relied upon in the case of Pakistan Industrial Development Corporation vs. Pakistan through Secretary of Finance, (1992) 65 Tax 84. Interpretation of term "Income" from the case of Mst. Samina Shaukat Ayub Khan, for guidance is reproduced herein-below:- "It will be seen that the term "income" as used in the Income Tax Act, is indeed, a term of wide significance and generally and ordinarily it connotes a periodical monetary return, coming in with some sort of regularity or expected regularity, from a definite source; but, as observed by the Privy Council, the multiplicity of forms which income may assume is beyond enumeration; and income need not necessarily be the recurrent return from a definite source; though it is generally of that character. It mayconsist of aseries of separate receipts, as for instance happens in the case of professional earnings. In the last analysis, the question whether a particular kind of receipt is income or not would depend for its answer on the peculiar facts and circumstances of the case. If the facts and circumstances of the case. If the nature of the receipt and its source are not satisfactorily explained by the assessee, facts which are generally within his peculiar knowledge, the Income Tax Officer may legitimately presume that the amount in question is an income of the as of the assessee from an undisclosed source. Once a finding is recorded that the amount in question could be treated as income within the meaning of the charging section, Section 3 of the Income Tax Act, the burden of proving that the income qualified for exemption under any of the clauses of section 4 of the Act was on the assessee. Subsection (1) of Section 4 of the Act provides that "subject to the provisions of the Act, the total income of any previous year of any person includes all incomes, profits, and gains from whatever source derived.... sub-section (3) of the same section then enumerates exemptions, and the operative words are" any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them " It was for the appellant to show that she was covered by the exemption granted by clause (vii) of sub-section (3). This she clearly failed to do, for the reason that she could not satisfactorily explain the source of the entire amount of cash found in her hands, nor of the total assertions thereto in subsequent years. It does not need much reasoning to see that if the source of income is not disclosed or satisfactorily explained, then it is not possible to hold that the income was not from business or from the exercise of a profession, vocation or occupation.;"." Similarly in the case of Bhagwan Doss Jain, the Supreme Court of India, while interpreting term "Income" as used in Entiy 82 of the list of seventh Schedule to the Indian Constitution, which is corresponding to Entry 47 of Part I, of the Fourth-Schedule to our Constitution,'held as unden- "Entry 82 of list of the Seventh Schedule to the Constitution empowers Parliament to levy "taxes' on income other than agricultural income.'. Now it is well settled that the entries in the lists in the Seventh Schedule to the Constitution should not be read in a narrow or restricted sense and each and every subject mentioned in the entries should be read as including within its scope all ancillary and subsidiary matters which can fairly and reasonably be comprehended in it. Words in the Constitution conferring legislative power should be interpreted in their widest amplitude.' Like wise the Supreme Court India in the case of Ellel Hotels ! interpreted term "Income" as follows:- "On a consideration of the matter, we are of the opinion that the submission of the learned Attorney General as to the source of the legislative power to enact a law of kind in question require to be accepted. The word "income" is of elastic import. In interpreting expression in the ' .3,. legislative lists a very wide meaning should be given to the entires. In understanding the scope and amplitude of the expression "income" in Entry 82, list I, any meaning which ails to accord with the plenitude, of the concept of "income" in all its width and comprehensiveness should be avoided. The cardinal rule of interpretation is that the entries in thelegislative lists are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matter which can fairly and reasonably be said to be comprehended in it. The widest possible construction, according to the ordinary meaning of the words in the entry, must be put upon them. Reference to legislative practice may be admissible in reconciling two conflicting provisions in rival legislative lists. In construing the words in a constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude." ' The Hon'ble Lahore High Court in Writ Petition No. 8621/91, examined constitutional validity of section 80-D of the Ordinance with reference to Entiy 47 of Part I, of the Fourth Schedule to the Constitution ; and on taking into consideration relevant judgment concluded as follows: "The ratio deducible from the foregoing examination is as follows:- (i) That the Constitution is a living document that it reflects the ideological aspiration of the people and is made through their will, that it deals with the governance of the State; that it lays down the frame work of the distribution of the powers and subjects between the federation and federating units. That it delimits the power of various limbs of State; i.e. legislature, executive and judiciary. Being a permanent document it is to be considered liberally and with wide and comprehensive connotation designed to meet the exigencies of the State and changing conditions of socio-religio and economical dynamic of the State. It is to be given purposive, organic construction; each and every provision of the Constitution is to be construed such a manner that it is not rendered surplusage. If there is any conflict between the two provisions, the same are to be interpreted on he basis of the theory of reconcilling them. (ii) The entries in the Schedule to the Constitution are not to be given any circumscribed pedantic construction. These are to be examined in widest possible spectrum. These entries are the fields in which the legislature of the State are empowered to act and frame laws. (iii) The word "income" embodied in Section 2(24) of the Ordinance is not of exhaustive import but in inclusive in nature. This word like "income" in Entry No. 47 is to be construed as largely as possible. (iv) the constitutionality of Statute/Law is presumed till it is reputed on the showing of some irrefutable circumstances. Applying these principled to the contentions of parties, we are in no manner of doubt that the Federal legislature was fully competent to enact the challenged provisions. These did relate to the income." Thus over-all effect of above discussion leads us to hold that in view of the scheme of the Ordinance and interpreting term "Income" used in the Constitution; it is held that legislature has not over-stepped its jurisdiction on levying Income Tax 0.5% of the amount representing the "turnover" of Companies and registered Firm from all sources to be the Income of Assessee Company or firm and to avoid evasion of tax at a large scale and also to widen the taxation base, it was necessary to stretch the term "Income Tax" to presumptive taxation, in the largest interest for the economy of the Country and qualifications of tax payers falling within the mischief of section 80-D of the Ordinance, in no manner is unreasonable nor it violates to Articles 18, 24 and 25 of the Constitution. Now turning towards the case of Messrs Lafayette Industries (C.P. No. 376/95), it is to be observed that section 80-D of the Ordinance, contains non-abstante clause, which has been defined in Dictionary of Modern Legal Usage:- "notwithstanding anything to the contrary contained herein, an ungainly phrase often placed in complex contracts to introduce the most important provisions, can be fairly said to mean "the true agreement is as follows." It is best used when the certain provision is to override another, arguably inconsistent provision." Above expression has also been defined in Corpus Juris Secundum, which reads as follows:- "Notwithstanding. Without prevention or obstruction from or by; in spite of. It has been held to be equivalent to "nevertheless." Similarly in Words and Phrases Volume 28A it has been defined as under:- "Notwithstanding. Penalty imposed by local firearms ordinance for discharge of firearms could lawfully exceed that imposed by state firearms statute in light of exception to statute preempting field of firearms regulation; term "notwithstanding", within meaning of statute conditionally authorizing municipalities to restrict discharge of firearms "notwithstanding preemption statute, and its restrictions, including penalty restrictions, were to be disregarded. City of Seattle v. Ballsmider, Div. 1, 856 P. 2d 1113, 1115, 71 Wash. App. 159. Bowaters corporation does not have unfettered authority to bareboat charter vessels for transportation of nonproprietary cargo as common carrier in coastwise trade; "notwithstanding" language of Bowaters Amendment does not mean that Amendment supersedes Shipping Act section requiring corporations operations operating vessels in coastwise trade to be 75% owned by United States citizens, and "shall be deemed a citizen" language does not render Bowaters corporation a citizen for all purposes." In view of the above definitions, it would be seen whether still petitioner is entitled for exemption to pay Income Tax on aggregate "turnover" during the Assessment year or not? Mr. Naeem Pasha, Advocate contended hat petitioner has got protection under Act, XII of 1992 Protection of Economic Reforms Act, 1992), as according to its section 6, petitioner enjoys fiscal incentives for setting up of Industry. Learned Counsel also referred to SRO 1283(1)/90 dated 13.12.1990, according to which schedule of Income Tax Ordinance under section 14(2) was amended and a new clause was added. It would be appropriate to reproduce the same hereinbelwo:- "(118C).-(1) Profits and gains derived by an industrial undertaking set up between the first day of December, 1990, and the thirtieth day of June, 1995, both days inclusive, for a period of eight years beginning with the month in which the undertaking is set up commercial Production is commenced, whichever is the later. (2) The exemption under this clause shall apply to an industrial undertaking which fulfils the following conditions, namely:- (a) that it is set up in the Province of Balochistan (excluding Hub Chowki Area), the North West Frontier Province, the Federally Administered Tribal Areas, the Northern Areas Azad Kashmir, the Divisions of Dera Ghazi Khan and Bahawalpur in the Province of the Punjab or the dvisions of Sukkur and Larkana in the Province of Sindh; (b) that it is owned and managed by a company formed exclusively for operating the said industrial undertaking and registered under the Companies Ordinance, 1984 (XLVII of 1984), and having its registered office in Pakistan; (c) that it is not formed by the splitting up to the reconstruction of reconstitution of business already in existence or by transfer to a new business of any machinery or plant used in a business which was being carried on in Pakistan at any time before the commencement of the new business; and (d) that it is engaged in the manufacture of goods or materials, or the subjection of goods or materials to a manufacturing process, or mining (excluding petroleum and gas) or extraction of timber." A perusal of explanation to subsection (1) of section 80-D of the Ordinance, clearly indicates that as far as exemption in clause 188(c) is concerned that could not be applicable while charging income tax on the aggregate declared "turnover" if the tax is not being paid for any reasons, B whatsoever, including exemption from tax. In addition to it, nothing has been brought on record to indicate that petitioner's Industry also fulfils conditions laid down under item 118(c)(2). Thus for this reason argument put forth by the learned counsel is not entertainable. The upshot of above discussion leads us to concluded, that petitions have no substance, which are accordingly dismissed, leaving the parties to bear their own costs. (K.A.B.) Petition dismissed.
PLJ 1997 (Quetta) 84 (DB) PLJ 1997 ( Quetta ) 84 (DB) Present: amir-ul-mulk mengal and javed iqbal, JJ. MILITARY ESTATE OFFICER-Appellant versus ASSISTANT COMMISSIONER-CUM-COLLECTOR QUETTA ETC.-- Respondents Civil Misc. Appeal No. 17/95, decided accordingly on 23-10-1996. (i) Land Acquisition Act, 1894 (I of 1894)-- -Ss. 18, 22-A, 50 and 54-Appeal~Competency of-Challenge to-Federal Shariat Court declared provisions of Ss. 18 and 50 of Act as being in contravention of injunctions of Islam in so far as it prohibited or barred a local authority, a company or Federal Government or its department either to make a reference or to file an appeal-Upon appeal filed by Government Shariat Appellate Bench of Supreme Court while upholding said view declared that a party who has to pay money from its own funds should have been given a chance to adduce evidence for purpose of determining amount of compensation-Proposed amendment would advance remedy to an aggl'ieved party-It would be fair and just to give a right to make a reference, file a cross objection, lead evidence and file an appeal, to those parties who have been denied such a right under Ss. 18, 22-A, 50 and 54 of Act. [Pp. 88 & 89] A (ii) Land Acquisition Act, 1894 (I of 1894)- -Ss. 18, 22-A, 50 and 54 read with Art. 203 (d)(3)(b) of Constitution of Pakistan , 1973-Appeal-Competency of--Challenge to-According to Art. 203 (D)(3)(b) if any law or provision of law is held by court to be repugnant to injunctions of Islam, such law or provision shall to extent of which it is held to be so repugnant cease to have effect on day on which decision of court takes effect-Thus by virtue of aforesaid Constitutional provision relevant sections of Land Acquisition Act i.e. Ss. 18, 22-A, 50 and 54 barring a right of appeal to Federal Government or to make a reference are deemed to have ceased to have effect from 30th September, 1991. Petition decided accordingly. [P. 89] B Raja Rab Nawaz, Advocate for Appellant. Mr. Amanullah Yasin Zia, Advocate for Respondents. Date of hearing : 17-9-96. judgment Amirul Mulk Mengal, J.»By this order we intend to dispose of preliminary legal objections raised by the Respondents counsel as regards maintainability of appeal under section 54 of Land Acquisition Act, 1894 (hereinafter referred to as the "Act") filed by Military Estate Officer, Quetta Circle Quetta Cantt. 2. The Military Estate Officer has assailed judgment and decree passed by Additional District Judge-I, Quetta on 31.5.1995 whereby Reference made by appellant was dismissed as well as against Award announced on 27.11.1989 passed by Assistant Commissioner with powers of Land Acquisition Collector. 3. When this appeal came up for hearing on 26.6.1996, a preliminary legal objection was raised by respondents' counsel Mr. Amanullah Khan as regards competency and maintainability of this appeal. We heard the counsel for the parties on 17.9.1996 on preliminary legal objection alone. 4. According to Mr. Amanullah Khan neither Reference before the District Judge nor present Appeal before this Court by the present appellant was competent in view of proviso to section 50 of the Act. Another legal objection raised was that Military Estate Officer was not competent to file an appeal on behalf of Federal Government, as he was not so authorised. However, main question urged was that in view of proviso to section 50 neither Reference to the District Judge nor Appeal in the High Court was maintainable. Reliance has been placed on 1996 CLC 412, PLD 1995 S.C. 418 as well as 1994 S.C.M.R. 2091. As against above contentions, learned Deputy Attorney General in order to meet the first legal objection contended that Federal Shariat Court in its original jurisdiction in Shariat Petition No. 6 of 1988 declared that the Federal Government or a concerned Department of the Federal Government or of the Provincial Government as also the Company or local authority for whose benefit acquisition is made shall be competent to file an appeal for which directions were made to amend law. Para 7 of the judgment is reproduced as under :-- "We order that the aforementioned sections of the Act shall be amended so as to provide for right of making reference, filing cross-objections and appeal to Federal Government or the concerned department of the Federal Government or of the Provincial Government as also the Company or the local au-thority for whose benefit the acquisition is made. In that context the proviso to section 50(2) of the Act shall be deleted". Feeling aggrieved of the order, Shariat Appeal No. 7 of 1989 was filed in the Shariat Appellate Bench of Supreme Court which was decided on 18th February 1991 and the said judgment was upheld and appeal was dismissed with further direction that necessary amendment shall be made for amendment in law before 30th September 1991. Learned Deputy Attorney General on the basis and strength of aforementioned judgment of Shariat Appellate Bench of Supreme Court contended that the law impliedly stood amended in the light of the said judgment with effect from 30th of September 1991. However, Respondents' counsel relied on judgment reported in 1991 S.C.M.R. 2193 in which inter alia, it was held that neither section 18 nor section 50 of the Act confer a right of reference either on a company or a local authority for whose benefit the land was being acquired. Furthermore, in case of Pakistan vs. Abdul Hayee Khan reported in PLD 1995 S.C. 418 the Supreme Court held that the Federal Government was not authorised to file appeal against decision of competent court relating to amount of compensation for the acquired land and the judgment of the High Court allowing Government to file appeal against verdict of competent court relating to compensation of land acquired was maintained and upheld. It was further observed in the said judgment that right of appeal is a creation of Statute. If Statute does not confer right of appeal it does not exist. Incidentiy the facts of the case were identical to the case in hand. There in the cited case also, Federal Government through Military Estate Officer Kharian Cantonment required land for cantonment purposes but the respondents who were exclusive owners of the acquired land filed a joint application under section 18 of the Act seeking reference to the civil court for determination of value of their land. The appellants challenged the compensation which was determined by the Senior Civil Judge in the Lahore High Court. The appeal was dismissed on a legal objection to the effect that the appellants being the beneficiaries of the land acquired had no right to challenge the compensation given to the land owners by the competent court. The matter went before the Supreme Court and the view taken by the Lahore High Court was approved and reliance was placed on 1991 S.C.M.R. 2193. We are now confronted with a situation where the Hon'ble Supreme Court has taken a consistent view but the Shariat Appellate Bench of the Supreme Court while approving the view taken by Federal Shariat Court as regards sections 18, 22-A, 50 and 54 of the Land Acquisition Act thus reached to the conclusions as under :-- "The grounds which weighed with the FederalShariat Court in making the recommendations are cogent and sound. The amendments in the aforesaid provisions of the Act would make the law more consistent and equitable. It is against all cannons of principles and equity that the Provincial Government may have a right to refer the matter to the Court and file a cross-objection but the Federal Government and its department are not given such a right. It would amount to negation of justice and is repugnant to the Injunctions of Islam. The wisdom behind such amendments would be to give all the parties a fair opportunity to prove regarding the reasonable amount of compensation to be awarded. A party who has to pay the money from its own funds should have been given a chance to adduce evidence for the purposes of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference file a cross objection, lead evidence and file an appeal to those parties who have been denied such a right under Sections 18, 22-A, 50 and 54 of the Land Acquisition Act". Aforesaid judgment was announced in Rawalpindi on 18th February, 1991. Then a Larger Bench comprising of 7 Hon'ble Judges of the Supreme Court including Justice Nasim Hassan Shah, Justice Shafi-ur- Rehman and Justice Abdul Qadeer Chaudhary (as they then were) and who were also members of the Shariat Appellate Bench in case of Iftikhar Hussain Shah and others vs. Pakistan through Secretary Ministry of Defence on 28th July 1991 as under: "The relationship of principal and agent as between Federal Government and the Provincial Government on the basis of the Constitutional Provisions or on the basis of section 3(b) of the Act does not come into existence. Such a relationship exists between the Provincial Government and the Collector and this fact was taken note of in the case of Ezra v. Secretary of State for India ILR 30 Cal. 36, approved by the Privy Council in 32 ILR Cal. 605 and considered in N. Bommon Behram and another vs. The Government of Mysore and others AIR 1970 Mysore 89 and the State of Maharashtra (Public Works Department) v. Bapurao Dnyanoba Chiddarwar and others AIR 1973 Bora. 231. The Collector acquiring the property on behalf of the Provincial Government has been held in these decisions to be exercising an executive authority and an administrative power and in doing so acting as an agent of the Provincial Government. The same principle cannot be extended to make the Provincial Government an agent of the Federal Government in the matter or the Collector as aeent of the Federal Government so as to clothe the Federal Government with an authority not otherwise possessed by it within the framework of the law. Neither section 18 nor section 50 of the Land Acquisition Act confer a right of reference either on the company or on the local authority for whose benefit the land is being acquired." (""Underlining is ours). Mr. Amanullah argued that the judgment of the Larger Bench being latter in time shall hold the field, and thus the observations that the appeals filed by Central/Federal Government, its department or institutions were not competent and that such appeals having been filed by Federal Government, its department, or local authority, for whose benefit the land was acquired were held to have been filed by persons having no right to file appeal to the High Court as such all the appeals were dismissed. While deciding the Us, we have to follow the principle as laid down by the Hon'ble Supreme Court in two capacities i.e. the Full Bench Judgment (1991 S.C.M.R. 2193) and the judgment of Shariat Appellate Bench of Supreme Court announced in February 1991. We have already stated in the preceding paras that the Federal Shariat Court declared provisions of section 18 and section 50 of the Act as being in contravention of Injunctions of Islam in so far as it prohibited or barred a local authority a j company or the Federal Government or its department either to make a Reference or to file an appeal. Upon the appeal filed by the Government the Shariat Appellate Bench of the Supreme Court while upholding the said view declared that a party who has to pay the money from its own funds should have been given a chance to adduce evidence for the purpose of determining the amount of compensation. The proposed amendments would advance remedy to an aggrieved party. It would be fair and just to give a right to make a reference, file a cross objection, lead evidence and file an appeal, to those parties who have been denied such a right under sections 18, 22-A, 50 and 54 of the Land Acquisition Act. Here it is pertinent to observe that accordingly to Article 203 D Sub Article 3(b) of the Constitution of Islamic Republic of Pakistan, 1973, if any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam, such law or provision shall to the extent to which it is held to be so repugnant cease to have effect on the day on which the decision of the court takes effect. Thus by virtue of the aforesaid constitutional provisions the relevant sections of Land Acquisition Act i.e. sections 18, 22-A, 50 and 54 of the Act, barring a right of appeal to the Federal Government or to make a reference are deemed to have ceased to have effect from 30th September 1991. The position of law as it emerges after the aforementioned date would be that Federal Government is deemed to have been conferred a right of making reference or filing an appeal against the compensation fixed/determined by the Collector in the award. However, the moot question before us is to see the crucial date i.e. 30th of September 1991 the day when law is deemed to have been amended. It is pertinent to mention here that directions were given for amendment of law by the said date but none of the parties placed before us any amendment made by the Federal Government or Provincial Government of Balochistan to the said effect. However, after the crucial date the provisions barring the Federal Government to make a reference or to file an appeal has ceased to have effect, therefore the Federal Government could make a reference or file an appeal after 30th of September 1991, as after judgment bar for filing such appeal has been removed. We are clear in our mind that there is no contradiction in the judgments of the Larger Bench of the Supreme Court (1991 S.C.M.R. 2193) and the judgment of Shariat Appellate Bench of Supreme Court although at a cursory view there appears to be a drastic contradiction. The reason being that while deciding appeals the Larger Bench held that no right of appeal has been conferred in law to the Federal Government or its department to make a Reference under section 18 of the Act or appeal under section 50 read with section 54 of the Act because all those appeals had been filed in the High Court prior to the judgment of Shariat Appellate Bench. The judgment of Shariat Appellate Bench by which such a right was conferred upon the Federal Government, a company or local authority would definitely take effect prospectively i.e. from 30th of September 1991; whereas all those appeals were filed in the High Court prior to the crucial date, therefore, it was the old law which was in vogue and considered hy the Hon'hle Supreme Court as such we do not find any mention of the judgment of Shariat Appellate Bench for obvious reason that while considering the appeals the Supreme Court dilated upon it under the old provisions of Act under which appeals had heen filed in the High Court. However, after 30th of September 1991 proviso of section 50 of the Act barring a right of appeal to the Federal Government shall cease to have effect, therefore, now after the said crucial date the Federal Government has a right to file an appeal, as per judgment of Shariat Appellate Bench. Keeping in view this principle, we have to see the date when present appeal has been filed. It is clear that this appeal is dated 7th September 1995 which is clearly competent in view of the judgment of Shariat Appellate Bench of Supreme Court. The preliminary objection is thus answered accordingly. However, as to the award or Reference made we shall determine the competency of the same at the time of final hearing. Now attending to the second preliminary objection that Military Estate Officer was not competent on behalf of Federal Government to file appeal, it may be observed that Government has issued SRO No. 1013(K)/71 dated 28th of August 1971 authorising the officers prescribed in the Schedule to sign and verify the plaint or written statement in any suit by or against the Federal Government in the Ministry of Defence or against a public officer in the Service of the Federal Government, of which defence is undertaken by that Government. In item(h) of the Schedule as regards Military Lands and Cantonment Department, Military Estate Officer and Additional Military Estate Officer are clearly mentioned. Thus this objection is also devoid of any force. After holding so we are now left to consider the merits of the case as well as other legal questions, like limitation, competency of reference etc. at the time of final hearing of appeal. Two preliminary objections raised are thus answered accordingly. The matter now be fixed for regular hearing for a date in office. (K.A.B.) Decided accordingly.
PLJ 1997 Qutta 91 (DB) PLJ 1997 Qutta 91 (DB) Present: MUNAWAR AHMED MlRZA, C. J., AND JAVEDIQBAL, J. M/s HITOC METAI PLAST (PVT.) LTD., ETC.-Appellants versus HABIB BANK, LIMITED-Respondent High Court Appeal No. 17/1995, disposed of on 28-10-1996. Banking Tribunals Ordinance, 1989- -S. 9 read with Ss. 73, 74 of Contract Act, 1872 and S. 6(2) Banking Tribunal Ordinance, 1984Breach of contract-Liquidated damages and mark-up-Suit for-Decree passed-Appeal against-General principle for granting compensation when beneficiary alleges breach of contract, are obviously regulated by Ss. 73 and 74 of Contract Act-Evidently without proving actual loss, even fixed amount stipulated for liquidated damages does not become automatically payable-Respondent Bank has not adduced an iota of evidence suggesting quantum of actual losses suffered by reasons of default on part of appellants-Demand for specified liquidated damages by creating liability through forced finance account against appellants not justified-Damages could be assessed either on basis of expected profit u/S. 73 of Contract Act or actual loss where liquidated damages could be extended to maximum amount mutually agreed between parties within purview of S. 74 of Contract Act-It is obvious that respondent could not simultaneously claim 'Liquidated damages' as well as mark-up for committing breach of stipulation subject matter of contract-Order accordingly. [Pp. 95 & 96] A & B Mr. Basharatullah, Advocate for Appellants. Mr. Abdul Samad Dogar, Advocate for Respondent. Date of hearing: 24-10-96. judgment Munawar Ahmad Mirza, C.J.-This appeal is directed against judgment and decree dated 31st August, 1995 passed in Civil Suit No. 29 of 1995 whereby appellants were directed to pay a sum of Rs. 5,39,576/-, with future mark-up and costs. 2. Relevant facts briefly mentioned are that pursuant upon regular sanction towards 6th November, 1993 appellants M/s Hitec Metal Plast (Pvt.) Ltd. established letter of credit No. 52781 I/DA with Habib Bank Ltd; Complex Branch, Quetta for importing material from Federal Republic of Germany valuing approximately US Dollars 67,031/25. The payment against letter of credit was to be made by appellants within 90 days from 'Bill of Lading'. The shipment of goods relating to letter of credit was effected on 22nd December, 1993 and documents were negotiated. Consequently Bill of Exchange was due for payment to respondent Bank on 21st March, 1994. 3. It is the case of respondent-Bank that appellants failed to pay the amount against letter of credit equivalent to Pak Rupees 20,65,101/- within stipulated period (i.e. 21st March, 1994) whereupon in the respondent "Bank" was obliged to create forced finance account against them. However, appellants paid the principal amount on various dates from 31st May, to 5 th December, 1994. Respondent therefore claimed from appellants sum of Rs. 1,26,555/- (Rupees one lac twenty six thousand five hundred fifty five) by way of mark-up, commission and central excise duty. Additionally an amount of Rs. 4,13,021/- (Rupees four lacs thirteen thousand twenty one) were also sought as liquidated damages on account of appellants' failure to honour the commitment within specified time. Thus suit for recovery of Rs. 5,39,576/- (Rupees five lacs thirty nine thousand Five hundred Seventy Six), besides future mark-up was filed before Banking Tribunal, Balochistan claiming following reliefs :-- 1. Decree for sum of Rs. 1,26,555/- 2. Decree for sum of Rs. 413,021/- as liquidated damages. 3. Mark-up at the rate of 52 paisa per thousand per day from the date of filing of suit till the date of decree and from the date of decree till the date of realization of decretal amount. 4. Costs of the suit may please also be awarded. 4. Appellants on service of show cause notice, filed reply on 15 th Tune, 1995 seeking permission to defend the suit. It was specifically pleaded hat liquidated damages, do not form part of agreement executed between he parties, therefore, same could not be claimed. Validity of accounts aaintained by respondent 'Bank' was also expressly challenged. It was sserted that on account of respondent's cancelling facility regarding letter of credit, appellants suffered huge losses. Thus liability of suit amount was refuted. Learned trial court rejected request of appellants regarding permission for defending the suit and granted decree in favour of respondent 'Bank'. Vide judgment dated 31st August, 1995 which is reproduced below in extenso :-- "The plaintiff bank has sued the defendants for recovery of the above mentioned amount under the following circumstances :-- That on request of defendant No. 1 limits of (L/C) was sanctioned on 29.10.1992, and which had to expired on 31.1.1994, and a security property was mortgaged, and the payment was made to the 3rd party on behalf of the defendants but the defendants did not pay Rs. 1,26,555/- as due against them on 31.5.1994 and further the defendant did not pay the amount to the Bank in time for which the plaintiff claim 20% percent liquidated damages being Rs. 413.021/-. Now the plaintiff has filed the suit because the defendant did not pay the amount inspite of several demands made to them. The defendants filed reply to the notices saying that the plaintiff have caused huge losses to them, due to their "plaintiff 1 conduct and have filed a case of damages against the plaintiff in the Hon'ble High Court of Sindh. They have further stated in their reply to the notice that there was no agreement for liquidated damages, therefore, no such damages could be claimed. The case was argued by the counsel for parties. It is admitted that the (L/C) facility was availed and from the statement of account in suit is due against the defendants to the plaintiff Bank because as per agreement the amount was not paid to the Bank in time. So far as liquidated damages are concerned it is also disputed that the amount was not paid to the Bank within the agreed period, therefore, the Bank was at loss for the period when the amount due was not paid to the Bank by the defendants. So the defendants are liable to pay liquidated damages as well. I see no reason to allow the defendants to make defence. The suit of the plaintiff is based upon documents, therefore, I decree the amount in suit with costs in I favour of the Bank against the defendants jointly and severally and the defendants are also ordered to pay mark-up at the agreed rate from the date of filing of the suit, till the whole decretal amount is realized. The defendants are also liable to pay liquidated damages, to the Bank at the agreed rate. The Mortgaged property is ordered for foreclosure". Mr. Basharatullah Advocate for appellants strenuously urged that provisions of section 6(2) Banking Tribunals Ordinance, 1984 makes it ' obligatory for trial court to hold enquiry about controversy raised by the ' debtor and failure to adhere with said requirements causes contravention of basic principle of law. According to him liquidated damages neither formed part of contractual obligations nor respondent Bank was justified to demand it specially when payment of the principal amount had been cleared prior to institution of the suit. Learned counsel canvassed that demand relating to mark-up upon existing liability of mark-up not only disregards relevant law but also tends to violate instructions issued by State Bank. It was thus stressed that amount claimed in the suit being unjustified merited rejection. Legality of the impugned judgment granting mark-up on the decretal amount was also emphatically challenged. 5. Learned counsel for respondent Bank vehemently opposing the appeal, argued that trial court considering contractual obligations and ] obvious losses suffered by the Bank on account of appellant's conduct about , withholding delaying or denying payment of amount due; ad rightly , allowed benefit of mark-up and liquidated damages. Learned counsel stressed that liability concerning principal amount and mark up was factually not disputed by appellant through petition for leave to defend, filed on 15th of June, 1995; therefore, according to him, impugned judgment did not suffer from any defect or infirmity. Learned counsel maintained that liquidated damages formed part of agreement which had been validly executed between the parties, therefore trial court has not committed any error while granting decree, pertaining to said amount. 6. We have carefully perused the record and considered arguments advanced by learned counsel for parties in the light of relevant law. 7. The appellants in the petition seeking leave to defend have not controverted assertion regarding factual aspects mentioned in the plaint. It may be seen that essential element for putting forth present claim such as (i) opening letter of credit (ii) receipt of money by company at Germany on despatching goods (iii) issuing bill of lading (iv) factum of negotiating document, and (v) liability of payment within 90 days from Bill of Exchange; have not been refuted. Most important and crucial objection agitated by appellants pertains to entitlement of respondent 'Bank' about liquidated damages. Therefore, it essentially needs examination whether trial court without existence of specific condition in the contract could allow liquidated damages. Secondly whether liquidated damages could be awarded, unless beneficiary have formally proved actual loss even if amount was fixed in that behalf. Admittedly liability against 'Bill of Exchange' was not cleared by appellants within due date. However, entire principal amount and part of mark-up was adjusted by the appellants before inst tution of suit, culminating in present proceedings. Thus, another factor needing consideration would be whether after receiving principal amount prior to institution of suit, respondent 'Bank' could demand liquidated damages. Perusal of AGREEMENT FOR IRREMOVEABLE DOCUMENTARY CREDIT FREELY NEGOTIABLE IN BENEFICIARY'S COUNTRY, reveals that, stipulation for payment of liquidated damages, certainly existed. Now looking to factual side it is quite apparent that respondent 'Bank' despite opportunity has neither produced any evidence nor mentioned detailed break-up of losses actually suffered to justify demand concerning liquidated Damages. 8. General principle for granting compensation when beneficiary alleges breach of contract; are obviously regulated by sections 73 and 74 of Contract Act. Evidently without proving actual loss, even fixed amount stipulated for liquidated damages does not become automatically payable. Record manifestly displays that respondent 'Bank' has not adduced an iota of evidence suggesting quantum of actual losses suffered by reasons of default on the part of appellants. We therefore feel that demand for specified liquidated damages by creating liability through forced finance account against the appellant was not justified. 9. Adverting to other aspects it is not disputed, that mark-up calculated uptill filing of suit, was also claimed. Now analysing legal position merging from above factors apparently damages could be assessed either on the basis of expected profits under section 73 of Contract Act or actual loss where liquidated damages could be extended to maximum amount mutually agreed between the parties within the purview of Section 74 of Contract Act. It is obvious that respondents could not simultaneously claim 'liquidated damages' as well as Mark-up for committing breach of stipulation subject ^ matter of contract. Therefore, we unhesitatingly observe that amount of j mark-up having been separately claimed, by respondent Bank; its demand I concerning damages specially without formaliy proving the same is not warranted. Trial Court has cursorily, without specifying any reasonings has allowed benefit of mark-up for entire period besides 'liquidated damages' to respondent 'Bank'. Thus we are pursuaded to hold that, benefit of mark-up for entire period clearly suggests, expected profit on agreed rates, therefore no justification existed to allow liquidated damages, specially without ubstantiating the same. Accordingly claim put forth by respondent 'Bank' concerning liquidated damages is not sustainable. It may further be observed that payment of future expected profits; calculated as per agreed percentage of mark-up on the decretal amount by "excluding liquidated damages" is certainly fair and proper and would meet ends of justice. 10. It would not be out of place to mention, that during pendency of proceedings, appellants have deposited various amounts under the directions of this Court which necessarily requires adjustment towards decretal amount, costs and future expected profits calculated at agreed rate of Mark up. However, after accounting by excluding amount of liquidated damages, if any liability still subsists same be recovered from securities furnished by appellant before this Court. On clearance of entire decretal amount with costs and future mark-up (excluding liquidated damages) the securities shall stand discharged. It may be clarified that property which has already been mortgaged in favour of respondent 'Bank' shall remain under-lien till entire decretal amount is completely satisfied. The appeal is disposed of in the above terms. Decree be modified accordingly. Parties are however, left to bear their own costs. (K.A.B.) Order accordingly.
PLJ 1997 Quetta 97 [DB] PLJ 1997 Quetta 97 [DB] Present: AMIRUL MULK MENGAL C.J AND JAVEDIQBAL, JJ. JAFFAR KHAN MANDOKHAIL-Petitioner Versus RETURNING OFFICER etc.--Respondents C.P. No. 9/1997, accepted on 25.2.97. Represetation of People Act, 1976- S. 12 and 14 read with Article 199 of Constitution of Pakistan, 1973-- Election dispute-Nomination papers-Rejection of-Challenge to~ Nomination papers were rejected on ground that petitioner has not made a declaration of properties owned by him-Law required only those assets and liabilities which belong to petitioner, his spouse or his dependants to be mentioned in Declaration Form-Admitted position is that all such properties are still in name of Grandfather of petitioner and some body else-None of those properties have been transferred in the name of petitioner or his spouse-Therefore even if petitioner has now disclosed his such shares, but his nomination papers could not be rejected under section 14(3)(c) of Act for non-mentioning of those properties because such properties have not yet been transferred in his name or in name of his spouse or dependants-Petition accepted. [Pp. 101 & 102] A M/s. Aslam Chishti and AS. Dogar, Advocates for Petitioner. Mr. W.N. Kohli, Ch. Ejaz Yousaf, A.G. and M.S. Rakhshani, D.A.G. for Respondent. Date of hearing: 28.1.1997. judgment Amir-ul-Mulk Mengal C.J.-We had disposed off Constitutional Petition No. 09 of 1997 through our short order dated 28.1.1997 and here are the detailed reasons for the same. Relevant facts for filing the Constitutional Petition are that the petitioner is a, candidate for Election from PB-14 Zhob-II. He filed his nomination papers also for NA-200 Zhob-Cum-Killa Saifullah. Respondent No. 1, APA Zhob is the Returning Officer for Constitutency PB-14 Zhob-II. Respondent No. 2, who was at the relevant time a candidate for the said Constituency filed objection to the nomination paper of the petitioner, or as many as 16 counts. The most important objection was that the petitioner has not made a declaration of properties owned by him. On the day of scrutiny the Returning Officer rejected all the objections and declared the nomination paper of the petitioner as having been filed validly. Feeling aggrieved of the acceptance of petitioner's nomination paper, Respondent No. 2, Raza Muhammad preferred an appeal before the Election Tribunal. During the hearing of the appeal, the appellant through an affidavit filed a list of properties in which he has got shares being legal heir of late Sheikh Meerak and Sadullah Khan alias (Janan).However, the order of the Returning Officer was set-aside and case was remanded to the Returning Officer with directions to dispose off the objections filed by the appellant strictly in accordance with law. After remand of the case, the Returning Officer rejected the nomination paper of the petitioner vide order dated 8.1.1997, mainly on the ground that the objection raised by Raza Muhammad were of substantial nature and the omission on the part of Respondents (petitioner herein) were of such nature which could not be allowed to be rectified at belated stage and which otherwise were intentional and deliberate. It is farther, revealed that the petitioner firstly filed an appeal before the Tribunal but the appeal was .returned as the Tribunal was functus officio. Having no alternate remedy, the petitioner filed present Constitutional Petition. On account of vacations no Division Bench was available thus, the petitioner rushed to the Hon'ble Supreme Couit for getting a stay order, which was granted to him. However, the Hon'ble Supreme Court confirmed the stay granted in the chamber with direction that the petition shall be ecided by the Division Bench of High Court. Urgent applications were moved for disposal of the petition and on availability of the Division Bench matter was fixed arid heard. Mr. Fakhruddin G. Ibrahim, the main counsel appearing on behalf of the petitioner, canvassed that the Election Laws do not contemplate an order of remand and that the Returning Officer has fallen into error in holding that omissions in the nomination paper were of substantial nature and that the petitioner's applications U/S 14(3) was belated. In fact th petitioner had no agriculture property at Zhob, however, he possess agriculture and other property at Quetta but on account of inadvertant omission the agricultural property was declared as being situated at Zhob. It was argued that so far as ancestral agricultural land at Zhob, it was a typing error and not a deliberate omission. Mr. Fakhruddin G. Ibrahim urged that the object of Election Laws, as is evident from its plain reading is to allow candidates to approach the "Political Sovereign. Therefore, in section 14 sub-section 3 of the Representation of the People Act, 1976 (Act No. LXXXV of 1976) the word "May" has been used instead of "shall". As such, according to learned counsel, the Returning Officer shall not reject a nomination-paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be rectified forthwith. It was argued that although section 12(2) (VIII) envisages that nomination paper of a candidate shall be rejected if he failed to make a declaration as regards to assets and liabilities of his own, spouses and dependants on the prescribed form as on the preceding 30th of June. This provision is to be read with section 14 of the Act. The petitioner in compliance with the said mandate of law duly made a declaration of such assets but on account of inadvertent omission, he wrongly stated property at Zhob whereas in fact the property was at Quetta. It was, therefore, argued that such omission was not deliberate because the petitioner could have no gains or benefit out of the same. Further-more such omission was not of substantial nature to render the nomination paper to be rejected. It was argued that as for as future or expected shares in the joint ancestral properties, the petitioner gave details before the Election Tribunal. The error if at all any, was rectified. Mr. K.N. Kohli strongly opposed such contention. His main argument was that as per section 14(3)(c) the nomination paper of the candidate may be rejected by the Returning Officer if any provision of section 12 of section 13 has not been complied with or submits any false or in-correct declaration or statement in any material particular. In this regard much stress was laid that the appellant himself disclosed during pendency of the appeal that he owns several properties but the fact remains that he did not disclose such property as belonging to him or to his spouse in the declaration of nomination paper. All such aspects were duly taken into consideration by the Returning Officer Zhob. The learned Returning Officer has rejected the nomination paper of the petitioner on the ground that during previous regime when he was a Minister, he used to live in his residence at Quetta which he did not declare as official Bungalow of the Minister. This property therefore, should have been mentioned and non-mentioning of this property as well as remaining properties at Quetta were deliberate omission as such declaration and statement made by the petitioner were of substantial nature. Besides, Mr. K.N. Kohli invited our attention to another statement/declaration submitted by the petitioner before the Election Commission of Pakistan in which also he did not mention these properties as belonging to him. Mr. Advocate General Balochistan supported the arguments of the Mr. Fakruddin G. Ibrahim and further submitted that the only question is whether omission to mention properties are of substantial nature or these are omissions which could be rectified by the Returning Officer U/S 14(3)(D)(II)oftheAct. Deputy Attorney General supported the impugned order and contended that it was incumbent on the part of the petitioner to have given all details of his assets and liabilities as required U/S 12(2)(VIII). H Non compliance of the aforementioned provisions would render the nomination paper of the petitioner to be rejected by the Returning Officer U/S 14 (3) (C) of the Act. We have given our anxious consideration to the arguments so advanced. In the first instance, we have to re-produced relevant provisions of the Act, which are section 12(2)(VIII) as well as section 14(3)(C):- (2) "Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii)"A statement of assets and liabilities of his own, spouse and dependents on the prescribed form as on the preceding thirtieth day of June. Sec. 14 (1). (2). (3) The Returning Officer may, either of his own motion or upon any objection by any person referred.ttfin sub-section (1), conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that. (a), (b). (c) Any provision of section 12 or section 13 has not been compled with or submits any false or incorrect declaration or statement in any. material particular; or In so far as declaration of assets and liabilities is concerned, the petitioner has filed a declaration of assets (Page 20 .of petition). As for as correctness of the same is concerned, it was the duty of the candidate/objector to have produced evidence that such entries were wrong or incorrect. Before the Returning Officer at the time of scrutiny, no evidence was produced except two documents showing property belonging to grand father of the petitioner. Therefore, nomination papers of the petitioner were accepted. But during appeal the petitioner filed an affidavit stating that he owns share in some joint properties at Quetta. He had given a list of such assets (immovable properties) which were committed to be declared in the nomination paper. Perusal of the same would show that all such properties are still in the name of his grand-father Sheikh Meerak Khan or his father Haji Saadullah Sheikh. Only at para 3 there is mention of a house at Khudaidad Road Quetta which also belongs to late father of respondent. Similar reading of the said affidavit would reveal that a joint property was acquired but on further scrutiny, it was found that the very small portion of _^ one(l) rod fifteen (15) pols was left out. In such circumstances we have to see whether the petitioner's nomination paper could at all be rejected on such material. Admitted position is that not a single attested document was produced by Mr. Raza Muhammad to show that petitioner has assets and liabilities in his name, in the name of his spouse, or in the name of his dependants other than those mentioned in the statement, except two uncertified papers regarding property of Sheikh Meerak. However, Mr. Kohli ~~ relied on the list given by petitioner himself before the Election Tribunal. Perusal of the same shows that none of such properties is in the name of the petitioner, these properties are joint and only by operation of Islamic Law the petitioner would be entitled to his share as well as shares of his spouse. The question which is pertinant is whether it was incumbent upon the petitioner to have mentioned properties which have not yet been transferred either in the name of the petitioner himself or in the name of his spouse or dependants. The plain answer is 'No'. The reason being that the law requires only those assets and liabilities which belong to the petitioner, his spouse or his dependants, to be mentioned in the Declaration Form of-course petitioner and his spouse might get their respective shares in such properties but this will require certain legal formalities. The admitted position is that all such properties are still in the name of Sheikh Mirak (Grandfather of the petitioner) and Sadullah Sheikh alias (Janan). None of these properties have been transferred in the name of petitioner or his spouse uptill date. Therefore, even if petitioner has now disclosed his such shares, but his nomination papers could not be rejected under section 14(3)(c) of the Act for non-mentioning of these properties because such properties have not yet been transferred in his name or in the name of his spouse or the dependants. Returning Officer has acted on mere conjectures as there was no material before him to conclude that the bungalow at Quetta and other properties are recorded in the name of petitioner and his spouse or dependants. The very basis of rejection of nomination papers of the petitioner thus is missing. » In such circumstances, we have no option but to accept this petition. Resultantly petition is accepted and it is declared that the petitioner is a validly nominated candidate from constituency PB-14 Zhob-II. The order of his rejection papers impugned in this petition dated 8th January, 1997 being illegal is set aside. We pass no orders as to costs. (K.A.B.) ' Petition accepted.
PLJ 1997 Quetta 100 PLJ 1997 Quetta 100 (DB) Present: IFTIKHAR muhammad chaudhry and mir muhammad nawaz marri, JJ. MISS ZUBIA BUGJI-Petitioner versus SELECTION COMMITTEE FOR ADMISSION IN FIRST YEAR MBBS Through its Chairman Public Service Commission, Quetta etc.Respondents C. P. NO. 284/96, ACCEPTED ON 23/12/96. (i) Constitution of Pakistan, 1973-- Art. 199 read with paragraph 14 of Prospectus of Bolan Medical College- Two applications from one candidate Le one for a seat reserved for candidates from Dera Bugti Agency, other for a seat reserved for sons/daughters of Doctors serving in Balochistan-Withdrawal of one application-Selection Committee rejected both applicationsChallenge to-As children of Doctors under paragraph 14 are eligible to compete with other candidates on merits against seats reserved for their respective Districts/Agencies, therefore, they are also competent to withdraw application out of both categories before selection committee--If petitioner after having applied for admissio gainst reserved seats of girls for Dera Bugti Agency, has withdrawn her candidature by submitting an application it would not mean that she had done it with mala fide intentions-Petitioner's father is serving in provincial Health Services of Balochistan as a doctor since 1973 petitioner being his daughter was eligible against seat reserved for Doctor's children under paragraph 14- Selection committee had passed impugned order, rejecting her candidature without jurisdiction. [Pp. 107 & 108] A, B & C (!i) Constitution of Pakistan, 1973- ---Art. 199 read with Paragraph 14 of prospectus of Bolan Medical College- Selection committeepassing order perverse and contrary to prospectus- High Court while interfering-competent or not-Question of~In the matters where Selection Committee had acted without jurisdiction and passed order which is perverse contrary to prospectus, which confers jurisdiction upon it to make selection of candidate and decision arrived at appears to be erroneous, based on illegal interpretation of its various provisions-This court while exercising jurisdiction under Act 199 is competent to interfere in such orders. [P. 108] D Shakeel Ahmad, Advocate for Petitioner. M.S Rakhshani, Advocate for Selection Committee and others. Ch Eljaz Yousaf, A.G. for Respondent No. 2 and 4. Raja M. Afsar, Advocate for Respondent No. 5. Date of hearing: 26-11-1996. Accepted on: 23/12/96. Iftikhar Muhammad Chaudhry, J.-In this Constitutional petition, Miss Zubia Bugti daughter of Dr. Noor Mohammad Bugti, has prayed that order of Selection Committee for admission in Bolan Medical College, be set aside and she be admitted against the seat reserved for Doctors' children falling in category 'B' of para-14 of the Prospectus of Bolan Medical College, in the Session of 1995-96, in place of Respondent Fazlur Rehman son of Dr. Amir Muhammad Khan. It would appropriate to reproduce herein-below impugned order, passed Selection Committee :- 'Application of Miss. Zubia Bugti d/o Dr. Noor Muhammad Bugti for considering her against the seat reserved for doctors children. MISS ZUBIA BUGTI had applied for a seat reserved for the candidates from Dera Bugti Agency. She had also applied for a seat reserved for the sons/daughter of Doctors serving in Balochistan (Cat-B prospectus para No. 14) She submitted an application on 3.7.1996 to the Chairman Selection Committee stating that she wanted to surrender her candidature for a seat reserved for candidates of Dera Bugti Agency and opt for the seat reserved for Doctors' Children. This application was made when the candidate came to know from the merit list that in case she surrendered her seat from Dera Bugti Agency and opted for a seat of Doctors' Children, her cousin namely Miss Zeenat Bugti could have a chance for being selected against a girls' seat of Dera Bugti Agency. The Selection Committee considered request of the applicant and came to conclusion that the option of the candidate at the belated stage was with the malafide intension. In case she did not wamVtQ contest for seat from Dera Bugti Agency, she should not have applied for that seat. Therefore, the Selection Committee did not entertained her request. Besides the selection committee has rejected the application of the above candidate for the reason that neither she nor her father are the permanent residents-of Balochistan. Therefore, they have not right to claim a seat reserved for Doctors Children of Balochistan." Precisely the facts are that petitioner passed her matriculatior.i, examination from Beacon House Public School, Quetta. Thereafter sjne qualified her F.Sc. (Pre-medical) Examination from Government College, Dara Bugti and obtained 757 out of 1100 marks. Since her father is Dopjtor in Provincial Health Services, therefore, she applied for admission in First Year MBBS class against the seat reserved for Doctors children, falling under category 'B' of paragraph 14 of the Prospectus. Simultaneously she also applied for admission, by submitting separate application against the general seats reserved for the students of Dera Bugti Agency in Bolpat Medical College, for the academic session of 1995-96. During interview, candidature of petitioner and her cousin Miss Zeenat Bano (petitioner, in C.P No. 283/1996) was objected to, by the rival candidates on assertions that they do not actually belong to Dera Bugti Agency, as they ha^re shifted to the Province of Sindh. On this selection committee,, within the perview of paragraph 32 of the Prospectus directed the Political. Agent, Dera Bugti Agency to conduct an enquiry. Accordingly report date^d 7th July, 1996, was submitted before the Selection Committee by Political Agent,' in which, it was opined that both the candidates are not permanf mt residents of Dera Bugti Agency. It is important to note that before fin? J selection, petitipnei^ submitted an application to the Selection Committr >e on 2nd July, 19%, praying that her application may be considered against the seat reserved for Doctors' children, as provided in categoiy 'B' of paragraph 14 of the Prospectus. But despite her request, vide impugne ,d order, her candidature has been rejected, against the general reserved se?ats of Dera Bugti Agency, as well as against the seat reserved for Doctors' children. As for as private respondent Fazlur Reh? t nan is concerned, he is son of a Doctor and belongs to District Pishin, th.erf >fore, he also applied for admission against the same seat and his application has been accepted. Mr. Shakeel Ahmad, learned Counsel for petitioner argued that Selection Committee erred in law, in holding that petitioner does not belong to Dera Bugti Agency as well ?is to Province of Balochistan, to qualify herself for admission, both against ge.neral reserved seats of Dera Bugti Agency and seat reserved for Doctors' children. According to him, admittedly petitioner's father is in Provincial Health Services of Balochistan and is serving as a Doctor since 1973. He also obtained admission against the reserved seats of Province of Balochistan in Dow Medical College, being local of Dera Bugti Agency. Learned Counsel contended that for obtaining admission against the reserved seat of Doctors' Children it is not obligatory upon the candidate to establish that he belongs to a particular District, because such seats are to be distributed amongst the cliiildren of Doctors on provincial basis. Therefore, Select on Committee had no jurisdiction in such like cases to conduct probe as required under paragraph 32 of the Prospectus. Raja M. Afsar, learned counsel for private respondent, contended that unless connection is not established by a candidate applying for admission against tho seat reserved for Doctors' children, that he/she actually belongs to a particular District/Agency, he/she cannot be deemed to be qualified to compete for the said reserved seat on provincial basis. According to learned Counsel, although under paragraph 14 of the Prospectus, the Selection Committee has not been empowered to conduct an enquiry, as it has be en contemplated under paragraph 32 of the Prospectus, to determine, whether a candidate actually belongs to a particular District/Agency, from where he has applied for admission, but if this para Le. 14 is read wit,h paragraph 37 of the Prospectus and with a view to harmonize all provisions of Prospectus, no other conclusion can be drawn except that candidate must prove that he belongs to a particular District/Agency. He also added that writ jurisdiction can be invoked where a case of no jurisdiction has been made out. In the instant case the Selection Committee has jurisdiction to decide the matter that petitioner initially applied for admission against general seats but lateron with malafide intentions she withdrew her candidature against the general reserved seats of Dera Bugti and applied for admission against the seat, reserved for Doctors' children, therefore, her application has been rightly rejected on both the scores. Reference in this behalf, was placed by him on 1975 SCMR 123, PLD 1981 Karachi 620 and 1981 CLC 694. Lastly he contended that in writ jurisdiction, this Court can declare that petitioner is eligible for , admission, if contentions raised on her behalf are accepted, but while declaring so, replacement of private respondent cannot be directed, as it has been held in PLD 1981 SC 335. Mr. M. S. Rukhshani, learned Counsel for Selection Committee and Principal, Bolan Medical College, adopted the arguments of Raja M. Afsar, Advocate. Caaudhry Ejaz Yousaf, learned Advocate General, did not support the impigned order, as according to him, Doctor Noor Muhammad Bugti, father a petitioner, is admittedly in Provincial "Health Services since 1973, therefore, notwithstanding decision given by the Selection Committee that he or lis daughter Le. petitioner does not belong to Dera Bugti Agency, stfll against the reserved seat of Doctor' children, petitioner was entitled for admission, because she has more marks than private respondent He also contended that there are no hard and fast rules, provided by prospectus for a candidate not to withdraw his/her candidature, if application for admission has been made against more than one categories of reserved seats Le. seat reserved for Doctors' children or seats reserved for a particular Hstrict/Agency. In this behalf he made reference to 1995 SCMR 711 and :996SCMR218. We have heard the parties' counsel and also examined the record of case, so made available. In view of paragraph 15 of the prospectus of Bolan Medical College, there is no bar for the children of Doctors to apply simultaneously against the general reserved seats of a particular District/Agency, to which they belong. As after submission of application dated 2.7.1996, petitioner prayed that her candidature be only considered against the seat reserved for the children of Doctors falling under category 'B' of paragraph 14 of the Prospectus, therefore, it would be appropriate to reproduce the same, berein-below:- , "The Selection of candidates against the three seat! reserved for the children of doctors of Balochistan shall be made from amongst the eligible children of doctors who are local/Domicile of Balochistan or posses valid permanent residence certificate of Balochistan they will also he governed by para No. 29 and their selection will be effected according to the following three categories. CATEGORY-A., CATEGOfly-B.'-Children or doctors serving in the Provincial Health Department with at least ten years service other than those mentioned in Category 'A above. The children of retired and deceased doctors shall also be eligible for the seat provided that the deceased doctor had at least ten years service at his credit one seat" . A perusal of above para suggests that for children of Doctors, who are local/Domicile of Balochistan or possess valid permanent resident Certificate of Balochistan, it is not necessary for them to establish that he/she actually belong to a particular District/Agency, because in this para, not only children of Doctors, who are local/Domicile of Balochistan, but even those who have valid Permanent Resident Certificate of Balochistan, can also apply for admission. However, it remains their obligation to prove that they belong to the Province of Balochistan, because the seats reserved for the Doctors children are to be distributed on Provincial basis. It may be noted that for whole of Balochistan, one seat is served for Doctors' children falling within category 'BV It is golden principle of interpretation of statute that a particular provision is to be read in its ordinary and plain meaning, without supplying any omission. Evidently under paragraph 14 of the Prospectus, the Selection Committee has not been empowered to conduct an enquiry, to the effect, whether a candidate i.e. children of Doctors, actually belong to a particular District/Agency, therefore, impliedly paragraph 32 cannot be read in paragraph 14 of the Prospectus. As such, the argument put forth in this behalf by Raja M. Afsar, learned counsel, has no force. As it has been observed herein above that children of Doctors under paragraph 14 of the Prospectus are eligible to compete with other candidates on merits against the seats reserved for their respective Districts/Agencies, therefore, they are also competent to withdraw application out of bpth the categories before the Selection Committee. In this behalf, reference to a case reported in 1995 SCMR 711 (Hamza Khan vs. Province of Balochistan through Secretary Education) can be made. In this case, the Hon'ble Supreme Court has laid down that if there is a tie between students having residence in Rural and Urban areas and the student who has applied for admission against the reserved seat of Rural area has not been found eligible of admission, he can be considered on open merit seats, even if he has not applied for admission against that category of reserved seat. Similarly in another case reported in 1996 SCMR P- (Shazia Irim vs. Government of Balochistan), it has been held that candidates having been found resident of Urban area of City and her application for admission against the Rural seat having been rejected, on that account, she can be considered against the Urban seat, if she otherwise qualify for admission on merits against the seats reserved for Urban area an.d such candidate could not be denied admission, merely on the ground that she had not applied for admission against the reserved seat for Urban area, for there was nothing in the Prospectus of College to show that an applicant who had applied for admission against the Rural seat, could not be considered against the Urban seat, if she/he was otherwise qualified for admission on merits against the seat. The Hon'ble Supreme Court further observed that such hyper technicalities militate against the spirit of Admission Policy in Educational Institutions. Following this principle, we are also inclined to hold that if petitioner after having applied for admission against the reserved seats of Girls for Dera Bugti Agency, has withdrawn her candidature by submitting an application, it would not mean that she has done it with malafide intentions. As learned Advocate General had categorically stated at bar that petitioner's father is serving in Provincial Health Services of Balochistan, as a Doctor, since 1973, therefore, petitioner being his daughter was eligible against the seat reserved for Doctors' children falling under category 'B' of paragraph 14 of the Prospectus. As such, in our opinion, the Selection Committee had passed impugned order, rejecting her candidature without jurisdiction. Thus, Judgments cited by Raja M. Afsar, learned counsel for private respondent, in our humble opinion, are of no help to him. '' It was also contended by learned counsel for private respondent that, in view of the Judgment of Hon'ble Supreme Court, reported in 1989 SCMR 407, it is the prerogative of the Selection Committee to satisfy itself, whether the candidate is eligible for admission or not ? Therefore, this Court in exercise of writ jurisdiction cannot replace such conclusion of Selection t Committee, with its opinion. , As for as the principle discussed in judgment is concerned, there is no cavil with it, but in the matters, where Selection Committee had acted without jurisdiction and passed order, which is perverse, contrary to prospectus, which confers jurisdiction upon it to make selection of candidate and decision arrived at appears to be erroneous, based on . illegal interpretation of its various provisions, this court .while exercising jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, is competent to interfere in such orders. Thus, for the foregoing reasns, impugned order passed by Selection Committee is held to have been passed without jurisdiction and lawful authority and it is declared that petitioner is eligible for admission in First Year MBBS class of Bolan Medical College, for the session of 1995-96, against the seat, reserved for Doctors' children, falling under category 'B' pf paragraph 14 of the Prospectus. No order as to costs. (K.A.B.) Petition accepted.
PLJ 1997 Quetta 109 (DB) PLJ 1997 Quetta 109 (DB) Present: AMIRUL MULK MENGAL C. J., AND amanullah khan yasinzai, JJ. M/s EFU GENERAL INSURANCE LTD.--Appellant versus Mr. FAHIMUL HAQ--Respondent R.S.A. No. 4/1996, Accepted on 7-4-1997. (i) Contract Act, 1872 (IX of 1872)-- -Ss. 23 and 28 read with clause 13 of Insurance Policy-Insurance claim- Limitation for-Clause 13-Insurance policy whether . contravenes provisions of S. 23 and 28 or not-Question of-Clause 13 was valid and did not contra-vene provisions of Ss. 23 and 28 of Contract Act-Claim of respondent was rejected on 10-1-1991 and suit was filed on 3-5-1992 after more than 12 months-Suit filed by respondent was time barred. [P. 114] A (ii) Contract Act, 1872 (IX of 1872)-- S. 45-Insurance claim-Suit for-Habib Bank-One of beneficiaries of Insurance Policy-Whether a necessary party-Question of-Habib Bank cloth market branch being one of beneficiaries of insurance policy was a necessaiy party and in its absence suit filed alone by plaintiff/respondent was not maintainable. [P. 115] B {Hi) Contract Act, 1872 (IX of 1872)-- S. 28-Scope and intention of-Intention behind said provision of law is that all those agreements which restrain a person to enforce his rights, under a contract by usual legal proceedings in ordinary tribunals are void-It obviously implies that a party cannot be restrained to enforce his rights in ordinaiy court of law but if by mutual agreement between parties a particular court having territorial or pecuniaiy jurisdiction is selected for determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy. [P. 117] C Mr. Nacem Ahmed, Advocate for Appellant. Mr. H. Shakil Ahmed, Advocate for Respondent. Date of hearing: 26-3-1997. judgment Mr. Amanullah Khan J.--This 2nd appeal is directed against judgment and decree dated 29-8-96 passed by learned Majlis-e-Shoora Khuzdar whereby the judgment and decree dated 24-5-95 passed by Qazi Uthal was upheld. Eastern Federal Union Insurance Company Ltd. for recovery of Rs. 48,60,000/- on account of loss suffered due to heavy rains and floods in Lasbela District on 23-11-89. It is averred in the plaint that the respondent has Magnese ore mines in Sanjero District Lasbela. The respondent received an order from Korea for export of maganese ore. For the said purpose he obtained a loan on 5th November from Habib Bank Cloth arket Branch Karachi and as a surety the mines and Maganese ore was mortgaged with the bank. On the direction of the Bank the mortgaged property was insured with the appellant to the extent of Rs. 60,00,0007- on 5-11-1989 vide insurance Policy No. 54303232/11/89 It is alleged that there were heavy rains in District Lasbela on 23-11-1989 and the flood water washed the Maganese ore which had been excavated and dumped at the store of the respondent The respondent informed the appellants about the said loss and filed & claim of Rs. 48,60,000/-. The claim was repudiated/rejected by the appellants on 10-1-1991. The respondent filed a suit for recovery of Rs. 48,60,000/- in the court of Qazi Uthal on 29.4.92. The appellants filed an application challenging the jurisdiction of the court in view of clause 21 of Insurance Policy. The said application was rejected by the learned Qazi on 17-8-92. Thereafter the appellants filed a.w/s on 2-6-92 challenging the jurisdiction of the court of Qazi Uthal and raising legal objections regarding maintainability of the suit. p. The learned Qazi after recording evidence of both the parties decreed the suit of respondents vide judgment and decree dated 19-2-94. On appeal the case was remanded by the learned Majlis-e-Shoora Khuzdar vide judgment and decree dated 15-11-94. After remand the learned Qazi again decreed the suit vide, judgment and decree dated 24-5-95. Being aggrieved from the same appellants filed an appeal before Majlis-e-Shoora Khuzdar on 20.6.1995. The learned Majlis-e-Shoora dismissed the appeal vide judgment and decree dated 28-8-96. The appellants have filed this second appeal before this court Heard Mr. Mohammad All Saeed and Mr. Naheem Ahmed Advocates for the appellants and Mr. H. Shakeel Ahmed Advocate for the respondents. As this is the second appeal, Mr. Muhammad AU Saeed confined his arguments on the points of law only. The learned counsel urged the following contentions :-- 1. That the suit should have been filed within three months from the rejection of the claim by the appellants in view of clause 13 of the Insurance Policy. 2. That Habib Bank Cloth Market Branch was one of the beneficiaries of the insurance policy and in absence of Habib Bank the plaintiff was not entitled to file the suit and receive the insurance amount alone. 3. The Qazi court at Uthal had no jurisdiction to tiy the suit as under clause 21 of the Insurance Policy it was agreed that all the claims will be settled in Karachi and all legal proceedings in respect of any such claim will be instituted in Karachi only. Reverting to the first contention that suit should have been filed within three months from the rejection of the claim as agreed in clause 13 of the insurance policy, it is appropriate to reproduce clause 13 of the Insurance Policy: "If the claim be in any respect fraudulent or if any false declaration be made or used in support thereof or if any fraudulent means or devices are used by the insured or one any acting in his behalf to obtain any benefit under this policy or, if the loss or damaged be occasioned by the wilful act or with the connivance of the insured or if the claim be . made and rejected and an action or suit be not commenced within three months after such rejection or (in case of an arbitration taking place in pursuance of the 18th condition of the policy within three months after the arbitrator or arbitrators or umpire shall have made their award, all benefit under this policy shall be forfeited." Mr. Muhammad Ali Saeed learned counsel for the appellants argued that in view of the afore-said condition the suit was not maintainable. Learned counsel urged that the respondent should have filed the suit within three months from the date of rejection of the claim. Mr. H. Shakeel Ahmed, learned counsel for the respondent argued that the said clause is in violation of sections 23 and 28 of the Contract Act. Furthermore, the learned counsel stated that the appellants rejected the claim of the respondent on 10-1-91 but the report of the surveyors was filed later on; as such the rejection is based on malafides. The learned counsel tried to argue that the suit is within the specified limit as the serveyors gave their report on 4.1.92. Learned counsel for the appellant in support of his contention relied on the following case law :-- 1. Baroda Spinning and Weaving Company Ltd. Vs Satyanarayan Marine and Fire Insurance Company Ltd. AIR 1914 Bombay 225. 2. Girdharilal, Hanumanbux vs. Eagle Stare and British Dominions Insurance Company Ltd. 27 Calcutta Weekly Notes page 955. 3. 4 Rainea & 1 vs. Burma Fie and Marine Insurance Company Ltd. 3 Rangoon Series 383. 4. Sargodha Central Co-operative Bank Ltd. and another vs. New Hempshire Insurance Company Ltd. 1982 Karachi 627. 5. Ali Pipe Industries vs. Universal Insurance Company Ltd and 2 others PLD 1989 Lahore 390. I From the above cited cases it is evident that in India during prepartition as well as post partition, various courts have consistently held that a clause limiting the period of the insurance Companies Liability is not hit by sections 23 and 28 of the Contract Act and is legal and enforceable. It is not necessaiy to discuss all the case oited above as in Ali Pipe Industries vs. Universal Insurance Company, the said question was resolved by a Full Bench of Lahore High Court discussing the judgments of pre-partition and , post partition. Their lordships w'hile resolving the said issue have also referred to English judgments. Thd submitted to the jurisdiction of the learned Qazi. In support of his contention learned counsel for the appellants relied upon the following two cases : 1. State Life Insurance Company vs. Muhammad Saleem 1987 SCMR 393. 2. M/s Kadir Motors (Regd.) Rawalpindi vs. National Motors Ltd. Karachi 1992 SCMR 1174. In the case of State Life Insurance it was agreed between the parties that the disputes would be settled at Lahore and the suits will be filed before Civil Judge at Lahore. In the said case the insured filed a suit before Civil Judge Faisalabad. The jurisdiction of the Civil Court at Faisalabad was challenged. When the matter came up before the Supreme Court it was held as under: "We have considered the arguments of the learned counsel for the parties. Under section 9 of the Code of Civil Procedure the Civil Courts have jurisdiction to try all suits of a civil nature excepting the suit of which their cognizance is either expressly or impliedly barred. Under Section 20 of the Code of Civil Procedure every suit is to be instituted in a civil court within the local limits of whose jurisdiction the defendant resides or carries on business or where the cause of action wholly or in part rose. Under Section 28 of the Contract Act any agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract by the usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights, is void to that extent. It is evident from a plain reading of these provisions that there is no absolute exclusion of jurisdiction under section 9 or section 20 of the Code of Civil Procedure nor there is any violation of the provisions of section 28 of the Contract Act when two or more Courts have jurisdiction to try a suit and the parties mutually agree to choose or take their dispute to one of them. The Civil courts try their jurisdiction under the code of Civil Procedure. If they do not possess such jurisdiction under the Code it cannot be conferred on them through a mutual agreement of the parties to a dispute. But in a situation where two or more courts have jurisdiction to try a suit under the Code of Civil Procedure then an agreement between the parties that any dispute arising between them shall be tried only by one of such Courts could not be considered contrary to public policy as it would neither contravene the provisions laid down in section 28 of the Contract Act nor would it violate in any manner the provisions of section 9 or .section 20 of the Code of Civil Procedure." In the case of M/s Kadir Motors (Regd). it was agreed that the payments of all sums will be made at Karachi and any suit between them shall be instituted at Karachi . The HonTble Supreme Court while interpreting the said agreement held as under: "To wriggle out of this agreement, the learned counsel for the appellant placed reliance on section 28 of the Contract Act which provides that every agreement in restraint of legal proceedings is void. We have minutely read the said provision of law and could not find anything therein to restrain the parties from entering into an agreement to get their disputes decided by a particular Court of competent jurisdiction for their convenience and avoidance of necessary objections to the territorial jurisdiction of Courts. The intention behind the said provision of law is that all those agreements which restrain a person to enforce his rights under a contract by usual legal proceedings in the ordinary tribunals are void. It obviously implies that a party cannot be restrained to enforce his rights in ordinary Court of law but if by mutual agreement between the parties a particular court having territorial or pecuniary jurisdiction is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy". In view of above cited judgments it is held that the learned Qazi Uthal had no jurisdiction to try the suit and the plaintiffs should have filed the suit before a competent court at Karachi . Since we have held already that the suit filed by the plaintiff-respondent was not maintainable so it will be futile to direct the plaintiffrespondent to approach a court of competent jurisdiction at Karachi . For the above mentioned reasons the appeal is accepted and the judgments and decrees dated 24-5-1995 and 29-8-1996 passed by Qazi Uthal and Majlis-e-Shoora respectively are set-aside. The suit filed by the respondent is dismissed. However, parties are left to bear their own costs. (K.A.B.) Appeal accepted.
PLJ 1997 Quetta 118 (DB) PLJ 1997 Quetta 118 (DB) Present: javaid iqbal and raja fayyaz ahmed, JJ. Moulvi ALLAH NOOR-Petitioner versus MUNSHI NOOR MUHAMMAD etc.~Respondents Constitutional Petition No. 427/1996, allowed on 25-2-1997. (i) Motor Vehicles Ordinance, 1965- -Constitutional Petition-Functioning authorities-Power and discretion- Scope and nature of-No doubt Authorities functioning under Motor Vehicles Ordinance, 1965 have ample powers and discretion, in absence statutory provisions regulating timings of transport but simultaneously it is obligation to exercise powers and authority justly and equitably keeping in view public interest and convenience, which should not in any way be.arbitrary or capacious. [P. 121] A PLD 1991 SC 14 ref. (ii) Motor Vehicles Ordinance, 1965- -Constitutional Potition-Functionaries-Regularizing and rescheduling timings of route for buses without hearing partiesWhether in accordance with law-Question of-Functionaries under Ordinance, 1965 if as per necessity or exigencies of certain conditions deem it proper and expedient to regularize, reschedule timings of route for buses operating thereon, in interest of law or public convenience could do so after hearing parties in accordance with law in a veiy just and reasonable manner. [P. 125] B Mr. Abdullah Khan Kakar, Advocate for Petitioner. Mr. K.N. Kohli, Advocate for Respondents. Date of hearing : 29-1-1997. judgment Raja Fayyaz Ahmad, J.--Through this Constitutional petition order dated 20.6.1996 of the Secretary, Regional Transport Authority, Quetta made persuant to the order of the Chairman, Regional Transport Authority Quetta, directions contained in letter dated 26.11.1993 of the Secretary, Regional Transport Authority and order dated 23.12.1996 made by the officials respondent No. 9 have been challenged being not sustainable under the provisions of Motor Vehicles Ordinance, 1965 and the Rules made thereunder whereby the timing of the departure of the petitioner's Mini bus has been rescheduled. 2. The facts of the case are that the petitioner is the holder of stage carriage permit for his mini bus enroute i.e. Pishin to Barshore-Shina K. Nasir Chungi granted in his favour by the respondent No. 8, Secretary, Regional Transport Authority on 5.6.1996. Consequent upon the prior approval of the Chairman, Regional Transport Authority, the respondent No. 8 (Secy. RTA) vide his order dated 19.6.1996 rescheduled the departure timings of the buses plied on the said route by the existing transporters and to accommodate the new entrant/permit holders and as per this time table the mini bus of the petitioner appearing at S. No. 12 of the time table scheduled to depart from Pishin at 3.10 PM on the granted route. 3. Persuant to the order of Chairman, Regional Transport Authority, the respondent No. 8 withdrew the time table earlier allocated to the petitioner vide order dated 19.6.1996 for the departure of his mine bus from Pishin and instead as per desire of the respondent No. 7 (Chairman, RTA) the previous time table dated 6.11.1995 of the departure of the buses from terminal has been restored providing departure timings for the petitioner's bus to be 6:00 PM from Pishin and 9:00 AM from chungi. 4. With a view to resolve various disputes between the transport Union and Transport Federation operating in district Pishin, a meeting with the representative of Transport Union and Federation was held on 24.7.1996 chaired by the Assistant Commissioner, Pishin. »The disputes between the transporters were categorized itemwise including the one pertaining to the time table of the buses. The disputes of the transporters appear to have been settled by the Assistant Commissioner, Pishin as is evident from the proceedings finalized on 3.9.1996 by the Assistant Commissioner, Pishin wherein besides, other matters the timing for the petitioner's bus from Pishin has been fixed at 6:00 PM. The learned Assistant Commissioner, Pishin simultaneously decided that the petitioner's bus will depart from the terminal subsequent to the departure of the bus of the respondent No. 5. 5. Subsequent thereto vide memorandum No. 1188/RTA dated 26.11.1996 addressed to the Deputy Commissioner, Pishin issued by the respondent No. 8 (Secy. RTA) conveyed the desire of the Chairman, Regional Transport Authority that the petitioner to be bound down to observe the old time table issued by his office ordered dated 20.6.1996 as the delegation of transporters of the route complained against him, to the Chairman of violating the said time table. 6. The petitioner feeling himself aggrieved of the impugned orders/directions dated 20.6.1996 and 26.11.1996 filed an appeal under section 66 subsection (l)(g) of the Motor Vehicles Ordinance 1965 before the Senior, Member Board of Revenue, Balochistan-cum-Chairman, Provincial Transport Authority. The learned Appellate Authority (respondent No. 9) vide its order dated 23.12.1996 partially accepted the appeal of the petitioner to the extent that the departure timings of the petitioner's bus on the route was fixed as 5:30 PM in the winter being the last bus to depart from its terminal point, with the further observations to the Regional Transport Authorities to introduce two different timings for the transporters of the area one for the summer and the other for winter season to avoid any inconvenience to the transporters and passengers. Persuant to order dated 23.12.1996. The respondent No. 8 vide his order dated 30.12.1996 fixed the winter and summer timings of the buses operating on the route and the departure timing of the bus of the petitioner fixed at 5:30 PM in winter and 6:00 PM in summer. 7. The learned counsel for the petitioners contended that the order dated 20.6.1996 made by the respondent No. 8 (Secy. RTA) persuant to the directions of the respondent No. 7 whereby the departure timings of the petitioner's bus fixed by order dated 19.6.1996 at 3:10 PM to be withdrawn and the previous time table dated 6.11.1995 restored, has been made without notice to the petitioner and he has been condemned unheard which is against the principles of natural justice and moreover, the order dated 20.6.1996 virtually stood non-existing on account of the fresh timings fixed for his bus by the Assistant Commissioner, Pishin by his verdict dated 3.9.1996. The learned counsel further submitted that the order/directions contained in memo: No. 1188 dated 26.11.1996 issued by the Secretary, RTA requiring the petitioner to be bound down to observe the old time table issued vide office order dated 20.6.1996 is also not sustainable in view of the afore-mentioned grounds and is against the provisions of the Motor Vehicles Ordinance. The learned counsel assailed the order dated 26.12.1996 passed by the learned Appellate Authority/respondent No. 9, to be contrary to law and thus not tenable. It has been specifically atgued by the petitioner's counsel that the verdict of the Assistant Commissioner, Pishin holds the field as none of the concerned transporter filed any appeal against the order of the Assistant Commissioner, Pishin. According to the learned counsel for the petitioner the observation recorded by the respondent No. 9 in his order dated 23.12.1996 whereby it has been suggested to the Regional Transport Authorities to introduce two different timings for the transporters of the area one for the summer and the other for the winter season to avoid inconvenience to the transporters as also to the passengers, is contrary to the spirit of the Motor Vehicles Ordinance. 8. Mr. K.N. Kohli, Advocate representing the respondent Nos. 1, 2, 3, 5 and 6, inter alia contended that the petitioner has been observing the allocated time table of departure for his bus fixed at 6:00 PM and 9:00 AM rom chungi for the last about six months, which has been reduced to 5:30 PM in the winter for departure whereas; the time table earlier allocated to the petitioner of 3:10 AM on 19.8.1996 was immediately challenged and was withdrawn by the respondent No. 8 on the next day. According to the learned counsel, the petitioner has been granted stage carriage permit not from Pishin via Barshore Shina Nasiran and assertion of the petitioner for having such a route permit is not correct The time table is always granted to a permit holder on the basis of first come first serve basis and the petitioner being a subsequent entrant had to be accommodated keeping in view the said principle and practice. The learned counsel in view of the counter affidavit filed by the respondents further contended that the opportunity of hearing was afforded to the petitioner by the competent authority and that the order of the Assistant Commissioner was without jurisdiction and of no binding effect Mr. K.N. Kohli the learned counsel relied on a case reported in 1987 MLD 2759 and contended that the Constitutional petition claiming particular time schedule for a stage carriage permit, in absence of statutory provision/Rules cannot be maintained. According to the learned counsel, as the petitioner gave an undertaking on 23.11.1996 that he will not contravene the route permit, therefore, he is stopped by conduct even to question the timing fixed by the authorities. The learned counsel for the parties appearing on their behalf have been heard and the documents available on the record perused in the light of the relevant provisions of the Motor Vehicles Ordinance, 1965 and the Rules made thereunder. The admitted position on the basis of record remains that vide order 19.6.1996 passed by the Secretary RTA persuant to the directions of the respondent No. 7 (Chairman, Regional Transport Authority) the departure time of the buses operating on the route was rescheduled according to which the petitioner's bus was to depart for the destination at 3:10 PM and on the very next day the allocated time for the bus of the petitioner was withdrawn by the respondent No. 8 persuant to the directions of the respondent No. 7 and the previous time table dated 6.11.1995 restored on the complaint of certain transporters, directing the petitioner to depart his bus from Pishin at 6:00 PM and 9:00 PM from chungi. (i) No doubt the Authorities functioning under the Motor Vehicles Ordinance, 1965 have the ample powers and the discretion, in absence the statutory provisions regulating the timings of the transport but simultaneously it is their obligation to exercise the powers and authority justly and equitably keeping in view the public interest and convenience, which should not in any way be arbitrary or capracious. The exercise of discretionary powers by the functionaries under the Motor Vehicles Ordinance has been dealt with in the case reported in PLD 1991 SC 14 Chairman, Regional Transport Authority, Rawalpindi vs. Pakistan Mutual Insurance Co. (Ltd.) Rawalpindi . The Hon'ble Supreme Court dealt with the exercise of statutory discretion in the words reproduced hereunder: PLD 1991 SC 14 "(b) West Pakistan Motor Vehicles Ordinance (XLX of 1965)-- ~Ss. 49 & 67--conferment of power of the Regional Transport Authority under S. 49, relatable to the requirement of S. 67-Nature and duties appurtenant to its excercise-Wide worded conferment of discretionary powers of reservation of discretion, without framing Rules to regulate its exercise, was taken to be an enhancement of the power and gave that impression in the first instance, but where the Authorities failed to rationalize it and regulate it by rules, or .policy statements or precedents, the Courts would intervene more often than was necessary apart from the exercise of such power appearing arbitrary and capricious at times-Defects in exercise of discretion by the Regional Transport Authority pointed out by Supreme Court (P. 26) E & F (c) Discretion -Structuring of discretionMeaning-Conferment of wideworded discretionary powers by statureNeed and desirability to structure the discretion. A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignly, the powers so delegated to the officer are held in trust for the people and are to be exercised on behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rules. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude toward the principal or cestui que trust as to have his interest conflict with his duty. Where a statute is silent with respect to the time within which an official act must be performed, the law contemplates that the duty must be performed within a reasonable time. A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective. One who accepts a public office does so sum onere, or with the burden and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while the remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute his duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matters. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect In other . words, he is bound, virtue official, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs, (p. 24) B Wherever wide-worded powers conferring discretion are found in a statute, there remains always the need and the desirability to structure the discretion, (p. 25) C Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice. The seven instruments that are most useful in the structuring of discretionary powers are open plans, open policy statements, open rules, open findings open reasons, open precedents, and fair informal procedure. When legislative bodies delegate discretionary power with out meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making powers. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine theii own discretion through principles and rules, (p. 26) D American jurisprudence 2nd Edn., Vol. 63-A (PO&E) Ss. 7 308, 315 & 317 and Administrative Law Text by Kennetl Gulp Davis ref." 9. Obviously the order dated 2"0.6.1996 has been passed by the respondent No. 9 whereby the departing time of the petitioner's bus has been fixed at 6:00 PM is against the earlier one allocated just and day before it giving departure time 3:10 AM has been withdrawn without notice to the petitioner. The necessity, if any was to be met with, it was incumbent for the authority to have had passed the required order after hearing the parties which would have been in accordance with the principles of natural justice. The ground for the exercise of such a discretion by the authority is as well wanting. Though there is no provision in the Ordinance and the Rules made thereunder on the subject in hand, of giving personal hearing, yet the principles of natural justice shall be deemed to have been treated to be existing in such a Statute creating any legal right in favour of any person or property unless its application excluded expressly in the Statute. In the instant case specific time was allocated to the petitioner by the competent forum in the exercise of its statutory discretionary powers but was withdrawn on the next day by refixing the same at 6:00 PM against the timing of 3:10 PM being the last bus to depart Consequential impugned order/directions dated 26.11.1996 were also made by the respondent No. 8 in his letter addressed to the Deputy Commissioner, Pishin on the subject referring to a complaint of transporter made to the respondent No. 7, with the directions that the petitioner to be bound down to observe old time table issued vide order dated 10.6.1996 to avoid resentment of the existing transporters. The order dated 20.6.1996 passed persuant to the directions of the respondent No. 7 by the Secretary, RTA has been made without notice to the petitioner, in our view is patently illegal and a nullity in the eye of law, for having been made in violation of the principles of natural justice also on the ground that it does not disclose/indicate any reason or necessity calling for the withdrawal of the timing allocated to the petitioner only a day before. Consequently the order dated 23.12.1996 passed by the respondent No. 9 in appeal against the impugned orders and directions of the respondent Nos. 7 and 8 is also set aside. As the learned Appellate Authority did not take into consideration the gross violation of the nonadherence to the principles of natural justice by the subordinate forums while passing the impugned orders, hence the order passed by the learned Appellate Authority dated 23.12.1996 is also set aside, consequently re scheduling of the time table by the respondent No. 8 persuant to the order of Appellate Authority is of no legal effect The order dated 26.11.1996 in fact are the directions contained in the letter addressed to the Deputy Commissioner, Pishin by the respondent No. 8 wherein it has been mentioned that the Chairman, RTA (respondent No. 7) after hearing the parties desired that the petitioner may be bound down to observe the old time table issued vide order dated 20.6.1996 abundantly shows that hearing, if any was made by the respondent No. 7, was afforded subsequent to the impugned order dated 20.6.1996. The subsequent hearing if any cannot be ;reated to be proper and legitimate one. PLD 1964 SC 410 Commissioner of Income tax, East Pakistan vs. Fazul Rehman, PLD 1966 SC 536 Abdus Saboor Khan vs. Karachi University and another referred. 10. The decision dated 3.9.1996 made by the Assistant Commissioner, Pishin regulating the timing of vehicles operating under the stage carriage permits on the route is totally void and without jurisdiction whether consented to by any parity/ies or objected to by, any party or otherwise. The consent or participation of any party or group of transporters in the proceedings does not confer any jurisdiction to Assistant Commissioner which he did not possess under the Motor Vehicles Ordinance 1965. Consequently the verdict of the Assistant Commissioner, Pishin is declared to be of no legal effect. 11. The contention of the counsel for the contesting respondents that the stage carriage permit of the petitioner was not granted for the rout claimed in the petition has some force, as in the petition it has been stated that the route permit has been granted to the petitioner for Pishin via Shina Nasiran, the mentioned route in our estimation most probably been not exactly mentioned in the petition. The petitioner has based his case on the granted route permit, which is an undis uted document and the route specified in the permit is i.e. Pishin-Barshore Shina-Killi Nasiran, accordingly the petitioner has the right to ply his bus strictly in accordance with the specified route of the permit. The undertaking of the petitioner that he will not contravene the route permit, has no bearing whatsoever to the maintainability of the petition or on its merits. 12. The case law relied upon by the petitioner's counsel reported in 1987 MLD 2759 Super High Way Bus owners Association (Ltd.) vs. Government of Sindh and 13 others, is of no avail to the petitioner being distinguishable on facts of the case as in this petition no particular timings have been claimed to be fixed in absence of the statutory provisions. While parting with this judgment we may observe that functionaries under the Motor Vehicles Ordinance, 1965 if as per necessity or exigencies of certain conditions deem it proper and expedient to regularize, reschedule the timings of the route for the buses operating thereon, in the interest of law or public convenience could do so after hearing the parties in accordance with law in a very just and reasonable manner. For the foregoing reasons the impugned order dated 20.6.1996 and 26.11.1996 passed by the official respondents are set aside and declared to be of no legal effect The petition consequently is allowed, with no order as to costs. (K.A.B.) Petition allowed.
PLJ 1997 (Quetta) 126 (DB) PLJ 1997 (Quetta) 126 (DB) Present : iftikhar muhammad chaudhry and mir muhammad nawaz marri.jj. Mst KAZAN BOARD OF REVENUE BALOCHISTAN THROUGH ITS SECRETARY etc.-Petitioners versus GOVT. OF BALOCHISTAN etc.-Respondents (i) (V of 1908)-- 0.1 R. 10--Whether a court is authorised to implead legal heirs of a dead respondent in exercise of jurisdiction under O.I R. 10 or notQuestion of--If any of respondents was dead at time of filing petition, petitioner is Competent to cause in title, names of legal heirs of deceased respondents- -Instead of non-suiting petitioners for such hypertechnical reason court ceased with matter is always empowered to allow substitution of dead respondents with their legal heirs, provided cause of action is indivisible. [P. 130] A (ii) Constitution of Pakistan, 1973- Art. 199 read with Qanoon-e-Shahadat Order, 1984-Documents which are neither admitted nor admissible under various provisions of Qanoon-e-Shahadat, Order 1984 can be considered in writ jurisdiction or notQuestion of-In exercise of writ jurisdiction under Art. 199 only undisputed and proved documents are taken into consideration, where as those documents, which are neither admitted nor they are admissible under provisions of Qanoon-e-Shahadat Order 1984, are to be kept out of consideration. » [P. 132] B (iii) Laches-- Laches-Plea of-Whether petition is hit by principle of Laches-Question of-Unexplained silence by petitioners for a period of more than 12 years, is sufficient to draw inference that they intentionally did not avail opportunity to question, as to why entries in revenue record have been changed from their names, therefore, after lapse of a considerable period petitioners cannot claim condonation of delay except blaming themselves for their conduct-No doubt there is a difference between a statutory period of limitation and laches where no time has been prescribed for initiating action, but a person who comes forward to claim an equitable relief, remains under a legal obligation to furnish plausible explanation for not knocking door of Forums, meant to provide justice with promptitude merely saying that no notice was given to petitioners by respondent/Deputy Commissioner, before changing revenue entries from their names, seldom, is not sufficient to condone delay because question of issuing of notice or providing opportunity of hearing before taking action is also not a rule of universal nature-It can only be invoked, if aggrieved person is able to establish that he has been deprived from his vested right. [Pp. 132 & 133] C & D (Iv) Statute- Any statute, provisions of which are not to required to be operated by subsequent act, is deemed to be self executory. [P. 134] E Mr. H. Shakeel Ahmed, Advocate for Petitioners. Mr. Muhammad Khan Yousufzai, A.G. for Govt of Balochistan and others. Mr. Basharatullah, Advocate for Respondent Nos. 1 to 3, 6, 7. Date of hearing: 23-11-1996. judgment Iftikhar Muhammad Chaudhry, J.--In this Constitutional Petition, order dated 30th October, 1983, 18th March, 1984, 24th March, 1984, 3rd April, 1984 and 16th April, 1995, passed by Collector, District Kachhi (Now Bolan), Assistant Commissioner/S.D.M. Dhadar, Naib Tehsildar, Sunny and Senior Member, Board of Revenue, respectively, have been challenged. In pursuance whereof, lands allegedly owned by Petitioners, situated in Mouzas Khattan, Bhagai, Kolang, Rustam, Chattani, Pir Ahmad Shah and Pear, Sub Tehsil Khattan, District Bolan, have been transferred on the names of private Respondents, in purported exercise of jurisdiction under MLR-64 (West Pakistan Land Reforms Regulations, 1959) (hereinafter referred to as 'Regulation 64 of 1959'). It is the case of Petitioners that they are owners of property situated in different Mouzas, mentioned herein-above. The settlement of Tehsil Sunny took place as back as in 1958-59, therefore, on basis of instrument of Sale , blood compensation, exchange etc. they were recorded as owners, but the Deputy Commissioner of District Kachhi (Now Bolan) vide letter No. SK 746-49 dated 30th October, 1983, directed Assistant Commissioners, Dhadar and others, in whose jurisdiction petitioners lands are situated that as under Regulation 64 petitioners' lands being 'Jagirs' have been forfeited, therefore, they should implement the Notification No. DSH 538-65/4395- LC dated 29th October, 1965. According to petitioners, in pursuance of said letter, without issuing notices to them, mutation entries from their names were cancelled by Revenue Officers and on coming to know about it, they approached the Member, Board of Revenue, by filing Revision Petition under MLR 115 readwith rule-12 of Balochistan Land Reforms Rules, 1972, ' but the said petition has been dismissed on 16th April, 1995. After admission of petition, Mr. Basharatullah, learned Counsel for respondents, filed C.M. Application No. 297 of 1996, on behalf of some of the respondents, informing that before institution of petition, some of the respondents were dead, therefore, their legal heirs are to be added as party. Mr. Shakeel Ahmad, learned Counsel for petitioners, instead of filing reply to the application, submitted another application being C.M. No. 320/96, under Order-XXII rule-1 readwith Order-1 rule-10, Order-VI rule 17 and section-151 CPC, seeking amendment in the title of petition. Respondents' counsel filed reply to this application, wherein it was prayed that petition be dismissed, as it has been filed against dead persons, therefore, deserves to be abetted in toto. in this behalf, both the counsel for parties cited Judgments, in support of their respective contentions. Learned Advocate General, also prayed for dismissal of petition on this score as well. We passed order dated 12.8.1996, on both the applications, whereby petitioners were permitted to implead heirs of respondents, who were deed before institution of petition. However, question concerning abatement or otherwise of petitioner, was deferred for consideration, independently, at final hearing of petition. Mr. Basharatullah, learned Advocate, urged that before dilating upon merits of case, this question may be decided, preferably. Mr. Shakeel Ahmad, learned Counsel for petitioners, however, , contended that since after the order dated 12th August, 1996, legal heirs of respondents, who were stated to be dead before filing of petition, have been brought on record, therefore, petition does not suffer fcata 90% disqualification. As such, it is not necessary to examine; whether instant petition against dead persons is competent or not ? at this stage. Both the learned Advocates relied on Judgments, which they had placed for perusal, during hearing of C.M. 277 & 320 of 1996. It may be noted that in our earlier order, we observed that learned counsel for respondents, while filing C.M. 277/96, had not objected on maintainability of petition, on the ground that it has been filed against some of the dead persons. Contrary to it, he sought directions to petitioners' counsel to bring on record legal heirs of dead persons, correct names of some of respondents and also to delete respondents, whose names have been mentioned more than one time entitle of petition. As for as, these requests were concerned, they were allowed in terms that while disposing of C.M. 320/96, permission was accorded to petitioners' counsel to remove all the defects, which were pointed out fcy respondents' counsel, in his application (C.M. 277/96). However, regarding question of abatement or otherwise of petition, because admittedly it was filed against some of the dead persons, was left to be decided independently at the time of final disposal of petition. We have examined relevant provisions of Code of Civil Procedure Le. Order-XXH rule-6, according to which, if one of several defendants or a sole defendant dies and Court receives intimation which is required to be furnished by a person nominated by him in written statement as required under Order-XXII rule-13 CPC, then subject to condition that right to suo "survives, the Court on an application made in that behalf, shall cause the legal representatives of deceased defendant, to be made party and shall proceed with the suit Whereas in the instant case, we are confronted with a situation, where some of the respondents had died, prior to filing of petition. Therefore, to overcome such difficulty, Order-XXII does not lay down any procedure, except exercising jurisdiction under order-1 rule-10 readwith section-151 CPC, however, subject to condition that cause of action is indivisible. In this behalf, contention of Mr. Basharatullah, Advocate, is that if a person was dead before filing suit against him, Court is not authorized to implead his legal heirs in exercise of jurisdiction under Order-1 rule-10 CPC. Reliance was placed by him on AIR 1924 Bombay 104. A perusal of this judgment, reveals that same is not of any help to him, because in this case, a suit was filed against a Firm, whose sole Proprietor was dead before instituting proceedings and in that context, it was held that summons issued against doad persons is a nullity and if someone had received summons on his behalf, it would be again another nullity in eye of law. He then relied on AIR 1946 Sindh 20, PLD 1963 Dacca 364, PLD 1964 (W.P.) Pesh. 110 and NLR1985 (Civil) 27. On behalf of official respondents, Mr. Yakub Khan Yousafeai, the then Advocate General, referred to 1990 CLC 1243. In this Judgement it was held that 'it is well established that where a suit is filed against several defendants, the heirs of one of the deceased defendant be brought on record. At the best these petitions are to be treated to have been filed against legal representatives of deceased respondents, on the date when they were brought on record.' He also placed reliance on 1990 SCMR 553. In this case, the Allottee of land died before filing of Constitutional Petition, and the Honble Supreme Court held that Constitutional Petition against dead person's allotment suffer from no defect, if while challenging the allotment, allottee's sole successor-in-interest, had been impleaded. With utmost respect, in our opinion, this Judgement is distinguishable, from the roposition, under consideration. Mr. Shakeel Ahmad, Advocate, relied on AIR 1926 Lah. 153, AIR 1937 Sindh 47, AIR 1937 Lah. 794 and PLD 1969 Lah. 880. In all these Judgments, it was held that if any of the respondents was dead at the time of filing petition, petitioner is competent to cause in title, names of legal heirs of deceased respondents. Facts narrated in these cases appear some JP " V what identical with the facts of instant-case. Therefore, we are also inclined a\ to hold that instead of non-suiting the petitioners for such hypertechnical reason, Court ceased with the matter is always empowered to allow, substitution of dead respondents with their legal heirs, provided cause of "< action is indivisible. A perusal of the contents of petition and revenue ^ entries, attached therewith, indicate that petitioners have prayed for mutating lands, entered on name of respondents including those who were dead at the time of filing petition, on their names, because according to their case, respondents had began wrongly shown as owner of properly. Since no separate relief has been claimed against respondents with reference to particular Khasra Number, occupied by them as owners, therefore, whatever order will be passed, it will effect to all respondents jointly. Thus, following the rule of law, laid down by Hon'ble Supreme Court in Shah "^ Muhammad and others vs. Muhammad Bakhsh (PLD 1972 S.C. 321), it is held that cause of action is indivisible and each respondent, including those, .^ who now have been substituted after order dated 12th August, 1996, are necessary parties, therefore, petition will be disposed of on merits. Mr. Shakeel Ahmad, learned counsel for petitioners argued that on 30th October, 1983, Deputy Commissioner, Kachhi (Now Bolan) directed for changing entries in revenue record from names of petitioners, treating the land as 'Jagir', whereas documents annexed alongwith the petition, furnishes over-whelming evidence that total property belongs to petitioners being propriety owners, because either they, purchased some of the -.-^ property, in pursuance of sale Deed, Sanads or they are owners, because their predecessor-in-interests or they themselves had obtained it, as a blood compensation. He also argued that Regulation 64 of 1959, was repealed by Regulation 115 of 1972, therefore, in the year, 1983, the Deputy Commissioner had no lawful authority to .direct cancellation of revenue ; entries from names of petitioners in favour of respondents, under a law ' which was repealed. As such, the action being nullity in eye of law, deserves v to be struck down. He also contended that no notice before changing entries, was given to petitioners, as such, they have been condemned unheard. Under these circumstances, question of limitation in filing petition, would not be an impediment in their way. It was also contended by him that as per revenue record, attached with the petition, petitioners have been shown self cultivators being 'Seemul Arz' therefore, their property cannot be treated as 'Jagir' under Regulation 64 of 1959. In this behalf, his contention was that on 20th April, 1966, the then Deputy Commissioner Kachhi (Now Bolan) solicited directions from Commissioner, Kalat Division, about abolition of 'Jagirs' in Kachhi District and Commissioner in its Memo No. 8308-11/L/64/A/REB dated 25th June, 1966, directed the Deputy Commissioner that landed properly situated in Tehsil Dhadar and Bala Nari etc.' popularly known as 'Inam Area' cannot be treated as 'Jagir'. Against the said order of Commissioner, respondents or their predecessorin-interests, filed Constitutional petition before Erstwhile High Court of West Pakistan, Lahore on 26th July, 1967, which was dismissed. Then some of the respondents filed Civil Petition for Special Leave to Appeal before Hon'ble Supreme Court, whereupon leave to appeal was granted on 9th October, 1967, but subsequently for want of prosecution, leave granting order was rescinded. While summing-up his arguments, he prayed that under these circumstances, petitioners are entitled for relief, as prayed for, by them. Mr. Basharatullah, learned Counsel for respondents urged that order dated ,30th October, 1983 was issued by Deputy Commissioner, to implement the order of abolition of 'Jagirs' which has taken effect on 3rd March, 1959, because all the 'Jagirs' recorded in revenue record of Tehsil Dhadar, were abolished automatically, in view of self executory provisions of law i.e. Regulation 64 of 1959. Therefore, notwithstanding the fact, that Regulation 115 of 1972, had repealed to earlier Land Reforms Ordinance, the Deputy Commissioner rightly issued directions to his sub-ordinate revenue staff to record respondents as owners of the land. He also argued that as per definition of word 'Jagir' in its extended meaning; all types of holdings free of revenue tax etc. were treated as 'Jagirs' and as in instant case, in Settlement record of Tehsil Dhadar, prior to 1956:57, petitioners were shown as 'Jagir' holders, therefore, their interests/rights were liable to be abolished. The documents to establish ownership, placed on record by petitioners, cannot be considered without formal proof, to hold that petitioners were not 'Jagir' holders, but owners of the land. As for as Memorandum of Commissioner, Kalat Division dated 25th June, 1966, is concerned, it has also no value, because neither its certificated nor true copy has been placed on record. Similarly in absence of copy of Judgment passed by the then High Court of West Pakistan, Lahore, in Constitutional petition , filed by some of the respondents, no definite opinion in favour of petitioners, can be formed by this Court. He strongly emphasised that petition badly suffers from laches, for which, no explanation has been offered in memo of petition despite the fact that petitioners were fully aware about change of entries from their names on names of respondents, because respondents on having acquired proprietory rights in property, atleast after 1983, never paid share of 'Bhatai' to them. But fully knowing all these facts, they kept on waiting for an indefinate period and invoked the jurisdiction of this Court after a period of about 12 years from date of passing impugned order Le. 30th October, 1983. Admittedly petitioners wsre recorded in 1956-57, as Jagir Holders in revenue record, but they never challenged these entries before a competent Forum. Even now in instant petition, their prayer is to restore revenue entries which were existing in their favour, immediately before passing of order dated 30th October, 1983. Mr. Yakub Khan Yousafzai, the then Advocate General, supported the contentions of respondents' counsel and pointed out that vide Notification dated 29th October, 1965, Regulation 64 of 1959, was made applicable in Tehsil Dhadar and thereafter petitioners were seized to claim themselvess as owners of land. He also prayed that as petition suffers from laches therefore, it merits dismissal, without dilating upon respective contentions of parties' counsel. We have heard the parties' counsel at length and also carefully perused the documents, so placed on record. At the outset, we are inclined to observe that in exercise of writ jurisdiction under Article 199 of the Constitution, only undisputed and proved documents, are taken into consideration, whereas those documents, which are neither admitted nor they are admissible under various provisions of Qanoon-e-Shahadat Order, 1984, are to be kept out of consideration. Since petitioners have not placed on record, any material/documents, showing their proprietory rights over the property, which are admissible under the law or otherwise can be considered being proved documents, therefore, any Sanad indicating that petitioners have purchased some of the land or any other instrument showing that land was given to them, in lieu of blood compensation, cannot be considered in their favour, as respondents have objected on their admissibility. Now turning towards the maintainability of petition, as it suffers from laches, it may be noted that petitioners' claim is that respondents were their tenants and they had been paying them "Bhatai" (share of produce) regularly form time immemorial, whereas respondents had categorically denied their such assertion. According to them, they are occupying the lands in their own rights. Be that as it may, at least after 30th October, 1983, when respondent-Deputy Commissioner .passed order directing implementation of abolition of 'Jagirs' respondents must have stooped paying 'Bhatai to petitioners. Therefore, it was but natural for them, to have enquired, as to why they have adopted hostile attitude in refusing their due share from produce and necessarily on coming to know about adverse action taken by Deputy Commissioner against them, they were bound to invoke legal available remedy for redressal of their grievance. Un-explained silence by petitioners for a p.eriod of more than 12 years, is sufficient to draw inference that they intentionally did not avail opportunity to question, as to why entries in revenue record have been changed from their names, therefore, after lapse of a considerable period, petitioners cannot claim condonation of delay except blaming themselves for their conduct. No doubt there is a difference between a statutory period of limitation and laches, where no time has been prescribed for initiating action, but a person who comes forward to claim an equitable relief, remains under a legal obligation to furnish plausible explanation for not knocking the door of Forums, meant to provide justice with promptitude. Merely saying that no notice was given to petitioners by respondent-Deputy Commissioner, before changing ~ revenue entries from their names, seldom, is not sufficient to condone the delay, because question of issuing of notice or providing opportunity of hearing before taking action, is also not a Rule of Universal nature. It can only be invoked, if aggrieved person is able to establish that he has been deprived from his vested right. At this stage, without prejudice to other respective contentions of parties' counsel, it may be mentioned that in revenue record being relied upon by petitioners, they have been shown as Jagir Holders. Therefore, after the promulgation of Regulation 64 of 1959, whatever interest they had in lands, it stands extinguished. As such, they were not being deprived from their proprietory rights, available to them in the property. Thus, non-service of notice upon them, before taking adverse action, was not fatal. Hence, it is concluded that petition badly suffers from laches, for which, neither any explanation has been offered in memo of petition in terms of Order-VII rule-6 CPC, because a Constitutional Petition is to be presented on following the procedure laid down in Civil Procedure Code as it has been made applicable on these proceedings in view of the pronouncement of Hon'ble Supreme Court reported in PLD 1970 SC 01, nor request to treat petition within reasonable time, has been made during arguments of case. Although we have found petition not maintainable for the reasons, noted herein-above, but keeping in view the interests of parties, we also desire to examine the case of merits. As it has been observed herein-above, that in the Settlement of Tehsil Dhadar, petitioners were recorded as Jagir Holders in 1958-59, but they did not challenge such entries subsequently before any competent forum. In the meanwhile Regulation 64 of 1959, was promulgated with effect from 3rd October, 1959, with its commencement, at once, except in the unsettled Districts of Quetta and Kalat Divisions, where it shall come into force on such date and dates, as the Commission may have notiSed'in the official Gazette etc. As for as Dhadar where land in question is situated, is concerned, at that time, it was part of Kalat Division being Tehsil of District Kachhi. Mr. Yakub Khan Yousafzai, the then Advocate General, although had referred to Notification dated 29th October, 1969, according to which, Regulation 64 of 1959, was enforced in Dhadar and Jhal Magsi Tehsil w.e.f. 7th February, 1959, but in our opinion, there was no necessity for issuance of such Notification, as for as Tehsil Dhadar is concerned, because from the admitted facts of case, we can see that before coming into being of Regulation 64 of 1959, Tehsil Dhadar was a settled area. Anyhow, even if for sake of arguments reliance is placed on said Notification, again it leads us to conclude that from 7th February, 1959, Regulation 64 of 1959, was made applicable over there with its commencement, at once. We have carefully surveyed various provisions of Regulation 64 of 1959, but we failed to notice any provision, available therein, to hold that after its promulgation, concerned revenue authorities with regar'd to abolition of 'Jagirs' were required to do any overt act, namely; by way of inviting claims of owners to determine, whether, they have given the property as 'Jagir' to the occupants whose names are recorded in revenue record or by obtaining or getting filled any particular forms from any of them primarily interested in lands etc. Therefore, we are of the considered opinion that any Statute, provisions of which are not required to be operated by subsequent act, is deemed to be self executory. Thus even without separately directing forfeiture of interest in "Jagirs" as for as Holders of "Jagirs" are concerned, their rights would be deemed to be extinguished, on the day when law i.e. Regulation 64 of 1959, was promulgated. It is evident from para 2(vi)(a) of the Regulation that "word "Jagir" includes any grant of land by way of "Jagir". Actually by using the word "includes" Law givers, had intention to include any grant of land, allowed to any person on whatsoever consideration, shall be treated as "Jagir". In this behalf Hon'ble Lahore High Court in a ceremonial Judgment reported in PLD 1967 Lah. 533, interpreted word "Jagir" with its reference to Punjab Abolition of Jagirs Act, 1952. At this stage, it may be mentioned that under the said Act,- as well as under Regulation 64 of 1959, to some extent, definition of word "Jagir" is identical. While interpreting this expression, definition from other corresponding Statutes of the word "Jagir" was also examined and finally it was held as follows:- "We have held that pardon or exemption from land revenue, or in other words, the grant to retain the land revenue himself was a Jagir in the ordinary sense of this word and was, therefore, hit by the provisions of the Punjab Abolition of Jagirs Act DC of 1952. A part from the above, however, we are also of the opinion that if not falling within the ordinary meaning of the word 'Jagir', the present case was covered by the extended meaning of the word as given in section 2(1) of the Act. According to the said section "any assignment or release of land revenue" is also a Jagir. This is clearly a case of release of land revenue, because when the grantee is being given exemption from paying land revenue or when he is being given a land revenue free estate, it means that he is being released from the liability to pay land revenue. Learned counsel for the petitioners submitted that the phrase "release of land revenue" has a technical meaning and is used in such cases where land revenue is remitted to the owner himself. He states that it relates to those estates which are Mu'afis. On the other hand, when it is assigned to or released in favour of a third person, (that is a person other than the owner) then it is known as a Jagir. In our opinion, there is no need to import this technical distinction in the present case. As will be evident from the description of various land tenures as reproduced form various text-books in the earner part of this judgment, the distinction, which the learned counsel is trying to maintain, has ceased to exist with the passage of time, And how pardon of the land revenue is also known as Mu'afi or Jagir. Anyhow, without conceding that release of land revenue has any technical meaning, as is being suggested by the learned counsel for the petitioners, in the present case, the intention of the Act is not to give that technical meaning to it, because the words "assignment" or "release" have been prefixed by word "any". The use of the word "any" shows that the intention is not to give the words following it any restricted or technical meaning, but rather to enlarge them. In this way, every case where land revenue has been released whether in favour of the owner or a third person while be covered by this phrase. It was laid down in Wooler v. North Eastern Breweries (1), that 'any' is a word which excludes limitations or qualifications. It connotes wide generality. The same was the view expressed by Fry, L.J. in Duck v. Bates (2). This proposition of law was accepted as correct by a Full Bench of this Court reported in Dr. Cowas C. Mehta v. Additional Settlement and Rehabilitation Commissioner and others (3). In that case, a question arose as to whether occupants of houses which had been declared as big mansions were eligible for protection given in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 (XXVIH of 1958). The wording of the said section was to the effect that protection was available to any person, who was in possession of 'any', evacuee house, etc." Farooqi, J., who wrote the leading judgment held as follows at page 952:- "Now, in the definition of the term'house' an exclusion had been made in respect of residential premises which might be declared under ' para". 15 as a big mansion. That limitation of the definition was known to, the framers of the Act and, therefore, when they came to enact section 30, itappears to us that they advisedly used the word 'any' before 'evacuee house'. It was held by L. J. Fry in the case of Duck v. Bates, that the word 'any' excludes limitation or qualification. It is true that the generality of the expression of the word may be restricted by the subject-matter or the context. But in this case it is clear to us that such a restriction »: was not contemplated. Respectfully following the said cannon of 1 interpretation, we hold that in the instant case as well as Jagir 'includes' 'any' assignment or release of land revenue and the intention was to exclude any limitation or qualification. The two words "includes" and "any" in tfte context indicate that the intention was to make the concept of Jagir quite wide." Testing the case in hand in view of above definition, we can safely conclude that petitioners had been enjoying Jagir hold interest in the land in question, free of revenue, as they never paid revenues tax, Dalbash etc. because no document in this behalf, has been placed on record for our perusal. Likewise, presuming for sake of arguments that if petitioners were the owners of property in their own rights, they would have definately filled up declaration forms under Regulation 64 of 1959 or subsequently under Regulation 115 of 1972, or under Land Reforms Act. 1977, but they had not Stated a single word in this behalf, in memo of petition nor copy of any forms or the decision made by Authorities of Land Commissioner ever in their favour, has been placed on record. Therefore, merely mentioning that they purchased the land in pursuance of sale Deeds or otherwise, they got it as a blood compensation, would not be sufficient to declare them owners of "" ~~ property. As such, it is held that immediately after 3rd October, 1959, all 'Jagirs hold rights' in the settled area of Katal Division including Tehsil ^ Dhadar, stand abolished under para-21 of Regulation 64 of 1959 and any right, interest or estate granted, assigned, released created or affirmed by any such 'jagir' and reverted to Government, free from any encumbrance or charge. Since the Government had acquired ownership of land in question after forfeiting the "Jagir" hold rights' of petitioners therefore, its functionaries had an obligation to ensure distribution of property amongst occupants and they could have not done so, unless revenue record has not been corrected by concerned Revenue staff. Therefore, on 30th October, 1983, the Deputy Commissioner, Kachhi (Now Bolan) with lawful authority _ ,.,-- issued directions to his sub-ordinate revenue staff to record respondents as owners of property and under the circumstances, petitioners have no justicible claim viz-a-viz to private as well as official respondents. Thus, for the discussion, made herein-above we see no substance in petition, as such, writ as prayed for, is declined and petition is dismissed. There shall however, be no order, as to costs. (K.A.B.) Petition dismissed.
PLJ 1997 Quetta 137 (DB) PLJ 1997 Quetta 137 (DB) Present: mir muhammad nawaz marri and javed iqbal, JJ. DIL MUHAMMAD-Petitioner versus DISTRICT MAGISTRATE QUETTA etc.~Respondents. Constitutional Petition No. 247/1996, disposed of on 25.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- Ss. 167 and 344-Remand-When can be given from judicial custody Once a person is sent to judicial custody, his custody cannot be handed- over to police subsequently and successive remand cannot be given in different cases, but if cases are registered at different places or different police stations remand can be given after completion of necessary formalities which are mandatory in nature and should not be ignored and it must be kept in view that where accused person is in custody it is necessary that trial court should be kept aware regarding his remand and prior approval whereof would be necessary-There is no bar in provisions as contained in sections 167 and 344 Cr. P.C. that custody of an accused person cannot be handedover to police if he is required for the purpose of investigation in a case different from one in which he had already sent to judicial custody-Petition disposed of accordingly. [P. 146] A Mr. Amanullah Kanrani, Advocate for Petitioner. Ch. Ejaz Yousaf, A.G. for Respondents. Date of hearing : 27.11.1996. judgment Javed Iqbal, J.-This is a Constitutional Petition preferred oh behalf of Din Muhammad under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer : "(i) to declare that order dated 4.11.1996 of respondent No. 1 is illegal, improper, unlawful and violative of constitutional and consequently null and void ; (ii) to direct the respondents to produce said two persons namely Riaz Gul and Azizullah before this Hon'ble Court and they be transferred to judicial custody so that their lives are saved; (iii) to direct respondent No. 4 not to transfer their custody to police; (iv) such other relief that may be deemed appropriate be also granted alongwith costs." 2. Briefly stated the facts of the case are that Riaz Gill son of Muhammad 4pn and Azizullah son of Muhammad Murad, who are first cousins of the petitioner were arrested by Police of Police Station Satellite Town, Quetta, in connection with crime Nos. 271, 272 and 273 of 1996 and Crime No. 11 of 1996 of Police Station Dera Bugti on or about 26.9.96. After completion of investigation Riaz Gul and Muhammad Murad were remanded to judicial custody on 10-10-1996 and sent to District Jail, Quetta, but were re-arrested by the Police on the purported orders of District Magistrate Quetta dated 24-10-1996 and they were subjected to malltreatment and torture by Police so that statement of their own choice could be extracted. Being aggrieved the petitioner filed a Constitutional Petition (No. 341 of 1996) which was dismissed by this Court on the basis of categoric and unqualified statement by the learned Additional Advocate General that they were no more required in any other case except the registered one, but contrary to his undertaking District Magistrate again allowed remand of the detinues on 4.11.1996 with mala fide intention and in dis-regard of the undertaking given by learned Additional Advocate General and mechanical exercise by remanding Riaz Gul and Muhammad Murad to Police custody being unlawfull and unconstitutional is liable to be set aside as the action of District Magistrate Quetta is in violative of the settled principles of law and relevant Provisions of Cr. P.C. 3. It is mainly contended by Mr. Amanullah Kanrani Advocate that the District Magistrate Quetta has no lawful authority conferred upon him to issue remand order and transfer the custody of detinues which was done with malafide intention and ulterior motives. It is next contended that admittedly there is no case registered against the detinues and they have undergone the remand period for the cases already registered. It is argued that the District Magistrate has acted illegally and without lawful authority and the custody of the detinues could not be handedover to Police, on different occasions for different cases. 4. Chaudhry Ejaz Yousaf, Additional Advocate General appeared on behalf of State and toed the line as adopted by learned District Magistrate while furnishing his parawise comments and contended that the custody of the detinues was granted to Police Station Dera Bugti in case F.I.R, No. 11 of 1996 under Section 302/324/435/427/147/148 and 149 PPC for which a written request was received from District Magistrate Dera Bugti. It is contended that detinues were against produced for further investigating on 29-10-1996 by Dera Bugti Authorities for remand but it was refused for want of jurisdiction by District Magistrate. It is also contended that no malltreatment whatsoever was made and no such complaint was made by detinues while appearing before the concerned Magistrates, who granted remand and moreso, no application was moved to any higher authority through Superintendent Jail. It is also contended that the detinues were required in different heinous offences and for the purpose of investigation the remand was given in accordance with law, and relevant Provisions of Cr. P.C., and no illegality whatsoever has been committed. It is also mentioned that the detinues were arrested from the vehicle aloSgwith three Kalashinkoves with silencer, 8 loaded magazines and 4 empty magazines which were concealed in an artificial cavity and as such vide order dated 24.10.1996 they were handedover to Dera Bugti Police for investigation in case F.I.R. No. 11 of 1996 got registered . under Section 302/324/435/427/147/ 148/149 PPG at Police Station Dera Bugti and investigation was completed at Quetta and detinues were not transferred out of territorial limits of Quetta District and further remand was refused due to want of jurisdiction which is indicative of the fact that prescribed legal procedure was followed in -letter and spirit. It is a also mentioned that different cases were registered at different Police Stations and investigation was to be completed and as such there was no other way out but to handover the custody of detinues to Police from jail. 5. We have carefully examined the respective contentions as adduced on behalf of petitioner and for State in the light of relevant Provisions of law and available record. Let we make it cigar at the out set that Mr. Amanullah Kanrani Advocate has not pressed his Petition as remand period was already exhausted but he contended that the fundamental rights as guaranteed by the Constitution should not be infringed by Government functionaries on flimsy grounds and they should not be allowed to violate the prescribed procedure as enumerated in Code of Criminal Procedure and prayed that strict notice be taken for the grave violation and issuance of necessary direction to the delinquents to remain careful and vigilant in future and lawful procedure should not be violated. In so far as the Provisions as contained in Sections 61, 167 and 344 Cr. P.C., are concerned the same are free from any sort of ambiguity and do not call for any interpretation as it would merely be a scholarly exercise. The pith and essence of the Provisions as contained in the above referred to Sections is that where a person is arrested without warrant his detention cannot cross the limits of 24 hours and before expiry of the said stipulated period (which is mandatory) he should be produced before nearest Magistrate who may pass order for his remand under Section 167 Cr. P.C. but his detention cannot be exceeded more than 15 days under such remand and moreso, the accused may be referred to a Magistrate having jurisdiction to adjudicate upon the matter and such Magistrate while exercising his powers as conferred upon under Section 344 Cr. P.C., remand the detenue in to custody for a term not exceeding 15 days at a time. Whatever may be the case the grant of remand should not be a mechanical exercise and it must be ascertained by the Magistrate concerned that the accusation is well founded and remand would render substantial assistance in investigation of the matter. The question pertaining to remand was examined in P.L.D. 1968 Peshawar-140 and it was observed as follows:- "It is indeed gravely disquieting to note that in the absence of any evidence or circumstances which could not justify even a "suspicion" much less proof against the respondents for complicity in the kidnapping, the local Police should have felt impelled to ask for several remands including Police custody, and the judicial conscience of the Magistrate should have been so easily moved as to grant the remands contrary to the statutory duty cast on him under section 167 Cr. P.O. to take the trouble to study the police diaries and to see for himself as to what are the accusations against the accused and what is the evidence which the poliqe has been able to secure to justify the granting of remands. The right to personal liberty is one of the most precious rights of the subject which has even during the foreign rule been very jealously guarded by the courts against any invasion. Under the present Constitution, a citizen has a constitutional guarantee of personal liberty and under Article 2(1) of the Constitution he has the right "....to be treated in accordance Wth i aw> anc i only in accordance with law...." The detention of a citizen by the Police on mere "suspicion" is to be very strongly deprecated and the granting of remands by the Magistrates without looking into the Police zimnis and satisfying themselves whether there are grounds for believing that the accusation or information against the accused is well founded is not only to be condemned, but would be taken a seripus notice of by this Court. The arrest of a citizen without any legal justification and his detention through unjustified remands besides being illegal creates a sense of injustice and insecurity in the minds of the people and no greater mischief than this can be imagined." 6. The provisions as enumerated in Sections 61, 167 and 344 Cr. P.C. were also examined in case titled Muhammad Siddiq vs. Province of Sindh (P.L.D. 1992 Kar. 358) and relevant portions whereof are reproduced hereinbelow for ready reference :- "It is abundantly clear from the Provisions contained in the Criminal Procedure Code that once a person concerned or suspected to have committed a cognizable offence is arrested by a Police Officer it is expected of him that he would complete the investigation without any loss of time and at best complete the investigation within 24 hours of his arrest as laid down in Section 61 ibid. Every Officer incharge of a Police Station is required by Section 62, Criminal Procedure Code to report to the concerned Distract Magistrate or if directed by him to the Sub-Divisional Magistrate about the arrest of persons without warrant within their territorial limits. Such reports when made by incharge of a Police Station to the District or Sub-Divisional Magistrate is not matter of sending greetings to them but report is sent to such Magistrate so that they can scrutinise the arrests made by Police Officers and find out if the action can be justified in law. They are expected to carefully examine and even inspect Police lock-ups to prevent abuse of power by Police and illegalities committed by them in effecting arrest by themselves. If the District Magistrates in the Province act diligently, keep the record of arrests by Police under their vigilance we are sure that many cases of excesses committed by the Police will come to an end. We will not examine the scope of the power of a Magistrate to remand a person accused of a cognizable offence to Police or judicial custody beyond a period of 24 hours permitted by Section 61, Criminal Procedure Code for the purpose of completing the investigation as contained in Section 167, Criminal Procedure Code, which is reproduced below : "167. Procedure when investigation cannot be completed in twenty-four hours.--(l) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the Officer in charge of the Police Station (or the Police- Officer inaking the investigation if he is not below the rank of Sub-Inspector) shall forthwith transmit to the mearest Magistrate a copy of the entries in the diary hereafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or (send) it for trial, and consider further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. (Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the (Provincial Government) shall authorise detention in the custody of the police). (3) A Magistrate authorising under this section etention in the custody of the police shall record his eason for so doing. (4) The Magistrate giving such order shall forward . a copy of his order, with his reasons for making it, to the Sessions Judge." On a plain reading of the above Provisions it would appear that Section 167, Criminal Procedure Code is in the nature of an exception to section 61 ibid. While Section 61 prohibits detention of a person in the Police custody, arrested without a warrant, beyond a period of 24 hours Section 167 authorises such detention by the Police beyond 48 hours'up to a maximum of 15 days subject to the order of j, a Magistrate in cases where Police is unable to complete the' investigation within 24 hours of the arrest. The Provision of section 167 Criminal Procedure Gode being in the nature of an exception and also amounting to putting restriction on the right of personal liberty granted under the Constitution has to be very strictly construed and unless all the requirements of Section are complied a remand cannot be granted. It will be noticed that the production of an accused person under custody of a Police Officer alongwith entries made by them in the diaries, before a Magistrate is mandatoiy requirement of law. The purpose behind production ef a person before the Magistrte for obtaining remand is that he can notify to the Magistrate if any excess has been committed against him by the Police in violation of Provision contain in section 50 or 53, Criminal Procedure Code or any other illegal action taken by Police for the purpose of extorting confession of any other act A Magistrate before whom a person under arrest is produced for remand is expected to put specific question on all such aspects to ensure that Police does not commit illegal acts or use unfair excessive force. Entries in the case diaries are required to be produced by the Police Officer so that the Magistrte can apply his mind and ascertain the extent and type of custody required on the basis of available evidence and evidence that is to be collected. In ease maltreatment is alleged and confirmed on an enquiry the Magistrate shall not in such case grant remand to Police custody. In addition to the Provision contain in section 167, Criminal Procedure Code, High Courts in Pakistan have been issuing Circulars from time to time to safeguard the liberty of a citizen and enjoining upon the Magistrate to act with due caution so that the liberty of a citizen is not jeopardized. Reported decisions of the superior Courts have by now elaborately dealt with such powers. A Magistrate while hearing application for grant of remand of an accused person performs judicial functions. The accused through his lawyer or a friend or relatives is entitled to raise objection to the passing of such orders. It is therefore, necessary for a Magistrate to pass orders only in open Court. A Magistrate is not expected to pass orders granting remand of accused persons in a mechanical manner. He has to examine very carefully the justification for depriving a citizen of his liberty which can only be done if material justifying such action is available on record. . We have examined the applications submitted by Police Officers to obtain remand of persons arrested by them in the above cases and have noticed that these applications were written by Head Mohaijrar of Police Station and were stereotype in nature. They hardly disclosed the grounds for grant of remand. The Magistrates have dealt with such applications in a casual and mechanical manner and in some cases even granted remand of 14 days straightaway, A Magistrate is expected to act stringently in matters of grant of remand aiid it will always be in the interest of justice that remand of an accused person either to Police or Judicial custody during the investigation is granted for the minimum possible time required for completing the investigation of a case expeditiously. We would like to mention here that in every case /where a Magistrate grants remand to Police or judicial i custody of an accused person under section 167(1), Criminal Procedure Code, he is required by its subsection (4) to forward a copy of such order with his reasons to the Sessions Judge. A District Magistrate is to be informed of apprehensions of a persons by Police in exercise of their powers under Section 54^ Criminal Procedure Code while, a Sessions Judge has to be kept informed by Magistrate who allow remand of persons for the purpose of investigation beyond a period of 24 yours. A Sessions Judge too like a District Magistrate as pointed out hereinabove in expected to keep vigilance on exercise of such powers by Magistrates. We were at great pains to note that Mr. Lekraj Rathi, A.G.M. XIII Karachi (East), in the case of Major (Retd.) Zahid Hussain made himself available at the Police Station or even at Police look-up and repeatedly granted his remand in more than one alleged offences. None of the applications submitted to him justified grant of such orders. Mr. Lekhraj Rathi, A.C.M. XIII Karachi (East), as stated above, was examined by us in Court and he stated that he has passed orders or remand at Police Station. By granting remand of Major (Retd.) Zahid Hussain at Police Station at odd hours of the day and night, Mr. Lekhraj Rathi. A.C.M. XIII Karachi (East) has indeed acted contrary to the spirit of law embodied in section 167, Criminal Procedure Code. It will be dangerous to entrust such officers with judicial powers and in this case we hope that the' Government of Sindh will take appropriate action against him. We hope that the Magistrate in the Province of Sindh while considering request under section 167, Criminal Procedure Code for the purpose of remanding accused person to Police or judicial custody will be careful enough to exercise such power in strict compliance of the ProVfeion contained in section 167, Criminal Procedure Code and Circulars issued in this behalf by the High Court of Sindh. In case any deviation is made by any of the Magistrates in this respect such Magistrates will be exposing themselves to the peril of having committed violations of mandatory provisions of law. We now propose to advert to the last question, whether a person remanded to judicial custody by a Trial Court under Section 344, Criminal Procedure Code for the purpose of trial can be taken in the custody of Police for the purpose of investigation of another case. It is only a Magistrate of first class who can remand a person accused of a cognizable offence for a period beyond 24 hours to Police custody for the investigation of an offence as no Magistrate of III and II Class unless specially empowered is competent to pass such orders. The ordinary powers of a I class Magistrate are contained in Schedule III of the Criminal Procedure Code. Item No. 7(aa) of No. 3 of that Schedule empowers a I class Magistrate to grant remand, while section 167, Criminal Procedure Code merely regulates exercise of such power. Such a Magistrate has powers to grant remand of an accused person to Police custody if he happens to be a Magistrate stationed at a place which is the nearest to the place of arrest of a person although he may not be having jurisdiction to try such a person for the offence for which he had been put under arrest by Police as provided by section 167(2), Criminal Procedure Code. This Section does not contain any restriction on the powers of a Magistrate to grant remand of a person required in the investigation of a cognizable offence while he may already be in jail custody under orders of a Trial Court facing trial for another offence. In case any other view is taken a person who may be in jail custody as an undertrial prisoner remanded under section 844 Criminal Procedure Code by a Trial Court is found to have been involved in-commission of other offence as well, such a person can get scot free leading to hazardous consequences. For the above reasons we hold that an undertrial prisoner if required by Police in the investigation of another offence can under order of Magistrate under Section 167, Criminal Procedure Code be remanded to Police custody. By taking this view we are supported by the decision contained in the case of the State v. Sukh Sing and others reported in AIR 1954 Rajisthan 290, case of Ghulam and 3 others v. The State and another reported in PLD 1971 Lahore 741 and the case of State v. Fateh Muhammad published in 1972 SCMR 182. In a case where a person is already in jail custody as an undertrial prisoner under orders of a trial Court and he is required by Police in the investigation of some other case a Police Officer cannot on his own arrest such prisoner and take him out of judicial custody even for 24 hours, which he may otherwise be competent to keep him under Section 54 Criminal Procedure Code. In such a case he will be required to approach a Magistrate intimating him that the person in judicial custody is required by him in the investigation of another case. The Magistrate to whom such a request is made may in that case not insists for his physical production he being already in judicial custody. This will however not absolve the Police from their responsibility to produce entries in the case diaries before the Magistrate for the purpose of obtaining remand and the Magistrate before whom such a request is made will be under duty to ascertain if the request made by the Police can be sustained on the basis of material available in the diaries. By taking such view we are supported by the decision in the case ofMehmood All Kasuri v. Punjab Government Published in PLD 1977 Lahore 1400." 7. In the light of above mentioned discussion it can be inferred that once a person is sent to judicial custody, his custody cannot be handedover to Police subsequently and successive remand cannot be given in different cases, but if the cases are registered at different places or different Police Stations remand can be given after completion of necessary formalities which are mandatory in nature and should not be ignored and it must be kept in view that where a accused person is in custody it is necessary that trial Court should be kept aware regarding his remand and prior approval whereof would be necessary. There is no bar in the Provisions as contained in Section 167 and 344 Cr. P.O. that custody of an accused person cannot be handedover to Police if he is required for the purpose of investigation in a case different from one in which he had already sent to judicial custody. It has been observed with grave concern that the procedure as enumerated in section 61 and 167, Criminal Procedure Code is not being complied with in letter and spirit and, we feel it essential that once again directions should be issued to all concern for compliance of the mandatory requirement as enumerated in the Provisions as contained in Sections 161,167 and 344 Cr. P.C. It would not be out of place to mention here that time and again such directions were issued by various judicial authorities but there was a little response from Police and Magistracy. We are, inclined to follow the directive as issued by Lahore High Court (1984 P.Cr. LJ. 2588) and the same are circulated for its strict adherence:-- "(1) During first 15 days, the Magistrate may authorise the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the Police except on strong and exceptional grounds and that too, for the shortest possible period; (2) The Magistrate shall record reasons for the grant of remand; (3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned; (4) After the expiry of 15 days, the Magistrate shall require the Police to submit complete or incomplete challan and in case the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety. (5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/adj ournment (6) The application moved by the prosecution/Police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C. (7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has beeir collected by the Police and that further evidence will be obtained after the remand is granted. (8) The Magistrate shall not grant remand/adjournment in the absence of the accused. (9) The Magistrate should avoid giving remand/adjournment at his residence. (10) The Magistrate shall given opportunity to the accused to raise objection, if any, to the grant of adjournment/remand. (11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same. (12) The Magistrate shall examine police file before deciding the question of remand. (13) If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/adjournment (14) The Magistrate shall not allow remand/adjournment after two months (which is a reasonable time) of the arrest of the accused unless it is unavoidable. (15) In case, complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses. (16) If the challan is not submitted within 2 months, the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default of the Police to the notice of Superintendent of Police of the District. (17) The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police. (18) The Magistrate shall always give reasons for the grant of remand and adjournment The Magistrates should realize that they are answerable and accountable to the High Court for the illegalities and irregularities done by them and that the High Court under section 439, Cr.P.C. is quite competent to examine the correctness of orders passed by them and in case they violate the instructions given by High Court, serious action may be taken against them." A copy of this order be sent to Secretary, House Department, Government of Balochistan, and Inspector General of Police, Balochistan, with the direction that the above mentioned verdict should be followed in letter and spirit and the Provisions as contained in Sections 61, 167 Cr.p.C. should not be mis-used and it should be assured that successive remands authorizing the physical custody of an accused person is discouraged. The Petition is disposed of accordingly. (K.A.B) Petition disposed of accordingly.
PLJ 1997 Quetta 148 (DB) PLJ 1997 Quetta 148 (DB) Present: javed iqbal and raja fayyaz ahmad, JJ. ZAREEN SHAH-Petitioner versus SUPERINTENDENT CENTRAL JAIL etc.-Respondents. Constitutional Petition No. 359/1996, dismissed on 25.2.1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- S. 397-Scope and applicability of-Under S. 397 Cr.P.C. trial court, appellant court or revisional court while seized of jurisdiction as case be, if does not direct that subsequent sentence shall run concurrently with previous sentence already undergoing by a convict, nature of sentence would be deemed to be consecutive and shall commence after expiry of earlier period of imprisonment. [P. 152] A (i) Criminal Procedure Code, 1898 (V of 1898)- -S. 561 A-High Court-Inherent power of~Exercise of--High Court has, however, vested with plenary powers under S. 561-A in exercise of its inherent jurisdiction to direct that subsequent sentence to run concurrently with previous imprisonment already undergoing by a convict but each individual case is to be examined on its own merits in the interest of justice while being seized of such matter-Inherent powers vesting in High Court under S. 561-A needs only to be exercised sparingily keeping in view peculiar circumstances of an individual case for extinguishing manifest wrong or abuse of process of law-Petition dismissed. [P. 153]B&C M/s. Shabir Shah, Ayaz Swati and Shabir Ahmed, Advocate for Petitioner. Ch. Ejaz YousufA.G. for Respondent Date of Hearing: 29.1.1997. judgment Raja Fayyaz Ahmad, J.-This Constitutional petition has been filed on behalf of the petitioner by his uncle Shah Muhammad mainly on the grounds that on account of benefit of section 382(b) Or. P.C. given by both the courts while convicting the petitioner, his sentences of imprisonment has come to an end on 21.8.1996 and w.e.f. 22.8.1996 the detention of the petitioners is illegal and unlawful, therefore, the petitioner is entitled to be set at liberty from the illegal custody of the respondent No. 1 Superintendent Central Jail, Mach. 2. The facts relevant in the matter are that the petitioner was arrested by the Customs Staff of the Central Excise, Quetta on 3.6.1991 in connection with the case No. 2-Cust/Seized/DBN/91/142 for having recovered six kgs; of heroin from a car No. QAG-6306 being driven by the petitioner whereas; three other persons (co-accused) were also present in the vehicle. Consequently all the four persons were arrested by the Customs staff under section 156(i)(89)(8) the Customs Act, 1969. On 8.6.1991, another case under FIR No. 16/91 with the PNCB station, Quetta was registered under section 3/4/14/26 of the Prohibition (Enforcement of Hadd) Order, 1979 against the petitioner and the co-accused regarding the same incident on the report of Assistant Coller, Custons (Preventive-II) Quetta. The petitioner and the other co-accused were convicted by the learned Special Judge, Customs, Quetta (Customs Case No. 29/1991) vide judgment dated 30.11.1991 and sentenced to five years R.I. each and to pay fine of Rs. one lac each or in default of payment of fine to further undergo R.I. for one year each. In the second case registered under crime No. 16/199 .jthe petitioner has been convicted by the learned Additional Sessions Judge-IE, Quetta (Hadd Case No. 25/1991) on 24.12.1992 and sentenced to seven years R.I. with whipping numbering five (stripes) and to pay a fine of Rupees ten thousand and in default of payment of fine to further suffer R.I. for one year and Article 4 of the Hadd Order convicted to suffer R.I. for a period of seven years plus whipping in the same number and fine and in default of payment of fine to undergo R.I. for further period of one year, whereas; the co-accused were acquitted of the charge. Benefit of section 382(b) Cr.P.C. was extended to the petitioner by both the learned courts while convicting him. 3. The petitioner preferred Appeal through jail (Jail criminal appeal No. 36-9/1993) in the HonT>le Federal Shariat Court against the judgment dated 24.12.1992 passed by the learned Additional Sessions Judge-Ill, Quetta. Through judgment dated 13.12.1993 passed by the HonTjle Federal Shariat Court, the conviction of the petitioner under Article 4 of the Prohibition Order was set aside, whereas; his conviction under Article 3 of the Hadd Order has been maintained without any reduction in the sentence on account of huge quantity of heroin being transported by the petitioner, with the directions that the petitioner shall be entitled to the benefit of section 382(b) Cr.P.C. 4. The particulars of both the convictions recorded by the learned trial courts are given below :- 5. Report with regard to the remissions granted to the petitioners was also called for by this court form the Superintendent Central Jail, Mach (Respondent No. 1) which has-been submitted in the light of the first and second conviction/sentences made by the learned trial courts on 30.11.1991 and on 24.12.1992 respectively. The details of the remissions upto date granted to the petitioner as per report of the respondent No. 1 is as under. Years Months Days. (i) Substantive sentence served 05 05 22 including under trial period. (ii) Remission earned. 03 02 07 (iii) Un-expired portion. 03 04 01 6. The learned counsel for the parties have been heard at length. Mr. Ayaz Sawati, Advocate appearing on behalf of the petitioner submitted that both the sentences recorded by the learned trial courts and in the light of the judgment of the Hon'ble Federal Shariat Court has since been already undergone by the petitioner inclusive of the benefit earned under section 382(b) Cr.P.C. accorded to him by both the trial courts, as well by the Federal Shariat Court, therefore, the petitioner's custody in jail beyond 21.8.1996 is illegal; which is not sustainable and the petitioner entitled to be released from the unlawful custody. The learned counsel for the petitioner submitted categorically that in the circumstances of the case both the sentences awarded to the petitioner by the learned trial courts and in view of the judgment of Hon'ble Federal Shariat Court are to run concurrently and not consecutively, hence was of the view of that the petitioner as such deserves to be released from custody. The contentions of the learned counsel for the petitioner have been vehemently contested by the learned Advocate General on the ground that the learned trial court i.e. Additional Sessions Judge-Ill, Quetta while recording the second conviction of the petitioner under the Prohibition (Enforcement of Hadd) Order 1979 did not specify the sentence awarded by it to run concurrently with the sentence earlier awarded by the learned Special Judge, Customs, Quetta and .therefore, the subsequent sentence shall commence running only upon expiry of the earlier sentence period in terms of section 397 Cr.P.C. which deals with the execution of the sentences awarded in two or more cases by the same court or different courts. Further the learned Advocate General argued that the petitioner is entitled to earn benefit under section 382(b) Cr.P.C. only once and not separately in both the convictions pertaining to the single transaction of criminal act despite of the fact that the remained as under trial prisoner in connection with both the cases since 3.6.1991 and 8.6.1991 respectively. While supporting his arguments the learned Advocate General relied on a case reported in PLD 1994, Quetta 1, whereas; the learned Advocate for the petitioner supplemented his arguments by relying on the un-reported judgment of the Hon'ble High Court of Sindh, Karachi in C.P.C. No. D-1305/1992 decided on 15.4.1993. 7. Section 397 Cr.P.C. is the only section in the Code which deals with the execution of sentences awarded by the same or different courts to a convict in two or more offences/cases which reads :-- "Sentence on offender already sentenced for another offence. When a person already undergoing a sentence of imprison ment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment or imprisonment for life is sentenced to imprisonment or imprisonment of imprisonment for life to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Provided that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence commit ted piior to the making of such order, the latter sentence should commence immediately." The admitted position in view of section 393 Cr.P.C. remains that the petition was already undergoing the sentence of imprisonment of five years R.I. in terms of conviction vide judgment dated 30.11.1991 recorded in Customs case 29 of 1991 while the second conviction was made by the ^ learned Sessions Judge-Ill, Quetta in Hadd Case No. 25/1991 on 24.12.1992 whereby the petitioner has been sentenced to R.I. for a period of seven years, whipping five (stripes) and a fine of Rs. 10,000/- imposed and in default : - thereof to undergo R.I. for a further period of one year for each of the offence under Article 3 & 4 of the Hadd, Order. On appeal by the convict, the Hon'ble Federal Shariat Court set aside the conviction recorded under Article 4 of the Hadd Order whereas; under Article 3 has been maintained. Neither the learned Additional Sessions Judge-Ill, Quetta while passing the subsequent sentence against the convict nor the Hon'ble Federal Shariat Curt in appeal made the direction that the subsequent sentence shall run concurrently with the previous sentence recorded in the Customs Case No. 29 of 1991 on 30.11.1991 therefore, we are of the firm view that under ^ section 397 Cr.P.C. the trial court, the appellate court or the Revisional Court while seized of the jurisdiction as the case be, if does not 'direct that the subsequent sentence shall run concurrently with the previous sentence already undergoing by a convict, the nature of sentence would be deemed to be consecutive and shall commence after expiry of the earlier period of imprisonment. PLD 1991 SC 1145 and PLD 1994 (Qta-1) referred. The unreported judgment of the Hon'ble High Court of Sind-Karachi dated "" 15.4.1993 in C.P. No. D-1305/1992 deals on the subject elaborately and does not help the petitioner on the point that the subsequent sentence to be termed as concurrent one, in view of the submissions made on this behalf. The High Court has, however, vested with plenary powers under section 561-A Cr.P.G. in exercise of its inherent jurisdiction to direct that the subsequent sentence to run concurrently with the previous imprisonment already undergoing by a convict but each individual case is to be examined on its one merits in the interest of justice while being seized of such matter. The facts of the case dealt with in the unreported judgment of the Hon'ble High Court of Sind, Karachi referred to by the learned counsel for the petitioner are quite distinguishable and have no bearing in the instant matter. In that case the convict was sentenced the sixty one years of imprisonment in the aggregate in seven different cases by three different courts and had been in custody for almost thirty years since the date of his arrest, who has been left with no relative in this world except his only and ailing sister. The inherent powers of this court are need be exercised only for doing complete and substantial justice keeping in view the merits of each individual case. There is abundant and consistent case law of the superior courts on the subject. Hasan Shah vs. Ghulam Murtaza and others PLD 1970 SC 335, Khawaja Fazal Karim vs. The State PLD 1976 SC 461, Ghulam Muhammad vs. Muzammil Khan and others SC 317. 8. The subsequent sentence has been passed against the convict/petitioner under Article 3 & 4 of the Prohibition (Enforcement of Hadd) Order 1979 and an appeal the Hon'ble Federal Shariat Court set aside the conviction under Article 4 and maintained the sentence under Article 3 of the Hadd Order observing that the petitioner was found transporting/ carrying large quantity of heroin who did not deserve any reduction in the sentence. It is not the case of the petitioner that the subsequent sentence to be directed to run concurrently in the interest of justice rather during the course of argument the plea has been raised in this behalf. In specifying the nature of the sentence the trial court and the appellate court under section 397 Cr. P.C. have ample discretion to determine if the sentences to run concurrently but if such a discretion vested in the court has not been so exercised then in terms of section 397 Cr.P.C. the sentences shall run consecutively. It is quite evident from subsequent conviction and sentence passed by the learned trial court as well as in the judgment of the Hon'ble Appellate court that the discretion in this behalf has not been consciously exercised by the competent forums. The inherent powers vesting in this court under section 561 A Cr. P.C., needs only to be exercised sparingly keeping in view the peculiar circumstances of an individual case for extinguishing the manifest wrong or abuse of the process of law. In the instant case the petitioner has been convicted by the courts for smuggling and transporting heroin and the circumstances of the case do not warrant for exercise of the discretionary jurisdiction vesting in this court in favour of the petitioner by directing the sentences to run concurrently. The petitioner is liable to undergo the unexpired portion of his sentence and the plea that the petitioner since 22.3.1996 is in the wrongful and illegal custody in the jail is therefore, not sustainable. 9. Reverting to the contention respectively raised by the learned counsel for the parties with regard to the earning of benefit under section 382-(b) Cr.P.C. separately in both the convictions or the same could be extendable only once as the criminal act committed by the convict pertained to a single transaction, though sentenced separately by two different courts. 10. Concession under section 382(B) Cr. P.C. is obligatory while passing a sentence on an accused person for an offence by a court and to take into account, the period if any during which the accused was in custody for such an offence. The legal concession so extendable to a convict can well be taken notice of the legal aspect the even where a court while passing a sentence did not specify the benefit of section 382(b) Cr.P.C. to be extended to the convict but the appellate courts and the superior courts granted such benefit on account of the mandatory nature of the provisions of section 382(b) Cr.P.C. therefore, it is the statutory obligation upon the discretion of the court to consider the length of the peiiod during which an accused remained in custody while passing sentence of imprisonment. The petitioner had been in custody initially in the case registered against him under the provisions of sections 156(i)(39)(89) and 157(2) of the Customs Act, 1969 on 3.6.1991 and was convicted by the court on 30.11.1991, whereas ; in the other case registered against him on 8.6.1991 under Articles 3 and 4 of Hadd Order was convicted by the learned trial court on 24.12.1992 so when the petitioner was convicted in the first case on 30.11.1991 he was an under trial prisoner in the subsequent case w.e.f 8.6.1991 and by no plausible reasons the benefit accruable to a prisoner can be denied in view of the express provisions of section 382(b) Cr.P.C. which no doubt could be refused in gruesome and brutal offences but the court has to record reasons therefore, the petitioner has been given benefit of section 382(b) Cr. P.C. which no doubt could be refused in gruesome and brutal offences but the court has to record reasons therefore, the petitioner has been given benefit of section 382(b) Cr.P.C. by the learned courts specifically in both the cases. The petitioner is entitled to the benefit under section 382(b) Cr.P.C. separately in both sentences, though it is not clear from the report furnished by the Superintendent, Central Jail, Mach, if the benefit of section 382(b) Cr .P.C. has been given to the petitioner in both the sentences. PLD 1995 (Lah.) 591 referred. 10. The record of the case coupled with the report furnished to this court by the respondent No. 1 satisfactorily indicates that the sentence period of the imprisonment of the petitioner has not lapsed as yet hence his detention in jail cannot be termed or treated to be unlawful. 11. No illegality, impropriety or violation of law could be pointed out in the subsequent sentence passed by the learned trial court by not directing the sentences to run concurrently nor the circumstances of the case warrant for the exercise of inherent powers by this court under section 561-A Cr.P.C. by directing the sentences to run concurrently, invoking its extraordinary Constitutional jurisdiction. With the observations contained in para No. 9 supra and for the foregoing reasons the petition stands dismissed with on order as to costs. (K.A.B) Petition dismissed.
PLJ 1997 Quetta 155
PLJ 1997
Quetta 155
Present:
raja fayyaz ahmed, J.
Mst.
BIBIGUL and another-Petitioners versus
Mst.
KHOR BIBI and others-Respondents
Civil Revision No. 376/1996, dismissed on 26-5-1997.
Civil Procedure Code, 1908 (V of 1908)-
S. 115 read with O. 23 R. 1 (3)~Suit for declaration, injunction and partition-Dismissal as withdrawn-Second suit on same subject and titleDismissal ofRevision againstSame reliefs have been sought for as in earlier suit on the basis of right of inheritance in suit property (subject matter of previous suit)-Cause of action for filing subsequent suit is same as given in earlier suit, in as much as; no relief as against newly added defendants in second suit with regard to attributed complained act has been sought which nullifies contentions so raised .by petitioners-
Addition of new defendants in subsequent suit without seeking any relief against such respondents shall not render suit as maintainable and competent even against new respondents-Provision of O. 23 R. 1 (3) create complete bar to a subsequent suit on same subject matter between same parties under same title-Petition dismissed.
[Pp. 164 & 165] A to D 1990 CLC 1334,1993
CLC 1478, PLD 1983 Pesh 100,1990 MLD 1702 and
PLD 1990 SC 596 rel.
Mr. Tariq Mahmood, Advocate for
Petitioner.
Mr.
Basharatullah, Advocate for
Respondents No. 1 to 4.
judgment
This civil revision petition under section 115 CPC has been preferred against the judgment and decree dated 30-10-1996 and 26-5-1996 respectively passed by the learned Additional District Judge-Ill, Quetta and
Civil Judge-I, Quetta whereby the appeal and the suit filed by the petitioners has been dismissed.
2. The brief facts of the case are that the petitioner on 29-1-1991, filed a civil suit for declaration, injunction and partition of moveable and immovable properties against the respondent No. 1
Mst.
Noor
Bibi daughter of late Muhammad Noor, Mst.
Bus Bibi and Tehsildar, Quetta on the ground that the petitioners are entitled to their respective shares on the basis of succession. The respondent No. 1 who was sued as
'Noor Bibi' and defendant
No. 1 in the said suit filed their joint written statement on 13-5-1991 before the learned court of Civil Judge-II, Quetta
. It is pertinent to point out that the suit was originally filed in the court of District Judge, Quetta and the same was sent to the court of the learned Civil Judge-II, Quetta for disposal.
In the suit certain legal objections were also raised, besides the suit on merits was contested as well. Since the right claimed in the suit properties was based upon inheritance, therefore, for convenience the title of the suit and the pedigree table as given by the petitioners in the suit, is reproduced hereunder:
"1.
Mst.
Bibi Gul d/o Haji Noor Mohammad caste Kakar resident of Killi
Kotwal, Quetta
.
2.
Sardar Muhammad son of Dad Muhammad caste Kakar resident of Killi
Sheikhan Quetta.
Plaintiffs Versus 1.
Mst.
Bus Bibi widow of 2.
Mst.
Noor
Bibi daughter of late
Muhammad
Noor residents of
Khudaidad Road
, Quetta
.
3.
Tehsildar, Quetta.
Defendants.
SUIT FOR DECLARATION, INJUNCTION AND PARTITION.
Haji Noor Muhammad
Muhammad Noor
Mst.
Bibi
Gul
Mst.
Saadato
Plaintiff No. 1
Bibi
Sardar
Mohd
Plaintiff
No. 2
Abdul Rehman
Mst.
Bus Bibi(wifo)
(son)
Defendant No. 1
Noor Bibi (daughter)
Defendant
No. 2" 3. The detail of the suit property and the reliefs prayed for in the suit is also reproduced hereunder:
"(i)
Khewat
No.
1
Khatooni
No.
1
Khasra
Nos. 100/102/114/115/117 consisting of five
Qitas and (Seven
'Shabana Roz two pass) measuring 21 rods 33 poles situated in Mohal
Karez Atta Muhammad Mouza Sirki
Tappa Saddar District and Tehsil Quetta.
(ii) Khewat No. 22 Khatooni No. 29 Khasra Nos. 144/145/146 consisting of three Qitas and (eleven Shabana Roz
Burmajat) measuring 8 rods 22 poles situated in
Mohal Chakal Muhammad Murad Mouza Sipki Tappa Saddar
Kansi District and
Tehsil Quettai
(iii) Khewat No. 1 Khatooni No. 2 Khasra Nos.
17/11/9/7/99 measuring 34 rods 18^/4 poles situated in Karez Atta
Muhammad.
(iv) Khatooni No. 46/53 to 55 shamilat consisting of 10 Qitas measuring 12 rods 20 poles situated in Mohal Chukal
Muhammad Murad.
(v) One Bungalow situated at Khudaidad road outside Qila
Kansi, Quetta.
(vi) one car
(vii) one Rifle
(viii)one shot gun.
(A)
Declaring that the plaintifs are owners to the extent of
\ share of the property left by their ancestor Haji Noor
Muhammad described in para No. 4.
(B)
Declaring the mutation entries fraudulently made in the name of Muhammad
Noor, Abdul Rehman and defendant
No. 1 and 2 behind the back of plaintiffs have no legal effect and are liable to be cancelled.
(C)
Directing defendants No. 3 to enter the property in dispute in the name of plaintiffs to the extent
\ share.
(D)
Restraining the defendants from disposing of property till the partition.
(E)
Partitioning the property in dispute between the parties."
On 22-5-1991 the suit was disposed of as withdrawn by the petitioners/plaintiffs on their application submitted before the learned trial court and the thumb impression of the petitioners were also obtained by the learned trial court on the margin of the order passed by the learned trial court in acknowledgement of the request seeking for withdrawal of the suit.
The order of the learned trial court dated 22-5-1995 is reproduced hereunden
The petitioners on 27-5-1992 filed second civil suit for declaration, injunction and partition against the respondent No. 1, the predecessor-ininterest of the respondent No. 2-A to 2-F, Naseerud Din and the Tehsildar, Quetta concerning the properties, the subject matter of the previously instituted suit on the basis of succession as claimed in the aforesaid earlier suit and claimed the following reliefs in the suit :--
"(a) That the plaintiffs are owners to the extent of 1/2 share in the property left by their ancestor Haji Noor
Muhammad described in para No. 4.
(b)
Declaring that the mutation entries fraudulently made in the name of Muhammad
Noor, Abdul Rehman, Mst.
Bus
Bibi and defendant No. 1 behind the back of plaintiffs have no legal effect and are liable to be cancelled.
(c)
Directing defendant No. 4 to enter the property in dispute in the name of plaintiffs to the extent of their half share.
(d)
Restraining the defendants from disposing of property till the partition.
(e)
Declaring that all the sale deeds and registration of property in dispute done by defendant No. 1 and her mother be declared illegal and cancelled.
(f)
Ceasation of the Banks account of defendant No. 1 till the final decision of the court
(g)
Partitioning of the property in dispute between the parties, h)
Cost of the suit may also be awarded."
The subsequently instituted suit was filed in the Court of District Judge, Quetta which was sent to the file of the learned Civil Judge-Ill for disposal.
This suit was registered with the learned court of Civil Judge-Hi Quetta as
Civil Suit No. 17/1992.
The respondent No. 3 and 4 on their application under Order 1 Rule 10 CPC were allowed to be impleaded as defendants
In the suit subsequently instituted vide order dated 16-3-1995 passed by the learned trial court and on 4-4-1993 the petitioners filed the amended plaint by impleading the respondents No. 3 and 4 as defendants in the suit
One Gul Muhammad son of Oad Muhammad
(the brother of the petitioner No. 2) submitted application on 14-4-1994 before the learned trial court that he be impleaded in the suit as plaintiff and this application was not contested by the parties to suit, therefore, the learned trial court vide order-dated 8-5-1994 granted the application of the
Intervenor to be impleaded as plaintiff and the amended suit (impleading the intervenor as plaintiff No.
3) filed in the court on 16-6-1994. On 11-8-1994 the plaintiff No. 3 Gul
Muhammad filed an application for withdrawal of the suit as against the defendants for being not interested to prosecute the cause against them. This application was not contested by the parties to the suit hence the court vide its order dated 18-8-1994 allowed to application and his name was accordingly deleted from the title of the plaintiff.
The defendants/respondent No. 1 to 4 excepting the respondent No. 5 who was proceeded ex parte filed their written statement on 17-4-1993 contesting the suit on merits besides certain legal objections with regard to the maintainability and competent of the subsequently instituted suit were taken.
The learned trial court on 22-12-1993 flamed the following issues out of the pleadings of the parties :
1.
Whether the court fee paid is deficient?
2.
Whether the suit on the same subject matter has been with drawn without permission to file fresh, as such the suit is not maintainable?
3.
Whether the suit is barred by time ?
4.
Whether the plaint is liable to be dismissed in view of
P.O.
'E' of the written statement ?
5.
Whether the suit suffers from misjoinder of the parties ?
6.
Whether the disputed property is the ancestral property of
Muhammad
Noor ?
7.
Whether the property mutated in the name of the defendant No. 1 and her mother was the result of framed and mispresentation ?
8.
Whether the plaintiffs are entitled in the share of property of late Noor Muhammad.?
9.
Whether the brother of the plaintiff No. 1 has paid the due share of his sister ?
10.
Relief?
It is note worthy to mention that on 2-3-1994 an application under
Order XIV Rule (2) read with Order XV Rule (2) was submitted by the contesting defendants before the learned trial court praying that legal issues may be decided in the first instance as the suit can be disposed of on such issues without recording evidence, this application was contested by the petitioners by means of rejoinder filed by them. The respondent No. 3 and the contesting respondents vide applications respectively filed on 11-4-1993 and 28-10-1994 prayed that the petitioners be directed to make payment of the required court fee on the plaint in accordance with the value of the subject matter of the suit.
The petitioners during this period filed an application in the court of
District Judge, Quetta for transfer of the suit to the Court of Senior Civil
Judge, Quetta on the ground that similar suit between the parties is pending in the court of
Senior Civil Judge, Quetta. The respondents did not object to the transfer of the suit, accordingly vide order dated 18-9-1994 this suit was transferred to the court of Senior Civil Judge, Quetta and registered with the transferee court as civil suit No. 146/95.
The application dated 11-4-1993 filed by the respondent No. 3 seeking directions of the court be made to the petitioners for payment of the required court fee and the application filed under Order VII Rule 11 CPC came up for hearing before the learned trial court and the plaintiffs/petitioners offered to make payment of the court fee in accordance with value of the subject matter of the suit as and when so directed by the
^ court, therefore, the learned trial court by means of order dated 12-6-1993 disposed of the application in terms of the undertaking given for payment of court fees and dismissed the application of the respondents filed under Order
VII Rule 11 CPC. The petitioners had also filed an application under Order
XXIII Rule (1) CPC for withdrawal of the suit with permission to file a fresh suit, which was also dismissed by the learned trial court on 23-11-1993.
Two witnesses of the plaintiffs/petitioners were examined before the learned trial court i.e. Civil Judge-Ill, Quetta whereas; the third witness was examined before the learned transferee court on 22-5-1995. On 24-5-1995 the respondents again submitted application before the learned Senior Civil
Judge, Quetta praying that the legal issues framed by the court be decided first instead of proceeding with case on merits.
Consequently the respondent
No. 1, 3 and 4 challenged the proceedings of the suit being commenced on merits without deciding the crucial legal issues by way of civil revision petition filed before the learned District Judge, Quetta which was sent to the court of learned Additional District Judge-Ill, Quetta for disposal being civil revision No. 10/1995. The learned Additional
District Judge-Ill Quetta vide judgment dated 6-7-1995 allowed the revision petition and dismissed the suit of the petitioner on the ground that the subsequent suit was barred under
Order XXIII Rule 1 (3) CPC as the petitioners/plaintiffs were precluded to file a fresh suit on account of the earlier suit on the subject matter having
"" been withdrawn by them without seeking permission to file a fresh suit and on the ground of non-payment of the requisite court fee on the plaint despite order of the trial court dated 12-6-1993 passed on the subject.
The petitioners/plaintiffs challenged the judgment and decree passed by the learned Additional District Judge-Ill, Quetta by filing
Constitutional Petition No. 234/95 before this court. This Court vide judgment dated 5-10-1995 set aside the impugned judgment with the consent of the learned counsel for the parties in view of the factual position of the case about the non disposal of the application filed by the respondents seeking for the decision of the legal issues prior to the recording of evidence on the other issues and not taken due notice of by the learned Revisional court; consequently vide judgment dated 5-10-1995 passed in C.P.No. 234/95 the case was remanded to the learned trial court with the directions to pass appropriate orders on the application dated 2-3-1994 filed by the respondents seeking for disposal of the legal issues after providing opportunity to parties for hearing and on the objections of the learned counsel for the respondents it was observed in the said order that the trial court to dispose of the subject matter against whom no relief even has been claimed in the subsequent suit which therefore, will not hinder the application of sub rule
(3) of Rule (1) of Order XXIII CPC and relied upon the judgments reported in law journals i.e. (i)
Mst. Mehrunnisa vs.
Karachi Cantonment Board 1990 CLC 1334, (ii)
Feroz Khan and 4 others vs.
Zaman All and others 1993 CLC 1478, (iii) Mir
Zaman vs. Mst. Begum Jan
PLD 1983 Pesh; 100, (iv) Messrs
Artisans Craftsman, Rehabilitation Society vs. Mst.
AsifJehan Begum and 10 others 1990 MLD 1702 and (v)
Maula Bakhsh vs.
Muhammad Zahid
PLD 1990 SC 596.
While going through the record of the case it transpired that the name of the respondent No. 1 even does not appear in the title of earlier suit and this aspect was not clarified during the address made by either of the learned counsel nor even noticed by the court, therefore, to clarify if the respondent
No. 1 (Khor Bibi) is the only daughter of late Muhammad Noor or otherwise, notices were issued to the learned counsel for the parties for 15-5-1995. On the date so fixed the learned counsel for the private respondents appeared and submitted that the respondent No. 1 is the only daughter of late Muhammad Noor who had been sued as defendant in the earlier suit besides her mother
Mst.
Bus Bibi but her name in the title of the previous suit was incorrectly mentioned as Noor Bibi and that Khor
Bibi and Noor Bibi is one and the same person. The learned counsel for the contesting respondents for the due verification of this submission in this behalf submitted in writing that the respondent No. 1 and
Mst.
Noor Bibi is the one and same person whose correct name is Khor Bibi and this written clarification has been signed by both the learned counsel for the parties.
The contentions of the learned counsel for the petitioners are not sound on account of the fact that on the same subject matter the petitioners filed suit against the respondent No. 1, her mother (Since deceased) and the
Tehsildar Quetta and withdrew from her suit simpliciter without seeking permission to file/fresh suit on the same subject matter. The contention of the petitioners' counsel that the suit subsequently filed has been based on altogether a new and distinct cause of action as the petitioners have been defrauded and misled by the defendants in the previous suit and by the predecessor-in-interest of the respondents No. 2-A to 2-F and respondent
No. 5 who as such have impleaded as defendants in the subsequent suit. The averments of the subsequent suit go contra to the contention so raised on behalf of the petitioners. It is not the case of the petitioners that the suit earlier instituted be declared by the court to have been got withdrawn by the respondents by playing fraud through false promise and misrepresentation; rather the same reliefs have been sought for as in the earlier suit on the basis of the right of inheritance in the suit property (the subject matter of the previous suit).
The cause of action for filing the subsequent suit as constituted in para No. 8 of the plaint is the same as given in the earlier suit, inasmuch as; no relief as against the newly added defendants in the second suit with regard to the attributed complained act has been sought for, which nullifies the contentions so raised by the learned counsel.
The cited authority is not relevant for the proposition in hand, therefore, needs no discussion on the point.
The addition of or impleading of new defendants in the subsequent suit as in the instant case by itself without seeking any relief against such defendants/respondents shall not render the suit as maintainable and competent even against the new defendants.
The provisions of
Order XXIII Rule (1) Sub Rule (3) CPC create a complete bar to a subsequent suit if instituted on the same subject matter and between the same parties or their legal representatives or by or against person litigating under the same title, on which an earlier suit has been withdrawn simpliciter without seeking permission of the court for filing fresh suit on the same subject matter. Impleading of new defendant/s in addition to the defendant/s of the earlier suit without seeking relief against such a new party shall not ipse facto render the second suit on the same subject matter as maintainable nor by such an act the provisions of Order
XXIII Rule (1) Sub
Rule (3) could become redundant or defeated.
Since the previous suit on the same subject matter has been withdrawn without seeking permission to file a fresh suit on the same subject matter, therefore, as above discussed the 2nd suit was not competent nor maintainable in view of Sub Rule (3) of Rule (1)
Order XXIII CPC.
The case law cited by the learned counsel for the contesting respondents i.e. 1990 CLC 1334, 1993 CLC 1478, PLD 1983 Pesh: 100, 1990 MLD 1702 and PLD 1990 SC 596 is relied upon on the subject.
The stated different and distinct cause of action for impleading the new defendants in the suit besides the defendant in the previous suit on the same subject matter and having claimed the same relief as in the earlier suit will not change the complexion, nature and the subject matter of the second suit to make it as the suit competent under the law..
For the foregoing reasons the impugned judgments and decrees are not open to any exception which may call for any interference in the exercise of revisional jurisdiction by this court; accordingly the revision petition being meritiess is dismissed with costs.
(MYFK)
Petition dismissed.
he same, thus holding the
Government, amount. Therefore, a 14% mark up has been calculated which has worked out to Rs. 46,88,341/- (subject to proper calculation).
You are directed to pay the original balance amount of
Rs. 8,78,015/- Plus 14% mark up i.e. Rs. 46,88,341/- which has been calculated upto 4-11-1996. (Totalling Rs.
55,66,356/-
In case you fail to deposit the Government
Revenue, the same will be recovered under section 202 of the Customs
Act, 1969.
Sd/-
.
ASSISTANT COLLECTOR
CUSTOM HOUSE
GADDANI.
Mr. Muhammad Ali Saeed learned counsel for the petitioner precisely contended whether Customs Authorities are empowered to charge mark-up under the
Defferment of Import Duty (on Ships for Scrapping
Rules, 1993 in the absence of any provisions in the said Rules authorisation application of mark up. In support of his plea he further argued that a
Statute dealing with the fiscal has to be strictly construed and in absence of express provisions any Authority exercising jurisdiction thereunder is not competent either to delete or add any provisions therein, if the law has itself not provided so.
Reliance was placed on 1973 SCMR 445, PLD 1988 SC 370, PLD 1990 SC 68, 1992
SCMR 663, 1994 SCMR 1393. Learned counsel also made reference to Sub Rule (7) of Rule 5 of the Defferment of Import Duty
(on Ships for Scrapping) Rules, 1993 and argued that this rule itself has provided penalty if there is a failure on behalf of
Importer to make payment in accordance with schedule specified in Rule 4 of stopping breaking the ship forthwith and he shall not be allowed to avail facility of Defferment of
Duty etc.
We were also informed that so far Bill of Entiy has not been finally returned because of adjudication on question of payment of Regulatory Duty, matter in respect honourable Supreme Court.
On the other hand Mr. M.S. Rakhshani learned Deputy Attorney
General stated that under Sub Section (2) of Section 83 of the Customs Act, on account of default in payment of outstanding amount surcharge of 14% can be imposed by the
Competent Authority, therefore, in exercise of such powers vide impugned letter the Importer petitioner has been called upon to make payment of mark-up. Thus the order has been passed with lawful authority and jurisdiction.
It may be noted that admittedly Bill of Entry submitted by petitioner has not been returned after final adjustment of taxes etc, as the matter concerning payment of Regulatory Duty between the parties is subjudice before honourable
Supreme Court of Pakistan where the civil petition for leave to appeal filed by the Importer is pending. However, interim relief has been granted vide order dated 22-7-1996, operative para therefrom has already been reproduced hereinabove.
Now it would be examined that an Importer who has opted to make payment of Import Duty in installments under the Defferment of Import
Duty (on Ships for
Scrapping) Rules, 1993 can be considered a defaulter and mark-up to the tune of
Rs. 14% on the outstanding amount can be recovered from him or not, In this behalf cursory perusal of the Defferment Rules reveal that as per
Rule 4 Importer has been authorised to pay duties leviable on import of ships for breaking in the following order :-
(a)
First installment of 35% within 15 days of filing of the Bill of Entry;
(b»
Second installment of 33% within 30 days of payment of fist installment;
PLJ 1997 Quetta 173 (DB) PLJ 1997 Quetta 173 (DB) Present: iftikhar muhammad chaudhry and raja fayyaz ahmad, JJ. M/s. TARIQ SULTAN & CO.-Petitioner versus GOVT. OF PAKISTAN etc.-Respondents Constitutional Petition No. 290/1996 allowed on 8.5.1997. Central Excises and Salt Act, 144-
-S. 3 C. read with Section 199 of Constitution of Pakistan 1973-Cent.ral Excise Duty-Imposition of-Challenge to-Relief claimed-(i) Declare that demand of Central Excise Duty can only be made on scrap of vessel ami on delivery of scrap (ii) Declare that demand of Excise Duty by respondents is illegal, arbitrary and unjustified as vessel has still not been converted into scrap (iii) Declare that as per Finance Act, 1996 Excise Duty on scrap has been removed and as such no Excise Duty is payable- Demand is ab initio illegal and fit to strike down as without lawful authority-For determination of tariff value and rate of duty crucial date would not be when Bill of Entry, is filed, what would be date or which goods are cleared for export or for home as it is clear from un-ambiguous language applied in section 3 (c) of Central Excise and Salt Act, 1944- Demand of Excise Duty by respondents is illegal and without lawful authority-Petition allowed. [P. & 180] A Mr. M.S. Rakhshani, D.A.G for Respondents Date of hearing: 29.4.1997. break up of an amount equal to Rs. 56,571,701.00 has been shown which includes Rs. 1,16,27,698.00 payment towards the excise duty. We enquired from the learned counsel as to whether he had in his possession the instructions in writing from Importer to deposit this much amount in the Head of Central Excise Duty out of the total amount noted hereinabove, Pay Order whereof being No. 871294 dated 24th September, 1996 of Muslim Commercial Bank was received. His answer was in negative nor he could show any document from the file to support his contention. In this behalf it is noteworthy that on 24th September, 1996 the Pay Order equal to Rs. 56,571,701/- was submitted by the Importer in favour of Assistant Collector Customs with a covering letter of the even date being first installment of 34% of total duty and taxes on the Vessel. In the letter the break up was given as under :- % Customs duties Rs. 34,223,512.00 Sales Tax Rs. 16,527,593.00 F.R.F. Rs. 752,084.00 Income Tax Rs. 05,068,462.00 C.E.D. Rs. 50.00 Rs. 56,571,701.00 What had happened that the Assistant Collector had encashed the above Pay Order and out of it deposited Rs. 11,627,698.00 on 30 th September, 1996 under his own signatures as it is indicative from the challan copy whereof has been annexed with the petition by the Department itself. Column No. 1 of the Challan is meant for particulars of the person who has tendered the amount. In this column designation of the Assistant Collector Gaddani with his Seal and signature has been affixed. We failed to understand that what was object to commit such forgery by the concerned Officer because apparently petitioner had not done so as it is indicative from the facts particularly when no such instructions were ever given to the Assistant Collector. Even otherwise if the Importer had agreed to pay the . Excise Duty then what was the occasion for instituting instant Constitutional Petition before this court on 17th September, 1996 and also of obtaining interim stay order on 18th September, 1996. It is quite surprising to note that the Assistant Collector Gaddani despite of service had not appeared nor he has filed a counter affidavit to explain his position. We are anxious to know whether he was competent to encash the Pay Order and thereafter withdraw some amount from it for the purpose of depositing in the different Head. However, in absence of any explanation either by hm or the Deputy Attorney General we are inclined to hold that this exercise has been done by the Assistant Collector Gaddani with malafide intentions, therefore, we direct that copy of the judgment be sent to Central Board of Revenue for the purpose of taking action against him as far as possible within the period of six weeks after receipt, of the order and if on the expiiy of stipulated period compliance report is not submitted, Registrar shall put up the file in Chambers for further orders. So in view of above discussion we are inclined to conclude that vide Challan No. 6 dated 30th September, 1996 petitioner has not paid the Central Excise Duty, therefore, Department is directed to treat this amount towards the payment of other dues, if outstanding against the Importer. On merits it is contended by learned counsel that petitioner is not liable to pay C.E.D because Government has granted exemption on Excise Duty on the scrap of ships vide SRO No. 457(l)/96 dated 30-6-1996 which was to take effect from 1-7-1996 and as the clearance to commence dismentalling the ship was allowed on 31-10-1996, therefore, not withstanding the fact that Bill of Entiy was deposited on 9-6-1996 petitioner would also be entitled to enjoy the benefit of the SRO referred to hereinabove. He further contended that under Section 3-C(a) the determination of tariff value and rate of duty shall be on the date on which the goods are cleared for export or for home consumption. Since the scrap is meant for home consumption, therefore, date for determination of the Excise Duty would be the date of clearance. In this behalf he placed reliance on "Federation of Pakistan, through Ministry of Finance & others vs. M/s Noorie Trading Corporation (Pvt) Limited & 14 Qthers' (1992 SCMR 710). Mr. M.S. Rakhshani learned Deputy Attorney General, however, argued that Importer/petitioner is not entitled for the benefit of SRO referred to hereinabvoe because it was given effect from 1-7-1996; whereas admittedly Bill of Entiy with IGM No. 22/1996 was filed by petitioner on 9-6-1996, therefore, under Section 30 of Customs Act date for determination of value and rate of Import Duty would be when Bill of Entiy is filed. In this behalf he made reference to 1993 SCMR 17. We have considered the arguments put forth by parties counsel and also perused relevant provisions of law. At the very outset we would like to observe that for determination of tariff value and rate of duty the crucial date would not be when Bill of Entiy is filed, but would be the date on whicl goods are cleared for export or for whom consumption as it is cleaj' from un ambiguous language applied in Section 3(C) of the Central Excise & Salt Act, 1944. For convenience relevant clause referred to hereinahove is re-produced ji below :- "(3-C)" Determination of Value, retail price, tariff value and rate of duty.- (1) The value, retail price, tariff value of and the rate of duty applicable to goods or services shall be the value, retrial price, tariff value and the rate of duty in force.-- (a) in the case of goods, on the date on which goods are cleared (for export or) for home consumption; (b) in the case of services, on the date on which the % services are provided or rendered (; and) (c) in the case of excisable goods produced or manufactured outside the areas to which this Act has been applied and brought for consumption to those areas, the date on which the goods are brought to those areas). The issue of a Notification under subsection (4) or sub-section (8) of section 3 shall not affect the liability of any excisable goods produced or manufactured in a factory or brought into such factory for any purpose and not cleared therefrom or from bonded warehouse on payment of excise duty before the date of coming into force of such Notification and the provisions of such Notification shall not apply in respect thereof.) The honourable Supreme Court has attended to above question in the judgment of 'Federation of Pakistan, through Ministry of Finance. & others Vs. Noorie Trading Corporation (Pvt) Limited & Others (1992 SCMR 710). Relevant paras for guidance are re-produced hereinbelow:- "As regards the contention that the .ship-breaking had already taken place and the plates were recovered before Ordinance No. Ill of 1988 came into the field, on the plaint language of the added provision it, is untenable. What has been made liable to tax is not, the ship-breaking activity itself but certain items recovered as a result of ship-breaking and not all items. With regard to the stage, section 3-C of the Act, (reproduced in paragraph 4) makes the liability as "on the date on which the goods are cleared for export, or for whom consumption". This statutory provision (section 3-C> was earlier a part of: Rule 9-A of the Central Excise Rules. It came up for interpretation before Indian Supreme Court, in Orient Paper Mz7/s Ltd. v. Union of India (AIR 1967 SC 1564) and it, was interpreted as bereunder :- "It will thus be seen that in the case of manufactured goods the payment of duty and the clearance of goods may be synchronous or the payment, may he postponed although the goods may be removed (provisos to R. 9). This immediate sets up two kinds of cases in respect of manufactured goods. The critical time thus becomes the removal from the .factory-or warehouse but if the payment of duty is made before the removal then the critical time is the payment of duty. In the present case the payment of duty was synchronous with the clearance of the goods because the gate pass can only be issued when the goods have actually been cleared for removal. The above construction of the Rules agrees with the construction placed by the Board of Revenue in the ruling of 1957 where the effect of the sealing of the , t wagons by he Railway after loading and the issuance of railway receipts was considered. The Board ruled that such goods would not be considered as lying in the stock in the factory premises." Hence, as substantively excise duty was leviable on the specified product obtained by ship-breaking and that the levy had to take place at the stage of clearance as provided under section 3-C of the Act, these appeals are allowed. The judgments of the High Court are set aside and the Constitutional Petitions filed challenging the levy are dismissed." Thus in view of above legal position it is held that the date of filing Bill of Entry would not be crucial for determination of tariff value and rate of duty, but the important date would be when the goods are cleared for export, for home consumption. As in the instant case admittedly permission was according to petitioner to commence the process of dismentalling the ship on 31-10-1996 vide letter C. No. SI/MISC/116/96(G)/2939 as such this would be treated as the date of clearance and from this date he considered the Excise Duty will be calculated. Since by the time SRO No. 457(11/96 has come into operation, therefore, petitioner was not liable to pay Excise Duty and the arguments put forth by learned counsel that, the date of filing of the Bill of Entry would be the relevant date to determine the value and rate of Import Duty for the purpose of Central Excise Duty would not, be relevant, and in such view of the matter the judgment cited by the learned counsel is also inapt. Learned Deputy Attorney General also made an attempt to convince that since special procedure has to be followed for collection of Central Excise Duty on iron and steel plates recovered through dismantling or breaking of ships and vessels etc. under Rule-96 (zz) of the Central Excise Rules, 1944 is to be followed, therefore, date of clearance of the goods under Section 3-C of the Act, 1944 would not be relevant. We think this argument is also not available to him, firstly Rule 96 (zz) being subordinate legislation cannot supercede to the provisions of Section 3-C of the Act; secondly if mainly deals with special procedure in respect of certain manufactured goods as provided under Chapter-XV of the Central Excise Rules, 1944. This Chapter deals with regard to filing of the application and the revised procedure, maintenance of current acocunt, deposit of goods in the store room, clearance of goods on payment of duty, clearance of goods exempted from duty etc, but does not deal in respect, of the event when determination of tariff value and of rate of duty will be worked out, thereofre, the argument put froth by the learned counsel has no substance. Thus for the foregoing reasons petition is allowed declaring that in pursuance of SRO No. 457(l)/96 dated 13-6-1996 demand of Excise Duty by the respondents from the petitioner on the scrap of the Vessels namely, "VIoo Odyssea," vide IGM No. 22 dated 9-6-1996 vide letter dated 1-9-1996 issued by Assistant Collector Customs House Gaddani is illegal and without lawful authority. Petitioner is also held entitled for the cost. (A.P.) Petition allowed.
PLJ 1997 Quetta 181 (DB) PLJ 1997 Quetta 181 (DB) Present : IFTIKHAR MUHAMMAD CHAUDHARY AND amanullah khan yasinzai, J J. ABDUL GHAFFAR-Petitioner versus SELECTION COMMITTEE through DIRECTOR OF EDUCATION and 4 others-Respondents Constitutional Petition No. 69 of 1997, decided on 12.6.1997. (i) Constitution of Pakistan , 1973- Art. 199-Writ issuance of-Writ is to be issued to foster justice and not to perpetuate illegality. [P. 185] B 1990 CLC 1174: 1995 SCMR 678; \ ii) Locus Poenitentiae- Principle of--Applicability ofAdmission from metallurgy technology to Electrical Technology obtained through interference of Chief Minister who has no authority to change technology-Technology obtained illegally and through manipulation-Principle of locus poenitentiae would not be applicable. [P. 184] A PLD 1989 Lah. 196; PLD 1992 SC 207; PLD 1969 SC 407; 1997 SCMR 15 ref. Mr. Muhammad Riaz Ahmad, Advocate for the Petitioner. Mr. Noor Muhammad Achakazai, Additional Advocate General for Respondent No. 1. Mr. Gohar Yaqoob Yousafzai, Advocate for the Respondent No. 3. Mr. Pervaiz Gala, Advocate for the Respondent No. 4. Date of hearing : 2.6.1997. judgment Amanullah Khan Yasinzai, J.-The petitioner alongwith the respondent Nos. 3 and 4 applied for admission in the Engineering College/Universities of Pakistan against reserved seats of District Jafarabad for the session 1995-96. All of them were given admission on merit by the Settlement Committee vide Notification dated 12-2-1997. Petitioner and respondent No. 3 were given admission in Electrical .and Mechanical Technology respectively in the Engineering University Khuzdar while respondent No. 4 was given admission, in Dawood College of Engineering and Technology, Karachi in Metallurgy. ' It is the case of the petitioner that after being selected for the said technology he duly deposited his fees and was issued a roll No. in Electrical Technology in Engineering University of Khuzdar and after studying for about 2/3 months respondents No. 1 and 2 are trying to change the Notification whereby the petitioner is being sent to Mechanical Engineering or Metallurgy and respondents No. 3 or 4 is being sent in his place. He has challenged the intended act of the official respondents and has prayed that they be restrained from changing his technology. Respondents I and 2 have field their parawise comments and respondents 3 and 4 have also filed counter-affidavit opposing the petition. 2. We have heard Mr. Riaz Ahmad Advocate for petitioner, Mr. Noor Muhammad Achakzai Additional Advocate-General for official Respondents and Mr. Goher Yakub Yousafzai, Advocate for respondents 3 and 4. 3. Mr, Muhammad Riaz Ahmad learned counsel for petitioner raised the following contentions :- (i) That since the petitioner has deposited his fees in Electrical Engineering and a Roll No. has been allotted to him and he has started attending the classes; as such a valid right has accrued to him which canto he snatched away; the petitioner is "entitled to carry on his studies in Electrical Engineering on the principle of Incus pneiutcntiac. (ii) That the intended act of official respondents by changing the technology of the petitioner at a bleated stage is unwarranted and against the admission policy. (iii) That the Notification dated 12.2.1997 issued by the Official respondents granting admission to the petitioner and respondents has not been challenged either by the official or private respondents. The learned counsel relied on the following case law :- (a) Pakistan through the Secretary of Defence Vs. Muhammad Himayatullah Farooqi & 4 others) PLD 1969 S.C. 407. (b) (Chairman Selection Committee/Principle, King Edward Medical College, Lahore and 2 others) vs. Wasif Zameer Ahmad and another) 1997 SCMR 15. Mr. Noor Muhammad Achakzai, Additional Advocate General opposing the petition stated that as per merit list the petitioner was entitled to admission in Metallurgy as he had lesser marks than respondents 3 and 4 but due to interference of Mir Zafarullah Khan Jamali the then Care taker Chief Minister the technology "of the petitioner was changed from Metallurgy to electrical. There learned counsel further drew our attention to the Notification dated 12.2.1997 wherein at, page 59 of the petition at S. No. 13 below the name of respondents No. 3 the following note has been written :- "Note, as per instructions contained in D.O. letter of Honourable Mir Zafarullah Khan Jamali his technology goes to Abdul Ghaffar son of Sultan Ahmad Round No. 4. S. No. 11." Similarly at page 61 of the petition at S.No. 11 below the name of the petitioner it has been observed : "Note as per instructions contained in D.O. letter of Honourable Mir Zafarullah Khan Jamali he has obtained Electrical Technology." General candidly conceded the Mir Zafarullah Khan Jamali had no jurisdiction to have issued directions for changing of the technology of petitioner and the respondents. He further admitted that the said instructions issued by the then Chief Minister are in excess of authority. 6. Mr. Goher Yakub Yousufzai learned counsel for respondents 3 and 4 adopted the arguments of learned. Additional Advocate General and further stated that writ cannot be issued to perpetuate illegality. 1: We have perused the record and have given our anxious thought to the arguments advanced b the learned coimsel for the parties. From the perusal of the record it reveals that prior to allotting technology to students the petitioner approached Mir Zafarullah Khan Jamali, the then Care-taker Chief Minister who in turn issued instructions to the official respondents to grant electrical technology to the petitioner instead of mechanical or metallurgy. Thereafter, on such instructions the official respondents while deviating from rules granted electrical technology to respondent No. 3 and v' Metallurgy to respondent No. 4. Admittedly the petitioner has lesser marks and he was not entitled to the said technology on meris and Mr. Zafarullah Khan Jamali and no jurisdiction to issue directions to the official respondents to give the technology of electrical Engineering to the petitioner. Such directions were not according to rules and in excess of authority. The arguments advanced by Mr. M\ihammad Riaz Ahmed, learned counsel for the petitioner that since the petitioner is entitled to cany on his stxidies in.the Electrical Technology on the principle of locus poenictcntiac has not force, thus repelled. We do not agree with the said contention of the learned counsel for the petitioner. The case law relief by him is distinguishable. The principle of locus poenitentiae is not applicable to the case in hand as the petitioner had obtained in the electrical Engineering through the interference of the then Care taker Chief Minister who had no authority to direct official respondents to change the technology of the petitioner, as he obtained the same illegally and through manipulation as such principle of loc\is poenitentiae would not be applicable. Reliance is place don (Dr. Amanullah Haq and 2 others Vs. Punjab Public Service Commission and another) PLD 1989 Lahore 196 and (The Engineer-in-Chief Branch through Ministry of Defence., Rawalpindi and another vs. Jalaluddin) PLD 1992 S.C. 207. In former case it, was observed as under :- "A person having recourse to the discretionary and equitable constitutional jurisdiction of this Court cannot, reasonably pray to this court to come to his aid and to grant his desire to thrive through a strange set of intentional or unintentional errors at the Cost of legal right of another individual. In my humble view, the plea of locus poenitentiae is not available to a person in case where the order or the action relief upon may be found to be without jurisdiction or in excess thereof. No right can be claimed or superstructure of rights built upon orders which are void or complete nullities in law." In the latter case the Honourable Supreme Court observed as under:- "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order." It is an established principle of law that Constitutional jurisdiction cannot be exercised in favour of retention of ill-gotten gains and it is further observed that the object of writ jurisdiction is to foster justice and not to perpetuate an illegality, reference is made to S.K. Masood and 3- others vs. Special Committee through Member Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government and others) 1990 CLC 1174 and Munjri Khan and others vs. Faridoon and 5 others 1995 SCMR678. For the force-going reasons was see no merits in the petition, the same is dismissed leaving the parties to bear their own costs. (A.R.) Petition dismissed
PLJ 1997 Quetta 185 (DB) PLJ 1997 Quetta 185 (DB) Present: IFTIKHAR MUHAMMAD CHAUDHRY AND RAJA FAYYAZ AHMAD, JJ. PAKISTAN PAPERS ACK CORPORATION-Petitioner versus FEDERATION OF PAKISTAN etc.-Respondents C.P. No. 401/1996, dismissed on 8-5-1997. (i) Constitution of Pakistan , 1973-- -Art. 199 read with "Tax Adjustments Ordinance, 1996 and S. 18'of Customs' Act, 1969 S. 18-B-Insertion of-Challenge to-Whether levy of service charge can be considered as a custom duty or note-Question of-While interpreting a fiscal statute, court is not required to see form of law under examination, but its substance and will fix status of such law on looking its real nature, in order to determine that in which category i1 'will fall-Levy of service charges satisfied test of definition of 'custom duty' because it is being charged as pre-shipment. expenditures incurred by Government on goods benefit of which, is being derived by petitioners and before obtaining import documents as well as letter of credit, competent authorities have endprsed that import, of goods shall be subject to pre-shipment inspection Petitioners have accepted condition so imposed upon them--Law givers actually had provided a legal sanction to amount, which is to be recovered from petitioners by levying of service charges, equivalent to two percent ad valorem on all such goods, specified in first schedule to this Act, as are subject to pre-shipment inspection. [P. 192] B & C ii) Constitution of Pakistan , 1973-- -Art, 199 read with 'Tax Adjustment Ordinance, 1996 and S. 18 of Customs Act. 1969 S. 18-B--Insertion ofChallenge toThere is nothing in impugned section, which negates any provision of Constitution-Had Parliament been in session on 22nd October, 1996 when impugned section 18-B was inserted in Customs Act, it was also competent to enact law of same nature and consequence there, impugned Notification has been issued with lawful authorityThus impugned section is intra vir.cs Constitution and notification being legally issued cannot be struck down. < [P. 192JD (iii) Words and Phrases-- -"Custom duties"-r"Taxes on importation and exportation of commodities- Tariff or tax assessed upon merchandise imported from, or exported to a foreign country Black's Law Dictionary, Fifth Edition Page - 348-Petition dismissed. [P. 191] D Mr. Shah-c-Shah Hussain, Advocate for Petitioner Mr. M.S. Rakhshani D.A.G. for Respondents. Dates of hearing : 15-4-1997. 16-4-1997. judgment Iftikhar Muhammad Chaudhry, J.-By this Judgment, we intend to dispose of Constitutional Petitions 401 & 412 of 1996, as well as 12,28,24 & 88 of 1997, as in all these matters, vires of section 18 B of the Customs Act. As well as Notification dated 22nd October, 1996, have been challenged. Precisely-, the history of impugned section 18 B of the Customs Act, is that on 22nd October, 1996, vide an Ordinance called "Tax Adjustments Ordinance, 1996 (herein-after referred to as 'Ordinance of 1996') while amending Act IV of 1969, i.e. the Customs Act., after section 18A, impugned section 18 B was inserted. It would be appropriate to reproduce herein-below its text in extenso :- "IKB--Levy of service charge.~T\e Federal Government may, by Notification in the official Gazette, levy a service charge equivalent to two percent ad valorem on all such goods specified in the First Schedule to this Act as are subject to pre-shipment inspection; Provided that for the purpose of Sales Tax Act, 1990, such service charge shall not constitute a part of the value of supply. In pursuance of above amended provision, the Government, of Pakistan , Ministry of Finance and Economic Affairs, Islamabad issue a Notification of even date. For sake of convenience, its contents are also reproduced hereinbelow :- "S.R.O.
(D/96.In exercise of the powers conferred by section 18B of the Customs Act. 1969 (IV of 1969), the Federal Government is pleased to levy a service charge equivalent to two percent ad valorem on all such goods as are specified in the First Schedule to the said Act and are subject to inspection under the Inspection, Valuation and Assessment of Imported Goods Rules, 1994." In all the matters, petitioners are buyers of goods from outside Pakistan and while entering into Agreements with Sellers, clause pertaining to preshipment inspection/valuation to be carried out by Pre-shipment. Inspection Company (PSD was included. Said clause permits the Inspection Company before pre-shipment, to examine the quality, quantity, prices and origin of goods. A duty has been assigned to the Company to carry out, pre-shipment inspection in respect of items and thereafter to return the original copy of the seller's final invoice duly attested by means of affixing security label with relevant import reference and date of each attestation and confirming that the goods described in the invoice has been inspected. The attested invoice bearing security label alongwith original documents are required to b presented to the bank for negotiation of documents. This clause in the agreement was incorporated by the Buyers in pursuance of Rule-4 of the Inspection, Valuation and Assessment of Imported Goods Rules, 1994, whereby Importers have been bound down to perform certain functions before Import and Clearance of Goods from the Custom Control. The functions of the Importers have been enumerated in clause (a) to (i) of subrule (1) of Rxile-4. Similarly in Rule 5 of these Rules, it, is the responsibility of Licensing Authority, to whom an application has been submitted for issuance of Import License, to permit, order or import authorization in any form, to endorse on such import licence, permit, order or import, authorization that import of goods shall be subject to pre-shipment inspection and valuation. The Authority competent to issue import document, was also required to return the additional copy to the importer for submission to PSI-Company to form part of the inspection order. To further ensure that pre-shipment is carried out, qualify, quantity, price wise etc of the goods which are being imported into the country, under Rule-6, it, is the responsibility of the Authorised Dealers that eveiy letter of credit issued for the import of goods shall specify that the goods are subject to preshipment inspection by the PSI Company and the beneficiary's bank shall not make the payment to seller unless the original invoice issued by the seller is not attested by the PSI Company, confirming that, such inspection and service has been completed satisfactorily. Rule-7 had also indentified the responsibility of PSI Company, whereas in terms of rule-8, the Custom Department was not excluded from performance of its functions under the Customs Act and the Rules framed thereunder, in respect of all goods, specified in Annex I to Insertion Rules. However, in respect of goods, for which, the PSI Company has issued a Clean Report, of Findings (CRF), the Custom Department will adopt a simplified procedure in accepting the Bill of Entiy in respect of goods, subject to pre-shipment inspection only, if it is accompanied with the original CRF issued by the PSI Company alongwith other requisite documents, for registration, under section-79 of the Act and after having been satisfied with the Bill of Entiy is complete in all respect with the supporting documents and the Custom duty and other taxes have been worked out in accordance with the CRF issued by the PSI Company, the Bill of Entry shall be allocated the registration number with date and marked "Allowed Payment" and returned to designated authorized agent of the Importer under section appraisement system. In order to cany out the purposes of the Rules, areas of two Comnanies on peop r r«nhi»i] hasis specified. As for as the Company known by the name of Cotecna is concerned, its responsibility of inspection was in Europe, whereas another -x- Company S.G.S. had its sphere of function in Asia. It appears that to remunerate both these Companies, it was felt necessary to recovery charges from Importers. Therefore, the Federal Government decided to levy a tax on Importers, known by the name of levy of surcharge equivalent to two percent. ad valorem on all such goods specified in the First. Schedule to the Act, as are subject to pre-shiprnent inspection and as such, section 18-B was inserted in the Customs Act. 1969 and consequently in pursuance thereof, impugned Notification has been issued. It is very important to note that various provisions, discussed herein- ~ above of the Inspection, Valuation and Assessment of Imported Goods Rules, 1994, have not been questioned in instant petitions and it is nobody's case that the Import Licences have been issued to them, without endorsement of the competent Authority, that the goods being imported shall not, be subject to pre-shipment. as it has been provided in the scheme of Rules nor their banker's have issued letter of credit, to them for import of goods, without specifying that goods are subject to pre-shipment, inspection. With the above back-ground; it is the grievance of petitioners that, section 18 B inserted in Chapter V of the Customs Act, by means of Ordinance of 1996, deals with the levy of, exemption from and re-payment of custom duties, treating service charges as if it is customs duty. Whereas under Item 43 of the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, it does not fall within the definition of 'Duties of Customs'. Therefore, it was not within the legislative competence of the President of Pakistan to incorporate section 18-B in the Customs Act; because President, in absence of Parliament, under Article 89 of the Constitution, cannot legislate such laws, which are not within the jurisdiction of Parliament,. Since the Parliament itself was not competent to recover Service Charges as Customs Duty, therefore, to this extent, the provisions of Ordinance of 1996, are ultra vires to the Constitution of Islamic Republic of Pakistan as well as the Customs Act. Consequently, Notification issued in pursuance of impugned section 18-B of the Customs Act is nullity in law and is of no legal effect. If section 18-B of the Customs Act, as ell as Notification, are declared constitutionally non-existent, the respondents shall have no authority to recovery the service charges from petitioners. On the other hand, the case of official respondents including the Federal Government, is that petitioners have got their offices at Karachi whereas the Head Office of PSI Company i.e. Cotecna is also not situated within Province of Balochistan , therefore, this Court has not territorial jurisdiction to exercise jurisdiction under Article 199 of the Constitution.. The Sellers and Buyers have entered into Agreements, subject to Inspection, Valuation and Assessment of Imported Goods Rules, 1994, therefore, admittedly pre-shipment has been carried out, as such, they are bound to pay service charges at the rate of two percent ad valorem, being the expenditure incurred on pre-shipment inspection of the goods. Thus petitioners-Importers being the beneficiaries are bound to pay these charges and merely for any technical reasons, judiciary no exemption can be granted to them from making payment of service charges. It is also their case that infact two percent ad valorem service charges is a custom duty and merely on account of its name, as Service Charges, the provisions of section 18-B of the Customs act cannot be struck down, because it is intra vires the Constitutional and have been enacted with legislative competence, by the President of Pakistan. Mr. Shahenshah Hussain, Advocate appeared in support of Constitutional Petitions 401/96 & 88/97. Messers Zahid Alvi and Akhtar Ali Mehmood, Advocates, appeared on behalf of petitioners in Constitutional Petitions 412/96, 12/97, 23/97 & 24/97. Messrs M.S. Rukhshani, learned Deputy Attorney General and Raja Rail Nawaz, Advocate, represented to respondents in all the matters. There is no cavil with the proposition that under Article-89 of the Constitution, the President is empowered to promulgate Ordinance, when the National Assembly is not in session. It is also an uncontroverted constitutional position that the President can legislate such laws, which fall within the ambit of Federal Legislative list as well as Concurrent Legislative List, as per fourth Schedule, attached to the Constitution. Thus the question for examination would be; whether section 18 B of the Customs Act, has been enacted with legislative competence or not ? It may be noted that this section has been added in Chapter V of the Customs Act., which deals with levy of, exemption from and re-payment of customs duties. Therefore, it can also be termed as Customs Duties charging Chapter. Thus, it is to be seen; whether levy of service charge can be considered as a Custom duty, or not ? It is an admitted position that Item 43 of Federal Legislative List (Part-I) as well as the Customs Act. 1969, have not defined 'Duties of Customs', therefore, we. have to fall back on its dictionary meaning. According to Ballentine's Law Dictionary, Third Edition, Page-301, expression 'Customs duties', has been defined as under :- "Customs duties. The tariff payable on imported merchandise; the levy or tax applies by the government, on the importation of commodities into the country. 21 Am J2d Gust D 1. Not merely a duty on the act of importation, but a duty on the thing imported; not confined to a duty levied while the article is entering the country, hut extending to a duty levied after it has entered the country. Brown u. Maryland (US) 12 Wheat 419, 6 L Ed 678." In Black's Law Dictionary, Fifth Edition Page-348, the expression 'custom duties' has been defined as follows :- "Custom duties. Taxes on the importation and exportation of commodities. The Tariff or tax assessed upon merchandise imported from, or exported to a foreign country. Tax levied by federal government on goods shipped into U.S. though in other countries it may include export taxes as well. See also Customs." Since in above definition, reference to 'Customs' has also been made therefore, it is deemed proper to reproduce its meaning as well :- "Customs. This term is usually applied to those taxes which are payable upon goods and merchandise imported or exported. Pollock v. Trust Co. 158 U.S. 601 15 S. CT. 912, 39 L.Ed 1108. The duties, tool, tribute or tariff payable upon merchandise exported or imported. See also Customs duties; Custom-house; Custom Service." In Halsbury's Laws of England, Volume 12, Fourth Edition, para-501, Page- 65. 'Duties of Customs" or "Customs duties" means ; "Duties of customs, or customs duties, in the strict sense are pecuniary charges or tolls payable upon goods exported from, or imported into the country, as contrasted with excise duties which are payable upon goods produced arid consumed within the country." In Corpus Juris Secundum, Volumes 25 Page-140, "Customs duties" are Taxes on merchandize imported from or exported to a foreign country. Before proceeding ahead, we feel it necessary to observed that while interpreting a fiscal statute, Court is not required to see the form of law under examination, but its substance and will fix the statues of such law on _ looking its real nature, in order to determine that, in which category, it will % fall. At this stage, reference to the case of Soliuil Jute Mills Ltd and others vs Federation of Pakistan through Secretary Ministry of Finance and others (PLD 1991 SC 329), would be very beneficial, to answer the proposition. It may be noted that in this Judgment question for determination before Hon'ble Supreme Court was; whether levy of Iqra Surcharge on imported goods at the rate of five percent of the value of said goods, as determined under section 25 of the said Act. can be recovered. The Hon'ble Mr. Justice Shafiur Rehman, as then he was, on having been satisfied with the definition of 'Duties of Customs' opined that levy under examination satisfies in name and substance the strictist legal definition of 'Custom duty'. Similarly in instant case levy of service charge also satisfied the test of definition of j. 'Custom Duty', because it is being charged as pre-shipment expenditures incurred by the Government on the goods, benefit of which, is being derived by the petitioners and before obtaining import documents as well as letter of credit, competent authorities have endorsed that the import of goods shall be subject, to pre-shipment inspection. The petitioners have accepted the condition so imposed upon them, that's why, while entring into Agreement to sell with the sellers outside the Country, they got incorporated the clause of pre-shipment inspection. The law givers actually had provided a legal santion to the amount, which is to be recovered from petitioners by levying of service charges, equivalent to two percent ad valorem on all such goods, specified in First schedule to this Act, as are subject to lire-shipment inspection. There is nothing in impugned section, which negates any provision of the Constitution. Had the Parliament been in session on 22nd ^S October, 1996, when impugned section 18 B was inserted in Customs Act, it was also competent to enact the law of same nature and consequence thereof, impugned Notification has been issued with lawful authority. Thus the impugned section is intra vires the Constitution of Islamic Republic of Pakistan and notification being legally issued cannot be struck --- down. As for as the question of territorial jurisdiction of this Court is concerned, we are not persuaded with the argument putforth by learned counsel for respondents, because essentially, the goods have been brought in the territory of Balochistan Province at Gadani Beach and service charges are also being demanded from them in the Province, therefore, this Court has the jurisdiction to adjudicate upon the matter. For the foregoing reasons, we see no force in the petitions, which are accordingly dismissed, with costs. (K.A.B.) Petition dismissed.
PLJ 1997 Quetta 193 [DB] PLJ 1997 Quetta 193 [DB] Present: iftikhar muhammad chaudhry and raja fayyaz ahmad, JJ. M/s. OZONE INTERNATIONAL (PVT) LTD. KARACHI-Petitioner versus FEDERATION OF PAKISTAN and 2 others-Respondents C.P. No. 409/1996, dismissed on 8.5.1997. Customs Act, 1969 (IV of 1969)-- -S. 18(2) read with Art. 199 of Constitution of Pakistan, 1973 and Notification SRO 560(l)/96 dated 1.7.1996-Regulatory duty-Imposition of-Challenge to-Under the Scheme of S. 18(2) legislation has delegated its power to Federal Government to levy Regulatory duty, subject to such conditions limitation or restrictions, as it may deem fit to impose on all or any of goods specified in First Schedule-It is discretion of Federal Government to issue any notification, for purpose of levying tax being delegatees of law givers-Levy of Regulatory duty not only regulates price structure of items concerned, but it also generates additional funds for public purposes-To put constraint upon exercise of power contained in S. 18(2) 'of nature sought to be pressed into service by petitioner will not be in the interest of public-Petition dismissed. [Pp. 200, 201 & 202] A, B & C Mr. AkhtarAli Mejimood, Advocate for Petitioner. Mr. M.S. Rakhsani, D.A.G. and Raja Rab Nawaz, Advocate for Respondents. Dates of hearing: 15.4.97, 16.4.97, 21.4.97. JUDGMENT Iftikhar Muhammad Chaudhry, J.--Petitioners have invoked Constitutional jurisdiction of this Court, by filing Constitutional Petition Nos. 409. 410, 411, 428, 429 of 1996 and 11 of 1997, to challenge the Notification SRO-560(l)/96 dated 1st July, 1996, issued by the Federal Government in exercise- of powers conferred upon it by sub-section (2) of section 18 of the Customs, Act, 1969, whereby Regulatory duty has been levied, on goods or class of goods specified in column (2) of Table "A" at the rate specified in Column (3). As common question of law is involved in these matters, therefore, we have proposed to dispose of them, jointly. Before dilating upon respective contentions of parties, it is deemed appropriate to reproduce herein-below necessaiy details, from each petition, for sake of convenience. s. No. C.P. Number Name of Importer of ship Date of fil ing bill of Entiy. Date of filing petition. 1. 409/96 M/s Ozone International 30.09.96 22.12.96 (Pvt.) Limited. 2. 410/96 M/s Shaukat Hussain 30.09.96 22.12.96. and Co. 3. 411/96 M/s Metco Shipbreakers Bill of Entry (Pvt.) Limited. has not been filed. However Agreement between petitioner and 22.12.96 Seller EURO- ATLANTIC SHIPPINING CORPORATION was exercised on 24.10.96. 4. 428/96 M/S S.N. Enterprises.
24.09.96. 29.12.96 5. 429/96 Messrs Mordern Metallic 20.11.96. 29.12.96 Services. 6. 11/97 M/S Man Trading Bill of Entry Company. has not been filed. However, Agreement between petitioner 13.01.97 and Seller AL FATAH SHIPP- ING CO. INC. was executed on 28.9.1996.
It is noteworthy that rate of Import Duty for purpose of section 30 of the Customs Act, 1969, shall be the same, when Bill of Entry is submitted to determine value and rate- of duty. Therefore, on same .analogy, this date would be relevant to recover Regulatory duty, if it has already been levied by the Federal Government in exercise of powers under section 18(2) of the Customs Act, 1969. In this behalf, guidance can be taken from the dictum laid down by Hon'ble Supreme Court in the Judgment imported in 1993 SCMR17. As it has been observed in opening para of Judgment that SRO under challenge has been issued by Federal Government on 1st July, 1996, therefore, with reference to the date of submission of Bill of Entry by each petitioner or the date of agreement executed between Sellor and Buyer in cases where Bill of Entry has not been filed, it would be seen at latter stage, as to whether petitioners, who were not subscribers of Regulatory duty on the date of issuance of Notification, can challenge it subsequently, when they have imported ships with knowledge that all the duties, which have already been levied, are required to be paid by them. Importers/Buyers, in all the petitions, are aggrieved from levy of Regulatory duty on Scrap, because they have been called upon to pay duly, at the rate of 10% ad valorem, in terms of Item mentioned at Serial No. 5 of the Notification, at the time of submitting Bill of Entry by them. Mr. Akhtar Ali Mehmood, learned Advocate, appeared in all the matters alongwith Mr. Zahid Alvi, Advocate. Mr. M.S. Rukhsani, learned Deputy Attorney General, represented the Federation of Pakistan. Raja Rab Nawaz, Advocate, addressed the Court on behalf of Central Board of Revenue and others in Constitutional Petitions 409, 410 & 411 of 1996. As far as these veiy respondents in C.P. Nos. 428 and 429 of 1996, they were represented by Syed Ayaz Zahoor, Advocate. In C.P. No. 11/97, learned D.A.G. had also appeared for remaining respondents. It is to be observed that prior to impugned Notification, Regulatory duty was levied by Federal Government vide Notification No. 1050(l)/95 dated 29th October, 1995. This Notification came to an end on 30th January, 1996, as per force of section 18(4) of the Customs Act. Said Notification was also challenged by various Importers before this Court, by filing different Constitutional petitions through their Advocates, including learned Counsel for petitioners, in instant cases. Those petitions were dismissed by a Division Bench of this Court, headed by present Hon'ble Chief Justice, vide Judgment reported in 1997 C.L.C. 106. Mr. Akhtar Ali Mehmood, learned Counsel informed that aggrieved parties have challenged the judgment before Hon'ble Supreme Court, but so for leave to file Appeal, has not been granted to them, except chamber stay, concerning recovery of Regulatory duty. We enquired from learned Counsel for petitioners, whether they are raising identical points which were putforth, previously before this Court, because incidentally they were the Counsel in those matters as well. Their answer was in affirmative. However, they contended that since matter is subjudice before Hon'ble Supreme Court, therefore, this Bench is free to take different view on the questions, which have already been decided, on following the Judgment reported in PLD 1996 Lahore 718 (M/S Flying Board and Paper Products vs. Central Board of Revenue, Government of Pakistan. Islamabad and three others), wherein writ petition challenging the previous Notification SRO 1050(l)/95 dated 29th October, 1995, relating to imposition of Regulatory duty upon goods imported into Pakistan, has'been accepted. Alternatively, they suggested that a request may he sent to Hon'ble Chief Justice, for constituting a larger Bench. . We afraid, both the suggestions are not acceptable, because, it is a long standing practise that if a Division Bench has given a judgment on particular question of law, another Division Bench of same High Court, while hearing identical matter in exercise of jurisdiction under Article 199 of the Constitution, is bound to follow the earlier Judgment of Division Bench, unless, some new point is not agitated or more convincing arguments with support of fresh material including legal provisions etc. are not, advanced. As far as following judgment of another High Court on same question of law, is concerned, there is no prohibition, except with the 'condition that if the Judgment has more convincing reasons, based on such legal proposition, legal provisions, material, etc. which'was not before the Bench of other High Court, who had already decided identical matter. No doubt the Judgment of Hon'ble Supreme Court has binding effect on all High Courts and the Courts, subordinate to it, in terms of Article 189 of the Constitution, provided the Apex Court had declared a law or had pronunciated a principle of law. But, as far as order for leave to file Appeal is concerned, with utmost respect, will not have same force, which is attached to a final Judgment of Hon'ble Supreme Court. Incidentally so for no order of leave to file Appeal, has been granted by Hon'ble Supreme Court, against the Judgment of this Court, referred to hereinabove, as it has been pointed out by Mr. Akhtar Ali Mehmood, Advocate, therefore, mere submission of a petition before Hon'ble Supreme Court, proof where of too has also not been provided to us, it is not free from difficulty to hold that since the matter is subjudice before the Hon'ble Supreme Court, therefore, this Division Bench can take a different view, that what has been discussed by another Division Bench of this Court. Anyway, we would entertain the. contentions of petitioners' counsel, subject to the observations made hereinabove, while discussing binding effect of the Judgment of Division Bench on the other Division Bench of same High Court. Learned Counsel for petitioner's first of all contended that no Regulatory duty was recoverable, during subsistence of exemption to duty vide impugned Notification, as Regulatory duty was another form of custom duty. This argument has been dealt with in the judgment of this Court (Messrs S.N. Enterprises and others vs. Government of Pakistan through Ministry of Finance, Islamabad and others). Relevant observations therefrom, are reproduced hereinbelow :- 'Another important reason for disagreeing with the argument of counsel for petitioners is that it could not-have been the intention of the Legislature to circumvent the power of Federal Government to impose regulatory duty if a part of the custom duty has been exempted under section 19 of the Customs Act. In other words the argument that exemption covers customs duty imposed hoth under section 18(1) and section 18(2) is not convincing because this exemption is subject to such limitations, restrictions and conditions etc. as imposed by the Federal Government." Learned counsel next argued that in view of the law discussed in PLD 1988 SC 670 (Messrs Sheikh Abdul Rahim Allah Ditta vs. Federation of Pakistan and others), Regulatory duty was a mechanism for creating a balance in local Market as a consequence of downward fluctuation in International Market. Therefore, in absence of such condition, which warrants levy of Regulatory duty, automatically and without- any justification, it cannot be imposed. It is to be seen that argument putforth by learned counsel has no force, in view of the observations made by this Court in earlier Judgment, reported in 1997 CLC 107. Relevant para from the Judgment is reproduced hereinbelow:- . "Adverting now to the second argument that regulatory duty being a mechanism through which a balance is sought to be created in the local prices consequent to a downward fluctuation in the seller market, as observed by Supreme Court in PLD 1988 SC 670, the counsel argued that there should be enexus of regulatory duty with the main object as determined by the Hon'ble Supreme Court. The object according to the counsel was that regulatory duty is imposed to share extra benefits to be earned by an importer if the prices of the goods in the international market fall down thus providing Government an opportunity to share the benefits of the importer on account of all in the prices of the goods in the international market. The counsel vehemently urged that the petitioner is entitled to challenge an S.R.O. imposing regulatory duty if it can be proved before the Court that the imposition of regulatory duty has no nexus with the object. Reliance has been placed on PLD 1993 SC 210. We have perused the citation and observations made by Hon'ble Supreme Court. This fact was a case under Sindh Rent Premises Ordinance and on page 228 of the judgment (supra) following observations were made:- "The Regulations have no rational nexus with the objects referred to in sections 6 and 7 and the above clauses (b) and (e) of subsection (2) off section 21-A of the Ordinance. As observed hereinabove in the present case. First Rent Appeals against the order of ejectment granted by the Rent Controller on the ground of reconstruction, are still pending for adjudication in the High Court of Sindh, and therefore, respondent No. 1 is seeking ejectment of the tenant through the process of the Court in terms of the provisions of the Ordinance and/or of the S.R.P.O. and not with the aid of the Authority under section 14 of the Ordinance and therefore, the ejectment of the tenants, if any. will take place through the process of the Court and not through the exei-cise of statutory power vested in the Authority under section 14 of the Ordinance, and hence the Regulations purporting to impose a condition upon a landlord/owner of a building which is to be between him and a tenant for alternate accommodation or for the payment of compensation is foreign to the object and scope of the relevant provisions of the Ordinance. The conclusion arrived at by the High Court that the Regulations are ultra vires on that account, seems to be correct." There is no cavil to the abovementioned proposition but the fact remains that question of calculating the fluctuations in the price in international market with domestic market are all economic and fiscal questions which cannot be conveniently determined in writ jurisdiction." It has been also argued on behalf of petitioners that the Authority competent to levy Regulatory duty had not examined, justly and judiciously, the necessity of imposing it, therefore, it should be struck down, on ground of unreasonableness. To supplement this contention, learned counsel, further argued that authority under section 18(2) of the Customs Act to impose Regulatory duty, is not absolute and it has been conferred for a particular object. Therefore, in absence of nexus with the specified object, it will not be sustainable. It is important to disclose that during hearing of matter, Civil Misc. Applications were filed in all the petitions, on behalf of petitioners, seeking directions to Federal Government to produce all relevant official record, examined and taken into consideration for exercising power§ under section 18(2) of the Customs Act which culminated in issuance of impugned Notification. Those applications were contested by respondents and same were rejected on 20th March, 1997, holding that while exercising writ jurisdiction, normally an exercise to probe into the matter on factual side is not undertaken, because if the official record is summoned for purpose of examination, it would tantamount to conducting of fulfledged enquiry, essentially which is not within the domain of this Ccurt. Therefore, in view of rejection of applications, justification available to concerned Authority to impose Regulatory duty, cannot be examined. Even otherwise, both these contentions, have already been dealt with in the case of N.S. Enterprises. Relevant para for convenience is reproduced hereinbelow :- "From plain reading of this word it becomes clear that unreasonable means immoderate, or exorbitant capricious or arbitrary. Once it is held that the Federal Government has been delegated the powers by the Legislature to impose regulatory duty, its imposition within purview of section 18(2) of the Act cannot be held as unreasonable because no action can be said to be unreasonable if taken within four corners of law. We, therefore, have to see the scope of unreasonableness within the purview of delegated powers of imposing regulatory duty. According to subsection (2) of section 18 of Customs Act the Government has been empowered to levy a 4 regulatory duty on all or any of the goods specified in 1st Schedule at a rate not exceeding 100% of the value of such goods. But in the instant case regulatory duty to the extent of only 10% has been imposed which is neither exorbitant nor immoderate. It seems that the Government had taken into consideration the circumstances as narrated by the petitioner's counsel and, therefore, though Government could impose regulatory duty extending to 100% of the value of such goods but taking into consideration the peculiar circumstances it was decided to impose regulatory duty at the rate of only 10% of value. The action of the Government, therefore, in our view cannot be held to be unreasonable." Thus in our opinion, learned counsel has failed to convince, us, that contentions raised by him, require further consideration on basis of any other new material or legal proposition, which either was not considered while disposing of the case of N.S. Enterprises and others, or the circumstances have changed on basis of new discovery of any provision of law etc. Therefore, we are inclined to hold that arguments put forth by. learned counsel for petitioners, deserve rejection, in view of earlier Judgment of this Court, relevant paras wherefrom have been reproduced herein-above, and further no new situation exist, which may warrant for requesting the Hon'ble Chief Justice to constitute a larger Bench, therefore, this request as well, is turned down. Learned Counsel finally contended that impugned Notification, being advice to roll over Regulatory duty, chargeable by SRO 1050 (1)95 dated 29th October, 1995, even after expiiy of financial year, 1995-96, is manifested to defeat and circumvent provisions of section 18(4) of the Customs Act, 1969, therefore., tentamounts to committing fraud on the Statute. Thus the Notification deserves to be struck down. Reliance in this behalf was placed on PLD 1988 SC 670 (Messrs Abdul Rahim Allah Ditto, vs. Federation of Pakistan and others) and PLD 1994 SC 363 (The. Collector of Customs, Karachi and others vs. New Electronics (Pvt) Limited and 59 others). c Raja Rah Nawaz, learned Counsel, argued that Federal Government is empowered to levy Regulatory duty and whe'n petitioners obtained Import Licences for import of ships for scrapping, they did not obtain any undertaking from, concerned Authority to the effect that if in the meanwhile Regulatory duty is imposed they would not be paying it nor before filing Bills of Entry, they submitted any Representation to Customs Department, for not levying Regulatory duty. In as much as, they filed Bills of Entry, after more than a period of two months from the issuance of impugned Notification, having full knowledge that all duties, taxes etc. they shall be liable to pay, therefore, petitioners are debarred from challenging the impugned Notification on imputation that fraud has been committed on Statute. He placed reliance on PLD 1991 SC 884 (Messrs Qaisar Brothers (Pvt.) Limited vs. Government of Pakistan and others). Messrs M.S. Rukhshani, learned Deputy Attorney General and Syed Ayaz Zahoor, Advocate, contended that under section 18(4) of the Customs Act, 1969, the Federal Government has not been debarred from issuing fresh Notification of levying Regulatory duty, if it had not earlier rescinded or stand rescinded on the expiry of Financial year, in which, it has been issued. According to them, Law givers have conferred this authority on the Federal Government, which is competent to exercise it, keeping in view the prevailing circumstances, because such duty is imposed to maintain a proper balance in a fluctuating market, as a result of sharp fall of international prices, as it has been held by Hon'ble Supreme Court in the case of Messrs Abdul Rahim Allah Ditta. We have examined respective contentions of paities' counsel. Under he Scheme of section 18(2) of the Customs Act. Legislation has delegated its power to Federal Government to levy Regulatory duty, subject to such conditions, limitation or restrictions, as it may deem fit to impose on all or any of the goods, specified in the first schedule. The object of delegation of powers has been explored in depth by Hon'ble Supreme Court in the case of Messrs Abdul Rahim Allah Ditta. In this Judgment, SRO No. 990(l)/75 whereby Federal Government had levied Regulatory duty on all items of Iron and steel scrap for re-rolling under the respective heads off Chapter 73 of the First Schedule, was questioned. Relevant para from the Judgment with benefit is reproduced herein-below:- "The levy was described as Regulatory duty" as it was imposed to maintain a proper a balance in a fluctuating market as a result of sharp fall in the international prices of iron and steel scrap and certain other iron and steel items with the result that the importers imported these materials at a much lower cost but regardless of it the prices did not fall to any substantial extent in the domestic market, and it were the importers only who were the beneficiaries and were earning windfall profits. Therefore, the discretion to levy "regulatory duty" was a device to enhance the rate of duty at any time during the course of the year so as to achieve a balance. The Legislature, in the circumstances could not know as to the details of the fluctuating international prices from time to time during the course of the year and for that matter could not also be in a position to enhance the levy to obtain a balance of the prices in the domestic market nor was it in a position to speculate the details of the conditions, limitations or restrictions which were necessary to be imposed for the levy of "regulatory duty". It was in these circumstances that, it provided the framework for the levy of "regulatory duty". It was in these circumstances that it provided the framework for the levy of "regulatory duty" to be imposed and gave the discretion to the Federal Government to make a levy so as to achieve a balance in the price in the local market. In this view of the matte;-, what has to be seen is the nature of the power delegated which determines whether the delegation is proper of invalid, if the Legislature delegates its power to make the law, that is, its own legislative function then it would be invalid but if what is delegated is the authority to exercise the discretion in respect of matters which had been finally determined by the Legislature itself, the delegated authority does not exercise a legislative function. In this context, the law itself provided the framework and left, it to the manner laid down within the framework, it cannot, therefore, be regarded as an abdication of its function by the Legislature but by law a valid delegation of a discretion to achieve the purpose of the law." The above guideline persuade us to hold that it is the discretion of Federal Government to issue any Notification, for purpose of levying the tax being delegatees of the Law givers. It has been argued by Mr. Akhtar Ali Mehmood, Advocate, that on 30th June. 1996, Finance Act, 1996, was passed by the Parliament and if there were circumstances, on basis of which, it was deemed to impose Regulatory duty at the rate of 10% ad valorem then instead of issuing impugned Notification on following day, this duty could have been included in custom duty, in terms of Section 18(1) of the Customs Act. Thus instead of charging 10% ad valorem as a custom duty, with malafide intentions a confiscatory duty has been imposed on following day i.e. 1st July, 1996, after passing of Finance Act, to unjustifiably burden the Importers. We are not inclined to agree with the learned counsel for simple reason that had 10% ad valorem been included in Custom duty under section 18(1) of the Customs Act. While passing the Finance Act, it would have imposed permanently for all times to come, unless it has not withdrawn by the Parliament itself and in that case the Importers instead of being the beneficiaries, may have been on the looser side, because the authority has 'been delegated to the Federal Government to create a balance in local market, as a consequence of downward fluctuation in International market, as it has been held by Hon'ble Supreme Court in the case of Sheikh Abdul Rahim Allah Ditta and no sooner downward trend of fluctuation in International Market would come .to amend, the Federal Government, instead of burdening the Importers, can rescind the Notification at any time and if it had not done so for any reason, on the end of financial year, it would automatically stand rescinded. Therefore, no restriction can be placed upon the delegated powers of Government for issuing such Notification, immediately after passing of Finance Act. At this stage, reference to the case -= of Messrs Qaisar Brothers (Pvt.) Limited, would also be relevant, wherein the Hon'ble Supreme Court has held that 'levey of Regulatory duty not only regulates the price structure of the items concerned, but it also generates additional funds for the public purposes. To put constraint upon- the exercise of power contained in subsection (2) of section 18 of the act of nature sought to be pressed into service by petitioner will not be in the interest of the public.' As we have not noticed any fraud on the Statute by the Federal Government in issuing impugned SOR dated 1st July, 1996, therefore, we are not inclined to agree with the contention 'of learned counsel for petitioners. As far as judgment cited by them, reported in PLD 1994 SC 363, is concerned, with utmost respect it is not applicable on the facts of instant case. Before parting with the judgment, we would like to note that while concluding arguments, Mr. Akhtar Ali Mehmood, Advocate, requested that if his all contentions fails and petitions are dismissed, then in that case, some time may be given to petitioners, so they may approach the Hon'ble Supreme Court and in the meanwhile respondents be restrained from taking coercive steps against them for the recovery of Regulatory duty. We have been informed that while admitting petitions, interim relief was obtained by petitioners, concerning non-payment of duty, subject to furnishing indemnity bonds, bank guarantees etc. but in most of the cases, despite of stay orders, petitioners did not file bank guarantees, in such view of the matter, we are of the opinion that it would not be proper and in' the interest of justice to suspend the operation of instant Judgment, as such, the request so made in this behalf, is declined. For the above discussion, we see no force in all the petitions, which are dismissed with costs. (K.A.B.) Petition dismissed.
PLJ 1997 Quetta 203 [DB] PLJ 1997 Quetta 203 [DB] Present: IFTIKHAR MUHAMMAD CHAUDHARY AND MUHAMMAD NAWAZ, JJ. Qazi DOST MUHAMMAD-Appellant Versus Malik DOST MUHAMMAD and others-Respondents R.S.A. No. 2 of 1995, decided on 14.10.1996. (i) Damages-- Damages-Special and general damages-Rule of Thumb-It is a settled principle of law that in respect of special damages it is duty of an aggrieved person to prove each item of loss, on the basis of evidence and as for as general damages are concerned, relating' to mental torture, defamation etc. those are to be measured, following the "Rule of Thumb", according to which discretion rests with court to calculate such compensation, keeping in view the attending circumstances of case. [P. 210] A (ii) Damages- -Damages-Destmction of plaintiffs house by defendant by wrongful act- Damages-Claim of-Municipal Engineer's certificate relating to actual amount spent on construction of house was not challenged or contradicted by defendants-Plaintiff although produced other witnesses to prove valuation of house in excess of what was determined :by Municipal Engineer, yet he was entitled to receive actual amount which he had spent on construction of house in terms of Municipal Engineer's assessment-In addition thereto, specified amount spent for installing connection off Sui-gas having not been challenged was added to cost of construction-Fruit trees planted in premises of house were also destroyed by wrongful act of defendants; value thereof, as assessed by plaintiff remained unchallenged-Such amount was also included towards damages. . [P. 211] B&C (iii) Damages-- -Damages-Loss and inconvenience suffered by plaintiff and his family due to destruction of house by wrongful act of defendant-Inconvenience caused to defendants could be considered while assessing general damages. [P. 211] D (iv) Damages-- Damages-Forcible eviction and destruction of house by wrongful act- Defendants had already instituted suit for possession which was pending adjudication in competent Court of law, but instead of waiting for its result, they selected to adopt forcible mode of pos ession and destruction of house-Defendants on account of their such acts jointly and severally were responsible to make payment of specified amount towards general damages to plaintiff as claimed by him-Defendants were thus liable to pay damages to plaintiff for their wrongful acts as also costs in suit throughout. [P. 212] E & F S.A.M. Quadir, Advocate for Appellant. Ch. Muhammad Rafique, Advocate for Respondent No. 1. H. Shakeel Ahmed, Advocate for Respondents Nos. 2, 4 and 5. Date of hearing: 1.10.1996. judgment Iftikhar Muhammad Chaudhry, J.--Precisely the facts of the case are that on 14th March, 1979, appellant Qazi Dost Muhammad filed suit against respondents, for compensation in the sum of rupees three lacs, including, special and general damages. Break-up whereof, is reproduced hereinbelow from the plaint:- "Special damages: (1) Market value of house demolished. Rs. 1,21,00/- (2) Breaking and loss of household articles. Rs. 3,000/- (3) Loss of Fruit Frees. , Rs. 11,000/- (4) Loss of accommodation and inconvenience thereof Rs. 15,000/- Total: Rs. 1,50,000/- General Damages: 1. Mental Wl;ries and lowering of status (defamation and disgrace) Rs. 1,50,000/- Grand Total: Rs. 3,00,000/- It was the case of appellant that he was in possession of a house constructed on land measuring 6,200 Sq. Ft. in Khasra Nos. 8134/2561 situated at Hari Kishan Road, Quetta since 1957, he was forcibly dispossessed from it by the then Superintendent of Police, Malik Dost Muhammad on 30th March, 1978, during night hours at the instance of respondents 2 to 5, out of whom, some were the representative of Jamat-e- Islami, Balochistan, where Respondent Fazal-e-Haq Mir, was Principal, Tamir-e-Nau Public School, Archer Road, Quetta. the Superintendent of Police, before taking over the possession, arrested him and thereafter brought good number of Policemen in official trucks and entered inside the house on breaking open the main gate of house compelling women-folk to leave the house bare footed without veils and then they were loaded in at ruck and left near Liaquat Bagh, from where, appellant managed to shift his family to "Dilkhusha" Hotel to spent, night. The superstructure of the house was pull down by the Police contingent acting under the command of respondent No. 1 and the house hold articles were badly damaged, by mis handling them during process of shifting to Municipal hall situated under Toba Mosque Masjid Road, Quetta. It was also contended by petitioner that he is a respectible citizen of Pakistan and also religious, Scholar, Qari of Holly Qur'an, Khateeb of the MosqUe as well a$ Homeopathic Doctor. Due to the torturious and dis-graceful acts he suffered mental worries, defamation, besides sustaining special loss on account of demolishing of his house hold articles etc. The respondent No. 1 contested the suit admitting that on 30th March. 1978, at about 1815 hours, he was summoned with A.S.P. and Additional SHO Police Station, City, Quetta, at the Headquarter Martial Law. Sector No. 1, Quetta and was ordered to maintain law and order situation at the time of eviction of the p]|£ belonging to Tameer-e-Nau Public High School, which shall be taken over by the Administrator, Municipality, Quetta, Syed Muhammad Hussain Shah from possession of plaintiff as was desired/ordered by the Supreme Court of Pakistan in a decree. So in compliance of such orders, he remained present at the spot to maintain law and order situation. Remaining contents of the plaint however, were denied by him. He also admitted that the house hold articles were collected by Tajamul Hussain Shah, S.I. Police Station, City Quetta, in presence of independent witnesses Abdul Samad son of Noor Muhammad, caste Khili and Mehmood Ahmed Sabri son of Ghulam Mehboob, caste Urakzai, under the orders of Administrator, Quetta Municipality Syed Muhammad Hussain Shah, through Seizure Memo prepared on the Spot at the relevant time. The damages sustained by appellant, as alleged in the plaint to the tune of rupees three lacs were not accepted and prayer was made that suit be dismissed. Similarly respondents No. 2 and 5 denied the claim of appellant contending that appellant was the Tress-passer and his presence on the plot was altogether unlawful, unwarranted etc. They also denied their participation in any unlawful activity for the dispossession of appellant. Learned trial court framed as many as 19 issues, arising out of the pleading of parties. Appellants to substantiate his case led the evidence of following witnesses:- PW-1 Malik Karim Bakhsh, Architect. He produced Certificate Ex. P/l dated 20th July, 1975. Contents whereof reveals that at the relevant time, the cost of superstructure raised by appellant on the plot was worked out to be Rs. 49,475/-. PW-2 Mir Jan. PW-3 Arshad Rashid. He being representative of Education Department, produced documents Ex. P/2, P/8-2 and P/8-2A, from file of Education Department to prove that the plot was sold to appellant by Education Department at the rate of Rs. 5/- p.s.f. PW-4 Muhammad Azam. PW-5 Dr. Habibur Rehman. PW-6 Abdul Rashid. PW-7 Javed Ayub, owner of Dilkhusha Hotel. He produced documents Ex. P/9-A, to show that appellant with his : family stayed as a Guest in Dilkhusha Hotel and made payment of rent etc. to the Management. PW-8 Muhammad Sharif. In his presence, Ex. P/12 i.e. 288 house hold articles, belonging to appellant were delivered to him^jy Inspector, Ayaz. PW-9 Najibullah Jaffar. He being son of appellant appeared as his Attorney and gave detailed statement in support of the contents of plaint. It appears that respondent No. 1, Malik Dost Muhammad during ;rial was proceeded cxparte because no evidence "was led on his behalf nor he got recorded his own statement, whereas other respondents produced following witnesses:- DW-1 Muhammad Ibrahim, who for want of document in file pertaining to Board of Revenue could not be examined. DW-2 Abdul Samad. (This fellow also stood witness to the recovery memo of house hold articles belonging to appellant, which were taken into possession by police on the night of incident). He was school teacher in Tameere-Nau Public High School at the relevant time.- He admitted that after dismissal of case of appellant by Hon'ble Supreme Court, the possession of the plot was go delivered to Tameer-e-Nau Public School by Deputy Martial Law Administrator, Akhan Gul Tahir. However, he did not produce any such document in support of his version. DW-3 Hayat Muhammad. He admitted that possession of plot was taken from appellant through Martial Law Administrator, in presence of the Magistrate, and Chief Officer, Municipality. He did not produce any document of Martial Law Authorities. DW-4 Muhammad Ibrahim, representative of the Board of Revenue produced Ex. D/l and D/2 i.e. Provisional Transfer Order and Provisional Transfer Deed of Deputy Settlement Commissioner. According to which appellant had raised construction was transferred in favour of Secretary, Tameer-e-Nau Public School in 1962, vide Provisional Transfer Order which was followed by Permanent Transfer Deed dated 16th November, 1971. DW-5 Fazal-e-Haq Mir (Respondent No. 4) appeared for himself as well as for remaining respondents, except Chaudhry Muhammad Hussain. He admitted about taking over the possession of house from appellant, but his stand was that police is responsible for taking over the possession. On completion of evidence, learned Trial Judge, decreed the suit vide order dated 14th December, 1992. However, this Court in Appeal No. 35/90, remanded the case without directions tjpjg|rial court to allow full opportunity to the parties of leading evidence and thereafter to dispose of the matter afresh on it sown merits, keeping in view the provisions of Order 20 rule 5 CPC. On remand of case, trial court, proceeded with the matter and again decreed the suit, on 30th December, 1993. The respondent, challenged the said order and decree before the District Judge, by filling an appeal, which was disposed of by Additional District Judge vide, order/decree dated 30th August, 1995, where by on setting aside the order impugned therein, the suit of appellant was dismissed being incompetent on account of non-joinder of necessaiy parties. As such, instant appeal has been filed on 20th November, 1995, by plaintiff-appellant. Mr. S.A.M. Quadri, Advocate appeared on behalf of appellant, whereas Messrs Shakeel Ahmed and Chaudhry Rafique Ahmed, Advocates appeared for Respondents. No. 1 and 2 to 5 respectively, except respondent No. 3. At the commencement of hearing, it was pointed out to parties' counsel that either they should confine their arguments to the extent of appellate order, by means of which appellant has been non-suited on technical points, instead of deciding the matter on merits or they may agree for the disposal of appeal on merits, by this Court because if the appellate order/decree does not sustain then case will be remanded for fresh disposal of appeal, keeping in view the fact that matter is lingering on from 1979. All the learned counsel for parties, consented to decide the appeal on merits. As issue No. 16 to 19, are relevant to decide the matter, therefore, same are reproduced herein-below:- "Issucs: 16. Whether the plaintiff suffered special and general damages to the extent of Rs. 3,00,000/- as alleged in para 11 of the laint? 17. Whether the defendants are liable to pay damages to the plaintiff secevally and jointly? OPP '( 18. Whether the reliefs claimed cannot be sought jointly? 19. Relief?" Mr. S.A.M. Quadri, Advocate on behalf of appellant contended that over-whelming evidence has been produced to substantiate that on account of illegal action of the respondent to take over the possession of the plot from appellant, decree as prayed for is liable to be awarded. In this behalf he referred to the order of trial court dated 30th December, 1993, and various other documents to support his contention. On the other hand, learned counsel for respondent No. 1 contended that no illegal action was taken against the appellant, because the police was ordered by the Martial Law authorities to remain present at the disputed plot to maintain law and order. Eveir otherwise directions issued by Martial Law Authorities cannot be challenged nor without joining the concerned officer of the office of D.M.L.A., relief as has been claimed can be awarded. Learned counsel for respondents No. 2, 4 and 5 contended that appellant has miserably failed to prove his entitlement to claim damages in the sum of Rs. 3,00,000/- because no torturious act has been attributed to them nor any of them participated in dispossession of appellant. The respondent No. 1 being Police Officer, acted under the directions of Martial Law Authorities to take over the possession of plot from appellant and during process thereof, no defamation as defined in various Dictionaries as well as under section 499 PPC, has been caused to him to claim special damages. The respondents have nothing to do with alleged illegal action, on the basis of which, appellant has been dispossessed from^he plot. Learned counsel contended that even to prove special damages, contradictory evidence has been produced. As far as respondent No. 3, Chaudhry. Muhammad Hussain, is concerned, exparte order was passed against him on 6th June, 1996, as after service no one appeared to represent him. We have heard parties counsel and have also gone through evidence, produced by both the parties before, trial court. It may be seen that admittedly plot entering into Khasra No. 8134/2561 measuring 14,000 Sq. Ft. situated at Harry Kishan Road, Quetta, was allotted to Tameer-e-Nau Public School, being Evacuee property, as back as on 7th July, 1962 vide. Ex. D/l, which was followed by a Permanent Transfer Deed on 16th November, 1971. It is also an undisputed fact that out of the total plot, an area of 6200 Sq. Ft. was occupied by appellant, on which he constructed a boundary wall alongwith residential accommodation. In this behalf statement of DW-2 Abdul Samad Khilji, can be referred. As far as appellant Qazi Dost Muhammad is concerned his contention is that he occupied the plot since 1957, whereas contested respondents' contention is that appellant forcibly took over the possession of the property, subsequently whereon he raised construction. It is also important to note that appellant approached the settlement authorities seeking cancellation of the Permanent Transfer Deed from name of Tameere-Nau Public School, and succeeded in obtaining an order in his favour on 14th December, 1972, for the transfer of plot. Administration of Tameer-e- Nau Public School , challenged the said order before Erstwhile Sindh and Balochistan High Court in Writ Petition No. 32/1973 which was allowed on 26th June, 1974. Thereafter appellant also filed a Petition for Special Leave to Appeal before Hon'ble Supreme Court, which was dismissed on 17th December, 1975, Tameer-e-Nau Public School through its Secretary filed a suit for possession and mandatory injunction against appellant in the Civil Court. It has also come on record through evidence of DW-3 Arshad Rashid that during pendency of the suit Education Department, who had taken over the management of the School, after itsJpjng Nationalized, agreed to dispose of plot to appellant at the rate of Rs. 5/- p.s.f. vide Ex. P/4 where in directions were also made to withdraw the suit filed for his ejectment. In pursuance of said directions appellate and vide challan Ex. P/8-2, an amount of Rs. 31,000/- had also deposited in favour of Director, Education, Balochistan, hut before mutating the plot on name of appellant in the revenue record, he was dis-possessed on 30th March, 1978. Subsequently said suit was withdrawn in the month of May, 1978. Appellant Qazi Dost Muhammad also filed a suit for specific performance, mandatory injunction, possession and in alternate damages, against Government of Balochistan-through Chief Secretary, Education, Tameer-e-Milat (registered) Society, through its Secretary and four others including respondent Fazal-e-Haq Mir, Principal Tameer-e-Nau Public School and Muhammad Siddique. The suit was finally dismissed on 17th December, 1988. During pendency of that, suit appellant filed suit for damages which has given rise to present proceedings. Mr. Shakeel Ahmed, learned counsel, contended that earlier suit filed by appellant for specific performance was dismissed, therefore, present suit was not competent and in this behalf while filing written statement, respondents raised an objection and later on an application was also filed for framing issue in this behalf. But perusal of the written statement as well as record, no such objection was raised, nor nay application was found available on record, therefore, decision of suit for specific performance etc. will have no bearing on present proceeding. These facts make its abundantly clear that appellant was in possession of a piece of land, on which he had raised construction alongwith boundary wall and respondents 2 to 5 without waiting for the result of suit filed by Tameer-e-Nau Public School, through its Secretary, adopted an un recognized way to take over the possession of the plot. Now the question would be that to what extent liability can be fixed upon respondents in respect of the damages caused to appellant during the process of dispossessing him forcibly from the premises. Before proceeding ahead, it may be seen that respondent No. 1 did not adduce evidence to prove contention raised by him in written statement nor through their Attorney i.e. Fazal-e-Haq Mir, had brought on record a i single document to indicate that the then Martial Law Administrator, directed the S.P. for taking over the possession of the plot through Police Agency, headed by respondent No. 1 for handing over the same to respondents No. 2 to 5. Statement got recorded by the Attorney of Respondents No. 2 to 5 makes it clear that it was the police who had take action. So when there is admission with regard to entering in the house built by appellant on the plot, thereby demolishing the superstructure and also removing house hold articles of appellant, details whereof have been brought on record through PW-Muhammad Sharif vide Ex. P/12 and unchallenged statements of Mir Jan son of Allah Dad, Muhammad Azam, Dr. Habibur Rehman and Abdul Rashid as weUas that of Attorney Jajib Jaffar, that all respondents physically participateoHn process of forcibly taking over the possession of plot, during course whereof, female members of appellant's family where compelled to leave the house bare footed without veils, and they were made to sit in a truck and they were taken to Liaquat Park where they were left to spent night, there is no necessacity to enter into detailed discussion concerning the individual act of each respondent, but the question arises whether agency suffered by appellant on such illegal acts, can be measured in terms of money and decree as prayed for by him for damages by way of compensation can be granted. It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. those are to be measured, following the "Rule of Thumb", according to which discretion rests with the court to calculate such compensation, keeping in view the attending circumstances of the case. As far as special damages are concerned, appellant claimed market value of the house to the tune of Rs. 1,21, OOO/-. Such assertion has also been made by his Attorney in his statement, but as far as evidence brought on record is concerned, it does not support to the extent of the amount claimed by him. In this context appellant led evidence of PW-1 Muhammad Karim Bakhsh, Architect and PW-4 Naseem Quadri, Municipal Engineer. Former witness had produced Certificate Ex. P/l, dated 20th July, 1975. according to which he worked out the valuation at the tune of Rs. 44,475/- at the rate of Rs. 25/- p.s.f. whereas the latter witness had produced Certificate Ex. P/9, which reveals that according to his assessment, in the year. 1978 Rs. 65/- p.s.f. was the cost of construction of Type "VII" house. It may be noted that validity of both the certificates has not been challenged by respondents during cross examination of witnesses or producing evidence, contrary to the contents of both the Certificates. Since PW-1 had actually assessed, the value of the demolished house, which was constructed by appellant in 1975, therefore, his evidence would preferably be acceptable comparing to the evidence of PW-4, who being an Engineer had assessed the cost of construction of Type-VII House, in the year, 1978, without specifying whether appellant had constructed the said house at the cost of Rs. 65/- p.s.f. in 1975 and before issuing the Certificate, he himself had visited the site or not. Because here an opinion would not be sufficient to make appellant entitled for cost, which has been mentioned by this witness in Certificate. Therefore, in such circumstances, appellant is held entitled to receive the actual amount which he spent op construction i.e. Rs. 44,478/- and not the one which was prevailing in the year, 1978. In addition to it Attorney had stated that besides raising construction, Rs. 5,000/- vide Mark P/l to P/3 were also spent for installing connection of Sui-Gas and his this statement has also not been challenged therefore, it can also be added towards the cost of construction. The next item under the head of special damages is Rs. 3,000/- towards breakage and loss of house hold articles. But neither appellant's attorney nor his witnesses have given evffience in this behalf. Similarly with regard to Fruit trees appellant's attorney claimed its valuation to the tune of Rs. 11,000/- and his this statement has gone unchallenged therefore, damage under this head is acceptable. As far as other item i.e. loss of accommodation and inconvenience is concerned, except the receipts Ex. P/9 and P/10, of Dilkhusha Hotel, produced by PW-Javed Ayub, no evidence has come on record. According to Ex. P/10, appellant paid Rs. 20/- to the hotel owner for staying a night with his family. As far as inconvenience is concerned, this item can be considered while assessing the general damages. Thus in view of evidence on record. It is held that appellant instead of Rs. 1,50,000/- towards special damages is entitled to the extent of Rs. 60,498/- to claim of respondents severally and jointly. Now turning towards the special damages, it is to be seen that as far as illegal act of respondents to dispossess appellant from the house during night hours in process whereof, his women folk were compelled to leave the house bare footed and without purdah, because heavy contingent of the police had entered in their house is concerned, there is no denial to it. Though it has come on record, that appellant himself is a respectable person, being, Khateeb of Mosque, Qari, as well as Religious Scholar and Homeopathic doctor, but even if he had not possessed recognized status, still he is entitled for General damages, during which he suffered mental torture, agony defamation, because, what could be more disgrace for a person who is being thrown out of the house, forcibly, with no alternate either to stay night under the Sky or to take bis family to some hotel, without allowing them to pick-up their necessary belongings. Under these circumstances, no one can be allowed to take law in his own hand. It is an admitted fact that respondents No. 2 to 5 had already instituted a suit for possession, which was pending adjudication in a competent court of law, but instead of waiting for its result they selected to adopt such a way, for the relief, which is not recognized under the law. Therefore, on account of such acts, the respondents jointly and severally are responsible to make payment of Rs. 1,50,000/- towards the general damages to appellant, as it has been claimed by him in the plaint. Thus for the foregoing reasons, Appeal is allowed order passed by Additional District Judge, dated 30th August, 1995, is set aside and order/decree of trial court dated 30th December, 1993 passed by Senior Civil Judge is modified to the extent that appellant is entitled for a decree of damages to the tune of Rs. 50,498/- + Rs. 1,50,000/-Rs. 210.498/- severally and jointly against respondents 1 to 5, with costs throughout. Office is directed to prepare the decree sheet in above terms and on completion thereof, file be consigned to record. (K.K.F.) Appeal allowed.
PLJ 1997 Quetta 212 (DB) PLJ 1997 Quetta 212 (DB) Present: IFTIKHAR MUHAMMAD CHAUDHARYAND amanullah khan yasinzai, JJ. MUHAMMAD ASLAM RASHID and 2 others-Appellants versus Dr. MUHAMMAD ANWAR SAEED and 4 others-Respondents R.F.A. No. 21 of 1996, accepted on 30.6.1997. WH1-- Bequest to an heir without consent of other legal heirs-Validity-There is not an iota of evidence to hold that all legal heirs after death of deceased assented that house should he transferred in favour of respondent No. 1- Held: In absence of assent of all legal heirs, will, is not capable of enforcement-Appeal allowed. [Pp. 218 £ 219] A & B PLD 1967 SC 200 and PLD 1967 Lahore 672. M/s Muhammad Aslam Chishti and Zahid Mali , Advocates for Appellants. M/s H. Shakil Ahmad and Mirza Ehsan-ul-Haq, Advocates for Respondent No. 1. Mr. Abdul Wadood Khan. Advocate for Respondent No. 2. Mr. Noor Muhammad Achakzai, Addl. A.G. for Respondents No. 33 TO O. Dates of hearing: 3.6.1997 & 4.6.1997. judgment Iftikhar Muhammad Chaudhaiy, J.-Appellants and private respondents are the legal heirs of late Malik Muhammad Ali, who died at Quetta on 18th February, 1983. He left behind him a house bearing No. 3- 9-4D situated at Tahir Khan Road , Quetta . On the opening of succession of his legacy in revenue record, the house was mutated on the names of his legal heirs, according to their proportionate shares vide mutation entiy No. 235 dated 4th March, 1993. Respondent No. 1, feeling aggrieved from the transfer of house in the name of all legal heirs, challenged the Intiqal in appeal filed under section 161 of the Balochistan Land Revenue Act, 1967, before the Collector, Quetta on the averments that the house exclusively belong to him, because late Malik Muhammad Ali had executed a Will in his favour on 6th November, 1989 (Mark P/2.) which was duly registered with the Sub Registrar, Quetta. All his legal heirs had knowledge about it, because document was executed with their consent. Appeal was opposed by appellants on the grounds that Testator was not competent to execute WILL beyond I/3rd of the total share and that too with the consent of all his legal heirs. In addition to it, specific plea concerning revocation of WILL was also raised, pointing out that subsequently by means of letter (Mark P/l) WILL was revoked. However appeal was allowed on 25th October, 1983. Thus appellants instituted Second Appeal before the Additional Commissioner, which was dismissed on 8th August, 1994, with observations that any of the party feeling aggrieved from mutation entries may avail recourse to the civil remedy before the competent court of Jurisdiction. With this back-ground, appellants filed a suit for declaration through partition and injunction on 4th October. 1994, in the Court of Civil Judge, claiming following relief: - "It is, therefore, prayed that decree may be passed in favour of plaintiffs and against the defendants in terms as follows:- (i) declaring that private parties are successors of late Malik Muhammad Ali and entitled to inherit the property described in para 1 above according to shares determined by Shara. (ii) declaring that entry made in the revenue record in respect of property in dispute was rightly attested by lower revenue officer and Collector vide his order dated 25.10.1993 and Additional Commissioner vide his order dated 8.8.1994 acted illegally in setting aside the mutation entiy; (iii) declaring that will dated 6.11.1989 and registered on 9.11.1989 is illegal or invalid or having been superseded by the testator. (iv) Perpetual injunction be granted against the defendant No. 3 directing him that entry No. 235 attested on 4.3.1993 he restored; (v) Decree of possession through partition in favour of plaintiffs as per their share i.e. 6 shares out of 9 of property in question and one share to defendant No. 2 or in the alternative, a decree of possession of total property with directions to plaintiffs to pay the price of share of private defendants; (vi) permanently restraining the defendants No. 1 and 3 not to alienate the property and not to pass on the possession of property to any body else; (vii) any other relief which the court may deem fit and proper in the circumstances of the case may also be granted. (viii) Costs of the suit may also be granted." The suit was contested by respondent No. 1, repudiating the .claim of appellants. His consistent stand was that he is the exclusive owner of the property, in pursuance of the WILL. As far as respondent No. 2, Mumtaz Begum was concerned, suit against her was dismissed on 14th December, 1994, because the appellants did not deposit process fee, etc. The trial court framed following issues for determination on 12th March, 1995:- 1. Whether the suit of the plaintiff is not maintainable in view of preliminary objections "A" to "C" of the written statement. 2. Whether the defendants had managed to get execution of disputed will in their favour by mis-representation and fraud? 3. Whether the plaintiff is entitled for the relief claimed for? 4. Relief? Appellants except recording their own statements, did not produce any other witness. On the other hand, respondent No. 1, entered himself in witness box and also led evidence of DWs Malik Jawad, Azizullah, Abdul Hakim Yar Muhammad Niaz Muhammad, and Mumtaz Begum (respondent No. 2, who appeared as witness of respondent No. 1) Mst. Razia Saeed, Chaudhry Abdul Karim Mst. Aziz Begum and Mst. Jamila. On completion of recording of evidence, suit was dismissed by the Court on 31st July, 1997. As such, instant appeal has been filed. Mr. Muhammad Aslam Chishti, learned counsel for appellants contended that WILL (Mark-P/2) is not capable of impelmentation for the following reasons:- (i) The WILL (Mark-P/2) has been revoked in writing by late Malik Muhammad Ali vide letter Mark P/l. (ii) All successors of late Malik Muhammad Ali had not consented for the transfer of house in favour of respondent No. 1, on the basis of this document. Mr. Shakeel Ahmad, learned counsel for respondent No. 1, urged as under:- (i) Arguments now being raised on behalf of appellants are not available to them, because in the plaint, they have pleaded that the WILL is the product of fraud/ misrepresentation, therefore, in view of their plea, Issue No. 2 was framed by the trial Court which appellants have failed to prove. Thus the conclusion would be that they abandoned their earlier plea, as such, new plea being raised for the first time, by the Counsel for appellants, cannot be allowed to be agitated; (ii) Before the trial court on behalf of respondent No. 1, application for amendment/framing of additional issue under Order XIV rule 5 CPC was moved, wherein request was made that issue No. 2, needs amendment, in view of the averments and circumstances that WILL was executed in favour of respondent No. 1 only. It was further stated in the application that in view of the contention of plaintiffs, denied by defendant- No. 1, that the WILL was revoked by the Testator, an issue be framed namely; whether the WILL was revoked by the Testator? The application was contested by appellants and ultimately it was dismissed on 26th April, 1995. Thus under these circumstances, the argument concerning revocation of WILL cannot be raised; and (iii) The will have not been revoked by late Malik Muhammad ALi, because he cancelled the letter Mark P/l during his life time, as it has been proved by the witnesses produced before the trial Court. Mr. Abdul Wadood, learned counsel for respondent No. 2, submitted that appeal against her is not maintainable, because to her extent, the suit has already been dismissed on 14th December, 1994 and said order has not been challenged before the higher forums, therefore, appeal may be dismissed. We have heard the parties' counsel at length and also considered their arguments carefully. It is an admitted fact that in the plaint WILL executed by the Predecessor-in-interest of parties was challenged on the ground that respondent No. 1, had managed to get it executed in his favour by mis representation and fraud as he made his father to believe that he wanted to donate the property to some Mosque after his Death. However when after ward Testator came to know that he had no such intention and was migrating to USA, he revoked the said will and bequest the property in favour of all legal hires. This averment in plaint actually covers to the issue which respondent No. 1, had proposed to frame, in his application dated 22nd March, 1994. It may be observed that although this application was rejected, but even the parties being conscious of this fact led evidence, because execution of the WILL as well as its revocation by means of letter Mark P/l, written by late Malik Muhammad Ali has not been denied by respondent No. 1, during his cross examination. Thus it suggests to hold that in absence of a specific issue, parties in litigation on account of their knowledge about the revocation, led the evidence. It is also most important to note that neither appellants nor respondent No. 1, abandoned issue No. 2, which speaks, whether the defendants has managed to get execution of disputed WILL in his favour by means of mis-representation and fraud. As on this issue evidence has come on record from the side of respondent No. 1, that because he was looking after to his ailing father, as he was coming from time to time from USA to attend him and on his assurance that house will be donated to the Mosque, after his death, the WILL was executed. The contents of letter Mark P/l, indicates that these facts were recorded by late Malik Muhammad Ali, therein and finally he concluded that as he intends that respondent No. 1, will not donate the property to the Mosque, therefore, he is revoking the WILL already executed by him. Respondent No. 1, by means of over-whelming evidence, attempted to prove that the letter Mark P/l, was also withdrawn subsequently by his father, therefore, the property now vests in him. There is no necessity to discuss the evidence led by respondent No. 1, but on its cursory survey one can conveniently conclude that object of producing the witnesses was not else except to prove that even this letter was cancelled by the father, when he was appraised that his son Dr. Muhammad Anwar who had been looking after him during his life time and had also been making payment of expenditures, will donate the property to the Mosque. Therefore, in view of such evidence on record, arguments raised by learned Counsel for respondent No. 1 with regard to abandoning the plea by appellants, has no substance. Now the next important, question for consideration would be two fold:- (i) Whether the WILL has been revoked and if so, what would be its effect? and (ii) If for sake of argument it is presumed that it has not been revoked, then what would be its effect in view of Muslim Personal law? Before dilating upon these questions, we may mention here that learned trial court had not considered the execution of revocation letter Mark P/l, for the reason that it is an un-registered one. In our opinion such reasonings are not plausible, because under the Registration Act, neither the WILL nor the Revocation Deed is required to be registered compulsorily. At this juncture, reference to Article 102 of the Qanoon-e-Shahadat Order, 1984. would not be out of context. This Article provides that when the terms of Contract or for -grant or of any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself or secondary evidence of its contents in cases in which, secondary evidence is admissible under the provisions hereinbefore contained. As it has been observed hereinabove, execution of both the documents has not been disputed. As for as the WILL is concerned, it was reduced into writing on 6th November, 1989, whereas deed of cancellation (letter Mark P/l) was executed subsequently. The plea of respondent No. 1, is that lateron this letter was also cancelled, but no documentary evidence has been produced to substantiate the same. As for as oral evidence in this behalf is concerned that would not be of any help to him, in view of the provisions of Qanoon-e-Shahadat Order, 1984, discussed hereinabove. This in such view of the matter, it is held that WILL was revoked by late Malik Muhammad Ali. Alternative not conceding but assuming for sake of argument that the WILL was not revoked then what would be its effect. It is a settled principle of Muhammad Law that a bequeath would be void for want of assent of all legal heirs, after the Death of Testator, as it has been held in PLD 1987 Lahore 672 and PLD 1967 SC 200. In the last, mentioned Judgment, the Hon'ble Supreme Court observed as under: - "A will in favour of an hire requires the consent of all the other heirs to be valid in Muslim Law and here no consent is shown. The sons were throughout opposed to any land being given to Mst. Mirza Nur. More than one third of the estate of the testator cannot be validly bequeathed under Muslim Law, and here the whole was included in the bequest. Viewed in the light fit" Muslim law, the will could only be looked at as providing the basis of a tacit understanding to accept the orders made by the Mutation Officers respecting possession." It is also an accepted principle of Muhammadan Law that where the will has been executed in favour of one of the legal heir then the assent of remaining legal heirs is essential, after the death of testator, as it has been held in Muhammadan Law by Amair Ali (Chapter 20 Page 589). Relevant para therefrom is reproduced hereinbelow :- "(2) According to all the schools a bequest to any one of the heirs is invalid without the consent of the others. (1) Whether the person in whose favour the revise is made is an heir or not must be determined not at the time of the will but at the testators death. A grandson whose father has died in the lifetime of the testator is a non-heir when he co-exists with a son; and a bequest to him not exceeding a third is valid." Similar view expressed in Muhammadan Law by Mulla's. Relevant para therefrom is reproduced hereinbelow:- "117. Bequests to heirs.-A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testor (1). Any Dingle heir may consent so as to bind his own share (m). Explanation.~ln determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the tester's death." Above proportion came for consideration in the case of A.E. Salayjee v. Fatima Bibi. Before Hon'ble Privy Council reported in (71 Indian Cases 753) wherein it was held as under:- "The Muhammadan Law does not allow a testor to leave a legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share, and therefore, when it appeared in the course of the suit that the other heirs had agreed the only contest was as regards the plaintiff and the three minors. As regards the three minors there could be no question of their consent and the dispute, therefore, turned on the question whether the plaintiff had consented or not." We have gone through the statement of witnesses produced by respondent No. 1 carefully. There is not an iota of evidence to hold that all the legal heirs after the death of late Malik Muhammad Ali, assented that the house should be transferred in favour of respondent No. 1. Thus for these reasons, we are inclined to hold that in absence of assent of all the legal heirs, the WILL is not capable of enforcement. Adverting to the contention raised by learned Counsel Mr. Abdul Wadood, relating to maintainability of appeal, because according to him suit has been dismissed against respondent No. 2 on 14th December, 1994. This objection can be considered on presuming that if no appeal has at all been filed against respondent No. 2 then what would be the consequences. In this behalf Order-LI rule 33 CPC would come into play, according to which, appellate Court is empowered to pass such order/decree, as the case may require and this power can be exercised by the Court, notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Therefore, challenging the decree as a whole even impleading respondent No. 2 against whom no decree was passed, would not be fatal. Even otherwise no adverse order or decree is being claimed in the instant proceedings by appellants against her, therefore, no prejudice is likely to cause to her, if the appeal is allowed. Contrary to it, she would be benefited, because the property which is now being claimed exclusively by respondent No. 1 would also devolve to the extent of her share, which of course the respondent No. 2 would free to transfer in favour of respondent No. 1, if so desired by her. Thus we are inclined to hold that appeal would not fail on the objection raised by learned Counsel. In view of the above discussion, appeal is allowed, impugned order is set aside and suit is decreed in terms of clauses I to IV of the prayer, reproduced hereinabove, and for the relief of partition and possession of the house, parties are directed to approach D.C./Collector Quetta, who will put them in their respective possession or whatever the position may be and will also attest mutation entries on their names respectively. Office is directed to prepare the decree sheet and thereafter the file be consigned to record. No order as to costs. (B.T.) Appeal allowed.
PLJ 1997 Quetta 219 (DB) PLJ 1997 Quetta 219 (DB) Present: IFTIKAHR muhammad chaudhary and amanullah khan yasinzai, JJ. ABDUL HAKIM and another-Petitioners versus REVISING AUTHORITY etc.-Respondents C.P. No. 335/1996, allowed on 12.6.1997. Electoral Rolls Act, 1974 (IX of 1974)-- S. 7 & 15-Constitutional petition under Article 199 of Constitution of Pakistan, 1973-Correction of names and addresses in Electoral Roll- Application against-Acceptance of-Petition against-Petitioners are in possession of dwelling houses and other immovahle property independently and that area is being recognised after their names, therefore, they would be deemed to be ordinarily residing at that place, as such, they have every right to get incorporated addresses of places where they ' are residing--Held : Registration office rightly exercising jurisdiction U/S. 15 of Act, 1974, corrected addresses of petitioners- Revising Authority has no jurisdiction to change actual addresses of petitioners-Petition allowed. [P. 221] A & B Mr. H. Shakil Ahmed, Advocate for Petitioners. Mr. M.S. Rakhshani, D.A.G. for Respondent No. I. Mr. Abdullah Khan Kakar, Advocate, for Respondent No. 3. Date of hearing; 05.6.1997. judgment Iftikhar Muhammad Chaudhary, J.--Petitioners' names were recorded in Electoral of Deh Kandrani with the address "Goth Nabi Dost" as back as in the year, 1986-87, but during the revision of Electoral Roll in 1996, they submitted forms for correction of their names showing their addresses as Goth Abdul Hakim and Goth Muhammad Yakub, instead of Goth Nabi Dost, because its owner i.e.. Respondent No. 3 had shifted towards an area, three kilometer away froin, the residence of petitioner. Accordingly correction as prayed for by the petitioner was recorded whereas the names of Voters of Goth Nabi Dost, which is after the name of respondent No. 3 were also recorded separately. It appears that respondent No. 3 on coming to know about the correction of addresses of petitioners in the Electoral Roll, which they have given of the villages, which are now being recognized after their names, preferred an application before the Revising Authority on 28th August, 1996. The application was contested but Revising Authority i.e. Respondent No. 1, accepted the request of respondent No. 3, vide order dated 22nd September, 1996. As such, instant petition has been filed. Mr. Shakeel Ahmad, learned Counsel for petitioner argued that Revising Authority had no jurisdiction under any provision of the Electoral Roll Act, 1974, to direct correction in the Electoral Roll on the basis of addresses of voters. According to him as far as genuineness of the names of petitioners or their family members are concerned there was no dispute about it. But as now the petitioners have developed/built up their own village therefore, they have every right to give the addresses of their villages which are being recognized after their names. Mr. Abdullah Khan Kakar, Advocate, appearing for respondent No. 3, stated that address of petitioners of Goth Nabi Dost, which is after the name of respondent No. 3, was existing since 1986-87, therefore, the wrongly changed their addresses for getting them recognized independently as such, the Revising Authority was competent to correct the Electoral Roll, changing the addresses of petitioners. Section 7 of the Act of 1974, defines meaning of "resident" as under:- i Meaning of resident.--(l) Save as hereafter provided, a person shall be deemed to be resident in an electoral area if he ordinarily reside, or owns or is in possession of a dwelling house or other immovable property, in that area. (2) Where a person owns or possesses dwelling houses or other immovable property in more than one electoral area, he may, at this option, be enrolled in any one such area. (3) A person who is in the service of Pakistan or holds any public office shall be deemed to be resident in the electoral area whether is posted, unless he, applies in writing to the Registration Officer for enrollment in the electoral area in which he would have been enrolled if he had not been in stich service or had not helrf such office. (4) The wife of any such person as is referred to in sub section (3) and such of his children as are entitled to be enrolled shall, if they ordinarily reside with such person, be deemed to he residents in the electoral area in which such person is deemed to be resident under that sub-section. (5) A person who is detained in prison of held in other custody at any place in Pakistan shall be deemed to be resident in the electoral area in which he would have been resident if he had not been so detained or held in such custody. Admittedly petitioner owe and are also in possession of dwelling houses and other immovable property independently and the area, where they are residing now is being recognized after their names, therefore, petitioners would be deemed to be ordinarily residing at that place, as such, they have every right to get incorporated the addresses of places where they are residing as presently respondent No. 3 Nabi Dost himself is not residing in his own village and has shifted at a distance of three Kilometer from there, as it is evident from the contents of para 3 of the petition, which has not been controverted by respondent himself by filing a counter affidavit. Therefore, in absence of any proof, no other conclusion can be drawn, except that petitioners rightly got recorded their actual addresses in the electoral roll where they are residing presently. In such view of the matter the Registration office rightly exercising jurisdiction under section 15 of the Act of 1974, corrected the addresses of petitioners. As far as Revising Authority is concerned, it has no jurisdiction under any provision of the Act, to change the actual addresses of petitioners in the electoral roll. Thus for the foregoing reasons, petition is allowed. Order passed by respondent No. 1, dated 22nd September, 1996 is declared with lawful authority. Consequently Respondent No. 2, is directed to restore the names of Goths of petitioners as it was existing prior to passing of impugned order by the Revising Authority. No order as to costs. (MYFK) Petition allowed
PLJ 1997 Quetta 222 PLJ 1997 Quetta 222 Present: iftikhar muhammad chaudhary, J. Hakim Malik MUHAMMAD AKRAM-Petitioner Versus Hakim MUHAMMAD ZUBAIR AHMED etc.-Respondents C.R. No. 410 of 1996, allowed on 24.6.1997. Civil Procedure Code, 1908 ( V of 1908-- -S. 115 read with Co-operative Societies Act, 1925, S. 70-A and Societies Registration Act, 1860, S. l--Anjuman-e-Baluchistan Tibia College, Quetta-Change of members of governing body-Suit for declaration and perpetual injunction-Decreed to~Appeal against-Acceptance of~ Revision against-District Judge formed his opinion without going through preamble of co-operative Societies Act, 1925, which specially lays down purposes/objects is promotion of thrift, self help, mutual aid, better living etc-Anjuman Tibia College has not been registered under any provision of this Act and its registration was made by Joint Stock Companies, Balochistan in exercise of jurisdiction under Section 1 of Societies Registration Act, 1860--A Society registered under Act, 1860 cannot be considered to be registered under Act, 1925, because both laws have different purposes and objects-District Judge fallen in error in dismissing suit of petition for want of jurisdiction-Petition allowedCase remanded to District Judge for disposal of appeal of respondents on merits. [P. 224] A to D Mr. Malik Sultan Mehmood, Advocate for Petitioner. Mr. Kamran Murtaza, Advocate for Respondents No. 1 to 6. Mrs. Iqbal Bano, Advocate for Respondent No. 7. Date of hearing: 24.6.1997. judgment Facts relevant for disposal of instant petition are that petitioner Hakim Malik Muhammad Akram filed a suit for declaration and perpetual injunction against private and official respondents, as back as on 5th June, 1990. After contest, trial Court i.e. Civil Judge-V, decreed the suit on 5th November, 1995. Said order/decree was challenged by private respondents in appeal before the District Judge, which came-up for disposal on the file of District Judge-Aof/zoc, Quetta Learned Presiding Officer instead of deciding the appeal on merits, accepted the same on the ground that under section 70-A of the Co-operative Societies Act, 1925, Civil Court had no jurisdiction to adjudicate upon the matter, concerning change of members of Governing Body and approval of Constitution of Society. As such, instant revision has been filed. Mr. Sultan Mehmood, Advocate contended that learned District Judge, Adhoc, had acted without lawful authority in non-suting the petitioner, because affairs of Ananjuman-e-Balochistan Tibia College, Quetta are being governed under the provisions of Societies Registration Act, 1860, and in pursuance of its section 1, registration Certificate was issued in favour of Anjuman, as back as on 10th October, 1994. He further contended that as for as Co-operative Societies Act, 1925 is concerned, it has got no application on such like Societies. Mr. Kamran Murtaza, learned Counsel appearing for private respondents and Mrs. Iqbal Bano, learned Counsel/or Registrar of societies, conceded to the legal position put forth by petitioner's counsel. However, on behalf of private respondents it was argued that apart from the reasons assigned by District Judge, Adhoc, in non-suiting the petitioner, even otherwise, a decree as has been claimed in plaint, cannot be awarded to petitioner, therefore, according to learned Counsel the matter may be adjudicated upon finally in exercise of revisional powers by this Courts. Malik Sultan Mehmood, Advocate, emphatically opposed this suggestion, as according to him, in this manner, serious prejudice will be caused to any of the party against whom the matter is decided by this Court, as in that case, no right of appeal or revision would be available to such party. I have considered the argument of learned counsel for petitioner and also gone through the operative part of the appellate Judgment, which is reproduced hereinabove :- "As per pleadings of the parties, both the appellants/defendant No. 1 to ' 6 and respondent No. I/Plaintiff are members of a Society/Association namely Anjuman Balochistan Tibia College and also office holders of the same. The dispute between the parties is in respect of change of members of governing body and approval of constitution of the society. In view of the same, the dispute exists between the parties covered with the ambit of section 54 of Co-Operative Societies Act, 1925. As the dispute in hand is touching the business of the Society, further the dispute between the members of the society. As such in view of section 54 of the Act the matter should have been referred to Registrar for decision. A special forum and procedure is provided in the act, which is to be adopted by the societies and its members in order to resolve their disputes. There is clear bar on jurisdiction of Civil Courts as provided u/S. 70-. A of the Act. A part from the same, the dispute in hand is covered by Section 54, therefore, the jurisdiction of this Court is barred." Learned District Judge, Adhoc, had formed above opinion, probably, without going through the Preamble of Co-operative Societies Act, 1925, which a specifically lays down purposes/objects i.e. promotion of thrift, self-help, mutual aid, better living, better business and methods of production. It is also an uncontroverted fact that Anjuman-e-Balochistan Tibia College , Quetta , has not been registered under any provision of this Act, and its registration was made by the Joint Stock Companies, Balochistan, on 10th day of October, 1984. in exercise of jurisdiction conferred upon it, under section 1 of the Societies Registration Act. 1860. Thus a Society registered under the Societies Registration Act, 1860 cannot be considered to be registered under the Co-operative Societies Act, 1925, because both the laws have different purposes and objects. At this stage, it would be beneficial to make reference to the Preamble of Societies Registration Act, 1860, according to which, this law was enacted for improving the legal conditions of Societies, established for the promotion Literature, Science, or Fine Arts or for the diffusion of useful knowledge, the diffusion of political education or for charitable purposes. Thus, I am of the considered opinion that the learned District Judge, Adhoc had fallen in error in dismissing the suit filed by petitioner for want of jurisdiction in view of section 70-A of the Co-operative Societies Act, 1925, because for above discussion, this section is .not attracted at all. However. I am not inclined to dispose of the case on merits because whatever conclusion would be drawn by this Court, it would amount to denying right of revision or appeal to the party, against whom the decision is made. Accordingly, petition is all owed, impugned order is set aside and case is remanded to District Judge, Adhoc, for disposal of appeal filed by respondents on merits, strictly in accordance with law. No order as to costs. Hereinabove are the reasons of my short order of even date. (MYFK) Petition allowed.
PLJ 1997 Quetta 225 PLJ 1997 Quetta 225 Present: iftikhar muhammad chaudhary, J. Maulvi ABDUL SAMAD and 2 others-Petitioners versus SHISTA KHAN and 2 others-Respondents C.R. No. 416/1996, accepted on 30.6.1997. Wakf- -Wakf-Essentials for-Under Muslim Personal Law there is no provision of creating wakf of testator in particular form-It could be verbal or in writing-A wakf created by a testator in his life time cannot be declared invalid if he had not parted without possession of property and a mere declaration of endowment is sufficient to create wakf valid for all intents and purposes. [Pp. 231 & 232] A & B Mr. Khurshid Ahmad, Advocate for Petitioner. M.K.N. Kohli, Advocate for Respondent. Date of hearing: 16.6.1997. judgment Maulvi Abdul Daim predecessor-in-interest of Petitioner No. 3 Bibi Khatam died issueless leaving behind his widow being the only sharer. He had immovable property, i.e., a shop situated in Murgha Faqirzai one acre orchard with 4% ghanta rights of water situated in Murgha Faqirzai and a house. Statedly he was a religious scholar, therefore, he createcl a 'waqf of his immovable property for the benefit of students receiving religious education. As far as the Petitioners No. 1 & 2 are concerned, they are statedly brothers of Mst. Khatima. Late Maulvi Daim appointed them in his life time as "Wassis". It is stated that after dedicating property to Madrissa and religious students he had been spending the income of his business/land etc. for their benefit. He died towards August, 1995. After his death respondent No. 1 started claiming share in the property with the connivance of respondent No. 2 claiming legal heirs of Late Maulvi Daim; whereas claim of respondent No. 3 was that Maulvi Abdul Daim had gifted the land to him during his life time. He was also appointed as third Wassi by Maulvi Abdul Daim, but after his death as he started presenting himself to be one of the sharers, therefore, he had lost the status as wassi. On this matter was referred for decision to Maulvi Abdul Hakeem s/o Murgha Faqirzai with a request that he should decide the dispute according to Shariat. It appears that respondents No. 1 & 2 refused to accept the decision of Maulvi Abdul Hakeem and they wanted to take over the property forcibly. Under these circumstances on 10.3.1996 suit for declaration and permanent injunction was filed by petitioners against the respondents before Qazi Muslim Bagh claiming following relief: Suit was contested by Respondents No. 1 & 2 denying the execution of wills by late Mauliv Abdul Daim for the purpose of creating a waqf for the benefit of Madrissa for religious students. Similarly respondent No. 2 also filed a separate written statement dated 17.3.1996 repudiating to the claim of petitioners set up in the plaint. Learned trial court framed following issues on 31.3.1996: Petitioners in support of the plaint produced to Abdul Samad s/o Maulvi Gul Muhammad. He deposed that "he enquired from Maulvi Daim that what he will do with his property, whether he will appoint wassis or not? In reply he stated that his wassi is Haji Azim Khan, Maulvi Abdul Samad (Petitioners No. 1 & 2), Muhammad Raz (Respondent No. 3). He further deposed that the Wassis had accepted this Office and Maulvi Abdul Daim had created waqf of his property for the benefit of students. In cross examination he was asked as to whether Muhammad Azim Khan is his friend? The reply was in affirmative. No other question was put to him particularly with regard to creation of waqf and appointing of wassis etc.". According to PW-2 Haji Mulla Wazir, he was sitting with Maulvi Abdul Daim when he told him that he had created a will of his property, Maulvi Abdul Samad, Malik Azim and Raz Muhammad will be his wassis. The waqf property will be distributed to Maddaris. In cross examination he denied that he had given evidence due to relationship. PW-3 is Abdul Razzaq. He also stated that in his presence Maulvi Abdul Daim told him that he had created waqf of his property for religious Maddrassa and he had appointed 3 persons as his wassis, 'Haji Abdul Samad s/o Khalifa Abdul Ahad, Muhammad Raz son of Ghulam, Malik Azim, Khan s/o Malik Mubeen'. In cross examination he stated that no decision in the Court had taken place in between them. PW-4 Khurasan son of Haji Banu deposed that Haji Daim told him that he has created waqf of his property for religious Maddaris and had app ointed 3 Wassis Azim Khan, Muhammad Raz, and Maulvi Abdul Samad. In cross examination he denied that he had given evidence due to relationship. PW-5 is Maulvi Ali Muhammad. According to him Maulvi Abdul Daim was sick. He called and told him that he wanted to execute a wasiatnama, which was reduced into writing in which he got recorded that his land and orchard are waqf. Thus on his enquiry he told waqf is for religious Maddrassa and Haji Azim Khan, Abdul Samad and Muhammad Raz are his wassis. In cross examination he stated that he has not given the evidence due to relationship. On the other hand Muhammad Raz respondent produced following witnesses: DW-1 Jannan son of Baz Muhammad. According to him respondent Muhammad Raz have planted trees on the disputed land, during the life time of Mulla Abdul Daim. In cross examination he deposed that in the name of Allah he has given the statement; DW-2 Khanan son of Paind. According to him the disputed land was in possession of Muhammad Raz. He used to work in karez. The lands were also being irrigated by him. He plied the tractor of Shaista Khan because Mulla Abdul Daim had given this property in gift to Muhammad Riaz. He also gave the boundaries of the property. In cross examination no question was put to him. DW-3 Maulvi Muhammad Hussain son of Bada. According to him Haji Daim in his presence disclosed that he has given his land to Muhammad Raz in gift. He gave the boundaries of the property. In cross he stated that evidence has been given by him in the name of Allah; DW-4 Khawaja Muhammad son of Muhammadan. He deposed that in his presence Hqji Daim stated that land in dispute has been given to him by Muhammad Raz as a gift. On enquiry that which land had been given by him in gift to Muhammad Raz , he replied the one which was his ancestral property. He also gave boundaries of the property. In cross examination he stated that in the name of All Mighty Allah he has given the statement. Witnesses of Respondent Nos. 1 & 2 are: Muhammad Ali s/o Haji Ayaz. He deposed that the land in dispute was in possession of Maulvi Abdul Daim who stated 20 days before his death that this property will be given to Shaista Khan. In cross examination he denied that he has given unfair statement, Zarghoon. He deposed that Haji Daim came in his shop at that time Hqji Nooruddin had a paper with him. He told him to put his signatures on the paper. The witness enquired from him that for what reason he should sign the document then he told him that ask to Haji Daim. Then he enquired from Haji Daim who told him, he has given his land to Muhammad Raz in gift. He gave the boundaries of the property. In cross examination he deposed that he has given the evidence in the name of Allah. Mulla Habibullah. According to his deposition he has purchased orchard from Abdul Daim. He further explained that its yields had been purchased by him. In cross examination he stated that he had also purchased the yields of the garden of Shaista Khan. Tajamul. According to him Mulla Daim was owner of the land and he had not seen any one to be the owner. He further states that Daim was his teacher. In cross he stated that in the name of Allah he has given the evidence. Maulvi Daulat, son of Momin. According to him Abdul Hakeem told him that there is a defect in the wasiat of deceased. According to which firstly it contains provisions of Hiba and then of waqf and thereafter in respect of l/3rd share there is a will, therefore, such wasiat is void, as such the property will revert back to its sharers and Shaista Khan became its entitled. As far as the widow is concerned she would have Mth from the share and Rs. 3,000/- would be given to wassis. In cross he stated that he has constructed Madrassa in the name of Allah Mighty Allah. Maulvi Najamuddin had worked as Mulla with him to whom salary was being given. Mth share is of the deceased and the remaining total share will devolve upon Shaista Khan. They are ascendants of two brothers due to which the respondents had become the legal heirs. Mulla Khan. According to him the suit pertains to waqf and Hiba. Petitioners No. 1 & 2 are Mutawwalis of the waqf as well as wassis. Dispute is between the parties due to which 3 persons namely Mulla Khan Muhammad, Mulla Abdul Hakim, Mulla Habibullah were appointed as "Sharai". They gave decision against the plaintiffs. The decision is attached in the file. In cross he stated that decision was given in presence of plaintiffs. Mulla Habibullah son of Mulla Ghulam Nabi. As per his statement both the parties approached him for decision according to Shariat. Then he appointed Sarpanch. Then they decided that there will be no waqf or Hiba or ^th share will be given to the wife. In cross he stated that for the share of deceased Rs. 3,000/- were fixed. Haji Allah Dad s/o Mazway. He gave boundaries of the property. According to him Daim came from Dubai ajid then he contracted marriage. Haji Shaista Khan used to cultivate land. .Haji Shaista Khan himself used yields of orchard. Last year it was sold by Maulvi Abdul Samad who is brother of Mulla Habibullah. In cross examination he,stated that Maulvi Daim had not given him books nor he has given evidence due to relationship. He had no knowledge about the waqf. Malik Karim son of Bungal. He gave boundaries of disputed land and stated that Shaista Khan used to cultivate it 20 days before Haji Daim came to their village and stated that my legacy belongs to Shaista Khan and similarly legacy of Shaista Khan belongs to me. Daim himself used to have yield of guarden. He spent his whole life in the garden. He had no knowledge about the waqf in the property. In cross he stated that property was in the hand of Daim. Surprisingly parties did not appear either personally or through their attorney to support the plaint and written statement respectively. In as much as none of the witnesses produced wasiatnama/waqfnama. However, two documents being Annexure-F dated 2.3.1994 and F-l dated 5.8.1995 purported to be wills created by Maulvi Daim in his life have been annexed with the petition. Learned trial court vide judgment dated 3.9.1996 decreed the suit in favour of petitioners. As such Respondent Nos. 1 and 4 filed appeal; whereas Respondent No. 3 Muhammad Raz did not challenge the order. On appeal order/decree of the trial court was set aside on 15.12.1996, as such present revision petition has been filed. Mr. M.A. Chishti learned counsel stated that objection of petitioners that appellate court interfered in the decree of the trial court principally for the reasons that Maulvi Abdul Daim after creating waqf had not parted with its possession for the purpose of the benefit of the Madrissa and students, therefore, according to him solely for this reason a waqf cannot be declared invalid. Reliance was placed by him on PLD 1961 (W.P.) Lahore 993. On the other hand Mr. K.N. Kohli learned counsel for the respondents argued that before institution of suit matter was placed before arbitrators namely, Maulvi Abdul Hakeem, Maulvi Khan Muhammad and Maulvi Habibullah who had given a decision that waqf created by the Maulvi Abdul Daim is invalid. He further contended that Maulvi Abdul Daim remained in possession of his property. As much as he was running business in the shop, therefore, for all practical purposes waqf was not complete, therefore, after his life time it cannot be implemented. I heard parties' counsel at length and have also gone through the evidence on record. As far as trial court is concerned it has examined oral evidence produced by both the parties and concluded that waqf was created by Maulvi Abdul Daim for the benefit of Madrissa and religious students. But the learned Majlis-e-Shoora had interfered in the judgment mainly for the reason that although waqf was created, but it is not valid because possession of waqf property was not handed over by the wakif to the It may be noted that under the Muslim Personal Law there is no provision of creating waqf by testator in particular form. It could be verbal or in writing. If the court feels satisfied in view of the material placed before it that a waqfw&s created by the deceased for a valid object it has no authority to question as to why the same was not reduced into writing. Honourable High Court of Lahore in the case of Chief Administrator of Waqf (W.P.) Lahore vs. Pir Rashiduddaullah & others (PLD 1961 Lahore 993) has held that it is to absolutely necessary that the writing by which a waqf was created should exist or that there should be directed evidence about the creation of a waqf and its terms and that a waqf may be created by user though the proper way of expressing this is that the creation of a waqf may be established by immemorial user of the property as waqf. It is hardly open to question that if any property has been used as waqf property from times immemorials a court of law would be justified in drawing inference that a valid waqf had been created. When a Court had drawn this inference it is acting in complete accord with the law because Section 3 of the Evidence Act makes it clear for the purpose of courts a fact can said to be proved if on the material before the court a reasonable person would believe that the fact exist. In the instant case evidence of PWs Abdul Samad, Haji Mulla Wazir, Abdul Razzaq. Khurasan and Maulvi Muhammad clearly suggest that late Maulvi Abdul Daim had created a waqf of his immovable property. As far as evidence of respondents in concerned that suffers from material discrepancies. One set of the witnesses produced by respondent Muhammad Raz had stated that the landed property was given in gift to Muhammad Raz; whereas other set of witnesses tells us that the property was given by Maulvi Abdul Daim in his life to Shaista Khan who was cultivating the same. As far as shops in which Maulvi Abdul Daim was running business, There is absolutely no evidence, therefore, for such reasons I am inclined to hold that a valid waqf was created by a Maulvi Daim for the benefit of Madrassa and religious students. Now turning to next objection taken into consideration by Majlis-e- Shoora that without parting with possession of the waqf property it would not be a valid and complete waqf. In this behalf there are opinions of jurists as well as superiors courts. However in a Full Bench case from the jurisdiction of Allahabad High Court this question has been settled in the case of Muhammad Yaseen v. Rehmat Illahi (AIR (34) 1947 Allahabad 201). For guidance consistent opinion of 3 honourable Judges of the High Court who had written separate notes are re-produced hereinbelow:- I. NOTE OF MR. JUSTICE YA^KE: "In the light of all these decisions and of the authorities on which they are based, I do not think there is any room for doubt that the view taken by this Court in 15 All. 321 is incorrect and that the correct view of the Hanafi School of law is laid down by Abu Yusuf, namely, that for the completion of a waqf a mere declaration by the waqf if sufficient. Learned counsel for the respondent has not . seriously sought to persuade us that the view taken by this Court in the past was correct. II. NOTE OF MR. JUSTICE MALIK: "I must, therefore, hold that the Muhammadan law, as interpreted by the Muhammadan jurists, is that a waqf by a Hanafi Musalman is completed by a mere declaration of intention and no delivery of possession is necessary. III. NOTE OF MR. JUSTICE WALIULLAH: "Wali Ullah J.--I have had the advantage of reading the Judgments of my learned brothers and I agree that the correct view of the Hanafi law on the point involved in this case is that propounded by Imam Abu Yusuf, namely, that the waqf becomes complete and binding on the mere declaration by the waqif and it is not necessary that possession be delivered to the mutwalli. In view of the general importance of the question, however, I consider it desirable to deal with the matter at some length." In view of above unanimity on the point of delivering possession or otherwise at that time of making declaration of the property to the waqf and other points discussed in the judgment the court decision was unanimous, consequently the appeal was allowed. Following the above guideline I am pursuaded to hold that a waqf created by a testator in his life cannot be declared invalid if he had not parted with possession of the property and a mere declaration of endowment is sufficient to treat the waqf valid for all intents and purposes. Thus it is concluded that appellate court/Majlis-e-Shoora had proceeded on wrong interpretation of Muslim Personal Law dealing with the subject of waqf in holding that without delivering possession of property by Maulvi Abdul Daim the waqf is invalid. For the foregoing reasons appeal is accepted, impugned order/decree dated 15.12.1996 passed by Majlis-e-Shoora Loralai is set aside, consequently order/decree of Qazi Muslim Bagh is restored. Parties shall bear their own costs. (K.K.F.) Petition accepted.
PLJ 1997 Quetta 233 PLJ 1997 Quetta 233 Present: RAJA FAYYAZ AHMED, J. ABDUL QADIR etc.-Petitioners versus MUHAMMAD IBRAHIM etc.-Respondents Civil Revision No. 6 of 1996, accepted on 2.9.1997. Civil Procedure Code, 1908 (V of 1908)-- -S. 115-Limitation Act (IX of 1908) Art. 120-Suit for declaration and perpetual injunction-Dismissal of-Appeal also dismissed-Revision against-Point of Limitation-Petitioners have claimed that they are in possession of disputed property in respect whereof adverse entries have been incorporated in Revenue record in 1965Which fact came to their knowledge in 1991-Whereas presumption has been drawn by courts below that they had such knowledge since 1965 as they happened to be 'present there at the time of Revenue settlement of area-It was incumbent on courts below to have decid issue of Limitation strictly within scope of evidence-In a case where possession of disputed property rested with plaintiff, time to institute suit would run from date of knowledge of plaintiff about adverse entries incorporated in record of rights and not from date of actual attestation of disputed entries-Held: Evidence on point has not been considered in light of above mentioned rule-Lower appellate court has even discarded evidence of PW-2 and PW-3 from consideration on ground of being interested witnesses, which was not permissible under law-Both courts below acted with material irregularity-Impugned decrees set aside and case remanded to trial court to rewrite judgment afresh in light of evidence already adduced by parties-Petition accepted. [Pp. 239 to 242] A to D AIR 1936 Lah. 37 and 1987 SCMR 66 ref. Mr. W.N. Kohli, Advocate for Petitioners. Mr. Muhammad Qabir Shah, Advocate for Respondents No. 1 and 2. Date of hearing: 29.8.1997. judgment The instant revision petition u/s 115 CPC has been preferred against the judgment and decree dated 29.2.1996 passed by the Civil Judge-I, Quetta and against the judgment and decree dated 29.10.1996 passed in appeal by the learned Additional District Judge-Ill, Quetta whereby the suit of the petitioners has been dismissed by the learned trial court on the point of limitation and appeal against the decree of the trial court also dismissed respectively. The relevant facts of the case in brief are that on 16.11.1992 the petitioners filed a civil suit for declaration and perpetual injunction against the respondents in the court of District Judge, Quetta which was transferred to the file of learned Civil Judge-I, Quetta and registered as Civil Suit No. 222/92 wherein it has been averred-that the petitioners have heard from their elders that their great predecessor-in-interest namely Mir Azad Khan held property in Mouza Muhammad Khalil and during his life time he remained into the active physical possession of his lands and thereafter his children as well remained in possession of the land as owners, who later on did not attend to this land because they had lands in the other village and Mouza, resultantly; the suit property gradually converted into a barren land and ultimately it turned into a complete barren land, boundaries of the suit land with Khasra numbers have been mentioned in para 1 of the plaint. According to the petitioners case set up in the plaint there had not been any occasion for them to see for the documents of settlement of the area as the land at the time of Revenue settlement was a barren land and such was the first Revenue settlement of sub Tehsil Panchpai and during the Revenue settlement of the area only the cultivated and the lands under cultivation were brought under the settlement measurements. It has been contended in the plaint, that the suit lands situated in Halqa Sharod sub Tehsil Panchpai District Quetta was decided to be brought under cultivation on account of the increasing number of the successors-in-interest of Mir Azad Khan and some of the respondents having come to know about such intention of the petitioners informed them in the month of December, 1991 i that the suit land during settlement in the year 1965-66 was entered in the 1 name of the respondents No. 1 and 2, therefore, the petitioners should refrain from implementing to their intention; though the possession of the land belongs to the petitioners and thereupon; according to the petitioners e they contacted the Parwari in December, 1991 and it revealed to them that e in fact that suit property was entered in the name of the respondent Nos. 1 k and 2 during Revenue settlement of the area in the year 1965-66; although n the land at the time of settlement was a barren land and examins so. Because of such Revenue entries the petitioners stated to have searched for the proof of their ownership and found the 'Sanad' about the purchase of the land confirming the act that the suit land belonged to their predecessor-ininterest namely Mir Azad Khan who had purchased the same in consideration of the loan Rs. 400/- vide the 'Sanad' dated 10th of Rajab 1306 Hijra. Thereupon the private respondents No. 1 and 2 were called upon to effect revenue entries of the suit land in their favour and on their demand consequently the elders of the said respondents offered to resolve the dispute privately and a date was fixed for the purpose and in the meanwhile the cultivation seasons commenced, therefore the petitioners cultivated about 30 35 acres of land without objection by the private respondents. Ultimately as per case of the petitioners, for family settlement of the dispute the elders of the parties assembled in the house of Abdul Latif Mashwani where finally the validity of tHe 'Sanad' was accepted to be correct by the respondents No. 1 and 2 with the reservation that they did not know Safar and Haider and agreed to convey to them their decision after consultation but contrary to their promise the respondents No. 1 and 2 filed a complaint u/S. 145 Cr.P.C. on 24.3.1992 which is pending adjudication with the SDM, Quetta. Mainly the suit of the petitioners is based on the ground that the suit property is in their possession since the time of their forefathers which has been got entered in the name of the respondents No. 1 and 2 during Revenue settlement through misrepresentation made by them. Alongwith the suit application under Order 39 Rule 1 and 2 CPC read with section 151 was also filed by the petitioners. The respondents No. 1 and 2 filed their joint written statement and rejoinder to the application on 27.12.1992 contesting the suit on merits as well as on legal grounds. The ownership of the suit land and the possession thereof claimed to be vesting in the petitioners has been disputed in the written statement and it is claimed that the respondents No. 1 and 2 are owners of the suit land with possession since 1965, out of pleadings of the parties the learned trial court framed the following issues:- 1. Whether the plaintiffs have no locus standi to file this suit? 2. Whether suit of plaintiff is time barred? 3. Whether the suit of plaintiff is not maintainable u/S. 8 and 42 of Specific Relief Act? 4. Whether the land in dispute had been purchased by the predecessor-in-interest of plaintiffs through a lease deed in the year 1306 A.D. from Saghar and Haider for consideration of Rs. 400/-? 5. Whether the disputed property has been in possession of plaintiff since their ancestors and have been cultivating the same? 6. Whether the disputed land has fraudulently and through mispresentation been entered in the names of defendants No. 1 and 2 through connivance of defendants No. 3, 4 and 5? 1. Whether the plaintiffs are entitled for the relief claimed for? 8. Relief? The petitioners in support of their case produced four witnesses and their attorney made his statement on their behalf before the court, whereas; the respondents examined three witnesses and on their behalf their attorney recorded his statement in the court. The learned trial court there upon vide impugned judgment and decree dismissed the suit of the petitioners resolving the issue No. 2 on the point of limitation in favour of the contesting respondents. The petitioners being dissatisfied with the decree passed by the learned trial court filed appeal in the court of District Judge, Quetta and the same was transferred to the file of the Additional District Judge-Ill, Quetta (Civil Appeal No. 330/96). The learned appellate court vide its judgment and decree dated 29.10.1996 dismissed the appeal of the petitioners, whereupon; through the instant petition both the decrees passed by the learned trial court and the appellate court have been assailed. I have heard the learned counsel for the parties at length in support of their respective view points, the learned counsel for the petitioners contended that both the courts below have misread and disregarded the relevant pieces of evidence in the light of issue No. 2 framed by the court on the point of limitation, therefore, the impugned decrees are not sustainable. According to the learned counsel the possession of the suit land was proved through evidence to be vesting in the petitioners which has not been considered by the courts below and in the instant matter the starting point of limitation would run form the date of the knowledge of the petitioners about the adverse entries having been made in the revenue record against them and not from the date of the actual attestation of the Revenue entries. The learned counsel vehemently contended that the law of limitation under Article 120 of the Limitation Act has been misapplied by the courts below which has caused serious miscarriage of justice to the petitioners and thus the learned appellate court acted with material illegality and irregularity in dismissing the suit and the appeal respectively. The learned counsel submitted the suit of the petitioners was not barred by time and is liable to be decided on merits. To supplement his arguments the learned counsel placed reliance on the reported judgments i.e. AIR 1936 Lahore 37, 1970 SCMR 499 & 604 + PLD 1968 Pesh. 148. Controverting the arguments put forth on behalf of the petitioners, the learned counsel for the respondents submitted that the entire evidence on record produced by the parties have been considered and appraised by both the courts i.e. the learned trial court and the appellate court. According to him the impugned decrees have been passed on the proper application of the law and submitted that the petitioners are not in possession of the suit property nor they ever remained so and there are concurrent findings of facts against the petitioners recorded by both the courts which are not open to any exception. The learned counsel vehemently argued that since'the petitioners are not in the active and physical possession of the suit property, therefore, time will run against them from the date of the attestation of the adverse entries and the relied on the case law i.e. 1997 CLC 322 + 675 and 1997 SCMR 846. I have considered the respective contentions put forth on behalf of the parties in the light of the record of the case annexed with the petition and the law. (PW-1) Muhammad Khan deposed that when the petitioner visited the suit land, they came to know about the land having been allotted in favour of the respondents Ismail, Ibrahim and Others. (PW-2) Muhammad Yar stated that the suit property belongs to the petitioners who are in possession of the same and denied the suggestion given to him in the crossexamination that the suit property continues to be in the possession of the respondents. (PW-3) Muhammad Iqbal deposed that the suit property vest in the petitioners who presently are in possession thereof as owners of suit land and this witness admitted in the cross-examination that the suit property is in the possession of the respondents Muhammad Ismail, and Wali Muhammad in whose favour it stands entered in the Settlement Record. (PW-4) has spoken about the ownership of the petitioners ut has not stated a word about the possession of suit land and in the cross-examination stated that he has no knowledge if the suit land is used to be cultivated by the respondents, whereas; the attorney for the petitioners deposed about the ownership of the petitioners in respect of the suit lands to be vesting in them on the basis of 'Sanad' and stated that they are in possession of such property since the time of their grandfather and in the cross-examination stated that he cannot give the Khasra Numbers of the land. (DW-1) Gul Jan deposed that he had worked for twelve years on the suit land, possession whereof rests with the respondents. (DW-2) Abdullah that the suit and belongs to the respondents who are in possession of the same and has also given the boundaries of the suit land. (DW-3) Abdul Khaliq has deposed that the suit land is in the possession of the respondents since the time of Muhammad Noor who even at present they are in possession of the land. According to the witness his father had obtained the suit land on "Ijaara" from the father of the respondents in the year 1918, .which land stood entered in the name of the respondent during settlement of the area in the year 1965-66. The attorney for the respondents stated that generation after generation the respondents through succession came into possession of the suit land which rests with them he also produced the reports of the Revenue Staff Ex. D/l to Ex. D/4 and stated in the crossexamination that he cannot tell the Khasra numbers of the land. The above noted is the extract of the evidence produced by the parties, relevant to issue No. 2 which has been resolved by the trial court in favour of the contesting respondents. The operating and concluding para of the judgment of the learned trial court for convenience and reference is reproduced below:- The learned appellate court though has considered the evidence but discarded the evidence of PW-2 on the ground that he is an interested witness as he has given evidence in favour of his father and similarly the evidence of PW-3 has also taken to be that of an interested witness although for certain other reasons as well his testimony is found not to be worth reliance and overall the learned appellate court came to the conclusion that the respondents did not challenge the disputed Revenue entires despite the knowledge of such entries having been made in the record in the year 1965, within the prescribed period of limitation. In absence of evidence on record to the effect that the petitioners had the knowledge of the adverse entries of the Revenue Record, presumption has been drawn by the courts below that the petitioners had such knowledge since the year 1965 when the Revenue Settlement of the area was carried out. The presumption of such knowledge has been inferred most probably form the fact that the petitioners at the time of the Revenue settlement of the area happened to be present there, which fact in my opinion appears to be not sufficient to draw a definite conclusion with regard to the existence of a particulars fact in issue. In the suit the following main relief has been claimed. The petitioners in the suit have claimed that they are in possession of the disputed property in respect whereof adverse entires have been incorporated in the Revenue record for the first time-during Revenue settlement of the area in the year 1965. Which fact came to their knowledge in the year 1991 nd reliefs have been sought for that they be declared owners of the land in question and the private respondents be restrained from interference into the property. To settle the issue of limitation it was incumbent on the courts to have decided the issue of limitation strictly within the scope of evidence. In a case where the possession of disputed property rested with plaintiff, the time to institute suit would run from the date of knowledge of plaintiff about the adverse entries incorporated in the record of rights and not form the date of actual attestation of the disputed entires. In the cited case law i.e. Ghulam Muhammad Khan and others vs. Samundar Khan and others AIR 1936 Lah. 37 it has been held that cause of action arises when plaintiff feels aggrieved and not from the date of adverse entry made in the record of rights. It has been held in the second cited authority (Gul Khan vs. Said Hasan Shah & others (PLD 1968 Pesh. 148) that the commencing point of limitation under Article 120 of the Limitation Act would begin from open denial of plaintiffs right by defendants and not from date of first erroneous entries in Revenue records; which was ruled by the Hon'ble Peshawar High Court in a case where the plaintiffs claimed to be in joint possession of Banjar Qadeem land with defendants since time of their ancestors but adverse revenue entries were incorporated. PLD 1970 SC 499 + 604 cited by the petitioners' counsel are not relevant to the proposition involved in the instant case. In the reported judgment i.e. Mst. Izzat Vs. Allah Ditta PLD 1981'SC 165 the Hon'ble Supreme held:- "(c) Limitation Act (IX of 1908)- Art. 120-Declaration-Ancillary relief-Limitation-Essential relief claimed: maintenance of possession and issuance of injunction for such purpose-Date of accrual of cause of action-Not necessarily relatable to date of deed allegedly obtained by misrepresentation nor to knowledge of plaintiff with regard to fraud played upon her-Plaintiff in actual possession of land but defendant getting land mutated in revenue papers in his favour and notwithstanding appellant's disclaimer of respondent's right in land and warning him against any interference regarding suit land insisting upon denying appellant's right, plaintiff, in circumstances, held, not bound to seek cancellation of deed though suit and could wait till threat to her possession became not relief against defendant, held further, accrued to plaintiff at such stage and starting point of limitation remained date of sanction of mutation and thereafter on every day when respondent continued making claim against plaintiffs right to possess suit land. (Cause of action)." It would be appropriate to refer to the reported judgment of the Hon'ble Supreme Court i.e. Mst. Zarifan vs. Mst. Rehmati 1987 SCMR 66 about the application of Article 120 of the Limitation Act in a case where plaintiff found to be in possession of property and adverse entries in the Revenue record upon opening of succession were made and it was held by the Hon'ble Supreme Court: - "Constitution of Pakistan (1973)-- -Art. 185(3)--Limitation Act (K of 1908), S. 3 & Art. 120- Suit for declaration-Plaitniff in possession-Mutation of inheritance challenged after 24 years-Suit for declaration filed after 24 years of opening of inheritance decreed by Trial Court but dismissed by Appellate Court on ground of limitation-Petitioner throughout in possession of entire property and being an illiterate widow did not know about sanctioning of mutation which was done in her absence, till she was about to be forcibly dispossessedAppellate Court not adverted to such aspect of the matter-Supreme Court converted petition into appeal and remanded case to District Court for decision afresh on question of limitation within three months." The facts of the case reported in (1997 CLC 322 Lab,.) referred to by the learned counsel for the contesting respondents are distinguishable and also in view of the rule laid down in the above noted judgments of the Hon'ble Supreme Court, the cited case law is of no assistance to the respondents. The application of Article 120 of the Limitation Act in the instant case depends upon the findings based upon the appraisal of evidence as to whether the petitioners are in the physical possession of the land and if so, the period of limitation would commence from the date of acquiring knowledge by the plaintiffs about the adverse entries effected in the Revenue record and not from the date of the actual attestation of such entries but contrary to the proper application of Article 120 of the Limitation Act, mainly both the courts below have treated the starting point of limitation to be date of the actual attestation of the disputed entries, inasmuchas; the evidence, on the point has not been considered in the light of the abovementioned rule. The appellate court has even discarded the evidence of PW-2 and PW-3 from consideration on the ground of they being interested witnesses, which was not permissible under the law. Both the courts below as such acted with material irregularity and illegality in dismissing the suit of the petitioners and the appeal respectively; resultantly the impugned decrees are not sustainable. Exception to the case law cited by the learned counsel for the contesting respondents that the concurrent findings of facts are not open to interference in the exercise of revisional jurisdiction by this court, applies in the instant matter as above discussed. For the reasons above-mentioned the impugned decrees dated 29.2.1996 and 29.10.1996 respectively passed by the Civil Judge-I and \ Additional District Judge-Ill are set aside and the case is remanded to the learned trial court to rewrite the judgment afresh after hearing the parties on all the issues in the light of the evidence already adduced by the parties, resultantly the revision petition is accepted leaving the parties to bear their own costs. (MYFK) Petition accepted.
PLJ 1997 Quetta 242 PLJ 1997 Quetta 242 Present: iftikhar muhammad chaudhary, J. MUHAMMAD SIDDIQUE and another-Appellants. versus DR. EDGER NATHENIAL-Respondents F.A.O. 107 of 1996, dismissed on 30.6.1997. Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)-- ! -S. 15 & 13(2)--Appeal against ejectment order-Whether it was case of first default and respondents were entitled to benefit of second proviso to section 13(2) of ordinance-Question of-Appellants after availing adjournments as it is indicative from different dates which was obtained by them either on pretext that copy of eviction application has been given to them or obtained date for filing wakalatnama and later on after full fledged consideration raising all legal objections undisputedly availing all alternative safe guards/cushions against eviction order had made qualified statement, admitting liability to pay rent with effect from 12.2.1996 to 30.4.1996, made statement with all reservations by using words before opening sentence 'save', therefore, it is not possible to hold that appellant made unqualified offer on first date of hearing for payment of rent-Held: Controller itself had not passed order undeY second proviso of section 13(2) of Ordinance-Held further: Liability to pay rent was admitted, therefore, there is no doubt to conclude that default was committed by appellant-Appeal dismissed. [Pp. 146 to 249] A, B, C & D PLD 1991 SC 138 and PLD 1993 SC 192. Mr. Muhammad Arshad Chaudhary, Advocate for Appellant. Mr. Raja M. Afsar, Advocate for Respondent. Date of hearing: 18.6.1997. judgment Muhammad Siddique and Mrs. Zaib-un-Nisa Anees appellants are aggrieved from the order dated 06.11.1996 passed by Civil Judge-II/Rent Controller whereby they have been directed to hand over vacant possession of the premises building/property known as Grand Little Folks High School situated on Muhammad Khan Road. History of this case of tells us that respondent Dr. Edgar Nathenial son of late J.W. Nathenial alongwith 5 others is owner landlord of demised property; whereas appellants are unning School known by the name and style of Grand Little Folks High School in the said building. It is stated by appellants' counsel that mother of respondent Mr. Edgar Nathenial was owner of the building. On her demise it has devolved upon them. The landlords submitted a joint application being No. 5 of 1996 seeking ejectment of appellants on the grounds of personal bona fide use and occupation as well as for committing default by them in payment of rent from 14.19.1992 to 11.2.1996 at the rate of Rs. 50,000/-. The application was contested by the appellants Rent Controller passed order for depositing irf future rent at the rate of Rs. 25,000/-. During pendency of said application respondent Dr. Edgar Nathenial filed second Eviction Application No. 3339/1996 solely on the ground of default in payment of rent with effect from 12.2.1996 to 30.4.1996. The eviction application was registered on 08.7.1996. On the next date notice was served on Muhammad Siddique who appeared on 25.7.1996, copy of the application was handed over to him. He sought adjournment to file reply. Thereafter on the next date, i.e. 08.8.1993 Mr. Muhammad Arshad Chaudhary advocate filed wakalatnama on behalf of both the appellants and sought adjournment. On the next date written statement was filed wherein certain objections were raised but ultimately he expressed desire to deposit rent of the premises with effect from the death of Mrs. J.W. Nathenial etc. It would be appropriate to reproduce hereinbelow specific stand of the appellants in this behalf: "However, the replying respondents are ready to deposit rent of the premises with effect from the date of death of Mrs. J.W. Nathenial i.e., 11.02.1996 and they also state that the rent of the premises in dispute as already directed by this Hon'ble Court in the other eviction application No. 5 of 1996, they would continue to deposit, the due rent within time according to law. According to the recent amendment in section 13 of Ordinance VI of 1959 the present eviction application on the ground of alleged default being first default is, therefore, not legally maintainable and proceedable further and the same is liable to be dismissed." Learned Controller passed order on the next date allowing to appellants to deposit rent with effect from 12th February, March and April, 1996 considering that they have committed first default. Order being relevant for subsequent discussion is also reproduced below: In the meanwhile on 01.10.1996 Controller after hearing parties' counsel framed following issue:- "Whether it is a case of first default and the respondents are entitled to the benefit of second proviso to Section 13(2) of the Rent Restriction Ordinance"? Parties were directed address arguments on 09.10.96 whether case should proceed or otherwise on the basis of above mentioned issue. Ultimately on hearing the arguments learned Controller disposed of the issue vide impugned order dated 06.11.1996 concluding that appellants are not entitled for the benefit of second proviso to Section 13(2). of the Rent Restriction Ordinance, 1959. Consequently their ejectment was directed. As such instant appeal has been filed. Mr. M. Arshad Chaudhary learned Advocate contended as under:- (i) That the Rent Controller had no jurisdiction to review its order dated 19.8.1996; (ii) Appellants admitted their default in payment of rent without offering any explanation, therefore, benefit of second proviso to Section 13 SubSection (2) was rightly extended to them on 19.8.1996, thereafter Controller, had no jurisdiction to recall the order to direct their ejectment; Raja M. Afsar learned counsel for respondent stated:- (i) It is not a case in which the Controller had reviewed its previous order dated 19.8.96 because that order was not an order under Section 13 Sub Section (2) but it was an order under Section 13(6) of the Ordinance of 1959, therefore, on framing the issue the Controller rightly concluded that appellants are not entitled to claim the benefit of second proviso to Section 13(2) because they had not admitted liability on the first date of hearing rather they submitted written statement raising therein a good number of objections. He relied on PLD 1991 SC 138. I have heard parties' counsel and also perused pleadings as well as impugned order carefully. Undoubtedly appellants after service effected upon Muhammad Siddique on 25.7.1996 and Mst. Zaib-un-Nisa before 08.08.1996 on their appearance either in person or through advocate did not offer payment of outstanding rent to landlord. In as much as when the written statement was filed by them even then unconditional offer was not made to deposit the rent. In this behalf perusal of written statement indicates that firstly there is preliminary objection that Eviction Application No. 5 of 1996 is already ending between the same parties including other brothers and sisters of the respondent in the same court, therefore, second application is not competent under the law. Similarly in Objection-B it was stated that alleged period of default as mentioned in the present eviction application is also involved in the earlier eviction application which is already pending in the court, therefore, in respect of one cause of action two legal proceedings are not competent. On merits they gave history of the case commencing from 14.10.1992 when agreement was executed by them with mother of the respondent objecting the legal status of the lady to enter into such agreement with them because as Grand Little Folks High School belongs to a Society under the name of Grand Little Folks Society which consists of 7 members, constituting of its Governing Body and the same is registered under the Societies' Registration Act etc. Similarly other parts of the eviction application were vehemently contested. But ultimately the liability was accepted to pay the rent with effect from death of Mrs. J.W. Nathenial, i.e., 11.2.1976 with undertaking that in terms of the order earlier passed in first eviction application they would continue making payment of the future rent. It appears that the Controller itself was not satisfied that the appellants deserve benefit of second proviso to Section 13 (2) of Ordinance VI of 1959 that is why instead of disposing of the matter on 19.8.1996 order was passed under Section 13(6) directing to appellants for making payment of rent from February 12, March, and April, 1996. At this juncture it may be noted that in the earlier Eviction Application No. 5/1996 Controller had not passed order for the deposit of the past rent as stated at bar by both the learned counsels that in those proceedings appellants were directed to deposit future rent from May, 1996 to onwards, therefore for the past rent in respect of the period mentioned in the instant second application the appellants prima facie were defaulters. Had they not committed default there was no occasion for them to make offer for the deposit of the rent when they submitted written statement in this application. In as much as in the earlier eviction proceedings which are still pending according to the statement of Raja M. Afsar they never attempted to hand over the rent of this very period or requested to court for permission to deposit the same in the Bank. With this background when the Controller itself had not passed order under second proviso to Section 13(2) of the Ordinance, 1959 thereby finally determining the proceeding it was decided on merits to ascertain whether they are entitled to the said proviso or not, therefore, I am not in agreement with learned counsel Mr. Muhammad Arshad Chaudhary that the Controller had its earlier order. Now turning towards the real issue which is the bone of contention between both the parties namely, whether appellants accepted first default without any objection and they were entitled for the benefit of second proviso to Section 13(2) of Ordinance, 1959 or otherwise. Since the liability to pay the rent was admitted, therefore, there is no doubt to conclude that default was committed by the appellants. As far as the question of condonation of default is concerned that depends on the admission by the tenant on first day of hearing of the eviction application as it has been discussed by honourable Supreme Court in the case of Hazrat Umar us. Zafar Majeed and 13 others (PLD 1991 SC 138). Relevant portion therefrom reads as under:- "We do hot agree with him. It was a disputed question whether or not the landlord had refused to receive the rent in the first instance, accordingly the appellant had disputed his liability to be evicted on the ground of default. In case like the present the condition in the Proviso would have been satisfied if the tenant would have, at proper time, accepted, amongst other conditions his liability to pay the rent. There was also liability to be evicted if the rent is not offered and paid as laid down in Proviso. In this case none of the conditions is satisfied. For example the appellant did not accept his liability to pay the rent. As to the facts, when he had filed the written statement, the rent, according to his own admission in para 5, of his written statement was still due. Notwithstanding the aforementioned averment in the written statement about rent he did not offer to pay the rent straightaway without raising any contest as is the intention underlying the Proviso. Accordingly, he cannot get any advantage on account of the newly-added proviso. In this behalf it needs to be remarked that it is the duty of the counsel appearing in such cases to advise the client properly so that he may be saved of the unnecessary contest, litigation and loss, monetary and otherwise to both the parties." In view of the above principle enunciated by honourable Supreme Court I am pursuaded to hold that as far as first date of hearing under the proceedings of Rent Restriction Ordinance, 1959 is concerned it cannot be equated with the hearing of case as it has been defined under Order 9 Rule 7 & 8 C.P.C. where expression 'hearing' has been interpreted to be a date when effective proceedings for the advancement of suit has to be carried out because second proviso to Section 13(2) was enacted for the purpose of benefit of tenants with the object to shorten litigation between the parties, subject to the condition that on the first date of hearing when tenant appears and he candidly and with unqualified statement admits liability and offers to make payment the Controller on accepting the offer made by the tenant would record the order directing him to deposit the rent and thereafter without even looking into merits of eviction application, what to talk of written statement or any thing else would summarily dismiss the eviction application. In the instant case as it has been pointed out hereinabove appellants after availing adjournments as it is indicative from the different dates which was obtained by them either on the pretext that copy of eviction application hs not been given to them or obtained the date of for filing wakalatnama and later on after full fledged consideration raising all the legal objections undisputedly availing all alternative safe guards/cushions against the eviction order had made a qualified statement, admitting liability to pay the rent with effect from 12.2.1996 to 30.4.1996, made a statement with all reservations by using the words before opening sentence 'save', therefore, it is not possible to hold that appellant made unqualified offer on the first date of hearing for payment of rent. Mr. Muhammad Arshad Chaudhary also referred to "Muhammad Siddique Qureshi versus District Judge Peshawar and others" (PLD 1993 SC 192); wherein. On facts it was held that because tenant without loss of time submitted written statement and straightaway accepted liability regarding arrears of the rent and also expressed willingness to pay the amount, through remitting the same to the landlord, but the learned Controller did not give decision on the eviction application and deferred it till finalisation of the eviction application, therefore, it was held that on account of the delay by the Controller to dispose of the issue regarding first default and offer by tenant to make his payment straightaway would not deprive him from the benefit of proviso to Section 13(2) of the Rent Restriction Ordinance. He also relied on Habibullah vs. Rent Controller Peshawar 1996 SCMR 362. In this judgment honourable Supreme Court has granted leave to consider whether High Court correctly extended benefit of Second Proviso of Section 13(VI) of the Ordinance, to tenants by entering business of partnership on the strength of specific deed was guilty of subletting of shop in question within the meaning of Section 13(2)(A) of the Ordinance. With utmost respect I may observe that so far this matter has not been finally disposed of by the apex court, therefore, in the absence of any principle of law enunciated in this judgment learned counsel cannot take its benefit. Raja M. Afsar had submitted an application being C.M.N 379/97 pointing out that appellants had managed to run school in a different building which they have acquired in front of Kansi Killa, therefore, for these reasons as well morally appellants are not entitled to continue in possession of the demised property. In my opinion this assertion would not be relevant for disposal of present proceedings, as respondent had not sought ejectment of appellants in any other ground except default in the payment of rent, therefore, I refrain from dilating upon this aspect of the case. Thus for the foregoing reasons I see no force in the appeal which is dismissed and order of Controller dated 06.11.996 directing ejectment of appellants is maintained. Parties shall bear their own costs. (B.T.) Appeal dismissed.
PLJ 1997 Quetta 249 (DB) PLJ 1997 Quetta 249 (DB) Present: JAVED IQBAL AND AMIRUL MULKMENGAL, JJ. MESSRS AGHA GAS CO. (PVT) LTD.-Petitioner versus THE CENTRAL BOARD OF REVENUE GOVT. OF PAKISTAN etc.-Respondents Constitutional Petition No. 80 of 1996, decided on 12.6.1996. (i) Constitution of Pakistan (1973)- -Art. 199-It is well settled that where a court or tribunal has jurisdiction and if determines the question it cannot be said that it acted illegally or with material irregularity, merely because it came to an erroneous decision on a question of fact or even of law. [P. 255] A (ii) Constitution of Pakistan, (1973)-- -Art. 199-Alternate remedy-Alternate remedy provided in the provisions of Customs Act 1969-Writ under Article 199 of Constitution of Pakistan, 1973 is not maintainable. [P. 256] B Syed Ayaz Zahoor, Advocate for the Petitioner. Rqja Rob Nawaz, D.A.G. for the Respondent. judgment Javed Iqbal, J.--This is a Constitutional petition preferred on behalf of M/s Agha Gas Company (Private) Limited Under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:- (a) Declaring that the action of respondents in taking away the exemption, available to petitioner by charging custom duty and sales tax, is in violation to the Petroleum Policy of 1994, as well as. SRO No. 367(I)/94 dated 9th May, 1994, ' SRO No. 109 (I)/94 dated 8th November, 1994, and letter dated 26th December, 1994 issued by the Ministry of petroleum. (b) Declaring further that the Policy laid down by the Respondent No. 1 in letter dated 6th February, 1996 and GGO 17/94, is not applicable in the case of petitioner. (c) Further declaring that the notice of demand dated 28 th February, 1996, issued by the respondents in view of the letter dated 6.2.1996, is totally without lawful authority and jurisdiction and of no legal consequence. (d) Directing the respondents not to charge Custom Duty and Sales Tax, on the goods imported by petitioner from Iran i.e. LPG Cylinders with valves. (e) Any other relief deems fit and proper in the circumstances of the case may also be awarded alongwith the cost of the petition, in the interest of justice. 2. Briefly state the facts of the case are that the petitioner is a Private Limited Company and is marketing LPG Cylinders throughout the country. A request was made to Government of Pakistan through Ministry of Petroleum and Natural Resources on 20th December, 1994 for the purpose of Importing 25000 LPG Cylinders with valves. Exemption from custom duty and sales tax was also sought in view of SRO 367(I)/94 dated 9th May, 1994. The petitioner was allowed to import the requisite article as his request was considered genuine and in accordance with SRO 1091/1/94 dated 8th November, 1994, letter dated 20.12.1994 and 26.12.1994 duly issued by Ministry of Petroleum, the letter dated 26th December, 1994 was also sent to Collector of Customs Excise and Sales Tax (Respondent No. 2) for favour of doing the needful. The petitioner also opened L.C. with the Allied Bank of Pakistan for U.S. Dollars 7.500/- for the purpose of importing 5000 LPG Cylinders with valves on 15.12.1994 from Iran. The said consignment reached Quetta Dry Port on 22.3.1995 and the relevant documents including invoice and bill of laning were furnished through custom clearing Agent but the respondent No. 2 refused to release the goods despite of permission granted to petitioner by means of SRO 367(I)/94 dated 9th May, 1994 and SRO 554 (I)/94 dated 9th June, 1994 and the letter dated 26th December, 1994 issued by Ministry of Petroleum. The goods were however, subsequently released on furnishing Bank Guarantee which was substituted with that of Corporate Guarantee to the tune of Rs. 16,71,036/-. The petitioner did his best to procure the Gas Cylinders with valves from Pakistan but he failed to get it as it was not locally manufactured item. The Fuji Metals Limited Rawlapindi and Cylinder Engineering Industry (Pvt) were contacted in this regard. The actions of respondents regarding charging of custom duty and sales tax being not in consonance with the above mentioned SRO's and Ministry of Petroleum Policy the Jurisdiction of this court under Article 199Tias been invoked. 3. It is mainly contended by Syed Ayaz Zahoor, Advocate on behalf of the petitioner that the goods imported are not liable to custom duty as per SRO dated 9th May, 1994 and Petroleum Policy and moreso, the Regulatory Authority which is Ministry of Petroleum and Natural Resources has given permission for importing the Gas Cylinders with Valves hence the question of Imposition of any sales tax or custom duty does not arise and as such the actions of respondents for imposing custom duty and sales tax is without lawful authority and as such liable to be declared as illegal. It is next contended that the petitioner infact imported machinery and equipment's in the shape of Cylinders and valves required for installation of LPG storage and Battery/Filling Station at Quetta as such he was entitled for exemption from sales tax and custom duty. It is also urged with vehemence that LPG Cylinders are not locally manufactured hence under compelling circumstances no other option was available to the petitioner except importing the same and that, too, with the permission of Ministry of Petroleum which cannot be ignored by the respondents. It is also argued that Central Board of Revenue (Respondent No. 1) has relied on Custom General Order 17/94 in withdrawing the benefit given to petitioner by ignoring the fact that the Fuji Metals has shown its inability to provide the same as they were not manufacturing the valves without which Cylinders cannot be utilized. 4. Learned Deputy Attorney General assisted by Assistant Collector (Legal) Customs appeared on behalf of respondents and vehemently opposed his Constitutional petition being not maintainable as "alternate remedy was available as provided under Section 193, 194 and 195 of the Customs Act 1969 which was not availed of by the petitioner. It is next contended that certain controversial questions as to whether the fequisite Gas Cylinders and Valves are locally manufactured or not are involved which cannot be adjudicated upon while exercising jurisdiction as conferred upon this court under Article 199 of the Constitution. It is also argued that Central Board of Revenue being the final authority has already decided the matter in accordance with law and no interference can be made as the verdict of Central Board of Revenue is in accordance with the above mentioned SRO's and moreso, the Ministry of Petroleum cannot dictate Central Board of Revenue for granting certain exemptions which are not permissible under law because Central Board of Revenue is the sole authority to decide such matters and the recommendations made by the Ministry of Petroleum cannot be termed as binding. It is also pointed out that L.C was opened first - and thereafter Ministry of Petroleum was approached and this action of the petitioner itself is malaftde and the petitioner has not approached this court with clean hands but an attempt has been made to avoid sales tax and custom duty which was devoid in accordance with law and no concession can be given in this regard. I 5. We have carefully examined the receptive contentions as adduced on behalf of petitioner and for respondents in the light of relevant provisions of law and record made available. The pivtol question to be determined seems to be as to whether SRO's 367(I)/94 can be made applicable in the peculiar circumstances of the cane and whether exemption as claimed by the petitioner is permissible or otherwise. It seems appropriate to reproduced the relevant portion of said SRO for ready reference:- GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE, REVENUE AND ECONOMIC AFFAIRS (REVENUE DIVISION) Islamabad, the 9th May, 1994. NOTIFICATION (CUSTOMS) SRO 336(I)/94i- In exercise of the powers conferred by section 19 of the Customs Act, 1969 (IV of 1969) sub section (1) off section 13 off the Sales Tax Act, 1990, and sub-section (2) of section 5 of the Finance Act, 1985 (1 of 1985), the Federal Government is pleased to exempt the machinery, equipment, materials, specialized vehicles, accessories spares, chemicals and consumable, as are not manufactured locally, if imported for the projects mentioned in column (2) of the table below for the phases and by the importers mentioned in columns (3) and (4) respectively of that table from custom duties including regulatory duties, sales tax and iqra surcharge to the extent specified in column (5) thereof, subject to the following conditions namely:- (1) Only such machinery, equipment, materials, specialized vehicles, accessories, spares, chemicals and consumable shall be entitled to the exemption under this notification, as are certified through Central Board of Revenue by the relevant Regulatory Authority from time to time terms of Annexure VI to the Petroleum Policy, 1994. The relevant Regulatory Authority shall take such measures as it deems necessary to ensure that the concerned companies, corporations and organizations entitled to avail exemption under this notification import only so much quantity of machinery, equipment; materials, specialized vehicles, accessories, spares, chemicals and consumable as is approved by the said Regulatory Authority in view of their actual project requirements. A bare perusal would indicate that Federal Government was pleased to exempt the machinery, equipment, materials, specialized vehicles, accessories, spares, chemicals and consumable which are not locally manufactured meaning thereby that a free hands was not given to the importers but it was subject to condition that the item mentioned in the said SRO can be imported free of sales tax and custom duty if they are not manufactured locally, it is obvious that the said condition was imposed to protect the Local Industry. The above reproduced portion of the said SRO further indicates that exemption undet the said SRO is also subject to certificate to be issued by Central Board of Revenue by the Relevant Regulatory Authority from time to time in terms of Annexure-VI to the Petroleum Policy-1994. It is, thus abundant clear that after the issuance of said Notification the role of Central Board of Revenue does not come to an end. The said Notification further provides that the items mentioned therein can be imported as determined by Regulatory Authority in view of the actual project requirements. Whether the items imported-by the petitioner were the actual project requirements or not being controversial facts, cannot determined by this court while exercising our Constitutional jurisdiction under Article 199 of the Constitutional. It is to be noted that LC was opened on 13.12.1994 and thereafter Ministry of Petroleum was approached on 28th December, 1994 while this action should have been taken prior to opening of .C. which could not be done for the reasons best known to the petitioner. We have carefully examined letter dated 26th December, 1994 relied upoaiy Shed Ayaz Zahoor, Advocate and relevant portion whereof runs as follows:- No. LPG-2(35)/94: Government of Pakistan Ministry of Petroleum and Natural Resources Department of Petroleum and Energy Resources; 21-E Huma Plaza , Blue Area. Islamabad, the 26th Dec. 1994. OFFICE MEMORANDUM: Subject: EXEMPTION FROM CUSTOMS DUTY AND SALES TAX VIDE SRO 367(1)794. DATED THE 9TH MAY. 1994 FOR THE IMPORT OF MACHINERY AND EQUIPMENT REQUIRED FOR INSTALLATION OF LGP STORAGE AND BOTTLING/FILLING STATION AT QUETTA. M/s Agha Gas Company (Pvt) Limited intends to import the machinery/equipment as per details given in their letter No. 786/AGC/94-I/20 dated the 20th December, 1994 (copy enclosed). The request of M/s Agha Gas Company (Pvt) Limited is genuine and it is recommended in accordance with SRO No. 109KD/94 dated the 8th November, 1994 that they may be allowed to import the said items without duty/sales tax etc., as per SRO 867(l)/94 dated the 9th May, 1994. Sd/- (MANSOOR MUZAFFAR AU) Director (LPG). The contents of above reproduced portion would indicate that the request of petitioner was considered as genuine and recommended in accordance wit SRO 109KD/94 dated 8th November, 1994. It may be kept in view that Ministry of Petroleum has made certain recommendation which are not binding in nature and the matter pertaining to interpretation or clarification of any SOR falls within the jurisdictional ambit of Central Board of Revenue. The above mentioned letter cannot be considered as binding, therefore, it hardly renders any assistance to the case of petitioner that exemption from sales tax and customs duty should be granted on the basis of said letter. It is worth while to mention here that the matter was also considered by Central Board of Revenue and following clarification was made:- GOVERNMENT OF PAKISTAN CENTRAL BOARD OF REVENUE Subject: REQUEST FOR EXEMPTION OF EXCISE DUTY AND SALES TAX ON LOCALLY MANUFACTURED CYLINDERS LPG. Kindly refer to Central Excise Budget's U.O. No. 1 (81)-CEB/Ist November, 1995 on the above subject and to way what the benefit of SRO 367(l)/94 dated 9.5.1994 is not admissible on locally manufactured goods since LPG cylinders are manufacture locally therefore, not entitled to duty free import under the said notification. Sd/- (KHALIQ NADEEM) Secretary Machinery Mr. Abdul Nisar Butt, Secretary (CE Bud) CBR Islamabad Mach. Section's U.O. No. 2(7) Mach/91 PT-3 dated 20.11.1995. The above mentioned letter makes it crystal clear that benefit of SRI 367(l)/94 was not considered admissible being applicable on locally manufactured-goods. It was also clarified that since LPG cylinders are manufactured locally therefore, duty free import was not allowed. The Central Board of Revenue has decided the matter after diligent consideration of relevant facts and no interference is called for as the clarification made by Central Board of Revenue is neither arbitrary nor or whimsical and the jurisdiction as conferred upon Central Board of Revenue has been exercised in accordance with law, we may point out here that such like orders can only be challenged by writ petition when the same are void, coram nonjudice or without jurisdiction. It is well settled by now that "the expressions" without lawful authority and of no legal effect: are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on a question of fact or even of law. It is well settled that where a court or tribunal has jurisdiction and if determines the question it cannot be said that it acted illegally or with material irregularity, merely because it came to an erroneous decision a question of fact or even of law": (PLD 1976 158 + PLD 1976 SC + PLD 1981 SC 846). It can thus be inferred safely that the clarification as made Central Board of Revenue cannot be reversed without sufficient legal justification which is apparently lacking in this petition. 6. We have also focused our attention whether any alternate remedy is available to petitioner or otherwise. It is worth while to mention here that the provisions as contained in relevant section of Customs Act, 1969 are capable enough to meet all sort of such eventualities and as such instead of invoking constitutional jurisdiction, the remedy as provided in Customs Act should be availed. It may not be out of place to mention here that, resort to jurisdiction under Article 199 should not be permitted if it amounts to circumvention of formal process of law. Writ Jurisdiction is not available to a person seeking to circumvent and defeat law by initiating parallel proceedings and substituting writ jurisdiction for remedy otherwise available in law. (NLR 1995 Labour 95). 7. A thorough scrutiny of record would transpire that Fugi Metals Limited was asked to supply 11.8 K.G. Cylinder fitted with 22 M. Valve and similarly Cylinder Engineering Industries (Pvt) Limited was asked for supply of 11.8. K.G. Cylinders fitted with 22 M. Valve but it is quite analyzing that the same category of Cylinders fitted with requisite valves were not imported but on the contrary 5000 LPG cylinders with valves weighing 11 K.G were imported from Iran. It is difficult to understand that what in fact was the exact demand of the petitioner. In such view of the matter it cannot be said that local manufactured industry failed to meet the requisite demand. It is worthwhile to mention here that Ministry of Petroleum was also requested to recommend their case for 11.8 K.G. Cylinder with needle valves but as mentioned earlier from Iran Cylinders of different quality was imported. We have also perused the case law as relied by Syed Ayaz Zahoor, Advocate (1993 SCMR 2308) is not applicable. Besides that L.C. was opened prior to competition of the mandatory formalities and subsequently in abortive attempt seems to have been made to fill in the gap in a haphazard manner to avoid the payment of requisite sales tax/custom duty which cannot be allowed to be done by invoking constitutional jurisdiction of this court. In view of what has been stated above, the petition being devoid of merits is dismissed. These are the reasons for our short order dated 14.5.1996. (TAF) Petition dismissed. The End
PLJ 1997 SC (AJK) 1 PLJ 1997 SC (AJK) 1 [Appellate Jurisdiction] Present: sardar said muhammad khan, c. J. and muhammad yunus SURAKHVI, J. MUHAMMAD IQBAL-Appellant versus ANWAAR ANWAR & another-Respondents Civil Appeal No. 43 of 1996, heard on 28.10.1996. [On appeal from the Judgment of the High Court dated 9-4-1996 in Civil Appeal No. 1 of 1995] (i) Appeal-- Appeal-Competency of-Pre-emption money-Deposit of-Date fixation of- Time, extension of-Held : High Court also possesses revisional jurisdiction and even if it is assumed that no appeal was competent, igh Court was competent to pass order extending time for depositing pre emption money in exercise of revisional jurisdiction. [P. 4] A (ii) Appeal-- -Appeal-Uncompetency of--Point non-raising of--Effect~Point regarding incompetency of appeal before High Court not raised-Held : Order could be passed in exercise of revisional jurisdiction, contention that mpugned order was not sustainable because no appeal lay to it, has no substance and repelled. [P. 4] B (iii) Civil Procedure Code, 1908 (V of 1908)-- O. XX R. 14-This is basic principle of law that a litigant should not be made to suffer for any mistake of court or clerk of court. [P. 5] C 1983 CLC 1912 ref. &rel Raja Muhammad Siddique Khan, Advocate, for Appellant. Raja ImdadAli Khan, Advocate, for Respondent No. 1. Date of hearing: 28.10.1996 judgment Sardar Said Muhammad Khan, C.J.--This appeal has been directed the judgment of the High Court dated 9-4-1996, whereby the appeal filed by the respondent, herein, was accepted and he was given extension of time for depositing the pre-emption money till 30-4-1996. 2. The brief facts of the case are that a pre-emption suit was filed by respondent in the Court of Sub-Judge, Kotli, alleging that in fact the land was sold for a consideration of Rs. 16,500/- but a fictitious amount of Ks. Ii5,000/- as consideration for suit land had been entered in the sale-deed. The trial Court, after the trial of the suit, passed a decree in favour of plaintiff-respondent on the payment of Rs. 25,000/- as price of the land plus Rs. 850.50 as costs incurred on the execution of the sale-deed. The plaintiff was directed vide its judgment dated 18-2-1988 to deposit the aforesaid amount in the trial Court till 10-3-1988, failing which the suit would have stood dismissed. The pre-emptor, Anwaar Anwar, preferred an appeal to the District Judge, Kotli, for the reduction of the consideration amount and also applied for the extension of time fixed by the trial Court for depositing the pre-emption money. The learned District Judge extended the time for depositing the pre-emption money till the 'decision of the appeal'. The appeal filed by the respondent was dismissed by the District Judge on 17-7-1990 but the District Judge did not fix any fresh date for depositing the pre-emption amount. The pre-emptor went up in appeal before the High Court but the same was also dismissed; the judgment of the High Court also did not contain any direction with regard to the depositing of pre-emption amount. Subsequently, the pre-ernptor filed an application before the Additional Sub-Judge, Kotli, on 31-5-1992 for accepting the pre-emption money as required (ii) Appeal- -Appeal--Uncompetency of-Point non-raising of--Effect-Point regarding incompetency of appeal before High Court not raised-Held : Order could be passed in exercise of revisional jurisdiction, contention that mpugned order was not sustainable because no appeal lay to it, has no substance and repelled. [P. 4] B (iii) Civil Procedure Code, 1908 (V of 1908)-- -O. XX R. 14-This is basic principle of law that a litigant should not be made to suffer for any mistake of court or clerk of court. [P. 5] C 1983 CLC 1912 ref. & re Raja Muhammad Siddique Khan, Advocate, for Appellant. Raja ImdadAli Khan, Advocate, for Respondent No. 1. Date of hearing: 28.10.1996 judgment Sardar Said Muhammad Khan, C.J.-This appeal has been directed the judgment of the High Court dated 9-4-1996, whereby the appeal filed by the respondent, herein, was accepted and he was given extension of time for depositing the pre-emption money till 30-4-1996. 2. The brief facts of the case are that a pre-emption suit was filed by respondent in the Court of Sub-Judge, Kotli, alleging that in fact the land was sold for a consideration of Rs. 16,500/- but a fictitious amount of Ms. 25,000/- as consideration for suit land had been entered in the sale-deed. The trial Court, after the trial of the suit, passed a decree in favour of plaintiff-respondent on the payment of Rs. 25,000/- as price of the land plus Rs. 850.50 as costs incurred on the execution of the sale-deed. The plaintiff was directed vide its judgment dated 18-2-1988 to deposit the aforesaid amount in the trial Court till 10-3-1988, failing which the suit would have stood dismissed. The pre-emptor, Anwaar Anwar, preferred an appeal to the District Judge, Kotli, for the reduction of the consideration amount and also applied for the extension of time fixed by the trial Court for depositing the pre-emption money. The learned District Judge extended the time for depositing the pre-emption money till the 'decision of the appeal'. The appeal filed by the respondent was dismissed by the District Judge on 17-7-1990 but the District Judge did not fix any fresh date for depositing the pre-emption amount. The pre-emptor went up in appeal before the High Court but the same was also dismissed; the judgment of the High Court also did not contain any direction with regard to the depositing of pre-emption amount. Subsequently, the pre-emptor filed an application before the Additional Sub- Judge, Kotli, on 31-5-1992 for accepting the pre-emption money as requiredby the decree of the trial Court. The Clerk of the Court of Additional Sub-Judge made a report on the application and finally the said application was returned to the pre-emptor on 17-6-1992 by Additional Sub-Judge with the direction that he should produce the copy of the order of the High Court suspending the time for depositing the pre-emption amount. Consequently, the respondent filed an application on 5-8-1992 before the District Judge seeking extension in the time for depositing the pre-emption amount. The learned District Judge dismissed the application and expressed the view that in the circumstances of the case he was not competent to extend the time. Consequently, an appeal was filed in the High Court against the order of District Judge which was accepted and the time was extended for depositing the pre-emption money till 30-4-1996. It is the aforesaid order of the High Court which has been challenged before this Court. 3, We have heard the arguments and perused the record. It has been argued by the learned counsel for the appellant, Raja Muhammad Siddique Khan, Advocate, that no appeal was competent before the High Court against the order of the District Judge and as such the impugned order of the High Court extending the time is not sustainable. The learned counsel has further argued that if the appellate Court while extending time for depositing the pre-emption money etc. does not fix a fresh date for depositing the pre-emption amount at the time of the disposal of the appeal, the pre-emptor must approach the relevant Court within a 'reasonable time' for depositing the amount in terms of the pre-emption decree. According to the learned counsel, in the instant case the High Court decided original appeal of the pre-emptor on 23-5-1992 but he made the application for the extension of time to the District Judge on 5-8-1992, after more than 2^ months. Thus, according to the learned counsel, it cannot be said that the pre-emptor promptly took steps for the compliance of the terms of the decree. The learned counsel has relied upon the following cases in support of his contention :- In case reported as Muhammad Arif Khan v. Jahandad Khan [1993 SCR 230], it has been held that if in a pre-emption case the Court does not record in the relevant order that in case of default in depositing the pre emption amount, 'the suit shall stand dismissed', then the Court would still have seizin over the matter and can extend time under section 148 CPC. In Muhammad Akbarv. Mst. Faziha Begum [1983 CLC 1912], it has been held that if the trial Court fixes a specific date for the payment of the purchase money and costs but the appellate Court suspends the time till the decision of the appeal and at the time of disposal of the appeal does not fix a fresh date for depositing the pre-emption money, the plaintiff-decree-holder must approach the Court within reasonable time for depositing the amount. It was opined as to what would be 'reasonable time' for depositing the amount would generally depend upon the general practice of the Court in such cases and also the time which was originally allowed by the trial Court for depositing the pre-emption money. It was held that generally one month . -mid be deemed to be a 'reasonable time' for doing the needful. In case reported as Muhammad Shamoon V. Mohabat Khan [PLD 1984 S.C. (AJ&K) 94], it was observed that time originally fixed by the trial Court for depositing the pre-emption amount would be deemed to be a reasonable time in case when a new period for depositing the pre-emption money is not fixed by the appellate Court, thirty days were held reasonable for doing the needful. 4. Raja Imdad Ali Khan, Advocate, the learned counsel for the respondent, controverted the arguments advanced by the learned counsel for the appellant on all scores. He has argued that the plaintiff-respondent could not be punished for the mistake of the District Judge by omitting to fix the time for depositing the pre-emption money. He has argued that in the instant case, the pre-emptor- espondent first approached before the trial Court and tendered pre-emption amount but the same was not accepted and the application was returned to him by the Additional Sub-Judge. Thereafter, he applied to the District Judge for extension of time for depositing the pre-emption money. The learned counsel has argued that the plaintiff was neither at fault nor he was negligent. 5. We have given due consideration to the matter. So far as the point that no appeal was competent to the High Court against the order of the District Judge is concerned. It may be stated that the High Court also possesses the revisional jurisdiction and even if it is assumed that no appeal was competent, the High Court was competent to pass the order extending the time for depositing pre-emption money in exercise of revisional jurisdiction. Besides, the point regarding incompetency of the appeal before the High Court was not raised before it and, thus, there are no findings on this point in the High Court. owever, as the impugned order could be passed in exercise of revisional jurisdiction, the contention of the learned counsel for the appellant that order of the High Court is not sustainable because no appeal lay to it, has no substance and is hereby repelled. 6. The next point which needs resol tion is as to whether the plaintiff-respondent approached the Court within the reasonable time for depositing the pre-emption amount. The perusal of the ecord shows that the time originally fixed by the trial Court for depositing the pre-emption money was about one month. After the dismissal of the appeal by the High Court, the plaintiff-respondent submitted an application before the Additional Sub-Judge, Kotli, on 31-5-1992, i.e., after eight days of the disposal of the appeal by the High Court, meaning thereby that he tendered the money to the trial Court within the period of one month which was originally fixed by the trial Court for doing the needful. The authorities relied upon by the learned counsel for the appellant, referred to above, also lay down the principle that normally the 'reasonable time' for depositing the pre-emption money would be the period which was originally fixed by the trial Court for the compliance of the pre-emption decree. It may be stated here that the learned Additional Sub-Judge passed an order on the said application on 17-6-1992 that the amount could be deposited only if the preemptor-respondent produces the 'stay order' of the High Court with regard to depositing of the pre-emption money. It is correct that thereafter, the respondent approached to the District Judge on 5-8-1992 for the extension of time, i.e., after about 48 days, but the fact remains that originally he appeared before the Additional Sub-Judge, as indicated above, well within one month. Therefore, his subsequent application before the District Judge would not brush aside his earlier effort for depositing the pre-emption amount in the Court of Sub-Judge, especially so when according to the judgment and decree of the trial Court, the amount was to be deposited in the trial Court and not in any of the appellate Courts. Under these circumstances, we do not subscribe to the contention of the learned counsel for the appellant that as the respondent did not promptly seek the redressal of his grievance from the District Judge after his application was returned to him by the trial Court, the time for doing the needful should not have been extended. It may be also observed that this is the basic principle of law that a litigant should not be made to suffer for any mistake of the Court or Clerk of the Court. Taking into consideration the provisions contained in Rule 14 of Order XX, C.P.C., this Court has opined in case reported as Muhammad Akbar v. Mst. Faziha Begum [1983 CLC 1912], referred to above, that the District Judge was legally bound to fix the new date at the time of the disposal of the appeal, on or before which the pre-emption money were to be deposited by the pre-emptor-respondent; and that by failing to fix a new date he committed an illegality. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. (A.B.) Appeal dismissed.
PLJ 1997 SC (AJ&K) 6 [Appellate Jurisdiction] PLJ 1997 SC (AJ&K) 6 [Appellate Jurisdiction] Present: basharat ahmed shaikh and muhammad younus surakhvi, JJ. Mrs. IFF AT ARA SALEEM-Appellant versus SARDAR MUHAMMAD KHURSHID KHAN and 35 others-Respondents Civil Appeal No. 64 of 1995, dismissed on 21-5-96. [On appeal from the judgment of the High Court dated 27-7-1995 in W.P. No. 116 of 1994]. Service Matter- Service matter-Seniority-Determination of-High Court has no jurisdiction to hear a dispute relating to terms and conditions of service- However, High Court has jurisdiction to issue a irection that departmental authority may dispose of a dispute within a reasonable time if High Court is satisfied that departmental authority is procrastinating or refusing to pass a final order-Appeal dismissed. [P. 8] A M. Tabbasum Aftab AM, Advocate for Appellant. Sardar Rafique Mahmood Khan, Advocate for Respondents. Date of hearing: 12-5-98. judgment Basharat Ahmad Shaikh, J.--The High Court has accepted a writ petition filed by respondent No. 1 and has issued a direction to the Chief Secretary and Secretary Services to dispose of the case of the said respondent pending with them within three months. 2. The facts of the case are that respondent No. 1 Sardar Muhammad Khurshid Khan filed a writ petition in the High Court on 16th of August 1994 in which he prayed that the Chief Secretary, Secretary Services and Azad Government of the State of Jaminu and Kashmir may be directed that order passed by the Prime Minister on 3rd of November 1993 may be implemented. He also sought a direction that "no further amendment or any interference be made in the order." The order of 3rd of November 1993 sought to be implemented through the writ petition, which was attached as Annexure "E", was to the effect that the departmental appeal filed by Sardar Muhammad Khurshid Khan, Principal Agrotechnical Teachers Training School Muzaffarabad, was accepted and the said civil servant was absorbed in the general school cadre with effect from 22nd of June 1977 and he was given seniority in grade-18 from the aforesaid date. It was averred in the writ petition that the order of 3rd of November 1993 was not implemented by Secretary Services and General Administration. Subsequently the matter was brought to the notice of the Prime Minister who issued a direction on 26th of January, 1994 that the aforesaid order may be implemented. Thereafter on a note written by the Minister of Education the Prime Minister issued an order on 22nd of February 1994 that the matter may be kept pending and may be decided after hearing a large number of teachers of the general school cadre, who were said to have been adversely affected by the Notification of 3rd of November 1993. On 8th of February 1994 the case was marked by the Prime Minister to his Special Assistant on an appeal filed by the President of Headmasters/Secondaiy Schools Officers Association with a direction to consolidate all the appeals and to decide the matter after hearing the affected persons belonging to the general cadre. On 25th of March 1994 the Special Assistant submitted a note to the Prime Minister that the appeals and representations were not maintainable. He recommended that the order proposed by him on 26th of January 1994 may be issued. It was submitted in the writ petition that in spite of the decision given by the Special Assistant, who was described as the appellate authority, Notification dated 3rd of November had not been given effect to and junior persons were promoted and given higher grade. Along with the writ petition an application for interim relief was also moved in which it was stated that the petitioner before the High Court, Sardar Muhammad Khurshid Khan, apprehended that the respondents were processing a file for seeking an amendment in the order. It was prayed that a status quo order may be issued. The application was granted by the High Court on 23rd of August 1995 by ordering that status quo will be maintained. 3. The present appellant Mrs. Iffat Ara moved an application on 30th of January 1995 praying that she may be impleaded as a respondent in the writ petition. In the application she stated that he order of 3rd of November 1993, which was sought to be implemented through writ petition, had been challenged by her in the Service Tribunal by filing an appeal after exhausting the departmental emedy. She also stated that the review petition filed by her before the Prime Minister had been meanwhile accepted and a formal Notification vacating the order of 3rd of November 1993 was about to be issued when Sardar Muhammad Khurshid Khan obtained the stay order of the High Court. She duly filed an affidavit in support of her submissions. The application for being impleaded as a party was accepted. Another application was filed by a large number of other civil servants belonging to the general cadre of Education Department and they were also impleaded as respondents. 4. In the judgment under appeal a learned Judge in the High Court, ho was seized of the writ petition, has observed in para 6 of the judgment that question of determining the seniority of the parties in the writ petition was out of the purview of the High Court. It was further observed that in this respect the competent authority had issued a Notification on 3rd of November 1993 but two subsequent orders were also issued on 26th of January 1994 and 25th of March 1994. The learned Judge, however, observed that it was within the competence of the High Court to issue a direction to the State functionaries to decide a matter within a time to be specified by the High Court in this connection. The learned Judge reproduced the following paragraph from a judgment of this Court Raja Naveed Hussain Khan and others v. Qazi Khalilur Rehman and others (1994 SCR 267) :-- "The observation of the Supreme Court of Pakistan that where the departmental authorities procrastinate or refuse to pass a final order the remedy for the aggrieved civil servant is to seek a constitutional remedy refers to a direction that the matter pending with the departmental authority may be disposed of. It nowhere lays down that if a matter is delayed as aforesaid the jurisdiction of the High Court is attracted so that it may give direction by itself determining terms and conditions of service." The learned Judge expressed the view that the Secretary Services had adopted procrastinating attitude. In this view of the matter, as mentioned earlier, the High Court issued a direction to the Chief Secretary and Secretary Services to dispose of the matter within three months. 5. The learned counsel for the appellant submitted before us that he order of 3rd of November 1993, which was sought to be implemented through writ petition, had already been rescinded on a review etition filed by the present appellant but when the Notification was about to be issued respondent Sardar Muhammad Khurshid Khan approached the High Court and obtained a stay order which was not within the ompetence of the High Court. He addressed arguments in support of the appeal and submitted that the order of the High Court may be set aside. The learned counsel for the respondents, Sardar Rafique ahmood Khan, opposed the acceptance of the appeal on the ground that it is in the interest of justice and to the benefit of both the parties that the dispute between the parties is settled by the concerned State functionaries within the time stipulated by the High Court. 6. Our view is that direction given by the High Cou t advances the ends of justice and does not suffer from any jurisdictional defect. Admittedly the High Court has no jurisdiction to hear a dispute relating to terms and conditions of service. This position has been duly followed by the High Court in the judgment under appeal. However, the High Court has the jurisdiction to issue a direction that departmental authority may dispose of a dispute within a reasonable time if the High Court is satisfied that the departmental authority is procrastinating or is refusing to pass a final order. When this legal position was pointed out to the learned counsel for the appellant he rew our attention to some portions of the judgment under appeal to contend that some of the observations tend to support the case of respondent, Sardar Muhammad Khurshid Khan. We have gone through the relevant portions and we are of the view that apprehension is misconceived. All the observations made in the judgment under appeal have been made to show that unnecessary delay was being committed by the departmental authority. However, in view of the apprehension of the learned counsel for the appellant we may observe that departmental authorities shall not be influenced one way or the other from the observations made by the High Court or in this judgment while deciding the dispute between the parties in the present controversy. 7. The High Court fixed a period of three months for disposal of the dispute. Since the time has already elapsed it is clarified that three months period would commence from the date on which this judgment is announced. With the observations made above we dismiss the appeal without any order as to costs. (S.R.) Appeal dismissed.
PLJ 1997 S PLJ 1997 S.C. (AJ&K) 9 [Appellate Jurisdiction] Present: sardar said muhammad khan, CJ. and muhammad younus surakhvi, J. REHMAT ALI and anothers-Appellants versus SOOFI MUHAMMAD AZAM-Respondent Civil Appeal No. 11 of 1996 dismissed on 5-6-96. [On appeal from the judgment of the High Court dated 15-10-1995 in Civil Appeal No. 56 of 1994]. Pre-emption- Pre-emption-Preferential right as co-sharer in khewatTrisl Court decreed suit on the ground that plaintiff being co sharer in 'khewat' was entitled to decree of whole land sold-Plaintiff was not entitled to decree of Survey No. as he was not co-sharer in that Numbers-Decree of whole of suit land on basis of pre-emption is violative of lawContentionHeld : A co-sharer in a specific survey number of a 'khewat' has right of preemption in respect of other survey numbers of same 'khewat' in which he is not recorded as co-sharer in revenue recordAppeal dismissed. [P. 16] A PLD 1977 AJ&K 40, PLD 1984 SC (AJ&K) 381, PLD 1970 Peshawar 160, PLD 1959 SC 9,1986 CLC 2672, PLD 1984 SC (AJ&K) 122, PLD 1981 SC 148, ref. Kh. All Muhammad, Advocate for Appellants. Ch. Muhammad Sharif Tariq, Advocate for Respondent. Date of hearing: 22-5-1996. judgment Sardar Said Muhammad Khan, C.J.--This appeal has been directed against the judgment of the High Court dated 15-10-1995, whereby the appeal filed by the appellants, herein, was dismissed. The brief facts of the case are that the suit land measuring 3 kanals 9 marlas comprising survey No. 3461 min and 3462 inin, 'khewat' No. 140 'khata' No. 1159, situate in village Boa, Tehsil and District Mirpur, was sold through a sale-deed dated 17-3-1986 for an ostensible consideration of Rs. 17,000/-. It may be stated here that 2 kanals 14 marlas of land was sold comprising survey No. 3461 min while 15 marlas of land was transferred from the land comprising survey No. 3462 min. Muhammad Azam, plaintiffrespondent, pre-empted the suit land on the ground that he was a co-sharer in the 'khewat' which includes survey Nos. 3461 min and 3462 min. The trial Court came to the conclusion that the plaintiff-respondent was a co-sharer in survey No. 3461 min and was not a co-sharer in survey No. 3462 min. But all the same decreed the suit of the plaintiff-respondent on the ground that he, being co-sharer in the 'khewat' was entitled to decree of the whole land sold. We have heard the arguments and gone through the record. Kh. Ah' Muhammad, Advocate, the learned counsel for the appellants, has argued that the plaintiff-respondent was not a co-sharer in the property because a specific plot of the land was transferred. In alternative, he submitted that in any case the plaintiff-respondent was not entitled in decree comprising survey No. 3462 min because the pre-emptor was not a co-sharer in the aforesaid survey number. According to the learned counsel, the decree of whole of the suit land on the basis of pre-emption is violative of law. The learned counsel for the appellants has cited following authorities in support of his contentions :-- In case reported as Abdul Rehman v. Muhammad Afsar Khan [PLD 1978 SC (AJ&K) 156], the pre-emptor was initially entered as landlord of the land in dispute; Muhammad Qasim, vendor, who was admittedly an occupancy tenant, in the year 1962 acquired the proprietary rights of the suit land under section 25 of the Land Reforms Act, and became owner of the suit land. The plaintiff, who was formerly a landlord of the suit land, claimed that even after the acquisition of the proprietary rights of the occupancy tenant (vendor), he retained the ownership of the land comprising survey No. 4849 which was not included in the occupancy tenancy but this survey number was also included in the former 'khewat' No. 401. Thus, according to pre-emptor, he being an owner of the aforesaid number which was a part of the 'khewat' had preferential right of pre-emption as co-sharer. The Court, after dealing with the scope of the words 'khatooni', 'khewat' and 'mahaT occurring in the relevant law and the word 'co-sharer' appearing in the Right of Prior Purchase Act came to the conclusion that the contention of the appellant that as he was a co-sharer in survey No. 4849, the former 'khewat', he would be deemed to be a co-sharer in suit land, was not accepted. It was observed that after the acquisition of the proprietary rights under the Land Reforms Act in 1962, arid the attestation of the mutation in favour of the occupancy tenants, a new holding had come into existence and, thus, the pre-emptor did not remain a co-sharer in the suit land. Therefore, his appeal was dismissed as he had lost the right of pre-emption long before the execution of the sale-deed which was pre-empted. In case reported as Hassan Muhammad v. Muhammad Hussain [PLD 1977 Azad J & K 40], while dealing with the scope of the term 'cosharer', it was observed as under :- "Who is a co-sharer? The term has not been defined anywhere either in the Pre-emption Act or in the Land Revenue Act or the Tenancy Act and no precise definition has been attempted, to my knowledge, so far. It consists of two words, 'co' and 'sharer'. 'Co' has been defined by Webster as 'signifying in general with, together, in conjunction, jointly, and is used : (1) with verbs; as, cosustain, to sustain jointly; co-adjust, to adjust mutually; co operate; co-exist etc. (2) with participles, adjectives, and adverbs, with the sense of in or to the same degree, amount, etc.; as, co-extensive, co-equal, co-eval, co-extensively, coequally, 3(a) with nouns in general, often importing rights or liabilities which are joint or in common; as co-education, co-adventure, co-eternity, co-indication, co-portion, coinheritance; (b) with nouns of agency, officer or occupation in particular: fellow; as co-author, co-partaker, co-deter etc. etc." It was further observed that a vendee of a specific plot sold by one of the joint owners of the property undoubtedly steps into the shoes of the vendor and, thus, where no partition has previously taken place between the co-sharers, he becomes co-sharer with other owners. It was opined that all the co-sharers had the right of ownership in the said plot until regular partition takes place; in the capacity of a co-sharer, as a successor of a vendor, had a right of ownership in each iota of joint land held by other co-sharer, although he might have purchased only a specific plot of the land by the co-sharer in possession. In case reported as Ghulam Begum v. Khan Muhammad Khan (PLD 1984 SC (AJ&K) 38), it was observed that a purchaser of a specific survey number does not, ipso facto, becomes a co-sharer in other survey number of the 'khewat'. However, it was observed, there was an exception to this rulethat if a person purchased a fractional share of the survey number, he, of course, would become a co-sharer in other survey number of the 'khewat'. The Court, while dealing with the question, observed as under :-- "12. It is also the cardinal principle of law that if a person purchases specific survey numbers he cannot, ipso facto, become co-sharer in other survey numbers of the Tchewat'. There is, however, one exception to it; if a person purchases a fractional share, he, of course, becomes a sharer in other survey numbers of the 'khewat'. The instant case, however, is an exception to this settled principle of law inasmuch as in this case the appellant had purchased cnly occupancy rights of the land under Survey Nos. 457 and 476 min. He has no interest with other survey numbers purchased by the vendee-respondents. Obviously he cannot, having the character of an occupancy tenant, be a co-sharer in other survey numbers of the 'khewat' whose proprietary rights and not the occupancy rights had been purchased by the respondents. The appellant, having a different character of interest, cannot be deemed to have any interest whatsoever in other survey numbers of the land falling under the 'khewat' and whose proprietary rights had been purchased by the respondent-vendees. The appellant has only occupancy rights in two survey numbers and he cannot be said to be a co-sharer of the land whose proprietary rights have been purchased by the respondents though the land falls under the same 'khewat'." It is evident from the above observations that the question as to whether the person who is a co-sharer in one of the survey numbers of a 'khewat' would be deemed to be a co-sharer for the purposes of pre-emption, was not directly involved in that case. However, the Court observed that if a person is purchaser of a specific survey number of a 'khewat', he cannot, ipso facto, become a co-sharer in other survey numbers of the same 'khewat' but at the same time the Court expressed the view that a purchaser of a fractional share of a 'khewat' would be deemed to be a co-sharer in other survey numbers of the 'khewat'. The aforesaid expressions are paradoxical and do not help the case of the appellant. Mr. Muhammad Sharif Tariq, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that if the land is sold out of one survey numbers comprised in the 'khewat', an owner who is not a co-sharer in the survey number sold but is co-sharer in other survey number of the same 'khewat', he would be deemed to be a co-sharer for the purpose of pre emption because, 'survey number' or field' in a 'khewat' is created merely for the convenience of the owners. The learned counsel has reh'ed upon the following authorities in support of his contentions:-- In case reported as Muhammad Yusaf v. Sikandar [PLD 1970 Peshawar 160], it was held that a 'khewat' containing different survey numbers constitute one compact holding and, thus, a person who is cosharer even in any one of the survey numbers would be deemed to be a co-sharer in the property though he is not a co-sharer in all the survey numbers of the 'khewat'. It was observed by the learned Judges as under :-- " .... The fact of the matter is that although a field or a parcel of land is assigned a particular number, it is not as a result of the division of the property, but is only for convenience of purpose, to be achieved in the matter of survey or the cropinspection. The sale of a parcel of land comprised in more than one Khasra number will not be the sale of as many properties as there are field numbers, but will be only of one roperty represented by that parcel of land. The reason given for dissenting from the judgment in Abdul Shakur v. Abdul Ghafur being unsustainable, the view taken by their Lordships of the Allahabad High Court is, for the reasons given by them, and also in view of the peculiar scope and position of a field number under the law prevailing here as we have discussed above, unexceptionable. The view taken by the High Court so far was on erroneous assumption that each and every khasra or a field constitutes a separate property. The assumption being mistaken, the conclusion based on that, that for the purposes of pre-emption each Khasra number is to be considered separately, though they are contiguous to each other, and the pre-emptor must prove his right based on contiguity in respect of each and every Khasra number before he can succeed was not correct. In our opinion, in order that a person may pre-empt the sale of a block of land comprised in different Khasra numbers, it is not necessary that he should have his property contiguous to all the Khasra numbers and that if his property is contiguous to any part of the block or parcel of land though comprised in a number of Khasras, he will have the right to pre-empt the entire land comprised in the Khasra numbers." In case reported as Muhammad Muzaffar Khan v. Muhammad Yusuf Khan [PLD 1959 SC (Pak.) 9], it was observed that if a vendor was in exclusive possession of certain portion of joint land and transferred its possession to the vendee so long there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua his ownership rights in the joint property to the extent of area purchased by him. Thus, it was held that alienation of specific plot transferred to the vendee would only entitle him to retain his possession till regular partition takes place between the parties. It was observed that in such eventuality, it cannot be said that vendee of a specific plot from a co-sharer in an undivided 'khata' is not a co-sharer in that 'khata'. (Underlining is ours). In Muhammad Sharif v. Shabbir Hussain [1986 CLC 2672], it was observed that a person purchasing a specific khasra number and not a fractional share of the 'khewat' would be deemed to be a co-sharer within the meaning of section 15(b) of the Punjab Pre-emption Act because. 'khewat' was not divided by regular partition. Consequently, the contention that a purchaser of a specific plot and not a fractional share of a 'khewat', would now be deemed to be co-sharer in the land was repelled. In case reported as Muhammad Hussain v. Hassan Muhammad [PLD 1984 SC (AJ&K) 122], it was contended that as the transfer was made by preparing the site plan ' ^cr~ ' out of a specific survey number, the other co-sharer in the 'khewat' or the survey number would not be co-owner in the land sold because, a specific portion was transferred in pursuance of the' ^Jr^ ^J^> '. It was observed that a transfer to a co-sharer to any person out of joint property would make the transferee a co-sharer, irrespective of the fact whether land transferred was a specific plot or not. Therefore, the contention that as the land was sold out of joint property after preparing the site plan, the other co-sharer would not be co-sharer in the land sold, was repelled. In an unreported case of this Court entitled Lai Din v. Muhammad Afsar (Civil Appeal No. 10 of 1990 decided on 23-1-1991) it was observed that mere fact that the property has been assigned a different survey numbers as a result of sale on the basis of possession would not take out the property from the joint ownership of all the owners in the 'khewat'. While dealing with the proposition this Court observed as under :--
"It appears that the High Court was impressed by the fact that while mutating the gift in favour of Lai Din, survey No. 314 was sub-divided by the Revenue officials and the transferred land was allocated a separate number and for that purpose a map was also drawn on the reverse side of the mutation sheet. This procedure is followed by the Revenue officials to show separate possession and does not denote the fact that shares in the land had been partitioned as is the conclusion drawn by the High Court. This procedure followed by the Revenue authorities owes its authority from chapter 7 of the Land Records Manual in which the opening part of para 7 runs as follows :-- '7.8. Transfer of portion of field: if a part or a share of a field has been transferred and separate possession has been taken, draw on the back of the mutation sheet and its counterfoil a map of the whole field and show as a sub-number the part transferred. No partition proceedings are necessary.' It follows that when survey No. 1013/314 was entered in the record it was not a separate survey number but was a sub-number of survey No. 314 and was only meant to indicate the part of khasra number which had been transferred. Even otherwise whether it is called a separate number or a sub-number is not material because it is a matter of form. The substance is the clear legal position that it was not a partitioning of shares." As has already been referred to above, in Full Bench case reported as Muhammad Yusuf v. Sikandar [PLD 1970 Peshawar 160], it was held that sale of a parcel of land comprised in more than one khasra numbers will not be a sale of as many properties as there are field numbers but will be only one property represented by the parcel of the land. It was further observed that the view that for the purpose of pre-emption, each khasra number is to be considered separately, was held not sustainable. The view taken by the Full Bench again came up for consideration before the Supreme Court of Pakistan in another case reported as Said Karim Shah v. Tai Muhammad [PLD 1974 SC 383] in which the aforesaid view was approved by the Supreme Court of Pakistan and the contrary view taken by Peshawar High Court in some earlier cases was overruled. While speaking for the Court, Waheeduddin Ahmad, J. (as he then was) observed as under:- "In my opinion, the discussion on this point by the Full Bench correctly appreciates the legal position of a Khasra or a field bearing number. It appears to me also to be just the same asdifferent rooms in a house which do not themselves become different houses or different properties. In the same way, different Khasra numbers, in a holding or property do not become different properties in themselves." The view taken in the aforesaid case was again confirmed by the Supreme Court of Pakistan in case reported as Ahmad Khan v. Sattar Din [PLD 1981 SC 148], wherein while dealing the proposition, the following observation was made ty the Court :-- There is still another aspect of the matter, namely that the High Court was also in error in taking the view that the plaintiff had to prove contiguity in respect of each Khasra number comprised inthe sale, as Khasra Nos. 110 and 111 clearly form part of a compact block of land sold by the vendor. In such a case contiguity with even one of the Khasra numbers would entitle the plaintiff to claim the entire holding comprised in the sale, as held by this Court in Said Karim Shah's case. The matter was considered at great length and it was held that the different Khasra numbers comprised in one holding do not become different properties in themselves, and the sale of a parcel and land comprised inmore than one Khasra numbers did not constitute sale of as many properties as field numbers; it remained sale of one property, and if the plaintiff was owner of one Khasra number adjoining only one of the Khasra numbers sold, he could seek pre-emption on the ground of vicinage in respect of all the Khasra numbers. In this regard the view expressed by the Peshawar High Court in Muhammad Yusaf v. Sikandar [PLD 1970 Peshawar 160], was approved, and the view earlier expressed in several judgments of the Peshawar High Court including Qalandar Khan v. Qazi Pir Muhammad Khan [PLD 1956 Pesh. 1] was overruled. It will be seen, therefore, that this being the admitted position that the two Khasra numbers with which we are dealing, from one compact block, the plaintiff pre-emptor could succeed in respect of both on the ground of vicinage with one of these fields. On this ground also the High Court was in error in thinking that the right of pre-emption of the respondent did not extend to Khasra No. 110." In the aforesaid case, the Court also dealt with the principle of Muslim law on the point and relying upon some treatises on Muslim law came to the conclusion that even according to Muslim law the right of pre emption in case of agricultural estates is not merely confined to the small plots of the land but extends to the larger estates of which the same are a part. It may be pointed out here that under section 3 of the Act known as Azad Jammu and Kashmir Enforcement of Shariat Act, 1989, the Shari'ah has been declared as supreme law in Azad Kashmir. Under section 9 of the said Act, it has been laid down that if two interpretations of a statute are possible, then one consistent with Islamic principles and jurisprudence shall be adopted by the Court. Therefore, even on that score it cannot be said that the right of pre-emption is to be proved in relation to each of the survey numbers of a'khewat'. Thus, the view taken by the Supreme Court of Pakistan is that in case the right of pre-emption is exercised on the basis of contiguity, the pre-emptor need not prove that he is owner of the land contiguous to each of the survey numbers of the block sold. We are of the view that on the same analogy a co-sharer in a specific survey number of a 'khewat' has right of pre-emption in respect of the other survey numbers of the same 'khewat' in which he is not recorded as co-sharer in the revenue record. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. (S.R.) Appeal dismissed.
PLJ 1997 S PLJ 1997 S.C. (AJ&K) 17 [Review Jurisdiction] Present : basharat ahmad shaikh and muhammad yunas surakhvi, JJ Kh. GHULAM QADIR & another-Petitioners versus MUHAMMAD SHARIF & 18 others-Respondents Civil Review Petition No. 2 of 1996, decided on 18-11-1996. [In the matter of review of the judgment of the Supreme Court dated 17-2-1996 in Civil Appeal No. 30 of 1995]. (i) Attorney-Appointment of-- Supreme Court Rules do not prohibit appointment of an attorney. [P. 19] C (ii) Contrat Act, 1872 (IX of 1872)-- S. 182-Agent-Appointment of~Law of land, gives to a citizen, right to appoint an agent to act on his behalf. [P. 19] A (iii) Contract Act, 1872 (IX of 1872)- S. 182-Agent-Defmition of-An Attorney falls within the definition of an agent. [P. 19] B (iv) Maxim- Quiper alium facit per seipsum facere videtur (Meaning)He who does an act through another is deemed in law to do it himself. [P. 19] D Mr. M. Tabassum Aftab Alvi, Advocate for the Petitioners. Date of hearing: 13.10.96. judgment Basharat Ahmad Shaikh, J.--This is a review petition which has been filed for recalling judgment of this Court in Civil Appeal No. 30 of 1995 titled Muhammad Sharif and others vs. Kh. Ghulam Qadir ami other announced on 17th of February 1996. In a nutshell the facts are that respondents Muhammad Sharif and others filed a suit in the Court of Sub-Judge on 1st of April 1993 seeking a declaration about allotment of evacuee land which stood in the name uf petitioners, Kh. Ghulam Qadir and Kh. Manzoor Ahmad. The learned Sub Judge rejected the plaint on the ground that it did not disclose any cause of action and that the jurisdiction of the civil Court was arred. The present respondents filed appeal before the District Judge which was accompanied by an application for temporary injunction. An ad interim injunction was granted but it was cancelled after hearing the other side. The petitioners took a revision to the High Court. The High Court not only upheld the order passed by the District Judge but also dismissed the appeal ending before the District Judge on the ground that the matter stood concluded by a judgment of this Court. Petitioners filed appeal before this Court which was accepted by a judgment which is now sought to be reviewed. This Court upheld the order of the High Court insofar as it related to the dispute about temporary injunction but set aside that part of the aforesaid judgment whereby the appeal pending before the District Judge against the rejection of the plaint was dismissed. It was held that the learned District Judge was still seized of the appeal whether the plaint was rightly rejected by the trial Court or not and it could not be dismissed by the High Court. The learned counsel for the petitioner. Mr. M. Tabassum Aftab Alvi has raised two grounds in support of the petition, namely :-- (i) the dismissal by the High Court of the appeal pending before the District Judge was in accordance with law laid down by this Court in Zaighum Saleem Khan v. Muhammad Saleem Khan and another (1992 SCR 344); and (ii) the appeal filed in this Court on behalf of respondents Muhammad Sharif and others was liable to be rejected on the ground that it had been presented by an attorney which is not allowed by the Azad Jammu and Kashmir Supreme Court Rules, this point was urged during the arguments in the case but was left undecided. We have gone through the judgment in Zaighum Saleem Khan's case. The facts were that a suit was sub judice before the trial Court when the matter came up before the High Court in connection with interim relief. Before the High Court some documents were placed on record to show that the dispute raised in the suit stood already concluded by a previous judgment. Thereupon a notice was given to the plaintiff asking him to show cause why his suit should not be dismissed being barred by res judicata. Consequently arguments were heard and the High Court came to the conclusion that the suit was hit by the principle of res judicata and was also vexatious and frivolous. Consequently the High Court ordered the dismissal of the suit pending in the Court of Sub-Judge. This Court dismissed an appeal filed by leave of the Court by Zaighum Saleem Khan by agreeing with the view of the learned Judge in the High Court that the suit was barred by res judicata and had been filed to harass Muhammad Saleem Khan. It follows that in Zaighum Saleem Khan's case power of the High Court to dismiss a suit on the ground that it was not maintainable was available to the High Court when the suit was pending in the trial Court. However, thedistinguishing feature is that the High Court issued a show cause notice to plaintiff in the case and passed an order for dismissal of the suit only after hearing the plaintiff. In the present case no such notice was given by the High Court. The text of the judgment of the High Court dated 31st of June 1995 does not show that any notice was given to the parties to argue the point before dismissing the appeal pending with the Court of District Judge. Arguments advanced before the High Court by the parties are duly noted in the judgment of the High Court which shows that the plea was raised by Kh. Ghularn Qadir in his arguments that the allotment in his favour stood finally confirmed by the Supreme Court, but the other party was not informed in advance that this point will be decided by the High Court. In Zaighum Saleem Khan's case the principle of audi alteram partem was followed but in the present case this rule was violated and the plaintiffs were condemned unheard. Thus it cannot be said that the law laid down in Zaighum Saleem's case has not been followed in the judgment sought to be reviewed. The other point raised in support of the review petition is that a party cannot file a petition for leave to appeal through an attorney because Code of Civil Procedure, broadly speaking, is not applicable to proceedings before this Court. We find no merit in this argument also. It is rightly contended by the petitioners that Code of Civil Procedure is not applicable but law of the land gives to a citizen the right to appoint an agent to act on his behalf. This power is available under Section 182 of the Contract Act, which is as follows :- "182. An 'agent' is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so representative, is called the 'principal'." An attorney falls within the definition of an agent within the meaning of the above quoted section. According to one of the legal maxims "He who does an act through another is deemed in law to do it himself [Quipcr alium fadl per seipsum facere vidctur]. The Supreme Court Rules do not prohibit the appointment of an attorney which means that this right, which is available under the law of the land, remains un-affected. In view of the foregoing we find no merit in this review petition and order its dismissal. (Aq. By.) Petition dismissed.
PLJ 1997 SC (AJK) 20 PLJ 1997 SC (AJK) 20 [Appellate Jurisdiction] Present: basharat ahmad shaikh and muhammad yunus surakhvt, J. MUHAMMAD SIDDIQUE and another-Appellants versus MUHAMMAD LATIF and 3 others-Respondents Civil Appeal No. 43 of 1996, heard on 12.10.1996. [On appeal against the order of High Court dated 5-8-1996 in Revision Petition No. 9 of 1996.] (ii) Civil Procedure Code, 1908 (V of 1908)-- 0. V R. 17--Summons-Service of--process server-Report of-Incomplete report-Effect-Report of process server not showing in whose presence appellants refused to accept service of summons-Process server, even not filing his affidavit in support of his reportReport of process server being vague in nature, held, does not amount to legal service of appellants. [P. 24] A (iii) Reciver-- Receiver-Appointment of--Appointment of receiver has been recognized as one of harshest remedy allowable under CPC and allowed only in very exceptional cases-Party seeking appointment of receiver, has to show some emergency or danger or loss demanding immediate action- Following principles for exercise of discretion have been laid down by Superior Courts :- (i) Power of appointment of a receiver to be sparingly used. (ii) Power to be exercised for safeguard of interest of all parties as well as property which is subject matter of litigation. (iii) Possession of persons bonafide in occupation of property is not to be disturbed unless there are allegations of wastage or dissipation of property or apprehension or irreparable loss or injury. [P. 25] B (i) Attachment of Property-- Attachment of Property-Order of-Passing of-Applicant~Requirement from-Held: Plaintiff applying for attachment of property must show, prima facie, that he has strong case and a good title of properly and lso that defendant does not have a good title to property. [P. 25] C Ch. Muhammad Ibrahim Zia, Advocate for Appellants. Sardar Rafique Mahmood Khan, Advocate for Respondents. Date of hearing: 12.10.1996. judgment Muhammad Yunus Surakhvi, J.--This appeal, with the leave of the Court, has been filed to impeach the correctness and legality of an order passed by the High Court on Aug. 5, 1996, whereby the revision petition filed by the respondents was accepted. 2. The precise facts, culminating into the present appeal, are, that the dispute between the parties relates to land measuring 11 marlas, comprising survey No. 4/1, situate in Chella Bandi, District Muzaffarabad, over which a Hotel and shops stand constructed. A suit for declaration and perpetual injunction was filed in the Court of Sub-Judge, Muzaffarabad, by the respondents On Oct. 19, 1995, alleging therein that the suit land is in the ownership and possession of plaintiffs on the basis of a gift deed executed in their favour by their father, Gul Zaman, on Jan. 8, 1976, wherein they had constructed shops and a Hotel. It was prayed that a decree for declaration and perpetual injunction be issued in favour of plaintiffs-respondents that they are owner in possession of the suit property and the defendantappellants be restrained from interfering into their ownership and possession of the suit property. The plaintiffs also filed an application along with the suit for issuance of an interim injunction that the appellantsdefendants be restrained from interfering into their possession. The trial Court issued the interim stay order on the same date subject to objections from the defendants till the 4th of Nov. 1995. In the meantime, on 01.11.1995 the plaintiffs filed another application in the trial Court that despite the temporary injunction issued by the Court, they had been dispossessed by appellants herein forcibly. Thus they prayed that either the possession of the disputed property should be restored to them or the some might be attached. The learned trial Judge on this application attached the suit property subject to objections from the other side and the cause was posted for 13.11.1995. Since on the interim injunction the objections were to be filed on 04.11.1995, so the appellants-defendants on the said date filed their objections alongwith the relevant documents. The appellantsdefendants also filed their objections on the application for attachment of the suit property; however, the learned trial Judge vide his order dated 13.11.1995 after hearing the parties upheld his previous order and ordered the attachment of the Hotel and shops in dispute and directed to give their possession to the receiver appointed. An appeal was preferred to the District Judge by the appellants herein, which was accepted. The respondents preferred a revision petition in the High Court against the order of District Judge which was accepted and the order of District Judge was set aside; and that of the trial Court was restored vide the order impugned in this appeal. the attachment of the shops and Hotel. The respondents do not claim that Hotel and shops are constructed by them, and they have not disputed at any time, the gift deed or possession of the land before filing of the suit by the petitioners"; (ii) "To me it appears that nobody can just deprive himself of the benefits of the property which is in his peaceful possession and have it attached unless there are compelling reasons and circumstances for it"; and (iii) "The filing of the suit and the application for ad-interim relief by the petitioners, the alleged conduct of the respondents of forcibly dispossessing the petitioners for Hotel and the shops, the filing of FIR against the alleged conduct of the respondents, and their immediately being forced to file the application for attachment of the property, Hotel and shops were prima facie sufficient grounds for the Sub-Judge to pass an order of attachment of the property. The above referred circumstances were sufficient to attract the provisions of section 94 and Order 40 of C.P.C. and it was just and convenient that the property in dispute should have been attached. The attachment of the property, in any case, is harsh to the petitioners, they are running the Hotel an they have constructed the shops. Thus if there is any inconvenience or loss in attachment of property, it is the petitioners who are to suffer not the respondents." 6. The above referred observations which were made basis for restoration of the order of the trial Court are either factually incorrect, against pleadings of the parties or insubstantial in nature to attract the provisions of Order 40 Rule 1 C.P.C. It is absolutely incorrect to hold that the appellants herein never claimed that the shops and Hotel were constructed by them. On the other hand the fact of the matter is that appellants clearly averred in their objections that shops and Hotel were constructed by their father in year 1981 after the approval of site plan by Municipal Committee and the respondents never objected to raising of the construction of shops by the appellants and never interfered in their possession thereafter. The observation made by the learned Judge that nobody can just deprive himself of the benefits of the property which is in his peaceful possession and have it attached unless there are compelling reasons for it, also appears to be illogical. It cannot be said as a universal rule that the person in possession of the suit property would not get it attached unless there were compelling reasons, rather our experience shows that normally a person in possession of the suit property moves the Court of law for getting it attached if he feels the apprehension of it being wasted or damaged by the opposite party. The alleged conduct of appellants of forcibly dispossessing the respondents from suit property and filing of the F.I.R. against appellants is also either lacking bstantial proof or non-existent. It was taken for granted, without any cogent reason, by the learned Sub-Judge as well by the learned Judge in the High Court, merely on the moving of application by the respondents, that they were forcibly dispossessed by the appellants from the suit land. The mere assertion in the application and the alleged report submitted by the process server was insufficient in the eye of law to conclude that in fact the jrespondents were dispossessed by the appellants forcibly despite the service .of temporary injunction on them. The report of process server is vague in nature and it does not show in whose presence the appellants refused to jaccept the service of summons. Even nowhere the process server filed his affidavit in support of his report. Assuming for the sake of arguments the i report of the process server to be correct even then the same does not I amount to legal service of the appellants as the same does not conform to the ! provisions of Order 5 Rule 17 C.P.C. Rule 17 Order 5 of the Code provides as junder:- "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the rving officers, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon on annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed." 7. The above provision of law makes it abundantly clear that the safeguards have been provided to have a check upon the false reports of theprocess servers. Similarly the alleged filing of F.I.R. against the conduct of appellants appears to be factually incorrect as no such F.I.R. was placed on record no we have been able to trace it out despite our best efforts. From the order of attachment passed by the trial Court and upheld by the High Court it transpires that the learned trial Court was emotionally persuaded by the fact that the interim-injunction issued by it was defined by the appellants. The learned trial Judge without satisfying himself with regard to the alleged defiance of the interim injunction, merely on the basis of the application moved by the respondents and after recording the statement of one of the respondents, deemed, it appropriate to proceed of the attachment of the property. 8. In our view the material before the trial Court was insufficient in the eyes of law for passing an order of attachment of property as visualized under Order 40 Rule 1 C.P.C. It is indeed correct that under this Order the Civil Court is vested with wide powers to attach the suit property and to preserve it from the danger of being wasted or alienated but this power is to be used sparingly and under exceptional circumstances. The appointment of receiver has been recognized as one of the harshest remedy allowable under the code and it is allowed only in very exceptional cases. The party seeking appointment of receiver, therefore, has to show some emergency or danger or loss demanding immediate action. The principles for exercise of discretion B have been laid down by the superior Courts. One of these principles is that the power of appointment of a receiver would be sparingly used. Another principle is that it would be exercised for the safeguard of the interest of all the parties as well as the property which is subject matter of litigation. The third principle is that possession of persons bonafide in occupation of the property would not be disturbed unless there are allegations of wastage or dissipation of property or apprehension or irreparable loss or injury. The plaintiff applying for the attachment of property must show, prima facie, that he has strong case and a good title of the property and also that defendant does not have a good title to the property. 9. When we see the case on the basis of above stated principles of law there remains hardly any doubt that material placed before the learned Sub-Judge was insufficient to proceed for the attachment of the suit property. The appellants (defendants) in their objections, unequivocally asserted that their father constructed the shops over the suit land in the year 1981 un-interrupted by the respondents and firstly their father had been in the possession subsequently the shops had been in the possession of defendants. Alongwith their objections the defendants placed a site plan of the shops duly approved by the Municipal Authorities Muzaffarabad as the shops in question happen to be situated within the Municipal limits. The. copy of Jamabandi attached with the objections reveals that the total crage of the suit land is 4 kanals 14 marlas which is shown in the exclusive possession of Sher Zaman, the father of the appellants, while in column at ownership bother Sher Zaman and Gul Zaman, the father of the respondents, happen to be the owners of equal shares who transferred their respective shares in favour of the appellants and respondents. In Khasra Gardawari of the year 1994-95, the suit land appears to be in the possession of Sher Zaman, the father of appellants. Gul Zaman, the father of respondents through his affidavit filed before the learned Sub-Judge admitted the claim of the appellants that the shops in question were constructed by Sher Zaman and remained in his possession. From the persual of record it nowhere transpires that plaintiff/respondents had been running the shops in question, nor they alleged so in their suit. The application filed by the respondents for issuance of ad-interim relief and for attachment of property wherein it was mentioned that in one of the shops a Hotel was being run by them in the name of Latif Hotel is an assertion totally inconsistent with their pleadings in the original suit. In the suit no such plea was raised, whereas in favour of appellants/defendants one Abdul Latif has also filed an affidavit deposing and declaring therein that he had been running the business of Hotel in one of the shops on behalf of the appellants. As regards the gift deed executed by Gul Zaman, the father of respondents in their favour, the appellants have already filed a suit in the Court of Sub-Judge, Muzaffarabad, challenging the validity and legality of the said gift deed. It is also pertinent to point out that Gul Zaman, the doner and Muhammad Rafique and Mazhar Iqbal sons of Gul Zaman, donees have admitted the suit filed by the appellants. 10. From the overall perusal of the record in our view the material placed before the learned trial Judge with regard to the title of respondents and their possession over the suit property was insufficient for issuing the order of attachment of suit property and for appointment of receiver. Similarly as stated somewhere in the earlier part of this judgment the material with regard to the alleged defiance of the stay order issued by the trial Court was also insufficient to attract the provisions of Order 40 Rule 1 C.P.C. It was enjoined upon the trial Court to make some inquiry and to record some evidence showing the alleged violation of the order of the Court and then to proceed in accordance with law but the learned Judge in an undue haste passed the order of attachment of suit property causing inconvenience to the appellants. 11. For the aforestated reasons we accept the appeal and set aside the impugned judgment recorded by the High Court as well as that of the trial Court. As a result the order passed by the istrict Judge dated 26.11.1995 shall be restored and the learned Sub-Judge is directed to proceed with the suit in accordance with law. (Aq. By.) ' Appeal allowed.
PLJ 1997 SC (AJK) 27 PLJ 1997 SC (AJK) 27 [Appellate Jurisdiction] Present: BASHARAT AHMAD SHEIKH AND MUHAMMAD YUNUS SURAKHVI, JJ. Mst. ZUBAIDA RASHID and 4 others-Appellants versus MUHAMMAD HUSSAIN BUTT-Respondent Civil Appeal No. 21 of 1996, heard on 2.10.96. [On appeal fom Judgment of the High Court dated 12-12-1995 in Civil Revision No. 25 of 1995.] (i) Application- Application-Decision on-Application moved in time, not decided by Court, held, appellants cannot be penalised for the fact that application moved within time has not been decided. [P. 31] D (ii) Civil Procedure Code, 1908 (V of 1908)-- - S. 151-Suit-Dismissal of-Order of dismissal was passed against plaintiff when he had already been passed away--Lega!uy ofIt means order was passed against a dead person~An order of dismissal of default passed after death of a sole plaintiff was a nullity-Held : In such a situation order of dismissal could be set aside under section 151 CPC. [P. 29] A AIR 1935 Nagpur 189 ref. and rel. (iii) Civil Procedure Code, 1908 (V of 1908)- S. 151 and XXII, R. 3-Suit, dismissal of on default of appearance- Plaintiff died before passing of dismissal order by trial court-Legal representative of plaintiff applying for being brought on record within3 onths from date of death of plaintiff-Application was not disposed of by trial court, on wrong view that question of bringing legal representatives on record could arise only when suit was restored-In such a ituation, application for being brought on record moved by legal representatives, was sufficientTrial Court not passing any order thereon, and a peculiar situation not specifically provided for by C.P.C. has arisen- eld : Application U/S 151, was maintainable-Appeal accepted. [Pp. 30 & 32] B, AIR 1935 Nagpur 189 ref & re . (iv) Void Order-- Void order-Effect of-It is well settled that normally a void order can be struck down at any time by a courtHowever, there is an exception to this rule which has been laid down by supreme Court of akistan in Sharif Ahmad Hashmi v. Chairman Screening Committee, Lahore (1978 S.C.M.R. 637). [P. 31] C default on 20th of July 1934. On 4th of August Laxmibai filed an application that she may be brought on record in place of the deceased plaintiff and the suit may proceed. Acting under Section 151 C.P.C. the trial Court set aside the dismissal order and restored the case to its file and substituted Laxmibai's name in place of the deceased plaintiff. This order was challenged before the Nagpur High Court which dismissed the revision petition by holding that the lower Court acted in proper exercise of power under Section 151 C.P.C. in setting aside that order arid restoring the case. The relevant part of the judgment of Subhedar, A.J.C. may be usefully repioduced:- "On the contrary in 35 All. 331 "Debi Eakhsh Singh v. Habib Shah" their Lordships of the Privy Council have very clearly pointed out the error of applying to a dead man orders and rules applicable only to a mere defaulter. The order dismissing the present suit under the provisions of 0. 9, R. 8, Civil P. C., passed by the lower Court on 25th July 1934 in ignorance of the death of the plaintiff was simply a nullity: 73 I.C. 230 "Tirlochan Prasad Singh v. Bhagwati". If follows then that there was no need for formal application by the non-applicant under R. 9 of the same order to set aside the order of dismissal passed against her deceased husband. The application which she made for bringing her name on the record was rightly held to fall under O. 22, R. 3, Civil P.C., and as by that application information was conveyed to the Court that its order of dismissal was passed against the deceased plaintiff the lower Court very properly exercised its powers under S. 151, Civil P.C., in setting aside that order and restoring the case to file; For these reasons the application is dismissed with costs. Pleader's fee Rs. 15." As may be seen the view taken by the Nagpur High Court is that in such a situation an application made for bringing legal representatives on record is an application under Order 22 rule 3. We are in respectful agreement with this view. In light of the fact that the order of dismissal passed on 15th of July was a nullity, it follows that suit was pending when on 18th of September the appellants moved an application for being brought on record admittedly within three months from the date of Mir Abdul Rashid's death. However this application was not disposed of by the learned Sub-Judge on the wrong view that the question of bringing the legal representatives on record could arise only when the suit was restored. As has been held in the Nagpur case cited above in such a situation only an application for being brought on the record moved by the legal representatives was sufficient. The learned Additional Sub-Judge did not either accept or dismiss the application with the result that a peculiar situation not specifically provided for by the Civil Procedure Code has arisen. Therefore, an application under Section 151 C.P.C. was maintainable. The only question which now remains to be seen is whether the application moved under Section 151 was barred by time as has been vehemently contended by the learned counsel for the respondent. This question does not pose any serious problem because it is well settled that normally a void order can be struck down at any time by a Court. However, there is an exception to this rule which has been laid down by the Supreme Court of Pakistan in Sharif Ahmad Hashmi v. Chairman Secreening Committee, Lahore (1978 S.C.M.R. 367) and has been followed by this Court in number of cases. The principle is enunciated in the following paragraph by the Supreme Court of Pakistan:- "This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order. This qualification is veiy important, and that is why, for example, a writ may be refused against a void order this would enable the petitioner to circumvent the provisions of a statute of limitation. (See this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal-ud-Din and others v. Mst. Noor Sain and others) and (Jalal-ud-Din and others v. Shams-ud-Din and others) respectively. Similarly in Ghulam Mohi-ud-Din u. Chief Settlement Commissioner (PLD 1964 S.C. 829) a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is estopped by his conduct from challenging it, or if he has been guilty of laches." The present case does not fall under the exception mentioned in the passage quoted above. The appellants have all along been vigilent arid have been pursuing the matter by moving different applications. The only requirement in the facts of the case was that the legal representatives should have moved an application for being impleaded as plaintiffs. This was duly done by them within three months but that application has not yet been disposed of on the wrong legal assumption that the question of deciding this application would arise only if and when the suit is restored. It also follows that the appellants have done their duty and it also follows that the appellants cannot be penalised for the fact that the application moved by them within time has not been decided. As held above it was the duty of the Court to accept the application as it had been moved within three months. Therefore, it is clearly a case in which it is the duty of the Court to prevent the abuse of process of the Court and also to advance the ends of justice. Even otherwise no period for making an application under Section 151 of the Civil Procedure Code has been specifically provided in Limitation Act. In light of the view which we have taken in the matter we accept the appeal and set aside the order of the High Court as well as that of the Additional Sub-Judge Mirpur. We order that names of the appellants shall be substituted in place of the deceased plaintiff and the suit shall proceed further in accordance with law from the stage it had reached before 15th of July 1993, the date on which it was dismissed in default. (Aq. By.) Appeal accepted.
PLJ 1997 SC (AJK) 32 PLJ 1997 SC (AJK) 32 [Appellate Jurisdiction] Present: SARDAR said muhammad khan, CJ, basharat ahmad sheikh and muhammad yunus surakhvi, JJ. AZAD GOVT. OF STATE OF JAMMU & KASHMIR through its CHIEF SECRETARY-Petitioner versus SARFRAZ ALAM and anothers-Respondents Civil P.L.A. No. 32 of 1996, heard on 16.11.96. [On appeal from the order of the High Court dated 9-5-1996, in Civil Appeal No. 66 of 1993.] AJK Interim Constitution Act, 1974 (VIII of 1974)-- S. 42--Leave to appeal-Petitioner filing petition for leave to appeal from that part of judgment of High Court by which some provisions of Contempt of Court Act had been declared un-constitutionalTwo respondents were also impleaded-After filing of petition, at first, name of "S" was struck off and then another application was moved to let name of another respondent deleted-First petition was allowed by a eparate order-With the deletion of respondent No. 2, there remains no respondent in petition-Learned counsel appearing on behalf of government could not cite any provision of law or ractice of court under which an appeal can be heard without there being a respondent-Held : Case, cannot proceed further-Question of granting leave, does not arise- Petition dismissed. [P. 33] A & B Sardar Rafique Mahmood Khan, Advocate for the Petitioner. Date of hearing: 16.11.1996. order Basharat Ahmad Shaikh, J.--This is a petition for leave to appeal from the judgment of the High Court by which certain provisions of the Azad Jammu and Kashmir Contempt of Court Act 1993 were declared ultra vires. competent to make an order. Therefore, the question of validity or otherwise of the Government order should not be decided in light of the fact whether it has been issued in the name of President or not. To resolve this question we must first advert to the pleadfngSTj-«a>- parties. In ground (a) of para 8 of the writ petition it was averred that under Government Order No. AD/12666-12716/CS/72 dated 5th July 1972 if no candidate from a particular district qualifies for the post reserved for that district the post shall be filled in merit from amongst the candidates belonging to other districts. A joint written statement was filed by both the respondents, namely, Azad Government of the State of Jammu and Kashmir and the Public Service Commission. The reply to ground (a) mentioned above was in the following words : "(a) the law referred to is pre-constitutional and no more applicable." This reply recognises that the order relied upon in the writ petition, i.e., the order of 5th of July 1972, was a law. The Government and the Public Service Commission did not take up the position that the order mentioned above was invalid or that it had not been issued under the authority of the President. The position which was taken in the written statement by the respondents has been duly mentioned in para 4 of the judgment under appeal wherein it is noted by the High Court that in the written statement respondents asserted that the law which was relied upon by the writpetitioner was no longer in existence. From the judgment of the High Court it appears that the point that order of 5th of July 1972, relied upon by the I present appellant, was not described as invalid even during the arguments before the High Court. It is well settled that cases have to be decided in light ^v of the pleadings of the parties. It was a question of fact whether order of 5th \ of July 1972 was issued without approval of the President. Such questions j cannot be decided by Courts of Law unless they are pleaded. Therefore, it is q clear that the High Court did not act in accordance with law by travelling beyond pleadings of the parties. Now we turn to the legal position. We have already reproduced two circulars which were issued respectively on 12th of March 1972 and 5th of July 1972. The High Court has held that order of 5th of July 1972 had not been issued with the approval of the President. Apart from the fact that it was never pleaded that it was so, the fact is that original order issued on 12th of March 1972, by which the qyota system was introduced, is in the same form as the order of 5th of July 1972. In both of them the authority under which these were issued is not disclosed. The order of 12th of March 1972 fixed quota for respective regions in light of the Council Resolution No. 48 of 71. It means that quota system was approved by the Council Resolution but the break down of different regions was laid down by this order. In paragraph 2 of this order the notification of 16th of March 1971 by which 10% quota had been reserved for backward areas of Azad Jammu and "Azad Government of the State ofJammu, and Kashmir, Services and General Administration Department, Muzaffarabad No. Admin/16424-6364/C.S./72 dated 24.8.1972 Notification: Orders No. Admin/4476-4526/C.S/72 dated 12.3.72 and No. Admin/12666-12716/C.S./72 dated 5.7.1972 have already beea issued for district wise representation in services. Since a question has arisen about the entitlement of refugees vis-a-visa territorial districts the President of Azad Jammu and Kashmir Government has passed the following orders: 1. A person who has settled in Azad Kashmir after leaving any part of the occupied Kashmir will be treated as a local and domicile of the district where he is settled. 2. A person who has settled in Pakistan after leaving any part of Occupied Kashmir will be treated to be a refugee, even if he subsequently starts residing in Azad Kashmir in onnection ith service, business or for any other reason. 3. 1965 refugees will be treated as belonging to Azad Kashmir till they are rehabilitated. Sd/- Addl. Chief Secretary." (Translated) This order is in the shape of a notification and has been issued in the name of the President. There is no doubt that it is a Government order. This order refers to the two earlier orders issued on 12th of March 1972jjand 5th of July 1972 and it is said about them that a question has ariSfiR in light of the aforesaid two orders which the President has resolved in paragraphs 1 to 3 of the said notification. This order clearly shows that both the orders mentioned therein are recognised as valid orders. It is, therefore, not possible to hold that the order of 12th of March, 1972 introducing quota system was issued with the approval of the President but the order of 5th of July 1972, which was issued in continuation of order of 12th of March 1972 with a view to clarify any lay down certain matters ancillary and incidental to the orders of 12th March 1972, was not issued with the approval of the President. The Notification of 24th of August 1972 admittedly issued with sanction of the President clearly recognises that both the orders issued earlier were Government orders. It is, therefore, not possible in law to hold, as has been done by the High Court, that the order of 5th of July 1972 was not an order issued with the approval of the President. We have already seen that it was not pleaded by the Government that the order of 5th of July 1972 was not a Government Order. As noted above, what was pleaded was' that the order was a pre-constitutional order and was no longer effective. This has clear reference to the constitutional changes brought about in 1974. In 1972, when all the three orders discussed above were issued, the Government was being run under the Presidential system as envisaged by Azad Jammu and Kashmir Government Act, 1970. In 1974 Parliamentary system of Government was introduced in Azad Jammu and Kashmir by adopting the Azad Jammu and Kashmir Interim Constitution Act, 1974 which came into force on 24th of August. With the coming into force of the Constitution Act, the Azad Jammu and Kashmir Government Act, 1970 stood repealed as is provided in Section 59 of the Constitution Act. By stating that the order of 5th of July 1972 was a preconstitutional, hence, no more applicable, the Government and the Public Service Commission seem to have taken the position that with the repeal of the Azad Jammu and Kashmir Government Act, 1970 order of 5th of July ceased to be operative. Apart from legal position to which we will be presently adverting, it seems anomalous that the Government has taken this position. If, as the Government pleaded, the order of 5th of July 1972 ceased to have effect on the repeal of the Government Act, 1970, how could then the order of 12th of March, 1972 be still operative to enable the Government to fill up seats on quota system rather than on open merit. The Government failed to keep in mind that the quota system introduced by order of 12th of March 1972 was being consistently adhered to in spite of the repeal of the Government Act, 1970. Turning to the legal position the learned counsel for the appellant has rightly relied on section 51 of the Azad Jammu and Kashmir Interim Constitution Act which provides continuance of the existing laws, notifications and other legal instruments issued before coming into force of the Constitution Act. Section 51 may be usefully reproduced : "51. Continuation of existing /aws.-Subject to the provisions of this Act, all laws which, immediately before the commencement of this Act, were in force in Azad Jammuand Kashmir shall continue in force until altered, repealed or amended by an Act of the appropriate authority. Explanation.--In this section,-- (a) 'law' includes Ordinances, Orders, rules, bye-laws, regulations and any notifications and other legal instruments having the force of law; and (b) 'in force' in relation to any law, means having effect as law whether or not the law has been brought into operation." This section provides complete answer to the plea taken by the Government. As a result of the foregoing analysis we have reached the conclusion that notification of 5th of March 1972 continues to be valid. The portion of the notification which has bearing on the out come of the present appeal is Qist if no suitable candidate from a particular district is available then the Public Service Commission will recommend a person on the basis of open merit. In the writ petition it was averred in para 4 of the writ petition that 15 candidates qualified the written examination and were then interviewed and that no candidate from districts Kotli and Bagh qualified the written test and two posts of Assistant Commissioners remained unfilled. It was stated in para 5 that name of appellant, Khurshid-ul-Hassan, was placed at No. 3 in the merit list while another candidate from District Poonch, to which the appellant belongs, was placed at No. 2. It was further stated that he applied for a copy of merit list but Public Service Commission refused in writing to issue the copy. The original letter of the Public Service Commission dated 24th of August 1995 was attached with the writ petition. The appellant supported his averments by filing an affidavit. In the written statement para 4 was admitted as correct while reply to contents of para 5 were not admitted as correct. It was stated that there was only one post reserved for District Poonch against which the Public Service Commission recommended a candidate according to merit. No affidavit was filed in support of the written statement. Since there is no other material to the contrary we have to assume correct that the appellant Khurshid-ul-Hassan was placed at No. 3 in the merit list while another candidate from District Poonch was at No. 2 of the list. It follows that the person at serial No. 2 was adjusted against the seat reserved for District Poonch. It also follows that after adjusting the candidates on Districtwise quota the appellant is on the top of the merit list. He, therefore, has a right to be adjusted against one of the seats reserved for Kotli and Bagh Districts because no suitable candidate was available from there. It has been pleaded in the written statement filed before the High Court that the Public Service Commission performed its duties under the Public Service Commission Procedure Rules 1994. There is a provision in rule 12(1) of the said Rules that quota fixed by the Government from time to time shall be strictly followed by the Commission. This provision upholds the quota system enforced by the Government through orders which have been discussed in the earlier part of this judgment. It is not upto the Commission to implement one part of the order and to deviate from the other part of those orders. Therefore, the Commission has to follow the scheme of the quota system that if a suitable candidate is not found from a particular region the post will not be left unfilled but a person will be selected on merits from outside that district. As an upshot of the foregoing discussion we set aside the order of the High Court and order that the writ petition filed by Khurshid-ul-Hassan shall stand accepted in terms that the Public Service Commission shall recommend the name of the appellant in accordance with the merit list drawn up by it for appointment against a post of Assistant Commissioner out of the quota reserved for Kotli and Bagh Districts. It is further directed that the Government shall, after receiving the recommendation of the Public Service Commission, act in accordance with law for the appointment of the appellant. Costs throughout will follow the result of this appeal. (S.R.) Appeal accepted.
PLJ 1997 S PLJ 1997 S.C. (AJK) 86 [Appellate Jurisdiction] present : sardar said muhammad khan, C.J., and basharat ahmad shaikh, J. MUHAMMAD MALIK-Appellant versus CHAIRMAN, MIRPUR DEVELOPMENT AUTHORITY and 9 others-Respondents Civil Appeal No. 33 of 1996 and Civil Appeal No. 82 of 1996, decided on 26.11.96 [On appeal from the order of the High Court dated 13-3-1996 in Writ Petition No. 19 of 1990.] (i) Civil cases- Civil cases-Law regarding-Applicability of~Held : Law applicable to an application for impleading a new defendant or respondent is different from law relating to pray for amendment. [P. 91] A (ii) Civil Procedure Code, 1908 (V of 1908)- -0. 1, R 10 (5)--Application for impleading a new party-Effect. Normally delay is not a factor for seeking amendment but when a new party is added, held, it is to be deemed that case against new party has een instituted on date on which party is so added. [P. 91] B (iii) Writ Petition- -Writ petition-Amendment in-New party-Impleading of-Application for--Rejection of~Grounds-Petitioner challenging Notification and Special Regulation of 1980 in 1996-Permission not granted as it is to be hit y doctrine of laches-Since a fresh writ petition to be barred, permission to add a new party and to allow appellant to challenge a Notification when 16 years, delay has occurred, held, cannot be allowed. Appeals dismissed. [P. 91] C, D Mr. Muhammad Riaz Inqalabi, Advocate for Appellant. Ch. Muhammad Sharif Tariq, Advocate for Respondents No. 5 to 10. Date of hearing: 28-10-1996. judgment Basharat Ahmad Shaikh, J.-Both these appeals have been filed by the same person against the same order by which an application for amendment of a writ petition filed by the appellant herein and for permission to implead Azad Government as a party was rejected. According to the appellant the two orders were separately passed, one being a short order while the other is a detailed order. This situation, which is abnormal in nature, will be explained at a subsequent stage of this judgment. 2. In the writ petition filed by him, appellant Muhammad Malik stated that he was in possession of a piece of land in Sub-Sector F-l Mirpur whereupon he constructed a house and had continuously been living in it since 1968. The land under his possession was originally marked as Plots Nos. 84 and 85. He applied on 3rd of January 1974 for allotment of a plot specifically mentioning plots Nos. 84 and 85 as his choice. He also deposited earnest money. On 22nd of November 1975 the Allotment of Land Committee of Mirpur Development Authority decided to regularise encroachments on payments of penalty and a list of encroachments was prepared. He stated that he was waiting for allotment since 1974, but he had come to know that land in his possession was allotted to some other person. On enquiry it had become known that the numbers of the aforementioned plots had been changed as 15/21 and 16/22 with mala fide intention. It was claimed in the writ petition that the allotments had been made in violation of the mandatory provisions of the Mirpur Development Authority Regulations and were allotted surreptitiously. The written statement was filed by the respondents, but subsequently respondent No. 5, Diwan Ali, moved an application for amendment of the written statement as he wanted to incorporate the averment that the plot in dispute was originally allotted in his name on 12th of May 1973. Amendment was allowed and amended written statement was filed on' 27th of February 1990. In the written statement it was pleaded that it was a case of Special Regulations under which only previous allottees could file an application for allotment of plots. On 18th of January 1996 the appellant moved an application in the High Court for permission to implead Azad Government as a party and for permission to add a new ground in the writ petition that the Special Regulations mentioned above were un-constitutional being violative of Fundamental Right of Equality before Law. 3. Arguments were heard on the application and amendment was disallowed. The appellant filed an application for obtaining copy of the order passed on 13th of March 1996. A certified copy issued to he appellant was to the following effect: "ORDER: Amendment disallowed. To come up for arguments on 11-4- 1996." 4. The appellant filed petition for leave to appeal and it was argued on his behalf that amendment had been allowed without specifying any reason and that the application for amendment should have een llowed. Leave was granted on 19th of May 1996. The appeal arising out of this petition for leave to appeal is No 33 of 1996 entered in the title of this judgment as at No. 1 5. Another petition for leave to appeal was filed by the appellant on 17th of July 1996 to challenge the order of dismissal of his application for amendment but this time a certified copy of a detailed order containing reasons for dismissal of the application was filed. It carries the same date as the first order, i.e., 13th of March 1996. This petition for leave to appeal was accompanied by an application for condonation of delay, if any. It is stated that when the appellant applied for copy of the order passed by the High Court on 13th March 1996 a copy of short order was supplied to him. However, subsequently he came to know through his counsel that a detailed order containing reasons for dismissal of the application for amendment was available in the High Court file. Thereupon its certified copy was obtained and a fresh etition for leave to appeal was filed. In the petition for leave to appeal it is stated that before filing the first petition for leave to appeal the learned counsel for appellant Muhammad Malik personally looked into the file of the High Court and ensured that there was no detailed order on the file and it is on this satisfaction that previous petition for leave to appeal was lodged. It is further stated that after some time the learned counsel for the respondent, Ch. Muhammad Sharif Tariq, told the learned counsel for the appellant, Mr. Muhammad Riaz Inqalabi, that another detailed order was on the file. Thereupon Mr. Riaz Inqalabi inspected the file and found that a detailed order, containing grounds for rejection of prayer for amendment, was now available in the file. Its copy was duly obtained and a second petition for leave to appeal was filed. These averments were duly supported by an affidavit personally sworn by Mr. Riaz Inqalabi. It was requested that delay in filing the second petition for leave to appeal my be condoned because no delay was caused by the appellant herein. 6. After giving our anxious thought we have decided not to , comment one way or the other on the statement supported by affidavit by Mr. Riaz Inqalabi mentioned above. The delay in filing the second petition for leave to appeal was caused due to mistake of the High Court-Official because appellant had not applied for obtaining a certified copy of the "interim order" but had applied for obtaining a certified copy of the "order of the Court" passed on 13th of March 1996. There is a marked difference between an "interim order" and "order of the Court" and in view of this distinction the officer was in any case at fault in issuing copy of the interim order. If there was no detailed order with the file the office could return the application on that ground, and if such an order was available its copy should have been supplied to the appellant. In our considered view it is beyond the scope of the present proceedings to decide this question. There is affidavit of Mr. Riaz Inqalabi that detailed order was not available in the High Court file. The order carries the signature of the learned Judge and it shows that it was signed on 13th of March. When Mr. Riaz Inqalabi saw the file before filing the first petition for leave to appeal where was this document? Had it been misplaced somewhere and was subsequently attached with the file? Or whether it was not in existence, which we would not like to believe. These matters do not fall within the ambit of present proceedings. It was specifically stated in the writ petition and was supported by an affidavit of Mr. Riaz Inqalabi that it was Mr. Muhammad Sharif Tariq Advocate who told Mr. Riaz Inqalabi that another detailed order was on the file. It is this knowledge on which the application for condonation has beet based. We note that this affidavit remains unrebutted. As noted above, the mistake of the office in issuing a wrong copy has, in the circumstances of the present case, made out a case for condonation. The delay is, therefore, condoned. 7. We may now proceed to examine the case on merits. It was stated that the necessity for the proposed amendment arose out of the fact that the respondent had amended the written statement and had taken the plea that the case was covered by the Special Regulations. In the application it was prayed that the Azad Government of the State of Jammu and Kashmir may be allowed to be added as a party and the following ground may also be allowed to be added :-- "(g) for that the decision dated 10.4.1984 is violative of the constitutional grounds that all state subjects are equal before law and are entitled to the equal protection of law. Moreover allotment of plots in the name of only those on whose names the plots were cancelled in relaxation of the relevant rules and regulations and inviting applications only from such persons through notification dated 16th December 1980 and Mirpur Development Authority Special Regulations 1981 for the disposal of plots is ultra vires, unconstitutional and discriminatory mala fide and ineffective to the rights of the petitioner. They are repugnant to the provisions of M.D.A. Act, regulations and Constitution of 1974. The provisions of said notification regulations to this extent are illegal and liable to be struck down." 8. The reason for refusing the amendment, as recorded in the order under appeal, is that the petitioner was not vigilant to find out that allotments in favour of the respondents were made in pursuance of the Government Notification issued in 1980 which was followed by the Special Regulations. It has been noted that the Government Notification was duly published in the Government Gazette and a large number of allotments were made under the Special Regulations. It has been observed that the petitioner could not be un-aware of these Regulations. Another significant reason recorded for rejection of proposed amendment is that the application for amendment was moved four years after the filing of written statement in which it was pleaded that the case fell under the Special Regulations. 9. It has been vehemently contended by Mr. Riaz Inqalabi that the amendment prayed for by the appellant did not change the nature of the writ petition and it was necessary in the interest of ustice to allow the amendment. He submitted that there is no limitation for seeking amendment if the application is otherwise in order. 0. Although it has not been noted by the learned Judge of the High Court, we may observe that the prayer of the appellant was not only for carrying out amendment in the writ petition but was for impleading a new respondent, the Azad Government of the State of Jammu and Kashmir, and both the prayers were interwoven. The reason for impleading Government as a party was that the Government Notification and the Special Regulations which are sought to be challenged, after obtaining permission for amendment, were framed by the Azad Government. The law applicable to an application for impleading a new defendant or respondent is different from the law relating to prayer for amendment. It is true that normally delay is not a factor for seeking amendment but when a new party is added it is deemed that case against the new party has been instituted on the date on which the party is so added. On this point we may refer to sub-rule (5), ru e 10 of Order I of the Code of Civil Procedure, which runs as ollows :-- "(5) Subject to the provisions of the Indian Limitation Act, 1877, Section 22, the proceedings as against any person added as defendant shall be deemed to have begum only on the service of the summons." 11. It is not within the legal rights of a party that he should be allowed in 1996 to institute a writ against Azad Government of the State of Jammu and Kashmir to challenge a Notification and Special Regulations framed in pursuance thereof in 1980 because it would be hit by the doctrine of laches. If the Notification of 1980 and the subsequent Special Regulations are challenged now hundreds of allotments made in pursuance thereof will be put to stake. It is clearly not allowed. Since a fresh writ petition would be barred permission to add a new party and to allow the appellant to challenge a Notification when sixteen years delay has occurred cannot be allowed. 12. The case built up by the appellant is that necessity for the proposed amendment arose after the filing of the written statement in which the respondents stated that their case was covered by the Special Regulations framed in 1981. We have seen the High Court file and find that the amended written statement was filed on 13th of May 1992 while the application for amendment was moved on 18th January 1996. There is no xplanation for this delay. In these circumstances both the appeals are dismissed. However, there would be no order as to costs. (S.R.) Appeals dismissed
PLJ 1997 S PLJ 1997 S.C. (AJK) 92 [Appellate Jurisdiction] Present: basharat ahmad sheikh and muhammad yunus surakhvi, JJ. FAZAL HUSSAIN-Appellants versus WALIDAD KHAN and 22 others-Respondents Civil Appeal No. 77 of 1995, decided on 22.6.96. [On appeal from the Judgment of the High Court dated 9.8.1995 in Writ Petition No. 18 of 1994]. (i) Azad Jammu & Kashmir Interim Constitution Act, 1974 (VIII of 1974)-- -S. 44--Constitutional jurisdiction-It is well settled that constitutional jurisdiction u/S. 44 of AJK interim Constitution Act is equitable in nature, held, cannot be exercised to perpetuate an injustice or to upheld an ll-gotten gain-High Court, held further, can validly refuse to set aside even an order passed without jurisdiction, where such situation exists. [P. 98] C PLD1973SC236re/: (ii) Supreme Court Rules 1978 AJ&K Supreme Court Rules 1978, read with Board of Revenue Act 1993 (AJ&K)--Second review petition-Bar to file-A special bar has been provided in Rules itself that second review petition is not aintainable- Analogy of Rules in absence of special bar, held, cannot be applied to a case falling under purview of Board of Revenue Act, 1993. [P. 97] B 1993 SCR 226 ref. (iii) Writ Jurisdiction- Necessary party-Non-impleading of-Effect-Land which is subject of dispute, being crown land, Government was necessary party, which having not been impleaded, no relief, held, could have been given. [Pp. 96 & 97] A Ch. Muhammad Ibrahim Zia, Advocate for the Appellant. Sy. Muhammad Siddique Shah Bokhari, Advocate for Respondent No. 1 to 12 and 14 to 20, Ch. Muhammad Yusuf, A.G. for Respondent No. 23. Date of hearing: 8.5.96. judgment Muhammad Yunus Surakhvi, J.--This appeal, by leave of the Court is directed against an order recorded by the High Court on August 9, 1995, whereby the writ petition filed by respondents challenging the orders passed by Revenue Authorities on 1.5.1982, 30.4,1982, 27.2.1983, 4.4.1984 and 13.1.1994 was accepted. 2. The precise facts leading the parties to a protracted litigation are that respondents herein filed a constitutional petition under section 44 of Azad Jammu & Kashmir Interim Constitution Act, 1974, in the igh Court stating therein that land measuring 145 kanals comprising survey No. 138/1 situate in village Qillan, Tehsil Pallandri, was a khalsa land and has been transferred in he name of their fore-fathers by the competent Revenue Authorities during the Dogra Regime. The respondents averred in the writ petition that they are in possession of the land as owners and as such had been transferring the land to different persons through gifts, sale deeds etc. and the land had been changing hands by the transfer through succession as well. The fore-fathers of respondents have been recorded in the Revenue record as owners paying the revenue of the land. On the application of appellant, the Settlement Officer vide his order dated 30.4.1982 ordered the cancellation of all the mutations sanctioned from time to time with regard to the land under reference, and to enter the persons who are in possession as tenants at will under the Government in the Revenue record. The appeal filed by the respondents against the order was dismissed by the evenue Commi sioner on 27.2.1983 and the revision petition taken to Financial Commissioner was also dismissed vide order dated 4.4.1984. The respondents then filed a review petition before the Financial Commissioner which was accepted vide order dated 24.9.1984 and the earlier order passed by him on 4.4.1984 was recalled. Against the afore-said order appellant filed a second review petition before the Financial Commissioner on 15.12.1992. By the time, this review petition was taken for hearing, the office of Financial Commissioner was re-designated as Board of Revenue and a learned Member of the Board of Revenue accepted the second review vide his order dated 13.1.1994 and set aside the order passed by his predecessor on 23.9.1984 and restored the earlier orders passed by the Revenue Authorities. 3. A learned Judge in the High Court vide his order impugned in the present appeal accepted the writ petition filed by respondents mainly on the following grounds:- (i) The entries with respect to the land in dispute find place in the name of predecessors of petitioners since Dogra Regime and are continuing as such. Percha Bandobasti placed on record reveals that their predecessors have been paying the revenue of the land and the land stands assessed to the land revenue. Most of the land stands transferred by way of gift as well as sale deeds and has changed many hands. The successive generation have taken over the land in inheritance from their predecessors. Under the above circumstances of the case the right order which in the interest of justice, fair play could have been passed, is one that is passed by the Financial Commissioner on 24.9.1984; (ii) the order passed by the Financial Commissioner on 24.9.1984 was challenged in a second review on 15.12.1992, which was not visualised under the relevant law; (iii) the order passed by Member Board of Revenue on 13.1.1994, being hopelessly barred by limitation, is declared as without lawful authority and the order passed by the Financial Commissioner on 24.9.1984 is restored. 4. Arguing the case on behalf of appellant, Ch. Muhammad Ibrahim Zia, the learned counsel submitted with vehemence that there was no proof of the land under reference having been recorded in the name of fore-fathers of respondents as owners during the Dogra Regime nor does the law support the transfer of the land in the name of respondents or their fore-fathers. In the copy of Jamabandi attached with the writ petition the respondents are entered in the column of possession; the Parcha-Bandobasti appended with the writ petition is a photo-stat copy which is in-admissible in evidence. The learned counsel maintained that the impugned order of the High Court as well as the order passed by Financial Commissioner on 29.4.1984 was against the admitted facts on the record, based on mere assumptions, artificial and imaginary grounds and as such liable to be quashed. The learned counsel maintained when the subsequent review petition was filed on 15.12.1992 the Punjab Land Revenue Act had been repealed and the Board of Revenue had been re-designated. Under the Board of Revenue Act, 1993, the learned Member of the Board of Revenue under Section 8 of the said Act was competent to review the order passed by his redecessor, the Financial Com issioner. The learned counsel also maintained that Azad Government was a necessary party which was not impleaded in the line of respondents in the writ petition. The writ petition iled by respondents was iable to be dismissed on this sole ground. 5. Controverting the arguments raised by the learned counsel for the appellant, Syed Muhammad Siddique Shah Bokhari, the learned counsel for respondents, inter alia, contended that the fore-fathers of espondents have been duly recorded in the Revenue record as owners of the land since long and that they had been paying revenue of the land. It was argued by the learned counsel that respondents are in ossession of the land since Dogra Regime and are recorded as such. Placing reliance upon long standing entries in the Revenue record in support of his contention it was argued that the land has been transferred in the name of fore-fathers of respondents. The learned counsel referred to Council order No. 40-C of 1944 and 282/57 of 1957. The learned counsel submitted with vehemence that second review before the earned Member Board of Revenue was on the face of it liable to be dismissed, especially so, when it was hopelessly time barred. 6. After hearing to respective contentions of the learned counsel for the parties and perusing the record with care it may be stated that the finding recorded by the High Court with regard to the entries of Revenue record to the effect that respondents or their fore-fathers have been entered as owners of the land in dispute since Dogra Regime is not only erroneous and bad in law but also factually incorrect. In all the documents appended with the writ petition we have not been able to trace out any record relating to Dogra Regime. A copy of Jamabandi of the year 1962 Annexure 'A' filed with the writ petition reveals that fore-fathers of some of respondents are entered in the column of possession. In the column of ownership the land is shown as Khalsa land. Annexure 'B' is a copy of mutation No. 258 wherein the land in dispute in the column of ownership is described as Khalsa land; however, in the column of possession the respondents and their fore-fathers' names have been mentioned. Mutation No. 260 Annexure 'B/A' relates to different Khata Numbers than those shown in mutation No. 258. Both these mutations appear to have been attested on 24.1.1974 and 27.7.1975. Copy of mutation No. 258 Annexure 'B/2' reveals that land in dispute is shown in the cultivating possession of respondents and it is entered in the column of ownership as Khalsa land. This mutation appears to "have been attested on 25.2.1974 on the basis of a gift deed. Annexure 'B/3' is a copy of mutation No. 229 attested on 27.6.1977. In this mutation the land under reference is jointly shown in the ownership of respondents and the cross (Khalsa land). In mutation No. 4 which is also marked as Annexure 'B/3' with the writ petition appears to have been attested on 20.9.1982. In this mutation the relevant Khasra number has not been shown. The Parcha-Bandobasti appended with the writ petition is admittedly a photostat copy which is in admissible in evidence. The above referred documents are the sum total of Revenue record appended with the writ petition and relied upon by the respondents. On the basis of afore-said documents it cannot be said with any stretch of imagination that the land in dispute had been transferred in the ownership of respondents and that they are entered in the Revenue record as such. The documentary evidence on the other hand fully negates the assertion of respondents. The bulk of documentary evidence relied upon by the respondents shows that even after the partition and particularly in Jamabandi 1962 the land in dispute is shown as Khalsa land. The High Court, by passing the impugned order placed is reliance mainly on the judgment of Financial Commissioner dated 24.9.1984 filed with the writ petition and marked as Annexure 'B/ll'. This order speaks about the general principle that if a tenant pays the land revenue or penalty imposed of the Khalsa land he shall be deemed to be an owner of that land and can transfer the land through sale deed or gift deed etc. This order also shows that the learned Financial Commissioner opined that since 1962 BK the land in dispute had been transferred through sale deeds, gift deeds and had also been changing hands through succession. It was further observed that if it be declared that the land in dispute is Khalsa land then the whole transactions regarding gift deeds and sale deeds shall have to be declared as illegal. It was also opined by the Financial Commissioner that according to counsel order 282/57 which was issued in 1957 the possession of respondents was of more than period of 50 years. We regret that this finding is not supported by any documentary or other evidence whatsoever. On the other hand it appears to be based on clearly artificial and imaginary grounds. The counsel order No. 57/282 of 1957 has no relevancy in the instant case. Similarly order No. 40-C of 1944 is also inapplicable to the present case. The respondents were not entered as 'Natour Kunindas' in the relevant Revenue record. The mere fact that the respondents had been paying the land revenue since 1962 does not confer any proprietary rights upon them in the land in dispute. During the preparation of settlement record it was found by the Settlement Officer that respondents through various mutations transferred the Khalsa land which they were not legally competent to do and as such the order for the correction of record was made by the Settlement Officer vide his order dated 1.5.1982 and it was also ordered that they be entered as tenants at will. This order was taken into appeals and revisions which was upheld by the Revenue Authorities but all these orders were unlawfully, without any jurisdiction were quashed by the Financial Commissioner vide his order dated 24.9.1984 on which the impugned judgment of High Court is based. 7. The afore-said order of the Financial Commissioner was challenged by appellant through a review petition filed on July 20, 1992, suffice it to say that in the previous review petition decided on 24.9.1984 the appellant was not a party. This review petition was taken up by a learned Member of the Board of Revenue and was decided on 13.1.1994, whereby he quashed the earlier order of his predecessor dated 24.9.1984 and upheld the previous orders recorded by the Revenue Authorities dated 1.5.1982, 30.4.1982, 27.2.1983 and 4.4.1984. 8. In the writ petition filed by the respondents before the High ourt, a specific objection was taken by non-applicants therein that Azad Government was a necessary party which was not arrayed in the ategory of respondents which entailed the dismissal of writ petition. As the land which is the subject of dispute between the parties is the crow land; so in our view the Government was a necessaiy party who ould have filed its objections but the same was not impleaded as such and the learned Judge in the High Court, despite the specific objection taken did not feel advised to dilate upon the matter. In our view the defect is fatal and in absence of impleadment of necessary party no relief could have been given to the respondents herein. 9. It was strenuously argued by the learned counsel for the I respondents that second review petition before the Member Board of Revenue was not visualised under the provisions of Board of Revenue Act of 1993. It may usefully be repeated that appellant was not a party in previous review petition which was decided by the Financial Commissionerj on 24.9.1984. The afore-said order was challenged by the appellant for the irst time before the Financial Commissioner on July 20, 1992, which by operation of law stood transferred to Board of Revenue and was decided by a learned Member Board of Revenue on 13.1.1984. Thus it cannot be said or argued that it was a second review petition by the appellant. 10. There is no bar in the Act of 1993, that second review petition would not be entertainable. In his view of the matter the contention raised by the learned counsel for the respondents is repelled. In the Supreme Court Rules of 1978, there is a special bar provided in the Rules itself that second review petition is not maintainable. The analogy of the Rules in absence of special bar cannot be applied o a case falling under the purview of the Act of 11. The afore-said view is supported by a reported case titled 'Sardar All and others vs. Karamat All Khan and others' (1993 SCR 226), " wherein my learned brother, Mr. Justice Basharat Ahmad Shaikh who spoke for the Court at page 229 of the report observed as under:- "We may take note of the fact that in the Supreme Court Rules it is provided that no second review would lie. It is also provided in Rule 9 of to Order XLVU of he CPC that a second review does not lie. There is no such provision in ction 43 (6) of Pakistan Administration of Evacuee Property Act and upon construction of the phraseology of that sub-section the Lahore High Court in Ghazi Muhammad's case mentioned above formed the view that succeeding review petition was allowed by law. As noted above in spite of the afore-mentioned cases of Dr. Muhammad Fazil Zaheer and Hari Sing it was held that a second review would lie on fresh ground. There is no bar in Rule 11 of the Land Reforms Rules that a second review or succeeding review does not lie, in this view of the matter it cannot be said that as successive review petition does not lie. Similarly as said earlier there is no provision in the Revenue Board Act of 1993 which bars the second review. 12. As regards the contention of the learned counsel for the respondents that second review petition filed by the appellant was time- barred and could not have been entertained is also mis- onceived and is hereby repelled for the reasons that in the first instance the question of limitation was not raised before the Member Board of Revenue. When Fazal Hussain filed his review petition on 20.7.1992 he stated that he had come to know about the existence of the order of 24 September 1984, in which he was not a party, on 10th of July 1992 when Wali Dad and others encroached upon the khalsa land in his possession showing that it was in their ownership. It was claimed in the review petition that the petition was within time from the date of knowledge. It was also stated that the petition was within time from the date of knowledge in light of section 18 of Limitation Act. An affidavit in support of this "plea was also filed. Nothing has been brought on the file to show that contents of this affidavit were controverted by giving a proof to the contrary. In our view in this situation it caaeatie said that the order passed by the Member Board of Revenue was illegal or without jurisdiction. 13. Even otherwise the High Court should not have exercised its constitutional jurisdiction to revive the order of 24.9.1984. It was an illegal and unjust order as it conferred rights to which the present respondents were not entitled under law. It is well settled that the constitutional jurisdiction under section 44 of the AJK Interim Constitution Act is equitable in nature and cannot be exercised to perpetuate an injustice or to uphold an ill-gotton gain. Where such situation exists the High Court can validly refuse to set aside even an order passed without jurisdiction as was done in the case of aunaq All vs. Chief Settlement Commissioner (PLD 973 B.C. 236), wherein it was observed at page 259 as under:- "In the same manner in the instant cases, if the High Court, in its extra-ordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the officer on special duty, even though the later was clearly without jurisdiction." 14. The above referred case was consistently followed by this Court in numerous cases which need not be repeated. 15. For the reasons stated above we accept the appeal and set aside the impugned order of High Court dated 9.8.1995 and restore the order passed by Member Board of Revenue on 13.1.1994. (Aq. By.) Appeal accepted.
PLJ 1997 S PLJ 1997 S.C. (AJK) 99 [Appellate Jurisdiction] Present: basharat ahmad sheikh and muhammad yunus surakhvi, JJ. CH. ABDUL KHALIQ, CHAIRMAN WELFARE SOCIETY and another- Appellants versus MUHAMMAD MALIK and 13 others-Respondents Civil Appeal No. 40 of 1996, decided on 24.11.96. [On appeal from the Judgment of the High Court dated 12.2.1996 in Writ Petition No. 17 of 1995]. (i) Subject Matter- -Both appellants, residents of the locality where subject matter of dispute situate-So they were naturally adversely affected by order passed by High Court, thus being aggrieved by impugned judgment, they ere competent to lodge present appeal and it could not be said that they have waived their right to file an appeal. [P. 103] A (ii) Writ jurisdiction- Writ Petition-Discretionary powers-Exercise of- iscretionary powers in writ jurisdiction, held, cannot be exercised in order to perpetuate illegality or to protect ill-gotten gains. [P. 103] B Mian Muhammad Saeed, Advocate for the Appellants. M/s. Muhammad Younas Arvi, Ch. Shaukat Ali, Advocates for Respondents. Date of hearing: 30.10.96. judgment Muhammad Yunus Surakhvi, J.-This appeal, with the leave of the Court, has been filed to assail the correctness and legality of a judgment passed by the High Court on Feb. 12, 1996, whereby the writ petition filed by respondents 1 to 8 was accepted. 2. The admitted facts, forming the background of the present appeal are that plot No. 15-C of the size of 4 kanals 16 marlas 268 sq. ft. situate in Hamidpur Hamlet was allotted in the name of Eidgah of the residents of Hamidpur Hamlet through one Sufi Abdul Rehman on 20.12.1975 by the Allotment Committee headed by Ch. Suhbat Ali, the then Minister. The allotments made by the Committee headed by Ch. Suhbat Ali were declared illegal by the High Court on account of some technical defects and were cancelled by the government through a notification No. Rabita- 77/MDA/14/1762-1774 dated 16.12.1980. The allotments cancelled through the above notification were regulated by a Special Regulation framed by the M.D.A. under Section 47 of the M.D.A. Act, wherein it was provided that the allottees from whose names the allotments were cancelled shall apply afresh within the sitpulated period provided for the purpose. It may be pointed out that under the above Regulation none applied for re-allotment of plots cancelled from the name of Eidgah. In the meantime in the area initially reserved for Eidgah five plots 7-A, 7-B, 15-A, 15-B and 15-C of the size of approximately 1 kanal each situate in Hamidpur Hamlet, Tehsil Mirpur were marked and allotted to respondents 1 to 8 on Apr. 3, 1990 by Chairman Mirpur Development Authority. The possession of the respective plots, as claimed by the respondents was handed over to them. However the above allotments, alongwith other allotments, made during the period commencing from 14.12.1988 to 8.7.1990 were cancelled by a Government notification issued under No. Rabita/1651-1751 dated 25.11.1990. The above notification was, however, withdrawn by the Government vide its subsequent notifica tion No. Works/1380-1480 dated 30.10.1992. Resultantly the allotments were restored. It was also provided in the subsequent notification that a Revising Authority shall be constituted to scrutinise the allotments, made during the above mentioned period. The allotments in dispute came under consideration of the Revising Authority which cancelled the same. The order of Revising Authority was challenged through a constitutional petition by respondents 1 to 8 in the High Court and the High Court vide its order dated Feb. 12, 1996, impugned in the present appeal, declared the order passed by the Revising Authority as being without any lawful authority and restored the allotments in favour of respondents. 3. Arguing the case on behalf of appellants, Mian Muhammad Saeed, the learned counsel vehemently submitted that respondents in their writ petition did not implead the appellants and the residents of Hamidpur Hamlet as a party. They simply impleaded the residents of Hamidpur Hamlet, through one Sufi Abdul Rehman as a respondent who happens to be settled in England so naturally he was not in a position to appear and defend the case. The appellants being the residents of Hamidpur Hamlet and office bearers of Welfare Society of Hamidpur Hamlet, were adversely affected by the order of the High Court so they were aggrieved by all means and as such they lodged the present appeal for redress of their grievance. According to the learned counsel since the allotments made in favour of respondents, were cancelled by a government notification dated Nov. 25, 1990, and restored vide a subsequent notification dated Oct. 3, 1992, a Revising Authority was constituted to scrutinize the allotments made during the period from 14.12.1988 to 8.7.1990 including the allotments made in favour of respondents. The Revising Authority, in accordance with the spirit of subsequent notification of the government dated 3.10.1992 restored the allotments in favour of residents of Hamidpur Hamlet, reserved for the purpose of Eidgah. The learned counsel pressed into service the submission that the allotments in favour of respondents were made by Chairman M.D.A., who was not vested with any jurisdiction to allot the same. The learned counsel also maintained that the Revising Authority was fully vested with the jurisdiction to see into the legality and propriety of allotments and to give its finding. The learned counsel submitted that the places reserved for common purposes, such as Eidgah, public parks, grave yards etc. could not have been allotted to the respondents or for that matter to any individual. The High Court according to the learned counsel, committed a grave error by accepting the writ petition and declaring the allotments made in favour of respondents as genuine. 4. Controverting the arguments raised by the learned counsel for the appellants, Mr. Muhammad Arvi and Ch. Shaukat AH, the learned counsel for respondents submitted that Revising uthority travelled beyond its jurisdiction to cancel the allotments from the names of respondents and to restore the same in favour of residents of Hamidpur Hamlet for the purpose of Eidgah. According to the learned counsel it was clearly provided in the government notification dated 16.12.1980 that the previous allottees should re-apply for allotment but the same was not done by the appellants as such the restoration of allotment in favour of appellants was an un-lawful Act of Revising Authority which was declared so by the High Court. The learned counsel strenuously opposed the filing of appeal by the ppellants as they had waived their right because Abdul Qayyum, one of the appellants, on a summons issued by the High Court for service of residents of Hamidpur Hamlet, put his signature as a witness. Thus, according to the learned counsel the filing of writ petition by the respondents was within the knowledge of at least one of the appellants, namely, Abdul Qayyum, who could have applied in the High Court for impleading him as a party. Since the appellants failed to move the High Court in this regard, sp they were estopped to lodge an appeal in the apex Court. The impugned judgment, according to the learned counsel for respondents, having been passed perfectly in accordance with law needs no interference by this Court. The learned counsel also maintained that the Revising Authority accepted he entitlement of respondents and observed that they may be allotted some other plots. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, it may be stated that the High Court by accepting the writ petition, iled by respondents 1 to 8, mainly relied on the following points:- "(i) that vide the order dated 20.12.1975, though the area under dispute was allotted for Eidgah by the Allotment Committee, headed by Ch. Suhbat Ali, but the same was declared illegal and under a notification of the Government dated December 16, 1980, and Special Regulation it was enjoined upon the previous allottees to re-apply for the allotment but none of the allottees re-applied for allotment of plots reserved for Eidgah; (ii) that the Revising Authority had no jurisdictional competence to cancel the allotments made in favour of respondents and to restore the allotment in the name of Eidgah; and (iii) that the Revising Authority accepted the entitlement of respondents by suggesting that they may be allotted some other plots." 6. In order to have a grip over the matter requiring resolution by this Court it is deemed expedient to reproduce the exact relevant wording of notification of the Government dated Oct. 3, 1992, which reads as under: - f!990-7-8 C f!988-12-14 tf- The plain reading of the above notification makes it abundantly clear that the powers of the Revising Authority were not limited only to see the legality or otherwise of the allotments but on the other hand it was empowered to scrutinize the allotments as well and to see their propriety. It is further recited in the notification that unless the Revising Authority, after scrutiny, declares the allotments as genuine, the allotment rights shall remain suspended. The Revising Authority under the aforesaid notification was vested with wide powers to determine the propriety of allotments as well. The Revising Authority after the scrutiny and hearing the parties arrived at a conclusion that allotments under reference should have remained reserved for the purpose of Eidgah. It is indeed correct that under the Special Regulation it was a condition pre-requisite for the previous allottees to re-apply for the allotment but at the same time we cannot ignore this aspect that a place reserved for common purposes in 1975 and subsequently allotted to respondents in 1990, was not beyond the jurisdictional competence of the Revising Authority. As said earlier, the Revising Authority was vested with the jurisdiction to see the propriety of allotments made during the certain period and it formed the view that the area wherein subsequently the plots were marked and allotments were made should have remained reserved for the purpose of Eidgah. In our considered view it could have declared that the area reserved for the purpose of Eidgah may remain reserved for that purpose. As regards observation of the High Court that the entitlement of respondents/allottees has been accepted by the Revising Authority, factually appears to be incorrect. The Revising Authority clearly observed that the allottees may get the allotments at some other place by establishing their entitlement. This observation with due deference to the High Court cannot be construed that the entitlement of allottees was accepted by the Revising Authority. 7. Both the learned counsel for respondents raised the objection that the appellants were not entitled to file the appeal in this Court as according to them even if they were aggrieved, one of the appellants, amely, Abdul Qayyum on a summon issued by the High Court for service of residents of Hamidpur Hamlet put his signature on its back side reporting that one Sufi Abdul Rehman who was representing the esidents of the said Hamlet had settled in England and thus he having the knowledge of the writ petition should have applied in the High Court for impleading him as party. We have reached the conclusion that the argument is devoid of any legal force. Since both the appellants are residents of Hamidpur Hamlet so they were naturally adversely affected by the order passed by the High Court; thus being aggrieved, by the impugned judgment, they were competent to lodge the present appeal and it could not be said that they had waived their right to file the instant appeal. 8. The respondents, in our view, could not substantiate their claim that the area under dispute was not reserved for common purposes of an Eidgah of residents of the locality and even not an iota of aterial was brought on record in support of their claim. The High Court, thus, committed an error in accepting the writ petition. Keeping in view the peculiar facts and circumstances of the case, we have formed the view that the Revising Authority rightly reached the conclusion that the area reserved for Eidgah should remain reserved as such. 9. There is another aspect of the case which has been ignored by && igh Court. Allotments in favour of respondents 1 to 8 were made by the Chairman of the Mirpur Development Authority as is vident from the allotment orders attached with the writ petition. It has been rightly contended by the learned counsel for the appellants that Chairman Mirpur Development Authority has no power to ake an allotment. This legal position stands settled by numerous judgments of this Court. In these circumstances the High Court should have in any case refused to issue a writ in favour of the said respondents in view of the principle that equitable relief that discretionary powers in writ jurisdiction cannot be exercised in order to perpetuate illegality or to protect ill-gotten gains. 10. The nutshell of the foregoing is that we accept this appeal and vacate the impugned judgment of the High Court by ordering the dismissal of writ petition filed by respondents 1 to 8, leaving the parties o bear their own costs. (Aq. By.) Appeal accepted.
PLJ 1997 SC(AJK) 117 PLJ 1997 SC(AJK) 117 [Appellate Jurisdiction] Present: basharat ahmed shaikh and muhammad yunus surakhvi, JJ. MUHAMMAD SADIQ and another-Appellants versus MUHAMMAD AFSAR etc.--Respondents Civil Appeal No. 76 of 1996, dismissed on 19.1.1997. (On appeal from judgment of High Court dated 2.6.1996 in Writ Petition No. 45 of 1996) (i) Azad Jammu and Kashmir Interim Constitution Act, 1974- -S. 47--Suit for declaration-Dismissal of--Appeal accepted and mutation sanctioned-Revision against-Acceptance of and mutation set aside--Writ against-Dismissal of~Appeal againstWhether a decree passed in the absence of necessary parties can be regarded as a valid decree-Question ofFrom critical survey of Revenue Record, it transpires that in column of ownership and possession, land in dispute is shown in ownership and possession of Government-So, it was enjoined upon appellants to implead Government, to get an entry deleted from its name and inserted in name of appellants but no such course was elected by them-Held: A decree in absence of necessary parties is for all purposes a void decree and cannot operate against them-Contention of appellant merits no consideration that revenue authorities were bound to act upon decree even if same was a nullity-Appeal dismissed. [Pp. 120 & 122] A to C AIR 1926 Madrass 991,1993 SCR 245, PLD 1985 SC AJK 102 ref. (ii) Azad Jammu and Kashmir Interim Constitution Act, 1974 S. 47--Writ petition against revision before Board of Revenue-Dismissal of~Challenge to~Whether revision petition seeking cancellation of mutation No. 6 was hopelessly time-barred-Question of-Plea with regard to limitation was not raised before Member Board of Revenue who was exclusive authority to etermine this question-Even this plea was not raised in supreme court that point of limitation was argued before MBR and same was not esolved and no affidavit was filed by appellants in this respect-Contention of limitation raised by appellants repelled. [P. 124] D (iii) Land Revenue Act, 1967 (XVII of 1967)- S. 164-Powers of Board Revenue-Board of Revenue has vast powers and it can revise any order passed by officer subordinate to it at any time- Superior revenue authorities are duty bound to interfere to rectify any wrong done to interests of innocent parties-It is never too late to set aside an order which has been passed without jurisdiction or is void. [Pp. 125 & 126] E to G PLD 1984 Quetta 158, PLD 1968 Lah. 11, PLD 1971 SC 184 ref. Raja Muhammad Siddique Khan, Advocate for Appellants. Rqja Hasan Akhtar Khan and Abdul Ghafoor Qureshi, Advocates for Respondents. Date of hearing: 22.12.1996. judgment Muhammad Yunus Surakhvi, J.--This appeal, with the leave of the Court, has been preferred against an order passed by the High Court on June 12, 1996, whereby the writ petition filed by the appellants herein was dismissed. 2. The precise facts, forming the background of the present appeal, are that the father of appellant No. 1 alongwith others, filed a suit in the Court of Sub Judge, Mirpur in respect of land measuring 1508 kanals and 4 marlas situate in village Rathoa, Tehsil Mirpur, against Abdullah and others, for a declaration that the suit land was Shamlat-deh in possession of the owners of the village, therefore, an entry of Arakdari in favour of Abdullah & others, defendants, was illegal and in-operative. It was averred in the plaint that this entry, due to the destruction of the record in 1947, was fraudulently managed by the defendants. The defendants controverted the allegations and pleaded that the land was not Shamlat-deh rather the same was the property of the State and was in possession of the defendants in which they acquired the rights of Arakdari. According to the defendants, the land was not in possession of the plaintiffs. After necessary proceedings, the suit was dismissed by the Sub-Judge, on 31.10.1966 but on appeal, the District Judge reversed the judgment and decree in terms that entry of Arakdari in favour of the defendants was incorrect and in-operative on the rights of the plaintiffs.. On the basis of this decree, mutation No. 66 was accordingly sanctioned on 25.1.1975, by the Revenue Officer which was confirmed by the Collector, in appeal. On April 2, 1993, respondent No. 1, Muhammad Afsar, sent a telegram to the Board of Revenue complaining about the said mutation which was treated as a revision petition by the Member, Board of Revenue and the same was accepted, consequently, the said mutation was set aside alongwith the order of Collector dated 31.5.1976. The appellants herein challenged the order of Member, Board of Revenue, through a writ petition which was dismissed by the High Court vide the order impugned in this appeal mainly on the ground that the Government was not impleaded as a party, similarly, a considerable portion of the land was acquired by the WAPDA and the same was also not arrayed as a party in the civil proceedings. Thus, any decree, which was passed without arraying the necessary parties i.e. Government and WAPDA as parties to the proceedings, was a nullity in the eye of law. 3. Raja Muhammad Siddique Khan, the learned counsel appearing on behalf of appellants submitted with vehemence, that Board of Revenue was not vested with any jurisdiction to question the legality of the mutation sanctioned on the basis of the decree passed by the District Judge In the estimation of the learned counsel, the Revenue Authorities were bound to act upon the decree even if the same was wrong or illegal. The learned counsel submitted that the decree passed by the District Judge had attained finality as the same was not challenged by any aggrieved party in an appeal or a evision before any competent forum. The learned counsel also urged that in sub paras (v) and (vi) of para 4 of the writ petition, it was specifically averred that non-applicants Nos. 1, 4, 7, 8, 10, 11, 12, 16. 18, 19 and 21 entered in revision petition before the Board of Revenue were dead but all the same, they were impleaded as non-applicants, as such, the revision petition filed against the dead persons was, on the face of it, not maintainable. Similarly, the Member, Board of Revenue had no jurisdiction to entertain a revision petition lodged after the lapse of about 18 years but these points, though very fatal to the maintainability of the revision petition, were left undecided by the High Court. The learned counsel pressed nto service the submission that the impugned judgment recorded by the high Court suffered from serious legal infirmity as the relevant law was mis interpreted and mis-appreciated, rendering the same as being unsustainable. 4. Controverting the arguments raised by the learned counsel for the appellants, Raja Hassan Akhtar Khan, the learned counsel for he respondents, fully defended the impugned judgments recorafecf by the High Court and the Member, Board of Revenue. The learned counsel submitted that the ownership of the land in question vests with the Government and it is entered in the revenue record as "Sri-Sarkar". A considerable portion of this and was acquired by WAPDA long before, which was also not impleaded as one of the defendants, in the civil proceedings. The learned counsel took serious pains to substantiate that in the plaint f led by the appellants in the civil court, it was not averred in terms that the land in uestion was not Sri-Sarkar and that the same was Shamlat-deh land. The decree thus passed by the District Judge, according to the learned counsel for he respondents, in absence of necessary parties i.e., the Government which is entered in the Revenue Record as owner of the land in question and WAPDA to which a substantial portion of land has been awarded, was a void decree which was rightly ignored by the Member, Board of Revenue. The learned counsel for the respondents strenuously contended that the point with regard to some of the non-applicants being dead was not either raised before he Member, Board of Revenue or the same was not pressed before 7. In case reported as 'Vesue and another vs. Thekkedath Veetil Ka.nna.mma and others' (A.I.R. 1926 Madras 991) it was observed at page 991 in a following way:- "Now it goes without saying that no decree is binding on a party if he was a necessary party to the suit and he was not on record, and if the result of the judgment in second appeal had been a decree against necessaiy parties not on the record undoubtedly the interest of those parties would have been affected without their having had an opportunity of meeting the case against them and in such circumstances the judgment against them would have been void, and in certain circumstances when their interests were inseparable from those of other judgment-debtors under the decree the decree as a whole would have been void. This principle of law is laid down in several cases. 'Imdad Mi u. Jagan Lai' ((1895) 17 All 478), 'Imam-ud-din v. Sadarath Rai' ((1910) 332 All 301) and 'Subramania Aiyar v. Vaithinatha Aiyar and another' (A.I.R. 1916 Mad. 656)." 8. In a case reported as 'Zeenat Begum and others vs. Fazal Dad and others' (1993 SCR 245), it was observed as under at page 248:- "Adverting to the first point of query listed above, we find that Roshan Khan, Sakhi Muhammad and Raj Muhammad were indeed impleaded by their brother Fazal Dad plaintiff as proforma defendants in the suit filed in the Court of Sub- Judge. Yet, however, the decree was claimed in the plaint by the plaintiff against the defendant-appellants in his favour as well as in favour of his brothers proforma-defendants. The decree on the ground of adverse possession was allowed in favour of all the brothers including Roshan Khan. From the very nature of the decree it is obvious that it is indivisible and is operative commonly in favour of all the brothers. Roshan Khan, now sought to be impleaded as respondent, was therefore, in our view, a necessary party. As the decree cannot be bifurcated, the whole appeal would therefore, if Roshan's name is not allowed to be impleaded as respondent, become incompetent." 9. In a case reported as 'Muhammad Ashraf vs. Azad Government o the State ofJammu and Kashmir' (PLD 1985 SC (AJK) 102), the relevant observation recorded by this Court may usefully be reproduced from pages 108 and 109 which reads as under:- "It is settled principle of law that the necessary parties should be impleaded by the person seeking the redress within the period of limitation and such parties cannot be brought on the record after the expiry of such period specially so when party seeking impleadment is guilty of negligence. However where a party is remotely interested in the fate of the petition and as such is only a proper party, its non-impleadment would not be fatal to the proceedings. This view prevailed in Atiar Rahman v. MA Ban and others (1). Likewise, it does not require any deep argument that if all the heirs of the deceased party are not impleaded it would be said that such a party has not been properly represented and the party who omits to do so cannot escape the legal consequences. Besides, a claim against a dead person surely cannot be entertained. So far as equity is concerned, we have not to see the equity only in favour of one party but we are expected to safeguard the interests of other party too. It may be that the appellants may suffer because of the dismissal of these appeals on this ground but on the other hand we cannot implead them now because the persons in whom a right had come to reside and who have been left out would be dragged to this court after a number of years for no fault on their part." 10. From the case law it becomes abundantly clear that a decree in absence of necessary patties is for all purposes a void decree and cannot operate against them. The contention raised by the learned counsel for the appellant merits no consideration that Revenue authorities were bound to act pon the decree even if the same was a nullity. On the other hand it was enjoined upon the Revenue Officer to ignore the said decree at the time of attestation of mutation on its basis. 11. In a case reported as Mst. Fazal Bibi and 8 others us. Ghulam Hussain and 46 others' (1980 CLC 789), it was observed by this Court at page 796 as under:- "In view of the above we hold that in the event a decree is nullity, absence of an appeal, suit or cross objections to avoid such decree is no bar for holding such that decree is inoperative and ineffective qua the rights of the other rival contestants. It is also now well-recognised principle of law if a decree is a nullity, it would be ignored wherever it is pressed in service. The simple reason is that such a decree or order is considered as to have never been passed." 12. Similarly in a case reported as 'Muhammad Swaleh and another vs. Messrs United Grain and Fodder Agencies' (PLD 1964 SC 97), it as observed at page 101 as under:- "It should be remmbered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction." 13. The decree of the learned District Judge dated 9th of January, 1970 on which the sole reliance is placed by the learned counsel for the appellant is even against the provisions contained in Order XX Rule 6 Civil Procedure Code. The Code of Civil Procedure postulates that decree must be inconfirmity with the judgment. To have a correct perception of the matter it is deemed expedient to reproduce exactly issues No. 1 and 3 which were framed by the learned District Judge. Issue No. 1 was framed to the following effect: - "Whether the suit land is 'Shamlat Deh' land owned by the proprietors of the village and is in possession of plaintiffs as 'Arakdars'O.P.P. Issue No. 3 reads as under:- "Whether the defendants are 'Arakdars' in the suit land and how does it affect the suit." O.P.D. 14. In his finding the learned Judge in the first instance dealt with issue No. 3 and observed that defendants were not found as 'Arakdars' of the suit land and thus this issue was decided against the defendants. While dealing with issue No. 1 it was simply observed by the learned District udge hat after giving finding on issue No. 3 issue No. 1 is decided in favour of plaintiffs. However while recording his finding on this issue it was observed by the learned Judge that plaintiffs-appellants could be given the 'Shamlat Deh' land on the basis of their possession in the land owned by the Government. It was further observed in unequivocal terms that the plaintiffs are found to be the 'Arakdars' in the suit land; thus the finding recorded by the trial Court on issue No. 1 is set aside. One fails to understand that on the basis of this ambiguous finding the decree-sheet, totally inconsistent to the finding recorded in the judgment was prepared by the subordinate staff of the District Judge. Thus it was rightly observed by the Member Board of Revenue that in the judgment no definite finding was recorded that the suit land was a 'Shamlat Deh' land instead of 'Sri Sarkar' land. Therefore the argument is not without any substance that in fact the decree was not inconfirmity with the judgment. 15. Another point that needs resolution is as to whether the revision petition filed before the Member Board of Revenue seeking cancellation of mutation No. 66 was hopelessly time-barred and was liable to be dismissed on this sole ground. This objection does not appear to have been raised before the Member Board of Revenue as it finds no mention in the judgment recorded by the learned Member Board of Revenue. However in the High Court in the writ petition the objection with regard to maintainability of revision petition after the lapse of about 18 years has been raised but it was not averred that the point of limitation was either urged or agitated before the Member Board of Revenue. From the impugned judgment it transpires that the learned Judge in the High Court dealt with this point and observed in the following manner:- (i) that the Board of Revenue is the highest forum of appeal/revision and has suo-moto powers. The Board of Revenue can revise any order passed by officer subordinate to it at any time; and (ii) that there is no provision in the law that Board cannot act, suo moto in revisions! jurisdiction when an application has been filed. The suo moto powers are unfettered and an application of an individual is no bar to the exercise of revisional jurisdiction suo moto and for this there is no time limit. From the above observation it becomes crystal clear that the learned Judge duly weighed the point of limitation agitated by the learned counsel for the appellant and in the ultimate analysis rejected the plea. The tact however remains that the plea with regard to the limitation was not raised before the Member Board of Revenue who was the exclusive authority to determine the question of limitation or otherwise but as said earlier the point was neither urged nor argued before him as the same does not find any place in the judgment passed by the Member Board of Revenue. Even in this Court the plea was not raised that the point of limitation was argued before the learned Member Board of Revenue and the same was not resolved as no affidavit was filed by the appellants in respect of their above assertion. We have held in numerous cases that even if a point is urged or argued before an authority of exclusive jurisdiction but the same is not resolved by it the appropriate course for the party relying on such plea is to raise the said plea in this Court duly supported by an affidavit but the same has not been done. Thus the contention raised by the learned counsel merits no consideration and the same is hereby repelled. Similarly the point that some of the non-applicants who were dead before the Member Board of Revenue were impleaded as such and the plea was raised in the writ petition but the same was not resolved by the High Court. We regret to point out that though this point was raised in the writ petition but we cannot assume that the same was urged or argued before the High Court. If it had been argued before the High Court and the High Court failed to record any finding on this vital point, the appropriate course for the appellants was to aver-so in the petition for leave to appeal duly supported by an affidavit, which is the normal practice in this Court but the appellants failed to do so. In this view of the matter this contention too is hereby repelled. 16. We are also of the view that under section 164 of the Land Revenue Act, the Board of Revenue has vast powers and it can revise any order passed by officer subordinate to it at any time. In a case reported as 'Abbas Raza vs. Government of Baluchistan' (PLD 1984 Quetta 158) the relevant observations may be reproduced from pages 162 and 163:- "The question that arises in the matter is whether Member Board of Revenue when the became aware of these patent illegalities which was known from the report of the Revenue Authorities could plead helplessness. The revisional jurisdiction has been kept vast by the legislature as would appear from the words "Board of Revenue, may, at any time, on its own motion" used in section 164 of the Land Revenue Act, 1967". "It would be clear that the power of the Member Board of Revenue to summon the record of the case is not confined to decidedcase but on the contrary he can call for the record of any case pending before or disposed of by a subordinate revenue officer. A Division Bench of the Lahore High Court in Khair Din v. I.U. Khan (PLD 1968 Lah. 11) had the occasion to consider the provision contained in section 16 of the Punjab Land Revenue Act which provisions are in pari materia with the provisions of section 164 of the Act of 1967 except that the word financial Commissioner is replaced by the Board of revenue, and it was held that the Board of Revenue was competent to entertain second revision. We find ourselves in agreement with this view." "In our opinion the superior revenue authorities are duty bound to interfere to rectify any wrong done to the interests of innocent parties. It is the duty of the State and its functionaries to ensure redress of grievances and minimisation of litigation." "Having thus conceded the competence of the Member, Board of Revenue to interfere even at a belated stage in the exercise of revisional jurisdiction, in case of miscarriage of justice, we are inclined to think that in view of the facts and circumstances of the instant case the learned Member was perfectly justified in undoing a wrong and to see that it was not perpetuated, and we are convinced that in the instant case the revisional powers have been properly exercised, and it is never too late to set aside and order which has been passed without jurisdiction or is void:- (1) PLD 1948 PC 94; (2) Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC 201. (3) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97. (4) Major Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184. are some of the authorities which may be quoted in this behalf." 17. The High Court in our view committed no illegality in dismissing the writ petition as the constitutional jurisdiction of the High Court is always invoked in aid of justice and not to help retention of illgotten gains. 18. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs. (MYFK) Appeal dismissed
PLJ 1997 SC(AJK) 126 PLJ 1997 SC(AJK) 126 [Appellate Jurisdiction] Present: BASHARAT AHMED SHEIKH AND MUHAMMAD YUNUS SURAKHVl, JJ. GHULAM NABI SALEEM CHISHTI-Appellant versus STATE and another-Respondents. Cr. Appeal No. 14 of 1996, heard on 13.1.1997. (On appeal from the Judgment of the High Court dated 8.10.1996.) (i) Criminal ProcedurCode, 1898 (V of 1898)- -S. 344--Remand of accused-Period-Limitation of-Where Magistrate has to remand an accused to custody u/s. 344 Cr.P.C., he cannot remand an ccused to custody for a term exceeding 15 days at a time but no such limitation has been placed when a remand order is to be passed by a court other than Magistrate-Sessions Judge if considers necessary or advisable to postpone commencement or adjourn trial, he may, if he thinks fit, by order in writing, stating reasons therefore, from time to time, postpone or adjourn the same for such time as he may consider reasonable and may by a warrant remand accused, if in custody. [P. 130] A PLD 1978 SC 38 ref. (ii) Criminal Procedure Code, 1898 (V of 1898)-- S. 344--Remand--Order of Sessions Judge showing period fixed on both of dates was for 15 days, held, it could not have been said that remand given was of a longer period-After lapse of 15 days as ordered by Sessions Judge, accused was to be produced before court as required by law to order for detention or otherwise of accused, but appellant (reader) adjour ning case and sending accused to judicial custody after taking abundant cautions-Appellant, held, cannot be attributed any malice or malafide in adjourning case and sending accused to judicial custody. [Pp. 131 & 132] B & C Mr. Ghulam Mustafa Mughal, Advocate for Appellant. Raja Shiraz Kyani, Advocate General for State. Muhammad Idrees Mughal, Advocate for Petitioner-Respondent. Date of hearing: 13.01.1997. judgment Muhammad Yunus Surakhvi, J.-This appeal, by way of leave, has been directed against an order passed by the High Court on Oct. 8, 1996, whereby the S.H.O. Police Station Muzaffarabad was directed to register a case against the appellant under Section 219 Penal Code and any other Section which he finds applicable in the circumstances of the case and put up challan before the Court of law for his trial. It was also directed that the appellant shall be handed over to S.H.O. Police Station Muzaffarabad on the same day. A further direction was issued to the Registrar High Court that he shall also cause appropriate disciplinary proceedings to be taken against the appellant. 2. The precise facts, culminating into the present appeal, are that a case under Sections 467, 468, 471, 409, 109 APC read with Section 5(2) of the Prevention of Anti-Corruption Act was registered against one Muhammad Azam Durrani, at Police Station Anti-Corruption, Muzaffarabad, who was apprehended by the police and was produced before the Sessions Judge/Anti-Corruption Judge Muzaffarabad on 27.07.1996. Since the police submitted an in-complete challan on the aforesaid date, so a request was made by the police to remand the accused to judicial custody and to adjourn the case to 10.08.1996. The request made by police was acceded o and the learned Judge remanded the accused to judicial custody uptil 10.8.1996. On 10.08.1996 the Sessions Judge/Anti-Corruption Judge was not on the ead-quarter, the clerk of the Court (appellant) adjourned the case to 11.8.1996. However it was recorded in the order dated 10.8.1996 that the remand rder could be given only by the learned Sessions Judge/Anti-Corruption Judge and the file may be placed before him on his arrival on the following ay. On 11.08.1996 the Sessions Judge/Special Judge Anti-Corruption remanded the accused to judicial custody and ordered to produce him on 5.08.1996. On 25.08.1996 the Sessions Judge/Anti-Corruption Judge on the request of police remanded the accused to judicial custody and adjourned he case to 08.09.1996. On 8.9.1996 the Sessions Judge being on leave the case was adjourned by the appellant and the accused was sent to judicial ustody nd fixed the next date as Sep. 22, 1996. On an application moved by the police for seeking judicial remand of the accused on 8.9.1996 there appears a note f appellant that the Sessions Judge/Special Judge Anti-Corruption was on leave for one month therefore the matter may be put up before Additional essions Judge. There is another note as well on the said application that as the Additional Sessions Judge is also on leave the matter was brought to the otice of Registrar High Court on telephone on whose direction the application was attached with the file. On 22.9.1996 the Sessions Judge was also on eave and the case was adjourned by the appellant however it was recorded in the order that S.H.O. Anti-Corruption through his application requested Sub- udge/Traffic Magistrate Muzaffarabad for passing an order of remand of accused but he refused to issue the order in this regard. However the Sub- udge/Traffic Magistrate intimated on telephone that docket may be issued and he would remand the accused to custody. It is also recorded in the order that n telephone permission was sought from Registrar High Court. The application submitted by Inspector Anti-Corruption with a note of the 'Reader' that on account of leave of Sessions Judge/Special Judge the matter may be brought to the notice of Additional Sessions Judge or the High Court or any Magistrate. Then against the application appears to have bee marked to Sub-Judge/Traffic Magistrate 1st Class. 3. The High Court vide its order dated Sep. 330,1996, on account of the remand orders made by the appellant in absence of or on leave of Sessions Judge/Anti-Corruption Judge/Additional Sessions Judge or any Magistrate found the confinement of accused Muhammad Azam Durrani asillegal but at the same time did not set him free instead released him on bail in view of his being involved in the case. The High Court taking notice of illegal exercise of authority by the clerk of the Court issued a notice to the appellant to appear in the Court and explain as to why he should not be proceeded under law for having passed the order without any authority of law. The appellant filed his explanation before the High Court on Oct. 2, 1996, wherein he stated that on account of absence of or on leave of Sessions Judge/Anti-Corruption Judge/Additional Sessions Judge he ordered in routine to remand the accused in judicial custody. It was further stated by the appellant that he contacted the Registrar High Court and Deputy Registrar on telephone and with their permission ordered the detention of the accused in judicial custody. The High Court in para No. 4 of the impugned judgment made the following observations: - "The power to postpone or adjourn the proceedings and remand of an accused to the custody is vested in a Court under Section 344 Cr.P.C. and every order made under this Section by a Court other than the High Court shall be in writing signed by the Presiding Judge or Magistrate. The clerk who remanded the accused to the custody was admittedly neither the Magistrate nor the Court nor was he competent to order the remand of the accused to the judicial custody. The order passed by him being contrary to law resulted in illegal confinement of a person." 4. The High Court, not being satisfied with the explanation furnished by the appellant ordered to initiate proceedings against him in he manner indicated in the earlier part of this judgment. 5. Mr. Ghulam Mustafa Mughal, the learned counsel, arguing the case on behalf of appellant,.submitted with vehemence that the appellant should not have been proceeded against for the acts done by him in good faith as no malice could be attributed to him. On account of absence of the Presiding Officer or due to leave, the appellant was left with no option excepi to send the accused to judicial custody. The learned counsel strenuously argued that the order -of registration of criminal case as well as the initiation of disciplinary action against appellant under the Efficiency and Discipline Rules was uncalled for. The appellant, according to the learned counsel, made his best efforts to secure the remand of the accused in absence of Presiding Officer from dditional Suasions Judge, or any Magistrate and even contacted the Registrar High Court and the Traffic Magistrate but failed to get the same so he could not have been blamed for .'he acts done by him in good faiUi, Mr. Shiran Kiyani, the learned Advocate-General, frankly conceded that in the circumstances of the case there was no allegation that the appellant acted corrupt.!}; or nmiivi'^siy. 6 We have priv-;; our jue consideration to the arguments addressed at Ear ar.d penised u .:.' r-Uiv-v 1 ! rcc-;ru. To have a correct perception of the 1 and may by a warrant Temattd the accused, if in custody. 8. In a case reported as'Shadi Khan vs. Muhammad Baleeni and 3$ others' (PLD 1978 SC ; 38), the necessary facts were that a case was registeredagainst respondents therein under Sections 302, 307 read with 34 P.P.C. The High Court had earlier dismissed the bail application of the respondents on merits by its order dated 22nd of Feb. 1977. Thereafter thf respondents again applied for bail and a learned single judge in the Lahore High Court, by the order date,d 16th of Nov. 1977, allowed them bail on the ground that they were being held in judicial custody without any order of remand in violation of Section 334 Cr.P.C. On appeal before the Supreme Court it was observed at page 40 of the report in the following manner:- "Section 344 empowers the Court to postpone the .commencement of or .adjpurn any inquiry or trial t It further authorises the Court to do so from "time, to time" and "for was as : jt, considers reasonable". ^Accordingly, having taken cognizance; of , the c^ence under. , Sectio^ 193(1) the 2- Session Judge jpqstpone^ the cprqmei|eemeait of t|e trial such time as the case was fixed for heaving as it was not possible to give any firm date in eyery cage on account' of a large number of cases having been sent to the (Jourt pf Sessions pursuant to the deletion of tlie committal proceedings from the Criminal procedure Code. In tfris ontext ,even if the perii^ was ^notr speculed still tfce interregnum must.be regarded as reasonable and a sufficient ompliance of the words "from time to time'. They should not be given a rigid meaning for in doing so it would lead to an impossible situation necessitating the production of number of accused in Court and thereby causing hindrance to the trial of the cases. On this view of the matter there is no occasion for postponing the commencement of the trial , now and again. Therefore it will be out of place to stress the fc. significance of the words "from time to .time" which enable fte.Court to do, so as occasion arises he interpretation that we have given it cannot ">'> be -heM ( as proposition that the case jEaaBOt "be adjourned jsin« /' ' die for provisions are to 1 be construed to Advance justicei As ' - such & is not possible to-affirm the -view taken in Saif-ur- '' ' Rahman vs. The State (PLD 1978 Labi 314). ab,ove authority it becomes abundantly clear plat except 1hie Magistrate, the Court of Sessions Judge and Special Judge are 'competent to remand the accused, tp judicial custody for a period of, more than 15 da} s at a time and the inquiry or trial may be postponed or adjourned for such time as th£ Court considers reasonable but as said earlier the normal practice in Azad Jammu and Kashmir is that even in the Court of Sessions" Judge the ac9used is remanded to judicial custody not for a period of nidfe than IS days. In the instant case on 27.07.1996 the initial remand Was oi'd^re&by the learned Sessions Judge and the case was adjourned to 10.'0&.1^96:'SimiMriy on 25.08.1996- the order of remand was given by the'learnficl'Se'ssi&is Judge himself. 'However on 08.09.1996 and oft- 22:09.1696, the ajjfrefemt^jjthje lleader 'of l!he Court, oh afccburit-of leave of'ths l&arjied .Sessions /Judge a : djourne'd the/case after taking ^reea^itioriary ^teps ^im'eiitionied' in ihe eirller pait'of this judgment. As 'in th©»remana 'ordeis reeordad . by the learned Sessions Judgte himself, the period fixed- oh both bf Che4ates w!as-for l"5"days therefore it could not have beWsaid that- th f&fh£®& given was of 1 longer period and the accused could have been produced before the Court at jany subsequent stage. The perusal of the orders recorded by the Sessions ] Judge reveals that the accused was to be produce before the Court after the i lapse of 15 days as ordered by the learned Sessions Judge in both the ! remand orders and on the production of the accused the Court was required i under law to order for the detention or otherwise of the accused but in our |view the appellant cannot be attributed any malice or malafide in adjourning jthe case and sending the accused to judicial custody after taking abundant jcautions. The appellant did not readily commit the accused to judicial jcustody on both the dates i.e. 08.09.1996 or 22.09.1996. On the other hand ion the application submitted by the police seeking the permission for judicial remand, the appellant made a note that the remand order could have been i passed only by the learned Sessions Judge and in his absence by the learned i Additional Sessions Judge. Thereafter as a matter of abundant caution he £,! contacted the Registrar High Court and Traffic Magistrate and any other | Magistrate for seeking the remand order. On his failure to get remand order 'from any one, the appellant issued the remand order. We take judicial notice of the fact that it is a common and usual practice throughout in Azad Jaramu and Kashmir that in absence of judicial officers or Magistrates, the under-trial prisoners are sent up to judicial lock-up by the clerks of the Court. In the circumstances of the case the only option for the appellant was either to set free the accused or to send him back to the judicial custody. The bail application of accused Azani Durrani had earlier been rejected by the High Court. Had the appellant set the accused free then and there, the argument would have been strong enough to attribute malice to him or to attribute that for some monetary gains he released the accused. There is no doubt that the remand order recorded by the appellant was unauthorised and. therefore, illegal but we have, from analysis of the record, found that the appellant all along had been taking extra cautions and whatever was \vlihin his control he adopted these measures and tried his best to secure remand of the accused form the competent authority but having failed so he evirii contacted the Registrar High Court and Traffic Magistrate on telephone t.r.3 o£i their instructions sent the accused to judicial custody. Thus, in the lucts c.iiJ circumstances of the case, the order of registration of case against the appellant and initiation of proceedings under the Efficiency and Discipline Rules was not warranted by law and as such not sustainable. 9. The High Court vide its order impugned, feeling not satisfied with the explanation submitted by the appellant, order for registration of the case against the appellant under Section 219 A.P.C. and any other section^ which was applicable in view of facts and circumstances of the case. As said earlier, it was further ordered that S.H.O. shall put up a challan against the appellant. On the basis of this direction, a case under Sections 219 and 344 j Penal Code, was registered and challan was put up against the appellant, the direction, issued by the High Court, was, in our considered view, not in consonance with the requirement of law. The High Court did not direct the concerned police to register the case against the appellant and to make an inquiry as to whether the allegations attributed to him were true or false On the other hand a definite direction was given to put up a challan which certainly amounts to excess of powers. Section 219 clearly speaks of making j or pronouncing a judicial proceeding, any order, verdict or decision which I the accused knows to be contrary to law corruptly or maliciously. We have already dilated upon the matter that basic ingredient of the aforesaid Section is making or pronouncement of an order corruptly or maliciously which ingredient is not only lacking but on the other hand there seems to be no mala fide or malice attributable to the appellant Similarly Section 344 of the Code prima facie applies to person who himself wrongfully confines any person for a period of 10 days or more. Even the essential ingredients of this
offence are also missing in the case in hand. It goes without saying that the High Court is manned by the Judges of vast experience and of great integrity having a grat deal of patience at their command but the order seems to have been passed with impulsion to firmly deal with the illegality committed by the appellant. We may not be understood to have approved the acts of the appellant and it is indeed correct that an order of remand under Sub-Section (2) of Section 344 is to be given by a court in writing other than a High Court signed by the Presiding Judge or Magistrate but we cannot ignore the prevalent and normal practice in Azad Jammu and Kashmir that in absence of judicial officers, the accused are sent to judicial custody by the clerks and this practice is virtually applied like a rule of law. The most distinct feature of the case before u? is that this case is not one of those cases where the accused was not sent to judicial custody by any of the orders of the Court. \Vhc:3 the initial orders O.ated 27.07.1996 and 25.08.1996 where passed by the oesbioas Judge haitsolf the subsequent orders in the facts and eirairns'uncos !' the case cannot be construed to be so much illegal orders as | ;, v < aeclai-e the dcie^u^n U the accused as absolutely illegal. Perhaps this was I a reason thtii despite finding the detention of the accused Muhammad Azam |_ Durrani as illegal by the High Court, he was not set free but was released on r bail on account of a registration of serious case against him. It is the high | time that the-High Court, which exercises the supervisory jurisdiction even ; under the Interim Constitution Act of 1974, should adopt a uniform policy j and issue directions to the Courts and Magistrates subordinate to it as to what course of action should be adopted and which measures should be taken when the judicial officers or the relevant Court is not available for sending the under-trial prisoners to judicial custody on account of their being on leave or their absence from their duties for one or the other reasons and whether in such circumstances the detention of the under-trial prisoners becomes illegal or not. A copy of this judgment shall be sent to the learned Chief Justice High Court for future course of action and his directions to the Courts subordinate to the High Court. 10. In the light of what has been stated above, by accepting the appeal, we set aside the impugned order of the High Court dated 08.10.1996. (Aq. By.) Appeal accepted.
PLJ 1997 SC(AJK) 141 PLJ 1997 SC(AJK) 141 [Appellate Jurisdiction] Present: basharat ahmed shaikh, J. AZAD JAMMU AND KASHMIR COUNCIL-Petitioner versus ABDUL RASHID ete.--Respondents Civil Petition for Leave to Appeal No. 14 of 1997, dismissed on 22.3.1997. (On appeal from judgment of High Court dated 11.12.1996 Writ Petition No. 89 of 1996) Limitation-- Condonation of delay-Admittedly judgment was announced by High Court in presence of counsel for parties-Knowledge of counsel is knowledge of lient, thus limitation starts running from date of announcement of judgment, if it is announced in presence of counsel- Legal principle that it was duly of lient to find out position of case cannot be disputed-Explanation for delay as well as application for condonation of delay rejected-Petition dismissed. [P. 142 43] A to C 1993 SCR 11, PLD 1983 AJK(SC) 25 and 1974' SCMR 223 ref. Hafiz S.A. Rehman, Advocate for Petitioner. Raja Shiraz Kayani, Advocate General for Respondent No. 6. Date of hearing: 22.3.1997. judgment The Azad Jammu and Kashmir High Court accepted a writ petition filed by respondents Nos. 1 to 4 declaring them entitled to settle in any part of State of Jammu and Kashmir . Another relief granted to them was in the shape of a direction that they shall uot be deported. The said respondents came from that part of the State of Jammu and Kashmir which was occupied by force by India , towards the end of 1947 and continues to be so, on Indian Passports. The petition for leave to appeal is barred by time. The judgment was announced on llth of December 1996 while the petition for leave to appeal was filed on 1st of March 1997. After deducting the period of one day which was spent in obtaining certified copy of the judgment the petition is barred by 19 days. It is stated that the learned counsel who represented the Azad Jammu and Kashmir Council before the High Court delayed intimation about announcement of the judgment and it is claimed that the petition is within time for the date of knowledge. Through an application i prayed that if it may!he]f9uft(l, ( tha'|;fif { condoned belated delay may be Admittedly the judgment was announced by f the High Court in presence of the learned counsel for the ^pallie^; 1?M Court has consistently been follow^ Ihfti^alimneiptej^k^^ of the client and thus limitation starts running from the date of announcement of judgment if it is announced in presence of the counsel. In Allied Bank of Pakista^^jQh^^fir^A^iFrB^s (f?fvi| Appeal No. 66 of 1996 decided on 1.3.1997) this Court rejected an application for condonation of delay which was based on the giourid that the seoansel ^dM?riotdnfornj i time that judgment had been announced. In that case it was observed by this Court as follows":- It is well settled that knowledge of the counsel is knowledge of the client. The legal principle thal?W^8iIRlty ' of the client to find out the position f the case c^nnplj b« , disputed." In Dr. Muhammad Iqbal Qureshi v. Azad Govt. and oth6f$ '(1993 S.C.R. Ill) and Rehmat Bibi v. Ghazanfar Hussain (PLD 1983 AJK (SO 25) applications for condonation of delay we,re dismissed on the same ground, nameiy, that knowledge of the counsel is knowledge of the party.The view of the Supreme Court of Pakistan pn this_p,pint,is_also the same. In Muhammad Nawaz 'v. Mst. Sakina Bibi (1974 &C.M.R. 22) a plea similar to the one being raised in the present case wa$ advanced \that the counsel did not promptly inform the result of the case to the party. The appeal was dismissed as barred by limitation by holding that:"Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instance case. The 1 , ... . . initial obligation was of the petitioners to enquire about tfa^e . decision, in their appeal, or to arrange with their counsel to inform them about the decisipn if it is announced in their absence. Even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient .ground for condonation of delay, when a valuable right has-accj;ued to the respondents Nos. 1 to 3. We are not satisfied that the petitioners were diligent or took due .care In" the When arguments were heard on 22nd of March. 1997 -the, counsel did not cite any authority in support of his ,application.Jor Condonation 'To advance the ends of justice he was given, a.peripd qfspvpp days so that he could cite any decided case in support of l;is plea. A^cpr^ingly he has transmitted to the office a copy of a judgment of the Supreme Court of India which is reported as Collector, Land Acquisition, Anantnag and another vs. Mat. K^tiji and others (AIR 1987 S.C. 1353). In presence of the previous judgments of this Court as well as the Supreme Court of Pakistan a judgment 1 frdm Indian jurisdiction does not'have even persuasive value. All the same I have gone through the report attd find fhtff the judgment do'e"s not advance the case of the petitioner. It is noted in para 2 of the judgment that an appeal preferred by the State of .Jammu and Kashmir arising out of a decision enhancing compensation of acquired land 800 per cent and also raised important questions of valuation was dismissed by the High Court as being barred by fuur days. In para 6 it was observed that "makihg a justice oriented approach" there was sufficientsearise for condonation of delay. From the judgment it is not clear what was the ground which persuaded the learned Judges to condone the delay. Therefore, it "is not possible to infer any principle of law from the report. However, it is clear that the judgment .does not lay down that delay should be condoned if the counsel neglects to inform his client that judgment has been announced. In light of the observations made above the explanation for delay as weB as the application for condonation of- delay are rejected. Consequently tiie petition for leave to appeal stands dismissed as being barred by time. (MYFK) Petition dismissed
PLJ 1997 SC(AJK) 146 PLJ 1997 SC(AJK) 146 [Appellate Jurisdiction] Present: BASHARAT ahmad shaikh and muhammad younas surakhvi, JJ. . MUHAMMAD NAZIR KHAN and 6 others-Appellants versus SALTANAT KHAN and 5 others-Respondents Cr. Appeal No. 12 of 1996, accepted on 17.12.1996. Criminal Procedure Code, 1898 (V of 1898)-- S. 145-Proceedings under-Magistrate-Powers of-Possession of disputed property, regulated by Civil Court by entertaining suits and issuing an ad-interim relief for maintaining status-quo of disputed land-Whether trial Magistrate is still vested with jurisdiction to proceed u/S. 146 Cr.P.C.--Question of-Similarly, in view of cognizance of subject matter by both courts i.e. Criminal Court and the Civil Court, whose order is to prevail and determine rights of parties conclusive? In order to avoid conflicting decisions on same matter, proceedings u/S. 145, Cr.P.C., held, should not be allowed when matter is simultaneously taken to a Civil Court as ultimately, decision of civil court is to prevail either with regard to possession or right to possess certain property-In presence of both litigations, civil litigation, held further, should be resorted to wherein rights of parties are conclusively resolved-Appeal accepted-Impugned order of High Court, set aside. [Pp. 148, 149,151 & 152] A, B, C & D PLJ 1984 SC (AJK) 47, PLD 1970 SC 470, PLJ 1985 SC 540 and NLR 1984 Criminal P. 9 ref & reld. Mr. Ghulam Mustafa Mughal, Advocate for the Appellants. Sh. Abdul Aziz, Advocate for the Respondents 1 to 5. Raja Shiraz Kiyani, A.G. forthe State. Date of hearing: 15.12.1996. judgment Muhammad Yunus Surakhvij J.-This appeal, with the leave of the Court, has been preferred against an order recorded by the High Court on Sept. 26, 1996, whereby the revision petition filed by respondents, herein, against the order of Sub-Judge/Magistrate 1st Class Hattian Bala, passed on May 16, 1996, was accepted and the case was remanded to the trial Magistrate for deciding it after inquiry, in accordance with law. 2. The precise facts, forming the back-ground, of the present appeal are that on the application moved by respondents at Police Station Leepa a complaint under Section 145 Cr.P.C. was filed by Prosecuting Inspector in the Court of Sub-Judge/Magistrate 1st Class, Hattian Bala, praying therein 4. On the other hand, Sh. Abdul Aziz, the learned counsel for the respondents, seriously controverted the contentions raised by the learned counsel for the appellants on all the scores. Both the learned counsel for respondents and Mr. Shiraz Kiyani, the learned Advocate-General, appearing for the State, contended that filing of a civil suit was no bar to the proceedings initiated under section 145 Cr.P.C. While elaborating their point of iew it was contended that Section 145 Cr.P.C. was meant to a situation where there was an imminent apprehension of breach of peace and to prevent Law and Order situation; the course thus adapted by the learned trial Magistrate in proceeding under Section 145 Cr.P.C. and the impugned order passed by the High Court were perfectly valid warranting no interference by this Court. 5. We have given our due consideration to the arguments canvassed at bar and perused the record made available with care. The point that needs resolution by this Court is as to whether after the possession having been regulated by the civil Court by entertaining suits and issuing an ad-interim relief for maintaining the status-quo of disputed land, the trial Magistrate was still vested with the jurisdiction to proceed under Section 145 Cr.P.C. with the same subject matter. Similarly in view of cognizance of the subject matter by both the Courts i.e. the Criminal Court and the Civil Court, whose order will ultimately prevail and determine the rights of parties conclusively. 6. Normally when the District Magistrate, Sub-Divisional Magistrate or Magistrate of 1st Class is satisfied from a police report or other information that dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing stating the grounds of being so satisfied and requiring the parties concerned in such dispute to attend his Court n person or by pleader within a time fixed by such Magistrate and to put in written statements of their respective claims in respect of fact of actual possession of the subject of the dispute. Under subsection (4) of Section 145 Cr.P.C. the Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the fact such evidence, taken such further evidence (if any) as he thinks necessary and if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject or two months before that. Again under proviso second if the Magistrate considers the case one of emergency he may attach the subject of dispute pending his decision under this Section. 1. The requirement of Section is that Magistrate must be satisfied with regard to a dispute likely to cause breach of peace and that which party is in possession of the subject of dispute or two months prior to the filing of the application but we have noticed that the trial Magistrate at the time of passing an order for attachment of the disputed land was imply impressed by the report forwarded by the Prosecuting Inspector, though the report was not accompanied by any of the material showing that there was an imminent danger of breach of peace or that the applicants were in possession of the subject of dispute on the day or two months prior to the passing of the order. It is also noticed on the objections filed by the non-applicants (appellants herein) that the order of attachment was set aside in absence of any material brought on record with regard to non-existence of breach of peace or with regard to the possession of the subject of dispute on the relevant date. Be that as it may, it was specifically alleged by the appellants herein in their objections before the trial Magistrate that with regard to the subject of dispute two civil suits were pending in the Civil Court filed by them and a counter suit filed by the respondents. It was also brought to the notice of the trial Magistrate that possession of the subject of dispute had been regulated by the Civil Court in issuing the interim-injunction in terms of status-quo of the suit land to be maintained in the suits filed by the appellants. 8. It is indeed correct that Section 145 Cr.P.C. is so coached as not to be appreciated easily by the Magistrates performing their functions in far flunged backward areas. At a time there used to be divergent views of the High Court of Azad Jammu and Kashmir recorded in different cases under Section 145 Cr.P.C. One view was that the jurisdiction of Magistrate to attach the subject of dispute under Section 145 Cr.P.C. is not excluded even in presence of a recent decree of Civil Court for perpetual injunction or an order regulating the possession passed in terms of ad-interim injunction, up holding the possession of one of the parties to the proceedings whereas the counter view was that in order to avoid conflicting decisions on the same matter proceedings under Section 145 Cr.P.C. should not be allowed when the matter is simultaneously taken to a Civil Court but by now this controversy stands settled by a reported judgment of this Court in a case titled "Suleman Khan vs. Abdul Aziz and 33 others" (PLJ 1984 SC(AJK) 47), wherein it was held at pages 51 and 52 of the report in the following manner:- We have already noticed that under sub-section (4) of Section 145, Cr.P.C. the introduction of the words "if possible" and incorporation of the proviso under sub-section (2) of Section 146, Cr.P.C. clearly reflect that the order of the Magistrate, whether under Section 145, Cr.P.C. or 146, Cr.P.C., is not only subject to the decision of a competent civil Court, but it also provides that the moment civil court takes a step to regulate the possession of the subject of dispute by appointment of a receiver, the order of the Magistrate automatically gives way to the order of Civil Court as the Civil Court is vested with power as final arbiter. Therefore, it is wrong to suggest that it is nowhere laid down under Section 145, Cr.P.C. that the Magistrate is divested of his power in presence of civil proceedings or when the possession is regulated by a temporary injunction or in presence of a recent decree for the perpetual injunction. The Magistrate acting under Section 145, Cr.P.C. is under an obligation to respect any recent decision concerning possession of the subject, given by a competent civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration of justice, but it may also culminate in disastrous results. To give importance to the recent decree of the civil Court or an interim order in the terms of appointment of the receiver of issuance of ad interim injunction, is also a question of judicial propriety. Thus the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under Section 145, Cr.P.C. when he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land or water or the boundaries thereof and he is within his jurisdiction to constitute an inquiry in order to determine the question of factum of possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits or the claims of the parties to a right to possess the subject of dispute. Secondly, when merits or claim to a title or right to possess the subject is recently settled by a competent civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewhise, the Magistrate shall avoid interference into possession of the subject by having a recourse to attachment in presence of an order of competent civil Court of appointment of a receiver of issuance of adinterim injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to inquire into the question of possession when other conditions contained under the section are fulfilled." "The next question pertinent to the proposition is as to what remedy is available to avoid likelihood of breach of the peace in presence of the recent decree of the civil Court concerning the possession or an order regulating the possession for interim period? The proper answer is that when the question of possession of the subject is settled by the decision of a competent court or its possession is regulated in open of the aforesaid manners, during the pendency of the civil proceedings, on information of likelihood of breach of the peace, the Magistrate is within his power to proceed against the disturbance maker under Section 107, Cr.P.C. It is well admitted that the provisions of Section 107, Cr.P.C. which are general in character, are even attracted in such like cases. Besides that in case of a trespass or forcible dispossession of the rightful owner, the Magistrate is equally competent to proceed against the accused for commission of substantive offence." In the case reported as "Shah Muhammad vs. Haq Nawaz and others" (PLD 1970 SC 470), the Supreme Court of Pakistan spoke for the relevant proposition at page 481 in the following way:- "The provisions of the two Codes set out above have a material bearing on the question whether a Magistrate can, under section 145 of the Criminal Procedure Code, act in violation of a decree or the terms of an order passed by a civil Court during the trial of a suit. It becomes apparent at once that the proceedings initiated under section 145, Cr.P.C., are subordinate to a decree or order passed by a civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land' or Svater'. These proceedings though concerning the subject-matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore of a transitory nature. That is why a Magistrate will not appoint a receiver if the property in dispute is already in the possession of a civil Court through a receiver appointed by it and the receiver appointed by a Magistrate must make over possession to the receiver appointed by a civil Court subsequently. Section 145 therefore proceeds on the premises that the Magistrate will cease to deal with the possession of "land" or "water" in dispute before him as soon as a civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr.P.C., and bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo. A contrary position will indeed lead to anomalous results." In the case reported as "Mehr Muhammad Sarwar and others vs. The State and 2 others" (PLJ 1985 SC 540), the Supreme Court of Pakistan observed at page 542 as under: - "It requires to be mentioned that in an inquiry under section 145, Cr.P.C. all that a Magistrate is ultimatel empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad vs. Haq Nawaz and another (PLD 1970 SC 470) where the possession of the same property has been regulated by a civil Court, even through a temporary injunction, the manner falls outside the jurisdiction of the learned Magistrate under section 145, Cr.P.C." 9. From the case law cited above, it becomes abundantly clear that in order to avoid conflicting decisions on the same matter proceedings under Section 145 Cr.P.C. should not be allowed when the matter is simultaneously taken to a civil Court. Another substantial reason is hat ultimately the decision of the civil Court is to prevail either with regard to the possession or right to possess certain property. Thus in presence of both the litigations, the civil litigation should be resorted to wherein the rights of parties are conclusively resolved. The learned counsel for respondents also relied on the reported case Suleman Khan vs. Abdul Aziz and 3 others which is reported in N.L.R. 1984 Criminal page 9 which we have already discussed and the same is reported in PLJ 1984 SC (AJK) at page 47. 10. For the afore-stated reasons, we accepted the appeal and set aside the impugned order recorded by the High Court with the irection that the parties may get the determination of their rights with regard to the disputed land from the Civil Court, wherein their suits are nding disposal. (Aq. By.) Appeal accepted
PLJ 1997 PLJ 1997 SC (AJK) 158 [Appellate Jurisdiction] Present: basharat ahmad shaikh and muhammad younas surakhvi, J. LIAQAT ALI and another-Appellants versus MUNICIPAL CORPORATION, MIRPUR through MAYOR and 5 others-Respondents. Civil Appeal No. 32 of 1996, decided on 8.12.96, alongwith Civil Appeal No. 41 of 1996 heard on 30.10.1996. (i) Azad Jammu & Kashmir Interim Constitution Act, 1974- S. 44-AWrit can be filed against a "person" performing functions in connection with affairs of the State-Chairman, Municipal Corporation, when performs a function or exercises a power which is exclusively vested in him independently of the Corporation, then he is independently a person within the meaning of Sec. 44, referred to above-Members of Corporation, even collectively, cannot influence his decision or share his power and he cannot be construed to be part of Corporations. [P. 161] B & C (ii) Writ Jurisdictions- Necessary party-Non-impleading of-Effect-Municipal Corporation was impleaded but its Chairman whose order was challenged, was not impleaded-Held: Functionary whose order is challenged, held, to be impleaded-Writ petition, dismissed W.P. No. 41 of 1996 accepted. [Pp. 160 & 162] A, D & E 1992 PSC 724, PLD 1987 SC (AJK) 16, 1990 PSC 1014 and PLJ 1990 SC (AJK) 38 ref. Appellant by Abdul Ghafoor Qureshi, Advocate and Ch. Muhammad Riaz A/am, Advocate. Respondents by A.G. and Advocates. Date of hearing:30.10.1996. judgment Basharat Ahmad Shaikh, J.--Both the above noted appeals arise out of the same judgment of the High Court and are being, therefore, disposed of together. basis of possession. Mr. Riaz Alam contended that this entry in the allotment order carries the presumption of truth but no document has been placed on the record to displace this presumption Mr. Riaz Alam also raised a preliminary objection about maintainability of the writ petition which goes to the root of the case. Therefore, we first advert to it 5. Mr. Riaz Alam submitted that a necessary party, without which the writ could not proceed, was not impleaded as a party. He pointed out that n the writ petition Municipal Corporation was impleaded as a respondent but the Chairman/Mayor of the Corporation was not impleaded as a party, while the power of regularization is vested in the Chairman/Mayor and not in the Municipal Corporation. The learned^ counsel relied n Barkat Hussain v. Sardar Misri Khan (1992 P.S.C. 724). Muhammad Nazir v. Muhammad Ashraf (PLD 1987 S.C. (AJ&K) 16) and an un-reported judgment of this Court in case titled Mahboob Hussain v. Chairman Municipal Committee (Civil Appeal No. 114, decided on 28.11.1992). 6. It was held by this Court in Barkat Hussain's case that it was an lementary requirement that in a writ petition the functionary whose order is hallenged must be made a party otherwise the petition entails dismissal. In the case Custodian of Evacuee Property whose order was challenged before the igh Court was not arrayed as a respondent and, following the dictum laid down in Abdul Hamid v. Muhammad Zameer (1990 P.S.C. 1014) and Muhammad Resham Khan v. Chairman Inspection Team (PLJ 1990 S.C. (AJ&K) 38), we ordered the dismissal of the writ petition holding that it could not proceed in absence of a necessary party. In Muhammad Nazir's case same view was expressed by this Court. 7. In un-reported case of Mahboob Hussain the Allotment Committee had passed the allotment order which was impugned before the High Court by filing a writ petition but the Allotment Committee was not impleaded as a party, although Municipal Committee was impleaded as a respondent. This Court held that in absence of the Allotment Committee, which was a necessary party, the writ petition was not properly constituted and on his sole ground the dismissal of the writ petition was upheld. 8. Mr. Abdul Ghafoor Qureshi, the learned counsel for Liaqat Ali _ and Azhar Mahmood, contended that the present case was distinguishable because the Chairman/Mayor was not arrayed as respondent but the Municipal Corporation was one of the respondents in the writ petition. He submitted that the Municipal Corporation as a whole of which the Chairman/Mayor is a part and the Municipal Corporation includes the Chairman who has passed the order. He relied on this Court's judgment reported as Sardar Muhammad Ibrahim Khan v. Tkead Jammu and Kashmir Government (PLD 1990 S.C. (AJ&K) 23). 9. We have given our serious thought to the proposition expounded by Mr. Abdul Ghafoor Qureshi that the Chairman/Mayor is a part of the Municipal Corporation and we also considered the fact that Municipal Corporation Mirpur through its mayor was impleaded as party. However, in the ultimate analysis we do not think that impleading of the Municipal Corporation meets the requirement of law. The position in Mahboob Hussain's case was almost the same. The Allotment Committee, which had passed the impugned order of allotment, was a part of the Municipal Corporation which was duly impleaded as respondent but this Court held that the writ petition was' not properly constituted. Section 44 of Azad Jammu and Kashmir Interim Constitution Act lays down that a writ can be filed against a "person" performing functions in connection with the affairs of the State . Municipal Corporation is undoubtedly such a person and its Chairman is also a part of it when an act performed by the Corporation is being examined. However, if he performs a function or exercises a power ' which is exclusively vested in him independently of the Corporation then be is independently a person within the meaning of Section 44 referred to above. In the former situation the Chairman acts ob and in accordance with the wishes of the Corporation but in the latter case members of the Corporation, even collectively, cannot influence bis decision or share his ^, power and he cannot be construed to be part of the Corporation. »» 10. Regulation 16 provides that the Chairman may regularise encroachments. This provision shows that the Allotment Committee and the Municipal Corporation have nothing to do with the allotment and regularization of encroachments for which power is specifically given to the Chairman of the Corporation. 11. So far as Sardar Muhammad Ibrahim Khan's case is concerned ( ,.. it proceeded on peculiar. Some of the actions were taken by the Azad Government of the State of Jammu and Kashmir while the Azad Jammu and Kashmir Council had passed the main order. After a long discussion in paragraph 102 it was held as follows:-
PLJ 1997 SC (AJK) 163 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 163 [Appellate Jurisdiction] Present: sardar said muhammad khan, C.J. KHANIZAMAN and another-Appellants versus CUSTODIAN OF EVACUEE PROPERTY AJK GOVT. and another-Respondents Civil Appeal No. 28 of 1996, decided on 13.9.97. (On appeal from the order of the High Court dated 7.4.1996 in Writ Petition No. 69 of 1992). (i) Review-- Review-Petition for-Time-barred petition-Question of~Petitioner not party before A.R.C. in allotment proceedings-Custodian condoned delay- Order of condonation, not to be interfered with in exercise of writ jurisdiction. [P. 166] A PLD 1992 SC (AJK) 49 rel. (ii) Family- Family-Meaning of~Meaning of word family are to be assigned in view of provisions of relevant statute after ascertaining the intention of legislature-Mere fact that a person has married and has children itself is not sufficient to held that he constitutes a separate family. [P. 166] B AIR 1971 Delhi 151, AIR 1957 Madras 583, PLD 1963 Dacca 343, AIR 1947 All. 137 and AIR 1958 Patna 232 re/ 1 and rel. (Hi) Court- Court-Duty of-Justice-Administration of-A Court of law is to administer law according to law-It cannot be said that interest of justice would be served if order is passed in violation of law. [P. 72] C Sardar Rafiq Muhammad Khan, Advocate for Appellants. Syed Nazir Hussain Shah Kazmi, Advocate for Respondent Date of hearing: 8.1.1997. judgment This appeal has been directed against the judgment of the High Court dated 7.4.1996, whereby the writ petition filed by the appellants, herein, was dismissed. 2. Previously, this appeal was heard by the Bench consisting of Mr. Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi but a difference of opinion has arisen between them and, thus, this appeal has been placed before me for hearing and disposal as envisaged by the relevant provisions contained in the Azad Jammu and Kashmir Interim Constitution Act, 1974. 3. The brief factors of the case are that the evacuee land measuring 22 kanals 6 marks, situated in village Phagal Bandi, Muzaffarabad, was allotted to the appellants as "local destitutes". Previous to that, the land in dispute was allotted to one Muhammad Sarwar son of Qamar Ali by the Rehabilitation Commissioner on 12.12.1968. Hidayatullah, the father of the present appellants, challenged the allotment made in favour of Muhammad Sarwar by way of revision petition before the Custodian who, vide his judgment dated 1.4.1972, set aside his allotment and remanded the case to A.R.C. with the direction that he should made a thorough probe about the entitlement of contesting parties and one Muhammad Hussain who was also a claimant, to the allotment of the knd in question Consequently, the A.R.C. issued a notice to said Muhammad Hussain but he did not turn up and, thus, after recording the statements of the appellants he made allotment in their favour. It may be stated here that when the Custodian remanded the case for inquiry vide his judgment dated 1.4.1972, the appellants were not party to the proceedings before him. From the perusal of the record it transpires that after remand of the case by the Custodian, Hidayatullah, the father of the appellants, made an application before the A.K.C. that as he was in the possession of the land in dispute, the same may be allotted to him as an "old tenant". On this application, a report was sent for from the "Patwari Halqa" who reported that the allotment of Muhammad Sarwar, the previous allottee, had been cancelled by the Custodian and that Hidayatullah, applicant, was entitled to the allotment as he was in possession of the same; however, the Patwari also mentioned in his report that Hidayatullah also owned some immovable property in the village. Subsequently, Hidayatullah, the father of the appellant, made another application before the A.R.C. that as on the spot the land was cultivated by his sons, the appellants, it may be allotted to them. Consequently, the A.R.C. of the time, vide his order dated 5.1.1982, observed that although in the life time of their father, the appellants, herein, were not entitled to the allotment yet he allotted.,the land to the appellants on the grounds that they were in possession of the land and being a barren knd, it had no utility for any other claimant Sultan Mahmood, respondent, challenged the allotment of the appellants by filing a review petition before the Custodian alleging that he being a refugee was entitled to the allotment of the land in question and that the appellant's father owned more than 72 kanals of land and, thus, they were not entitled to the allotment of ahy evacuee land as destitutes. The learned Custodian, vide his judgment dated 27.6.1992, accepted the review petition filed by Sultan Mahmood observing that the order of the allotment of the appellants was violative of kw because the appellants did not satisfy the conditions precedent for the allotment as contained in the Azad Jammu and Kashmir Rehabilitation (Amendment) Act, 1974 (hereinafter shall be called the amending Act); the Custodian observed that the appellants were not members of a separate "family" because their father was alive and owned more than 72 kanals of the land. Thus the learned Custodian cancelled the allotment of the appellants as well as their certificate of proprietary rights. He directed that the land in question might be allotted to any other deserving person. The appellants filed a writ petition in the High Court challenging the order of the Custodian but the same was dismissed by the High Court It is against the judgment of the High Court that the present appeal has been preferred. 4. I have heard the arguments and gone through the file. Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the appellants, has rgued that the Custodian has committed an error in holding that the appellants were included in the family of their father and were not entitled to the allotment merely because their father owned more than 72 kanals of knd. He has further argued that the order of allotment in favour of the appellants could not be disturbed because it was made after thorough inquiry by the A.R.C. in pursuance of the order of the Custodian. The learned counsel has further submitted that the appellants not only got their statements recorded before the A.R.C. to the effect that they were members of a separate family and were not included in the family of their father but they also swore an affidavit to the effect that they had no other source of adequate income, as envisaged in sub-clause (d) of section 2 of the amending Act. The learned counsel has further submitted that there was no rebuttal of the aforesaid facts nd, thus, the allotment order in favour of the appellants and the proprietary rights order in their favour did not suffer from any legal infirmity. The learned ounsel has also argued that the review petition filed by Sultan Mahmood was hopelessly time-barred and should have been dismissed on this sole ground. 5. In'reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that in view of the amending Act, it cannot be said that the appellants, whose father was alive and owned more than 72 kanals of land, could be regarded as a "destitute" within the meaning of the relevant law or they constituted a separate family form the family of their father and, thus, were entitled to allotment as destitutes. The learned counsel has also controverted the arguments of the learned counsel for the appellants that the review petition filed by Sultan Mahmood entailed dismissal as being time-barred. He has submitted that Sultan Mahmood was not a party efore the A.R.C. in allotment proceedings and, thus, the Custodian rightly condoned the delay; and the condonation of delay cannot be disturbed in the writ jurisdiction. 6. I have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to whether, the review petition iled by the respondent, Sultan Mahmood, entailed dismissal because it was time-barred. It may be stated here that this point was also aised before the High Court in the writ petition but the same was repelled on the ground that the delay was condoned by the Custodian and his findings cannot be disturbed in exercise of the writ jurisdiction in the circumstances of the case. The learned counsel for the respondents has also referred to a case of this Court reported as Bashir Ahmad Khan v. Custodian J of Evacuee Property, Muzaffarabad (PLD 1992 SC (AJ&K) 49), wherein it has been held that where the delay in filing an appeal, revision or review etc. ! has been condoned by the Custodian, such condonation order is not normally J interfered with in exercise of writ jurisdiction. In the aforesaid authority, the concerned aggrieved person was also not party to the proceedings whereinthe allotment was made, as in the instant case. The perusal of the judgment j of the Custodian reveals that he has condoned the delay after giving due consideration to the ircumstances of the case and, thus, I see no reason.to ""-;-'
differ with him. Therefore, "the contention of the learned counsel for the appellant that review petition entailed dismissal as being time-barred is repelled. 7. The next question which needs resolution is as to whether the appellants, whose father, Hidayatullah, was alive, were included in his family or they ere a separate family. It may be stated here that the word "family" has not been defined in the relevant law. It is laid down in the amending Act that a amily which owns 30 kanals or more land, cannot be regarded as "destitute" so as to claim the allotment of an evacuee property. The perusal of the case aw shows that word "family" is defined by judicial authorities in the context of the relevant statute in which the same was used. Thus no hard and fast ules can be laid down as to what would constitute & "family". The meaning of the word "family" are to be assigned in view of the provisions of the elevant statute after ascertaining the intention of the Legislature. The mere fact that a person has married and has children itself is not sufficient to hold hat he constitutes a separate "family" within the meanings of the amending Act. The question as to whether one is included in the family of his father or or that matter in the family of some other person would depend on the circumstances of each case and must be interpreted with reference to he statute n which it has been used. It would be expedient here to refer the following authorities on the point:- In case reported as Gouind Dass v. Kuldip Singh (AIR 1971 Delhi 151), it has been observed as under:- "7. The word "family" has not been defined in the Act and we feel advisedly so. The concept of what ^^ constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious ustoms of the community to which such persons may belong. In the case of Ram Pershad Singh v. Mukand Lai, AIR 1952 Punj. 189, J.L. Kapur, J. eld that in a given set up of social structure even nephews could be regarded as members of a landlord's family within the meaning of Sec. 9(1)(E) of he Delhi and Aimer Merwara Rent Control Act, 1947 9 ............................ We are in respectful agreement with the observations in all the decisions and we have noticed above and would hold that in a given set of circumstances and according to the particular structure of a society a family may be constituted of persons who may not in an another given set of circumstances be regarded as being members of one family." In case reported as Asha Bibi v. Nabissa Sahib (AIR 1957 Madras 583), it has been observed as under:- "17 ........................................................................ The term "family" will be construed in the sense of "family" as used in S. 3(A) of the Mussalman Wakf Validating Act, 1913, which was intended to be used in a very large and extensive sense. The policy of that Act was to validate the creation of a wakfin perpetuity in favour of persons who happened to be the members of a family according to the popular acceptance of that term. Technically the word "family" may be taken to mean the collective body of persons who live in one house and under one head or manager; and includes within its fold a household consisting of parents, children and servants and as the case may be, lodgers or boarders. Under the Mussalman Wakf Validating Act, it is intended to be used in a broad and popular sense. Popularly however the term indicates persons descended from one common progenitor and having a common lineage. It will take in both agnates and cognates and relations by blood or marriage. The nephews of the settlor are in this sense the members of his family. Similarly daughters-in-law, the son of a half-brother or the son of a half-sister." In Syed Abdul Fazal v. S. Sayeeda Khatun (PLD 1963 Dacca 343), it was observed as under:- 14. It may be contended that the persons who may not be the children or descendants of the wakif might be members of the family. The dictionary meaning of the word 'family' is "the household, or all those who live in one house under one head including parents, children; servants; the descendants of a common progenitor". Hence we find that the word family' is more comprehensive than a genus. The word 'family' also means all descendants of common ancestor, house and lineage. So in a family there might be persons not related to the wakif, persons who are distant kindred who cannot be called descendants. So if the provision is made for the maintenance of the family which includes persons other than the children and descendants of the wakif, it will be valid, but in the present case the heirs of the descendants of the wakif have been made beneficiaries who may be not at all the descendants of the wakif or members of his family." In case reported as Muhammad Azam Khan vs. Hamid Shah (AIR 1947 All. 137), it has been observed as nder:- "6. If, however, it is found that the document in dispute constituted a waqf ala-ul-aulad, it will have to be considered whether the provisions of Act 6 (VI) of 1913 which validated such a waqf had been complied with. It has been argued that by the said Act it was made lawful for a person professing the Mussalman faith to create a waqf which in all other respects was in accordance with the provisions of the Mussalman Law for the maintenance and support wholly or partially of his family, children or descendants; and that no waqf could be created in favour of the nephews as they did not come within the descriptions of the family, children or descendants. The matter is however, concluded by a Bench decision of this Court in 52 All. 368, where it was held that the word family' in S. 3(A), Mussalman Waqf Validating Act was not restricted to only those persons residing in the house of the settlor for whose maintenance he was mainly responsible, but that the word was intended to be used in its broad popular sense; persons descended from one common progenitor and having a common lineage, e.g., nephews of the settlor and their descendants, were included in the term, irrespective of whether they lived in the settlor's house, or whether the settlor was responsible for their maintenance. I am in full agreement with the view that is expressed and do not find any force in this argument" (underling is mine) In case reported as Aley Hassan v. Toorab Hussain (AIR 1958 Patna 232), it was observed as under:- "(3) The expression family' in S. 4 of the Partition Act must be construed in a wide sense and ought not to be restricted to persons tracing their descent from a common ancestor. There is nothing in the language or the context of S. 4 of the Partition Act to suggest that the term family' was intended to be used in a very narrow and restricted sense. The principle underlying the section appears to be to maintain the integrity of a body of people knit together by the tie of common residence. The expression family' has been defined in the Oxford Dictionary, Volume 1,1936 Edition, in these terms. "The body of persons who live in one house or under one head including parents, children, servants etc The group consisting of parents and their children whether living together or not; in wider sense all those who are nearly connected by blood or affinity." 8. It is evident from the authorities referred to above that while assigning the meaning and scope to word family", the provisions of the relevant statutes and policy intended by the Legislature to be followed is to be kept in mind. After the amendment in the Rehabilitation Act, certain categories of persons other than refugees are entitled to the allotments of evacuee property subject to the conditions laid down in the law; a 'destitute' is also entitled to seek the allotment of an evacuee land. The definition of 'destitute' as given in clause (d) of section 2 of the amending Act is as unden- "(d) "Destitutes" means the persons who being cultivators either own no land at all or have less than 30 kanals per family and have no other adequate source of income, but would not include occupancy tenants." 10. The learned counsel for the appellants has also submitted that the review petition should have been dismissed because the order of A.R.C. could not be vacated by the Custodian in exercise of review jurisdiction; it could be set at naught only if justice so demanded. It may be observed here that a Court of law has to administer justice according to law. If an order has been passed in violation of law, it cannot be said that the interest of justice would be served, if such order is not disturbed. As the appellants have not proved that they were 'destitutes' within the meaning of the relevant law, they cannot be heard saying that the cause of justice would be better served if the orders made in their favour remain intact. It may also be stated here that in 'Khasra Girdawari' Hidayatullah, the father of the appellants, who has been previously litigating with Muhammad Sarwar, the previous allottee, is shown in the possession of the land in dispute. It was only in the year 'Kharif, 1981 that the appellants were shown in possession of the land. It appears that the entry in the revenue record was manoeuvred for the first time so as to facilitate the allotment in favour of the appellants. Even otherwise, the mere fact that a person is in unlawful possession of an evacuee property, does not make him a deserving person for the allotment in derogation to the conditions laid down in law. The learned counsel for the appellants did not controvert the proposition that while exercising the review powers under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, the Custodian has wide powers to set aside an order which is violative of law; whether the case involves merely a question of law, a question of facts or mixed question of law and fact. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. CAq. By.) Appeal dismissed.
PLJ 1997 SC (AJK) 172 PLJ 1997 SC (AJK) 172 [Appellate Jurisdiction] Present: basharat ahmad shaikh and muhammad yunus surakhavi, JJ. INAYAT ULLAH-Appellant versus STATE and another-Respondent Crl. Appeal No. 38 of 1996 accepted on 1.3.1997. (On appeal from the judgment of Shariat Court dated 16.12.1996 in Criminal Appeal No. 35 of 1995). Bail- S. 497 proviso (1) Cr.P.C.--Bail--Grant of--Prayer for--Bail cancelled by Shariat CourtChallenge to-Medical (Angina) groundA person who is sick or infirm can be granted ail under 1st proviso of section 497 Cr.P.C.-- Purpose nd intent of proviso appears to be that it equally applies to a person who is named as a principal cused-Appellant is of age of 76 years as alleged by him and not denied from otherside-Advance age and heart isease do bring of case of appellant within first of proviso of S. 497 Cr.P.C.~Principles governing grant of bail and cancellation of bail substantially stand on a different footing-Once a bail s granted by a court of omp ent jurisdiction it must be shown satisfactorily that discretion exercised by it was either perverse or violative of fundamental principles governing bail matters or that which could not have been exercised at all ircumstances of case-Nothing has been shown that discretion xercised by trial court on the basis of heart ailment of appellant was either arbitrary or capricious-Supreme ourt would normally be slow to disturb udicial exercise of discretion vested in trial court-Bail granted. [P. 179] A&B Mr. Sher Zaman Chaudhry, Advocate for Appellant. Khawqja Atta Ullah, Addl. Advocate General for State. Mr. Abdul Majid Mallick, Advocate for Complainant. Date of hearing: 1.3.1997. judgment Muhammad Yunus Surakhvi, J.-This appeal has been preferred against an order recorded by the Shariat Court of Azad Jammu and Kashmir on 16.12.1996, whereby the concession of bail allowed to the appellant herein was recalled. 2. The precise facts, forming the back-ground of the present appeal, are that on a report lodged by Mir Zaman, complainant, at Police Station Khui Ratta, a case under section 5 of the Islamic Penal Laws Enforcement Act 1974 read with sections 341, 109/34 A.P.C. was registered against the appellant and another. The prosecution case as stated in the F.I.R. is that on June 22, 1994, at about 9 a.m. the brother of the complainant, Muhammad Rashid, was on the way to the house of his relatives and when he reached the village known as Okkal, he found Inayat Ullah, appellant and Muhammad Mushtaq, accused, setting in the way. When the brother of complainant reached near them, the accused raised lalkara and opened the attack. Inayat Ullah, accused, was armed with 12 bore gun who fired a shot which hit uhammad Rashid. As a result of injuries thus inflicted Muhammad Rashid died instantaneously. The occurrence, according to the prosecution, was witnessed by Abdul Khaliq and Liaqat All, who were accompanying the deceased. 3. After the conclusion of the investigation, the police forwarded the accused-appellant alongwith other accused by presenting a challan in the Court of District Criminal Court, Kotii, for facing their trial in the aforesaidoffences. The appellant moved an application for his release on bail before the trial Court on the ground of his being a heart patient The trial Court allowed the concession of bail to the appellant but on appeal filed by the complainant, the bail allowed to the appellant was cancelled by the Shariat Court vide the impugned order, which is the subject of present appeal. 4. A learned Judge in the Shariat Court cancelled the bail granted to the appellant primarily on the following grounds:- "(i) that no doubt the bail could be allowed to an accused person on medical ground but the same could be allowed only after the satisfaction of the Court that proper treatment could not be provided to him in the jail and that his hospitalization was necessary; (ii) that the trial Court while extending the concession of bail to the appellant imposed a condition upon the appellant to produce a certificate within two months .after his examination from the A.F.I.C. Rawalpindi to the effect that he was a patient of heart disease. This means that the trial Court was itself not satisfied, while allowing the bail, the appellant was suffering from heart disease. It was enjoined upon the trial Court to ascertain and ensure that the appellant was suffering from such an ailment, the treatment of which was not possible in the jail, but the trial Court without any such satisfaction, allowed the concession of bail to the appellant; and (iii) that at the time of extending concession of bail to the appellant on Oct. 22, 1995, f by the trial Court a condition was stipulated that the appellant, after getting himself examined from A.F.I.C. Rawalpinid would submit a certificate within a period of two months to the effect that in fact he was suffering from heart ailment and his further detention in jail would endanger his life but he failed to do so, thus the condition imposed was violated." 5. Mr. Sher Zaman Chaudhry, the learned counsel appearing on behalf of appellant, vehemently contended that it was satisfactorily established from the medical certificate initially issued by Dr. asir-ud-Din, District Headquarter Hospital, Kotii, and subsequently by a certificate of Medical Board constituted for the medical examination of the accusedappellant that the appellant was suffering from a serious heart ailment which needed his hospitalization. The learned counsel submitted that all the grounds made basis for cancellation of bail of appellant were either unfounded or based on assumptions. The leaned counsel strenuously contended that the learned trial Court in para No. 2, page 3 of its judgment had stated that the appellant was suffering from heart ailment and his case was covered by proviso (i) of section 497 Cr.P.C. It was further observed by the trial court that on the basis of prescription attached with the file of the trial Court pertaining to bail matter and the certificate issued by Dr. Nasirur-Din and report submitted by Medical Board it appeared that the appellant was suffering from heart trouble. Similarly it was observed by the Court in the 1st portion of para 1 of its judgment at page 4 that the appellant was suffering from a serious disease which required proper treatment and investigation on the basis of which he was entitled to be released on bail. Regarding the condition imposed by the trial Court that the appellant should get himself examined within a period of two months from the date of his release on bail as to whether he was suffering from heart ailment or not, according to the learned counsel for the appellant, is an observation which was made as a matter of abundant caution so that the accused-appellant may further satisfy the Court by producing a certificate from A.F.I.C. Rawalpindi. On violation of this condition it was also observed by the Court that the prosecution could move for the cancellation of his bail. This factor, by itself, according to the learned counsel, is not suggestive of the fact that the Court was not satisfied with regard to the illness of the appellant as alleged by him. The learned counsel also pressed into service the submission that after release of the accused-appellant on bail on 22.10.1995, the application for cancellation of his bail was moved in the Shariat Court on 15.11.1995, just within a period of 22 to 23 days. Thus the appellant was not in a position to get himself hospitalized and medically ex'amined himself from A.F.I.C. as he had to attend the Court on each and every date fixed by it, submitted the learned counsel. According to the learned counsel the observation made by the Shariat Court that the appellant violated the condition imposed by the trial Court is of no substance and having no legal foundation. The learned counsel also argued that the trial Court in its best wisdom exercised the discretion in favour of releasing the accused on bail but the same was upset by the Shariat Court in absence of its perversity or in flagrant violation of settled principles of law governing the subject of bail matters. 6. In reply Mr. Abdul Majid Mallick, the learned counsel for complainant, fully defended the impugned judgment and submitted that the case of appellant, in no way, was covered by, proviso (i) of section 497 Cr.P.C. According to the learned counsel no circumstances were brought on record to the effect that the treatment of appellant was not possible in the jail hospital. The learned counsel for complainant seriously disputed the contents of report submitted by the Medical Board on the ground that the same was issued without any proper investigation, or thorough check up of the appellant as it merely narrates the opinion formed by Dr. Nasir-ud-Din. It was further contended by the learned counsel that no material was placed on record to suggest that the condition of health of the appellant was deteriorated to such an extent that it necessitated his hospitalization for the proper look after of his health and that such facilities were not available in jail. The learned counsel further contended that the prosecution case was fully supported by two eye-witnesses whose evidence had already been recorded. The appellant, being the principal accused, who caused the fatal injury, was not entitled to be released on bail on medical ground. 7. Kh. Atta Ullah, the learned Additional Advocate-General, also supported the contentions raised by the learned counsel for the complainant. 8. Lengthy arguments were addressed at Bar by both the learned counsel for the parties. We have perused the relevant record and given our due onsideration to the arguments advanced by the learned counsel for the parties. It may be stated that the accused-appellant was released on bail by the District Criminal Court, Kotii, on the ground that he was suffering from heart ailment. The trial Court was persuaded to form the above opinion on the basis of medical certificate issued by Dr. Nasir-ud-Din, District Headquarter Hospital, Kotii, and the report submitted by a Medical Board, comprising of three doctors to the exclusion of Dr. Nasir-ud-Din as suggested by the prosecution. This fact is borne out form interim order of the trial Court dated 09.08.1995. According to the medical certificate issue by Dr. Nasir-ud-Din, District Headquarter Hospital , Kotii, it is stated that the appellant is patient of Angina, Mod Hypertension uncontrollable needs hospitalization for investigation and full evaluation of the heart disease. The certificate also states the treatment given to the appellant which is stated below:- (1) Tab. Isodril 1 + 1 + » (2) Tab. Capoten 25 mg 1 + 1 (3) Tab. Disprin one half every day and (4) Tab. Moduretic one every day. Similarly the certificate issued by Medical Board recites:- Mr. Inayat Ullah s/o Khan Wali age about 76 years was presented before the Medical Board on 05 Sep. 95 at 10.30 a.m. on examination found:- Tulse90/m B.P. 200/100 mm/Hg. JVP - increased Anaemia +ve. Oedema +ve. Chest - SI + S2 + 0 S Vesicular Abdomen - Fine basal creps, liver just palpable. CNS-NAD DIAGNOSIS? Hypertensive heart failure + Unstable Angina + Anaemia Board agrees with the opinion of the medical specialist and the patient needs further investigations and evaluation of his heart dhease. He must be immediately referred to AFIC Rawalpindi." The above record in the nature of medical certificates and the prescription prescribed to the appellant suggests that appellant is a patient of Angina which obviously is a heart ailment The record also suggests that the Medical Board advised that the patient should be immediately referred to A.F.I.C. Rawalpindi. The initial certificate issued by Dr. Nasir-ud-Din also suggests that patient needs hospitalization for investigation .and full evaluation of the heart disease. As regards the observation made by the Shariat Court that the trial Court itself was not satisfied that the patient was suffering from heart ailment and thus imposed a condition that he would be himself medically examined from A.F.I.C. Rawalpindi within a period of two months is in our opinion a condition which was imposed as a matter of abundant caution. The above condition in no way suggests that the trial Court was not satisfied with regard to the heart ailment of the appellant. It was repeated more than once by the learned trial Court that it had reached the conclusion after perusal of the record that the patient was suffering from heart disease. We also agree with the submission made by the learned counsel for the appellant that after his release on bail the appellant was not provided with a sufficient period of time as stipulated in the condition "imposed by the trial Court to get himself medically checked-up from A.F.I.C. as the application for cancellation of his bail was moved within a span of 22 to 23 days. The appellant was left with no option but to attend the Court regularly on each date during the pendency of application for cancellation of bail. 9. In an unreported case of this Court titled 'Muhammad Hussain vs. The State.and another' decided on 04.06.1990, the precise facts were that Muhammad Hussain who was principal accused in a murder case was released on bail by District Criminal Court, Mirpur, but the same was cancelled by Shariat Court on the ground that plea of ailment as alleged by Muhammad Hussain, accused, was not borne out from the record. It was indeed a case of cross versions but ignoring the theory of cross versions the accused was allowed bail by this Court. The observation made by this Court may usefully be reproduced below:- "Without adverting to the question as to whether principle of bail matter followed in cross cases is attracted in present case or not, we are of the view that the Shariat Court has committed an error in holding that there is no prima facie proof on the record that the appellant is suffering from heart ailment." The Court then went on referring to various medical certificates placed on record of trial Court by the accused and finally observed as under:- "In view of the aforesaid record, we are of the view that there is sufficient proof on the record that the accused-appellant is suffering from Ischemic heart disease which, of course, is serious disease and requires adequate treatment and rest. It need not be emphasised that if it is shown satisfactorily that an accused person is suffering from serious ailment which is likely to aggravate if the patient is detained in custody, he is given the concession of bail. If at all any authority is necessary a reference may be made to Sardar Abdul Hamid vs. Momin Khan (N.L.R. 1984 Criminal 462) wherein bail was granted to the accused person on the ground that according to the medical certificate he was suffering from heart disease." It may be emphasised that in the above cited case none of the medical certificates was to the effect that the patient needed immediate hospitalization unlike the case in hand before us. In a reported case Banaras vs. State (1978 SCMR 191 = NLR 1978 (SC) 701), wherein Banaras was alleged to have stabbed deceased Fazal Din, was allowed bail on the ground that he was suffering from idiopathic epilepsy. The contention of the learned Advocate-General that Banaras was being treated in the jail hospital properly and was therefore not entitled to bail, was rejected with the observation that "we are of the opinion that the appellant is suffering from a serious disease and he cannot have the treatment of his choice in the jail hospital besides fits occurs in the disease from which the appellant is suffering and it will be difficult for jail authorities to look after him". In the case of "Muhammad Aslam Goraya vs. The State" (1977 P.Cr.L.J. 394) after rejecting the application for bail on merits on the certificate of a heart .specialist that Muhammad Aslam Goraya was suffering form serious heart trouble and that the disease of that nature strikes without much warning and the effective treatment was not possible in jail, he was allowed bail under the afore-mentioned provision of law. In a case reported as Abdul Aziz vs. State (PLD 1966 (SC). 658), wherein Abdul Aziz who complained of palpitation and sinking of the heart and was getting treatment for a month and a half, was allowed bail by the learned Additional Sessions Judge and that was cancelled by the High Court. The learned Supreme Court however observed that "Where there is a reasonable ground for believing that an accused person is guilty of offence punishable with death or transportation for life bail may yet be granted if he be sick or infirm". Thus the order of the learned Additional Sessions Judge granting bail was restored. In a case of "Wahid-ud-Din vs. Allah Dittah" (1968 S.C.M.R. 82) one Saleem Akhtar had applied for bail on the ground that he had five attacks of Angina prectoris and he was not receiving proper treatment at the jail. The application was rejected because the plea was not supported by any legal medical certificate and it was observed that he could have easily filed a certificate of doctor attached to the jail hospital. However it was observed that "the petitioner if so advised may move a fresh petition for bail on proper materials". In other words, the kind of illness was taken as a ground for grant of bail on a capital charge. 10. From the plethora of the authorities it would appear that a person who is sick or infirm can be granted bail under 1st Proviso of section 497 r.P.C. The purpose and intent of proviso appears to be that it equally applies to a person who is named as a principal accused. The appellant is of the age of 76 years as alleged by jim and not denied from the other side. Advance age and the heart disease do bring the case of the appellant within the first proviso under reference. 11. In the instant case another distinct feature is that the accusedappellant before us was initially released on bail by the trial Court but his bail was cancelled by the Shariat Court . The principles governing the grant of bail and the cancellation of bail substantially stand on a different footing. Once a bail is granted by a Court of competent jurisdiction it must be shown atisfactorily that the discretion exercised by it was either perverse or iolative of the ndamental principles governing the bail matters or that which could not have been exercised at all in the circumstances of the case. Nothing has been shown to us that the discretion exercised by the trialCourt on the basis of heart ailment of the accused-appellant was either arbitrary or capricious. Thus this Court would normally be slow to disturb the judicial exercise of discretion vested in the trial Court. Even on the aforesaid premises the Shariat Court has erred in cancelling the bail of the appellant on superficial grounds. 12.'As regards the case of "Sardar Muhammad Maroofand others vs. The State" decided by the Shariat Court Azad Jammu and Kashmir on 15.07.1996 no doubt there was a statement of Dr. Waqar, Heart Specialist, to the effect that the appellants were confirmed cases of heart disease but all the same it was not opined by him that they could be treated properly in jail or not thus the Shariat Court directed that the proper investigation of the accused-petitioners be carried in some advanced Cardiology Centre like A.F.I.C. within a certain period after which the bail matter of the accusedpetitioners could be resolved. The aforesaid order was challenged before this Court and it was argued before us that the order of the Shariat Court was not implemented even at the time of appeal before the Supreme Court. The Supreme Court thus got the order of the Shariat Court implemented and directed the prosecution to get the -accused-appellants checked up from A.F.I.C. and remanded the case to Shariat Court so that it may decide the matter of bail which was already pending before it. In this view of the matter the case relied upon by the Shariat Court and the learned counsel for the respondents is distinguishable as it was neither argued nor we applied our mind on the nature of the disease of the appellants in that case. In the light of what has been stated above, we accept the appeal filed by the accused-appellant, set aside the order of the Shariat Court Thus the _ order passed by the District Criminal Court Kotli releasing the accusedappellant on bail stands restored. The appellant shall be released from the custody forthwith on the bail bonds and the personal bond already furnished by him in accordance with the order of the District Criminal Court Kotli (AAJS) Bail granted
PLJ 1997 SC (AJK) 180 PLJ 1997 SC (AJK) 180 [Appellate Jurisdiction] Present: SARDAR SATO MUHAMMAD KHAN C.J. AND muhammad yunus surakhvi,j. REHANA MAHMOOD and 3 others-Appellants versus AZAD GOVERNMENT and 5 others-Respondents Civil Appeal Nos. 53, 54 & 55 of 1996, dismissed on 1.3.1997. [On appeal from the judgment of the High Court dated 18.5.1996 in Writ Petition No. 53 of 1994], (i) AJK Interim Constitution Act, 1974- -S. 44--Writ jurisdiction-Issurnace of-Whether writ lies for retention of ill-gotten allotment of plots-Question of~Allotments were obtained by appellants through unlawful means by an authority having no jurisdiction so remedy under constitutional provision could not be allowed to be availed of by a person who wants perpetuation of injustice or retention of an ill-gotten gain-Held: High Court committed no illegality in dismissing writ petitions. [Pp. 185 & 186] A & B PLD 1992 SC (AJK) 49 and PLD 1973 SC 236 rel. (ii) Maxim- -Audi altcrm partem (No one should be condemned unheard)Contention that at time of cancellation of allotments from their names appellants ere not heard thus principle of audi alterm partem which is of niversal pplication was violated~It is well settled that an order without ; jurisdiction (as mentioned above) does not create any vested right- rders of allotment in favour of appellants being without urisdiction are ot capable of conferring any right on appellants to entitle them to claim hearing. [P. 186] C PLJ 198,7 SC (AJK) 57. (iil) Writ Jurisdiction- Writ jurisdiction-issurance of-Grounds for-It is a settled principle of law that a discretionary relief under constitutional jurisdiction of High Court can only e claimed by a person if his claim is based on bona fides and he comes to court with clean hands and for enforcement of a legal right obtained by him in a awful manner. [P. 186] D Mr. Muhammad Riaz Alam, Advocate for Appellants in C.A. No. 53 and 54 Chaudhari Muhammad Yunus Am", Advocate for Appellant in C.A. No. 56. Mr. Liaquat Mi Khan, Advocate M/s Kh. Atta Ullah and Ch. Muhammad Mushtaq, Addl. Advocate-General for Respondents in C.A. Nos. 53, 54 & 56. M/s. Kh. Atta Ullah and Ch. Muhammad Xushtaf Add!. Advocate Generals for Azad Government. Mr. LiaqatAli Khan, Advocate for Municipal Corporation M,rpur. Date of hearing: 1.3.1997. judgment Muhammad Yunus Surakhvi, J.-The above titled three appeals, with the leave of the Court are directed against a consolidated judgment of the High Court passed on May 18,1996, whereby the writ petitions filed by the appellants herein were dismissed. All the three appeals raise identical questions of law and facts as such are being disposed of by this single judgment. 2. The precise facts, giving rise to the present appeals, are that in new Mirpur Town numerous allotments were made by the Chairman Municipal ommittee/Mayor Municipal Corporation Mirpur during the period, commencing from 5th of January 1993 to 31st of December 1993. The allotments of plots made in the name of appellants also fall within the above mentioned period. The Azad Government of the State of Jammu and Kashmir, respondent No. 1, on the basis of general complaints of illegalities and irregularities committed in the allotments constituted a Commission of inquiry for making a probe nto the illegal illegalities which after enquiry arrived at a conclusion that the allotments during the said period wt "t made illegally as such could not be sustained. The government, in consequence, cancelled the allotments made from Jan. 5,1993 to Dec. 31,1993, through a Notification No. Admn/Enquiry/H-11 (109)/l/94 issued on Feb. 20, 19S4, including the allotments of the appellants. The vires of the above notification and the cancellation of allotments were challenged through constitutional petitions filed by the appellants in the High Court which were dismissed vide the order impugned dated 18.05.1996, which is the subject matter of present appeals. 3. A learned Judge in the High Court dismissed the writ petitions filed by the appellants mainly on the following grounds:- "(i) that the allotments were invariably made by the Chairman Municipal Committee/Mayor Municipal Corporation w oj ad no jurisdictional competence to make the allotments as the same were not visualized by Azad Jammu and Kashmir Local Government Act and the rules made thereunder including Mirpur Municipal Committee Regulations for Development and Disposal of Plots/Estates, Rules 1985. It was only the Allotment Committee which was vested with the jurisdiction to make or cancel the allotments; (ii) that the appellants-petitioners did not come in the Court with clean hands and writs could not be issued in aid of injustice; and (iii) that the appellants were not entitled to claim their hearing at the time of cancellation of their allotments as the same were made without any jurisdiction and lawful authority." 4. Arguing the case on behalf of appellants M/s Muhammad Riaz Alam and Ch. Muhammad Yunus Arvi, the learned counsel have contended with vehemence that government is not vested with any power to cancel the allotments mtde in favour of appellants and general public through a Notification. According to the learned counsel the Local Government Act and the rules made thereunder including the Mirpur Municipal Committee/ orporation Regulations for Development and Disposal of Plots/Estates Rules 1985, (hereinafter to be referred as the Municipal Regulations) do not empower the government to cancel the plots en-masse. It has also been argued that the factum of allotments having been made in the name of appellants and deposit of the prices made by them has been admitted by the respondents in their written statements thus they are precluded from taking the inconsistent stand that the allotments made in the name of appellants were either void or without jurisdiction. The learned counsel have further strenuously contended that it is only the Allotment Committee which could allot, cancel or lease out the plots and not the Government. It has been further argued that the High Couil has committed a grave illegality by observing that the appellants did not come in the Court with clean hands as no such plea was aised by the respondents in their written statements. The learned counsel have also maintained that the appellants at the time of cancellation of their allotments were not provided with an opportunity of hearing and as such the principle of audi-alteram-partem was violated since a vested right had accrued to them on the basis of allotments made in their favour and by making the deposit of the prices of plots. 5. Controverting the arguments raised by the learned counsel for the appellants, it was contended by Mr. Liaqat AH Khan, the learned counsel for respondents, that the Government was fully vested with the jurisdiction to cancel the allotments made by any authority if the same were either illegal or without any jurisdiction as provided under Section 77 of the Local Government Act. The learned counsel submitted that the impugned allotments in favour of appellants were made by Chairman Municipal Committee/Mayor Municipal Corporation who was not vested with any jurisdiction what-so-ever to make the same. It was further contended by the learned counsel that the appellants challenged the legality of impugned Notification through their writ petitions in the High Court but they could not substantiate their claim as no legal or valid defect was pointed out in the said notification. The learned counsel argued that the appellants nowhere averred in their writ petitions that their allotments were either genuine or made in accordance with law or within the vires of the relevant rules as such the mere fact that the factum of allotments was admitted in the written statement would practically make no difference as far as the fate of their allotments is concerned. The learned counsel argued that as the allotments were made in the name of appellants in derogation of the relevant law and rules so they were not entitled to any relief by invoking the constitutional jurisdiction of the High Court and it committed no illegality in refusing to issue writs in their favour. 6. Kh. Attaullah and Ch. Muhammad Mushtaq, the additional Advocate Generals fully supported and endorsed the contentions raised by Mr. Liaqat Ali Khan. 7. We have given our due consideration to the arguments raised at the Bar and perused the relevant record. At the very outset it may be pointed out that main plank of attack made by the learned counsel for the appellants on the impugned judgment of the High Court is that the factum of allotment having been made in the name of appellants has been admitted by respondents in their written statements as such they are precluded from raising any objection with regard to the legality of allotments. After careful consideration of the contention raised by the learned counsel for the appellants, we have reached the conclusion that the argument having no substance in it merits no consideration. The appellants-petitioners nowhere averred in their writ petitions that the allotments made in their names were either genuine or in accordance with the relevant law and rules and were made by the competent authority, having a legal sanction behind them. It was simply averred by the appellants that plots were allotted in their names and they deposited the prices of the same. The mere fact that respondents in their written statements have admitted the relevant para of the writ petition to be correct, practically makes no difference so far as the fate of their case is concerned. It were the appellants who challenged the vires of the impugned Notification on the basis of which the allotments of certain period including those of appellants were cancelled but they failed to point out any defect or illegality in the impugned Notification. Thus the contention raised by the learned counsel for the appellants, being devoid of any legal force is hereby repelled 8. It has been resolved by the High Court that the allotments made in the name of appellants were made by Chairman Municipal Committee/Mayor Municipal Corporation alone in his capacity as such who does not figure anywhere in the relevant law and rules or regulations and is not vested with any jurisdiction to make the impugned allotments. The Chairman Municipal Committee/Mayor Municipal Corporation as provided under Section 16 of Mirpur Municipal Regulations may regularise the encroachments subject to the provision of master plan and Local Government Ordinance on any piece of government land, rejected areas, in prescribed manner provided the following conditions are satisfied:- (i) The person who has encroached upon the government land or rejected area falls in criteria under clause 9(ii) above; (ii) the encroachment does not affect the master plan/original planning; (iii) the encroachment may not affect any road, plot or areas reserved for government building, like hospitals, schools, dispensaries or any other public institution or areas reserved for disposal works sewerage of water supply lines, etc.; (iv) the encroachment which has been affected prior to 30.06.1981 and the same is sufficiently proved by the official record; and (v) that the encroachment is by no means against the approved Housing Scheme and more than one kanal. The above mentioned rule 16 is the only provision which empowers the Chairman Municipal Committee/Mayor Municipal Corporation to regularise the allotments provided the conditions mentioned in the provision are satisfied. It seems to be no case of the appellants that their allotments' were regularised by the Chairman/Mayor Municipal Corporation on the basis of encroachments having been effected by them prior to June 30, 1981, and the same stand sufficiently proved by the official record. Even this point was neither argued before the High Court nor at the time of appeafbefore us. As said earlier on the basis of inqUry report" submitted by the Inquiry Commission it was opined by the High Court that the impugned allotments were made by the Chairman Municipal Committee/Mayor Municipal Corpo ration in favour of appellants in derogation of the relevant law and rules who was not vested with any jurisdiction, to make the allotments. The learned counsel for the appellants neither raised nor argued the point withjregard to the genuineness of their allotments as such we are inclined to concur with the view expressed by the High Court that the allotments made in favour of appellants were made by an authority which was legally not competent. 9. It was argued before the High Court by the learned counsel for the respondents that the Government was vested with the power to cause an inquiry to be made into the affairs of a local council generally or into any particular matter concerning a local council and take such remedial measures as may be warranted by the findings of such inquiiy. Even a particular reference to Section 77 of the Local Government Act was made by the learned counsel for the respondents in the High Court but despite that the High Court observed as under:- Therefore after perusal of entire local government.Act and Municipal Regulations it can safely be resolved that there is no specific power vested in the government which may be exercised for the cancellation of the plots." The High Court also went on to observe that in Mirpur Development Authority Act 1974. there is a specific provision in the shape of Section 48-A of the said Act, similarly the allotment of Land Committee Act, 1964, had a specific provision for the said purpose, giving an impression that the Local Government Act of 1990 had no such provision, empowering the Government in cancelling the allotments in certain eventualities. It was contended before us by the learned counsel that Government is vested with vast powers to take such remedial measures including the cancellation of allotments as may be warranted by the findings of an inquiry. In our view Section 77 of the Local Government Act 1990 deals with such an eventuality which may usefully bereproduced below:- "The government may either suo moto, or on application made to it by any person, ca.use an inquiry to be made by such officer as may be authorised by it in this behalf into affairs of local council generally or into any particular matter concerning local council and take such remedial measures as may be warranted by findings of such inquiries." The above stated provision in our view fully empowers the Government to take such remedial measures including cancellation of allotments which is certainly one of the remedial ir easures as it may deem fit and proper. 10. Another contention of the learned counsel for the appellants that the High Court should bave refrained from making the observation on its own accord that the appellants-petitioners did not come in the Court with clean hands as -the same was not raised from opposite side also merits no consideration. The above observation was made in context with the relief claimed by the appellants v;ith particular reference to the maintainability of their constitutional petitions. It is a settled principle of law that a discretionary relief under the constitutional jurisdiction of the High Court can only be claimed by a person if his claim is based on bonafides and he comes to the Court with clean hands and for enforcement of a legal right obtained by him in a lawful manner. The allotments were obtained by the appellants through unlawful means by an authority having no jurisdiction so the remedy under the constitutional provision could not be allowed to be availed of by a person who wants the perpetuation of injustice or retention of an ill-gotten gain. In a reported case titled 'Bashir Ahmad Khan vs. Custodian of Evacuee Property and another' (PLD ^992" SC (AJK) 49) it was observed this Court as under : "Section 44. Constitutional jurisdiction could not be exercised in aid of perpetuation of injustice or to protect iHgotten gain by a person-party seeking relief by invoking constitutional jurisdiction, must show that it had come with clean hands and had a tangible right, if not a purely legal right, which had been violated." The aforestated view also finds support from an eliminating judgment of Supreme Court of Pakistan in the reported case titled 'Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others' (PLD 1973 SC 236). In our considered view the allotments having been made illegally and without any lawful authority in favour of appellants created no tangible right in their favour seeking the constitutional remedy and thus the High Court committed no illegality in making the above observation. 11. In the last limb of his contentions the learned counsel for the appellants pressed into service the submission that at the time of cancellation of allotments from their names the appellants were not heard thus the principle ofaudi alterm partem which is of universal application was violated. It goes without saying that the aforesaid maxim 'audi alterm partem' has gained a great significance in our judicial system but earning a right of earing a person must show that he was deprived of some right vested in him. It is well seffied that an order without jurisdiction (as is before us) does not reate any vested right The orders of allotments in favour of appellants being without jurisdiction are not capable of conferring any right on the appellants to ntitle them to claim hearing. Reliance is placed on a reported case of this Court titled 'Muhammad Rashid vs. Azad Jammu and Kashmir Government nd 20 others' (PLJ 1987 SC (AJK) 57). 12. In the light of what has been stated above, finding no force in these appeals, the same are dismissed without any order as to the costs. (AAJS) Appeals dismissed
PLJ 1997 SC (AJK) 186 PLJ 1997 SC (AJK) 186 [Appellate Jurisdiction] Present: sardar said muhammad khan, C.J. basharat ahmed sheikh, J. RAJA MUHAMMAD ASGHAR KHAN--Appellant versus CH. MUHAMMAD YOUSAF and 5 others-Respondents Civil Appeal No. 53 of 1996, decided on 21.1.1997. [On appeal from the judgment of the High Court dated 29.8.1996 in Writ Petition No. 122 of 1995]. Writ Jurisdiction- Direction by High Court as to post of General Manager in a corporation- Challenge to--Seniority-Question of-Appellant and Res No. 1 were serving as Managers in AJK Logging and Saw Mill Corporation-- inister/Chairman entering charge of General Manager operations/ Sales to Appellant on temporary basis and in his own pay and scale-- Another person was similarly entrusted charge of Manager forests/operations in post, previously held by, AppellantRes. No. 1 challenging order, mentioned on the basis of being senior to appellant- Post of G.M. carrying higher grade-High Court not setting aside the order of chairman, rather directing that appointment to post of G.M. may be made within a period of two months, failing which order would become in operative-Order, passed in urgency, by chairman wlihin meaning of Rule 7 of Corporation-Appellant not adversely effected, held, cannot raise plea that impugned orders were not quashedBoth, appellant and Res No. 2, have been appointed as G.M. on acting charge basis, held, both of them equally placed and dispute arising out of order passed on 23.10.95, is no longer a live issue-No concept in service law of transferring or shifting of an employee of corporation o a post carrying higher grade-Order, passed by Chairman, held, to be in violation of direction-This court cannot pass any order which indirectly validates or gives efficacy to an illegal order-Impugned order cannot be vacated in changed circumstances. [Pp. 190 to 192] A, B, C & D PLJ 1990 SC (AJK) 66 rel. Mr. Ghulam Mustafa Mughal, Advocate, for Appellant. Raja Shiraz Kayani, A.G. and Mr. M. Tabassum Aftab Alvi, Advocate for Respondent. Date of hearing: 15.1.1997. judgment Basharat Ahmad Shaikh, J.--Through the present appeal Raja Muhammad Asghar Khan challenges the order passed by the High Court on 29th of August 1996 on a writ petition filed by respondent Ch. Muhammad Yusuf whereby the High Court, accepting the writ petition, directed that appointment to the post of General Manager in the Azad Kashmir Ldgging and Sawmill Corporation may be made in accordance with the relevant Rules within a period of two months. It was also ordered that if the said direction was not implemented the appointment of Raja Muhammad Asghar as General Manager in his own pay and scale shall become inoperative. 2. Before adverting to the othei details a subsequent development has to be noted. After the decision under appeal, on 28th of October 1996 the Board of Directors of Azad Kashmir . Logging and Sawmill Corporation approved the re-organisation of the administrative structure of the Corporation and ordered that in future there shall be three General Managers in the Corporation. In pursuance thereof both the contesting officers of the Corporation, namely, appellant Raja Muhammad Asghar and respondent No. 1 Ch. Muhammad Yusuf were appointed as General Managers on acting charge basis on 29th of October. This order was challenged by the appellant by filing a writ petition within two days of the order. The petition is pending in the High Court and a copy has been placed on record with the concise statement of respondent No. 1. It is now contended by the learned counsel for respondent Ch. Muhammad Yusuf that present appeal has become academic in nature. However, the appellant's learned counsel does not accept this proposition. 3. The facts are that Ch. Muhammad Yasuf and Raja Muhammad sghar were serving as Managers in the Azad Kashmir Logging and Sawmill Corporation when on 23rd of October 1995 the Minister Incharge of the Forest Department in his capacity as Chairman of the Board of Directors of the Corporation passed an order entrusting the charge of General Manager Operations/Sales to Raja Muhammad Asghar on temporary basis and, in his own pay and scale. By the same order another person was sin$arly entrusted the charge of Manager Forests/Operations, the post previously held by Raja Muhammad Asghar. It is stated in the order,that it was being passed in view of urgency of the matter and that it was-subject to the approval of the Board of Directors. It is claimed that this power: p was exercised with reference to rule 7 of the Rules of Business of the Azad Kashmir Logging and Sawmill Corporation which lays down that the Chairman shall exercise all powers of the Board in disposal of urgent cases and that such orders shall be placed before the Board for concurrence/ information in the next meeting of the Board to be held within six:months. 4. Respondent Ch; Muhammad Yusuf filed a writ petition,on 6th of December 1995 to challenge the order mentioned above. He stated .that he was senior in service to respondent Raja Muhammad Asghar and he was entitled to be promoted to the post of General Manager Operations/Sales ut Raja Muhammad Asghar had been illegally appointed to that post. Amongst the grounds raised in support of this contention it was stated in the writ petition that there was a specific procedure for appointment/promotion to the post of General Manager but the Chairman had by-passed that procedure. It was also contended that the post of Manager, held by Ch. Muhammad Yusuf, was subordinate to the post of General Manager and'by issuing the impugned orders the Chairman had violated the dictum of the Supreme Court laid down in Muhammad Rashid Chaudhry vs. Chairman AKLASC & others (1995 S.C.R. 73), in which case this Court disapproved an order by which an officer of the Azad Kashmir Logging and Sawmill Corporation was transferred to a post carrying higher grade in his own pay and scale on the ground that such an order was not covered by law. It was prayed that the impugned order may be quashed and any other appropriate " writ may also be issued. However, this judgment floes not find any mentioned in the judgment under appeal although the learned Judge has clearly mentioned that rights of senior persons have been seriously affected. 5. As already mentioned the writ petition was accepted but the order impugned before High Court was not set aside and the High Court instead ordered that the appointment to the post of General Manger may be made within a period of two months failing which the order would become inoperative. This has given rise to a point forcefully put forward by the learned counsel for the appellant, Mr. Ghulam Mustafa Mughal, that the High Court travelled beyond its jurisdiction by issuing the direction mentioned above. It was contended by the appellant that the relief granted by the High Court was neither solicited by respondent No. 1 nor did it flow from the proceedings before the High Court It is also argued by the learned counsel that the power to fill up the post of, General Manager on permanent basis, as directed by the High Court, lies with the Board of Directors which had not been impleaded as a party in the writ petition. Basing his argument on a number of cases decided by this Court, the learned counsel argued, that a direction or writ cannot be issued against a functionary without making him a respondent. 6. The gist of the order under appeal is that the learned Judge in the High Court accepted the contention raised on behalf of the present appellant that the impugned order passed by the Chairman had been competently passed by the Chairman of the Board of Directors because it was an urgent case within the meaning of rule 7 of the Azad Kashmir Logging and Sawmill Corporation Rules of Business, which lays down that:- "7(i) The Chairman shall, in the disposal of urgent cases, exercise all the powers of the Board. Such cases shall normally be submitted to him through the Managing Director. The Managing Director may, when he thinks it necessary, consult any other Director before submitting the case to the Chairman. Orders passed by the Chairman shall be placed before the Board for concurrence/ information of the Board within six months (in the following Board meeting). (ii) Any case which the Chairman may require by general or special order to be sent to him. However, the learned Judge expressed the view that it was necessary that regular appointment to the post should have been made without further delay within a reasonable time but a period of seven months had already elapsed during which no step was taken in that direction. It was pointed out that:- " I think, there have been already a delay in the matter which seriously affected the rights of the senior persons who feel embarrassed by the appointment of junior person. No doubt, even the junior person can be appointed on the basis of selection if he is found more suitable than the seniors, but such a course can only be adopted after the appropriate Selection Committee has applied its mind and made its recommendations. 6. In fairness to all, it is desirable that a direction is issued to the Board to the effect that regular appointment be made in accordance with the rules within a period of two months from the date of this order. The quashment of impugned order will affect the business of the Corporation, hence, such an action is, therefore, avoided in the interest of the Corporation." 7. The observations reproduced above clearly show that although the learned Judge accepted the order passed by the Chairman to be valid but he as of the opinion that rights of the senior persons were being seriously affected by the delay and the impugned order was not being quashed for the reason hat it would adversely affect the working of the Corporation. We do not agree with the learned counsel for the appellant that the impugned order of the hairman was not quashed by the High Court. In this connection it is important to note the contents,of the operative part of the judgment of the High Court. t runs as follows:- "7. As upshot of the above discussion, the writ petition is accepted and the authorities are directed to make the appointment to the post of General Manager in accordance with the Rules within a period of two months from the date of this decision, failing which the order of appointment dated October 23, 1995, in respect of respondent No. 4 would become inoperative." 8. As we read the relevant parts of the judgment it becomes clear that the order of appointment dated 23rd of October 1995 was to become inoperative after lapse of two months. The learned Judge did not refuse the prayer for setting aside the order but only postponed it till lapse of two months. It is stated in para 6 of the judgment under appeal that the quashment of the impugned order of appointment was being avoided so that the business of the Corporation may not be adversely affected. 9. The facts show that the direction given by the High Court has not been implemented by the Board of Directors. The High Court ordered that the post of General Manager which had fallen vacant immediately before 23rd of October 1995 may be filled up on regular basis but the Board has only filled up the post on acting charge basis. It may be argued that since the Board had not been impleaded as a respondent it was not bound to implement the direction given by the High Court but the fact relevant for the present appeal is that the appellant herein cannot raise the plea that e s in any ractical way adversely affected by the impugned direction of the High Court. 10. An important development is that the Board has also created two more posts of General Manager and the two contestants, namely, the ppellant and respondent No. 1, both have been appointed as General Managers on acting charge basis. Therefore, both of them are now equally placed and the dispute arising out of the Chairman's order of 23rd of October 1995 is no longer a live issue. The appellant is no satisfied with the Board's order and has filed a writ petition for redressal of his grievance. The matter can be effectively decided by the High Court. However, this has brought f material change in the situation 11. By passing the order of 23rd of October 1995 by which he entrusted the charge of the post of General Manager to the appellant herein, the Chairman of the Corporation violated the dictum of this Court in Muhammad Rashid Chaudhry's case which has been mentioned earlier and j which had been specifically mentioned in the body of the writ petition filed in the High Court. In the precedent case it was held that there is no concept in the service laws of transferring or shifting of an employee of the Corporation to a post carrying higher scale and that also for indefinite __ period. The relevant portion of the judgment may be reproduced:-"According to rule 27 of the AKLASC Employees Service Rules in case all matters not expressly provided in those rules members of the service shall be governed by appropriate rules/orders of the Government. Therefore, the Civil Servants (Appointment and Conditions of Service) Rules 1977 are applicable to the Corporation. The concept of promotion as envisaged in section 8 of the Civil Servants Act is that promotion is to a post carrying higher grade while the accepted connotation of "transfer" is the shifting of an official to an equal post There is no concept in the service law of transferring a civil servant to a post carrying higher grade and that also for an indefinite period. According to the scheme of the service law if a vacancy is to be filled by promotion it is to be filled through the relevant Promotion Board. However, if a vacancy cannot be filled immediately civil servants can be appointed to higher posts pending completion of the formalities in accordance with the rules of 1977 mentioned above. These rules provide for appointment by promotion on acting charge basis (rule 10-A), appoint ment on current charge basis (rule 10-B) and appointment by promotion on officiating basis (rule 13). In rule 10-B there is also a reference to appointment on ad hoc basis. If the rules already in force are found wanting in any situation the proper course is that the Government should amend the Rules. The prevalent practice of ordering civil servants to posts carrying higher grades should be brought to an end because sometimes the senior persons are left to work in the same position while their juniors enjoy higher status and enhanced powers without adjudication of their suitability for promotion by the Promotion Board. In this contest we may usefully reproduce the following passage from the judgment of this Court in Mubasharul Hag v. Azad Government of Jammu and Kashmir
"The other ground on which the order of the Service Tribunal proceeds is that no additional benefit had been conferred on the two respondents. We find this ground equally untenable. The two respondents are functioning as Executive Engineers which posts carry higher responsibilities and, therefore, enhanced powers and status. Under an Executive Engineer many S.D.Os. work as their subordinates and the possibility cannot be ruled but that even the appellant himself could have been posted under one of the respondents. Mere fact that they have not been allowed salary in the high scale does not lead to the conclusion that there is no additional benefit to them.'" Since the order passed by the Chairman was in violation of the direction reproduced above this Court cannot pass any order which indirectly validates or gives efficacy to an illegal order, 12. The order of 23rd of October 1995 by which the appellant was entrusted with the charge of General Manager specifically contained the stipulation that it was a temporary order and that it had been passed subject to approval of the Board of Directors. It follows that the aforesaid order had to be replaced by an order by the Board of Directors even if a direction had not been passed by the High Court. The legal position is clear that stop gap order which was passed for entrusting the charge of General Manager to the appellant created no right and'such an order could be withdrawn r substituted any time. 13. Keeping all these factors in view we have reached the conclusion that the prayer for vacation of the direction given by the High Court of illing T?lup the post of General Manager on regular basis cannot be granted in the (changed circumstances and for the reasons mentioned above. It is accordingly ordered that the appeal shall stand dismissed, leaving the parties to bear their own costs in this Cpurt. (Aq. By.) Appeal dismissed.
PLJ 1997 SC (AJK) 193 PLJ 1997 SC (AJK) 193 [Appellate Jurisdiction] Present: BASHARAT AHMAD SHAIKH AND muhammad yunus surakhvi, JJ Mir ABDUL HAMID-Appellant versus AZAD GOVERNMENT OF STATE OF J & K etc.-Respondents Civil Appeal No. 16 of 1997, decided on 2-5-1997. (On appeal from judgment of High Court dated 28.2.1997 in Writ Petition No. 4 of 1997) (i) Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981-- -R. 22 read with Rules. 5, 6, 6A(i){3) and 7-Allotment of Government accomodation-Though Secretary Services is Chairman of Allotment Committee ut that does not authorise him to make allotments himself- Allotment of house in dispute could only he made by Allotment Committee after following rescribed procedure-Secretary Services acted arbitrarily and without jurisdiction in making impugned allotment- Held : High Court was not right in declaring hat respondent No. 3 was entitled to possession of disputed house-Hence, allotment order in his favour was void and full of illegalities. [Pp., 196 & 197] B (ii) Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981- R. 6-A (3)-Allotment of Government accommodation by Chief executive of his discretionWhether a writ can be issued for implementation of an order hich is withdrawn before same is acted upon-Question ofIf earlier order of allotment in favour of appellant had been formally issued they would have reated a right which could only be taken away after affording him an opportunity of hearing and for some valid reasons-- However, orders passed earlier ave been withdrawn by Prime Minister before they were formally issued-In this situation an enforceable legal right has not been created in favour of ppellant-Therefore, a writ cannot be issued for implementation of order which were withdrawn before same were acted upon. ' [P. 198] C (ii) Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981--
Rr. 6-A (3) and 22 read with Azad Jammu and Kashmir Civil Servants, Act-Ss. 22 & 23-Allotment of Government accommodation by Chief xecutive-Chief executive can pass an order only to advance ends of Justice and equity-Each case has to be examined on its own merits in 4. While disposing of the writ petition a learned Judge in the High Court observed that the directions of the Prime Minister had not een carried into effect through a formally issued order and, therefore, did not create any right. It was further held that the orders of the Prime Minister also did not confer any right for the reason that there was a Government notification in favour of respondent No. 3. It was held hat the Prime Minister had hrough another order passed on 14th of January 1997 affirmed the allotment of house in dispute in favour of respondent No. 3 and in light of this order the rders passed in favour of the appellant did not have any legal value. It has also been held in the impugned judgment that the appellant is not entitled to overnment accommodation because he owns a house in Upper Chatter Housing Scheme. For this reliance has been placed on rule 22 of the Azad Jammu nd Kashmir Allocation (Accommodation) Rules. These Rules will hereinafter be referred, for the sake of brevity, as Accommodation Rules. 5. We have heard the learned counsel for the parties at some length. We have been taken through the rules on the subject which are called the Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981. We have also examined all the orders passed form time to time. 6. The contention of the appellant is that some points of vital importance were urged before the learned Judge in the High Court but ave been left un-decided. The assertion is supported by an affidavit. These points have been urged before us with great vehemence. The learned counsel or the Government, Raja Shiraz Kayani, Advocate-General, and Kh. Shahad Ahmad, Advocate, stoutly defended the order of the High Court. 7. During the hearing of the case it, prima facie, transpired that the procedure laid down in the relevant rules for allotment of vernment accommodation was not being, followed. Therefore, we summoned some record which has been examined by us. ' 8. Before taking up merits of the case we may advert to the salient features of the legal provisions on the subject. Apart from the Accommodation Rules, also relevant is a Government Order issued on 13th of December 1979 which has been declared to be part of the Accommodation Rules as is provided in rule 5 thereof. According to the aforementioned Government Order, Government accommodation has been divided inSix categories which were previously known as category I, category II and so on, but are now redesignated as category A, category B and so on. It is laid down in the Order that houses failing in category A, as is the house in dispute, shall be allotted to officers in B-20 to 22. Houses in category C can be allotted to officers in B-15 to 17. The other categories are not relevant to the present case. According to the scheme of the Accommodation Rules allotment of Government residences has to be made on the basis of first come first served (sub rule 4 (i) of rule 6-A). However, there is also a special provisions that Chief Executive may allot a house to a Government servant at his discretion sub-rule (3) of rule 6-A). It is provided in rule 7 that the Estate office shall 4. While disposing of the writ petition a learned Judge in the High Court observed that the directions of the Prime Minister had not een carried into effect through a formally issued order and, therefore, did not create any right. It was further held that the orders of the Prime Minister also did not confer any right for the reason that there was a Government notification in favour of respondent No. 3. It was held hat the Prime Minister had hrough another order passed on 14th of January 1997 affirmed the allotment of house in dispute in favour of respondent No. 3 and in light of this order the rders passed in favour of the appellant did not have any legal value. It has also been held in the impugned judgment that the appellant is not entitled to overnment accommodation because he owns a house in Upper Chatter Housing Scheme: For this reliance has been placed on rule 22 of the Azad Jammu nd Kashmir Allocation (Accommodation) Rules. These Rules will hereinafter be referred, for the sake of brevity, as Accommodation Rules. 5. We have heard the learned counsel for the parties at some length. We have been taken through the rules on the subject which are called the Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981. We have also examined all the orders passed form time to time. 6. The contention of the appellant is that some points of vital importance were urged before the learned Judge in the High Court but ave been left un-decided. The assertion is supported by an affidavit. These points have been urged before us with great vehemence. The learned counsel or the Government, Raja Shiraz Kayani, Advocate-General, and Kh. Shahad Ahmad, Advocate, stoutly defended the order of the High Court. 7. During the hearing of the case it, prima facie, transpired that the procedure laid down in the relevant rules for allotment of Government accommodation was not being, followed. Therefore, we summoned some record which has been examined by us. ' 8. Before taking up merits of the case we may advert to the salient features of the legal provisions on the subject. Apart from the Accommodation Rules, also relevant is a Government Order issued on 13th of December 1979 which has been declared to be part of the Accommodation Rules as is provided in rule 5 thereof. According to the aforementioned Government Order, Government accommodation has been divided in%ix categories which were previously known as category I, category II and so on, but are now redesignated as category A, category B and so on. It is laid down in the Order that houses failing in category A, as is the house in dispute, shall be allotted to officers in B-20 to 22. Houses in category C can be allotted to officers in B-15 to 17. The other categories are not relevant to the present case. According to the scheme of the Accommodation Rules allotment of Government residences has to be made on the basis of first come first served (sub rule (i) of rule 6-A). However, there is also a special provisions that Chief Executive may allot a house to a Government servant at his discretion sub-rule (3) of rule 6-A). It is provided in rule 7 that the Estate office shall himself. Allotment of the house in dispute could only be made by the Allotment Committee after following the prescribed procedure and keeping in view the other factors already referred, particularly the principle of first come first served, grade of the officer as well as category of the accommodation. It is clear that the Secretary Services acted arbitrarily and without jurisdiction in making the impugned allotment. We have no hesitation in holding that 'the allotment in favour of respondent No. 3 was void ab initio. 10. The matter does not end here. Admittedly respondent No. 3 is in B-17 while the house in dispute is of category A. As already noticed a house in category A can only be allotted to an officer was is in B-20 or above. We have not come across any provision in the Rules that this condition can be relaxed, although it is provided in rule 6 of the Accommodation Rules that the Government may allot accommodation of a class higher if there is no other fficer on the waiting list of that class. This power is vested in the Government while the order has been passed by the Secretary Services and must be held o be illegal for that reason also. The waiting list furnished by the Services Department shows that a large number of senior officers in igher grades that B- 7 are on the waiting list. Another aspect of the matter is that the name of respondent No. 3 does not appear to be included in the waiting list while an ccommodation can be allotted only to a person in waiting list. It thus becomes clear that Secretary Services not only exercised powers which were not ested in him but also infringed all the relevant legal provisions. We are constrained to point out that Secretary Services may be the king-pin in the ecretariat ut he clearly is in error about his powers. 11. The legality of the order passed in favour of respondent No. 3 was not decided by the High Court although it was duly challenged in the writ etition and arguments were also addressed on this point as is proved by the un-rebutted affidavit on the point. However, the learned Judge declared that respondent No. 3 was entitled to possession of the house with immediate effect. Seen in light of the fact that the order of allotment in favour f respondent No. 3 was void the High Curt was not right in declaring that the said respondent was entitled to possession with immediate effect. In view of e clear legal position noticed about the allotment order in favour of respondent No. 3 was void and full of illegalities and we must hold it to be so. 12. The other part of the writ petition was for a direction for implementation of the orders passed in favour of the appellant. If a legal order has been passed by the Prime Minister and is not being implemented it creates a right in the concerned person to move the appropriate forum that the rder may be implemented. As already seen the reason recorded in the impugned judgment is that orders passed by the Prime Minister on applications moved by the appellant did not confer any right in presence of "a duly issued Government notification". We have already seen that the High Court mistook the order passed by Secretary Services to be a Government order while it was not so. We will be examining the powers which can be exercised by the Government at the proper stage but the conclusion is clear that the High Court fell in error in refusing to set aside the order passed by the Secretary Services. 13. Now we pass on to the question whether the appellant is entitled to the other relief which he claimed in the writ petition and now in appeal, namely, the direction may be issued that the order passed by the rime Minister in his favour may be formally issued. It was argued on behalf of the espondent that the orders passed by he Prime Minister in favour of he appellant could not be termed as orders of allotment but were only directions for necessary action. However, a perusal of the orders clearly shows that the two orders passed by the Prime Minister on llth of November and 22nd of December and clearly orders by which disputed house was allotted to the appellant. However, the examination of the record shows hat the appellant is not entitled to the relief under discussion because the Prime Minister subsequently withdrew the orders previously passed by him. The rder was passed on an application submitted by respondent No. 3 to the Prime Minister whereupon he wrote the following order on 6th of February, 1997 : "Take action under rules for handing over possession of the house allotted to S.S.P. Muzaffarabad. If there is any order to the contrary treat it as cancelled." 14. It may be observed that this order is available in the High Court file but is not mentioned in the judgment of the High Court. The High Court has referred to an order passed on 14th of January by the Prime Minister which is also available in the file in which it was stated that allotment in favour of spondent No. 3 shall remain intact. However, another order was subsequently passed by the Prime Minister on an application moved by he appellant on 0th of January that his previous orders passed on 22nd of December and 31st of December 1996 be implemented and Mir Abdul Hameed; ecretary Election Commission, will not ejected from the house occupied by him. This order is available at page 47 of the High Court file. It is obvious that his order superseded the order earlier passed by the Prime Minister on 14th of January which has been relied upon by the High Court. The position now is hat the latest order is of 6th of February (reproduced above). It has not so far been withdrawn and clearly supersedes all other previous orders passed by he Prime Minister. It may be observed that if earlier orders of allotment in favour of the appellant had been formally issued they would have crated a right hich could only be taken away after affording him an opportunity of hearing and for some valid reasons. However, the orders passed rlier have been withdrawn by the Prime Minister before they were formally issued. In this situation an enforceable legal right has not been created in avour of the appellant. Therefore, a writ cannot be issued for implementation of the order which were withdrawn before the same were acted upon. 15. Now we may deal with another aspect of the matter, namely, whether in presence of a house owned in Muzaffarabad the appellant was entitled to Government accommodation. This point has been decided against the appellant by the High Court. The prohibition is contained in rule 22 of the ccommodation Rules which is reproduced below :- "A Government servant who has built or acquired a house at the place of his posting or his wife or one of his dependent children has done so shall not be entitled to Government accommodation : Provided that in special cases Government, may relax the rules and allot accommodation to such a Government Servant for a period not exceeding two years from the date of completion of his house." 16. It was vehemently contended before us by the learned counsel for the appellant, Raja Muhammad Hanif Khan, that the Prime Minister is authorised by sub-rule (3) of Rule 6-A of the Accommodation Rules to make allotment of a house even to a Government servant who owns a house in the same city where is asking for official accommodation. Sub-rule (3) is as follows:- "(3) Notwithstanding anything contained in these rules or any other rules for the time being in-force, the Chief Executive shall have the powers to allot a house to a Government servant at his discretion at any time." 17. While interpreting the power granted in the above extracted sub-rule we may observe that laws are made and rules are framed for being implemented and not for being violated. This is the concept of law in every State which is governed by a written Constitution. The framing f Accommodation Rules is referable to the Azad Jammu and Kashmir Civil Servants Act. Power to make rules is provided in sub-section (1) of section 23, hich lays down that :- "(1) The Government, or any other person authorised in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act." On a plain reading, rules can only be framed for carrying out the purpose c the parent Act. 18. Sub-rule (3) of rule 6-A, already reproduced, gives powers to the Chief Executive to override all rules. Such powers, where-ever given in any service rules, are only referable to section 22 of the Azad Jammu and Kashmir Civil Servants Act which is as follows :- "22. Saving:- Notwithstanding in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable; Provided that, where this Act or any rule is applicable to the case of ^ civil servant, the case shall not be dealt with in any mannerless favourable to him than that provided by this Act or such rule." 19. It has been held by this Court in Sh. Manzoor Ahmad vs. Azad Government and another (1994 S.C.R. 297), that power under Section 22 of the Azad Jammu and Kashmir Civil Servants Act has to be exercised to advance the ends of justice and equity and not to give an undue advantage to a ivil rvant in contravention of the relevant law. Under section 23 the Government is only empowered to make rules for carrying out the purpose of the Azad ammu and Kashmir Civil Servants Act. Therefore, if a rule confers discretionary powers which is exercisable to override the rules it has to be construed hat such powers have been conferred for carrying out the purpose of section 22 of the Civil Servants Act, namely, to advance ends, of justice and quity. In our view this purpose must be deemed to be incorporated in sub-rule (3) under discussion and all other provisions of this type. herefore, sub-rule (3) of rule 6-A of the Accommodation Rules must be construed accordingly, with the result that the Chief Executive can pass an order nly to advance ends of justice and equity. The question as to what is just and equitable cannot be answered by laying down a hard and fast definition. Even therwise it is not possible to address to this question in vacuum. This depends upon the facts of each case. Even the dictates of justice and equity may be ifferent in different situations and what is just and equitable in one case may not necessarily be just and equitable in another case. herefore, each case has to be examined by the Chief Executive on its own merits in light of persuading reasons. We may add that since a writ etition lies to challenge such an order reasons must be such that can stand the scrutiny of judicial review. 20. We may now advert to the question as to what precisely are the" powers vested by sub-rule (3) of rule 6-A of Accommodation Rules. The provision., to be referred to as sub-rule (3), has already been reproduced. It opens with the non-obstante clause, as is usual in such provisions, which means hat the power which follows the non-obstante clause will override all other rules. The interpret such provisions two things are elementary; Firstly, such rovision have to be strictly construed and only that power will be
PLJ 1997 SC (AJK) 202 PLJ 1997 SC (AJK) 202 Present: basharat ahmed sheikh, and muhammad yunus surakhvi, JJ. ABDUL REHMAN and another-Appellants versus Mst. UMAR JAN and another-Respondents Civil Appeal No. 61 of 1996 accepted on 20-5-1997. (On appeal from order of High Court dated 20-10-1996 in Civil Appeal No. 9 of 1996). Civil Procedure Code, 1908 (V of 1908)-
S. 11 Res-Judicata-Bar of res judicata is applicable which was directlyand substantially in issue in previous suit and was finally. decided-A perusal of previous judgment clearly shows that position taken in ew plaint is correct that respective shares of parties were not worked out or determined-Appellant did not attempt to re-open the matter decided in previous suit but they sought its implementation-Bar of res judicata, therefore, is not applicable to these facts-Held : It has been applied without examining previous decree and plaint of present suit-Judgment and decrees of Courts below set a side and it was directed to dispose of suit filed by appellants on merits. [P. 204 & 205] A to E Mr. Abdul Hamid Khan Shahid, Advocate for Appellant. Mr. M.A. Farooq, Advocate for Respondents . Date of hearing: 28.1.1997. Judgment Basharat Ahmad Shaikh, J.«-,The High Court has dismissed an appeal field by the appellants before this Court, Abdul Rehman and Abdul Majeed, and has held that the suit filed by them on 9th of March 1993 was hit by the doctrine of resjudicata and, therefore, the plaint had been rightly rejected by the trial Court. This is the short point which has to be decided in this appeal. 2. After hearing the learned counsel for the parties and perusing the suit as well as the previous judgment and decree we have reached the conclusion that the High Court fell in error in holding that resjudicata was attracted to the case. This conclusion has been reached after examining the previous decree and the present plaint rn.jux.ta position. 3. The previous decree was passed on 12th of April 1989 in case titled Mst. Umar Jan and others v. Abdul Rehman and others. The decree, as translated, runs as follows :- "Therefore, it is ordered that a decree for joint possession in respect of land mentioned in Khewat No. 45, Khata No. 62, survey Nos. 120/1, 192, 452, 455 and 559 totalling 9 kanals 2 marlas as well as land mentioned in Khewat No. 48, Khata No. 63 survey Nos. 4, 12, 117, 118, 45, 5, 120 and 452 totalling 20 kanals 7 marlas situated in village Mandal, shall issue in favour of the plaintiffs and against defendant No. 1 on the basis of compromise and against the other defendants on the basis of merits that share to which the plaints are entitled under Sharia from the estate of Ismail deceased be given in joint possession to the plaints. The plaintiffs are full owners of the share which devolves on them from the estate - of deceased Ismail. Cost of the suit will be borne by the respective parties." 4. The suit out of which the present appeal arises was filed on 9th of March 1993 by Abdul Rehman and Abdul Majeed who were defendants in the previous suit. Respondents Mst. Umar Jan and Mst. Latif Jan are arrayed as defendants. The Revenue Commissioner has also been impleaded as one of the defendants in the new suit. It is the common ground between the parties that the parties as well as the suit property in the present suit are the same as in the previous suit leaving out unnecessary details, the summary of the plaint in the present suit is that in the decree passed on 12 th of April 1989 the respective shares of the parties were not determined, but Mst. Umar Jan and Mst. Latif Jan got the decree passed on 12th of April 1989 executed without partition and without determining the respective shares of the parties and have also succeeded in getting entries recorded in 204 SC(AJK) abdul rehman v. Mst. umar jan PLJ (Basharat Ahmad Shaikh, J.) the revenue record. Some part of the suit land was acquired and the compensation money was received by the defendants. By receiving the amount of compensation the shara of the defendants has been satisfied. If any share of the defendants in the suit land still is left that is common with other co-shareres in the joint khewat as are mentioned in the Jamabandi. In the previous suit filed by the defendants the other co-shareres in the khewat were not joined as party and due to that the defendants have lost their right and cannot now lay a claim of setting more share. The plaints are not in possession of any share of any land falling to the share of the defendants. However, the defendants have again initiated proceeding for execution of the previous decree which had already been executed. It is not allowed by law. The -defendants have no right or share in light of Sharia in the land in possession of the plaintiffs. 5. The bar of res judicata in section 11 of the Code of Civil Procedure is applicable only if in a subsequent suit an issue is raised which was directly and substantially in issue in the previous suit and was finally decided. A perusal of the plaint in the new suit shows that issues finally decided in the previous suit are not sought to be reopened. In fact the plaint has a specific reference to the previous decree and is mentioned in such a way which leads to the inference that the previous decree is binding on both the parties. What is stated in the plaint is that the previous decree was only to the effect that the defendants were entitled to their share in light of Sharia and that the share of the defendants in light of Sharia has already a been received by them and they are not entitled to any more share. A perusal of the previous judgment as well as the decree passed on 12th of April 1989 clearly shows that the position taken in the new plaint is correct that the respective shares of the parties were not worked out or determined. It is thus clear that the appellants did not attempt to re-open the matter decided in the previous suit but, as claimed, they sought its implementation. The allegation that the defendants have received their share in accordance with Sharia by reveiving compensation of land which is said to have been acquired may ultimately be proved to be wrong when the parties lead evidence but this can only be decided after the plaintiffs are put to proof in accordance with the laid down procedure. However, if the plaintiffs are able to prove what they have stated in the plaint they are clearly entitled to the relief, partly or wholly, prayed for by them. The Bar of res judicata, therefore, is not applicable to these facts. It has been applied without examining the previous decree and the plaint of the present suit.In light of the foregoing discussion we set aside the judgments and decrees of the High Court as well as the Courts below. Accordingly it is ordered that the suit filed by Abdul Rehman and Abdul Majeed be heard and disposed of on merits in accordance with law by the Additional Sub-Judge Muzaffarabad. The appellant shall be entitled to costs throughout. (MYFK) Order accordingly.
PLJ 1997 SC (AJK) 205 PLJ 1997 SC (AJK) 205 [Appellate Jurisdiction] Present: sardar said muhammad khan C.J. Lt. Col. SANAULLAH RAJA-Petitioner versus MUHAMMAD SHAFI etc. Criminal Revision Petition No. 9 of 1997 accepted on 28.4.1997. (On appeal from the Order of the Shariat Court dated 12.11.1996 in Crl. Misc. Application No. 30 of 1996) (i) Criminal Procedure Code, 1898 (V of 1898)-- -S. 432-Reference to High Court-Wether District Magistrate is competent to make a reference to High Court under S. 432-Question of- Only Presidency Magistrate can seek opinion of High Court n any question of law which arises in the hearing of a case pending before him- District Magistrate could not be regarded as Presidency Magistrate by any stretch of imagination. [P. 213] C (ii) Islamic Penal Laws Act, 1974-- S. 25Revision petitionCompetency ofChallenge toWhether an appeal or a revision petition under S. 25 is competent only in cases of acquittal or conviction or it is also competent against any orders- Question of-From perusal of provisions contained in S. 25(1) it is clear that it has not been stipulated in aforesaid provision that an appeal or revision is competent to supreme Court only if it arises out of a case f conviction and acquitted and not otherwise. [P. 212] B (iii) Limitation -Revision Petition-Delay in filing-No application for condonation of delay~ Effect--Whether delay in filing revision petition can be condoned in absence of an application in that regardQuestion ofIt is correct that normally in case of a delay in filing an appeal, application etc., there must be an application explaining delayHowever, it has not ben stipulated either in S. 5 of limitation Act or in Supreme Court Rules that there must be a formal application for condonation of delay-Some of High Court is subcontinent have framed rules which envisage that in case of delay there must be a formal application but no such formal application has been envisaged in Azad Jammu and Kashmir Supreme Court Rules, 1978- Therefore if delay in filing an appeal, revision or application standsexplained by record-Mere fact that there is not separate application seeking condonation would not justify rejection of prayer in that regard. [P. 210] A Ch. Muhammad Azam Khan, Advocate for Petitioner. Mushtaq A.A.G. for Respondents. Date of hearing : 25-4-1997. judgment Sardar Said Muhammad Khan, C.J.-The present revision petition has been directed against the order of the Shariat Court dated 12- 11-1996, whereby a reference filed by the District Magistrate, Mirpur, proforma respondent No. 2, and an application filed by Muhammad Shafi, under section 561-A, Cr.P.C., were disposed of by a consolidated order. 2. The fact giving' rise of the present revision are that a case under some provision of Enforcement of Prohibition of Intoxicants Act was registered at Anti-Narcotics Police Station, Rawalpindi, against Muhammad Shafi, respondent, and some others. The allegation against Muhammad Shafi, accused-respondent, was that he is member of a gang of smugglers and committed the offences detailed in the F.I.R. After investigation, Muhammad Shafi, accused-respondent, and others, were ultimately challaned for facing trial in the offences under the Intoxicant Act. Consequently, a non-bailable warrant for the arrest of Muhammad Shafi, accused respondent was issued by the Magistrate at Rawalpindi and was sent for execution to Azad Kashmir Police. In pursuance of the said warrant, S.H.O. Dudyal arrested the accused-respondent on 19th October, 1996 and, thereafter got his judicial remand till his custody was given to Police at Rawalpindi . On 21.10.1996, an application was moved by Anti-Narcotics Force, Rawalpindi , before the District Magistrate, Mirpur, praying that the accused-respondent be handed over to them on transit remand so as to facilitate the investigation against him. On this application the District Magistrate Mirpur, sent for the opinion of the Prosecuting Deputy Superintendent of Police, Mirpur, who opined that there was no legal bar to hand over the accused to the Anti-Narcotics Force under the relevant law. However, the District Magistrate declined to hand over the custody of the accused-respondent to Anti-Narcotics Force on the ground that as an application under section 561-A, Cr.P.C. was sub judice before Mr. Justice Riaz Akhtar Chaudhiy, the Judge of the Shariat Court, and was fixed for hearing on 18-11-1996, it would be in the fitness of things to wait for the result of the aforesaid application. Meanwhile, the District Magistrate also made a reference to the High Court on 2-11-1996 for guidance as to whether Muhammad Shafi, accused-respondent, should be handed over to Anti- Narcotics Force; whether he should be kept in Judicial custody; or he should be released on bail till the matter was decided by the High Court/Shariat Court Previously, when Anti-Narcotics Force demanded the custody of the respondent, the District Magistrate had provided a copy of the application made by the respondent under section 561-A which was then sub judica before Mr. Justice Riaz Akhtar Chaudhry; he had also intimated the Police that the date of hearing of the said application was fixed for 18-11-1996. Muhammad Shafi, accused-respondent, submitted another application to the Chief Justice of the High Court/Shariat Court on 4-11-1996 at Muzaffarabad seeking his bail, inter alia, on the ground of his illness and on the ground that the warrant of arrest pertained to some 'other' Muhammad Shafi and not to him. This application was also entrusted to Mr. Justice Riaz Akhtar, the Judge of the Shariat Court , for hearing and disposal as the application under section 561-A was already sub judice before him at Mirpur Circuit. Mr. Justice Riaz Akhtar passed an order on the bail application whereby he sent for the record of application of the accused-respondent under section 561-A from Mirpur Office and also issued notice to the Additional Advocate- General. On 4-11-1996 the aforesaid reference by the District Magistrate was also made over to Mr. Justice Riaz Akhtar Chaudhry by the Chief Justice of the High Court for hearing and disposal; and order was also passed on the reference whereby the record form Mirpur Officers of the High Court was again sent for and the reference was also fixed for arguments on 6-11-1996. It may be mentioned here that in both the interim order made by Mr. Justice Riaz Akhtar, one on the bail application submitted by Muhammad Shafi, accused-respondent, and the other on the reference initiated by the District Magistrate, no notice was issued to Anti-Narcotics Force at Rawalpindi to the effect that the application under section 561-A, Cr.P.C., which was to be heard at Mirpur on 18-11-1996 would be heard and disposed of at Muzaffarabad on 6-11-1996. The learned Judge heard the arguments on the application under section 561-A, Cr.P.C., bail application and the reference on 7-11-1996 and announced the impugned order on 12-11-1996, whereby the warrant issued by the Magistrate at Rawalpindi was held to be an ambiguous one and, thus, inexecutable. The learned Judge of the Shariat Court also granted bail to the accused-respondent, Muhammad Shafi. A revision petition was filed by Lt. Col. Sanaullah Raja, the Regional Director of Anti-Narcotics Force, Rawalpindi, on 17-2-1997 to this Court assailing the ' validity of the order passed by the Shariat Court dated 12-11-1996, inter alia, on the ground that it was passed without any notice to Anti-Narcotics Force, despite the fact that they had appeared before the District Magistrate for the custody of the respondent but the same was declined on the ground that the application by Muhammad Shafi, accused-respondent, was sub judice before the Shariat Court and was fixed for hearing on 18-11-1996. It was further prayed that the order of the Shariat Court being violative of law should be st at naught and the custody of Muhammad Shafi, accused-respondent, be handed over to the Anti-Narcotics Force, Rawalpindi . 3. The revision petition was heard by the Bench consisting of Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi. However, a difference of opinion has arisen between the learned members of the Bench. Mr. Justice Basharat Ahmad Shaikh was of the view that the impugned order of the Shariat Court was not sustainable whereas Mr. Justice Muhammad Yunus Surakhvi expressed the view that the revision petition was not only time-barred but was not competent. Consequently, the matter has come up before me for hearing and disposal as envisaged under sub-section (13) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. 4. I have heard the arguments and perused the file. It has been argued by Sardar Muhammad Siddique Khan, Advocate, the learned counsel for the petitioner, that the District Magistrate declined to hand over the custody of the respondent to Anti-Narcotics Force till the matter was decided by Mr. Justice Riaz Akhtar. The learned counsel contended that he was engaged counsel by the petitioner in the case and when he came to the Mirpur on 18-11-1996 to argue the case, he was told that arguments in the case had already been heard on 7-11-1996 and the order had also been announced on 12-11-1996. The learned counsel submitted that on this information, he applied for the copy of the order on the same day and subsequently filed the present revision petition on 15-1-1997, at Muzaffarahad. He maintained that the period for limitation for filing a revision petition in the instant case would start from the date of the knowledge of the order and, thus, the revision petition filed by him on 15-1-1997 was within the period of limitation of 60 days as envisaged under section 25 of the Islamic Penal Laws Act. The learned counsel urther contended that it was not necessary to file separate application seeking condonation of delay, especially so when the facts which entitle the petitioner to the condonation have been narrated in the revision petition and are also supported by an affidavit. The learned counsel further submitted that the date of hearing of the application under section 561-A, Cr.P.C., was fixed for 18-11-1996 at Mirpur but it was subsequently changed without notice to the petitioner; this fact is not controverted and is amply proved by the record. Therefore, he contended that the petitioner was entitled to the condonation of delay. 5. In reply, while dealing with the question of limitation, Ch. Muhammad Azam Khan, Advocate, the learned counsel for the respondent, vehemently contended that there was no application for the ondonation of delay and the period of limitation would start from 12-11-1996 when the impugned order was announced and not from the date of knowledge of the petitioner or for that matter from 18-11-1996. The learned counsel has further argued that the petitioner was not a party to the proceedings under section 561-A, and, thus, the question of any notice to him with regard to change of date does not arise. He has further submitted that there is no application seeking the condonation of delay and as such, the delay of three days in filing revision petition cannot be condoned under aw. Ch. Muhammad Mushtaq, the learned Additional Advocate-General has argued that delay cannot be condoned without a formal application: however, he conceded that revision petition in the instant case is competent under section 25 of the Islamic Penal Laws Act. limitation prescribed for appeals, in the manner indicted in a long line of decisions which lay down that the time taken between the date on which the judgment is pronounced and the date on which the decree is pronounced and the date on which the decree is signed is to be excluded under S. 12, Limitation Act as time requisible for obtaining a copy of the decree. As this appeal was originally filed in the Calcutta High Court, the appellant was undoubtedly misled by the judgments and practice of that Court into believing that appeals filed in such circumstances as the present are within time. No formal application under S. 5, Limitation Act, is, therefore, necessary." In Sarwar Khan v. Mir Ali [1980 CLC 11], This.Court sou rnotu extended time, condoning the delay observing that the court can suo motu enlarge time and condone the delay . In case reported as Ms?. Kulsoomun Nissa v. Noor Muhammad alias Sultan Haider [AIR 1936 All. 666], it was observed as under :- " The first ground on which the appeal has been dismissed by the lower appellate Court is that the plaintiffs had not made any formal application for an extension of time under section 5, Limitation Act, and that, therefore, their appeal against Hakim Shyam Sundar Lai was beyond time. In our opinion the Court below has erred in exercising its discretion in this matter. The reason why Hakim Shyam Sunder Lai's name was omitted from the names of the respondents obviously was that his name did not find a place in the decree. He was impleaded later on within 30 days of the substitution of his name. We think that the lower Court should have allowed the defendant to get round the technical objection of the absence of a formal application for extension of time." In case reported as Syed Murtaza Shah v. Major (Retd.) Mufti Nazar Muhammad [1980 CLC 138], it was observed that the powers under section 5 is not depended upon an application filed for the purpose to condone the delay and as- such the power can be exercised even in absence of any application for the purpose. Thus, I am of the view that in the circumstances enlisted above, the delay in the peculiar circumstances of the case in hand, particularly in viewspecific findings have been recorded with regard to the application under section 561-A. However, taking in view the controversy, namely, as to whether the respondent, Muhammad Shafi, should have been handed over to Anti-Narcotics Force or should have been released on bail, the decision in one would automatically decide the other. Thus, I am of the view that despite the fact that there is no specific reference to the application yet the impugned order would be deemed to dispose of both the reference as well as the application under section 561-A, Cr.P.C. 10. The next point which needs determination is as to whether the District Magistrate was competent to make a reference to the High Court under section 432. A bare reading of the aforesaid provision would reveal that only the Presidency Magistrate can seek the pinion of the High Court on any question of law which arises in the hearing of case pending before him. In the instant case the District Magistrate could not be regarded as Presidency Magistrate by any stretch of imagination. A reference may be made to A.I.R. Commentaries on the Code of Criminal Procedure by D.V. Chitaley, wherein it has been observed in note 2 of section 432, Cr.P.C., as under :- "2. Reference by Presidency Magistrate.-This section empowers only a Presidency Magistrate to make reference to the High Court. A Sessions Judge or a District Magistrate has no power to make a reference except as provided, by S. 438, and no other Magistrate trying the case has any power at all to make any reference to the High Court." It may be observed that the Shariat Court has opined that the warrant issued is ambiguous and the identity of the accused-respondent is not ascertainable. The question relating to the identity of the accused is not a question of law envisaged under section 432, Cr.P.C. and even otherwise, there was no case pending before the District Magistrate, Mirpur, as stipulated under section 432, Cr.P.C. 11. So far as the question of exercise of powers by the Shariat Court under section 561-A, Cr.P.C., is concerned, it may be observed that in the instant case the Police required the custody of the accused-respondent for the investigation in a case registered at Rawalpindi under section 3/4 of the Enforcement of Prohibition of Intoxicants Act. Thus, the inherent power of the Court could not be exercised to interfere with the investigation of the Police by denying the custody of the accused-respondent. The question as to whether warrant of arrest pertains to some other person or to the respon dent is to be resolved during the investigation or at the trial by the trial Court and not, in extradition proceedings. After the arrest of the accusedrespondent, it was obligatory on the District Magistrate under section 5 of the Ordinance known as Azad Jammu and Kashmir Extradition of Fugitive Offenders Ordinance, 1995 and section 5 of the Act known as Azad Jammu and Kashmir Extradition of Fugitive Offenders Act, 1984, to hand over the accused-respondent to Anti-Narcotics Fore, Rawalpindi, instead of making a reference to the High Court/Shariat Court. The phraseology employed in both the sections 5 of the aforesaid Ordinance and the Act is identical; it is reproduced as under for elucidation :- "5. Application for transfer of fugitive offender to Pakistan . - Upon the arrest of a fugitive offender under section 3, an application shall be made to the District Magistrate in whose District the arrest has been made for the transfer of such offender and the property seized under section 4, and the District Magistrate shall, upon such application, order the transfer of such offender and property to the concerned police officer of Pakistan." In the light of what has been stated above, I accept the revision petition and set aside the impugned order of the Shariat Court ; I further direct the District Magistrate, Mirpur, that after the arrest of Muhammad Shafi, respondent, his custody shall be handed over to the concerned Police as envisaged by the relevant law. The revision stands accepted. (K.A.B.) Petition accepted.
PLJ 1997 SC (AJK) 214 PLJ 1997 SC (AJK) 214 [Appellate Jurisdiction] Present: BASHARA7 AHMAD SHAIKH, J. Kh . AMAR HABIB and another-Petitioners versus AJK GOVERNMENT through Chief Secretary and 2 others-Respondents Civil Misc. No. 25 of 1997, decided on 23.5.1997. (Application for suspension of the order of the High Court dated 8.4.1997) Service Matter- -S. 47(2) of AJK Interim Constitution Act, 1974-An application for suspension of order passed by High Court by which it directed that status quo shall be maintained-Order has effect of stopping Government rom filling up post of Director Inventory and Inspection, a post carrying grade 19 in Electricity Department-Held : Matter clearly relates to terms and conditions of service of civil servants-Under Section 47 of nterim Constitution Act, Jurisdiction of High Court stands completely ousted-It is specifically provided in sub-section (2) of section 47 that no court, except a Tribunal set up under that section; shall grant an njunction , make any order or entertain any proceeding in respect of any matter to which jurisdiction Tribunal extends-Order issued by High Court is infringement of this Constitutional provision-Order accordingly. [P. 215] A Ch. Muhammad Azam and Raja Hassan Akhtar , Advocate for Petitioner No. 1 Mr. Muhammad Ayub Sabir , Advocate for Respondent No. 3. Date of hearing : 23.5.1997. order This is an application for suspension of the order passed by the High Court on 8th of April 1997 by which it was directed that status quo shall be maintained. This order has the effect of stopping the Government from filing up the post of Director Inventory Control and Inspection, a post carrying grade 19 in the Electricity Department. I have heard the learned counsel for the parties. The matter clearly relates to terms and conditions of service of civil servants. Under section 47 of the Interim Constitution Act the jurisdiction of the High Court stands completely ousted. It is specifically provided in sub-section (2) of section 47 mentioned above that no Court, except a Tribunal set up under that section, shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of the Tribunal extends. The order issued by the High Court is infringement of this constitutional provision. The High Court has also acted illegally insofar as seven days notice of motion was not given to the opposite party nor was the relevant rule, namely, rule 34 of the AJK High Court Procedure Rules, relaxed. It follows that the order passed by he High Court is un-sustainable. Operation of the aforesaid order is, therefore, suspended till disposal of the appeal. (K.K.F). Order accordingly.
PLJ 1997 SC (AJK) 216 PLJ 1997 SC (AJK) 216 [Appellate Jurisdiction] Present: sardar said muhammad khan, C.J., basharat ahmed shaikh and muhammad younus surkhavi, JJ. CH. MUHAMMAD HUSSAIN-Appellant versus AZAD GOVT. OF STATE OF JAMMU AND KASHMIR ETC.-Respondents Civil Appeal No. 69 of 1996 accepted on 12-5-1997. (On appeal from judgment of Service Tribunal dated 8-10-1996 in Service Appeal No. 831 of 1995). (i) AJK Interim Constitution Act, 1974-- ...S. 44-Kashmir Service Tribunal Act 1975 S. 9, Limitation Act, 1908 Ss. 5 & 12-School teacher-Absence from duty-Suspension and stoppage of two increments-Appeal against-Dismissal of being time arred by one day-Challenge to-By virtue of section 9 of AJK Service Tribunals Act, 1975, provisions of Ss. 5 & 12 of Limitation Act, 1908 have been made applicable to appeals before Service Tribunal-Under sub- ection 2 of S. 12 of Limitation Act, day on which judgment complained of is pronounced is to be exclude while computing period of Limitation-Order of dismissal of departmental appeal was communicated pellant on 7-3-1995, whereas appeal to Service Tribunal was filed on 6-4-1995, on 30th day and thus was within time-Even otherwise in view of provisions contained in section 9 of General Clauses Act, if any period is o be computed from a certain date, such date shall be excluded while calculating specified period. [P. 219] B & C AIR 1962 Mysore 117 ref. (ii) AJK Interim Constitution Act, 1974-- S. 44-Kashmir Sen'ice Tribunals Act 1975, section 9 and Limitation Act, 1908 Ss. 5 & 12Suspension and punishment to civil servantAppeal against-Dismissal of being time barred by one day-Appeal against- Thought as per case reported as (1996 SCR 382) an aggrieved civil servant is bound to prefer an appeal to Service Tribunal against original order with' 120 days instead of Waiting for final decision of his departmental appeal, but it is correct that Shabir Ahmed's case (supra) was decided by Supreme Court when appeal in case in hand had already been disposed of by Tribunal-Delay in instant case was not due to any negligence, rather it was due to a bonafide mistake which resulted due to judicial pronouncements and which, in turn, gave hirth to a long standing practice of two options for filing appeal to Service Tribunal- elay condoned. [Pp. 218, 224 & 225] A, D & E AIR 1964 J & K 42; AIR 1952 Cal. 552 ref. (iii) AJK Interim Constitution Act, 1974-- ....s. 44 Kashmir Service Tribunal Act, 1974 Section 9-School teacher- Absence from duty for one year-Suspension and thereafter stoppage of incremnts-Appeal against-Dismissal being time-barred-Challenge o- Inquiry conducted against appellant was not conducted in accordance with rules-He was charge sheeted by Inquiry officer which he was not authorised to under law-Besides statement .of allegations was not supplied to appellant-These findings of tribunal have not been challenged by Government by filing petition for have to appeal- Consequently, the finding that inquiry conducted against appellant was defective has become final-Service Tribunal dismissed appeal on question of Limitation, which has been decided in favour of appellant- Appeal accepted. [P. 226] F & G Mr. Farooq Hussain Kashmir, Advocate for Appellant. Raja Shiraz Kayani, Advocate General for Respondent. Raja Muhammad Hanif Khan, Sardar Rafique Mahmood Khan, Kh. Shahad Ahmad, Mr. Ghulam Mustafa Mughal and Mr. M. Tabassum Aftab Alvi, as amicus curiae. Dates of hearing : 4-3-1997, 15-31997, 4-4-1997 and 14-4-1997. judgment Sardar Said Muhammad Khan, CJ.--This appeal has been preferred against the judgment of the Service Tribunal dated 8.10.1996, whereby the appeal field by the appellant, herein, was dismissed as being time-barred. 2. The brief facts of the case are that the appellant is a school teacher. There was an allegation against him that he remained absent from duty for a period of one year. Consequently, he was put under suspension and thereafter an inquiry was held against him. The Inquiry Officer submitted report to the concerned authority who awarded him the punishment of stoppage of two increments and censure. The appellant filed an appeal to the Service Tribunal which came to the conclusion that the Authorised Officer did not serve charge-sheet on the appellant and also failed to seek a written reply to the charge. The Service Tribunal opined that the Inquiry Officer could not charge-sheet the appellant and, thus, the inquiry proceedings were violative of law. However, the Service Tribunal dismissed the appeal as being time-barred by one day. 3. The arguments in the case were heard on 4.3.1997 and the judgment was reserved. However, while going through the file it transpired that penalty was imposed on the appellant on 26.4.1993 against which he had filed a departmental appeal. Instead of filing appeal to the Service Tribunal within 30 days after waiting period of 90 days, as envisaged under section 4 of the Service Tribunals Act, the appellant waited till the decision of his departmental appeal which was dismissed on 22.2.1995. Thereafter, he filed an appeal before the Service Tribunal. In the case reported as Shabir Ahmad v. Azad Government [1996 SCR 382]. this Court has held that an aggrieved civil servant is bound to prefer an appeal to the Service Tribunal against the original order within 120 days instead of waiting for the final decision of his departmental appeal. Thus, notice was issued to the counsel for the parties as to why the appeal before the Service Tribunal should not be held as time-barred in view of the dictum of this Court in Shabir Ahmad's case. When the arguments were being reheard, the learned counsel for the appellant sought an adjournment to file an application for the condonation of delay in view of changed circumstances resulting from the judgment in Shabir Ahmad's case. Consequently, the case was adjourned to 4.4.1997. The learned counsel for the appellant submitted an application for the condonation of delay in filing appeal on 21.3.1997, stating the judgment in Shabir Ahmad's case was announced by this Court after the decision in the instant case by the Service Tribunal and, thus, there was no negligence on the part of appellant in filing appeal to Service Tribunal after the final disposal of his appeal by the departmental authority; because prior to the dictum of this Court in Shabir Ahmad's case, the long standing practice was that an aggrieved civil servant used to prefer appeal to Service Tribunal either within 120 days or within thirty days of the communication of the order passed on his appeal, revision or review etc. and in both the eventualities the appeal to Service Tribunal was deemed to be within time;, it was further averred in the application that the dictum of this Court in Shabir Ahmad's case would operate prospectively and not retrospectively, i.e., it would apply to the cases where appeals to the Service Tribunal are preferred after the decision of this Court and not before that. Thus, it was prayed that as the appellant was misled by the practice of the Court prevailing before the dictum in Shabir Ahmad's case, the delay in filing appeal might be condoned. The application was also supported by an affidavit. The objections were filed to the said application by the respondent wherein it was stated that in the circumstances of the case, the application for condonation of delay should be dismissed because the delay in filing appeal before the Service Tribunal was intentional. However, the averments made by the^ applicant with regard to previous practice were not controverted: Consequently, the case was fixed for arguments afresh on merits as well as on the question as to how the dictum laid down in Shabbir Ahmad's case would affect the present appeal; as to whether the appeal before the Service Tribunal in the present case would be affected by the view taken in Shabir Ahmad's case and if so, whether the appellant was entitled a series of days or any other period of time, to use the word 'to'. (2). A reference may be made to a case reported as Srinivasa Silk Mills, Seshadripuram v. State of Mysore [AIR 1962 Mysore 117], wherein it has been held that the provisions contained in section 9 of the General Clauses Act may be looked into for interpretation of a enactment etc.; it is also a valuable guide for the purpose of computing the time even in case of a notification issued by the authority in exercise of power conferred on it by law. It has been further observed that if the word 'from' is used in a certain enactment or notification etc., the date to which the said word refers is to be excluded in view of the provisions contained in section 9 of the General Clauses Act. 7. In the light of what has been stated above, we have come to the conclusion that the appeal field by the appellant before the Service Tribunal was filed on 30th day and is not, time-barred, if the period is reckoned from the communication of the appellate order. 8. So far as the question of the applicability of the dictum of this Court in Shabir Ahmad's case to this case and the question as to whether delay should be condoned or not, are concerned, xhaustive arguments were addressed by the counsel for the parties and Raja Muhammad Hanif Khan, Advocate, Mr. Ghulam Mustafa Mughal, Advocate, Sardar Rafique Muhammad Khan, Advocate, Kh. Shahad Ahmad, Advocate, and Mr. M. Tabassum Aftab Alivi, Advocate, who appeared as amicus curiae to assist the Court in the case. 9. Mr. Farooq Russian Kashmiri, the learned counsel for the appellant, has submitted that Shabir Ahmad's case was deiced by this Court after the decision of this appeal by the Service Tribunal. The earned counsel has argued that previous to that the practice prevailing was of this Court that an aggrieved civil servant could either wait till final disposal of his appeal, revision or review etc. and prefer an appeal to the Service Tribunal within 30 days of the communication of the order passed by the appellate authority or he could prefer appeal within 120 days after filing an appeal etc. to the appellate authority; in both the cases, appeal by an aggrieved civil servant was deemed to be within time. The learned counsel has further submitted that the ratio decidendi of Shabir Ahmad's case would be applicable only to the appeals which were preferred to the Service Tribunal after the judgment of this Court and would not affect those which were preferred prior-to the udgment of this Court. In alternative, the learned counsel has argued that as in the circumstances of the case, the delay in filing appeal in the instant case, cannot be regarded due to any negligence, it should be condoned in view of previous interpretation of the identical provisions by the superior Courts of Pakistan and also in view of the prevailing piactice in the state. The learned counsel for the appellant has cited following authorities in support of his contentions :- In case reported as Ch. Abdul Rashid v. Secretary Establishment Division, Islamabad [1995 PLC (CS) 527] (Supreme Court Pakistan), it was held that a civil servant having preferred departmental appeal within time was within rights to wait its disposal before approaching to Service Tribunal; long time taken by the departmental authority in deciding his appeal could not be pressed into for the purpose of limitation. In case reported Haji Kadir Bux v. Province of Sind [PLJ 1982 SC 373] in paragraph 5 of the report it has been clearly held that a civil servant has two choices under section 4 of the Civil Servants Act :- (i) Either to wait .'.i such authority passed final order on his appeai, review or representation, however long time it may take; or (ii) He may come up in appeal revision etc. before the Service Tribunal after waiting period of 90 days plus 30 days. In Muhammad Yusaf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan Lahore r PLD 1968 SC 101], it has been observed that binding nature of decision of the Supreme Court is propective and not retrospective. It has been further observed that it cannot be said that the dictum of Supreme Court would nullify or alter the law from the date of commencement or nullity the decisions of the High Court which were given prior to the dictum of the Supreme Court. 10. Raja Shiraz Kayani, the learned Advocate-General, maintained that the appeal was time-barred in view of the dictum laid down by this Court in Shabir Ahmad's case, especially so when here was no contrary interpretation of this Court on the point. The learned counsel submitted that mere prevailing practice of ti.: Court, in absence of any conscious interpretation of the relevant provisions, would not entitles the appellant to the condonation of delay. 11. Raja Muhammad Hanif Khan, Advocate, more or less supported the arguments advanced by the learned counsel foi the appellant and has submitted that in view of the practice of this Court prior to the dictum given in Shabir Ahmad's case, it is a fit case for condoning the delay. He has also referred to a case reported as Fida Muhammad Rathore v. Azad Government of the State of Jarnmu and Kashmir PLD 1983 SC (AJ&K) 27], it was held that the period of limitation under section 4 of the Service Tribunals Act would start running from date of the communication of an original or appellate order, as the case may be. The learned ^counsel has also referred to some unreported cases of this Court to substantiate his contention that prior to the decision in Shabir Ahmad's case, appeals to the Service Tribunal used to be field after their final disposal of by the departmental authority, well beyond the period of 120 days, but neither any objection with regard to limitation was raised by the opposite parties nor the Sen-ice Tribunal or this Court suo motu took to the notice of the fact that the same were time-barred. 12. Sardar Rafique Mahmood Khan Advocate also supported the arguments advanced by the learned counsel for the appellant. He has also submitted that the operation of dictum laid down in Shabir Ahmad's case would be prospective and not retrospective. In alternative, the learned counsel maintained that even if the ratio deddendi of Shabir Ahmad's case is held applicable to the instant case, the delay in the instant case must be condoned in view of previous practice of this Court. He has referred to a case reported as Sh. Muhammad Ashraf v. Muhammad Irsahd Khan [PLD 1976 Lah. 1034], the view taken by the High Court that the writ petition did not abate under the provisions of Code of Civil Procedure was subsequently reversed by the Supreme Court. But all the same it was observed that the cases in which the point was decided period to the pronouncement of the preme Court cannot be re-opened. However, the delay in filing the application for setting aside the abetment order as condoned by the Supreme Court in view of its aforesaid pronouncement. 13. Mr. M. Tabassu.ni Aftab AM, Advocate, more or less owned the arguments advanced by the learned counsel for the appellant, Raja Muhammad Hanif Khan and Sardar Rafique Mahmood Khan and also submitted that as the delay in filing appeal in the instant case would be deemed to have been condoned by the Service Tribunal, the discretion exercised should not ordinarily be interfered with by this Court. He has relied upon the following authorities in support of his contentions : In case reported as Naseem Ahmad Chaudhty v. Chairman, Punjab Labour Appellate Tribunal, Lahore [1995 SCMR 1655], it was held that where a Court or Tribunal possessed the jurisdiction condone the delay, the order of such Court or Tribunal condoning or refusing to condone delay is not ordinarily interfered with by the Appellate Court. In Masud Ahmad v. United Bank Limited [1992 SCMR 424], it has been held by this Court that where the provision of law is clear, the question of condonation does not arise. However, such question would rise where the litigant was misguided by some practice of the Court or erroneous judgment. (Underlining is ours.) In case reported as Water and Powers Development Authority. Zahoor Ahmad [1994 SCMR 960], it was held that where the appeal is filed beyond the period of limitation and the delay was condoned by the Service Tribunal, the order of Service Tribunal is not ordinarily interfered with in appeal. 14. Mr. Ghulam Mustafa Mughal, the learned Advocate, in addition to supporting the arguments advanced by the learned counsel who preceded him, has strenuously argued that the decision in Shabir Ahmad's case would ourt itself condoned the delay in filing appeal and remanded the case to the Tribunal for fresh decision on merits. 15. Kh. Shahad Ahmad, Advocate, supported the arguments advanced by the learned counsel who preceded him and maintained that this is a fit case for the condonation of delay in view of the old practice of this Court. 16. We have given our due consideration to the matter, It may be again observed that he point with regard to the appeal being time-barred before the Service Tribunal in view of the dictum of this Court in Shabir Ahmad's case was suo motu raised by this Court. It is also correct that Shabir Ahmad's case was decided by this Court when the appeal in the case in hand had already been disposed of by the Tribunal. Thus, there was neighbour any occasion for applying for the condonation of relay to the Service Tribunal nor any such application was made before it. Consequently, the application for condonation of delay was made for the first time in this Court when the Court suo motu took the notice of the point. It is also correct that ordinarily, this Court does not interfere in the discretion exercised by a Tribunal or Court in allowing or disallowing an application for condonation of delay. But as in the instant case, the controversy with regard to the question of limitation was not in existence before the Service Tribunal in terms indicated above, it cannot be said that any discretion was exercised by it one way or the other. Therefore in the peculiar circumstances of the case, this Court is fully competent to consider and decide the question of allowing or disallowing the application for the condonation of delay in filing appeal to the Service Tribunal. 17. As is evident from the arguments raised at the Bar and the authorities cited from Pakistan jurisdiction, the question of limitation, indicated above, was not settled, at least, in Azad Kashmir, prior to the dictum of this Court in Shabir Ahmad's case. It appears that almost all appeals which were filed after the decisions of the Appellate Authority beyond the period of 120 days were deemed to be within time; neither any objection was raised by the opposite party nor this Court or the Service tribunal took suo motu notice of the fact. Thus, along standing practice developed in the Sate that an aggrieved civil servant could come up in appeal within thirty days after the waiting period of 90 days or he might file an appeal within thirty days of the communication of the order passed on an appeal.! revision or review. The two cases reported as Ch. Rashid v. Secretary Establishment Division, Islamabad [1995 PLC (CS) 527] Haji Kadir Bux u. Province ofSindh [PLJ 1982 SC 373] from Pakistan jurisdiction, elied upon by the learned counsel for the appellant, show that the matter with regard to two options for filing an appeal to the Service Tribunal under section 4 of the Service Tribunals Act was not well settled even in Pakistan. Under these circumstances, we have no hesitation in holding that delay in the instant case was not due to any negligence, rather it was due to a bona fide mistake
PLJ 1997 SC (AJK) 226 PLJ 1997 SC (AJK) 226 I Appellate- Jurisdiction] Present : SARDAR SAID MUHAMMAD KHAN C.J. AND syed manzoor hussain gillani, ad hoc., J. JAVAID AZAM and 2 others-Appellants versus MUHAMMAD SALEEM and the State and 9 others-Respondents Crl. Appeal No. 16 of 1996, decided on 22.4.1997. (On appeal from the Judgment of the Shariat Court dated 20.6.1996 in Criminal Appeal No. 26 of 1994) (i) Benefit of doubt- Benefit of doubtPre-requisites forDoubts, benefits of which have to be given to accused party, must be reasonable and bonafi.dc. doubts going to root of prosecution case-Doubts created or assumed on the basis of one's own imagination do not falsify or belie otherwise proved case. [P. 241] F (ii) Expert opinion-- -Expert opinion-Value of-Opinions of Fire-arms Experts. Ballistic Experts and Chemical Examiners is necessary in case when occurrence is not witnessed by eye-witnesses and case entirely depends upon circumstantial evidence-Opinions and reports of experts are always to support or corroborate other evidence if direct evidence is not available. [P. 238] B (iii) Fugitive-- Fugitive from law loses most of rights under law. [P. 243] I (iv) Islamic Penal Laws Act, 1974-- -Ss. 5, 14 & 15 read with 307 147, & 148 of Penal Code, 1860-Murder- Offence of-Convictioii for-Appeal against-Aceeptance of-Challenge to- Entire case of prosecution depends upon eye-witnesses account not upon circumstantial or corroborative evidenceIn presence of witnesses two of whom are injured and others having personally seen accused attacking upon complainant party, opinion of Fire-arms Expert etc. matters least- Occurrence did not require any corroboration as direct evidence itself was availableIt was case of broad day light firing in very busy chowk witnessed by prosecution witnesses and others-Complainant, party and their witnesses are inter-sc, related and in view of their proceeding before Court on that date, their presence is not doubtful, neither can their eye version account of occurrence be deemed as doubtfulAssumption of cross-firing by Shariat Court (first appellate Court) is totally unwarranted-Prompt lodging of F.I.R.. absconsion of accused, their remaining fugitive from law after obtaining concession of bail and not appearing before Court till now, except respondent No. 1, who also appeared after about twelve years etc.-In such like cases, it is held that where F.I.R. is lodged without loss of time, same has to be treated as a genuine document, thereby entirely eliminating probability of falsification or false implication-Held : Supreme Court is fully satisfied that reasons recorded by learned Judges of Shariat Court in allowing appeal are not supported by record and law and conclusion drawn from appraisal of prosecution evidence is not in consonance with true perspective of administration of criminal justice-Appeal allowed. [P. 238. 240, 241, 242 & 247] A. 0. D. E, H & J PLJ 1982 SC (AJK) 212 rcf. (y) Trial Court- Trial Court-Status of its finding-Appellate Court is obliged to give due weighage to finding of trial Court and must have sound reasons to disturb its-finding. [P. 242] G Mr. Slier Zaman Chuudliry and Abdul Bashir Qurc.shi, Advocate for Appellants. Mr. Abdul Majced Mallick, Advocate for Respondents No. 1 to 10. Ch. Muhammad Mushtaq, A.A.G. for State. Date of hearing : 22.4.1997. judgment Syed Manzoor Hussain Gillani, Ad hoc J,--This appeal is filed under section 25 of Islamic Penal Laws Act, 1974, calling in question the order passed by the Division Bench of the Azad Jammu and Kashmir Shariat court on 20.6.1996, whereby the respondents were acquitted of the charges under sections 5, 14 and 15 of Islamic Penal Laws Act read with sections 307, 147, 148, Penal Code. The respondents (except respondents 9 and 10 who are acquitted throughout) were convicted and sentenced to 14 years rigorous imprisonment besides the sentence of Hakumat-e-Addl in the sum of Rs. 25,000/- to be paid to the legal heirs of deceased by the District Criminal Court on 23.11.1994. 2. The above respondents were tried for the above referred offences 'by the District Criminal Court, Mirpur, on the basis of Challan filed by the Police Station Mirpur on 27.7.1976. The District Criminal Court Mirpur, in the first round through its order dated 15.8.1977, convicted respondents, M\ihammad Saleem, Shaukat, Liaquat, Aurangzeb, Allah Ditta and Sakhawat Ali for the death of uhammad Azam deceased and causing injuries to Khalid Hussain and Mahroof. Muhammad Saleem, was sentenced to death and fine of Rs. 5,000/- under section 5 of Islamic Penal Laws Act besides even years rigorous imprisonment and fine of Rs. 2,000/- for the charges under section 307, Penal Code, and sections 14 and 15 of Islamic Penal Laws Act, while Liaquat, Shaukat, Aurangzeb, Allah Ditta and Sakhawat were convicted to life imprisonment for the offences under section 5 of Islamic Penal Laws Act and sections 148 and 149, Penal Code, with fine of Rs. 2,000/- each. They were also sentenced o seven years rigorous imprisonment for the offences under section 307, Penal Code, read with sections 14 and 15 of Islamic Penal Laws Act with fine of Rs. 500/- each. The file was submitted to the High Court under section 374, Cr.P.C., for confirmation of the death sentence awarded to Muhammad Saleem. Appeal was also filed by the convicted respondents and the State as well against the order of acquittal. The High Court set aside the order passed by the District Criminal Court, Mirpur, on 7.5.1979 and remanded the case for recording the statements of the prosecution witnesses, Riaz and halid Hussain afresh,- which were not recorded by the District Criminal Court as visualized by the Islamic Penal laws Act, and for purgation of the witnesses of the prosecution. After remand, the District nal Court passed the order on 23.11.1994 convicting the respondents (except respondents 9 an.1 10) in the case. The Shariat Court , on appeal against the judgment, as stated above, acquitted all the accused through the impugned judgment. 3. Before stating he facts culminating into this appeal, a few admitted facts may be placed on record, i.e., Abdul Karim son of Fateh Muhammad and Muhammad Rafique son of Muhammad Nazir (respondent 9 and 10) were acquitted by all the Courts throxighout. Abdul Karim, alias Godhar son of Muhammad Rasib remained absconder all along after the statement under section 242, Cr.P.C. Sufi Rasib, one of the accused, died during the proceedings before the District Criminal Court and the case to this extent abated. Allah Dad son of Abdul Karim did not appear before any Court throughout. The litigation between the complainant and accused party before occurrence is also Admitted. It is also admitted that all the accused were bailed out by the District Criminal Court on 12.6.1980 and all of them absconded one after the other. Muhammad Saleem, respondent No. 1, appeared for the first time in the Shariat Court on 27.7.1993 and finally bailed out on 23.9.1993. He appeared before the District Criminal Court on 7.11.1993. It is also admitted that statements under section 342, Cr.P.C., of Muhammad Saleem, Aurangzeb, Sakhawat Ali, Shaukat, Abdul Karim son of Fateh Muhammad, Allah Ditta and Liaquat were recorded by the trial Court on 3.8.1988 after taking evidence of Riaz and Khalid Hussain on remand by the High Court. The appeal against the order of District Criminal Court dated 23.11.1994 was filed by Muhammad Saleem, respondent No. 1, only before the Shariat Court and the Shariat Court acquitted all the accused on appeal filed by Muhammad Saleem only. The accused-respondents did not produce any evidence in defence, neither did they opt for it in their statements under section 342, Cr.P.C., when so asked. The accusedrespondents were twice examined under section 342, Cr.P.C., who stated the similar version. 4. The learned Shariat Court has recorded the facts which led to filing of the Challan against the respondents in paragraphs 2 and 3 of its judgment in the following manner :--"2. The facts giving rise to the present appeals briefly stated are that complainant Muhammad Riaz lodged a report Ex. PA on February 21, 1976 to the SHO Mirpur that Noor Muhammad s/o Bhola who was his uncle, had a dispute over a pathway with Soofi Rasab. This dispute was taken to the Court of Additional District Magistrate Mirpur where litigation was going on for the last five years. The case was finally fixed for hearing arguments on February 21, 1976. The accused persons mentioned in the FIR were sitting armed in the office of Muhammad Sharif Tariq, Advocate. As they were found in an angry mood, Noor Muhammad apprehending the trouble asked the complainant party to go away from the Court premises. According to the complainant, he alongwith other members of the complainant party, proceeded towards main thoroughfare. However, Noor Muhammad remained in the Court premises. One Rafique, cobbler by profession, was standing nearby, who informed the accused persons about the movements of the complainant party. On receiving this information, the accused persons followed the complainant party. Soofi Rasab shouted a "Lalkara" thereby instigating the members of tile accused persons to kill the complainant judgment Syed Manzoor Hussain Gillani, Ad hoc J.--This appeal is filed under section 25 of Islamic Penal Laws Act, 1974, calling in question the order passed by the Division Bench of the Azad Jammu and Kashmir Shariat comt on 20.6.1996, whereby the respondents were acquitted of the charges under sections 5, 14 and 15 of Islamic Penal Laws Act read with sections 307, 147, 148, Penal Code. The respondents (except respondents 9 and 10 who are acquitted throughout) were convicted and sentenced to 14 years rigorous imprisonment besides the sentence of Hakumat-e-Addl in the sum of Rs. 25,000/- to be paid to the legal heirs of deceased by the District Criminal Court on 23.11.1994. 2. The above respondents were tried for the above referred offences 'by the District Criminal Court, Mirpur, on the basis of Challan filed by the Police Station Mirpur on 27.7.1976. The District Criminal Court Mirpur, in the first round through its order dated 15.8.1977, convicted respondents, Muhammad Saleem, Shaukat, Liaquat, Aurangzeb, Allah Ditta and Sakhawat Ali for the death of Muhammad Azam deceased and causing injuries to Khalid Hussain and Mahroof. Muhammad Saleem, was sentenced to death and fine of Rs. 5,000/- under section 5 of Islamic Penal Laws Act besides seven years rigorous imprisonment and fine of Rs. 2.000/- for the charges under section 307, Penal Code, and sections 14 and 15 of Islamic Penal Laws Act, while Liaquat, Shaukat, Aurangzeb, Allah Ditta and Sakhawat were convicted to life imprisonment for the offences under section 5 of Islamic Penal Laws Act and sections 148 and 149, Penal Code, with fine of Rs. 2,000/- each. They were also sentenced to seven years rigorous imprisonment for the offences under section 307, Penal Code, read with sections 14 and 15 of Islamic Penal Laws Act with fine of Rs. 500/- each. The file was submitted to the High Court under section 374, Cr.P.C., for confirmation of the death sentence awarded to Muhammad Saleem. Appeal was also filed by the convicted respondents and the State as well against the order of acquittal. The High Court set aside the order passed by the District Criminal Court, Mirpur, on 7.5.1979 and remanded the case for recording the statements of the prosecution witnesses, Riaz and Khalid Hussain afresh,- which were not recorded by the District Criminal Court as visualised by the Islamic Penal laws Act, and for purgation of the witnesses of the prosecution. After remand, the District Criminal Court passed the order on 23.11.1994 convicting the respondents (except respondents 9 an i 10) in the case. The Shariat Court , on appeal against the judgment, as stated above, acquitted all the accused through the impugned judgment. 3. Before stating he facts culminating into this appeal, a few admitted facts may be placed on record, i.e., Abdul Karim son of Fateh Muhammad and Muhammad Rafique son of Muhammad Nazir (respondent 9 and 10) were acquitted by all the Courts throughout. Abdul Karim, alias Godhar son of Muhammad Rasib remained absconder all along after the statement under section 242, Cr.P.C. Sufi Rasib, one of the accused, died during the proceedings before the District Criminal Court and the case to this extent abated. Allah Dad son of Abdul Karim did not appear before any Court throughout. The litigation between the coriiplainant and accused party before occurrence is also .admitted. It is also admitted that all the accused were bailed out by the District Criminal Court on 12.6.1980 and all of them absconded one after the other. Muhammad Saleem, respondent No. 1, appeared for the first time in the Shariat Court on 27.7.1993 and finally bailed out on 23.9.1993. He appeared before the District Criminal Court on 7.11.1993. It is also admitted that statements under section 342, Cr.P.C., of Muhammad Saleem, Aurangzeb, Sakhawat Ali, Shaukat, Abdul Karim son of Fateh Muhammad, Allah Ditto and Liaquat were recorded by the trial Court on 3.8.1988 after taking evidence of Riaz and Khalid Hussain on remand by the High Court.. The appeal against the order of District. Criminal Court dated 23.11.1994 was filed by Muhammad Saleem, respondent No. 1, only before the Shariat Court and the Shariat Court acquitted all the accused on appeal tiled by Muhammad Saleem only. The accused-respondents did not produce any evidence in defence, neither did they opt for it in their statements under section 342, Cr.P.C., when so asked. The accusedrespondents were twice examined under section 342, Cr.P.C., who stated the similar version. 4. The learned Shariat Court has recorded the facts which led to filing of the Challan against the respondents in paragraphs 2 and 3 of its judgment in the following manner :-- "2. The facts giving rise to the present appeals briefly stated are that complainant Muhammad Riaz lodged a report Ex. PA on February 21, 1976 to the SHO Mirpur that Noor Muhammad s/o Bhola who was his uncle, had a dispute over a pathway with Soofi Rasab. This dispute was taken to the Court of Additional District Magistrate Mirpur where litigation was going on for the last five years. The case was finally fixed for hearing arguments on February 21, 1976. The accused persons mentioned in the FIR were sitting armed in the office of Muhammad Sharif Tariq, Advocate. As they were found in an angry mood, Noor Muhammad apprehending the trouble asked the complainant party to go away from the Court premises. According to the complainant, he alongwith other members of the complainant party, proceeded towards main thoroughfare. However, Noor Muhammad remained in the Court premises. One Rafique, cobbler by profession, was standing nearby, who informed the accused persons about the movements of the complainant party. On receiving this information, the accused persons followed the complainant party. Soofi Rasab shouted a 'Lalkara thereby instigating the members of the accused persons to kill the complainant party. In the meantime, accused persons fired at the complainant party. The complainant party took shelter in the shop of Doctor Walayat. The accused party followed them and started indiscriminate firing on them with fire arms. Liaquat accused was armed with 7 mm rifle, Godhar and Allah Ditta iunl pistols with them. Abdul Karim had a 'Danda' whereas the other accused-persons had shot-guns with them. The accused persons, according to the F.I.R., started firing at 11.30 a.m. Muhammad Azam deceased who had taken shelter in the shop of Dr. Walayat, received bullet injury on his head and fell down and soon after became unconscious. Muhammad Mahroof s/o Noor Muhammad received a bullet injury on his abdomen, knee and hands. Khalid Hussaiu, the oilier son of Noor Muhammad, received bullet injuries on his forehead, wrist and legs. However, the complainant was not injured in this incident. According to the F.I.R., the incident was seen by Dr. Walayat, Chaudhry Muhammad Ismail and Soofi Jalal who were present in the shop of Dr. Walayat. It was claimed in the F.I.R. that this attack was the result of common criminal intention which was pre-planned by the accused party to kill the deceased. Muhammad Azam was reported to be in precarious condition and unconscious 3. The above referred F.I.R. Ex. PA was received by the S.H.O. Mirpxir on spot because there is a note of the S.H.O. on this application that he received a telephonic call that there was firing in the Kachehri Chowk. On receiving this information, he alongwith Muhammad Rashid, Head Constable, Muhammad Iqbal and Muhammad Fazal, Constables rushed to the place of occurrence where he recorded the statement of Muhammad Riaz complainant. The accused-persons, according to the proseciition version, soon after the occurrence ran away from the. scene. Muhammad Rafique Nawabi, S.H.O., prepared the injury report, Ex. PO/2 of Muhammad Azam deceased. According to Ex. PO/2, he had two injuries on the left side of his forehead. He was taken to C.M.H. Mirpur for medical examination and treatment, The S.H.O. also prepared inquest, report Ex. PK of Muhammad Azam deceased. He prepared the injury reports Ex. PV/1 of Muhammad Mahroof and Ex. P\V/l of Khalid Hussain and mentioned tin:rein tin 1 bullet injuries, they had received. He also referred these injuri-d persons to the Doctor for their medical legal report, Muhammad Azam later on died in the Hospital whose post-mortem was conducted by Dr. Muhammad Akrain who at the relevant time was posted as bore shot-gun (? 6) was recovered from his house on February 25, 1976 vide Ex. PE. Aurangzeb accused also led to the recovery of 12 bore rifle (P-7) vide Ex. PF. A rifle (P-8) was recovered at the instance of Liaqat, accused from his house -vide Ex. PG. At. the instance of Abdul Karim alias Godhar, revolver (P-10) was recovered. At the instance of Shoukat Hussain a 12 bore gun (P-13) vide recovery memo Ex. PL , was recovered. At the instance of Allah Ditta, accused a 12 bore gun (P-12) was recovered from his house vide Ex. PK. The marginal witnesses of these articles are Nazar Hussain and Muhammad Riaz PWs Nos. 2 and 10. On demand, the licences of these fire-arms were produced by accused persons on whose instance these were recovered. The site plan Ex. PT alongwith note Ex. PT/1 was also prepared on 27.2.1976. 8. After the completion of the investigation the accusedpersons were sent to face trial before the Court on February 27, 1976 where they denied their guilt in their statements recorded under Section 242 Cr.P.C. The prosecution, later on, in support of its case produced Muhammad Riaz, complainant, Khalid Hussain, PW, Mahroof PW, Muhammad Aslam PW, Muhammad Alarn PW, Muhammad Ibrahim, PW, Muhammad Ismail PW, Nazar Hussain PW, Haji Noor Muhammad PW, Said Muhammad PW, Mustafa Khan Kiani PW, Noor Muhammad Khan PW Head Constable, Dr. Ch. Muhammad Akram Khan PW, Ahmad Saeed Khan PW, who partly had conducted . investigation in the case, Muhammad Khurshid A.S.I. PW and Muhammad Rafique Nawabi, S.H.O. PW who recorded the F.I.R. and later on completed the investigation and finalized the challan." 5. We ha«/e heard Messrs Sher Zaman Chaudhry and Abdul Bashir Qureshi, the learned Advocates for the appellants, assisted by Additional Advocate-General and Mr. Abdul Majeed Mallick, the learned Advocate, for respondent No. 1. 6. The learned counsel for the appellants stating the reasons given by the Shariat Court for acquittal of the accused-respondent, inter alia, contended: that all the reasons given by the Shariat Court are flimsy and based on surmises and conjectures; that the occurrence took place in the broad day light without any mistaken identity of the accused-respondents; that F.I.R. was promptly lodged without any delay; that the case of prosecution is supported by seven witness!, two of whom are irjured and Ch. Muhammad Ismail is an independent witness whose credibility is net challenged; that enmity between the parties is proved by the admission of order the subordinate authorities to proceed under law. and at times, they visit themselves to look after and see as to whether the officers subordinate to them perform their duties. The higher authorities are usually approached for prompt and urgent help. In the case in hand, the DSP, as usual, or receiving telephonic information might have visited the place of occurrence which was a very important place of business adjacent to District Offices. His mere visit of the place or sending the injured persons to hospital did not make him a necessary witness when the usual task of investigation of the case was conducted by the relevant/concerned Police Officer, i.e., S.H.O. of the area, neither does the simultaneous visit of DSP and S.H.O., as argued by the learned counsel for defence, mean that F.I.R. was lodged after preliminary investigation. The information to DSP under the circumstances and his visiting the spot and despatching the injured to hospital, ensured expeditious and efficient handling of the matter to help the relevant authorities and minimise the panic spread in the busy Chowk of the area. 10. Besides, the DSP who is anyhow concerned with the law and order situation, even common people reach on spot to render their helping hand under the circumstances without making the liable to be cited or produced as witnesses. Muhammad Ismail, who is alleged to have given the information to DSP was a retired Police Officer having equation with his erstwhile collea'gues for ensuring the prompt action in the matter, used his personal influence under the circumstances of the case, and the perusal of record reveals that it really expedited the matter. 11. Similarly, the reason recorded by the Shariat Court that statement of Muhammad Mahroof was recorded by ADM but he was not cited as a witness, is over-reading the statement, of uhammad Mahroof, for the reason that Mahroof has simply said in his, cross examination that This does lot mean that his state ent was recorded or reduced into writing. Under these circumstances, when the complainant/injured party or anybody 'else witnessing the occurrence is asked by any officer responsible for law and order as to what happened and how the occurrence took place, any reply to the queiy or question does not mean a regular statement. It is simply a narration of facts to a person desirous of knowing it, because of his being concerned with the law and order. Moreover, there was no occasion for ADM to record the statement of Mahrcof, as he was neither holding an inquiry under section 202, Cr.P.C., nor entrusted specially for holding the inquiry under the Inquiries Act. Such a reply or statement by Mahroof, as so held by the Shariat Court is similar in nature as the statement of Muhammad Ismail that 'he'was summoned by Deputy Commissioner in his office where he narrated the whole story to him'. Such a statement does not make the Deputy Commissioner as witness nor the statement of Ismail as a first information report. The learned Shariat Court has given undue and unwarranted weight to these events, which if at all relevant, were so to the extent of interest of District Administration in ensuring that true facts are properly perceived by them for proper implementation of law nd order. These were not the sufficient grounds to hold the case doubtful. 12. The learned Shariat Court has held the prosecution case doubtful alleging discrepancies and improvements in the statements of prosecution witnesses, particularly Muhammad Ismail, and has further held that as their statements have not been accepted to the extent of Muhammad Rafique and Abdul Karim, the acquitted accused, the same are treated as not reliable against the other accused respondents as well. The perusal of the judgment and the trend of the arguments of the counsel for the defence, does not reveal as to which discrepancies bedevil the prosecution version or which improvements in their statements negate the true prosecution version. The parrot like narration of events by all the prosecution witnesses is not the essence of proof nor is one's failure in doing so a discrepancy or contradiction of the prosecution version. The perception, intelligence, eloquence and !Q of all the persons is not equal, similarly, the expression of their perception also varies. The Court is to see the substance of the statement not the minute details thereof, unless the happening of the occurrence is perceived by the Court to be impossible by the statement of the witnesses when read in juxtaposition to each other. The improvement made in the statement, if not belying the version or setting up a counter or different version, does not amount to falsify the case. Improvements contrary to the real version, are different from the substantiation or explanation of the version before the Court vis-a-vis the statement under section 161, Cr.P.C. The latter is cursory statement to enable the Investigating Officer to make the mind as to whether the case is fit for being challaned or not. Any narration of the facts or events in addition to that as recorded under section 161, Cr.P.C., is not an improvement amounting to contradiction and making the version false, neither can such a witness be said as not reliable. If a witness contradicts his earlier statement or makes a statement which is inter se inconsistent or contradicted by the other or others, the same may reasonably be treated as not acceptable and witness as not reliable. No such contradiction or inconsistency is either pointed out nor recorded by the Shariat Court . A part of the statement or event not finding place in statement under section 161, Cr.P.C., but being in the statement before the Court, is not an improvement, but a substantiation of the case, which, if not being contraiy or against the earlier statement, is reliable without any blemishes. There was no ground to hold the witnesses as not reliable or version as doubtful. The other contention of the learned counsel for the respondents that as the statements of the witnesses are not accepted to the extent of Muhammad Rafique and Abdul Karim, acquitted accused, these be rejected as a whole, can also not be accepted firstly for the reason that, the role of these accused-respondents is very benign and does not inspire or categorically reveal that they had any commonality of interest or intention with the rest of the accusedrespondents and secondly for the reason that Court has to sift the grain from the chaff and hold a person responsihle to the extent of his role only on the basis of that portion of evidence which can be legally relied upon. It is held in Muhammad Sharif v. The State [PLD 1978 SC (AJ&K) 146] :- "The conviction recorded by the High Court is also condemned on the ground that the evidence against Abdul Rashid (acquitted accused) when disbelieved, it was not safe to sustain the conviction of the appellant on the same evidence. The maxim 'fal.ius in uno falsus in oiuni bus' (false in one particular false in all) is a dangerous one especially in this part of the country 'for if whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to a story, however true in the main. When main part of the deposition is true it should not arbitrarily be rejected because of want of veracity on perhaps some veiy minor point' (Fields Law of Evidence in British India , 8th edition XL and XLI). Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposition may not be rejected when the main portion of evidence, which rings true can be legally relied upon.""Besides, discrepancies on minor points are not really a proof of case being false, instead these are bound to happen in case of truthful witnesses, parrot like narration of the story can only be expectedof from the tutored witnesses. Minor discrepancies are hound to be there as the power of observation, perception and retention varies in case of each individual. If the evidence on material particular is clear and convincing then misdescription or misstatement on minor points are really of no significance. Similar view taken by the learned Judges of the Supreme Court." 14. The other ground finding favour with the Shariat Court for reversing the'judgment is that best evidence available, i.e., shopkeepers of the vicinity, Dr. Walayat, where the injured persons got injures, Soofi Jalal who was in the shop, were not produced as witnesses, who were natural witnesses, thus, adverse presumption under section 117 of Qanun-e- Shahadat is drawn against the prosecution. It is the celebrated principle of evidence that the best evidence if available has to be produced. But it. is not always obligatory that each and every person witnessing the occurrence or present in the vicinity should be produced in the Court. Only two competent cases. In this case the conduct of Pordil Khan is in keeping with the general pattern of behaviour in the society. But that should scarcely be a reason to doubt the veracity of the three Police fficials who appeared as the main witnesses to the incident, or the capture of the petitioner as he was trying to flee from the spot. Rather their grit and the sense of duty, is praiseworthy." 15. In the cases referred by the learned counseWor the respondent on this point, i.e., Sikandar v. The State [PLD 1968 SO 17]. Wasimullah v. MirzaAli [PLD 1963 SC 25] and Thoba v. The State [PLD 1963 SC 40], the withholding of the best evidence was held fatal when ik me of the eye witnesses was produced and those produced were interested and partisan and not supported by strong corroborative evidence. The case is otherwise here, where the injured persons whose presence was natural and an independent witness, Ismail, whose testimony rings unrebutably true, viewed from any ngle, are produced, coupled with the recoveries of licensed fire-arms at the instance of accused-respondents. If the shopkeepers of the vicinity or Dr. Walayat had anything other to say than the prosecution story, or if the defence had any other version of the occurrence, they has it not produced these best witnesses and refused to adduce defence evidence in their statement under section 342, Cr.P.C., twice? The adverse presumption can otherwise also be drawn, in view of the proven prosecution case, when the defence was afforded the opportunity, but refused, and had the occasion. but not availed ! 16. The learned Shariat Court, recording that, empties and two live cartridges alongwith revolver recovered from the shop of Dr. Walayat were not sent to Fir-arms Expert, hence the adverse inference is drawn against the prosecution that the empties recovered were not fired by the revolver nor the live cartridges could be fired from it. The learned Shariat Court has also drawn adverse inference against the prosecution on the ground that the other fire-fp-ms which were recovered at the instance of accused persons were not sent to Fire-arms Expert for his opinion. 17. The entire case of the prosecution depends upon the eye witnesses account not upon the circumstantial or corroborative evidence. In the presence of witnesses two of whom are injured and others having personally seen the accused attacking upon the complainant party, the opinion of the Fire-arms Expert or Ballistic Expert etc. matters least. The opinions of Fire-arms Experts, Ballistic Experts and Chemical Examiners is necessaiy in the case when the occurrence is not witnessed by the eye witnesses and the case entirely depends upon circumstantial evidence. he opinions and reports of these experts are always to support, or corroborate the other evidence if direct evidence is not available. In the case in hand, the occurrence did not require any corroboration as the direct vidence itself was available. It was the case of broad day light firing in the very busy Chowk witnessed by the prosecution witnesses and all others, who could be produced in defence by the respondents if the matter was otherwise. The following dictum from the case of Muhammad Hanifu. The State [PLJ 1982 SC (AJK) 212] may be advantageously reproduced : "10. Due consideration was given to the arguments. Whether a witness is to be believed depends on the circumstances and facts of each case. Assessment of interested and partisan evidence is, of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount, importance is to see whether the witness is a natural witness and if the Courts come to the conclusion that the witness is a natural witness then in the case of testimony of such a witness, law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness. Evidence of such a witness, however, is required to be scrutinised with great care and caution in order to eliminate any possibility of doubt and Courts must also determine as to whether or not he is a witness on whose words implicit can be placed without independent corroboration. Nevertheless, no inflexible rule can be formulated in this behalf. In such case the evidence of witnesses has to be evaluated on merits and if it rings true in the context and circumstances of the case, free from any fault and uncontradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration. In a case where the statement of an interested but natural witness can be believed with implicit faith without difficulty, corroboration is not to be insisted upon as a rule of Jaw or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased and inimical towards the accused. The safe administration of criminal justice demands that Court should draw its own inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party. It, therefore, follows that where ocular evidence is reliable and satisfactoiy, conviction in law can be recorded on such evidence alone without any further corroboration. Here in this case due scrutiny of the statements of eye witnesses of truth and conviction can safely be .recorded on the basis of their evidence without any further corroboration." 18. The occurrence from the prosecution story as well as the record available on the file of the Court does in no way seem to be doubtful or concocted. The presence of the parties on the day of occurrence in view of their criminal and civil litigation in the Courts is established on record in view of Exs. PZ-1 and PZ-2, the copies of interim order sheets of the Courts seized with the cases.. It is customary in our society that the persons involved in litigation and their aids and associates attend the hearings in the Courts so as to express sympathy with the party with whom they side with. The case between the parties was fixed for the same day in which most of the complainant and prosecution witnesses were a party. Mohammad Aslam being complainant in the case could also not be expected alone in the Court as usual in our society, and as per record, all the accused-respondents are his closest. Similarly the complainant party and their witnesses are inter se r related and in view of their proceedings before the Court on that date, their presence is not doubtful, neither can their eye version account of the occurrence be deemed as doubtful. In the presence of these circumstances, any circumstantial evidence, like Fire-arms Experts etc., does in no way affect the truthfulness of the story of the prosecution. Preferring the direct evidence over the expert or confirmatory evidence it is held in the case of Yaqoob Shah v. The State [PLD 1976 SC 53] : "As to whether the evidence of the Ballistic Expert can outweigh the direct evidence of the two eye-witnesses, the learned Judges have given cogent reasons from not accepting the expert's evidence. According to the learned Judges, his examination of the case was not scientific enough to inspire confidence. It is well established principle, that expert evidence, may it be medical or that, of a Ballistic Expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. But if there is direct evidence as in the instant case which is definite, forthright and at the same time creditworthy, confirmatory evidence is not of much significance. It cannot, at any rate, outweigh, the direct evidence unless it for any reason deficient in quality. This case, in our opinion is not of that kind." It is held in the case of Muhammad Sharif v. The State [PLD 1978 SC (AJ&K) 146]: "Where ocular evidence is reliable and satisfactory conviction in law can be recorded on such evidence alone without any further corroboration." The learned Shariat Court has held the prosecution story doubtful for this reason as well that as to how Muhammad Riaz was let alive and escaped uninjured when he was in the shop of Dr. Walayat, where Mahroof and Khalid were injured by the accused party. The prosecution is imaginary. Whatever the , accused-respondents could do, they did, i.e., they indiscriminately started firing. If anybody in the surrounding is left uninjured it is good luck to him. The possibility of accused respondents having assumed after indiscriminate firing that everybody in the shop has died, can also be there and it may be for the sake of avoiding the dangei < !' being attacked back by the victim party or for avoiding the arrest, that they might have left the place without being sure that everybody is dead which culminated in Riaz's being left alive. It is also on record that Riaz is not the only survivor who escaped from the firing of respondents' party, but Dr. Walayat and Soofi Jalal also escaped uninjured. The nature had also to play its role to bring the assailants to book by keeping someone alive to narrate the occurrence. 20. The Shariat Court without anything being on record lias propounded the idea that occurrence might be the outcome of cross-filing. which fact according to the learned Shariat Court , was concealed by the prosecution. It is not the case of any part that there was a cross-firing between the parties or that the complainant party was also armed or j assailant. There is total denial of the occurrence by the accused, while categoric and affirmative accusation against the accused-respondents by the I complainant party. The assumption of cross -firing by the Shariat Court is j totally unwarranted. Had there been a case of cross-firing, the accusedrespondents might have also registered a counter case as usual in such eventualities. This ssximption is engineered without anything on record and even without any counter version by respondents. 21. Another reason based on the arguments of the Advocate appearing for the accused-respondents which found favour with the Court ik that some third party might have fired the stray bullets which aused dear]; and injuries to the complainant party, this assumption is also not borne out from the record. Similarly, the argument that medical report reveals a head injury with blunt weapon upon deceased does not mean that there was no firing. The injury can be caused by a fall been after being hit by bullet, and this injury is not the cause of death. These are rightly said as conjectures and surmises by the learned Advocate for the appellants which are made the basis for averting the prosecution stoiy. The doubts, benefits of which have to be given to the accused party, must be reasonable and bonafide oubts going to the root of the prosecution case. The boubts created or assumed on j F the basis of one's own imagination do not falsify or belie the otherwise ! proved-case. Justice A.R. Cornelius (Chief Justice) in the case Siraj Din i\ \ Kala and another [PLD 1964 SC 26] held that "Doubts should be doubts arising out and inhering in evidence and circumstances of case and not doubts of artificial character residing more in minds of Court rather than in matters established by evidence. ' 22. The learned Shariat Court's proposition of drawing adverse inference for the failure of complainant party to report the matter to the Police when they saw the accused party sitting in the office of Chaudhry Muhammad Sharif Tariq, Advocate, in an angry mood is also against the practical behaviour of every one including ourselves, and then to blame others for their failure to become the informer. It is no doubt the duty of eveiy good citizen to report to the Police or administration about the commission of an offence or likelihood ofany such commission, but is simply a pious wish incorporated in the law books. For the fear of being dragged to become a witness or bear the brunt of the accused party or at times to becomes itself an accused, eveiy body avoids fulfilling the pious wish of Legislature. This ground could hardly be made a reason for casting doubt upon the prosecution story. The learned Shariat Court has given weight to speculative assumptions, but not taken notice of the fact that expect the acquitted respondents, rest were convicted twice by trial Court. This, no doubt, does not give rise to presumption of the respondent's being guilty, but the appreciation of evidence by the trial Court, which had the occasion to conduct the trial at the very station of occurrence, observe the conduct of the witnesses and accused amongst the inhabitants of the place of occurrence where one can hardly speak against true facts and the same conclusion twice drawn by the trial Court cannot be simply brushed aside and ignored by hypothetically perceived critical analysis in an artificial manner. The appellate Court is obliged to give due weight to the findings of the trial Court and must have sound reasons to disturb its findings. 24. The Shariat Court has ignored the other aspects of the case as well and not even hinted towards them even though the record of the case was self-speaking, e.g., the prompt lodging of the F.I.R., absconsion of the accused, their remaining fugitive from law after obtaining concession of bail and not appearing before the Court till now, except respondent No. 1, who also appeared after about twelve years etc. In the following cases, it is held that where the F.I.R. is lodged without loss of time, the same has to be treated as a genuine document, thereby entirely eliminating probability of falsification or false implication. Reference, in this behalf may be made to Yaqoob Shah v. The State [PLD 1976 SC 53], Khalil Ahmad alias Khali I and another v. The State [1975 SCMR 442] Muhammad Ashraf v. The State [NLR 1989 Criminal 424]. 25. Though the abscondance by itself is no evidence of involvement the absconders in the occurrence, but the same provides sufficient corroboration of the ocular account especially in this case, where the espondents absconded after obtaining release order on bail and never appeared 'thereafter except respondent No. 1: while the Shariat Court not only acquitted him, but all others who had not even filed the appeal, were 'mgiVT^e iYoicn \aw anJv are stm so. The "iv\a\ V.ouvV c\t\ noY pmilsYi ^etft fot being fugitive or for their asLcom/ajice, 'hut after recording- the entire prosecution evidence in the second round of trial and after recording the statements of accused secondJ;ime under section 342, Cr.P.C., on 3.8.1980. The trial Court kept case against them pending after their abscondance, though it was not obliged to do so, as in their statements under section 342, Cr.P.C., all of them refused to lead defence evidence and only judgment remained to he announced. The fugitive from law loses most of the ights under law, though no right was left to he conferred on them after their statements under section 342, Cr.P.C The leading case on the point of right of absconded accused or the fugitive from law, followed by right of other authorities, is the case of Muhammad Sachq v. Muhammad All [PLD 1981 SC 265]. The following may he reproduced from the above leaduigjudgment: "There is considerable weight in the argument that when a convict becomes fugitive before filing petition tor leave to appeal, his petition itself would not be properly constituted This can be noticed as one line of easoning in the case of Gul Hussain- The second proposition submitted by the learned counsel is also correct, because it flows from the first one. If a convict after tiling a petition becomes fugitive and does ot urrender, he deprives himself of the relief claimed in the petition. Similarly, there would be no difference if he absconds after obtaining special lease to appeal, or aftei obtaining a bail order. It is not possible to agiee with i. Zafar that, in this situation the abscomler can get the benefit. of his appeal being kept pending sine die till he smienders Nor will there be any justification foi the proposition that if there are more onvicts/appellants, the appeal of the absconder should be separated in case he cannot be benefited on the hearing of the appeal of Ins co-appellant. There is no basis or principle for adopting this uggestion as a normal course by this Court,; and if that is done.- it would be placing premium on the negative conduct of the absconding appellant if he is allowed to remain fugitive from justice and also enefited by deciding his appeal in his favour when hearing the appeal of his co convict Such a ' course, if adopted as a normal routine, would not. Only encourage abuse of process of this Court, but would also disturb the fabric of administration of justice at the appellate stage. However, there is considerable force in the argument, of Mr. Zafar that an acquitted accused cannot be convicted by the Supreme Court without, a decision on merits, justifying the reversal of judgment of acquittal. And although in an appeal against acquittal it would not be of an acquitted accused who is on bail, it is not so for a fugitive. It would be the negative of the principles enunciated by this Court (that a fugitive from justice loses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while he remains fugitive, he is allowed to be represented by another person so that his plea might be heard. In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel. It is a different matter if the court for its own benefit seeks assistance from one or the other counsel appearing for the parties before it, including a co-accused of the absconding respondent, or from any other counsel, but the absconding accused would not be entitled, as of right, to a hearing. Reliance of the learned counsel on the provisions contained in section 512, Cr.P.C. is of not much help in this behalf. While the present controversy relates to the hearing of or otherwise determination of an appeal, section 512 Cr.P.C. deals with trials. Moreover, the said provision is not attracted to the form and procedure of this Court. It would not be possible at all to adjourn an appeal against acquittal even against a single acquitted accused/absconding respondent, for an indefinite period, although the office of the Court would make efforts to secure his surrender/arrest in obedience to the process of the Court, for a reasonable period before fixing the appeal for hearing; and if he remains fugitive, the Court would proceed to determine the appeal in his absence. If after examination of the case the acquittal merits to be reversed, there would be no impediment to decide the appeal accordingly, but in case the judgment of acquittal merits to be maintained, the same would not be reversed on account of the abscondence of the accused/respondent. This would apply to both the situations whether the appeal is against one acquitted or more. The submission of the learned counsel that while dealing with the controversy the Court should keep in view its power to do complete justice is undoubtedly weighty, but as already indicated, this power is concomitant with the power of the Court to pass such orders as are necessary for the ends of justice and process of the Court. These aspects of rendering justice cannot be visualized and considered in isolated water tight compartments. Thev have to be put in juxtaposition because they react upon each other and that is the only course to keep the stream of justice flowing uninterrupted and unsullied. he principle laid down in the cases of Chan Shah and Gul Hassan do not in any way merit review. Rather, some of them need to be reiterated and reaffirmed: The Court wolild not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is essential condition of the administration of justice; that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, would afford opportunity to him. through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure, so far as it is within his power, the appearance of the accused before the Court on the first day of the hearing and, thereafter, if so advised, to seek an order for bail or suspension of sentence, if it is an appeal by the convict. Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hussain's case: if a person is fugitive from justice and is in the state of abscondance, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in-, effect, in view of the principles laid down in the case of Chan Shah, is also a contemner and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374 Cr.P.C. if the convict decamps, he thereby forfeits the right of audience and the High Court would in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence the confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. It may he clarified here that in the case of Gul Hassan leave to appeal having been obtained on the basis of an incompetent petitioner for leave to appeal, it was thought advisable to adopt, the coxirse of rescinding the leave granting order. Applying the principles which are now being reiterated and reaffirmed, it would not be necessary in all the cases to adopt the same procedure, as the Court would be competent when such an occasion arises, to dismiss the appeal itself." This case is followed by the cases of Habibur Rrlunan v. The State [1992 SCMR 1625], Mst. Rohida v. Khun Bahadur [NLR 1992 SCJ 396] and Saiful Malook v The State [NLR 1992 SCJ 695]. The District Criminal Court was right to decide the case on merits in the absence of the decamped accused in the similar way as the High Court is competent to confirm the death sentence in view of above dictum of law. 26, The Shariat Court, without looking in or dilating upon this aspect of the case, acquitted all the accused-respondents including those who had tiled no appeal. The powers of the appellate Court to acquit or discharge an accused can be exercised only with regard to a person who has preferred an appeal against his conviction and sentence. The words of section 423 (1) that 'after perusing such record, and hearing the appellant or his pleader, if he appears ..... ..." are clear enough to suggest when read with section 423 (1Mb) that only an appellant-convict has the right of hearing, and acquittal or discharge depends upon the merits of the case if appeal filed by him. We may refer here the case In re. Jadayandi and another [AIR 1963 Madras 38. "It is clear from the wording of S. 423 (1) (bl that the powers of the appellate Court to acquit or discharge or order retrial could be exercised only with regard to a person who has preferred an appeal. A Sub-Divisional Magistrate has, therefore, no jurisdiction in an appeal preferred by some of the accused to set aside the conviction also of the co-accused who have no preferred an appeal and order their retrial." The order of a Court of competent jurisdiction is an order enforceable under law, even if -it is voidable, which has to be determined by a competent higher Court on appeal or revision if filed within limitation. It will be proper to refer to the case of Ghularn Hussam v. Member Board of Revenue ( 1995 SCR 355): "We have heard the respective contentions raised by the learned counsel for the parties and perused the record made available with care. In our view the findings recorded by the High Court as well as by the Member Revenue Board that in cases of illegal orders, the consideration of limitation is immaterial, is not warranted by law. This Court, has held in various cases that even the void orders are subject to the law of limitation provided the same are challenged by an aggrieved person within a reasonable time. Out of many cases it is deemed expedient, to quote here the case ofMirza Lai Hussain v. Custodian of Evacuee Property and others (1192 SCR 214), wherein it was opined by this Court at page 221 .that "these judgments do not lays down the proposition canvassed by Ch. Muhammad Sharif Tariq that there is no limitation so far as a void order is concerned. However, it is not a universal rule which may be necessarily applied in eveiy case without regard to the consequences. While this rule would not apply to cases where a person who is adversely affected by such an order does not come to know of its existence and has had no occasion to challenge that order. There is no warrant for the conclusion that a void order should be left unchallenged. If a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time the Courts may validly refuse to ignore it on the ground of laches, acquiescence or estoppel." 27. Judgment of the Shariat Court to the extent of the convict-respondents not filing the appeal and remaining continuously fugitive from law is, therefore, abuse of process of Court giving premium to the fugitives for default. The question as to whether the fugitives-respondents can be convicted in their absence by a Court is left open to be decided, if at all, the same falls for determination in some appropriate proceedings. As this point is neither taken nor argued, we, therefore, "refrain from commenting upon it. For the above stated reasons, we are satisfied that the reasons recorded by the learned Judges of the Shariat Court in allowing the appeal are not supported by record and law and the conclusion drawn from the appraisal of prosecution evidence is not in consonance with the true perspective of administration of criminal justice. The appeal is accordingly accepted, judgment and order of the learned Shariat Court dated 20.6.1996 is set aside and that of the trial Court dated 23.11.1994 is restored. Muhammad Saleem, respondent No. 1, shall be forthwith taken into custody and committed to jail for undergoing the terms of his imprisonment. ft (K.K.F.) Appeal allowed.
PLJ 1997 SC (AJK) 248 PLJ 1997 SC (AJK) 248 Present: SARDAR SAID MUHAMMAD KHAN. CJ. KHANI ZAMAN and another-Appellants versus i: iSTODlAN OF EVACUEE PRuPERTY, AZAD JAMMU AND KASHMIR GOVERNMENT, MUZAFFARABAD and another-Respondents Civil Appeal No. 28 of 1996, deckled on 13th January, 1997.= On appeal from the order of the High Court dated 7-4-1996 in Writ Petition No. 69 of 1992). :i) Administration of Justice-- Court has to administer justice according to law-If an order has been passed in violation of law it cannot foe said that interest, of jxistice would be served if order is not disturbed. [P. 257] B ui) Azad Jammu and Kashmir Rehabilitation Act., 1974-- S. 2(d)-Allotment of evacuee property-Mere fact that a person is in unlawful possession of evacuee property does not make him a deserving persor ?or allotment in deroge':on of conditions laid down in law. [P. 257] C (iii) Limitation-- Limitation-Cancellation of-Challenge to-Where Custodian had ondoned delay after giving due consideration to circumstances of case, such finding would not warrant interference Constitutional jurisdiction. [P. 251] A Pakistan (Administration of Evacuee Property (Act (XII of 1957)-- S, 43(6) [as adapted in Azad Jammu and Kashmir] custodian has wide powers to set aside any order which is violative of law, whether case involves merely question of law, question of fact or mixed question of law ,;vJ fact. ' [P. 257] D Sardar Rafqiue Mahmood Khan, Advocate for Appellant. Syed Nazir Hussain Shah Kazmi Advocate for Respondents. Date of hearing : 8-1-1997. judgment This appeal has been directed against the judgment of the High Court, dated 7-4-1996, wherehy the writ petition filed hy the appellants, herein, was dismissed. 2. Previously, this appeal was heard hy the Bench consisting of Mr. Justice Basharat Ahmad Shaikh and Mr. Justice Muhammad Yunus Surakhvi but a difference of opinion has arisen between them and, thus, this appeal has been placed before me for hearing and disposal as envisaged by the relevant provisions contained in the Azad Jammu and Kashmir Interim Constitution Act, 1974. 3. The brief factors of the case are that the evacuee land measuring 22 Kanals, 6 Marias , situated in village Phagal Bandi, Muzzafarabad, was allotted to the appellants as local destitutes'. Previous to hat, the land in dispute was allotted to one Muhammad Sarwar son of Qamar Ali by the Rehabilitation Commissioner on 12-12-1968. Hidayatullah, the father of the present appellants, challenged the allotment made in favour of Muhammad Sarwar by way of revision petition before the Custodian who, vide his judgment dated 1-4-1972, set aide his allotment and remanded the case to A.R.C. with the direction that he should make a thorough probe about the entitlement of contesting parties and one Muhammad Hussain who was also a claimant, to the allotment of the land in question. Consequently, he A.R.C. issued notice to said Muhammad Hussain but he did not turn up and, thus after recording in the statements of the appellants he made allotment in their favour. It may be stated here that when the Custodian remanded the case for inquiry vide his judgment dated 1-4-1972, the appellants were not party to the proceedings before him. From the perusal of the record it transpires that after remand of the case by the Custodian, Hidayatullah, the father of the appellants, made an application before the A.R.C. that as he was in the possession of the land in dispute, the same may be allotted to him as an 'old tenant'. On this application, a report was sent for from the 'Patwari Halqa' who reported that the allotment of Muhammad Sarwar, the previous allottee, had been cancelled by the Custodian nd that Hidayatullah, applicant, was entitled to the allotment as he was in possession of the same; however, the Patwari also mentioned in this report that Hidayatullah also owned some immovable property in the village. Subsequently, Hidayatullah, the father of the appellant, made another application before the A.R.C. that as on the spot the land was cultivated by his sons, the appellants, it may be allotted to them. Consequently, the A.R.C. of the time, vide his order dated 5-1-1982, observed that although in the lifetime of their father, the appellants, herein, were not entitled to the allotment yet he allotted the land to the appellants on the grounds that they were in possession of the land and being a barren land, it had no utility for any other claimant. Sultan Mahmood, respondent, challenged the allotment of the appellants by filing a review petition before the Custodian alleging that he being a refugee was entitled to the allotment of the land in question and that the appellants' father owned more than 72 Kanals of land and. thus, they were not entitled to the allotment of any evacuee land as destitutes. The learned Custodian, vide his judgment dated 27-6-1992, accepted the review petition filed by Sultan Mahmood observing that the order of the allotment of the appellants was violative of law because the appellants did not satisfy the conditions precedent for the allotment as contained in the Azad Jarnmu and Kashmir Rehabilitation (Amendment) Act, 1974 (hereinafter shall be called the amending Act); the Custodian observed that the appellants were not members of a separate family' because their father was alive and owned more than 72 Kanals of the land. Thus, the learned Custodian caualled the allotment of the appellants as well as their certificate of proprietary rights. He directed that the land in question might be allotted to any other deserving person., The appellants filed a writ petition in the High Court challenging the order of the Custodian but the same was dismissed by the High Court. It is against the judgment of the High Court that the present appeal has been preferred. 4. I have heard the arguments and gone through the file. Sardar Rafique Mahmood Khan. Advocate, the learned counsel for the appellant's has argued that the Custodian has committed an error in holding that the appellants were included in the family of their father and were not entitled to the allotment mere because their father owned more than 72 Kanals of land. He has further argued that the order of allotment in favour of the appellants could not be disturbed because it was made after thorough inquiiy by the A.R.C. in pursuance of the order of. the Custodian. The learned counsel has further submitted that the appellants not only got their statements recorded before the A.R.C. to the effect that they were members of a separate family and were not included in the family of their father but they also swore an affidavit to the effect that they had no otlver source of adequate income, as envisaged in sub-clause (d) of section 2 of the amending Act. The learned counsel has further submitted that there was no rebuttal of the aforesaid facts and, thus, the allotment order in favour of the appellants and the proprietary rights order in their tavour did not suffer from any legal infirmity. The learned counsel has also argued that the review petition filed by Sultan Mahmood was hopelessly time-barred and should have been dismissed on this sole ground. 5. In reply, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that in view of the amending Act, it cannot be said that the appellants whose father was alive and owned more than 72 Kanals of land, could be regarded as a 'destitute' within the meaning of the relevant law or they onstituted a separate family from the family of their father and, thus, were entitled to allotment as destitutes. The learned counsel has also controverted the arguments of the learned counsel for the appellants that the review petition tiled by Sultan Mahmood entailed dismissal as being time-barred. He has submitted that Sultan Mahmood was not a party before the A.R.C. in allotment proceedings and, the Custodian rightly condoned the delay; and the condonation of delay cannot-be disturbed in the writ jurisdiction. 6. I have given due consideration to the arguments raised at, the Bar. The first question which needs resolution is as to whether, the review petition filed by the respondent. Sultan Mahmood. entailed dismissal because it was time-barred. It may be stuted here that, this point, was also raised before the High Court in the writ petition but the same was repelled on the ground that the delay was condoned by the Custodian and his findings cannot be disturbed in exercise of the writ jurisdiction in he circumstances of the case. The learned counsel for the respondents has also referred to a case of this Court reported as Bashir Ahmad Khan v. Custodian of Evacuee Property, Muzaffarabad (PLD 1992 SC (AJ&K) 49K wherein it. has been held that where the delay in filing an appeal, revision r review etc. has been c ndoned by the Custodian, such condonation order is not normally interfered with in exercise of writ jurisdiction. In the aforesaid authority, the concerned aggrieved person as also not party to the proceedings wherein the allotment was made, as in the instant case. The perusal of the judgment of the Custodian reveals that he has condoned the delay after giving due consideration to the circumstances of the case and, thus, I see no reason to differ with him. Therefore, the contention of the learned counsel for the appellant that review petition entailed dismissal as being time-barred is repelled. 6-A. The next question which needs resolution is as to whether the appellants, whose father. Hidayatullah. was alive, were included in his family or they were as separate family. It may be stated here that the word 'family' has not been defined in the relevant law. It is laid down in the amending Act that a family which owns 30 KanaLt or more land, cannot be regarded as 'destitute' so as to claim the allotment of an evacuee property. The perusal of the case-law shows that word 'family' is defined by judicial authorities in the context of the relevant statute in which the same was used. Thus, no hard and fast rules can be laid down as to what would constitute a 'family'. The meaning of the word 'family' are to be assigned in view of the provisions of the relevant statute after ascertaining the intention of the Legislature. The mere fact that a person has married and has children itself is not sufficient to hold that the constitutes a separate 'family' within the meanings of the amending Act. The question as to whether one is included in the family of his father or for that matter in the family of some other person would depend on the circumstances of each case and must be interpreted with reference to the statute in which it has been used. It would be expedient here to refer the following authorities on the point :-- In case reported as Govind Das v. Kuldip Singh (AIR 1971 Delhi 151), has been observed as under :- "7. The word 'family' has not been defined in the Act and we fell advisedly so. The concept of what onstitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ides of person constituting the society and the religious and socioreligious customs of the community to which such persons may belong. In the case of Rarn Pershad Singh v. Mukand Lai (AIR 1952 Punj. 189), J.L. Kapur, J. held that in a given set up of social structure even nephews could be regarded as members of a landlord's family within the meaning of section 9(1)(E) of the Delhi and Ajmer Merwara Rent Control Act, 1947 9 .......................................... We are in respectful agreement with the observations in all the decisions and we have noticed above and would hold that in a given set of circumstances and according to the particular structure of a society a family may be constituted of persons who may not in an another given set of circumstances be regarded as being members of one family." In case reported as Asha Bibi v. Nabissa Sahib (AIR 1957 Madras 583), it has been observed as under :- The term 'family' will he construed in the sense of 'family' as used in section 3(A) of the Mussalman Wakf Validating Act, 1913, which was intended to be used in veiy large and extensive sense. The policy of that Act was to validate the creation of Wakf in perpetuity in favour of persons who happened to be the members of a family according to the popular acceptance of that term. Technically the word 'family' may be taken to mean the collective body of persons who live in one house and under one head or manager; and includes within its fold a household consisting of parents, children and servants and as the case may be, lodgers or boarders. Under the Mussalman Wakf Validating Act, it is intended to be used in a broad and popular sense.Popularly, however, the term indicates persons descended from one common progenitor and having a common lineage. It will take in both agnates and cognates and relations by blood or marriage. The nephews of the settlor are in this sense the members of his family. Similarly daughter-in-law, the son of a half-brother or the son of a half-sister." In Syed Abdul Fazal v. S. Sayeeda Khatun (PLD 1963 Dacca 343), it was observed as under :- "14. It may be contended that the persons who may not be the children or descendants of the Wakif might be members of the family. The dictionary meaning of the word 'family' is 'the household, or all those who live in one house under one head including parents, children; servants, and descendants of a common progenitor'. Hence we find that the word 'family' is more comprehensive than a genus. The word 'family' also means all descendants of common ancestor, house and lineage. So, in a family there might to person not related to the Wakif, persons who are distant kindred who cannot be called descendants. So, if the provision is made for the maintenance of the family which includes person other than the children and descendants of the Wakif, it will be valid, but in the present case the heirs of the descendants of the Wakif have been made beneficiaries who may be not at all the decendants of the Wakif or members of his family." In case reported as Muhammad Azain Khan v. Hamid Shah (AIR 1947 All. 137). It has been observed as under :- "6. If, however, it is found that the document in dispute constituted a Waqf al-iil-aulad, it will have to be considered whether the provisions of Act 6 (VI) of 1913 which validated such a Waqf had been complied ith. It has been argued that by the said Act it was made lawful for a person professing the Musslainan faith to create Waqf which in all other respects was in accordance with the provisions of the usslman Law for the maintenance and support wholly or
partially of his family, children or descendants; and that no Waqf could be created in favour of the nephews as they did not come within the descriptions of the family, children of descendants. The matter is, however, concluded by a Bench decision of this Court in 52 All 368, where it was held that the word 'family' in section 3(A), Mussalman Waqf Validating Act was not restricted to only those persons residing in the house of the settlor for whose maintenance he has mainly responsible, but that the word was intended to l)e used in its broad popular sense; person descended from one common progenitor and having a common lineage, e.g., nephews of the settlor and their descendants, were included in the term, irrespective of whether they lived in the settlor's house, or whether the settlor was responsible for their maintenance. I am in fully agreement with the view that is expressed and do not find any force in this argument." (Underlining is mine). In case reported as Alcy Hassan v. Toorab Hussain (AIR 1958 Patna 232), it was observed as under :- "(3) The expression 'family' in section 4 of the Partition Act must be construed in a wide sense and ought not to be restricted to persons tracing their descent from a common ancestor. There is nothing in the language or the context of section 4 of the Partition Act to suggest that the term 'family' was intended to be used in a very narrow and restricted scene. The principle underlying the section appears to be to. maintain the integrity of a body of people knit together by the tie of common residence. The expression 'family' has been defined in the Oxford whi'' Dictionary, Volume I, 1936 Edition, in these terms 'The body of persons who live in one house or under one head including parents, children, servants etc. The group consisting of parents and their children whether living together or not; in wide sense all those who are nearly connected by blood or affinity'," 7. It is evident from the authorities referred to above that while assigning the meaning and scope to word family', the provisions of the relevant statutes and policy intended by t'he Legislature to be ollowed is to be kept in mind after the amendment in the Rehabilitation Act, certain categories of person other than refugees are entitled to the allotments of evacuee property subject to the conditions laid down in the law; a 'destitute' is also entitled to seek the allotment of an evacuee land. The definition of 'destitute' as in clause (d) of section 2 of the amending Act is as under :-- "(d) 'Destitutes' means the persons who being cultivators either own no land at, all or have less than 30 kanals per family and have no other adequate source of income, but would n t include ccupancy tenants." 8. In the instant case, it is to be sent as to whether a "thorough inquiry" was made by the A.R.C. to ascertain that the appellants were 'destitutes' within the meanings of law; whether they were included in the family of their father or they were a separate family; and whether they had some other adequate source of income. From the perusal of the relevant order of the A.R.C. it appears that he has given no finding on the point whether they had any other adequate source of income; on the basis of statements of the appellants, he opined that they were not included in the family of their father, but were a separate family. But all the same he expressed the view that in lifetime of their father the appellants were not entitled to an allotment of evacuee land. However, despite that the learned A.R.C. allotted the land in question to the appellants on the grounds which are not recognized, by the relevant law. It would be expedient here to reproduce the relevant paragraph from the order of the learned A.R.C, dated .5-1-1982 - recognized by law. It may also be observed here that even if we ignored the factum of giving specific findings on the point, the fact remains that except the sole statements of the appellants and their affidavit, no independent witness was examined by them to prove that they had no other source of adequate income and that they were not included in the family of their father. The mere fact that the appellants are married and have children would not itself constitute them a separate family; this may be one of the factors to hold that they were not included in the family of their father. Thus, there is not conclusive proof of the fact that they were a separate family and the order of allotment in favour of the appellants was made on flimsy grounds which are not recognized by law. 9. The learned counsel for the appellants has also submitted that the review petition should have been dismissed because the order of A.R.C. could not be vacated by the Custodian in exercise of review jurisdiction; it could be set at naught only if justice so demanded. It may be observed here that a Court of law has to administer justice according to law. If an order has been passed in violation of law, it cannot be said that the interest of justice would be served, if order is not disturbed. As the appellants have not proved that they were 'destitutes' within the meaning of the relevant law, they cannot be heard saying that the cause of justice wold be better served if the orders made in their favour remain intact. It may also be stated there that in 'Khasra GirdawarV Hidayatullah, the father of the appellants, who has been previously litigating with Muhammad Sarwar, the previous allottee, is shown in the possession of the land in dispute. It was only in the year 'Kharif, 1981 that the appellants were shown in possession of the land. It appears that the entry in the Revenue Record was manoeuvered for the first time so as to facilitate the allotment in favour of the appellants. Even otherwise, the mere fact that a person is in unlawful possession of an evacuee property, does not make him a deserving person for the allotment in derogation to the conditions laid down in law. The learned counsel for the appellants did not controvert the proposition that while exercising the x review powers under subsection (6) of section 43 of the Administration of Evacuee Property Act, 1957, the Custodian has wide powers to set aside an order which is violative of law; whether the case involves merely a question of law, a question of fact or mixed question of law and fact. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. (K.K.F.) Appeal dismissed.
PLJ 1997 SC (AJK) 258 PLJ 1997 SC (AJK) 258 Present: BASHARAT ahmed shaikh and muhammad yunus surakhvi, JJ. Raja MUHAMMAD ASHRAF KHAN KAYANI-Appellant versus AZAD GOVT. OF STATE OF JAMMU AND KASHMIR etc.-Respondents Civil Appeal No. 34 of 1995, dismissed on 17.2.1996. On appeal from judgment of Service Tribunal dated 19.2.1995 in Service Appeal No. 593 of 1992). Courts & Laws Code Act, 1949-- -S. 30(2) read with S. 5 and Azad Jammu and Kashmir Service Tribunals (Procedure) Rules, 1976, Rules 8 and 28-Seniority determined by High Court-Appeal against-Dismissal of-IInd Appeal- hether non impleadment of High court before Service Tribunal entailed dismissal of appeal-Question of-Instead of impleading Judges of High Court, appellant impleaded Registrar of High Court as one of espondents- Registrar of High Court cannot be a substitute for High Court itself-Rule 8 appears to be a mandatory rule and its violation entails dismissal of appeal-According to Rule 8 it was a fundamental equirement that appellant should have impleaded judges of High Court as respondents in appeal filed before Service Tribunal but he failed to do so-Requirement of law in dealing with service matters is that if an rder adversely affecting interest of a particular party has been passed by a Competent authority that authority must be impleaded as real respondent in an appeal before Service TribunalHeld: In absence of mpleading Competent authority that is Judges of High Court who determined seniority of parties, no effective order could be passed by service Tribunal or Supreme Court on appealDefect is fatal and appeal ecomes incompetent, hence, dismissed. [Pp. 264, 267 & 269] A to D PLD 1956 SC (Pak) 274, PLD 1961 SC 162, PLD 1953 Federal Court 247, Pl.n 1971 SC 677, PLJ 19PO SC(AJK) 38, 1990 P.S.C. 1014 ref. Raja Muhammad HanifKhan, Advocate for Appellant. Mr. Farooq Hussain Kashmiri, Advocate for Respondent No. 1. Sardar Rafique Makmood Khan, Advocate for Respondents No. 3 to 5. , Date of hearing: 09.01.1996. judgment Muhammad Yunus Surakhvi. J.--Throught this appeal, with the leave of the Court, the legality of an order recorded by Service Tribunal of Azad Jammu and Kashmir dated Feb. 19, 1985, has been called in question, whereby the appeal filed by the appellant herein against the order of the High Couit issued under No. 6521-48/HC/91 dated June, 06, 1991, was dismissed. 2. The dispute between the parties relates to the seniority of judicial officers who at the present moment are of the rank of District and Sessions Judges. According to the appellant he was initially appointed as Law Drafting Officer on March 08, 1972. He was thereafter appointed and transferred as Suh-Judge vide order dated Aug. 19, 1973. The appellant was relieved by the Law Department on Dec. 11, 1973. Kh. Iftikhar Hussain Butt and Raja Niaz Ahmed Khan Respondents Nos. 3 and 4 were appointed as Sub-Judges, while Mirza Zaid Ullah respondent No. 5 was appointed as Registrar High Court on Ad-hoc basis for six months on Sep. 09, 1973. These respondents were confirmed vide order dated June 08, 1976, on the recommendation of the Public Service Commission. The appellant, herein made two representations, the first one on Nov. 05, 1978 and the other on March 15. 1979, for fixation of inter-se seniority of the contesting Sub- Judges. 3. On Oct. 12, 1979, the Deputy Registrar of the High Court addressed a communication to Mr. Muhammad Ashraf Kayani which reads as follows:- "While inviting your attention towards your representation dated Nov. 05, 1978, and March, 15, 1979, pertaining to the subject noted above, I am directed to say that these representations were placed before the Judges who in their meeting held on Oct. 10, 1979, have been pleased to decide as under:- "Decided that since under the provisions of K.S.R. seniority is to be determined from the date of his first appointment to such service or class or categoiy about which the question has arisen and Mr. Kayani having joined as Sub-Judge on Dec. 11, 1973, his plea for fixation of seniority as Sub-Judge from the date of joining Azad Jammu and Kashmir Government as Law Drafting Officer, on March, 08, 1972, is devoid of force and therefore, rejected." 4. Dissatisfied with the decision of the High Court Mr. Muhammad Ashraf Kayani, appellant, filed an appeal before the Government on July 08, 1979. This appeal was rejected on June 03, 1981, by a short order of the Government. Mr. Muhammad Ashraf Kayani, the appellant herein, then filed an appeal before the Sen/ice Tribunal on June 24, 1981 praying therein that the order of the High Court dated April 10, 1979, whereby the respondents Nos. 3 to 5 were declared senior to him may be set aside so as to declare Mr. Ashraf Kayani as senior to the three other Sub-Judges and that N.P.S. 18 may be granted to the appellant w.e.f. Oct. 30, 1978, at least. 5. The appeal was decided by the Service Tribunal on Oct. 16, 1985, and the relief granted by Service Tribunal may be summarized as follows:- (a) Mr. Muhammad Ashraf" Kayani appellant was declared to be the senior most among the four contesting Sub-Judges, on the ground that seniority begins form the date of first appointment and not from the date of joining. (b) Order granting grade 18 to Mirza Zaid Ullah a d Raja Niaz Ahmed Khan during the pendency of the appeal before the Service Tribunal, was set aside and instead it was granted to Mr. Muhammad Ashraf Kayani w.e.f. Nov. 17, 1984. (c) It was held that the period spent as ad hoc appointee counts towards seniority if it is so ordered and this benefit was, therefore validly given to the three Sub-Judges; (d) It was held that Mirza Zaid Ullah had been wrongly given benefit of the period during which he was working as Registrar of the High Court so far as his seniority as a Sub- Judge was oncerned; and (e) The order passed on Feb. 17, 1979, by which selection grade i.e. NFS 18 has been sanctioned in favour of Mr. Iftikhar Hussain Butt was kept intact on the ground that the same had not been hallenged by Mr. Kayani in his appeal before the Service Tribunal. 6. Against this order all the four contesting Judicial Officers, with the leave of the Court, filed appeals in this Court, raising pleas of their different grievances. One of us (Mr. Justice Basharat Ahmed haikh) after discussing the whole law on the subject vide order dated May 16, 1989, observed in the concluding part of the judgment in the following manner:- The upshot of the foregoing is that:- (a) Civil Appeal No 22 of 1986 "Raja Muhammad Ashraf Kayani vs. The Azad Jammu and Kashmir Government and 4 others" is dismissed. (b) Civil Appeal No. 23 of 1986 "Mirza Zaid Ullah and another vs. Raja Muhammad Ashraf Kayani and three others" is accepted and the following orders of the Service Tribunal orming art of the judgment under appeal are set aside, namely, orders:- (i) declaring respondent No. 1 Mr. Muhammad Ashraf Kayani senior to the appellants Mirza Zaid Ullah and Raja Niaz Ahmed Khan; and (ii) granting NPS-18 to the said respondent w.e.f. Nov. 17, 1984, and consequential adjustment. (c) Civil Appeal No. 24 of 1986, "Kh. Ifitkhar Hussain Butt vs. Mr. Muhammad AshrafKayani and 4 others" is accepted' so that the following orders of the Service . Tribunal shall stand vacated:- (i) that respondent No. 1 Mr. Muhammad Ashraf Kayani was senior to the appellant Kh. Iftikhar Hussain But; and (ii) grant of NFS-18 to the said respondent w.e.f. Nov. 17, 1984. (d) Status quo ante as it existed before judgment under appeal shall be restored. 7. It was observed by this Court that while determining the seniority of the judicial officers the relevant provision to be made applicable would be Section 30(2) of the Laws Code Act. At page 50 of the judgment it was observed as under:- "I may pause here and add that Section 30(2) of the Law Code appears to be a legislation of somewhat unusual nature. Normally the seniority of a person in Government service is fixed on the basis of length of service while qualification, past experience and some other factors are taken into consideration at the time of recruitment. Other factors mentioned in this provision of law, for instance, honesty and efficiency are considered at the time of promotion. But the provision in hand has made all these factors to be the basis of seniority. However, the will of the law maker has to prevail and the Courts, being the creation of law, cannot arrogate to themselves the functions which . are entrusted to the law-maker or to question the wisdom of law. As it is the law as enacted by the law maker which in the present context is Section 30(2) of the Laws Code which had to be administered for the determination of the seniority of judicial officers." 8. In view of the aforesaid dictum of this Court, the High Court determined the seniority of the parties with the approval of the Government and declared respondents Nos. 3 to 5 senior to the appellant. The appeal filed by the appellant in the Service Tribunal was dismissed. Hence this appeal. 9. Arguing the case on behalf of appellant, Raja Muhammad Hanif Khan, the learned counsel, submitted that the High Court did not determine the seniority of the contesting parties in accordance with the provision of Section 30(2) of the Courts and Laws Code of 1949 (hereinafter to be referred as Laws Code) and the only consideration that weighed with the High Court was the date of appointment of a particular judicial officer and the other factors such as past experience, duration of service under the Government, qualification, efficiency and honesty were gnored, rendering the impugned judgment into a nullity. It was argued that order passed by the High Court was telegraphic in nature as the same is not supported by reasons. The learned counsel vehemently submitted that in the meeting of Judges wherein the matter of seniority was determined Justice Kh. Muhammad Saeed also participated who was ineligible to participate on account of being counsel for one of respondents, (Mr. Iftikhar Hussain Butt) in the previous round of litigation and thus this Act had seriously prejudiced the case of appellant, whereas justice Ch. Sher Zaman who was senior most Judge of the High Court at the relevant time was not associated in the meeting. According to the learned counsel for the appellJnt, had Justice Ch. Sher Zaman paiticipated in the meeting the outcome would have been different. The learned counsel pressed into sendee the submission that the orders granting selection grade to respondents Nos. 3 to 5 prior in time than the appellant have no legal sanction and validity for the simple reason that those were granted without the approval of the Selection Board. The learned counsel maintained that the High Court did not apply its mind in a judicial manner, while determining the seniority of judicial officers and based its verdict on extraneous considerations, which were totally alien to the provisions of Laws Code. 10. Controverting the arguments raised by the learned counsel for the appellant, Sardar Rafique Mahmood Khan, the learned counsel for respondents Nos. 3 to 5, fully supported the impugned judgment recorded by the Service Tribunal. The learned counsel argued that in accordance with the direction given by this Court vide its order dated May 16, 1989, the competent authority i.e. the High Court determined the seniority of the judicial officers keeping in view the necessary requirements mentioned in Sub-section 2 of Section 30 nf Laws Code. The learned Judges of the High Court, as it depicts from the order itself on the basis of which the seniority was determined were fully alive to the requirements of Section 30(2) of Laws Code. The seniority list Ex. P.C. also indicates that High Court; in exercise of its powers under Section 30(2) of the Laws Code with the approval of the Government has determined the seniority of the judicial officers. The High Court also being a Court of supervisory jurisdiction and having control over all the Courts subordinate to it, in performance of its function as superintendence and control was fully aware of the efficiency, quality of judgments reputation and experience of all the judicial officers and these matters were taken into consideration to assess the comparative traits of subordinate judicial officers. The record of all the judicial officers was in the High Court, all these facts are suggestive of the conclusion that the Chief Justice and Judges of the High Court, were fully alive to various factors for determining the seniority of the judicial officers particularly when they had the judgment of Supreme Couil before them. Sardar Rafique Mahmood Khan also submitted with vehemence that by participation of Mr. Justice Kh. Muhammad.Saeed in the meeting of the Judges wherein the matter of seniority was decided did not in any way prejudice the case of appellant, nor | t has been so agitated in the memorandum of appeal by the appellant. Had the question of seniority been only between the contesting parties the factum of participation of Justice Kh. Muhammad Saeed, in the meeting would have made some difference or atleast some apprehensions would have arisen in the mind of the appellant but the fact of the matter was that in the meeting held by the Honourable Judgesxjf the High Court over all seniority of about 24 judicial officers was determined by the High Court and the case of 2 or 3 individuals was not considered by the Judges. The learned counsel maintained that by participation of Justice Kh. Muhammad Saeed in the meeting of the Judges no bias has been caused to the appellant. In the alternative the learned counsel submitted that the High Court under Section 5 of Laws Code consists of a Chief Justice and three or more Judges and since the seniority has been determined by three Judges besides the Chief Justice, the High Court was complete for the purpose. The minimum number of Judges fixed under relevant law is three. As regards the nonparticipation of Justice Ch. Sher Zaman the contention raised by the learned counsel for the appellant is based on mere assumption. Even if Justice Ch. Sher Zaman had joined the meeting the result would have been the same. The learned counsel pressed into service the submission that respondents No. 3 to 5 were granted N.P.S. 18 earlier than the appellant and these orders still hold the field as they were not challenged by the appellant before the Service Tribunal or any competent forum. In the end Sardar Rafique Mahmood Khan, the learned counsel, for respondents Nos. 3 to 5 sought permission of the Court to argue a legal point to the effect, that appellant while assailing the judgment of the High Court dated June 06, 1991, whereby the seniority of judicial officers was determined did not implead the High Court as one of the respondents in the appeal filed before the Service Tribunal, thereby entailing its dismissal on this score alone. To elaborate his point of view the learned counsel submitted that, in the instant case the competent authority which determined the seniority of the contesting judicial officers was the High Court and under the rules known as Azad Jammu and Kashmir Service Tribunals (Procedure) Rules 1976, it was mandatory for the appellant, to implead the High Court as the real respondent in the appeal before the Service Tribunal. Instead of impleading the High Court as respondent in the appeal the appellant impleaded Registrar of the High Court, as respondent in the said appeal. The Registrar of High Court cannot be a substitute for the High Court. The High Court being a necessary party should have been impleaded as real respondent in the appeal and the failure on the part of the appellant entailed the dismissal of appeal. The learned counsel submitted that if a necessary party is not impleaded in a proceeding the appeal becomes incompetent and this being purely a law point can be allowed to be raised at any time. Raja Muhammad Hanif Khan, the learned counsel for the appellant, in rebuttal maintained that the order was issued in the name of Registrar High Court so the Registrar was impleaded as one of the respondents in the appeal filed before the Service Tribunal. Raja Muhammad Hanif Khan also submitted that it would have been strange enough to implead the Judges of the High Court, as respondents because there is no practice as such to implead the Judges of the High Court in the category of respondents. 11. We have heard very lengthy arguments on behalf of learned counsel for the parties and perused the record made available with care. The last point which was raised by Sardar Rafique Mahmood Khan, the learned counsel for the respondents Nos. 3 to 5 with the permission of the Court in our opinion goes to the roots of the case. It is indeed a law point and it has been the consistent practice of this Court to allow a law point to be raised at any time if the same does not eed any detailed investigation. However the general rule is that the point should be raised in the appeal or the concise statement. It is true that the point has not been raised in the memo of petition for leave to appeal nor in the concise statement but in many reported cases the absence of a ecessary party was noted by the Court itself ' and without the point being raised the writ petition or appeal was ordered to be dismissed on that ground. We will be referring to some cases on this point subsequently. 12. The precise contention of Sardar Rafique Mahmood Khan, is that in the instant case the competent authority which determined the seniority of contesting judicial officers was the High Court. Rule 8 of the Azad Jammu and Kashmir Service Tribunals (Procedure) Rules 1 76 provides as under: - "In every memorandum of appeal, the competent authority shall be shown as the first respondent and thereafter all other parties to the dispute shall be shown as respondents." According to the above said rule it was a fundamental requirement that the appellant should have impleaded the Honourable Judges of High Court as respondent in the appeal filed before the Service Tribunal but the appellant failed to do so. Instead of impleading the Judge of High Court he impleaded Registrar of the High Court as one of the respondents. Registrar of the High Court cannot be a substitute for the High Court itself. According to our considered view Rule 8 appears to be a mandatory rule and its violation entails the dismissal of appeal. To meet the argument raised by the learned counsel for the appellant it may be stated that it is not unusual or somewhat strange to implead the Judges of the superior judiciary as respondent in a particular legal proceeding where the impugned order purports to have been passed by them. There is a plethora of citations on the subject wherein the learned Judges of superior judiciary were arrayed as respondents but we only quote few instances to substantiate our view point. In the case reported as Ch. Sardar Ali Advocate vs. Hon 'blc Judges of the. Lahore High Court (PLD 1956 SC (Pak) 274), the brief facts were that Ch. Sardar Ali Advocate was engaged by one Miss Bhagmal, Christian, resident of Gahkhar, on behalf of her brother Subedar Raliamt Ullah, who had appointed her as his special attorney to file a civil appeal in the High Court at Lahore against the judgment and decree passed by the District Judge, Gujranwala. The said Advocate received Rs. 100 as fee for filing the appeal and Rs. 32-8-0 as copying and Court-fee expenses, but did not file any appeal in the High Court nor refunded the fee to the lady. Proceedings for professional misconduct were initiated against Ch. Sardar Ali Advocate and the West Pakistan High Court suspended the appellant Ch. Sardar Ali from practice for 6 months. This order of suspension and removal from practice was challenged by Ch. Sardar Ali in the Supreme Court of Pakistan whereby the Judges of the High Court of West Pakistan were impleaded as respondents. The Supreme Court of Pakistan vide its majority decision accepted the appeal filed by Ch. Sardar Ali and set aside the order passed by the Lahore High Court. In the case reported as Syed Ahmad Hussain vs. Chief Justice and Judges of the West Pakistan High Court (PLD 1961 SC 162), the appellant Syed Ahmad Hussain was originally a resident of Maler Kotla State of India. He was a graduate and had passed the examination in law prescribed in the said Stato. He was enrolled as a Pleader in 1936, and was later admitted asan Advocate of the High Court of Maler Kotla in the year 1940. He migrated to Pakistan after independence and settled in Montgomery. In 1948 he was granted a Pleader's Certificate and practiced as such Pleader for over four and half years and then applied to be enrolled as an Advocate of the Lahore High Court. His application was granted and a certificate of enrollment dated Nov. 19, 1953, was issued under the signature of Deputy Registrar purported to have been issued by the High Court. The Administration Committee of the High Court in 1956, arbitrarily cancelled the said certificate. The appellant made various representations, however, ultimately the High Court refused his prayer and maintained that his certificate had been cancelled after considering all the relevant facts. Against this order of the High Court the appellant filed an appeal before the Supreme Court with the leave of the Court and impleaded Chief Justice and Judges of West Pakistan High Court as respondents in the appeal. The appeal filed by the appellant was accepted and the impugned order was set aside. In the case reported as Syed Akhlaqm Hussain vs. Judges of the High Court of West Pakistan (PLD 1961 SC 431). The brief facts were that Syed Akhlaque Hussain became permanent Judge of the West Pakistan High Court in October, 1955. Before he became permanent Judge of the High Court he had given an undertaking in the following words:- "I undertake as a condition of appointment that I will not after retirement practice in the High Court to which I am appointed or to which I may be transferred or in any of the Courts subordinate thereto." Appellant Syed Akhlaque Hussain remained Judge of the Lahore High Court until 1959, when upon a reference and a report made under Article 169 of the late Constitution, the President removed him from that office. A division bench of the High Court of West Pakistan sitting at Karachi directed that appellant would not be permitted to appear in the High Court as an Advocate or in any Court subordinate to the High Court. The appellant filed an appeal before the Supreme Court of Pakistan and impleaded Judges of High Court of West Pakistan as respondent, however, the appeal was dismissed by the Supreme Court. In the case S.M. Hag us. Hon 'ble Judges of the High Court of Judicature at Lahore (PLD 1953 Federal Court 247), Mr. S.M. Haq, an advocate enrolled as such in the Federal Court as well as in the High Court of Judicature at Lahore filed an appeal against an order passed by the Lahore High Court suspending him from practice as an advocate of that Court for a period of a 3 months in exercise of the powers vesting in that Court under clause 8 of its Letters Patent. The said Advocate acting as senior counsel for the appellants in an appeal before the Federal Court against a judgment of the High Court including in the written grounds of appeal to the Federal Court, raised two grounds viz. (i) that the Hon'ble Judges were not legally justified in accepting the suggestion of the Crown for the reexamination of Dr. Moonis in appeal. This step was taken to fill up a gap in the prosecution case as well as to justify another judgment of the High Court which was reversed by the Federal Court, (ii) That the remarks of the Honourable Judges betray a lack of the knowledge of elementary principles bearing on the administration of criminal justice. The above grounds in the opinion of learned Judges of the Lahore Court constituted contempt of that' Court and the Advocate was suspended from practice as said earlier. Against aforesaid order of the Lahore High Court Mr. S.M. Haq filed an appeal in the Federal Court and impleaded the Hon'ble Judges of the High Court as respondents in the appeal. In accordance with the opinion of the majority the appeal was allowed and order under appeal was set aside, in case Shahnaz Begum vs. Hon 'ble Judges of the High Court of Sind and Baluchistan (PLD 1971 SC 677), the precise facts were that a criminal case was enquired into and under investigation by the police. The incident had created a sort of sensation and the Local newspapers not only gave this incident considerable publicity but also highlighted its sensational aspect, propounded their own speculations and even suggested that the investigation ran the risk of interference by the accused, said to be connected with highly placed personages. A senior Judge of the High Court of Sind and Baluchistan reading the newspaper reports thought it fit to take action suo rnoto in the exercise of supervisory jurisdiction to call upon the Inspector General of Police to produce before him all investigation papers relating to the case so that he may examine if the conduct of the investigation has been fair or impartial or the ends of justice require that further investigation of this case be entrusted to any other officer or a Court of law. The order of the High Court was impugned in appeal before the Supreme Court, wherein the Judges of High Court of Sind and Baluchistan were impleaded as respondents. It was held by Supreme Court of Pakistan that the impugned action of the High Court of Sind and Baluchistan in the case was unwarranted and beyond its jurisdiction. Similarly in the case Hakarn Qureshi, President, District Bar Association, Lahore and 2 others vs. The Judges of the. Lahore High Court (PLD 1976 SC 713), the three appellants therein and Sh. Shaukat Ali Advocate were found guilty of contempt of the FTio-h Court of Lahore, in that case thev alongwith certain other Advocates organized procession and placards with inscriptions tending to undermine the authority and dignity of the High Court were displayed and slogans of like tendency were shouted. The three appellants contested the roceedings but were found guilty and sentenced to four months simple imprisonment and a fine of Rs. -l.OOO/- each or two months simple imprisonment in lieu of the fine. Sh. Shaukat Ali, initially contesting the proceedings, entered a plea of unqualified apology. The High Court accepted his apology and sentenced him to imprisonment till the rising of Court and fine of Rs. 1,000/- or two months simple imprisonment in lieu thereof. The appellants filed an appeal against the order of Lahore High Court in the Supreme Court and the learnefct Judges of the Lahore Court were arrayed in the category of respondents. The order recorded by the High Court was maintained by the Supreme Court. 13. The requirement that the competent authority be impleaded as a party is analogous to a similar requirement in writ petition. The basic requirement of law in exercise of writ jurisdiction of High Court is that if an order of a public functionary has to be challenged in the High Court through a writ petition that functionary must be impleaded as a party. Similarly if a direction or prohibition is sought against a public functionary that functionaiy is a necessaiy party without which neither a writ petition is maintainable nor an effective order can be passed. Requirement of law in dealing with service matters is that if an order adversely effecting the interest of a particular party has been passed by a competent authority that authority must be impleaded as real respondent in an appeal before the Service Tribunal. Service Tribunals Act and the rules framed thereunder are special statutes and a specific provision being provided in the rules i.e. rule 8, any party being found guilty of violation of the rules is not entitled o any relief and the appeal filed by that party without impleading the competent authority as respondent, the same becomes incompetent. 14. In the case reported as Muhammad Rcsham Khan us. Chairman, Inspection Team and 3 others (PLD 1990 SC (AJK) 38), the precise facts were that Muhammad Resham Khan was allotted, certain evacuee land situate at Rawalakot. The allotment from his name was cancelled by the Inspection Team set up by the Government. The writ petition filed by Muhammad Resham Khan, challenging the order of cancellation of allotment failed in the High Court. Muhammad Resham Khan appellant filed an appeal in the Supreme Court of Azad Jammu and Kashmir with the leave of the Court. Among other things one important aspect of the case was that it- was noticed by the Supreme Court that Inspection Team was not impleaded as a party. The relevant observations made by the ourt appearing at page 43 of the report are reproduced for the sake of convenience:- " Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) the Chairman of the Inspection Team, (ii) Azad Jammu and Kashmir Government (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party." It may be pointed out here that the point with regard to non-impleading of Inspection Team in the above case was not raised in the High Court or before the Supreme Court but during the hearing of the case the omission was noted by the Supreme Court itself and the above verdict was recorded. In the case of Mirza Lai Hussain vs. Custodian of Evacuee Property (1982 S.C.R. 214), almost a similar type of proposition came under the consideration of the Court. In that case one of the public functionaries was not impleaded in the writ petition but this point was not raised before the High Court. The point was not included in the petition for leave to appeal filed in the Supreme Court nor was it taken in the concise statement. In spite of that the obj ection was upheld. The following portion of the judgment would show the reasons:- "13. Another point of fundamental importance was raised by Mr. Abdul Ghafoor Qureshi that Rehabilitation Commissioner, Deputy Rehabilitation Commissioner and Assistant Rehabilitation Commissioner had not been made a partji in the writ petition although the orders passed by them was sought to be quashed. On this point that view of this Court has been expressed in the cases reported as Muhammad Resham Khan v. Chairman, Inspection Team (PLD 1990 S.C. (AJK) 38) and Abdul Hairnd v. Muhammad Zameer (1990 P.S.C. 1014) these judgments support Mr. Qureshi's contention. 14. This point was not raised before the High Court and has not been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionaiy without hearing him. I am quite clear in my mind the answer to this question has to be in negative. If a necessaiy party is absent there can be no adjudication. The situation in the aforementioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition filed by Mirza Lai Hussain can be dismissed on that score alone." There is a long chain of authorities on the point discussed above. In the unreported cases Rahat Saeed Bukhari and another vs. Sadia Shah and another (decided on 17.05.1995), Syed Muhammad Akrarn Shah and others vs. Chairman Allotment Committee and others and Professor Sarfraz Khan Choudhary vs. Chairman Allotment Committee and others (decided on 24.07.1995). 15. According to our considered view Rule 8 of Service Tribunal (Procedure) Rules 1976 is a mandatoiy requirement of law that the competent authority is a necessary party which must be impleaded in the category of respondents. If we read the above quoted Rule with Rule 28 the inevitable conclusion that follows is that without arraying the competent authority as respondent, neither the appeal was competent nor any effective order could have been passed. Rule 28 of Rules of 1976 may be reproduced:- "A copy of every order of final adjudication on an appeal shall be furnished by the Tribunal, free of cost, to the competent authority and the said authority shall forthwith give effect to it." The above Rule is clearly connected with Rule 8. A combined reading of both these Rules makes it clear that in absence of impleading the competent authority as a party to the proceedings, neither an effective order could have been passed nor order of final adjudication could have been implemented Since the Hon'ble Judges of the High Court who determined the seniority of the parties were not impleaded in the categoiy of respondents in their absence no effective order could have passed by the Service Tribunal. Had the learned Judges been arrayed as respondents, they would have been in a better position to join the proceedings initiated by the appellant and submitted their written statement in reply to the allegations made in the memorandum of appeal by the appellant. More important is that in the absence of the competent authority form the line of respondents no effective order can be passed by the Service Tribunal or by this Court on appeal. The defect in our opinion is fatal and appeal filed by the appellant becomes incompetent and hence liable to be dismissed on this score alone. Having disposed of the appeal on the aforesaid ground we did not deem it appropriate to dilate upon the other points raised by the learned counsel for the parties. \ 16 - In the aforesaid circumstances the appeal filed by appellant, being incompetent is dismissed with no order as to costs. (MYFK) Appeal dismissed
PLJ 1997 SC (AJK) 270 PLJ 1997 SC (AJK) 270 Present: BASHARAT AHMED SHAIKH AND MUHAMMAD YUNUS SURAKHVI, JJ. MISS SHAMAILA MAHMOOD-Appellant versus MUKHTAR AHMED etc.-Respondents Civil Appeal No. 68/96, dismissed on 22.5.1997. (On appeal from judgment of High Court dated 20.3.1996 in Writ Petition No. 63 of 1995). Azad Jam mil & Kashmir Interim Constitution Act, 1974-- -S. 47 read with Civil Servants Act, 1976 Ss. 22 & 23-Adhoc appointment as sub Judge-Confirrnation/Regularisation in relaxation of requirements of educational qualifications and experience-Writ against-Acceptance f- Appeal against-When a set of rules is framed under section 23 of Civil Servants Act, it has to be construed that it has been framed to carry out purposes of Civil Servant Act-If in any rule a special power is granted to override or relax the rules this power will be deemed to he for carrying out purposes of section 22 of Civil Servant. Act, to advance ends of justice and equityWhen impugned notification by which requirement of experience was dispensed with in favour of appellant, was challenged by respondents, Government and appellant did not bring on record the reason which persuaded the Government to exempt appellant rom requirement of experience laid down for post of Sub-Judge-Therefore, there is nothing on record to show that order was passed for just and equitable consideration-Held: Impugned notification was bad in law- Government had attempted to exercise power not vested in it-Appeal dismissed. [Pp. 278 & 279] A to C 1994 S.C.R. 297 rcf. Ch. Reaz Alarn, Advocate for Appellant. Raja Shiraz Kiyatii, Advocate General and Mr Muhammad Yunus Arui, Advocate for Respondents. Date of hearing; 24.4.1997. judgment Basharat Ahmad Shaikh, J.--Repsondents No. 1 to 3, who are pleaders with Mirpur as the ordinary place of business, filed a writ petition on 21st of June 1995 to challenge a Government Notification issued on 15th of January 1995 by which the relevant departmental rules relating to experience were relaxed in favour of the appellant so as to enable her to sit in the competitive examination which was to be held in the year 1995 by the Public Service Commission for the posts of Judge Family Court and Sub- Judge. Subsequently this notification was amended and the post of Judge Family Court was deleted from the notification. The writ petition has been accepted by the High Court. 2. It was stated in the writ petition that it was being filed in the background of cases decided by the High Court and the Supreme Court whereby the Azad Jammu and Kashmir Civil Servants Regularisation of Ad hoc Appointments) Act 19!>2 was declared un-constitutional. It, was averred that the appellant was a party in the case filed by Muhammad Younus Tahir, reported as Javed Iqbal Khawaja vs. Azad Government (P.L.D. 1994 AJK 26), in which it was declared in para 70 of the judgment that the Government had no legal authority to pass the order impugned before the High Court by which requirements of educational qualifications and experience of three years legal practice in the case of appellant Shamaila Mahmood were relaxed. It was stated that after the udgment about the Regularisation Act, mentioned above this Court in another reported case titled Sh. Manzoor Ahmad vs. Azad Government and another (1994 S.C.R. 297) declared that confirmation of an d hocappointee under section 22 of the Civil Servants Act was illegal. On the basis of these grounds it was stated in the writ petition that the fresh order whereby the requirement of experience was elaxed was without jurisdiction. It was further stated that relaxation about experience was against, fundamental rights. 3. In the written statement the appellant averred that she was a party in the writ petition filed by Muhammad Yunus Tahir but her education qualification was neither challenged in the rit etition nor was there any relaxation given in respect, of education qualifications. It was pleaded that she held a valid law degree from a recognised University. She attached with the written statement her degree of Bachelor of Laws (Shariah and Law) issued to her by International Islamic University Islamabad as well as four documents issued by University Grants Commission wherein it is stated that the said degree was equal to L.L.B. from other Universities. In one of the documents it is stated that, degree of L.L.B. (Shariah) from International Islamic University was not different from the law degrees of the University of the Punjab. It was pleaded that, the findings of the High Court contained in paragraph 70 of the judgment in Yunus Tahir's case were in the nature of obiter dieta. In this connection reliance was placed on paragraph 84 of that judgment. 4. The writ petition filed by respondents, Mukhtar Ahmad and others, has been accepted on the ground that, in para 70 of the judgment in Javed Iqbal Khawaja's case it was held by the High Court that the Government was not empowered to relax the education qualifications and experience required for appointment to a particular post and also that Shamaila Mahmood lacked experience of 3 years legal practice required of appointment as Sub Judge. It has been further observed that in the judgment under appeal in Yunus Tahir's case was upheld by this Court with the result that the question with regard to the qualification and experience of Shamaila Mahmood had become final and a fresh order of relaxation was illegal. 5. We have heard Mr. Reaz Alam, the learned counsel for the appellant, and Mr. Yunus Arvi, the learned counsel for respondents Mukhtar Ahmad and two others. Mr. Shiraz Kayani, the learned Advocate-General, appeared for the Government. After giving anxious consideration to the facts off the case and going through the previous judgment mentioned earlier. We have reached the conclusion that the High Court did not adopt correct approach in the case in relying on the previous judgment of the High Court rather than the previous judgment of this Court which was the final judgment in the dispute. The High Court has observed in the judgment under appeal that the judgment of the High Court in Yunus Tahir's case was upheld by the Supreme Court; and thus judgment of the High Court attained finality but the High Court reproduced a portion of the judgment of the High Court only and, although it, was observed that the decision of the Supreme Court is binding on all Courts, contents of the decision of this Court were neither mentioned nor reproduced. When an appeal against the judgment of the High Court is dismissed by this Court it does not follow that the reasoning adopted by the High Court has been ipso facto approved, it is only the judgment of this Court which would show, on a proper reading, whether the view taken by the High Court on a particular point has been upheld or not. When this Court dismisses an appeal it may do so by upholding the view expressed by the High Court or may record different reasons in reaching the same result. In the latter categoiy of cases it is not correct to refer to the judgment of the High Court because in such case it is only the judgment of the Supreme Court which is relevant and binding. In light of this legal position we have to analyse the judgment of this Court to decide the issue raised in the present proceedings. We have noticed that even in the writ petition filed by respondent Mukthar Ahmad and others only the judgment of the High Court was relied upon. 6. he histoiy of the case is that the appellant was appointed as Sub-Judge on ad hoc basis. Subsequently the Legislative Assembly passed an Act known as "The Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointments) Act 1992 (for brevity "the Regularisation Act") which laid down that all persons hold office on ad hoc basis on the coming into force of the said Act shall be treated to have been regularly appointed. Consequently the appellant became a regularly appointed Sub-Judge with effect from 16th of August 1992. Another notification was issued on 25th of November 1992 for permanent absorption of the appellant purportedly under section 22 of the Azad Jammu and Kashmir Civil Servants Act. The Regularisation Act was challenged by different persons by filing writ petitions which were accepted and the said Act was struck down. Appeals filed before this Court were also dismissed. In one of those writ petitions the appointment of the appellant on permanent basis, along with the appointment of Ch. Mumtaz Hussain, as Sub-Judge was challenged. It was filed by Muhammad Yunus Tahir. The order passed under section 22 of the Civil Servants Act in favour of the appellant was also challenged in the writ petition. The writ petition filed by Muhammad Yunus Tahir, alongwith other writ, petitions was accepted. In the judgment of the High Court, which is reported as Javed Iqbal Khawaja vs. Azad Government (P.L.D. 1994 AJK 26) it was declared that the Government was not empowered by any law to pass the impugned order in favour of the appellant to relax educational qualifications and experience required for the post of Sub-Judge. It was also held that ad hoc appointees were not civil servants and thus section 22 of the Civil Servants Act could not be applied for permanent absorption of an ad hoc appointee. 7. Against the judgment of the High Court in Yunus Tahir's case, appeal was filed by Azad Government of the State of Jammu & Kashmir, Azad Jammu and Kashmir Legislative Assembly, Secretary Law & Parliamentary Affairs and the Public Service Commission. The appellant and Ch. Mumtaz Hussain were impleaded as proforma-respondents. There was difference of opinion on some of the points but it was a common ground between the two members of the Bench which decided the case that the Regularisation Act was violative of Fundamental Right No. 15 (EQUALITY OF STATE SUBJECTS) and was void on that ground. This was the only ground on which this Court declared the Regularisation Act as un constitutional. The other reasons given in the judgment of the High Court were not upheld and, therefore, cannot be cited in the subsequent proceedings. 8. The declaration that the Regularisation Act was un-constitutional did not end the controversy about the appointment of the appellant because, as already noted, there was another notification which had been passed in her favour on 25th of November 1992. The notification is not available in the present files of the High Court or this Court. We have also gone through the Supreme Court record of the previous appeal filed to challenge the judgment of the High Court in Yunus Tahir's case but the notification of 25th of November 1992 in favour of Shamaila Mahmood is not available even in that file. However, a certified copy of the amended writ petition is available in the file and ground No. (x) contained in para 14 of the writ petition relates to the notification under reference. It will be useful to reproduce it:- "(x) that the impugned Notification dated 25.11.1992 No. 3/5/92--OAD issued by respondent No. 1, which was given effect from 1(1.8.1992 is also violative of law, discriminatory, malafide and based to protect the interests of a special class which is also against the rights and interest of the petitioner and of no legal effect. The aforesaid Notification is creation of the powers to be given to the Government, under Section 22 of the AJK Civil Servants Act 1976. but the bare reading of the relevant provision makes it clear that the confirmation of the appointment of respondent, No. 5 is against the basic spirit of the statute and as such, keeping in view the circumstances of the case, it is purely discriminatory and malafide.. The petitioner's writ petition was admitted for regular hearing on 18.11.1992, the answering respondents being functioning as Additional Sub-Judge at Mirpur after having the Knowledge of writ petition having been admitted and she being influential and having closed affiliation with the ruling party, manoeuvred to get issued the aforesaid Notification. So, in these circumstances, the impugned Notification is also violative of law and beyond jurisdictional competence, copy of impugned Notification is attached herewith as Annexure "P/15". 9. It will be seen that it was not pleaded in the writ petition that the Government could not relax educational qualifications and requirement of legal practice. The case of the appellant was specifically dealt with by the High Court in para 70, 74 and 84 in Javcd Iqbal Khawaja 's case, which has already been summarised above. The notification of 25th of November 1992 was discussed in the judgment passed by this Court on page 392 of the report published as Azad Government & others vs. Muhammad Yunus Tahir & others 1994 S.C.R 392. Paragraph 84 of the judgment of the High Court was reproduced and it was observed that the learned counsel for the Government contended that the High Court fell in error in quashing the order of 25th of November. The views expressed in paragraph 84 of the judgment of the High Court were dealt with in the judgment written by me on page 93 of the report. On the first point it was held that the High Court was not right in holding that, a separate notification in case of the appellant could not be issued in presence of the order passed in the Regularisation Act. It was held that: "There is nothing in law to stop the Government to pass another order in addition to an earlier order." On the other point decided by the High Court in paragraph 94 that ad hoc appointees are not civil servants and therefore section 22 could not be applied ro confirm ad hoc appointees, I took the view that, section 22 of the Civil Servants Act is not available for exempting any person from the requirement of selection through the Public Service Commission Coiisequentiy it was held t.hat:- "It is, therefore, not necessary in this case to decide whether the High Court was correct in holding that ad hoc appointee is not a civil servant. This question is left open." The view taken by the High Court that Government was not empowered to relax educational qualifications and experience was not discussed by me at all. As already seen, Muhammad Yunus Tahir had not raised the point that Government was not empowered to relax educational qualifications and experience, required for the posl. of Sub-Judge as is apparent, from ground (x) reproduced above. The learned Chief Justice in his judgment did not agree with my view that under section 22 of the Civil Servants Act a person could not be exempted from the operation of the Public Service Commission Act, but my view that the order passed in favour of the appellant in exercise of section 22 was bad in law was shared, but on a different ground. The relevant part appears on page 397 of the report which, may be profitably to be reproduced:- "It is evident from the provisions reproduced above that the powers under section 22 of the Civil Servants Act are to be exercised irrespective of the provisions contained in the Act or Rules provided the same are 'just and equitable'. What would be 'just and equitable' in a particular case depends upon the circumstances of each case and no hard and fast rules can be laid down in that regard. It may be stated that in the instant case I fully agree with the view taken by my brother Mr. Justice Basharat Ahmad Shaikh that the order made by the Government in favour of Miss Shamaila, respondent, under section 22 of the Civil Servants Act is not in consonance with spirit, of law; although on somewhat different grounds. Consequently, the order passed by the Government is not sustainable because nothing has been brought on the record that when writ petition entitled Muhammad Yunus Tahir v. Azad Government to exercise powers under section 22 of the Civil Servants Act to the detriment of Muhammad Yunus Tahir, petitioner, who was also an ad hoc appointee as Sub-Judge. No material has been brought on the record that said order was 'just and equitable' as envisaged under section 22 of the Civil Servants Act." A combined reading of the two judgments shows that the notification of 25th of November 1992 passed in favour of the appellant was set aside as it was found inconsistent with section 22 of the Civil Servants Act. The position which emerges from his analysis is that there was no occasion for this Court to examine the point whether the Government was legally authorised to relax educational qualificalions and requisite experience and this Court did not lay down that the Government was not authorised by law to relax the requirements of educational qualifications and experience. Therefore the view expressed by the High Court in the judgment under appeal that it already stands decided in the previous judgments that, the Government was not empowered to relax educational qualifications and experience is not correct, and I vacate this finding. 10. The High Court has not given any reason while accepting the writ petition except relying on the previous judgment of the High Court. It appears from naratrranh .3 of thp iiulsmipnt mulct- annpai th«t cnmo nthor points were also agitated but these points have not been disposed of in light of the view formed by the learned Judge that the matter already stood concluded by the previous judgment of the High Court, which had attained finality, and the judgment of this Court which was binding on all Courts in Azad Jammu and Kashmir. Since the sole reason recorded by the High Court has turned out to be wrong, the case can be remanded of adjudication of the points left un-decided by the High Court. However, we are of the view that the points left un-decided are purely legal in nature which can be decided by this Court. Even otherwise it will advance the ends of justice if the parties are saved from the inconvenience which an order of remand entails. 11. I may now take up the impugned notification. It was issued on 15th of June 1995 and, after the subsequent amendment, it lays down that the President of Azad Jammu and Kashmir was pleased to relax the departmental rules to the extent of experience so as to enable Shamaila Mahmood daughter of Mahmood Ahmad Khan of District Mirpur A.K to appear in the competitive examination for the post of Sub-Judge to be held in 1995 by the Public Service Commission. The notification does not disclose the authority under which the relaxation had been ordered. However, Mr. Shiraz Kayani, the learned Advocate-General, submitted that the power of relaxing the rules was available under rule 24 of the Azad Jammu and Kashmir Civil Servants (Appointment and Condition of Service) Rules 1977 (the Rules of 1977, for brevity). Rule 24 runs as follows:- "24. Government may, for special reasons, relax any of the rules in any individual case." It is ; provided in rule 18 of the Rules of 1977 that a candidate for initial recruitment to a post must possess the prescribed educational qualifications and experience. 12. In his arguments the learned counsel for the respondents did not address arguments in light of rule 24 of the Rules of 1977. This was due to the mistake belief that the matter already stood decided in the previous judgments discussed elsewhere. The validity of rule 24 has not been challenged before us in this or any other case. The Rules of 1977 have been framed in exercise of powers given to the Government, by sub-section (1) of Section 23, of Azad'Jammu and Kashmir Civil Servants Act, 1976, which is as follows : "S. 23 (1) The Government, or any other person authorised in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this 13. The overriding powers given in different service rules have been examined by this Court in a recent judgment pronounced in Civil Appeal No. 16 of 1997 titled Mir Abdul Hamid vs. Azad Government of the State of Jammu and Kashmir and two others. The case arose out of a dispute relating to the allotment of a Government residence. One of the points which fell for determination in that case was the scope of power given to the Prime Minister of Azad Jammu and Kashmir in sub-rule (3) of Rule 6-A of the Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981. The sub-rule runs as follows:- "(3). Notwithstanding anything contained in these rules or any other rules for the time being in force, the Chief Executive shall have the powers to allot a house to a Government servant at his discretion at any time." The ratio laid down in Mir Abdul Hamid's case in respect of such powers is directly applicable to the present case. I may, therefore, quote the relevant portion of that judgment: - "17. While interpreting the power granted in the above extracted sub-rule we may observe that laws are made and rules are framed for being implemented and not, for being violated. This is the concept of law in every State which is governed by a written constitution. The framing of Accommodation Rules is referable to the Azad Jammu and Kashmir Civil Servants Act. Power to make rules is provided in sub-section (1) of section 23, which lays down that:- (1) The Government, or any other person authorised in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.On a plain reading, rules can only be framed for carrying out the purposes of the parent Act. 18. Sub-rule (3) of rule 6-A, already reproduced, gives to the Chief Executive to override all rules. Such powers, wherever given in any service rules, are only referable to Section 22 of the Azad Jammu and Kashmir Civil Servants Act which is as follows:- "22. Saying.--Notwithstanding in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." 19. It has been held by this Court in Sh. Manzoor Ahmad vs. Azad Government and an other (1994 S.C.R. 297), that power under Section 22 of the Azad Jammu and Kashmir Civil Servants Act has to be exercised to advance the ends of justice and equity and not to give an undue advantage to a civil servant, in contravention of the relevant law. Under section 23 the Government is only empowered to make rules for carrying out the purpose of the Azad Jammu and Kashmir Civil Servants Act. Therefore, if a rule confers discretionaiy power which is exercisable to override the rules it has to be construed that such powers have been conferred for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advance ends of justice and equity. In our view this purpose must be deemed to be incorporated in sub-rule (3) under discussion and all other provisions of this type. Therefore, sub-rule (3) of rule 6-A of the Accommodation Rules must be construed accordingly, with the result that the Chief Executive can pass an order only to advance ends of justice and equity. The question as to what is just and equitable cannot be answered by laying down a hard and fast definition. Even otherwise it is not possible to address to this question in vacuum. This depends on the facts of each case. Even the dictates of justice and equity may be different in different situations and what is just and equitable in one case may not necessarily be just and equitable in another case. Therefore, each case has to be examined by the Chief Executive on its own merits in light of persuading reasons. We may add that since a writ petition lies to challenge such an order reasons must' be such that can stand the scrutiny of judicial review." 14. Contents of the passages reproduced above may be summarised thus. When a set of rules is framed under section 23 of the Civil Servants Act it has to be construed that it has been framed to cany out the purposes of the Civil Servants Act. If in any rule a special power is granted to override or relax the rules this power will be deemed to be for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advance the ends of justice and equity. This purpose shall be deemed to be incorporated in every rule under the Civil Servants Act. which gives the power of relaxation of rules or overriding them. The question as to what, is just and equatable depends on facts of each case and if exercise of this power is challenged in a case the reason on which the order is passed will be judicially scrutinised by Courts of law. 15. The validity of the impugned notification by which the require ment of experience was dispensed with has to be answered in light of the principles stated above. When the notification in favour of the appellant was challenged by respondents, Mukhtar Ahmed and others, the Government and other respondents in the writ petition, including Shamaila Mahmood, did not bring on record the reason which persuaded the Government to exempt the appellant from the requirement of experience laid down for the post of Sub-Judge. Therefore there is nothing on record to show that the order was passed for just and equitable consideration. I would therefore hold that the notification of 15th of June 1995 was bad in law and I would order acceptance of the writ, petition filed by the present respondents for the reasons stated in this judgment. 16. Mr. Reaz Alam, the learned counsel for the appellant, moved an application that he may be allowed to argue the point, that the respondents were not aggrieved persons and the writ petition was not maintainable at their instance. I am inclined to grant the requested leave. The point is purely legal as it can be resolved on the present record. However, the point is not of any substance. In order to show that the writ petitioners were aggrieved persons it was stated in the writ petition that they had been "asked to complete the required experience". In support of this averment the letter from the Public Service Commission addressed to respondent No. 1 Mukhtar Ahmad, was attached as annexure "C". Through this letter Mukhtar Ahmad was ordered to produce a certificate to the effect that he had practised law for a period of three years. In my opinion this.clearly gave the right to Mukhtar Ahmad to challenge the relaxation order in favour of the present appellant. 17. It was also contended by the learned counsel for the appellant that the writ, petition was of academic interest only because the examination for which relaxation was ordered had already taken place and the appellant did not sit in the said examination. This point was first raised before the High Court but was repelled on the ground that in presence of clear verdict of the superior Courts the Government had attempted to exercise power not vested in it and it was appropriate to decide the issue to avoid any confusion. I agree with the reasoning and over-rule the objection raised by the learned counsel for the appellant. 18. In light of the reasons recorded in this judgment, which are different from the reasons recorded by the High Court, the appeal is dismissed leaving the parties to bear their respective osts throughout. Appeal dismissed.
PLJ 1997 SC (AJK) 280 PLJ 1997 SC (AJK) 280 Present: sardar said muhammad khan C. J., basharat ahmed shaikh and muhammad younus surakhvi, JJ. Professor Syed SADIQ HUSSAIN SHAH-Petitioner versus AZAD GOVERNMENT OF JAMMU & KASHMIR etc.--Respondents Criminal Appeal No. 2 of 1997, dismissed on 16.6.1997 in Criminal Revision No. 30 of 1996 (On appeal from the Order of the High Court dated 29.12.1996 in Cr. Revision No. 3 of 1996) (i) Azad Jammu & Kashmir Penal Code 1860-- -Ss. 279, 337 and 338 read with amended Section 337-G-Offence of rash driving prior to amendment Act, 1995-Conviction for-Revision petition filed by respondent No. 1-Dismissal of-Appeal against-Question as to which of forums would be competent to try case would depend upon the question as to nature of amendments-Effect of Cr.P.C. and Penal Code amendment Acts, 1995 on offences committed before promulgation of said amendments would depend upon nature of amendments which have been brought in relevant provisions of law, i.e. whether same are merely of procedural nature or of substantive nature or deal with both procedure and substantive rights-Nature and quantum of punishments in cases of different kinds of hurts have been changed-Punishment for causing hurt by rash and negligent driving has been enhanced as compared with punishment which was provided under section 337 A.P.C. under section 337-G A.P.C. accused who causes hurt by rash and negligent driving is liable to punishment of "arsh" or "daman" specified for kind of hurt and punishment of imprisonment of five years as "taazir", whereas under section 337 A.P.C. punishment prescribed is six months, or a fine of Rs. 500/- or both-Evidentiy punishment U/S 337-G A.P.C. is much more harsh as compared with punishment stipulated U/S 337 A.P.C.-Offence was committed on 1.4.1995 and challan was put up on 28.12.1995, whereas aforesaid amendment in law was brought on 19.7.1995 i.e. after commission of offenceHeld: Contention that amendment made in A.P:C. whereby offence under section ,337, was substituted would operate retrospectively is without any force-Contention of appellant that relevant date for determining forum of trial of case would be date on which, challan was presented before Magistrate or Magistrate took cognizance and not date when offence was committed is not tenable-Agrgument that after above said amendments, only District Criminal Court was competent to try accused U/S 337-G A.P.C. is also without any substanceAccused-respondent could be challaned under unamended section 337 A.P.C. in court of Magistrate and not District Criminal Court- Appeal dismissed, [Pp. 287 & 288] A to D PLD 1991 SC (AJK) 27, PLD 1970 SC 264, 1993 P.Cr.L.J. 782 ref. iii) General Clauses Act, 1897-- S. 6(c)--Offence U/S 337 APC--Conviction for-Revision against- Dismissal of-Appeal against-Whether after repeal of an act, accused will be tried under amended section instead of previous, provisions of law, where offence committed prior to amendment-Question of-Expression used in clause (c) of section 6 of General Clauses Act "that shall not affect any such investigation, legal proceeding or remedy may be nstituted continued, or enforced' is clearly indicative of fact that after investigation by Police, Challan was to be presented to Magistrate and not District Criminal Court-Offence in question was essentially triable nder unamended provisions of Penal Code. [Pp. 288 & 289] E Sardar Muhammad Sayab Khalid, Advocate for Petitioner. Raja Shiraz Kayani, Advocate-General for Respondent No. 1. Mr. Ghularn Mustafa Mughal, Advocate for Respondent No. 2. M/s. M. Tabassum Aftab Alvi, Raja Muhammad Hanif Khan, Ch. Muhammad Ibrahim Zia, Kh. Shahad Ahmed and Sh. Abdul Aziz, Advocate, as Amicus Curiae. Dates of hearing: 2.5.1997, 14.5.1997 and 4.6.1997. judgment Sardar Said Muhammad Khan, C.J.--This appeal has been directed against the order of the High Court dated 29.12.1996, whereby the revision petition filed by respondent No. 1 was dismissed. 2. According to the case of the petitioner, herein, on 1.4.1995, he was walking on Water Supply Road at District Headquarters, 'Bagh. when Muhammad Khurshid. respondent No. 2, who was driving a jeep rashly, seriously injured the appellant and two others by colliding the vehicle with them. In view of serious nature of his injury, the appellant was removed to Pakistan Institute of Medical Sciences, Islamabad, where his leg was amputated to save his life. Meanwhile, a criminal case was registered against respondent No. 2 under sections 279, :,37 and 338, A.P.C., and after investigation he was challaned in the Court of S.D.M. Respondent No. 2 confessed his guilt before the Court and was convicted and awarded punishment t>f fine of Rs. 200/ under section 279, A.P.C., Rs. 300/- under section 337, A.P.C./and Rs. 500/- under section 338, A.P.C. Consequently, the Government filed a revision petition before the High Court but the same was dismissed by the High Court; holding that in the circumstances of the case the trial Court did not commit, any error while awarding sentence of fine to the accused-respondent. 3. It has been argued by Sardar Muhammad Sayab Khalid, Advocate, the learned counsel for the appellant, that the offence in the instant case is alleged to have been committed on 1.4.1995, whereas the amendments in A.P.C. and Or.P.O. were brought vide Ordinance promulgated on 19.7.1995, the case was challaned in the Court of Magistrate on 28.12.1995, the date on which the accused-respondent made confession and was convicted and sentenced by the Magistrate. The learned counsel has argued that 28.12.1995, the date when the challan was filed and cognizance of the offence taken would determine the forum before which the accused should have been challaned. The learned counsel has maintained that on 28.12.1995, section 337, A.P.C., had been substituted by various other penal provisions including section 337-G which would be attracted to the case in hand because section 337, A.P.C., was no more on the statute book. He has argued that the relevant date in the case would be the date on which the Magistrate examined the accused-respondent under section 242, Cr.P.C. and recorded his confessional statement. Thus, in the estimation of the learned counsel for the appellant, the relevant date for deciding the question as to which of the Court had the jurisdiction to try the offence would be the date on which cognizance of the offence was taken and not the date on which the offence was committed. The learned counsel for the appellant strenuously argued that as on 28.12.1995, when the challan was filed, the District Criminal Court had the jurisdiction to try the case and not the Magistrate, irrespective of the fact that the offence was committed on 1.4.1995. When the learned counsel was confronted with the situation that if his submissions are accepted as valid, how the District Criminal Court could not try the offence under section 337, A.P.C., in view of the amendments made in Azad Penal Code and Code of Criminal Procedure, the learned counsel maintained that despite that the challan should have been filed before the District Criminal Court. However, the said Court could not convict and sentence the accused under section 337-G, A.P.C., in view of the fact that offence had become graver as a result of enhanced punishment prescribed through the said amendments. He has argued that in such an eventuality, the District Criminal Court had the jurisdiction to convict the accused under section 337- G, A.P.C., but could not award the punishments more severe than provided under section 337, A.P.C. The learned counsel has cited the following authorities in support of his contentions:- In case reported as Adrian Afzal v. Capt. Shcr Afzal (PLD 1969 SC 187), it was observed that if the matter is merely of procedural nature, it. will operate retrospectively. However, it was observed that if a procedural amendment is of such a nature that it, also affects existing rights of substantive nature, or if retrospective operation is given to the procedural amendment that would cause inconvenience or injustice, then the Court will not give it a retrospective effect. In case reported as Nabi Ahmed v. Home Secretary, Government of West Pakistan, Lahore (PLD 1969 SC.599), it has been observed that the statutes are presumed to be applicable to the cases and facts coming into existence after their enactments unless there is clear intention to the contrary giving retrospective effect to the law. It has been further obsei-ved that every law that makes an action penal which was innocent when it was done or aggravates a crime, or makes it a greater offence than one when it was committed or it changes the punishment or inflicts greater punishment, or changes substantive law would operate prospectively until and unless contrary intention appears in the statute. However, this principle would not. apply in cases of procedural matters which would ordinarily apply to the pending proceedings. While dealing with the question of procedural and substantive law. following observations were made at page 611): "People do not mind changes in law. if only the procedure is altered without altering the substance of the law. True, it is not easy to draw a line between substantive and procedural law, but the task is not impossible if the essential difference is kept in mind. According to Salmond's Jurisprudence. 12th Edition of 1966 at p. 128:- 'The.Iaw of procedure may be defined as that breach of the law which governs the process of litigation. All the residue is substantive law, and relates, not to the process of litigation,'hut to its purposes and subject-matter.'. Thus: 'a right, of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party.' 'rules defining the remedy as those which define the right itself,' that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equalent to rules of substantive law.' and, as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum-- 'if in the process any existing rights are affected or the giving of retroactive operation causes inconvenience or injustice.' In case reported as Muhammad Aslam v. The State (PLD 1967 SC 259), the facts were that the incident which led to the prosecution of the accused persons took place on 18.1.1963. They were committed for the trial to the Court of Sessions by order of the committing Magistrate, dated 6.6.1963. Till that time the Code of Criminal Procedure provided for trial of such cases by the Court of Sessions with the aid of assessors. On 1.4.1964, the Code of Criminal Procedure was amended whereby all trials before the Sessions Court were to be held without assessors. The question arose as to whether the trial should be hold with the aid of assessors or without them in view of the amendment. It was observed that the trial of the accused persons would be deemed to have commenced when they were examined by the Magistrate under section 242, Cr.P.C. Thus, it was observed that even if the trial without the aid of assessors is not merely a matter of procedure but goes beyond that, the fact remains that there is no reason why the trial should not be held without the aid of assessors because the relevant law had been amended prior to the taking of cognizance of the offences by the Sessions Court. Itv case reported as Referring Authority/Chief Secretary, Azaa Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan (PLD 1982 SC (AJ&K) 112), while dealing with the scope of provisions contained in sections 6(a) and 9 of the Holders of Representative Offices (Disqualification) (Amendment) Ordinance, 1981, it was observed that rights of the parties are to be decided according to law which existed at the time of initiation of the action and not according to law which existed at the time of the judgment or order. However, it was observed that if the matter is merely of procedural nature, that would operate retrospectively, if it was not otherwise intended by the Legislature. In case reported as State Bank of Pakistan v. Pervez Iqbal Bhatti, Proprietor, Former Bhatti Trading- Company, Peshawar (PLD 1995 Peshawar 112), it was observed that after the substitution of sections 23-B, 23-C and 23-E of Foreign Exchange Act, 1947 by section 4 of Finance Act, 1987, a new forum had been provided and the old forum had been omitted. It, was observed that the repealing Act provided a new forum for the trial of the cases which took place before the promulgation of repealing Act, and, thus, the new forum was competent to try the cases. In case reported as Brig. (Retd.) F.B. Ali v. The State (PLD 1975 SC 506), it was observed that mere lodging of information against a person does not make him an accused nor can a person be called accused against whom investigation is conducted by the Police. 4. In reply, Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for accused-respondent, has contended that the arguments advanced by the learned counsel for the appellant that the relevant date for determining the forum for trial in the instant case would be the date on which the accused was examined by the Magistrate under section 242, Cr.P.C., or for that matter the date on which the challan was presented is not tenable. He hasargued that the question to be decided in the case is as to whether the aforesaid amendments are merely of procedural nature or those travel beyond that and affect the vested right of the accused-respondent. The learned counsel has maintained that the factors which would determine the forum for trial would depend upon the nature of amendments brought, in law and the date of the commission of offence. He has argued that when the accused-respondent committed the offence, it was triable under section 337. A.P.C., and other penal provisions of Azad Penal Code, as no amendments had been made in Azad Penal Code and Code of Criminal procedure by that time. He has argued that the offence committed by rash and negligent driving, after the amendments, falls under section 337-G, A.P.C., for which the accused is liable to the punishment of 'arsh' or 'daman' specified for the kind of hurt caused and he can also be punished with imprisonment.for a term which may extend to five years as 'taazir'. The learned counsel maintained that after the said amendments, the gravity of the offence has been enhanced and punishments prescribed have also been changed. Thus, the learned counsel for the respondents maintained that the aforesaid amendments are not merely of procedural nature but travel beyond that. Therefore, those would not operate retrospectively because it has not been so provided by the amending Acts. According to the learned counsel, only the Magistrate had the jurisdiction to try the case and not the District Criminal court because it was not vested with the powers to tiy the offence under section 337 A.P.C. The learned counsel for the respondent has cited the following authorities in support of his arguments:- In case reported as Karam. Hussain v. Basharat Hussain (PLD 1991 SC (AJ&K) 27), it was held that if the change is not merely of procedural nature but, it also affects the substantive rights, the statute cannot be given In case reported as State v. Sahib Dad (PLD 1981 Azad J & K 88), it was held that amendment under section 24(2) of the Islamic Penal Laws Act, 1974, cannot operative retrospectively and the cases heing tried before the Sessions Judges would not he reansferred to the District Criminal Courts consisting of Sessions Judge ;i nd Qazi. In case reported as Zargul v. The State (1989 SCMR 529) it was held that as the expression in section 57 of the P.P.O. was 'transportation for life' when the offence was committed; it was subsequently changed to 'imprisonment for life'. Thus, the amendment would not apply to the case of the accused concerned because when the offence was committed, the penalty was 'transportation for life'. As a result, of the said change, the term of the imprisonment was increased from 20 years to 25 years. 5. It is evident from the authorities cited above that whether a law is merely of procedural nature or it also affects the substantive rights or it is a statute which deals with the procedure and substantive rights both simultaneously, is to be seen in light of the provisions of particular statute and no general principle can be laid down that law in a particular case would operate retrospective or prospectively. Thus, the question as to which of the forums would be competent to try the case would depend upon the question as to the nature of the amendment. The effect, of Cr.P.C. Amendment Act, 1995 and Penal Code Amendment Act, 1995 on the offences committed before the promulgation of the said amendments would depend upon the nature of the amendments which have been brought in the relevant provisions of the law, i.e., whether the same are merely of procedural nature or of substantive nature or deal with both procedure and substantive rights. In the instant case, the nature and quantum of punishment in cases of different kinds of hurts have been changed, punishment for causing hurt by rash and negligent driving has been enhanced as compared with the punishment which was provided under section 337, A.P.C.; under section 337-G, A.P.C. the accused who causes hurt by rash and negligent driving is liable to the punishment of 'arsli' or 'daman' specified for the kind of hurt and the punishment of imprisonment of five years as 'taazir', whereas under section 337, A.P.C., the punishment prescribed is six months or a fine of Rs. 500/- or both. Evidently, the punishment prescribed for causing injuries by rash and negligent driving under section 337-G, A.P.C., is much more harsh as> compared with the punishment stipulated under section 337, A.P.C. Therefore, after the aforesaid amendment in the A.P.C., not only the nature of offence of causing injury by rash and negligent driving has become graver but the punishment prescribed for various kinds of injuries has also been increased. As indicated, above, the offence in the instant case was allegedly committed on 1.4.1995 and challan in the court was put. up on 28.12.1996 whereas the aforesaid amendment in the law was brought on 19.7.1995, i.e. after the commission of the offence under section 337, A.P.C. Thus, in the instant case it cannot be said that, the amendments made in the aforesaid two enactments are merely procedural in nature and do not affect the substantive rights of the parties concerned. Therefore, in our opinion, the contention that the amendment made in the A.P.C. whereby the offence under section 337, A.P.C., was substituted would operate retrospectively is without any force and is hereby replied. 6. The contention of the learned counsel for the appellant that the relevant date for determining the forum for the trial of the case in hand would be the" date on which the challan was presented before the Magistrate or the Magistrate took the cognizance and not the date when the offence was committed is not tenable in view of the settled principles of law as reflected by the authorities discussed above. Similarly, the argument of the learned counsel for the appellant that when the offence was committed the accused-respondent was liable to punishment under section 337, A.P.C., but after the said amendments, only the District Criminal Court was competent to try the accused under section 337-G, A.P.C., is also without any substance because the date on which the accused committed the offence, section 337-G was not on the statute book of the State and it had no jurisdiction to try a case falling under section 337, A.P.C. For elucidating the matter, section 6(e) of the General Clauses Act is reproduced as under:- "6. Effect of repeal.-\V\vrc this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made. then, unless a different intention appears, the repeal shall not,:- (a) (b) re) ................................................................ (d) ............................................................................................................ (e) affi-cl any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid: and any such investigation, legal proceeding or remedy may be institiitud, continued or enforced aiid any such penalty, forfeiture or punishnie iii may be imposed as if the repealing - Act or Regulation hud not._be_en_p_asged (underlining is ours). It is clear from the above provision that the accused-respondent could be challaned under section I537, A.P.C.. in the Court, of the Magistrate which had the jurisdiction to try the offences committed and not in the District Criminal Cou 7. The expression used in clause (e) of section 6 of the General Clauses Act, reproduced above, (.hat any such investigation, legal proceeding or remedy may be instituted, continued or enforced, is clearly indicative of the fact that after investigation by the Police, the challan was to be presented to the Magistrate and not to the District Criminal Court. Thus, in view of the proposition of law enunciated in the authorities, referred to above, the offence in question was essentially triable under unamended provisions of Penal Code by the Magistrate and not by the District Criminal Court as is contended on behalf of the appellant. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. (MYFK) Appeal dismissed
PLJ 1997 SC (AJK) 289 PLJ 1997 SC (AJK) 289 [Appellate Jurisdiction] Present: basharat ahmed shaikh and muhammad younus surakhvi, JJ. MUHAMMAD AZAM KHAN etc.-Appellants versus MUHAMMAD SIDDIQUE KHAN etc.-Respondents Civil Appeal No. 3 of 1997, allowed on 4.6.1997. (On appeal from judgment of High Court dated 30.10.1996 in Civil Revision No. 42 of 1995) Restoration- Cross suits filed by Appellants and Respondents-Dismissal of suit filed by respondents for non appearance and as exparte filed by appellants- Application for restoration of both suits-Exparte order set aside whereas suit filed by respondents not restored-Appeal -against-High Court accepted appeal and restored suit-Appeal against-Suit was dismissed for non appearance on 27th of October 1991 whereas application for restoration was filed on 30th June 1992 i.e. after Eight months-Basic question involved is of Limitation-High Court expressed view that lack of proper legal advice was only reason for which application for restoration was not moved within time-This reason is not legally sustainable-. Respondents did not plead that there was lack of proper legal advice-It is also not on record as to what wrong adviceWrong legal advice on an " unambiguous legal provision is not a recognized ground for condonation of delay-Respondents when appeared as a witness, he admitted that he had come to know about dismissal of suit an 28th of October whereas in restoration application, respondents took plea that they acquired knowledge about dismissal of their suit on 29th June-By falsifying averment made in application, respondents destroyed founda-tion on which restoration application was based-A duty is imposed on a plaintiff to be vigilant and guard against the risk of dismissal of his suit- Consolidation of suit, which is procedurally in nature does not change basic requirement-Judgment of High Court set aside and judgment of District Judged restored-Appeal allowed. [Pp. 291, 292 & 293] A to D Mr. M. Tabassum Aftab Alvi, Advocate for Appellants. Mr. Ghularn Mustafa Mughal, Advocate for Respondents. Date of hearing: 07.04.1997. judgment Basharat Ahmad Shaikh, J.--A civil suit fded by the respondents, Muhammad Siddique and others, was dismissed for default of appearance. Application of restoration was dismissed. Appeal taken to the District Judge also failed. However the High Court has set aside the order mentioned above and the suit of the respondents has been restored on payment of Rs. 2,000/-. Appellants, Muhammad Azam Khan and another, seek reversal of the order passed by the High Court through this appeal which has been filed with leave of the Court. . Facts of the case are that two cross cases between the parties were pending in the Court of Sub-Judge Bagh. The suits were consolidated and main proceedings were being taken in the suit filed by the present appellants. The evidence of the appellants had already been recorded and the respondents, Muhammad Siddique and others, were examining their witnesses. On 27th of October 1991 Muhammad Siddiqxie Khan and others did not appear before the trial Court,. Consequently ex parte order was passed against them in the suit tiled by the appellants while the suit filed by Muhammad Siddique Khan and others was dismissed. On 14th of November exparte. order passed against Muhammad Siddique and others was set aside. There is no dispute about that, order. The respondents initially did ot file application for restoration of the suit. They did so on 30th of June 1992 after the period of limitation had expired long time back. The application was resisted whereupon issues were framed and evidence was recorded. The application was rejected. 3. In the restoration application, he respondents stated in the suit filed by Muhammad Azam Khan and others that exparte proceedings were ordered against them on 27th of October 1991 but the order was vacated on 14th of November. Thereafter they were regularly appearing before the Court. It was stated that the suit tiled by them should have been attached with the file of the cross suit. On 27th of October the plaintiff did not attend the Court due to black day. It was stated that even otherwise the files were consolidated and it was only on 29th of June that the plaintiff came to know that the suit had been dismissed for default of appearance. 4. Application for restoration was dismissed on the ground that no material had been brought on record in support of the application. It was also observed that no nroof in respect of ohservance of black ay on 27th of _^. October 1991 was available on record and therefore the verbal statement that black day was observed on that day had no value. It was observed that the application was moved after eight months and could not be accepted without convincing proof. The learned District Judge Bagh, while rejecting the appeal filed by the respondents, observed that adverse orders were passed against them on the same day but the respondents only moved one application which was accepted and the ex parte order was vacated but they failed to more application for restoration of the other suit within time. The application was rejected for being barred by time. The application was rejected for being barred by time. 5. In the order under appeal learned Judge in the High Court " "" observed that it was in his personal knowledge that on 27th of October 1991 black day as observed in Azad Jammu and Kashmir. It was also observed that when Muhammad Sidduaie appeared before the trial Court in support of the restoration application he admitted that he came to know on 28th f ctober that the suit filed by him had been dismissed. However the learned Judge expressed the view that: lack of proper legal advice was the only reason for which application for restoration was not moved within time. It was further observed that Courts have always encouraged fair trial. The __ application for restoration of the suit, was accepted for these reasons. 6. In my view the basic uestion involved in the case if of limitation. dmittedly it become known to respondent No. 1 on 28th of October that the suit had been dismissed. The reason which has prevailed with the learned ^ Judge in the High Court is that there was lack of proper legal advice. In my considered view, this reason is not legally sustainable. The respondents did not plead that there was lack of proper legal advice. It is also not on record as to what wrong advice, if any, was given to the respondents. In any case wrong legal advice on an unambiguous legal provision is not a recognised ground for condonation of delay. 7. A perusal of the restoration application shows that the plea taken~ by the respondents was that they had acquired knowledge about dismissal of their suit on 29th of June and the restoration application was being promptly filed on 30th of June. It means that the limit for filing the application was sought to be counted from the date of knowledge. However B when Muhammad Sidclique, respondent No. 1, appeared as a witness he admitted that he had come; to know about the dismissal of suit on 28th of -^ October. By falsifying the averment, made in the application that relevant knowledge was acquired tin 29th of June, the defendants destroyed the foundation on which the restoration application was based. 8. The learned Judge in the High Court has recorded his personal knowledge that black day was observed on 27th of October 1991. Therespondents were given opportunity to produce evidence in support of averments made in the restoration application. In my opinion a finding can be based only on evidence or upon judicial notice. Moreover, the fact that that if a suit is dismissed on a date which is not "a date of hearing" the order is void. The position in the present case is not similar because the date on which the suit was dismissed was fixed for recording of evidence which is indisputably a date of hearing. 12. A large number of cases was also cited by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants. In view of the conclusion reached by me I need not advert to them. As an upshot of the foregoing discussion the judgment of the High Court is set aside and the judgment of the District Judge is restored with the result that the application for restoration of the suit filed by respondent Muhammad Siddique and others shall stand dismissed as being time-barred. Costs would follow. "~ "NT (MYFK) Appeal allowed.
PLJ 1997 SC (AJK) 293 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 293 [Appellate Jurisdiction] Present: SARDAR SAID MUHAMMAD KHAN, C.J. AND muhammad younus surakhvi, JJ. MUHAMMAD SARWAR etc.-Appellants versus Mst. GHULAM BI etc.-Respondents Civil Appeal No. 73 of 1996, dismissed on 30.5.1997. (On appeal from judgment of High Court dated 11.5.1996 in Civil Appeal No. 21 of 1995). (i) Gift-- Gift deed-Suit for cancellation of-Dismissal of-Challenge to-Gift-deed was executed within share of donors and appellants failed to substantiate their claim with regard to execution of gift-deed in xcess of share of vendors-High Court rightly observed that unless some material defect as non-reading of evidence, mis-reading of evidence or travesty of finding is established a finding of fact could ot ave been allowed to be discharged- ' Appeal dismissed. [P. 296] A (ii) Gift- Whether a gift deed not coupied with delivery of possession of corpus to donee is invalid in the eye of lawQuestion ofDelivery of possession is not a condition precedent for validity of a gift in all cases and condition is subject to all just exceptionstf in a given case, possession is not with donor at relevant time but he makes clear to divest himself of ownership of property by doing all he could do, validity of gift is not open to challenge on basis of non delivery of possession-Moreover validity of giftdeed could have been challenged only by donor on any of his heirs claiming hrough him-Donors after executing gift in favour of donee got mutation of gifted land in favour of donee thus they made their intention clear to depart from their dominion over property and they never objected to same-A gift out, of a joint property is valid without formally delivering possession. [P. 297] B 1980 CLC 1110 SC (AJK), PLJ 1996 SO (AJK) 165, 1993 SCMR 165 ref. (iii) Gift- -Gift deed-Two suits against (i) Declaratory suit for cancellation of and (ii) for correction of entries in gift deed-Consolidation of-Whether onsolidation was illegal-Question of-Suit for correction of entries was f a formal nature and rights of appellants were not adversely affected by consolidation-Where a party was not caused any prejudice by any decree passed against it, decree could riot be reversed or varied nor hall the case be remanded on account of misjoinder of parties or cause of action-If a decision is within jurisdiction of court it should not be upset merely for technically and immaterial defect. [P. 298] C & Kh. All Muhammad, Advocate for Appellants. Raja Muhammad Siddiquc Khan, Advocate for Respondents. Date of hearing: 26.5.1997. judgment Muhammad Younus Surakhvi, J.--This appeal, with the leave of the Court, calling in question the judgment, and decree passed by the High Court on May 11, 1996, has been filed by the appellants herein, whereby the appeals filed in the High Court were dismissed. 2. The necessary facts, giving rise to the present appeal are that a suit for the cancellation of gift-deed executed by Mst. Ghulam Bi and Mst. Sahib Bi on Nov. 23, 1987, in favour of Muhammad Iqbal, respondent, herein, was filed in the Court of Sub-Judge Dadyal, on Nov. 14, 1988, by Muhammad Sarwar and others. In this suit Mutation No. 3007 attested on Feb. 25, 1988, on the basis of gift-deed was also challenged. It was claimed that land measuring 112 kanals 18 marlas, comprising survey Nos. 4371, 4373, 4383, 4387, 4390, 4384, 4401, 4419, 4420, 4427, 4372, 4379, 4380, 4386, 4418, 4388 % 4421 and 4422, khewat No. 88, khatas Nos. 437 and 438, situate in village Khirrari, Tehsil Dadyal, District Mirpur, was in possession of plaintiffs and proforma-respondents, Abdul Rehman and others. The giftdeed was challenged on the ground of same being executed in excess of share of donors, for want of delivery of possession and on various other grounds. Another suit for correction of the gift-deed executed by Mst. Ghulam Bi and Mst. Sahib Bi in favour of Muhammad Iqbal was also filed by donee, Muhammad Iqbal, in the Court of Sub-Judge Dadyal on March 18, 1989. Both the suits were consolidated and many issues arising out of the pleadings of the parties were framed. After the conclusion of the trial of the suits, the learned trial Judge dismissed the declaratory suit filed by Muhammad Sarwar and others, however the suit filed by Muhammad Iqbal for correction of gift-deed was decreed. The two appeals filed by the appellants against the judgment and decree of the trial Court were dismissed by the learned District Judge Mirpur. Subsequently both the appeals taken to the High Court were also dismissed vide the order impugned, which is the subject of present appeal. 3. Kh. Ali Muhammad, learned counsel, arguing the case on behalf of appellants, siibmitted with vehemence that the gift-deed executed by Mst. Ghulam Bi and Mst. Sahib Bi in favour of Muhammad Iqbal, respondent, was invalid as the same was not coupled with the delivery of possession to the donee. The ^earned counsel argued that the gift-deed was executed in excess of the share of the donors. According to the learned counsel even the acreage of khewat from which the gift was executed was shown less than the actual one and in some of survey numbers the land was shdwn more whereas in fact it was less. The learned counsel also emphasised that the consolidated trial of both the suits was illegal as the cause of action in both the suits was different. The learned counsel pointed out that the suit iled for declaration had nothing to do with the suit filed for correction of entries in the gift-deed. 4. Raja Muhammad Siddique Khan, the learned counsel representing the respondents, in reply argued that the copy of petition for leave to appeal supplied to him under the Supreme Court ules was not the same as was filed in the Court. The learned counsel submitted that the copy of the petition supplied to him substantially varied than the one filed in the Court and on this sole ground that appeal merited dismissal. The learned counsel strenuously contended that, the impugned judgment recorded by the High Court was perfectly valid warranting no interference by this Court. The learned counsel submitted that the delivery of actual possession in all the cases of gift was not a condition precedent. The requirement of law, according to the learned counsel, was that in case of a gift from joint holding the donor should do all that which was within his power and express his intention to depart from the subject, of gift and from the ownership of the gifted property. They learned counsel also pressed into service the ubmission that the consolidated trial of both the suits has not in any way prejudiced the interests of appellants and as such their contention was founded and devoid of any legal force. 5. We have given our due consideration to the arguments advanced at Bar and perused the relevant record. On the "basis of evidence brought on record by the parties both the Courts below and the High Court reached the conclusion that the disputed gift-deed was executed within the share of the donors and the plaintiff-appellants failed to substantiate their claim with regard to the execution of gift-deed in excess of the share of the vendors. The concurrent finding recorded by the trial Court on question of fact and the first appellate Court could not have been assailed in second appeal before the High Court and the igh Court veiy rightly observed that unless some material defect, such as non-reading of evidence, mis-reading of evidence or travesty of the finding is established a finding of fact could not have been allowed to be discharged. Even erroneous finding of fact, however inexcusable it may be, cannot be disturbed in second appeal unless there is some defect in the procedure causing error in the decision of case n merits. Thus we uphold the finding recorded by both the Courts below and the High Court that the gift-deed executed by donors was not beyond their shares. 6. The next point to he determined is as to whether a gift-deed not coupled with the delivery of possession of corpus to the donee is invalid in the eye of law? As a general principle it may be stated that if a donor is himself in actual physical possession of the corpus the delivery of possession would normally require actually putting up the donee in physical possession of the same hut there may well be cases wnere the possession is not with the donor himself or where the donee is already in possession jointly or severely with the donor or where the donee is a minor and the donor is a minor's guardian it would not be a ondition precedent, for completion of a valid gift under the Muhammadan Law to put donee in actual physical possession of the gifted property. In the instant case the gifted land was undivided share of the donors so it was not nocessaiy requirement, to deliver the physical possession to the donee. In such like cases the necessaiy requirement is only that donor should do all that for parting with the wnership of the gifted land whatever was within his control and he should divest himself of the ownership and his dominion over the property when the gift will be completed and valid. Our aforesaid view finds support form the case reported as Fazal Hussain v. Mst. Walayat Jan and others (PLJ 1996 SC (AJK) 165). In the case reported as Muhammad Bashir and others v. Muhammad Yaqub and others (1993 SCR 165), the precise facts were that one Mst. Bago executed a gift-deed in favour of her son Gulla, of land measuring 133 kanals 2 marlas, out of which 7 kanals 4 marlas was transferred to Muhammad Yaqub and Ali Zaman Khan through registered sale-deed. Alaf Din plaintiff, there, filed a suit praying that gift-deed in favour of Gulla and subsequent sale-deed in favour of Muhammad Yaqub and Ali Zaman be declared as null and void on the ground that gift-deed executed by M.s/. Bago in favour of Gulla, her son, was not followed by deliveiy of possession and the same being out of undivided property (musha) was void and of no legal consequence. Dealing with the proposition it was obsei-ved by this Court at page 167 in the following manner:- "First coming to the question as to whether the gift-deed executed by Mst. Bago in favour of Gulla is not valid because the same was not followed by the deliveiy of possession, it may be stated that, it is well settled principle of law that the objection regarding non-delivery of possession can only be raised either by the donor or his heirs and not by a third person. There is no dispute in the instant case that the plaintiff, Alaf Din or for that matter his legal representatives are not legal heirs of Ms/. Bago. Thus, the gift-deed in question could not be challenged." In another case titled Rc.hm Ali vs. Abdul (1980 C.L.C. 1110 SC (AJK), it was observed that gift cannot be held as invalid for non-delivery of possession and that the constructive possession, as corpus is susceptible, accompanied by the acts of the donor shown that, he parted with the ownership of the property would suffice for the delivery of the gift. 8. From the survey of case law it. is evident that the plea of delivery of possession is not a condition precedent for the validity of a gift in all the cases and the condition is subject to all just, exceptions. If in a given case the possession is not with the donor at the relevant time but he makes his intention clear to divest himself of the ownership of the property by.doing all that he could do, the validity of gift is not, open to challenge on the basis of non-delivery of possession. Moreover the validity of gift-deed could have been challenged only by the donor or any of his heirs claiming through him. The donors after executing the gift in favour of done in the instant case got the mutation of gifted land sanctioned in favour of done and thus they made their intention clear to depart, from their dominion over the property and they never objected to the same. It. is admitted between the parties that the land in dispute is a joint holding which is not, yet partitioned by metes and bounds. Thus a gift out of a joint property is valid without formally delivery the possession to the donee. By now it is settled that it is always a donor or his heir claiming through him wh-- has the lorns-standi to challenge the giftdeed for want of deliveiy of possession but, any other person who challenges the gift-deed on the basis of non-delivery of possession in exercise of his individual right he had no locus-standi to challenge the gift as he challenges the same not through the donor hut in spite of and against him. Reference may usefully be made to a case reported as Safi Ullah v. Ghulam Jabbar (PLD 1955 Lah. 191). 9. As regards the objection relating to the consolidation of both the suits, it may be stated that, the consolidation of the other suit filed by Muhammad Iqbal, donee, for correction of entries longwith the declaratory suit filed by Muhammad Sarwar and others, suffice it to say that the consolidation even if proved to he irregular the same in no way prejudiced or jeopardised the interests of the appellants. The suit for correction of entries in the gift-deed was of a formal nature and the rights of appellants were not adversely affected by the consolidation of the said suit alongwith the other suit.Section 99 of the Civil Procedure ("ode may usefully be reproduced:- "No decree shall 1)6 reversed or substantially varied nor shall any case bu remanded, in appeal on account of any misjoinder of parties or cause of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." This section provides that where a party was not caused any prejudice by any decree passed against it, the decree could not be reversed or varied, nor-shall the case be remanded on account of misjoinder of parties or causes of action. This provision suggests that if a decision is within the jurisdiction of the Court it should not be upset merely for technical and immaterial defect. After having reached the conclusion that the consolidation of suits have not in any way adversely affected the interests of the appellants therefore the contention raised by the learned counsel for the appellants having no merit in it is hereby repelled. 10. As pointed out in l.he earlier part of the judgment that Raja Muhammad Siddique Khan, the learned counsel for respondents, raised a preliminary objection that appeal was liable to he dismissed under the Supreme Court Rules because the copy of petition for leave, to appeal provided to him substantially varies than the one filed in the Court. Since the appeal is liable to be dismissed on other points already disclosed above, we do not feel the necessity of adverting to the aforesaid preliminary objection and we leave it open to be resolved in some other case if and when the occasioixfor the same arises. 11. In the'light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs. (MYFK) Appeal dismissed.
PLJ 1997 SC (AJK) 299 PLJ 1997 SC (AJK) 299 [Appellate Jurisdiction] Present: sardar said muhammad, CJ and basharat ahmed shaikh, J. KASHMIR MINING AND DEVELOPMENT WORKS-Appellant versus AZAD JAMMU AND KASHMIR GOVERNMENT etc.-Respondents Civil Appeal No. 18 of 1997, dismissed on 4.6.1997. (On appeal from Order of High Court dated 13.1.1997 in Writ Petition No. 134 of 1996). Regulation of Mines and Oil Fields and Mineral Development (Federal Control) Act, 1948-- S. 2 read with Azad Jamrmi and Kashmir Mines Act, 1977 Prospecting License for extraction of marble stone-Refusal to appellant, but issued in favour of respondent. No. 6-Writ. petition against-dismissal of-Appeal against-Competency of Committee which issued license to respondent No. 6, was not challenged in writ, petition in High court-Case of appellant, in High Court was that said committee refused to issue icense to him on the ground that he was previously issued mining licences for two successive terms but he showed no progress-Stand of appellant was that facility of road and bridges was not provided to him, but there as no such agreement, .between appellant and respondents that any such facility would be provided to him-Appellant, has varied his case by Challenging constitution of Committee-Said Committee issued three license to ppellant for other works while rejecting his application for extraction of marble-On the one hand he was benefited from committee and accepted its competency, but, on other hand he challenged its jurisdiction eld: arty which does not come to court with clean hands by following policy of hide and seek, is not entitled to discretionary relief in exercise of writ, jurisdiction-Appellant, is not, entitled to any relief-Appeal ismissed. [P. 301] A & B 1993 SCR 105. 1993 SCR 159, ref. Raja Muhammad Hanif Khan, Advocate for the Appellant. Raja Shiraz Kayani, Advocate-General, for Respondents Nos. 1 and 2. Date of hearing: 4.6.1997. judgment Sardar Said Muhammad Khan, C.J.--This appeal has been directed against the order of the High Court, dated 13.1.1997, whereby the writ petition filed by the appellant, herein, was dismissed. 2. The brief facts of the case are that a prospecting license of marhle stone of the area known as Chunj Gali, Tehsil and District Muzaffarabad, was issued in favour of respondent No. 6 on 26,5.1996. The appellant filed a writ petition in the High Court challenging the aforesaid license issued in favour of respondent No.. 6 on the ground that the same was issued in violation of rules on the subject and the application of the appellant for the license was rejected on the grounds which are not recognised by the relevant law. The writ petition was dismissed by the High Court. 3. We have heard the arguments and perused the record. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, argued that the High Court has not appreciated the point raised before it that the Committee whicli declined to recommend the issuance of the license to the appellant, was not properly constituted; he has argued that previous Committee was constituted in pursuance of the Rules framed under section 2 of the Regulation of Mines and Oil Fields and Mineral Development (Federal Control) Act, 1948, (hereinafter shall be called as Act of 1948), whereas the question of issuance of license to the appellant was governed by the provisions contained in the Act. known as Azad Jammu and Kashmir Mines Act, 1977 (hereinafter shall be referred as Mines Act, 1977). E learned counsel has argued that the Committee constituted under the Rules framed under the Act of 1948 was not competent to perform the functions after the promulgation of the Mines Act, 1977. The learned counsel has further.argued that he raised this point in the High Court but no finding has been given on the same. The learned counsel has also argued that respondent No. 6 was not a Slate Subject and as such he had to file a declaration under the Mines Act, 1977 to the effect that he would not indulge in any subversive activities prejudicial to the security of the State. 4. In reply, Raja Shiraz Kayani, Advocate-General, has controverted the arguments advanced by the learned counsel for the appellant, he has argued that the appellant did not challenge the constitution of he licensing Committee in the memorandum of writ petition filed in the High Court and not even during the course of his arguments there. He has argued that he has not filed any affidavit in support, of the ssertion that he had pressed the aforesaid point during the course of arguments but the same was not considered. The learned Advocate-General has further argued that even if it is assumed that any such point was argued irt the High Court that would not help the case of the appellant because under the provisions of General Clauses Act, until and unless the Rules are framed under the subsequent statute, the Rules framed under the repealed statute shall continue to hold the ground. The learned counsel has maintained that it is on the record that the appellant applied for issuance of five licenses, out of hich hree were issued to him on the recommendations of the said Committee. Thus, the learned counsel for the respondents has contended that the appellant purposely did not take the stand in the High Court that the Committee in question was not properly constituted. So far as the question of filing the declaration by respondent No. 6 was concerned, the learned counsel has argued that the point of the non-filing of the declaration was not raised in the writ petition and even otherwise, this would not render the license issued to the respondent as invalid. 5. We have given due consideration to the arguments raised at the Bar. It may be stated that the competency of the Committee was not challenged in the memorandum of writ petition in the High Court, rather a perusal of the memorandum of writ petition filed in the High Court would reveal that the case of the appellant in the High Court was that the said Committee refused to issue the license to him on the ground that the appellant, was previously issued mining licenses for two successive terms but he showed no progress. The stand of the appellant was that he could not show progress in extraction work because the facility of road and bridges was not provided to him. It may be observed that there was no such agreement between the appellant and the respondents that any such facility would be provided to him. It appears that the appellant has varied his case, if not in the High Court, at least, in this Court by challenging the constitution of the Committee. It is on the record that, the appellant was issued licenses for the extraction of marble for the previous two successive terms by the same Committee which refused him to issue the said license for the term in question, besides, the Committee issued three licenses to the appellant for other works while rejecting his application for the extraction of marble. Thus, on the one hand the appellant benefited from the Committee and accepted its competency but, on the other hand the challenged its jurisdiction with regard to the license for extraction off marble. It is well settled principle of law of writs that a party which does not come to the Court with clean hands by following the policy of hide and seek is not entitled to the discretionary relief in exercise of writ jurisdiction. A reference may be made to the cases reported as Abid Hussain Jafri v. Azad Government (1993 SCR 105) and Bashir Ahmad v. Add I. Custodian of Evacuee Property (1993 SCR 159), wherein the aforesaid principle has been affirmed. Therefore, irrespective of the validity or otherwise of the arguments advanced by the Jearned counsel for the appellant, we are of the view that the appellant is not entitled to any relief in view of his conduct indicated above. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed. (MYFK) Appeal dismissed.
PLJ 1997 SC (AJK) 302 PLJ 1997 SC (AJK) 302 [Appellate Jurisdiction] Present: BASHARAT AHMED SHAIKH AND muhammad yunus surakhvi, JJ. AURANGZEB and another-Appellants versus ARIF MEH BOOB and another-Respondents Civil, Appeal No. 4, of 1997, accepted on 22.5.1997. (On appeal from judgment of High Court dated 14.1.1996 in Civil Revision No. 78 of 1993). Civil Procedure Code, 1908 (V of 1908) -O. 22 R. 9-Abatement of suit-Application to set aside abatement- Acceptance of-Revision against-Dismissal of-Appeal against-Sub-rule 2 of O. 22 R. 9 Gives a power to court to set aside abatement only if it is proved that concerned person was prevented by any Sufficient cause from continuing suit-Application for setting aside of abatement was opposed and plea of limitation was raised-It was not specifically stated in objections that it was incorrect that file was before High Court during period mentioned in application-View taken by High Court is that this fact has to be deemed to lie admitted-But High Court failed to notice that it still remained to be decided whether this fact constituted sufficient cause-This question had still to be resolved but was left, un-decided-If suit file was with High ('.ourt, application could still be moved before trial l^agfeWgntnVisence ol suit^ile^an application could have been moved before Hi^h Court whidi cmnJrJ have attached it with suit file In that case an appropriate order could have been passed on pplication by trial court as and when file was received back-Duty imposed by law was moving of an application which if performed would have absolved respondents off their responsibility but they failed to do o-Held: There was no cause which prevented respondents from moving an application-Orders of High Court as well as trial Court are not sustainable-Appeal accepted Application for etting aside of abatement dismissed. [P. 305] A to C Ch. Muhammad Yunus Arvi, Advocate for Appellants. Raja Muhammad Siddiquc Khan, Advocate for Respondents. Date of hearing: 22.5.1997. judgment Basharat Ahmad Shaikh, J.--Facts giving rise to the present appeal, by leave of the Court, are that a suit titled ArifMehboob and others us. Muhammad Han if and others was peliditig before thelearned Additional Sub-Judge Mii-pur. Defendant No. 1, Muhammad Hanif. was murdered on 4th of February 1993. An application was moved by plaintiffs in the suit on 24th of June 1993 praying that abetment may be set aside and the legal representatives of deceased Muhammad Hanif may be brought on the record. When the application was moved plaintiff Arif Mehboob, who is respondent No. 1 in this appeal, was confined in judicial lock-up as an accused in connection with the murder of defendant Muhammad Hanif. The application was accepted. The decision was un-successfully challenged before the High Court which declined to exercise revisional powers to set aside the order passed by the trial Court. Hence this appeal by leave of the Court. 2. In the application for setting aside the abatement it was stated that the suit file had been called up by the High Court on 12th of January 1993 in connection with a criminal matter titled Aurangzeb vs. The State and has, after its return from the High Court, put up before the Presiding officer for the first time on 19th of June 1993. It, was stated in the application that apparently the application was being moved after the expiry of limitation but for the reason stated above (that, the file was in the High Court) it was in the interest of justice to set aside abatement and implead the legal representatives of the deceased defendant. The application was opposed by the surviving defendants by filing objections in which it was stated that Muhammad Hanif died on 4th February while the application had been moved on 24th of June was time-barred. It was stated that the suit had already abated and legal representatives of the deceased could not be brought on the file. The High Court, has taken a special note of the act that in the objections just mentioned the only point which was raised related to limitation and did not contain any comment on the factual ground in respect of the cause of delay. It may be noted that when arguments were addressed before the learned trial Judge it was contended that during the period when the suit, file was in the High Court the application could be moved before the High Court or before the trial Court, where it could be attached with the index. 3. While accepting the application' the learned trial Judge expressed the'view that satisfactory and logical explanation for the delay in making of the application had been furnished. The High Court has, however, taken the view that the application for bringing on record the legal representatives of the deceased defendant was filed beyond the period of ninety days but impliedly the application was moved for setting aside the abatement order for which a further period of sixty days is allowed. The High Court reached the conclusion that the application for setting aside abatement was within time. The view taken by the High Court is correct. It is so because the application moved before the trial Judge did contain a specific prayer that the abatement may be set aside and it was moved with a period of sixty day from the date of automatic abatement. However, as the relevant legal provision shows, an application for setting aside abatement cannot be accepted merely on the ground that it was moved within time. 4. The relevant legal provision on the subject is Rule 9 of Order XXII of the Civil Procedure Code which is worded as follows:- "9. (1) Whore a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an isolvent plaintiff may apply for an order to. set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit." Sub-rule (2) reproduced above gives a power to the Court to set aside abatement only if it, is proved that, the concerned person was prevented by any sufficient cause from continuing the suit. The plea taken in the application moved for setting aside abatment was that the suit file has been called upon by the High Court even before the death of Muhammad Hanif. The learned trial Judge accepted this plea but the High Court has not expressed any opinion whether it: constituted sufficient cause within the meaning of Rule 9 reproduced above and has only observed that in the objections filed to oppose the application for setting aside abatement it was not denied that the file was before the High Court. The conclusion reached by the High Court has been expressed in these words:- "It will not be out of place to mention here that the grounds taken by the respondents for not moving the application within the period of 90 days, were not denied by the petitioners. Under the Civil Procedure Code all questions of fact must necessarily be denied either expressly or by necessary implication. Even an evasive denial of a question of fact is ignored and such fact is deemed to have been admitted. In the present'case, the defendants-petitioners have not denied the grounds at all which, according to the respondents, prevented them to apply in time before the Court for bringing on record the legal representatives of deceased Muhammad Hanif." 6. We have already noted that the application for setting aside of abatement was opposed and plea of limitation was raised. It was not specifically stated in the objections that it was incorrect that the file was before the High Court during the period mentioned in the application. The view taken by the High Court is that this fact has to be deemed to be admitted. It means that it was admitted that the suit file was with the High Court, but the High Court failed to notice that it still remained to be decided whether this fact constituted sufficient cause. The High Court has not made any observation whether (.lie admitted fact did nor did not amount to a sufficient cause within the meaning of Rule 9. The acceptance of the application was duly opposed in the objections and the facts hat the file was before the High Court was not ipan facto followed by the conclusion that it was a sufficient reason which prevented the concerned person from continuing the suit. This question had still to be resolved but was left un decided. 7. After anxious considerati n, I am unable to uphold the plea raised by the respondents that the fact that the file was before the High Court constituted a sufficient cause within the meaning of Rule 9. If suit file was with the High Court the application could still be moved before the trial Judge even in absence of the suit file and it was for the trial Court to pass an appropriate order; the application could have been attached with the index, if not, an application could have been moved before the High Court which could have attached it with the suit. file. In that case an appropriate order could have been passed on Uu; pplication by the trial Court as and when the file was received back. The duty imposed by law was moving of an application which if performed would have absolved the respondents of their responsibility but they failed to do so. In my view there was no cause which prevented the respondents from moving an application. Thus the orders of the High Court as well as the trial Court are not sustainable. 8. The appeal is, therefore, accepted and the orders passed by the High Court as well as by the trial Court are set aside. Consequently the application for setting aside of abatement stands dismissed. owever there will be no order as to costs. (MYFK) Appeal accepted.
PLJ 1997 SC (AJK) 306 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 306 [Appellate Jurisdiction] Present: BASHARAT AHMAD SHAIKH AND muhammad yunus surakhvi, JJ. Ch. MUHAMMAD MAHMOOD-Appellant versus AURANGZEB and 6 others-Respondents Civil Appeal No. 45 of 1996, decided on 14-12-1996. (On appeal from the judgment of the High Court dated 9-6-1996 in Writ Petition No. 9 of 1994) Azad Jammu and Kashmir Interim Constitution Act, 1974 (VIII of 1974)-- S. 44--Constitutional jurisdiction, exercise ofDisputed question of fact- Question involved in case could be easily resolved in the light of documentary evidence produced by parties-Even therwise where no other adequate remedy was available, it was duty of Court exercising Constitutional jurisdiction to decide disputed question of fact if it was possible to do so in the light of affidavits or other vidence produced by parties. [P. 308] A Ch. Muhammad Sharif Tariq. Advocate for Appellant. Ch. Muhammad Azain Khan and Ch. Liaqat AH Khan, Advocates for Respondents. Date of hearing : 23-11.1996. judgment Basharat Ahmad Shaikh, J.--A writ petition filed by Ch. Muhammad Mahmood, appellant herein, calling in question the order of allotment of a plot in Mirpur Town to respondent No. 1, Aurangzeb has been dismissed by the High Court and the appellant was granted leave to appeal in light of the submissions that: the High Court had grossly misread the record of the case. 2. The point in dispute in the case in short. The appellant claims that he was allotted plot No. 1-B, sub-sector E-3, Part-II, on 29th of June 1981, by^the Allotment Committee of Mirpur, Development Authority. Subsequently the sub-sector was transferred to the Municipal Committee Mirpur, now a Corporation, which prepared a new scheme and marked a new plot on the same location giving it a new number, namely, 119-E showing it to be in sub-sector E-3, Part I. It is claimed that the place is the same and that by doing so allotment made in favour of the appellant has been rendered non-existent, although the plot had been allotted in due course of law, he had paid the price of the land and had also taken over , ^ possession. So far as the factum of allotment and payment of price is concerned it is evidenced by documents and receipts and is not disputed. 3. Both the parties filed documents. At a later stage of the proceeding the appellant moved an application before the High Court that he wanted to file certified copies of some documents of which uncertified copies had already been placed on the record. This application was accepted. 4. While deciding the case the learned Judge, who was sized of the matter, observed in paragraph 7 of the judgment that pivotal question in controversy was whether Plot No. 119-E allotted in the name of respondent No. 1 is marked a place where the appellant's plot was located. After examining the documents placed on the record the learned Judge reached the conclusion that the appellant, had failed to establish his case. With the assistance of the learned counsel for the parties we have gone through the record available in the High Court file and find that the finding recorded by the learned Judge in the High Court is not correct. 5. Annexure T/3' is a certified copy of the part plan of sub-sector E- -3 Part-II. Another certified copy, of the same document was subsequently filed, with the permission of the Court, and is marked as 'P/19'. In this part plan two plots have been shown each having measurement of 90 x 50. One is marked as I/A and other is 1/B. On the back side of the plots site for Police Post is shown. On the western side of the Plot No. 1/B a nullah is shown. If one moves from west to east the nullah comes first, the comes Plot No. I/A ; and then Plot No. 1/B. This number was marked when the allotment to Ch. Muhammad Mahmond was. made. As already mentioned, when Plot. No. 119-E sub-Sector E-3, Part-I, was allotted to Aurangzeb a new part plan was ' prepared whjph is in the file as Annexure 'P/20'. In this site plan also a j nullah and a Police Post are shown. The plan shov/s that if one moves from west to east after the nullah there is Plot No. 119-E and then further east is Plot No. 119-D. On back of the site there is land reserved for Police Post. A comparison of the two site plans leads to unmistakable result that the location of Plot No. 1/B and Plot No. 119-E is the same, only the number of plots and phase is different. Another document which also leads to the same conclusion is possession chit given to respondent Aurangzeb which on its reverse side contains a map of the place where his plot as situated. In this plan there is a nullah and on the eastern side of the nullah is Plot No. 119-D and then is shown Plot No. 119-E. Place for Police Post is duly shown on the f back side of these plots. 6. In paragraph 7 of the judgment learned Judge of the High Court observed that part plan showing Plot No. 1/B and I/A marked by the Overseer of the Mirpur Development Authority was inadmissible in evidence and could not be relied upon. We may observe that the learned Judge failed to take note of the fact that there was another copy of the same document which was marked as Annexure T/3'. It was duly attested by an Overseer of the Municipal Committee Mirpur. The learned Judge also failed to take note of the fact that amongst the documents which the learned Judge allowed the appellant to place on record yet another copy of the same document is placed as Annexure T/19'. It is attested by the Town Planner of the Mirpur Development Authority. Due to this omission the learned Judge reached a conclusion which was not correct. 7. It was also observed in the judgment under appeal that such disputed questions could not be resolved by this Court in writ jurisdiction. We may observe that the questions involved in the present case can be easily resolved in light of the documentary evidence produced by the parties. Even otherwise where no other adequate remedy is available it is the duty of the Court exercising writ jurisdiction to decide dispute question of fact if it is possible to do so in light of affidavit or other evidence produced by the parties. Consequently, we accept the appeal and vacate the order of the High Court and order acceptance of the writ petition filed by Ch. Muhammad Mahmoocl. We hold that Ch. Muhammad Mahmood is allottee of the same plot over which subsequently Plot No. 119-E was marked and allotted to Aurangzeb who transferred it to Daswandi Khan, one of the respondents, and that the allotment to Aurangzeb of the plot already allotted to Ch. Muhammad Mahmood was without lawful authority and of no legal effect. However, if the Municipal Corporation accommodates respondent Aurangzeb, now represented by Daswandi Khan, by giving him an alternate plot it will be free to do so. The appellant would have his costs throughout from the Municipal Corporation. (K.K.F.) Appeal accepted.
PLJ 1997 SC (AJK) 308 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 308 [Appellate Jurisdiction] Present : BASHARAT AHMAD SHAIKH AND muhammad yunus surakhvi, JJ. AISHA HAMEED QADRI-Appellant versus NOMINATION BOARD and 6 others-Respondents Civil Appeal No. 5 of 1997, decided on 12-1-1997. 4On appeal from the order of the High Court, dated 17-12-1996 in Writ Petition No. 348 of 1996) Azad Jammu and Kashmir High Court Procedure Rules, 1984- R. 34-Interim relief-Question of-No notice was given to other party before granting interim relief to petitioner by High CourtOther partyhaving not been heard before passings order granting interim relief- Order passed by High Court in violation of R. 34 of Azad Jammu and Kashmir High Court Procedure Rules, 1984, was set aside. [P. 311] A 1994 SCR 245 ref. Raja Muhammad HanifKhan, Advocate for Appellant. Sardar Rafique Mahmood Khan, Advocate for Respondent No. 2. Date of hearing: 12-1-1997. judgment Basharat Ahmad Shaikh, J.-Aisha Hameed Qadri has filed a petition for leave to appeal to challenge an order by which the High Court has granted interim relief in favour of respondent No. 2 Rabat Saeed Bukhari. The matter is of urgent nature and both the parties are present. Therefore, the petition for leave to appeal is converted into appeal and is being decided accordingly. It may be pointed out that in the memorandum of appeal Nomination Board has been impleaded as a respondent but in fact the Board is only pro forma-respondent because the interim order challenged before us has been passed against it was not in its favour. The only beneficiary of the order under appeal is respondent No. 2. 2. The dispute relates to nomination of state subject against seats reserved in the Medical Colleges in Pakistan . The facts are that nomination to medical seats had been completed when an additional seat was also made available. Respondent No. 2 Rabat Saeed Bukhari was nominated against the seat but her nomination was challenged by appellant Aisha Hameed Qadri by filing a writ petition which was accepted by the High Court. An appeal was brought to this Court by Rahat Saeed Bukhari but it was dismissed. The finding recorded by the High Court and upheld by this Court was that Aisha Hameed, who had already been nominated to a B.D.S. seat, should have been awarded the additional seat and her place could be taken by Rahat, Saeed Bukhari. Accordingly direction was issued to he Nomination Board to withdraw Rahat Saeed Bukhari from the Medical College and to nominate Aisha Hameed Qadri in her place. 3. During the course of arguments before this Court in the previous appeal an objection was raised on behalf of Rahat Saeed Bukhari, who was -the appellant that, during the pendency of the writ petition in the High Court Iram Shahzadi and Naisra Qadeer were nominated by the Nomination Board as a result of some judicial pronouncements but Aisha Hameed Qadri failed to implead the aforesaid two nominees as respondents in the writ petition and thus the writ petition was liable to be dismissed on the ground. On this point this Court made the following observation :- "We have given consideration to the above reflected question in the light of arguments advanced at the Bar. It may be stated that from the record and written arguments filed by the appellant in the High Court, it. transpires that the point of non-impleadment of Irani Shahzadi and Nsira Qadeer was nor pressed in the High Court,. Besides, the present dispute pertains to the additional seat and Irani Shahzadi and Nasira Qadeer were nominated out of the quota of five seats which were originally available; they had been not admitted to Medical College when present writ petition was filed. Thus, they were necessary party in the present, writ petition. The appellant, if feels aggrieved by their admission, may seek the redressal of her grievance against them in proper forum through appropriate means: Therefore, the contention of the learned counsel for the appellant that writ petition was not properly constituted has not force and is hereby repelled." 4. The judgment of this Court was announced on 16th October, 1996. On 12th of December, 1996 the Nomination Board passed an order to implement the judgment of the High Court as upheld by this Court. By that order Aisha Hameed Qadri was nominated to take place of Rahat Saeed Bukhari in Fatima Jinnah Medical College , Lahore and Rahat Saeed Bukhari was nominated to the B.D.S. Course in place of Aisha Hameed Qadri. As is claimed by the respondent Rahat Saeed Bukhari, in pursuance of the ^observation made in the portion of the judgment reproduced above Rahat, Saeed Bukhari filed a writ petition in the High Court on 16th of December, 1996 and also prayed for an ad interim relief. A learned Judge passed the following order on 17th of December, 1996 :-- "A Copy of the petition shall be supplied to the Azad Jammu and Kashmir Nomination Board for parawise comments upon the petition and to show cause as to why the petition may not be admitted for regular hearing. 2. There is also an application which is supported by an affidavit for an ad interim relief. It is directed that the petitioner shall not be disturbed from the set. she is holding, provided that the order of Supreme Coin! earlier passed is not violated subject to objections from the other side. To come up on January 28, 1997." 5. It is stated before us that when Nomination Board received this order a message was sent to the concerned authorities in Pakistan not implement the decision of the Nomination Board mentioned have which had been communicated earlier to the Federal Ministry of Health. This appeal has been filed to challenge the order reproduced above. 6. We have heard arguments from both sides. We find force in the submission made by Raja Muhammad Hanif Khan that the High Court has violated rule 34 of the High Court Procedure Rules which lays down that :- "34. Where an application for stjy or any other interim relief is made in any such petition no order shall be passed thereon unless seven days' notice of motion has been served by the petitioner on the person sought, to be affected by the order : Provided that the bench may in emergent cases dispense with the notice of motion nor curtail the period thereof.' 7. Before granting interim relief no notice was given to the other party. The High Court did not pags, an order dispensing with the notice or to curtail the period thereof. In our view it was clearly a case in which the other party gtiu'oid have been heard before passing the order. This Court has in a number of cases set aside the orders passed by the High Court in violation of rule 34 reproduced .above, but the violation of rule 34 appears to have become a rule in the High Court. This not only results in inconvenience to the parties but also interests of justice suffer in this process. On this point we may refer to Azad Government v. Sardar Parvaiz and others (1994) SCR 254). The order under appeal has, therefore, to be set aside on this short ground. 8. We also find that the order under appeal appears to be contradictory. The order passed by the Nomination Board on 12th of December, 1996 was challenged before the High Court. It is clearly laid down in the said order that it was being passed to implement the orders of the High Court and the Supreme Court. However, the learned Judge in the High Court directed that Rabat Saeed Bukhari should not be disturbed from the seat she was holding and also attached a condition that thereby the order of the Supreme Court shall not be violated. If the ends of justice warranted that Rabat Saeed Bukhari should not be disturbed from the seat she was occupying the learned Judge should have himself applied his mind as to how it could be done without violating the order of this Court. This matter could not. be left to be decided by the Nomination Board. In light of these two facts we have no opinion but to set aside the order passed by the High Court, and we order accordingly. However, the High Court may pass an order keeping in view the provisions of rule 34 of the High Court Procedure Rules and the observation made above. (K.K.F.) Appeal accepted.
PLJ 1997 SC (AJK) 312 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 312 [Appellate Jurisdiction] Present: basharat ahmad shaikh and muhammad yunus surakhvi, JJ. MIR ZAMAN ABBASI and 7 others-Appellants versus AJK GOVERNMENT and 2 others-Respondents Civil Appeal No. 60 of 1996, decided on 15-1-1997 . ( On appea 1 ! from the order of the High Court dated 13-11-1996 in Civil Revision No. 30 of 1996). AJK Interim Constitution Act, 1974 (VIII of 1974)-- -Ss. 44 & 46 read with AJK Courts and Laws Code Act, 1949, S. 35 and Civil Procedure Code (V of 1908), S. 115-Evidence-Closing of~ Revisional jurisdiction-Exercise of-Revision petition field by petitioner against order closing evidence was hopelessly time-barred and that ground alone was sufficient for dismissal of revision-Power to correct illegality though could be exercised by High Court under AJK Interim Constitution Act, 1974 and under AJK Courts and Laws Code Act, 1949, but fact that petitioners slept over the matter for almost two years in approaching High Court, would disentitle them from getting any relief in the matter-Case did not show existence of any gross miscarriage of justice so that Court could feel inclined to ignore time spent in moving High Court-Even otherwise a void order could not be set aside if had not been challenged within reasonable time-Appeal dismissed. [P. 313] A 1991 CLC 3607 and 1992 SCR 214 rcf. Raja Muhammad HanifKhan, Advocate for Appellants. Raja Shiraz Kiyani, Advocate-General and Nazir Ahmad Qadri for Respondents. Date of hearing : 14-1-1997. judgment Basharat Ahmed Shaikh, J.-On the initiative of the appellants a reference was filed by the Collector Land Acquisition before the learned District Judge Muzaffarabad. The District Judge closed the evidence of the appellants on the ground that numerous apportunities had been given to them for producing evidence but they failed to do so. A revision was taken to the High Court but it was dismissed. 2. The learned counsel for the appellants took us through the different orders passed from time to time and vehemently contended that on the date on which the evidence was closed there was no valid order directing the appellants to produce their evidence, it was pointed out, that on 20th of June, 1993, the previous date of hearing, the learned District Judge was not holding Court and the case was adjourned by the Reader of the Court for recording of evidence as already ordered. The learned counsel referred us to para. 4 of the order under appeal in which the High Court has expressed the view that orders passed by the Reader of the Court have no legal significance, it was contended that, in light of this rule the learned District Judge should have himself fixed another date for production of evidence and it is only then that an adverse order, in case of default, could be passed by the trial Court. 3. Mr. Nazir Ahmad Qadri controverted the argument and also pointed out that revision petition before the High Court was time-barred. The order challenged before the High Court was passed on 27th of July, 1993 while the revision petition was filed on 14th of May, 1995. Mr. Nazir Ahamd Qadri pointed out that rule 44 of the Azad Jamniu and Kashmir High Court Procedure Rules, 1984 lays down that a revision petition shall be filed within ninety days. The learned Advocate-General, Raja Sliiraz Kayani, stepped in to submit that the order of the High Court did not merit interference. 4. To meet the point of limitation Raja Muhammad Hanif Khan ubmitted that apart from revisionl power conferred on the High Court by section 115 of Code of Civil Procedure ample powers are vested in the High Court to pass an appropriate order in exercise of powers of superintendence and control vested in the High Court by section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 as well as section 35 of the Courts and Laws Code 1949. The learned counsel relied on a judgment of this Court reported as Muhammad Aslam Khan u . Mst. Akbar Jan and others (1991 CLC 3607). This judgment lends support to the contention of the learned counsel but does not deal with the question of limitation. 5. The facts of the case show that the revision petition filed by the appellants in the High Court, was hopelessly time-barred and this ground alone was sufficient for its dismissal. The power to correct an llegality could still be exercised by the High Court under the two provisions of law which have been referred to above, f lowever, the fact that the appellants slept over the matter for almost two years in approaching the High Court disentitles them from getting any relief in the matter. The facts of the case do not show that there has been gross miscarriage of justice so that the Court may feel inclined to ignore the time spent in moving the High Court. A number of opportunities were given to the appellants to produce evidence but they failed to take advantage of the accommodating attitude of the trial Court. In the judgment of this Court in Mirza Lai Hussain v. Custodian of Evacuee Property (1992 SCR 214), which has been cited by Mr. Nazir Hussain Qadri, we have held that even a void order cannot be set aside if it has not been challenged within reasonable time. We, therefore, do not find any merit in the appeal and order its dismissal. However, we leave the parties to bear their respective costs in the Court. (K.K.F) Appeal dismissed.
PLJ 1997 SC (AJK) 314 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 314 [Appellate Jurisdiction] Present: sardar said muhammad khan, C.J. and muhammad yunus surakhvi, J. KHADIM HUSSAIN-Appellant versus JAMAL HUSSAIN and 2 others-Respondent Civil Appeal No. 7 of 1997, decided on 15-3-1997. (On appeal from the judgment of the High Court dated 28-11-1996 in Civil Revision No. 8 of 1996). (i) Civil Procedure Code, 1908 (V of 1908)-- -O. VII, R. 11-Plaint-Rejection of action-Ascertainemnt of cause of action-Presumption as to entitlement for relief-Conditions-Court, if after perusing plaint, comes to conclusion that averments made in plaint, if presumed true, plaintiff may get relief sought, plaint cannot be rejected for absence of cause of action. [P. 316] A (ii) Civil Procedure Code, 1908 (V of 1908)-- -O.VU, R. 11-Plaint-Rejection of-Defendant want rejection of plaint for non-disclosure of cause of action has to show that even if allegations in plaint are presumed to be true, plaintiff was not entitled to any relief. [P. 316] B 1995 CLC 1982 distinguished. Ch. Muhammad Ibrahim Zia, Advocate for Appellant. Sardar Iqbal Hussain Khan, Advocate for Respondents. Date of hearing : 10-3-1997. judgment Sardar Said Muhammad Khan, C.J.--This appeal has been preferred against the judgment and decree of the High Court dated 18-11-1996, whereby accepting the revision petition filed by Jamal Hussain and others, respondents herein, the plaint, was rejected under Order VII, rule 11, C.P.C. on the ground that the same did not disclose a caxise of action. 2. The brief facts of the case are that a pre-emption suit was filed by the appellant, herein, alleging that the agreement-to-sell dated 31-5-1995, was in fact a sale-deed but the same was garbed as an agreement-to-sell to deter the plaintiff-appellant from exercising his right of pre-emption. Initially, an application was submitted in the trial Court by the defendantsrespondents that the pre-emption suit may be dismissed because the plaint did not disclose a cause of action. After hearing the parties, the trial Court rejected the application vide its order, dated 30-10-1995, observing that in view of the averments made in the plaint, it cannot be said at this stage that the plaintiff had no cause of action. It, was observed that the question as to whether the agreement-to-sell which has been pre-empted is tantamount to a sale-deed or not, is to be seen after recording the evidence, However, on v revision to the High Court, the order of the trial Court was set aside. 3. We have heard the arguments and gone through the file. Mr. Muhammad Ibrahim Zia, Advocate, the learned counsel for the appellant, has argued that under section 4 of the Right of Prior Purchase Act, any alienation which purports to be other than sale can be declared a sealed for the purpose of pre-emption. The learned counsel has drawn our attention to the contents of the plaint wherein it, has been pecifically alleged that in fact the land was sold but instead of executing sale-deed, an agreement-to-sell was executed so as to deprive the prospective pre-emptors of exercising the right of pre-emption. The learned counsel has argued that during the pendency of the suit, the defendants tiled an application for the rejection of the plaint alleging that a sale-deed of the suit land had been executed and, thus, the uit was not maintainable. Consequently, the plaintiff-appellant made an application for the amendment of the plaint which was still subjudice. The learned counsel has argued that irrespective of the uestion of amendment, the fact remains that a bare reading of plaint clearly shows that it is preposterous to suggest that the plaint does not disclose any cause of action. The learned counsel has referred to a case eported as Mir Qarnarul-Za'rnan v. Agricultural Development Bank of Pakistan, Muzaffarbad (1995 CLC 1982), wherein it has been held that for ascertaining the cause of action in a suit, the Court must pply its mind to the averments made in the plaint for ascertaining as to whether presuming averments made in the plaint to be true, the plaintiff is entitled to any relief, if the Court comes to the conclusion that, priina facie, the plaintiff may get the relief claimed, the plaint cannot be reject for non-disclosure of cause of action. 4. In reply Sardar Iqbal Hussain, Advocate, the learned counsel for the respondents, has argued that in fact when the suit was pending, the sale- deed with regard to the suit land was executed in favour of the respondents. According to the learned counsel for the respondents, the sale was completed when the regular sale-deed was executed and, thus, the agreement-to-sell does not give any cause of action to the plaintiff-appellant for filing a suit for pre-emption. The learned counsel has referred to section 20 and Order VII, rule 11 of the Code of Civil Procedure to substantiate his contention. He has also referred to a case reported as Sher Muhammad v. Rajada (PLD 1981 SC 591), wherein it has been held that limitation for filing a pre-emption suit would start if sale is completed and possession is delivered to the vendee, notwithstanding that mutation was attested or not. 5. Obviously, the authority cited by the learned counsel for the espondents has no relevancy to the case in hand. It is settled principle of law that at after perusing the plaint, the Court comes to the conclusion that the averments made in the plaint, if presumed true, the plaintiff may get the relief sought, the plaint cannot be rejected for absence of a cause of action. In the instant case, as has already been pointed out, the case of the plaintiffappellant is that in fact the suit land was sold and an agreement-to-sell was executed merely to deprive the prospective pre-emptors of exercising their right of pre-emption. The onus is upon the plaintiff to prove that transaction which took place between the paities was in fact a sale and that was merely garbed as an agreement-to-sell with ulterior motives. Thus, the trial Court has rightly held that it could not be said that on the relevant date, the plaint did not disclose a cause of action. It may be pointed out that if a defendant seeks rejection of a plaint for the non-disclosure of cause of action, he has to show that even if the allegations in the plaint are presumed to be true, the plaintiff was not entitled to any relief. In the instant case, it is not correct to suggest that even if the averments made in the plaint are presumed to be true, the plaintiff is not entitled to the relief claimed. In the light of what has been stated above, we accept the appeal, set aside the impugned judgment and decree of the High Court and restore that of the trial Court. The trial Court, shall proceed with the suit according to law. (K.K.F.) Appeal accepted.
PLJ 1997 SC (AJK) 317 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 317 [Appellate Jurisdiction] Present: BASHARAT AHMAD SHAIKH AND muhammad yunus surakhvi, JJ. SABIR HUSSAIN-Appellant versus Mst. SHAHEEN BIBI and 7 others-Respondents Civil Appeal No. 45 of 1996, decided on 22-1-1997. (On appeal from the judgment of the Shariat Court dated 8-10-1996 in Writ Petition No. 56 of 1996) Azad Jammu and Kashmir Family Courts Act, 1993-- S. 9 read with AJK Interim Constitution Act (VII of 1974), S. 42- Development not filed alongwith written statement-Cannot be considered as evidence-Report of examiner of question document could not be brought under consideration as the same was not filed alongwith written statement as required by law-Appeal was accepted and judgment of Shariat Court as well as reference of Family Court to the report and finding based on same was ordered to be vacated by Supreme Court. [P. 319] A Ch. Muhammad Ibrahim Zia, Advocate for Appellant. Abdul Hamid Khan Shahid, Advocate for Respondents. , Date of hearing: 19-1-1997. judgment Basharat Ahmad Shaikh, J.-The appellant filed a suit for restitution of conjugal rights in the Court of Family Judge Muzaffarbad, on 18th March 1995. He claimed in the plaint that marriage between him and Mst. Shaheen Bibi was solemnized on 22nd of March, 1993 at Palhotar. Mst. Shaheen Bibi and other defendants stated in their written statement that the aforesaid marriage was never solemnized and the suit had been filed to malign Mst. Shaheen Bibi and other defendants. The Family Court dismissed the suit on the ground that marriage alleged by the appellant had not been proved. An appeal taken to the Shariat Court failed. Sabir Hussain has been granted leave to file the present appeal. The learned counsel for the appellant, Ch. Muhammad Ibrahim Zia, stated before the Court that it was difficult for him to seek reversal of the decree in light of the facts of the case particularly in view of the fact that there was no evidence that Mst. Shaheen Bibi gave her consent for her marriage. However, the learned counsel prays that some observations made by the Shariat Court as well as the Family Court may be vacated. His plea is that these observations have been recorded withoutlegal warrant. Two documents were produced by the appellant in the trial Court. One is "Kabeen narna" and the other is an "Iqrarnama". About both these documents it was claimed that the signatures of Maulvi Abdul Qadir, the further of Mst. Shahecn Bibi, were inscribed on them. The plea raised by the defendants was that the alleged signatures were not in fact the signatures of Maulvi Abdul Qadir. About these signatures the Shariat Court has recorded the following finding in para. 8 of the judgment under appeal :- "8. Even dated signatures of Abdul Qadar on the Nikahnama and Agreement when sent to the hand writing expert for comparison, were declared as not bearing the identical characteristics with the admitted signatures of Abdul Qadar on other documents i.e. National Identity Card etc. The report of Examiner supports the contention of respondents that alleged documents were never executed and signed by Abdul Qadar deceased father or respondent No. 1." Similarly the Judge Family Court at two places in the judgment stated that according to the Examiner of Questioned Documents the signatures of Maulvi Abdul Qadir were proved fictitious. Ch. Muhammad Ibrahim Zia submitted that the report of Examiner of Questioned Documents has been illegally taken into consideration by the Family Court as well as the Shariat Court because it was not a part of the evidence. He submitted that it. is the requirement of section 9 of the Azad Jammu and Kashmir Family Court Act, 1993 that entire documentary evidence which a defendant wishes to produce in the case shall be filed with the written statement. It was stated that when the written statement was : filed the report of the Examiner of Questioned Documents was not attached with it. In fact this report does not pertain to the present case and pertains to a criminal case which has been registered at the instance of respondent Mst. Shaheen Bibi. Subsequently two applications were moved one after the other by the defendants for producing some more documents but the prayer was rejected on both the occasions. The report of Examiner of Questioned Documents, it was contended. Thus never became a part of the record in the case and could not be considered. It was explained by the learned counsel that the findings mentioned above might adversely affect the defence of the appellant in the criminal case mentioned above. Mr. Abdul Hamid Khan Shahid, the learned counsel for the respondents, could not show that the report of the Examiner of Questioned Documents was a part, of evidence. Therefore it has become apparent that the report of Examiner o Questioned Documents could not be brought under consideration in the present case. Therefore, we accept the appeal and order that paragraph 3 f the judgment of the Shariat Court as well as reference of the Family Court to the report of Examiner of Questioned Documents>and the finding based on it shall stand vacated. (K.K.F.) Appeal accepted
PLJ 1997 SC(AJK) 319 [Appellate Jurisdiction] PLJ 1997 SC( AJK) 319 [Appellate Jurisdiction] Present: basharat ahmad shaikh, muhammad yunas surakhvi, JJ. MALIK KHALID MAHMOOD-Appellant versus ABDUL MAJEED BUTT and others-Respondents Civil Appeal No. 65 of 1996, dismissed on 24.03.1997 . ( On appeal from the judgment of High Court dated 18.04.96 in Writ Petition No. 109 of 1994) Audi Alterarm Partem-- Doctrine of-Applicability ol'-Allotment-Cancellation of-High Court quashing cancellation order-Challenge to-Held: There can be no two opinions that once a valuable right which comes to be vested n any person it cannot be taken away without a proper hearing. [P. 321] A Rqja Hassan Akhtar, Advocate for the Appellant. Mir Khalid Mahmood, Advocate for the Respondent No. 2. Nemo for Respondent Nos. 2 to 5. Date of hearing: 24.3.1997. judgment Basharat Ahmad Shaikh, J.--This appeal relates to a dispute about a piece of land which measures a little more than two rnarlas situated within the Municipal limits of Dadyal. The High Court has accepted the writ petition filed by respondent No. 1, Abdul Majid Butt, and has restored his allotment of the disputed piece of land. favour of respondent No. 1 and an allotment chit had also been duly issued to him but no notice was given to the allottee before passing the order of cancellation. Therefore the High Court took the view that the order of cancellation was against the principles of natural justice. 5. Raja Hassan Akhtar, the learned counsel for Malik Khalid Mahmood, vehemently contended before us that the order passed by the Chairman Municipal Committee was not a final order because the Chairman . had ordered that the dispute about the allotment of the plot under dispute be placed in a meeting of the Allotment Committee for final adjudication. He submitted that the matter had to be resolved by the Municipal Committee in light of the said order and the writ petition, having been filed before final adjudication, was premature. In our view this argument has no force. An order of allotment had been passed in favour of respondent, No. 1 and it had been duly communicated to him. Although this allotment could be challenged by Malik Khalid Mahmood by adopting any legal course, the fact remains that the allotment had created a valuable right in favour of the allottee. There can be no two opinions that once a valuable right which comes to be vested in any person it cannot be taken away without a proper hearing. The fact that the Chairman did not allot the plot, to any other person and kept the matter open to be decided by the Municipal Committee does not make any difference in the eye of law because the order of cancellation has in any case taken away the valuable right which vested in respondent No. 1. 6. It was then argued by Raja Hassan Akhtar that when the - allotment order in favour of respondent No. 1 was issued the relevant rules authorising the allotment of plot had not yet been enforced. This point was argued before the High Court and was repelled by placing reliance on a notification issued on 25th of February 1988 whereby rules applicable to Mirpur Development Authority in respect of encroachments of land were made applicable to Municipal Committee Dadyal. The learned counsel for the appellant submitted before us that the view taken by the High Court was not correct. We need not decide this question because it is well settled that the appellant is estopped from raising this point. Admittedly the appellant himself applied on the prescribed form to the Municipal Committee that his possession over the disputed piece of land may be regularised in his favour. After having been unsuccessful in his attempt to secure a favourable order he cannot be allowed to turn round to say that the functionaries of the Municipal Committee did not have the authority to regularise encroachments. Therefore the order passed by the High Court is unexceptionable and we order dismissal of the appeal. (A.R.) Appeal dismissed.
PLJ 1997 SC (AJK) 322 [Appellate Jurisdiction] PLJ 1997 SC (AJK) 322 [Appellate Jurisdiction] Present : SARDAR SAID MUHAMMAD KHAN, C. J. AND muhammad yunus surakhvi, J. FAZAL KARIM-Appellant versus ABDUL MANAF & others-Respondents Civil Appeal No. 67 of 1996 dismissed on 29.3.1997. (On appeal from the judgment of High Court dated 13-4-96 in Civil Appeal No. 68 of 1994) Gift- Concurrent findings of all three courts below on factum of gift was fully supported by evidence on record-Donee was recorded to be in possession of suit land-No misreading of evidence by courts below- ppeal dismissed. [P. 323] A Ch. Muhammad Bashir, Advocate for the Appellant. Ch. Muhammad Azam Khan, Advocate for Respondent. DaU; of hearing : 28.3.1997. judgment Muhammad Yunus Surakhvi, J.-This appeal, with the leave of the Court, is directed against the judgment and decree passed by the High Court on April 13, whereby the second appeal filed by the appellant herein was dismissed. 2. The facts, leading up to the present controversy, are that the appellant-plaintiff filed a suit for concellation of gift-deed executed by him in favour of his son, Abdul Manaf and the mutation sanctioned on its basis. The said gift-deed was executed on April 4, 1972, but subsequently a gift-deed of the same land was executed by Abdul Manaf in favour of his wife, Mst. Klmrshid Bibi, respondent No. 2. Both the gift-deeds were challenged on the ground that the same were invalid on account of non-delivery of possession to the donees. 3. The learned Sub-Judge after conclusion of the trial of the suit dismissed the, same. The appeal taken before the learned District Judge Mirpur also failed. Second appeal preferred before the High Court was again dismissed vide the impugned judgment and decree which is the subject of present appeal. 4. It was observed by tr Courts below as well as the High Co rt that plaintiff-appellant could not substantiate his plea for non-delivery of possession at the time of execution of gift-deed and that the suit filed by the plaintiff-appellant was hopelessly time-barred. 5. In support of appeal >it was vehemently contended by Ch. Muhammad Bashir, the learned counsel for the appellant, that the Courts below as well as the High Court erroneously came to he conclusion that the possession of the suit land was delivered to the donees at the time of execution of the gift-deed. Explicit reliance was placed on a copy of Khasragirdawari pertaining to Kharif 1978 to Rabih 1989, wherein the possession to suit land is entered in the name of Aisha Bi, Nazain Bi and Fazal Karim from Kharif 1985 to Rabih 1989 and on the statement of one Muhammad Iltaf produced by the plaintiff-appellant. The learned counsel emphasis that all the Courts have misread the evidence and did not appreciate the same in its time perspective. It was also argued that the donee did not appear in the trial Court for getting his statement recorded in support of his claim and as such the inference would be against him. Meeting the point of limitation the learned counsel pointed out that at the time of execution of the first gift-deed the possession was not delivered to the donee who later on transferred the suit land through another gift-deed in favour of his wife on Oct. 26, 1988. Thus the suit filed in the year 1989 was well within time. 6. Controverting the arguments advanced by the learned counsel for the appellant, Ch. Muhammad Azam Khan, the learned counsel for respondents, strenuously submitted that the findings of fact have been concurrently recorded by the trial Court and the learned District Judge and the same were approved by the High Court. The High Court according to the learned counsel had no competence to upset the concurrent findings and appreciation of evidence by substituting its own opinion. The learned counsel submitted that the suit filed by the plaintiff-appellant was barred by limitation as the same was filed nearly after about 17 years and as such the same was liable to be dismissed. 7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, we found that the trial Court as well as the District Judge have concurrently observed on the basis of statement of Munshi Abdul Qayyum Patwari adduced by the plaintiff, who categorically stated that the copy of Khasra-girdawari Ex. P/A was not in accordance with the existing position of the suit land n the spot. It was also deposed by the said witness of the plaintiff that the entries in Khasra-girdawari do not tally withvthe entries recorded in Jamabandi 1976-1977 wherein some Abdul Manaf is entered into the possession of the suit land. The learned District Judge has also reiterated the same position. As regards the statement of one Muhammad Iltaf at one place it was stated by the said witness that at the time of execution of gift-deed the possession was handed over to Abdul Manaf but at another place the same witness stated that he did not know as to whether the possession of the suit land was delivered to donee or ot. suit filed by the appellant was barred by limitation as the same was governed by Article 91 of the Limitation Act for which the period of limitation is three years. The High Court has also concurred with the same view. . From the perusal of the judgments of Courts below and the High Court, it cannot be said that the evidence on record was misread by the said Courts. On the other hand all the Courts properly attended the points in controversy between the parties. It is practically a settled law that concurrent findings of fact recorded by the trial Court and the first appellate Court cannot be disturbed by the igh Court, howsoever erroneous they may be but in the instant case the findings recorded by the Courts below cannot be termed as erroneous particularly so when the same were approved and confirmed by the High Court. 9. In this view of the matter, finding no force in this appeal, it is hereby dismissed with costs. lA.R.) Appeal dismissed.
PLJ 1997 SC (AJK) 324 PLJ 1997 SC (AJK) 324 [Appellate Jurisdiction] Present : BASHARAT AHMED SHEIKH AND MUHAMMAD YUNUS SURAKHVI, JJ. TAZWEEZ HUSSAIN-Appellant versus ZAFAR IQBAL-Respondent Criminal Appeal No. 3 of 1997, dismissed on 3-7-1997. (On appeal from the order of the Shariat Court dated 16-11-1996 in Criminal Appeal No. 37 of 1996). Islamic Penal Laws Enforcement Act, 1974-- -Section 8/9 read with S. 279 A.P.C-Qatal-e-Khata-Vehicle fell down on account of rain and slipped-Death of a person sitting on the back side of pick up--Whether relevant ingredients of offences under ections 8/9 I.P.L are made out or notQuestion ofIn order to constitute an offence under S. 8/9 I.P.L there should be either mistake in intention or in act done by accusedBoth of these elements which are ecessaiy ingredients for constituting offence under Section 8/9 are totally missing and lacking in prosecution story-It is no where on record that accused intended to kill some one but infact deceased was illed or there was an act on part of accused to hit some other thing but he missed target and it hit deceased Thus necessary ingredients for constituting an offence under S. 8/9 were neither made out nor proved by rosecution as such accused-respondent could not have been convicted under swtinns 8/9 of T P T. TP 3981 A Ch. Muhammad Anwar, Advocate for Appellant. Ch. Muhammad Riaz A/am, Advocate for Respondent. Date of hearing : 23-6-1997. judgment Muhammad Yunus Surakhvi, J.--This appeal has heen preferred against an Order passed by the Shariat Court, of Azad Jammu and Kashmir on Nov. 16, 1996, whereby Zafar Iqbal, respondent herein, was acquitted of the offences under sections 8/9 Islamic Penal Laws Enforcement Act, 1974 (hereinafter to be referred as I.P.L.) and section 279 A.P.C. 2. The relevant facts, forming the background of the present appeal, briefly stated, are that a case under sections 8/9 I.P.L. was registered against the respondent at police station Mirpur. The prosecution case as disclosed in the F.I.R. is that on March 19, 1992. Zafar Iqbal, accused-respondent, was accompanied by Tazweez Hussain, complainant, in a Pick-up No. AJK-E-44 which was coming from Dadyal to Mirpur. The vehicle was driven by Zafar Iqbal, respondent, and both complainant and one Ibrar Hussain were sitting on the front, seat, whereas Muhammad Ameen and Muhammad Taj were sitting on the back side in the body of vehicle. At about 10.30 p.m. when the Pick-up reached near Khaliq-abad Cross, on account of rain it slipped and turned down. The vehicle feel into a drain on the left side of the road. As a result of accident Muhammad Ameen sustained injuries on the jaw, head and other parts of his body; however the other persons miraculously escaped. On his way to Hospital, Muhammad Ameen succumbed to he injuries. 3. After the registration of the case, the police conducted the investigation and ultimately presented a challan against the accusedrespondent for facing the trial under sections 8/9 I.P.L. While concluding the trial, the trial Court found the respondent guilty of the offences under sections 8/9 I.P.L. and awarded him the sentence of 'Diyyaf in the sum of Rs. 2,32,280/- to be paid by the 'Aaqhi 1 of the accused-respondent to the heirs of the deceased and further awarded the sentence of one year rigorous imprisonment alongwith fine of Rs. 1,000/- under section 279 A.P.C. Feeling aggrieved with his conviction order the respondent preferred an appeal before the Shariat Court of Azad Jammu and Kashmir which was accepted and he was acquitted of the aforesaid offences. Hence this acquittal appeal by the complainant-appellant. 4. Ch. Muhammad Anwar, the learned counsel for the complainantappellant, submitted with vehemence that a learned Judge in the Shariat Court without any valid and cogent reason acquitted the accused-respondent who was guilty of committing the offence of 'Qatal-e-Khata and was clearly Connected with the commission of the aforesaid offences on the basis of direct and confidence inspiring evidence of eye-witnesses namely Tazwaiz Hussain and Muhammad Taj. It was strenuously argued by the learned counsel for the appellant that Tazwaiz Hussain, complainant, was sitting alongwith the accused-respondent on the front seat of the vehicle whereas Muhammad Taj, the other eye-witness, was sitting on the back side of the Pick-up thus their direct evidence was sufficient for connecting the accusedrespondent with the commission of the offences alleged. The learned counsel pointed out that Mehboob Alain, M.M.P.L., clearly deposed in his evidence that the occurrence took place due to negligence and rash driving of the vehicle by the accused-respondent as a result of which Muhammad Ameen lost, his life after sustaining injuries. The learned counsel contended that the trial Court after appraisal of evidence on the record found the accusedrespondent, guilty of the aforesaid offences and convicted him of the charges levelled against him. The Shariat Court was not legally justified to set aside the conviction merely on the basis of conjectures and surmises. 5. Controverting the arguments raised by the learned counsel for the appellant, Ch. Muhammad Riaz Alam, the learned counsel for accused- . respondent, argued that the prosecution miserably failed to prove its case against the accused-respondent and under no circumstances the offences alleged against the accused-respondent were proved. The learned counsel submitted that the deceased and the eye-witnesses, as is deducible from the record, accompanied each other from Dadyal to Mirpur and on account of 'heavy rain the Pick-up on the fateful day of occurrence slipped and the accident took place just by a chance as a result of which Muhammad Ameen died. The learned counsel fully defended the impugned Order passed by the Shariat Court and maintained that the trial Court mis-directed itself in recording the conviction of accused-respondent. The judgment, thus, passed by die District Criminal Court, was rightly set aside by the Shariat Court. 6. The prosecution in order to prove its case examined Tazweez Hussain and Muhammad Taj as eye-witnesses of the occurrence. Arshad Mehmood and Abdul Qayyum, Head Constables, appeared s recovery witnesses of Registration Book, Insurance Book and other documents pertaining to the vehicle. Mehboob Alam, Inspector M.M.P.I., on reaching the spot prepared the site plan. Raja Muhammad Naseem Khan, D.S.P., partly conducted the investigation and then it was handed over the Ibrar Haider, Sub-Inspector, who conducted the full investigation and recorded the statements of witnesses under section 161 Cr.P.C. This is the sum total of the evidence which was produced by the prosecution in support of its case. Ibrar Hussain, an-eye-witness, was not produced by the prosecution and his evidence was timately closed by the trial Court. In his statement under section 242 Cr.P.C. the accused-respondent denied the-allegation. Similarly in his statement under section 342 Cr.P.C. the alleged incriminating pieces of idence were also denied by the accused-respondent. The accusedrespondent did not produce any evidence in his defence. 7. The moot point to be resolved in the present case is as to whether in the facts and circumstances of the case as disclosed in the, first After exhaustively dealing with the case law on the point, it was observed as under: "It, therefore, appears to us that in a case where the right of the plaintiff to recover that deht had not, become barred at the time when the amended Act was enforced, a procedural change in the period of limitation prescribed for summary suit cannot be considered to be affecting any vested right so as to attract the principles recognised ui section 6 of the General Clauses Act. With great, respect in the Bombay case this aspect of the case was not brought to the notice of the learned Judge and we do not consider that that decision has laid down correct law. In case reported as Dhani Bakhsh v. Rais Wali Muhammad [PLD 1962 Quetta 82], it has been observed that when Limitation Act prescribes the period of limitation for the institution of a particular suit, it does not create any right in favour of any person or define or create causes of action but only limits period for enforcing a right. Therefore, the period of limitation would be applicable which is enforced on the date on which the sxiit or proceedings are instituted notwithstanding the fact that the cause of action arose before such Act came into force. Therefore, despite the fact that law of limitation was not applicable under partly repealed 'Dastur-url-Amal Diwani, Kalat', the application for the restoration of appeal dismissed in default was rightly dismissing as being time-barred by virtue of subsequent state of law. In case reported as District School Board ofBclgaum v. Muhammad Mulla [AIR 1945 Bombay 377], it has been held that the statutes of limitation being procedural laws must be given retrospective effect in the sense that they must be applied to all the suits filed after they came into force. However, it was held that this general rule is to be read with one important qualification that if the statute of limitation given retrospective effect destroys a cause of action which was vested in a party or makes it impossible for that party for exercising its vested right, then the Court would not give retrospective effect to the statute oflimitation. While dealing with the proposition, it was observed as under : "Considering these authorities, it is clear that as a rule statutes of limitation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, and that is that, if the statute of limitation, if given a retrospective effect, destroys a cause of action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action, then the Courts would not give for this qualification is that it would inflict such hardship and such injustice on parties that the Courts would hesitate to attribute to the Legislature an intention to do something which was obviously wrong. Applying this principle to the facts of this case, Act 12 of 1938 was published in the Gazette on 27th May 1938, and S. I provided that it shall come into force on such date as the Provincial Government may by notification in the Official Gazette appoint; and the date appointed by the Provincial Government was 1st July 1938. So there was an interval between 27th May 1938, and 1st July 1938, during which, if I might so put it, the operation of the Act was suspended and the necessary intimation was given by the Legislature to the public that the Act would come into force on 1st July 1938, and that if they were not vigilant about their rights, they would be deprived of them. It is true that it was not open to the respondents immediately to go to Court on the Act being published in the Government Gazette of 27th May 1938, to the District School Board. But even if such a notice had been given and the necessary period had expired, still a few days would have been left to the respondents to file the necessaiy suits. It may be that the period is extremely short, but I cannot possibly hold that the respondents were deprived of an opportunity of exercising their right of action which had vested in them. However, short the period, the respondents had their right after giving the necessary statutory notice to commence their action against the District School Board. However reluctantly I must come to me 9 cWcWsYoff mat Mr, C'cpyee''! contention wist prey®} and that the respondents' claim except for a period of si In case reported as S.M. Junaid v. President of Pakistan [PLD 1981 SC 12] (Shariat Appellate Bench), dealing with certain provisions of Limitation Act as to whether they are repugnant to the Injunctions of Islam, observed that section 3 of the Limitation Act does not itself create any right to file suit, appeal or application and, thus, it is of procedural nature and the Shariat Court was not competent to deal with it. 4. Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the respondent, strenuously controverted the arguments advanced by the learned counsel for the appellant. He has contended that the proposition that a statute of limitation would not be given retrospective effect if it takes away the existing right of a party is well settled and even the authorities relied upon by the learned counsel for the appellant do not make exception to it, rather they support it. He has cited following authorities in support of his contention :-- In case reported as Government of Rajasthan v. Sangram Singh [AIR 1962 Rajasthan 43], it has-been observed that it is not always true that law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the rights. It has been observed that it is well settled principle of law that the new law of limitation would not revive a barred right and it is equality well settled that a new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of a litigant to enforce his right in the Court of Law. In case the remedy to enforce a vested right, is altogether barred on the date when the new law conies into force without providing any breathing time to a litigant, that remedy must continue to be governed by the old law of limitation. While dealing with the proposition, it was observed as under : "(12) On a survey of the authorities referred to above, I am of the view that it is not always true to say that the law of limitation is only a law of procedure and does not bar the remedy altogether so as to destroy the right. It is a well settled proposition of law that the new law of limitation would not revive a barred right. Similarly, it may be taken to be equally well settled that, the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a court of law. The law may be taken to be more accurately stated in the following passage in Corpus Jwns--quoted in the 'Interpretation of Statutes' by Bindra-1961, Third Edition, on page 586 : 'While it has been said that statutes relating to remedies or procedure may be given a retroactive operation, a more accurate statement of the principle intended is that, unless expressly prohibited by statute, and in the absence of directions to the contrary, or unless in doing so some contract obligation is violated or some vested right divested, statutes merely affecting the remedy or law of procedure apply to actions, thereafter, whether the right of action accrued before or after the change in the law. The Legislature has full , control over the mode, time, and manner of prosecuting suits, and whenever, upon consideration of an entire statute relating to those matters, it appears to have been the legislative intent to make itTo this I may further add that in case the remedy to enforce a vested right is altogether barred on the date when the new law comes into force without providing any breathing time to a litigant, that remedy must continue to be governed by the old law of limitation. I may, however, point out that the Legislature has full power to make a law retrospective as to destroy a right, or a remedy altogether but this must be expressly laid down or this result must flow by necessary implication. A court of law is not justified in drawing such inference merely form the fact that the new enactment deals mainly with procedure." In case reported as Muhammad Bachal v. Deputy Rehabilitation Commissioner, Hyderabad [PLD 1962 Karachi 889], it has been held that where the statute affects existing rights, its provisions should not be given retrospective effect, unless a clear intention is expressed to that effect. Thus, 'it was observed that Article" 98 of the Constitution of Pakistan (1962) cannot be interpreted as having retrospective effect and applicable to the writ petitions which were pending before the enforcement of the Constitution. 5. We have given our due consideration to the arguments raised at the Bar. There is no quarrel with the proposition that the law of limitation is a procedural law and generally it is given retrospective effect even if it is not so provided by the statute itself.. However, there is one exception to it: if such retrospectively takes away, destroys or nullifies the vested rights of a litigant, the old law of limitation would govern the matter and new statute or provision of law introduced by an amendment or otherwise, would not affect the vested rights of a litigant. Even, the authorities relied upon by the learned counsel for the appellant support the aforesaid view. A reference may also be made to a case reported as Joshi Maganlal Kunverji v. Thacker Mulji Budha [AIR 1951 Kutch 15]. While dealing with the proposition it has been observed as under : -- "(4). In the present case the plaintiff had a vested right under the repealed Limitation Act to bring his suit when the new Limitation Act was applied. The effect of the new Limitation Act was to destroy it outright. In such circumstances unless the legislature has stated in unequivocal terms that the new enactment should destroy the vested right it cannot be applied retrospectively so as to prevent the plaintiff from exercising his right to bring a suit which he had under the repealed Act." Identical view was taken in a Full Bench case reported as Jethmal v. Ambsingh [AIR 1955 Rajasthan 97]. 6. It follows from what has been stated above that in the instant f^case if the amended period of limitation, i.e., four months is given retrospective effect, the suit of the plaintiff-respondent would be hopelessly time-barred and would amount to destroy her vested rights. Therefore, there is no force in the contention of the learned counsel for the appellant that the High Court committed any error in passing the impugned judgment. -^ Consequently, the appeal filed by the appellant, herein, is hereby dismissed with no order as to the costs. (A.R.) Appeal dismissed.
PLJ 1997 SC (AJK) 349 PLJ 1997 SC (AJK) 349 [Appellate Jurisdiction] Present: BASHARAT ahmad shaikh and muhammad yunus surakhvi, JJ. MUHAMMAD YOUNUS & another-Appellants versus Malik NUHAMMAD NAWAZ & others-Respondents Criminal Appeal No. 34 of 1996 dismissed on 28.3.1997. (On appeal from the judgment of Shariat Court dated 14-12-1996 in Criminal Reference No. 5 of 1996). (i) Bail-- -S. 497 Cr.P.C.-Bail-It is well settled principle that for the purposes of hail law is not to be stretched in favour of prosecution-Even at bail stage benefit of doubt must go to accused. [P. 360] G (ii) Bail--Pre-arrest-- - S. 498 Cr.P.C.-Pre-arrest bail-Grant of-Pre-arrest bail is to be granted after tentatively considering material placed before Court, which includes, FIR, statement of witnesses under section 161, nature and credentials of prosecution evidence, plea of alibi raised by accused and any other relevant circumstances. [P. 359] D (iii) Bail--Pre-arrest- S. 498 Cr.P.C.-Pre-arrest bail-Grant of-Plea of alibi-It would be paradoxical to suggest that at the stage of pre-arrest bail, plea of alibi raised by accused cannot be taken into account and only evidence produced by prosecution is to considered-Held : It is imperative for court of law to consider any plea taken by an accused at bail stage alongwith material placed by prosecution on record. [P. 358] B (iv) Bail-Pre-arrest- -S. 498 Cr.P.C.-Pre-arrest bail-Grant of-Main consideration for grant of pre-arrest bail is whether prosecution is motivated by malice so as to cause irreparable injury to citizen's reputation and liberty and there should be apprehension of harassment and undue humiliation by means of unjustified arrest. [P. 358] C PLD 1983 SC 82; PLD 1981 Lah. 599 and 1994 S.C.R. 136 ref. (v) Bail-Pre-arrest-- S. 498 Cr.P.C.~Pre-arrest bail-Cancellation of-Refusal to-Delayed FIR-- Witnesses not nominating any accused in their initial statement- Evidentiary value of subsequent belated statement of witnesses mplicating accused yet to be determined by trial Court-Fatal injury Vattributed to co-accused-Held : These all factors, when taken together do make case of prosecution as that of further inquiry. [Pp. 359 & 360] E (vi) Bail-Pre-arrest- S. 498 Cr.P.C.-Pre-arrest bail-Cancellation of-Principle-In cases of nonbailable offence grant of bail is primarily is discretion and it should not be disturbed unless it is not exercised with due care and caution eeping in " view restrictions of Sec. 497 & 498 Cr.P.C.-Further discretion must be in accordance with dictates of justice and not arbitrary or fancifull-Thus while interfering with order of grant of bail there hould be some strong grounds as if order granting bail is patently perverse or manifestly wrong. ,. [P. 360] F ^ (vii) Criminal Procedure Code, 1898 (V of 1898)-- -Ss. 173 & 190-Submission of challan-Cognizance of-There is nothing in Section 190 to prevent a Magistrate from taking cognizance of case under clause (b) in spite of the fact that accused are laced n column No. 2 of eport under Sec. 173-Magistrate may not agree with conclusions reached at by the Investigating Officer. [P. 355] A PLD 1967 Lah. 76; PLD 1967 SC 425 ref. PLJ 1996 S.C (AJK) 60 distinguished. Ch. Muhammad Sharif Tariq, Advocate for the Appellants. Mirza Nisar Ahmad and Ch. Muhammad Yousaf, Advocates for the Respondents. M/s Kh. Atta Ullah and Ch. Muhammad Mushtaq, Addl. Advocate Generals for the State. Date of hearing : 24-2-1997. judgment Muhammad Yunus Surkahvi, J.-This appeal has been preferred against a consolidated judgment of Shariat Court passed on 14.12.1996, whereby the revision petition filed by the appellants herein for cancellation of bail allowed to Malik Muhammad Nawaz and Ayaz Asghar, respondent No. 1 and 2, by District Criminal Court Kotli, and challenging the order of the Sessions Judge Kotli, confirming the bail of accused-respondents 3 to 5 was dismissed. 2. The necessary facts, forming the background of the present appeal, are that a case under sections 302/324, 341, 147/148, 149, 109 and 337-A A.P.C. was registered on 1st of July, 1996, at 7.30 a.m. on the report of one Tahir Latif, at Police Station Kotli. It was alleged in the First Information Report that complainant was the polling agent of Mahmood-ul-Hasan Chaudhry, a candidate of Legislative Assembly of Azad Jammu and Kashmir, at Polling Station Narrali, in the general elections held on June ^Q, 1996. It was claimed by the complainant that he boarded a wagon for the purpose of carrying polling bags and polling staff from the assembly point Goi to Kotli. On its way to Kolti when the wagon reached the village Makrali all of a sudden some persons armed with guns appeared on the road side and started firing at the wagon, in consequences of which Prof. Muhammad Kazim, the Presiding Officer, Polling Station Seri Dharra, was murdered, while Master Muhammad Bostan r/o Dhandli, Master Mushtaq, Master Muhammad Iqbal and Sajjad driver of the said wagon were seriously injured. The assailants, according to the complainant, who allegedly took part in the firing were Malik Muhammad Ishaq, Ex-P.R.O. of Malik Muhammad Nawaz, former Minister, Malik alias Shakoo s/o Muhammad Hussain, Malik Kabir, Mahmood Malik, Muhammad Shafique Malik, Maroof Malik, (not before us) Shaukat Saleem, Councillor Municipal Committee Kotli, Abdul Qayyum Malik, private driver of Malik Muhammad Nawaz, elder son of Malik Muhammad Asghar, Malik Muhammad Mushtaq, Ex- Chairman Union Council Roli and some other unknown persons. It was also stated in the F.I.R. that Malik Kabir accused was apprehended on the spot. The assailants, according to the prosecution, indulged in the firing for the purpose of achieving election results in favour of their candidate Malik Muhammad Nawaz who hatched up the conspiracy in collusion with Malik Muhammad Mushtaq, Ex-Chairman Roli. The occurrence was alleged to have taken place at 11.45 p.m. on 30th of June, 1996. The delay in lodging the report occurred due to the occurrence having taken place at late hours of night and on account of blockade of the road by the assailants and their other companions who continued firing recklessly. During the investigation Kabir, Shafique and Mahmood Ahmad, accused were apprehended, whereas Malik Muhammad Nawaz, Muhammad Mushtaq, Muhammad Ishaq, Muhammad Maroof, Shaukat Saleem, Abdul Qayyum and Ayaz Asghar were allowed interim pre-arrest bail by the District Criminal Court Kotli. The learned members of the District Criminal Court Kotli, comprising of Sessions Judge and District Qazi, confirmed the interim bail earlier granted to Malik Muhammad Nawaz and Ayaz Asghar but refused to confirm the pre-arrest bail to Muhammad Ishaq and Muhammad Maroof and also declined bail after arrest to Muhammad Kabir, Muhammad Shafique and Mahmood Ahmad. A difference of opinion arose between the learned Members of the Court on the point of confirmation of bail earlier granted to Shaukat Saleem, Mushtaq and Abdul Qayyum, accused. The learned Sessions Judge confirmed the bail of the said accused while the District Qazi refused to confirm the same. On account of difference of opinion reference with regard to the bail of the said accused was sent to the Shariat Court. Two revision petitions, one on behalf of Muhammad Ishaq and Muhammad Maroof, accused against refusal of their anticipatory bail and the other by Muhammad Kabir, Shafique and Mahmood Ahmad, amised against the refusal of their bail after arrest were filed in the Shariat Court. Muhammad Yunus, brother of Prof. Muhammad Kazim, deceased, also filed a revision net.ition for cancellation of bail allowed to Malik Muhammad Nawaz and Judge confirming bail to other accused Abdul Qayyum, Shaukat Saleem and Malik Mushtaq. The Shariat Court vide its order impugned agreeing with the opinion of the learned Sessions Judge Kotli, upheld his order allowing the bail to respondents Malik Mushtaq, Shaukat Saleem and Abdul Qayyum. The revision petition filed against Malik Muhammad Nawaz and Ayaz Asghar for cancellation of bail was dismissed. Hence this appeal on behalf of Muhammad Yunus and others for the cancellation of bail granted to respondents 1 to 5. 3. A learned Judge in the Shariat Court was persuaded to uphold the judgment of trial Court in allowing pre-arrest bail to respondents 1 and 2 and agreeing with the view of learned Sessions Judge in allowing the bail to respondents 3 to 5 mainly on the grounds listed by him in sub paras I to XV of para No. 12 and para No. 13 (which was inadvertently again listed para No. 12) of the impugned judgment, the details of which need not be reproduced for the purpose of disposal of this appeal. In short, after taking into consideration the salient features of the prosecution stoiy it was opined by the learned Judge that case against the accused-respondents appears to be one of further enquiry. Thereafter the learned Judge elaborately dealt with principles governing the pre-arrest. and after-arrest bail matters. Almost all the important citations on the subject were quoted by the learned Judge. 4. Mr. Muhammad Sharif Tariq, the learned counsel, appearing on behalf of the appellants, vehemently submitted that there was a strong prima facie case existing against, the accused-respondents, who were duly named in the F.I.R. lodged by the complainant. The prosecution version was supported by the injured witnesses who were travelling in the wagon which include the complainant, Muhammad Mushtaq, Muhammad Safeer, Patwari, Bostan and Sajjad Ahmad both the injured witnesses. The learned counsel strenuously contended that pre-arrest-bail was allowed to respondents in violation of the settled principles of law and in derogation of the basic requirements necessary for the exercise of jurisdiction. According to the learned counsel it was for the accused-respondents to show that heir arrest was motivated on account of political considerations or ulterior motives but the circumstances of the case did not suggest any such situation nevertheless the benefit of pre-arrest-bail was extended to the respondents without any valid and cogent reason. The learned counsel explained that there was a sufficient explanation available in the F.I.R. itself that it was delayed on account of reckless firing made by the accused party and the blockade of the road having been made by them. The learned counsel submitted that the learned Sessions Judge as well as the Shariat Court embarked upon the detailed appreciation of evidence on the record which was not permissible under the law. The learned counsel strenuously contended that the plea of alibi raised by the accused-espondents could not be looked into at the stage of bail. The learned counsel also argued that as a given the benefit of section 169 Cr.P.C. to accused-respondents except Abdul Qayyum, respondent No. 3 and placed them in column No. 2 of the challan but all the same the. Courts are not precluded from forming their own independent opinion on the basis of the material placed before them. In other words the ipsc-dcxit of police was not. binding on the Courts, submitted -, the learned counsel. The learned counsel argued that Malik Muhammad Nawaz was the master mind who hatched up a conspiracy in connivance with Malik Mushtaq Ahmad, Ex-Councillor of Municipal Committee Kotli, for the reckless firing made on the complainant party as a result of which one person died on spot and couple of others were seriously injured. This all was done to achieve the election results in his favour who was a candidate for the member-ship of Legislative Assembly. The evidence regarding conspiracy of the said accused was sufficiently proved by the statements of Muhammad Ilyas and Muhammad Iqbal, P.Ws. but the Shariat Court as well as the trial Court: by entering into merits of the case ignored this "%; , incriminating piece of evidence. 5. In reply Mirza Nisar Ahmad and Ch. Muhammad Yusuf, the learned counsel for respondents, controverted the contentions raised by the learned counsel for the appellants by submitting that on the basis of material on the record the concerned police have extended the benefit of section 169 Cr.P.C. to the respondents herein except Malik Abdul Qayyum, respondent No. 3 and placed them in column No. 2 of the challan. The challan was duly ^ presented in the District Criminal Court Kotli with a request made by the police that challan against Malik Muhammad Nawaz, Ayaz Asghar, Shaukat Saleem and Malik Mushtaq Ahmad be dismissed and they be extended the benefit of section 169 Cr.P.C. as there was noprima fade evidence available with the prosecution for connecting these accused-respondents with the commission of offence as alleged by the prosecution. The trial Court, according to the learned counsel, concurred with the view of the Investigating Agency and cancelled the challan against the said accused. The learned counsel maintained that the above said respondents were no more accused in the case as such the appeal for cancellation of their bail was liable to be dismissed simply on the aforesaid premises. As regards accused Abdul Qayyum, it was argued by the learned counsel for the respondents that from the perusal of the proposed material collected by the prosecution even no prima facie case is made out against this respondent and the discretion by .., v' extending the concession of bail to the said respondent was rightly exercised by the learned Sessions Judge as well as the Shariat Court. The learned counsel for respondents strenuoiisly contended that the occurrence having taken place during the late hours of night the identity of the accused persons was doubtful and the respondents were involved in a false and fake case on account of political enmosity. As regards the alleged influence claimed to have been exerted by the accused-respondents on the police it was contended by the learned counsel that the contention raised on behalf of the appellants merited no consideration as the party of Malik Muhammad Nawaz, the so elections held on the relevant date and by that time most of the results had been announced on the electronic media. 6. We have given our due consideration to the contentions raised by the learned counsel for the parties and perused the record made available with care. Lengthy arguments' were addressed at the Bar from both the sides. To begin with it was argued and brought to our notice that the police after the conclusion of the investigation placed Malik Muhammad Nawaz, Ayaz Asghar, Shaukat Saleem and Malik Mushtaq Ahmad in column No. 2 of the challan by extending them the benefit of section 169 Cr.P.C. We for our own satisfaction enquired from the trial Court as to what was the latest stage of the case and what order was passed regarding those accused who were placed at column No. 2 of the challan. It was accordingly confirmed that on the presentation of challan against the other accused a request was made by the police that challan be cancelled to the extent of above-mentioned 4 accused who have been extended the benefit of section 169 Cr.P.C. The trial Court concurring with the opinion of police cancelled their names from the challan. In this view of the matter at the present moment in our considered view the afore-mentioned four respondents do not remain any more in the category of accused persons. Chapter XIV of the Code of Criminal Procedure deals with the information to the police and their powers to investigate the cases beginning from section 154 and ending to section 176. Section 169 Cr.P.C/. relates to cases in which it is found by the police that there is no sufficient evidence for forwarding the accused to a Magistrate and consequently no person is sent up for trial. Section 170 applies to cases in which upon investigation the accused is sent up for trial. Section 173 contains general directions relating to both. This section provides for a final report after completion of the investigation. Section 173 Cr.P.C. is in these terms :-- 173.--Q) Eveiy investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the Officer-in-Charge of the Police Station'shall- (a) forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acqviainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4). Under subsection (1), when the investigation is completed the police officer is required to forward to the Magistrate a report in the prescribed form. Under subsection (3) when it appears from the report forwarded under subsection (1), that the accused has been released on his bond "the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit" It is clear that under subsection (3) a Magistrate may agree or may not agree with the police report. If the Magistrate wants to start a proceeding against the accused, he must act under section 190 of the Code of Criminal Procedure. 7. Section 190 provides that a Magistrate "may take cognizance of any offence (a) xipon a complaint, (b) upon a police report, or (c) upon information received by himself. 8. Now, the question is, if the Magistrate disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under section 173. When the said report-is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the Investigating Officer. There is nothing in section 190 to prevent a Magistrate from taking cognizance of the case under Clatise (b) in spite of the police report. The aforesaid view finds support from the reported cases of 'Muhammad Nawaz Khan its. Noor Muhammad and others' [PLD 1967 Lah. 76] and 'Falak Shcr and another us. The State' [PLD 1967 S.C. 425]. 9. In a latest case of this Court titled 'Muhammad Nazir Khan vs. Javed labal and 6 others' [PLJ 1996 S.C. (AJK) 60], the following observation was made by the Court at the end of pages 65 and 66 of the report : "The Investigating Agency, no doubt, is empowered to place any of the accused in cohmin No. 2 of the challan, on the basis of material collected by it, but at the same time the requirement of a law is that material should be sufficient enough for giving the benefit of Section 169 Cr.P.C. to an accused. However the Courts of law are duty bound to apply their own judicial mind and come to a definite conclusion as to whether an accused placed in column No. 2 by the Police should be summoned or not for facing the trial. The Courts are never hound by the, ipse.-dixit of the Police. From the material available on record the Courts are always required to form their independent opinion by application of the judicial mind. The practice to follow the suggestions made by the Police and to concur with their view blindly is always uri desired." Bui the above referred case is distinguishable in the sense that at the time of submitting a chullan against 11$ accused persons and placing one of the accused, Riaz Ahmad in Column No. 2 giving him the benefit of section 169 Cr.P.C. an application was moved on behalf of the prosecution for summoning accused-respondent Riaz Ahmed Khan whose name was placed in column No. 2 and the trial Court, observed that after recording the evidence of P.Ws. 1 and 2 the Court would decide the question of taking the cognizance or otherwise against the said accused in the light of evidence. In these circumstances if was observed by this Court that the aforesaid practice was not in consonance with the law as the Court was fully competent to form its own opinion on the basis of material collected by the prosecution agency to decide the question of taking cognizance against the accused, who was placed in column No. 2 of the challan. In the case before us the Investigating Agency formed the opinion that there was no sufficient evidence or material to justify the forwarding of four accused-respondents mentioned above to the trial Court and the trial Court after applying its mind concurred with the view expressed by the Investigating Agency. In the present proceedings this Court cannot go into I he question as to whether the material before the trial Court for agreeing wnh the view of Investigating Agency was sufficient or not. The fact howeve' remains that at the present moment in view of the fact that'four accused-respondents mentioned above have been placed in column No. 2 of the chall in by the Investigating Agency and the opinion of the Investigating Agency was approved by the trial Court they no more remain accused persons. In this background to embark upon the details of order under appeal as to whether they were correctly extended the concession of bail or not remains merely of an academic interest which need not be adverted to. In our considered view the appeal in the present circumstances against the above-mentioned four accused becomes incompetent and T infructuous, the same therefore stands dismissed. 10. It. may be pointed out that benefit of section 169 Cr.P.C. was not extended to Abdul Qayyum, respondent No. 3 herein, either by the Investigating Agency or by the trial Court. hus his case stands on a different footing than those accused whose names were cancelled from the challan as be was challaned with the rest of the accused after having been found prima facie liable for the commission of the alleged offences by the police. The allegation attributed to this accused is that he also resorted to firing alongwith the other accused in the incident. But the aforesaid allegation gainst the said accused was not supported by the statements recorded under section 161 Cr.P.C. of members of polling staff, namely Muhammad Safeer-Patwari, Muhammad Iqbal-teacher, Abdul Qayyum- Naib Qasid and Sajjad-Driver of the wagon which was alleged to have been fired upon by the assailants. Sajjad driver of the wagon in his first statement recorded in the earliest opportunity by the Investigating Agency did not v nominate any of the accused persons including the accused Abdul Qayyum autriu las supplementary statement recorded nearly after 5 months i.e. on 25.11.1986 implicated him by alleging that he fired upon the said witness. The supplementary statement of Sajjad driver prime facie totally contradicts his earlier statement. Similarly Muhammad Azad, conductor of the said wagon, in his statement before the police did not implicate the said respondent. However Bostan and Mushtaq P.Ws. who are stated to be injured witnesses implicate the accused-respondent, whose statement were recorded on 13.7.1996 till then they remained mum. Razzaq P.W. himself -appeared in the Court and tiled his affidavit supporting the case of accused persons. Muhammad Iqbal, Mushtaq, injured witnesses, and Muhammad Safeer-Patwari, do not admit the presence of this witness who lodged the F.I.R. Muhammad Safeer-Patwari and Master Muhammad Iqbal, P.Ws. according to the prosecution story were sitting on the front seat of the wagon and both are stated to be injured witnesses. Both of them were on official duty at the polling station but both of them do not, implicate the accusedrespondent. Accused-respondent Abdul Qayyum alongwith Malik Muhammad Nawaz and other respondents who were extended the benefit of section 169 Cr.P.C. at the stage of the investigation, took the plea of alibi. Numerous respectables of Kotli District, particularly the District Senior Oificers which include District. Magistrate Kotli, Dr. Muhammad Shabbir Kiani, M.S D.H.Q. Hospital, Muhammad Sadiq, Deputy Accountant-General and Muhammad Azeem, Steno of the Deputy Commissioner Kotli, filed their affidavits and got, their statements recorded before the Investigating Agency to the effect that accused-respondent Abdul Qayyum, Muhammad Nawaz, Ayaz Asghar, Muhammad Mushtaq and Shaukat Saleem at the relevant time of occurrence were present, in the control room at Kotli. 11. The question that now arises is as to whether the present respondent was entitled for pre-arrest-bail or not. Pre-arrest-bail of the saidj espondent was confirmed both by the learned Sessions Judge and the learned Judge in the Shariat Court on tentative perusal and assessment of the proposal evidence collected by Investigating Agency either from the prosecution side or the defence. We are unable to agree with the contention raised by the learned counsel for the appellants that plea of alibi or any other plea raised by the defence cannot be considered at the stage of bail, particularly the pre-arrest-bail. In our view it is paradoxical to say that while considering as to whether there are sufficient grounds to believe that an accused is guilty of an offence punishable with death or life imprisonment only prosecution's evidence or any other material placed on record by the prosecution is to be looked into and evidence or material placed by an accused seeking bail cannot be considered. In our considered view it is imperative for the Court of law to consider any plea taken by an accused at the bail stage alongwith the material placed by the prosecution on the record in support of accusations levelled against the accused. Therefore we hereby repel the contention raised by the learned counsel for the appellants. 12. Now we advert to the fundamental principles relating to the prearrest-bail matters. In a famous reported case titled 'Murad Khan vs. Fazalc-Subhan' [PLD 1983 SC 82] the necessary conditions for grant of pre-arrest bail have been laid down. One of the main considerations for the grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty and there should be apprehension of harassment and undue humiliation by means of un-justified arrest. However in the case of 'Hidayat Ullah Khan vs. Khushi Muhammad and Sadiq All' [PLD 1981 Lah. 599] it was observed that "the Courts should strictly avoid the exercises of this power at random, which is likely to embarrass the prosecution in investigation as usually is the general complaint. The balance has to be kept and each case has to be dealt with on its own merits. The Court should seriously apply its mind before passing the order of pre-arrest-bail. I must, however, make it clear that the Courts are the guardians of liberty, of citizens. The abuse of power by the police to rope in innocent persons in order to humiliate them and to cause irreparable loss to their reputation should be equally kept in view". Murad Khan's case was followed by this Court in a case titled 'Basharat Khan vs. Shcr Muhammad Khan' [Criminal Appeal No. 7 of 1992]. Thereafter in case 'Khurshid Ahmad vs. Muhammad Ilyas and others' and 'Zafar Iqbal vs. The State' [Criminal Appeals No. 5 and No. 9 of 1992 reported as 1994 S.C.R. 136] it was observed at page 141 "We may also take note of the contention that, in any case, the pre-arrest-bail should not have been granted to the accused-respondents because the principles of law which govern the grant of anticipatory bail are vastly different from the principles applicable to after-arrest bail. He referred to l MuradKhan vs. Fazal-e-Subhan' [PLD 1983 S.C. 82]. We have dealt with this point with some detail in 'Basharat Khan vs. Sher Muhammad Khan' [Crl. Appeal No. 7 of 1992] and have expressed the view that these principles are not inflexible and can be departed from in accordance with the facts of each case by keeping in view the gravity of the offence and other factors. We again want to emphasise that grant of pre-arrest-bail should not be treated as a routine matter but having regard to the facts of the case we do not feel persuaded to cancel the bails on the mere ground that it is an anticipatory bail\ 13. The survey of the case law shows that While considering the question of pre-arrest-bail some of the necessaiy conditions mentioned above "V alongwith the facts of each case have to be seen. The power has to be exercised with reference to material placed before the Court. The material would consist of accusation made in the report made to the police, statements recorded under Section 161 Cr.P.C., nature and credentials of evidence which the prosecution proposes to lead in the case, the medical If report and the plea of defence, if any, raised by the accused and all other relevant circumstances. The Court has to make the tentative assessment of evidence brought on record by the prosecution or incriminating material or by the accused in defence and the other surrounding circumstances and there is no restriction on the power of the Court to assess tentatively the value of the material placed before it. However the Court has to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of the accused. It was claimed by the present respondent alongwith other respondents in the application moved for bail pre-arrest that they were innocent and were involved in the case on account of election enmosity. We are not oblivious of the fact that in this part of the countiy rival political factions do exaggerate the role played by their opponents and implicate the innocent people and widen the net more and more close to - their political opponents. Thus some of the pre-conditions for grant of anticipatory bail in the present case, in our view, areprhna fade satisfied. As regards the merits of the case it is neither possible nor proper for us at this stage to express our final view with regard to the proposed evidence likely to be produced by the prosecution or the plea raised by the accused during the trial. The questions whether the information of the incident was revealed in the first instance to the police by District Magistrate Kotli at 11.30 p.m. on 30.6.1996, the members of polling staff travelling through the wagon targeted namely Muhammad Safeer-Patwari, Muhammad Iqbal-Teacher, Abdul Qayyum-Naib Qasid and Sajjad-Driver of the wagon in their initial "statements did not nominate any of the accused persons or identify any of the assailants, the evidentiary worth of the subsequent statement of Sajjad- Driver recorded after 5 months of occurrence, and the other witnesses, the depositions made by the respectables of Kotli District with regard to the presence of Abdul Qayyum respondent at control room at the relevant time, the fact that the bulk of evidence examined by the prosecution does not implicate the accused respondent and also the fact that he was implicated only by P.Ws. Mushtaq and Bostan and also the fact that fatal injury was attributed to Shakoo accused and Muhammad Shafique and Mahmood Ahmad are attributed to have inflicted injury to Sajjad Driver and various other questions as discussed in detail by a learned Judge in the High Court are yet to be properly gone into by the trial Court, during the course of trial.Neveitheless these all factors, when taken together do make the case of the prosecution as that of further inquiry. Both the learned Sessions Judge and the Shariat, Court have concurrently decided, the case keeping in view its peculiar facts and circumstances, to be falling within the ambit of subsection (2) of section 497. Thus the discretion exercised by the learned Sessions Judge and the Shariat Court, cannot be lightly interfered with. In cases of non-bailable offences coming before the Courts grant, of bail is primarily in the discretion of the Court and it, should not. be disturbed unless it is not exercised with due care and caution. The only limitation on exercise of that | discretion, apart from the legal restrictions contained under sections 497 and 498 Cr.P.C:, is that the exercise of such discretion must, be in accordance with the dictates of justice and not, arbitrary or fanciful. The view of the learned Sessions Judge as well as the High Court always carries weight unless it is shown to be perverse or based on a view which no reasonable man will take. Thus while interfering with the order of grant of bail there should be some strong ground, as for instance, that order is perverse or manifestly wrong.- 14. It, is also practically settled principle of law that even for the purposes of bail law is not be stretched in favour of prosecution. If at all any benefit of-doubt, arises, even at the stage of bail it must go to the accused. We feel that, the learned Sessions Judge as well as the Shariat Court have exercised their discretion in a legal fashion and formed their opinion which could legally be formed. It may also be emphasised that, the plea of alibi raised by the present accused-respondent primarily rests on the same evidence on the basis of which it was believed in respect of rest, of the respondents by the police as well as by the trial Court. Why this plea, was not, prima facie, accepted with regard to the said respondent, is a question to be thoroughly gone into at the stage of trial. But all the same it is yet to be .seen as to whether the respondent participated in the commission of offence alongwith other accused as alleged by the prosecution. 15. We may also observe that observations in bail matters are purely for the purpose of the bail and if any opinion is expressed with regard to the evidence on record or other material, whether placed by the prosecution or the accused, that should not be taken as conclusive and should not weigh the trial Court while determining the guilt, or innocence of the accused at the proper stage. Any of the observations made either by the Shariat Court or by this Court shall not prejudice the case of any of the parties. 16. In the light of what has been stated above, the appeal against this respondent also fails and it merits no consideration and the same is also dismissed keeping intact the bails of thei'espondents herein.
PLJ 1997 SC (AJK) 361 PLJ 1997 SC (AJK) 361 Present : BASHARAT AHMAD SHAIKH AND MUHAMMAD YOUNAS SURAKHVI, JJ. CHAIRMAN AZAD JAMMU & KASHMIR COUNCIL-Appellant versus ABDUL LATIF and others-Respondents Civil Appeal No. 54 of 1996, dismissed on 12-4-97. (On appeal from judgment, of High Court dated 1-4-96 in Writ. Petition No. , 154 of 1994) (i) Azad Jammu & Kashmir Council Extradition of Fugitive Offenders Act, 1984 High Court declaring Act ultra vires of Constitution by following its earlier judgments which were set aside by Supreme Court of AJ&K-- Held : In presence of dictum of Supreme Court recorded in earlier cases, any judgment, decree or order of High Court including any other authority, which runs counter to dictum of this court, shall be nonexistant in eye of law and dictum laid down by Supreme Court shall prevail-Thus impugned judgment has become meaningless and same cannot be acted upon for any practical purpose. [Pp. 362 & 365] A & B Limitation Act, 1908 (IX of 1908)-- S. 5Condonation of delayDelay of 133 days in filing appealContention that counsel delayed intimation of judgmentHeld : Knowledge of counsel is knowledge of client and thus limitation starts unning from date of announcement of judgment, if it is announced in presence of counsel. [Pp. 363, 364 & 368] C, D & E 1993 SCR 111; PLD 1983 AJK (SC) 25; 1974 SCMR 223 discussed. Mr- Urnar Mahnumd Kasuri, Advocate for the Appellants. Nemo for the Respondents. Date of hearing : 5-4-1997. . judgment Muhammad Yunus Surakhvi, J.--This appeal is directed against an order passed by the High Court on 1st of April, 1996, whereby the writ petition filed by Abdul Latif and others, respondents 1 to 4, was accepted. 2. The facts giving rise to the present appeal, briefly stated, are that Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act of 1984 was enacted by the Azad Jammu and Kashmir Council. Certain persons who were being proceeded under the said Act challenged the validity of the Act by filing writ petitions on the ground that when the Azad Jammu and Kashmir Council enactetf the said legislation it was incomplete in such a way that the said Council did not exist in the eye of law. On 2nd of December, 1994, the High Court accepted the v/rit petitions and declared that the aforesaid Act was passed without any lawful authority. The Chairman of Azad Jammu and Kashmir Council and 2 others preferred appeal before this Court. During the pendency of appeal, an Ordinance .known as Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Ordinance 1995 was promulgated. When attention of this Court was drawn to the aforesaid Ordinance it was found that section 7 of the Ordinance contained the following Validation clause :-- "7. Validation. --Notwithstanding any judgment, decree or order of any Court including High Court, everything done, all actions taken, notifications issued, orders or appointments made, proceedings initiated, jurisdiction or_ powers exercised under the provisions of the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act 1984 (Act II of 1984), shall be deemed to have been validity done, taken, issued, made initiated or exercised under this Ordinance." It may be stated that the validation clause reproduced above provided that it was to over-ride any judgment, or decree or order of any Court including the High Court and the proceedings taken or initiated under the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act 1984, which had been quashed by the High Court shall be deemed to have been validly taken or made. In light of the validation clause this Court vacated the judgment of the High Court and also ordered the dismissal of writ petitions filed in the High Court. A 3. The judgment of this Court mentioned above was passed on 21st of June, 1995. On 1st of April, 1996, the High Court accepted the writ petition filed on 5th of Dec. 1994 by respondents Muhammad Latif and others and has declared that the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 is ultra vires of the Constitution. In doing so the High Court has followed its earlier judgments which were set aside by this Court on 21st of June, 1995. The Chairman of Azad Jammu and Kashmir Council sought leave to appeal against the impugned judgment of the High Court. A learned Judge of Jhis Court sitting in Chamber granted the leave on the ground that the judgment, of this Court was not brought to the notice of the High Court but the fact remains that the judgment under appeal runs counter to the binding judgment of this Court. As tKe petition for leave to appeal was barred by limitation of 133 days so the question ^ whether the delay should be condoned or not in the light of contentions of Mr. Umar Mahmood Kasuri, the learned counsel for the appellant, was left open and observed to be decided in the Court and not by the learned Judge in the Chamber. '4. It has been contended by Mr. Umar Kasuri, the learned counsel for the appellant, that the learned Additional Advocate-General who was representing the Azad Jammu and Kashmir Council before the High Court did not inform the Council Secretariat that the judgment had been announced. It is also argued by Mr. Umar Mahmood Kasuri that the order passed by High Court is void against which no limitation runs. It is further contended that the matter is of great public importance which also is a valid ground for condonation of delay. 5. I have given my due consideration to the arguments advanced by the learned counsel for the appellant. The petition for leave to appeal is admittedly time barred by 136 days. By excluding 3 days which were spent in obtaining the copy of impugned judgment of High Court the appeal is still barred by 133 days of limitation as the judgment under appeal was passed on 1st of April, 1996, whereas the petition for leave to appeal was filed on 14.10.1996. It is claimed that the learned counsel representing the Azad Jammu and Kashmir Council delayed intimation about announcement of the judgment and that the petition is within time from the date of knowledge. This Court has been persistently following the principle that knowledge of the counsel is the knowledge of the client and thus limitation starts running from the date of announcement of Judgment if it is announced in presence of the counsel. Suffice it to say that it is an admitted position that the judgment under appeal was announced in presence of learned Additional Advocate-General who represented the AJK Council in the High Court. In 'Allied Bank of Pakistan vs. Ch. Amir Baz' [Civil Appeal No. 66 of 1996 decided on 1.3.1997], this'Court rejected an application for condonation of delay which was based on the ground that the counsel did not inform within time that judgment had been announced. In that case it was observed by this Court as follows :-- "It is well settled that knowledge of the counsel is knowledge of the client. The legal principle that it was duty of the client to find out the position of the case cannot be disputed." In various other cases the same principle was reiterated by this Court. In \D r . Muhammad Iqbal Qureshi vs. Azad Government and others' [1993 SCR 111] and 'Rehmat Bibi vs. Ghazanfar Hussain' [PLD 1983 AJK (SO 25] applications for condonation of delay were dismissed on the same ground, namely, that knowledge of the counsel is knowledge of the party. The view of Supreme Court of Pakistan on this point is also the same. In 'Muhammad Nawaz vs. Mst. Sakina Bibi' [1974 S.C.M.R. 223], a plea similar to the one being raised in the present case was advanced that the counsel did not promptly informed the result of the case to the party. The appeal was dismissed as barred by limitation by holding that :-- "Even if the above explanation is to be taken at its face value, it would not constitute a sufficient cause for the condonation of long delay that has taken place in the instant case. The initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence. Even if it. be assumed that their counsel neglected to inform them that per sc would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents Nos. 1 to 3. We are not satisfied that all the petitioners were diligent or ook due care in the matter."In view of settled position regarding the principle that knowledge of counsel is the knowledge of client we are not persuaded by the contention raised by the learned counsel for the appellant, and thus the plea regarding the 0 condonation of delay on the aforesaid ground is hereby repelled. In my considered view the delay of each day has to-be explained by a party seeking the condonation of delay which has not. been satisfactorily explained. 6. The next two submissions pressed into service by the learned counsel for the petitioner shall be dealt, with together. The learned counsel for the appellant strenuously contended that the impugned order recorded by the High Court was void for which no period of limitation runs. The learned counsel placed reliance on the definition of word 'void judgment as defined in Black's Law Dictionary fith Edition at page 1574 which is to the following effect:-- 'Void Judgment. One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. One which, from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process." The learned counsel strenuously contended that the matter involved in the instant appeal is of great public importance and in case the judgment under appeal is not vacated it is likely to create anomalous situation and serious complications. In view of the observations which I propose to make in the concluding part of this judgment I am of the opinion that I need not embark upon the question that the impugned judgment passed by the High Court is a void judgment or not; as the matter in issue stood finally resolved by a previous judgment, of this Court. The fact however remains that the impugned judgment runs counter to the previous judgment of this Court passed on 21st of June, 1995, and due to its repercussions it has assumed great public importance, needing resolution to avoid anomaly. 7. In the previous cases titled 'Chairman Azad Jaminu and Kashmir Council and others us. Raja Nisar Ahmad' [Civil Appeal No. 24 of 1995]. 'Chairman Azad Jammu and Kashmir and others vs. Muhammad Pc.rvaiz' [Civil Appeal No. 25 of 1995] and 'Chairman Azad Jammu and Kashmir Council and others vs. Muhammad Shafi' [Civil Appeal No. 22 of 1994], while dealing with the Extradition of Fugitive Offenders Act, 1984, it was observed by this Court :-- "Thus, even if it, is assumed for the sake of arguments ththe actions taken against the petitioners-respondents were not justified under the impugned Extradition Act, 1984, after the promulgation of the Extradition Ordinance those would be deemed to have been taken under the Extradition Ordinance. This would, primci fade, mean that, the concerned authority can take actions under the Ordinance and as such continue the actions already initiated under the Extradition Act,, 1984. It follows that the relief given to the respondents by the High Court is no longer sustainable in view of the enactment of the Extradition Ordinance. In these circumstances, the judgment of the High Court has to be vacated as was done in Kashmir Timber Corporation's case." In presence of dictum of this Court, recorded in the above cases on 21st of June, 1995, any judgment, decree or order of High Court including any other authority, which runs counter to the dictum of this Court shall be nonexistent in the eye of law and the dictum laid down by this Court must prevail. Under the Azad Jammu and Kashmir Interim Constitution Act, 1974, A decision of the Supreme Court shall be binding on all other Courts in Azad Jammu and Kashmir . Thus the impugned judgment in view of the previous dictum of this Court even if remains intact, on account, of technical grounds has become meaningless and the same cannot be acted upon for any practical purpose. With these observations the appeal being time-barred, is dismissed Basharat Ahmad Shaikh, J.--I am in broad agreement with the conclusion recorded by my learned brother Muhammad Yunus Surakhvi, J. in the proposed judgment but I would like add a few lines by way of further elucidation with reference to the point raised by Mr. Umar Mahmood Kasuri that the judgment under appeal has created an anomalous situation and also that a matter of public importance was involved and thus a case for condonation of delay was made out. In this connection the learned counsel strongly relied on a judgment of the Supreme Court of Pakistan in Superintendent of Central Excise, Lyallpur v. Ch. Faqir Muhammad [PLD 1958 S.C. 167]. 2. The facts in Faqir Muhammad's case were that on a writ petition filed by Ch. Faqir Muhammad the High Court of West Pakistan issued a prohibition to the Superintendent of Central Excise, Lyallpur , from demanding that Ch. Faqir Muhammad should take out a license for the calendering of mill made cloth. The judgment of the High Court was challenged by filing a petition for leave to appeal before the Supreme Court of Pakistan but the petition was time-barred by 57 days. In a petition for connotation it was explained that extra time was needed for consultation in a number of offices including the Ministry of Law of Pakistan Government. This plea was rejected by observing that no extended period of limitation was provided for the Government as Government enjoyed un-usual facilities for preparation of their cases as against those available to private litigants. However, delay was condoned on the ground that the Government could bring up the matter before the Supreme Court in another case, but the decision in such a case, if favourable to the Government, will leave Ch. Faqir Muhammad's case as an anomaly within the licensing system. It was observed that it was desirable that this should be avoided and delay was condoned. However, the condonation was granted conditionally and it was ordered that the Superintendent of Central Excise shall bear the costs of the petition for leave to appeal filed by him as well as respondent's costs in the appeal as a condition of the appeal being admitted. 3. The deal in Faqir Muhammad's case was condoned in order to avoid the possibility that an anomaly in the licensing system may be created. It has to be, therefore, seen that whether any such situation in the present case. For doing so it is necessary to state the facts. 4. The Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 was purportedly passed by the Azad Jammu and Kashmir Council. The actions taken under the said Act were challenged by several persons who were being proceeded against under the said Act on the ground that at the relevant time [1984] Azad Jammu and Kashmir Council was not validly cojjosed as the Council only consisted of nominated members while no elected members were included in the said Council. This contention was accepted by the Azad Jammu and Kashmir High Court and or declared in respect of the contents of the Act. In order to fill up the vacuum created by the judgment of the High Court the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Ordinance 1995 was promulgated and a validation clause was also added in section 7 of the Ordinance which laid down that, notwithstanding any judgment, actions taken under the aforementioned Act of 1984 shall be deemed to have been """ validly taken under the Ordinance. The Ordinance promulgated in 1995 has run out its normal life and now a new Act, namely, the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act has been enacted. 5. The judgment of the High Court was challenged by the Azad Jammu and Kashmir Council by filing appeal. When this appeal came up for hearing the Azad Jammu and Kashmir Extradition of Fugitive Offenders Ordinance 1995 had already been promulgated. Therefore, this Court held iii its judgment pronounced on 21st of June 1996 that the promulgation of the _^__Ordinance had changed the whole complexion because the grounds on which " i^ie^«s& jpetition was accepted had vanished and were not available. After analysing the situation in light of law laid down by this Court in an earlier judgment reported as Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation [PLD 1978 SC (AJ&K) 42] the following conclusions were recorded :-- " ... The validating provision of the Extradition Ordinance, reproduced above, stipulates that despite any decree or order of the High Court all acts taken, notifications issued, orders or appointments ade, roceedings initiated, the jurisdiction or powers exercised under the Extradition Act, 1984, shall be deemed to have been validly done, issued, made, initiated or exercised under the Ordinance. Thus, even if it is ssumed for the sake of arguments that the actions taken against the petitioners-respondents were not justified under the impugned Extradition Act, 1984, alter the promulgation of the Extradition Ordinance those uld be deemed to have been taken under the Extradition Ordinance. This would, prirna facie, mean that the concerned authority can take actions under the Ordinance ^.,-- and as such continue the ctions already initiated under the ' - Extradition Act, 1984. It follows that the relief given to the respondents by the High Court is no longer sustainable in view of the enactment of the Extradition Ordinance. In these circumstances, the judgment of the High Court has to be vacated as was done in Kashmir Timber Corporation's case. However, we may clarify that the respondents or any other person may challenge the Extradition Ordinance on any available ground. In absence of any such challenge, section 7 6. Now I may advert to judgment of the High Court which is under appeal. A deeper analysis of the judgment under appeal leads to the same conclusion. The judgment is brief and to the point. Its summary is that the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act 1984 was declared ultra vires by the High Court on 19th of March 1995, but a fresh Act had been passed by the Council. After examining these facts the High Court passed the following orders "3. As the Act challenged before the Court is that of 1984, which stands adjudicated upon as referred above, this petition also merits acceptance in view of the judgment of the Court declaring the Act as ultra vires of the "" Constitution. As the effect of newly promulgated Act has neither been challenged nor is in dispute before the Court, nothing shall effect the validity of that Act. 4. In view of the above, the petition stands disposed off accordingly." 7. From para 3, reproduced above, it is clear that the High Court has declared that nothing shall affect the alidity of the newly promulgated Act. It means that if any action is being taken under the newly enacted law it will be valid. Therefore, in my view, although the judgment of this Court pronounced on 21st of June 1995 was not cited or taken note of by the High Court, the effect of the judgment under appeal is also the same as that of the > , judgment of this Court anil I do not find any practical inconsistency between ~- the two. The actions taken under the Extradition Act of 1984 can be continued under the newly enacted law and new actions an also be initiated. n my considered opinion para 3 of he judgment, extracted above, is so unambiguous that no hurdle can be created in smooth functioning of extradition proceedings. Thus formal setting aside of the judgment ill only be an academic exercise. Even otherwise in presence of clear views expressed by this Court in the judgment of 21st of June 1995, the judgment under appeal has to he ignored by those who are entrusted with the task of administering the extradition law. 8. A detailed analysis carried out above shows that there is no anomaly in the present case. However, Faqir Muhammad's case does show that delay can be condoned in particular circumstances in light of the points . involved in a case. However, thai principle is not applicable here because, as already concluded, even if the delay is condoned it will not change or improve the situation in any practical way. I may also observed that the facts noted above show that no matter of public importance is involved in the case. With these comments, I agree that the appeal may be dismissed. (A.R.) Appeal dismissed.
PLJ 1997 Shariat Court (AJ & K) 1 (DB) PLJ 1997 Shariat Court (AJ & K) 1 (DB) Present: khawaja muhammad saeed, CJ, ch. muhammad riaz akhtar, J. MUHAMMAD IQBALAppellants versus MUHAMMAD NAZIR and another-Respondents Crl. Appeal No. 26 of 1995, decided on 23.8.95. (i) Acquittal Order- Acquittal order passed by trial Court not showing discrepancies on the basis of which accused/respondent was acquitted-Nature of occurrence and reasons for acquittal of accused with reference to evidence led in the case, lacking-Acquittal order, not sustainable and set asideCase remanded. [P. 3] A (ii) Court-- -Responsibility of court-Held: It is a fundamental responsibility of Court to ensure that all necessaiy steps are taken to arrive at the truth. [P. 3] C (iii) Court- -Responsibility of court-Non-bailable warrants of remaining PWs not executed, held, that had not absolved Court from its primary responsibility to take further necessary steps to ensure presence of these P.Ws. before it. [P. 3] B Ch. Aurangzeb, Advocate for the Appellant Mohd. Riaz Tabassum, Advocate for Respondent Ch. Mohd. Mushtaq, Addl. Adv. General for State. judgment Khawaja Muhammad Saeed, CJ.-This appeal is directed against the order passed on April 3, 1995 by the Tehsil Court of Criminal jurisdiction Mirpur, whereby the accusedrespondent was acquitted in a case registered against him under Section 341 P.C, read with Section 15 of the Islamic Penal Laws (Enforcement) Act. The facts giving rise to the present appeal briefly stated are that on the report lodged by Muhammad Iqbal, the appellant herein, a case under Section 15 of the Islamic Penal Laws (Enforcement) Act was registered against Muhammad Nazir, Sajid Mahmood and Khurshid. However, after investigation only accused-respondent was sent to face trial under Section 341 PC, read with section 15 of the Islamic Penal Laws (Enforcement) Act. In this case seven persons were cited as witnesses. Out of them besides Muhammad Iqbal complainant, Asad and Shah Nawaz were cited as witnesses of the occurrence. On December 2, 1993 statements of the complainant and Shah Nawaz PWs were recorded by the trial Court. The third witness Asad Mahmood appeared before the Court on February 8, 1994, when his statement was recorded. Out of the remaining four prosecution witnesses, one was Doctor Arfan Khan, C.M.O. who had given medical legal report. The remaining three witnesses were Muhammad Salim Khan, S.I. who had partly investigated the case, Faiz Akbar Khan, S.I. Police who had conduced investigation in the case and Mirza Tufail Hussain Inspector Police. Against these four witnesses, the trial Court on March 10, 1994 passed the following order:- As is apparent from the above referred order, the trial Court issued non-bailable warrants against these witnesses and posted the case for April 23, 1994 for recording their evidence. On April 23, 1994, the warrants issued by the Court were not executed. The Court fixed the case for May 28, 1994 and directed the prosecution to produce these witnesses at its own responsibility. After granting some adjournments ultimately on October 15, 1994 the evidence of the prosecution was closed, The case was at the stage of recording of the statement of the accused-respondent under Section 342 Cr.P.C. when an application under Section 249-A Cr.P.C. was filed on his behalf for the quashment of the case. On this application, vide order under appeal the accused-respondent was acquitted. Mr. Aurangzeb Khan, learned Counsel for the appellant argued that in this case all the three witnesses have supported the prosecution's case which has set-up by the complainant in the F.I.R. The trial Court has written in its order of acquittal about the discrepancies in the statements of these witnesses, but has not disclosed any discrepancy in it The trial Court has not given any reason in support of the impugned order. He further argued that non-bailable warrants in this case were issued against the police officials and the Doctor, who were intentionally avoiding the service. It was responsibility of the trial Court to ensure that warrants of arrest issued by it were complied by the concerned authorities. The trial Court committed error in law while directing the prosecution to produce the witnesses at its own risk. According to the learned Counsel, the accused-respondent with the connivance of the police officials manoeuvred not to get the warrants of arrest executed which action had prejudice the case of the complainant, who had sought the help of the State-agency by lodging report with the police station Mirpur. On the other hand, the learned Counsel for the respondent has supported the impugned order. We have heard the learned Counsel for the parties and have gone through the record of the case. In our view, the order of the trial Court is not sustainable. We except from the judicial officers to participate in the judicial proceedings with full consciousness. In the present case, the trial Court had issued non-bailable warrants on October 3, 1993 for securing presence of the remaining prosecution witnesses before it for the purpose of recording their evidence. If warrants of arrest issued by the trial Court were not executed, that had no absolved the Court from its primary responsibility to take further necessary steps to ensure the presence of these witnesses before it. It is a fundamental responsibility of the Court to ensure that all necessary steps are taken to arrive at the truth. Even otherwise, the impugned order is not a speaking order. The alleged discrepancies on the basis of which the accused-respondent was acquitted in the case, were not mentioned in the order. We have repeatedly directed the Courts below that they should pass clear order to enable the Appellate Courts to have a clear idea of the reasons in support of the conclusion drawn in the case. In this order, as said earlier, the nature of occurrence and reasons for the acquittal of the accused with reference to the evidence led in the case, is lacking. We, therefore, are onstrained to set aside the impugned order and remand the case to the trial Court with the direction that it shall proceed with the case in the light of its order dated March 10,1984. Ashfaq Bokhary) Appeal accepted.
PLJ 1997 Shariat Court (AJK) 4 PLJ 1997 Shariat Court (AJK) 4 Present: ch. muhammad taj & muhammad siddique farooqi, JJ. MUHAMMAD AZIZ--Appellant versus THE STATE--Respondent Shariat Appeal No. 13 of 1990, decided on 31.10.96. Criminal Procedure Code 1898 (V of 1898)-- S. 382-B-Benefit of S. 382-B Cr. P.C. may be given to accused-appellant-- Prayer forPeriod of detention of an accused during investigation, trial or period spent during appeal is to be considered llowing of benefit, can be made even on miscellaneous application by Court after passing judgment and while deciding appeal as well-Convict/appellant, given benefit of S. 382-B Cr.P.C. for period he was etained either in police custody or judicial lockup. [P. 5 & 7 ] A, B 1992 P.Cr.LJ 597, 1994 P.Cr.LJ 873 & PLD 1980 S.C. 317 ref& rel. Ch. Mohd. YousafKhan, Advocate for Appellant. Ch. Mohd. Mushtaq, Addl. Advocate General for State. Kh. Abdul Basil, Advocate for the complainant. order Chaudhary Muhammad Taj, J.--This appeal has been filed against the judgment and order of the District Criminal Court, Kotli passed on July 17, 1990, whereby the appellant was convicted and sentenced to life imprisonment. 2. The facts forming the background of this appeal are that a case under Section 5, Islamic Penal Laws Act, was registered on the report of Sub. Abdul Ghafoor Khan, complainant, on October 16, 1981 at 3.45 P.M. at Police Station Sehnsa. It was stated in the F.I.R. that the complainant came on leave. It was also stated that Muhammad Aslam is his real brother. A month earlier, the daughter of his uncle Muhammad Siddique was abducted by Muhammad Yunus alias Sain with the connivance of Muhammad Aziz son of Muhammad Zaman and Muhammad Aslam supported his uncle which gave grievance to Muhammad Aziz and Muhammad Yunus who became inimical towards him. It was further stated that today Muhammad Aslam alongwith Muhammad Taj son of Manga Khan, Shah Nawaz son of Gulab, Qurban son of Manga, Muhammad Khalil son of Pola, went to attend the 'Janaza' prayer of one Mangta Khan in village Atkora. At about 10 A.M. they reached Pandorian. The accused Muhammad Aziz son of Muhammad Zaman, alongwith another accused Muhammad Yunus alias Sain armed with 12 bore guns, appeared who were hiding themselves. The moment Muhammad Aslam came in front of them, Muhammad Aziz accused fired at him with 12 bore gun which hit Muhammad Aslam on his right and left thighs and the bleeding started. I also reached there and tried to relieve Muhammad Aslam from the accused with the help of other persons but they gave threats of dire consequences and not allowed to come near them. The accused Muhammad Yunus dragged Muhammad Aslam to a 'GehP who died there after few minutes. The occurrence was witnessed by Muhammad Taj, Shah Nawaz, Qurban, Muhammad Khalil and the complainant himself. On alarm, Habib and Mst. Shafait Begum also reached the spot. 3. After investigation, the challan was forwarded to the District Criminal Court, Kotli, against Muhammad Aziz, Muhammad Yunus, Muhammad Karim and Muhammad Ayub, under Section 5, I.P.L.A. read with Section 34, APC. Muhammad Aziz was challaned under Section 512, Cr.P.C. and later on 'Tetimma' challan was submitted against him when he was apprehended. During the course of trial, Muhammad Yunus, accused was murdered while the other accused Muhammad Ayub also died. After completion of the trial Muhammad Karim was acquitted, while Muhammad Aziz, accused- ppellant was convicted and sentenced to life imprisonment. This appeal challenges the aforesaid order of the District Criminal Court, Kotli. 4. Ch. Muhammad Yusuf Khan, the learned Counsel for the appellant did not press the appeal on merits. However, he invited the attention of the Court that the accused after being apprehended on July 11, 1985, remained in Judicial Lock-up for a period of more than 5 years when the case was finally concluded by the District Criminal Court, on July 17, 1990. It was argued that the trial Court did not take into consideration the period during which the accused was detained in custody, at the time the sentence of imprisonment was awarded. It was further argued that it was the requirement of law through mandatory provisions of Section 382-B, Cr.P.C. to consider the relevant period. Pie prayed that the ben'efit of Section 382-B, Cr.P.C. may be given toed-appellant. The learned Counsel referred to 1994 P.Cr.L.J. 873, : .r.L.J. 597, 1984 P.Cr.L.J. 152, PLD 1980 S.C. 317 and 1991 P.Cr.L.J. 1721, in support of his contentions. On the other hand, Kh. Abdul Basit, the learned Counsel for the complainant and learned Additional Advocate General opposed the contention of the learned Counsel for the appellant, on the ground that the accused-appellant is not entitled to the oncession of Section 382-B, Cr.P.C. as he absconded after the commission of the crime. It was also argued that the accused brutely committing heinous crime are not entitled to the above oncession. The learned Counsel for the complainant did not cite any law or citations in support of his assertion. To appreciate the proposition, it is appropriate to appraise the relevant provision hich is reproduced as below:- "S. 382-B. Period of detention to be considered while awarding sentence of imprisonment. Where a Court decided to pass a sentence of imprisonment on an accused for an offence, it shall take into consideration the period, if any, during which, such accused was detained in custody for such offence." The analysis of the above provision of law reveals that at the time of passing the sentence of imprisonment, it is mandatory for the Court to consider the period during which the accused was detained in custody. A perusal of the impugned judgment and order shows that the trial Court at the time of passing the order failed to consider the period of detention the accused remained in custody during the investigation and trial. 5. This Court exercises the same powers in appeal as are vested in the trial Court. Therefore, it seems appropriate to advert to the relevant law which escaped the attention of the trial Court. The proposition of extending concession of Section 382-B, Cr.P.C. invited the attention of the different jurisdictions. The consensus remained in favour of extending the above benefit for a period spent by a convict in the course of trial or investigation, or even during the appeal period if the accused is convicted by the appellate Court or his sentence is altered by that Court Reliance in this regard may be placed on 1992 P.Cr.L. J. 597 wherein the Shariat Court of Azad Jammu and Kashmir, held as follows:- "-The convict was arrested on February 16, 1980. He remained in Judicial Lock-up throughout the trial and disposal of the appeal and confirmation of the sentence. Therefore, he is granted benefit of provisions of section 382-B, Cr.P.C. The period of such detention shall be counted towards his rigorous imprisonment. The benefit of concession of remittances of sentence to the convict awarded by the Government or the President from time to time, during this period shall be admissible to him as well. The appeal and reference are disposed of accordingly." The proposition also came under consideration before a Division Bench of Lahore High Court in the case titled Hakim Khan vs. State (1994 P.Cr.L.J. ! 873) wherein it was held as under:- 1 "--Learned counsel for the petitioner has made an application under Section 561-A, Cr.P.C. for the grant of benefit of Section 382-B, Cr.P.C. to him on the strength of t Ramzan and 3 others v. The State PLD 1992 S.C. 11, t whereby judgment of the Full Bench of the High Court in the case titled Zulfiqar Ali v. The State PLD 1984 Lah. 461 \ was reversed. Learned counsel for the petitioner has cited I LiaqatAli v. The State 1991 P.Cr.L.J. 1721 where benefit of Pt-p p. wa« nllnwfid to cnnvicts even after pronouncement of judgment. It was observed in the said case that such orders are neither considered alteration of the judgment nor review of the same and in fact are passed to give effect to the legal proposition." The Supreme Court of Pakistan in the case titled Alt Sher v. The State & others (PLD 1980 S.C. 317) observed as under:- "Section 382-B~Sentence~Computation of detention period-Supreme Court no passing original order of conviction and sentence but merely restoring judgment of trial Court-Section 382-B, held, not attracted in strict terms but, nevertheless, benefit contemplated by section clearly to be made available to respondents kept in custody for several years under orders of Court during pendency of present appeal-Benefit of section accordingly ordered to be extended to accused respondents." In another case reported as P.Cr.L.J. 1984, page 152, the proposition was resolved in the following manner: - "-Ss. 382-B & 561-A~Benefit of S. 382-B-Mandatory for Court passing sentence of imprisonment to take into consideration period of detention undergone by accused as an under trial prisoner and apply its mind expressly for deciding whether adjustment of period of detention be allowed or not and in absence of such order, Jail authorities not authorised to give such adjustment-High Court competent under S. 561-A to consider a miscellaneous application for determination as to whether convict entitled to benefit of S. 382-B, Cr.P.C.-Not necessary for Court allowing benefit thereof to specify actual period undergone by accused which can be left to be computed by Jail authorities-Section 382-B, Cr.P.C. being procedural provision, held, can be applied retrospectively to cover even cases decided before its enforcement." 6. The analysis of the aforesaid authorities reveals that the period of detention of an accused during the investigation, trial or period spent during the appeal is to be considered. Allowing of benefit can be made even on the miscellaneous application by the Court after passing the judgment and while deciding the appeal as well. Relying upon the aforesaid authorities, the convict-appellant is given the benefit of Section 382-B, Cr.P.C. for the period he was detained either in police custody or Judicial Lock-up. The period of such detention shall be counted towards his imprisonment. With the above observations, the appeal stands dismissed. (Aq.By.) Appeal dismissed.
PLJ 1997 Shariat Court (AJK) 8 PLJ 1997 Shariat Court (AJK) 8 Present: ch. muhammad taj, J. STATE--Petitioner versus MAZHAR HUSSAIN and another-Respondents Or. Rev. No. 24 of 1996, decided on 7.11.96. (i) BailCancellation of Bail-Cancellation of~Prayer for-Medico legal report contradicting ~ version put forth by complainant and other PWs-Keeping in view the nature of injuries on person of deceased and other Ws., it is yet to be determined whether accused/respondents shared common intention to commit murder of deceased-Held : Case requires further inquiry- Petition dismissed. [P. 10,12 & 13] A, D, E, F 1981 P.Cr.L.J. 1232 ref. (ii) Bail- Court, while considering a bail application should take into consideration allegations made in FIR, statements of eye-witnesses and other incriminating material placed by prosecution, including ny plea raised ~ . by accused. [P. 11] B (iii) Bail- While deciding a bail matter, ordinarily, detailed merits of case are not gone into-However, a cursory view of merits cannot be avoided in disposing a bail matter, to reach the conclusion justified in law. [P. 11] C PLD 1983 S.C. (AJK) 8 and PLD 1972 S.C. 81. Kh. Attaullah, Addl. Adv. General for State. Mr. Ghulam Mustafa Mughal, Adv. for the Complainant. Mr. Rafique Mehmood Khan, Advocate, for the Respondents. Date of hearing: 7.11.96. order This revision petition has been filed against, the order passed by the District Criminal Court, Pallandari, on January 23, 1996, whereby the accused-respondents were allowed bail in the offences under Sections 5, 15, Islamic Penal Laws Act read with Sections 307, 149, 147, 148, APC and Sections 13/20/65, Arms Act. 2. The facts giving rise to the present revision petition are that a case under Sections 307/34, APC and Section 5/15, Islamic Penal Laws Act, was registered at Police Station Pallandri on the report of complainant Shahpal Akhtar, on July 10, 1995 at 5.30 P.M. against the respondents and other accused. It was stated in the F.I.R. that the complainant was employed in Peshawar C.M.H. and had come on two months' leave. It was also disclosed that there was some family dispute between his cousin Mst. Shesham Jan and her husband, Muhammad Hayat Khan, accused. To solve the said dispute, Hayat Khan summoned Muhammad Hussain, Gul Hussain, Purvaiz, Ashfaq, Ishaque Tariq Khan, Haji Lai and complainant, on July 10, 1995 at his residence who reached there. During the conversation at about 3. P.M., said Hayat Khan accused passed remarks against his wife, Mst. Shesham Jan, on which hot words were exchanged between Gul Hussain and Hayat Khan. After the altercation, Hayat Khan went towards the house of Muhammad Akram where Muhammad Akram son of Jewan Khan, Mazhar son of Munir Ahmed Khan, Arshad son of Chirgah Ahmed Khan had already assembled in his house and after a while, he and Hayat Khan armed with 12-bore guns, Mazhar with a "Pail" and Arshad with a 'Soto', attacked. Muhammad Akram, with the intention to kill, fired at Gul Hussain and Ashfaq Khan which hit the left shoulder and chest of Gul Hussain, while Ashfaq Khan received injuries at his nose, neck, jaw and chest. On the alarm raised by the complainant and others, the ladies of the locality gathered there. The complainant with the help of Muhammad Hussain brought out the injured Gul Hussain when accused Hayat Khan, with the intention to kill, fired at Muhammad Hussain from a close range which hit him at his right leg. Meanwhile, Mazhar, Arshad and Mst. Kalo Bi, accused started beating the complainant and Muhammad Hussain with 'Pail' and 'Sotas'. The complainant helped Muhammad Hussain to take him out when Muhammad Akram accused, with his 12-bore gun, fired at him from a close range which hit his back and right hand of the complainant. Meanwhile, Hayat Khan fired his third shot which hit Muhammad Hussain's right leg who scummed to the injuries at the spot. The accused with a common object, after having armed with guns, 'Pail' and 'Sotas', killed Muhammad Hussain and injured Gul Hussain, Ashfaq Khan and complainant. The occurrence was witnessed by the said persons and the ladies present there. 3. After investigation, the challan was forwarded to the District Criminal Court, Pallandri, in the offences under Sections 307, 147, 148, 149 APC read with Sections 5/15, Islamic Penal Laws Act and Sections 13/20/65, Arms Act. The trial Court took the cognizance of the offences where the trial of the case is in progress. The accused- espondents applied for their bail which, after hearing the parties, was allowed vide the impugned order. 4. Kh. Atta Ullah, the learned Additional Advocate General and Mr. Ghulam Mustafa Mughal, the learned Counsel representing the complainant, maintained that a strong prima facie case exists against the accused-respondents who with common object and intention, while armed with 'Pail' and 'Sota', inflicted injuries on Muhammad Hussain deceased and prosecution witnesses. The accused-respondents committed a heinous offence for which they are liable to punishment of "Qisas" or death sentence. The prohibitory clause of Section 497, Cr.P.C. is attracted in the matter, as such the discretion exercised by the trial Court in favour of accusedrespondents, is against the basic principles governing the bail matters. The learned Counsel for the complainant referred to 1979 S.C.M.R. 92 and 1981 S.C.M.R. 849. On the other hand, Sardar Rafique Mahmood Khan, the learned Counsel for the accused-respondents, defending the order of the trial Court, raised the following points:- i) That there is no prima facie case established against the accused-respondents by the prosecution; (ii) that the allegations levelled against the accusedrespondents require further probe and inquiry, as such the case is covered by Sub-section (2) of Section 497, Cr.P.C. It was explained that the medical evidence contradicts the version put forth by the complainant and prosecution witnesses. Even otherwise, the attribution of injuries on the person of the deceased and prosecution witnesses, to the accused-respondents, requires further inquiry in view of the nature of the injuries; (iii) that the trial Court, after due consideration of the facts involved in the case, proceeded to exercise its discretion vested in it by law which does not require interference by this Court as nothing has been pointed out, violating any law or principle established by the superior Courts in the bail matters. 5. I have heard the learned Counsel for the parties and also gone through the record. According to the prosecution version, respondent No. 1, Mazhar Hussain is attributed to have caused injuries on the person of Muhammad Hussain deceased and Shahpal Akhtar, complainant (injured prosecution witness) with a 'Pail', while the other accused-respondent, Muhammad Arshad, is alleged to have caused injuries with a 'Sota', to the deceased and other prosecution witnesses. A perusal of the medico legal report shows that Muhammad Hussain deceased received 5 injuries on his person. Out of those, the first four are of fire-arm while the fifth one is multiple bruises marks of different sizes present on the face. The ^postmortem report, though does not disclose any injury caused by blunt weapon, yet the above referred injury can be stated to be caused as such. Shahpal Akhtar, complainant, the prosecution witness received 4 injuries 'which, according to the medico legal report, are stated to be the fire-arms injuries. Gul Hussain, the other prosecution witness also received 5 injuries which are shown to have been caused with fire-arms. According to the complainant's version, the accused-respondents are attributed to have caused the injuries with 'Pail' and "Sota" to the deceased and prosecution witnesses but the medico legal report contradicts the version put forth by the complainant and the other witnesses. The multiple bruises shown on the person of Muhammad Hussain deceased also do not appear to have been caused with the weapons attributed to the accused-respondents. 6. The Court, while considering a bail application, should take into consideration the allegations made in the F.I.R., statements of the eye witnesses and other incriminating aterial placed by the prosecution, including any plea raised by the accused. To form an opinion, if reasonable grounds appear for believing that the accused was guilty of an offence punishable with death or imprisonment for life, the accused shall not be released on bail subject to provisos of Section 497, Cr.P.C. But if it appears to the Court, at any stage of the investigation, inquiry or trial, as the case may e, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient rounds of further inquiry into his guilt, the accused shall be released on bail. 7. While deciding a bail matter, ordinarily, the detailed merits of the case are not gone into as held by their Lordships of the Supreme Court of Pakistan in PLD 1966 S.C. 340. It may be added that the rule laid down seems to be quite sound. However, a cursory view of the merits cannot be avoided in disposing a bail matter, to reach the conclusion justified in law. It may be observed that the mere allegation that a person has committed an offence punishable with death or transportation for life, is not sufficient to refuse bail unless reasonable grounds appear to exist to disclose their complicity as it has also to be kept in mind that if an accused, in view of the facts given in a case, is finally acquitted, he cannot be compensated for his period of detention in the Judicial Lock-up during the trial, apart from the fact that the law also allows concession of bail to a person pending further inquiry into his guilt Reliance in this regard may also be placed on PLD 1983 S.C. (AJ&K) 8, wherein the following observation was made:- "It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted, how can he be compensated for his detention, in the judicial lock-up during the trial. Therefore, the law allows concession of bail to such a person, of course, pending further enquiry into his guilt." The proposition also finds support from the Supreme Court of Pakistan's judgment recorded in the case titled 'Manzoor vs. The State' (PLD 1972 S.C. 81), wherein it was held as under:- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they ave committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run." 8. Dealing with the case in hand, the accused-respondents are attributed to have caused injuries to the deceased and prosecution witnesses by Tail' and 'Sota'. Prima facie, it appears that the medico legal reports furnished by the prosecution do not support the version of the complainant. The injuries appearing on the person of Muhammad Hussain deceased as multiple bruises also do not appear to have been caused with the weapon attributed to the accused-respondents. The injuries on the person of Shahpal Akhtar, complainant and other prosecution witnesses Gul Hussain also do not corroborate the prosecution version as none of the injuries is shown to have been caused with a blunt weapon. Keeping in view the nature of injuries on the person of Muhammad Hussain deceased and other prosecution witnesses, it is yet to be determined whether the accusedrespondents shared the common intention to commit the murder of Muhammad Hussain deceased. Therefore, the case requires further probe and is of further inquiry. A similar proposition attracted the attention of the Lahore High Court in the case titled "Muhammad Nawaz vs. The State" (1981 P.Cr.L. J. 1232) wherein it was laid down on page 1233 as under: - "It transpires from the perusal of the record that the deceased was not hit by the petitioners; only the P.Ws namely Khan Zaman, Noor Khan and Muhammad Khan suffered injuries at their hands. These were, however, declared simple. I am inclined to agree with the petitioners' learned Counsel that the question of vicarious liability should not be deeply examined at the bail stage. Whether or not the petitioners shared the common intention to commit murder of Mst. Aslam Khatoon deceased and launched a murderous assault on P.Ws. is a matter which needs further inquiry. The case apparently fails within the purview of sub section (2) of section 497, Cr.P.C." It may also be mentioned that the trial Court after due appreciation of evidence proposed by the prosecution, proceeded to allow concession of bail to the accused-respondents, in exercise of its discretion vested in it which does not warrant any interference by this Court as the order of the trial Court is based on sound principles established by the superior Courts and the law dealing with the bail matters. 9. In view of the above position, the revision petition is found to have no substance in it which is hereby dismissed. The authority, 1981 S.C.M.R. 849, referred to by the learned Counsel for the complainant, with its distinct facts, is not applicable to the facts of the case in hand. However, the other case, 1979 S.C.M.R. 92, referred to by the learned Counsel for the complainant, does not lay down the law different to the one enunciated in the cases relied upon, as in the said report, it is held that the Courts, on the basis of material placed before them, are justified, even at bail stage, to go into the question whether the case of vicarious liability is made out. (Aq.By.) Appeal dismissed.
PLJ 1997 Shariat Court (AJK) 13 PLJ 1997 Shariat Court (AJK) 13 Present: KHAWAJA MUHAMMAD SAEED, CJ. ARSHID MAHMOOD-Petitioner versus ASHTIAQUE AHMAD and 3 others-Respondents. Cr. Rev. No. 89 of 1996, decided on 11.12.96. AJK Islam! (Tazeerati) Laws Enforcement Act, 1974- S. 1-A-Two member's Courts were constituted at Tehsil and District level-Absence of single member-Effect-Whether a single member is competent to dispose of bail application-Question of-Single member, present on seat of court is competent to dispose of bail application in absence of other member-If other member's seat is vacant on any ground, it does not mean that Court stands abolished-Single member, can affectively and competently adjudicate all, matters, which he has been made competent-Learned Magistrate rightly held that he was competent to decide this cause-Revision petition, dismissed. [P. 15] A & B Ch. Muhammad Younas Arvi, Advocate for Petitioner. Ch. RiazAlam, Advocate for Accused-Respondent No. 1-3. Ch. Muhammad Mushtaque, Add. Advocate General for State. Date of hearing: 11.12.96. order The facts culminating into the present revision petition briefly stated are that on September 14, 1996, an application was moved before the Additional Tehsil Criminal Court Mirpur, on behalf of the accusedrespondents for their release on bail in a case registered against them under Section 10 of the Offence of Zina (Enforcement) of Hadood) Act read with Sections 347/34 P.C. Prior to-the filing of the above application, on August 20, 1996, the service of the Additional Tehsil Qazi who was serving on Ad hoc basis, was terminated by the Government. An objection was taken on behalf of the complainant that the Additional Tehsil Criminal Court has seized to exist due to the termination of the service of one Member of the Court The objection was turned down by the trial Court vide order under revision. Mr. Muhammad Yunus Arvi, learned Counsel for the petitioner argued that two Member's Courts were constituted at Tehsil and District level under the Azad Jammu and Kashmir slamic (Tazeerati) Laws Enforcement Act, 1974. According to this law, the Additional Criminal Court; constituted at Tehsil level shall consists of a Magistrate and a Tehsil Qazi. ccording to the learned Counsel, the powers of the Court can be exercised by the Additional Tehsil Criminal Court as a whole. Presently the office of the Additional Tehsil Qazi is acant It is, therefore, not a case in which any Member of the Court is absent due to leave or any other cause The provision which was enacted later on, whereby a single Member was , made competent in absence of other Member of the Court, to perform certain functions, was not attracted in this case, argued the learned Counsel. On the other hand, Choudhary Riaz Alam, learned Counsel for the accused-respondents has argued that the Additional Tehsil Criminal Court was established at Mirpur, as early as in 1974. According to the learned Counsel, the mere absence of any Member even due to his retirement, shall not be deemed that the Court constituted under the Act stood bolished. All those functions which through a subsequent amendment Single Member was competent, can be performed by the Single Member available in the Court. I have considered the respective arguments of the learned Counsel for the parties and have also gone through the entire record of the case There is no dispute that Courts in Azad Jammu and Kashmir at Tehsil and District level consisting of two Members for the adjudication of certain offences, were established under the Azad Jammu and Kashmir Islami (Tazeerati) Laws Enforcement Act, 1974. Initially due to the absence of one Member, the working of the Courts were affected adversely. Later on, an amendment was carried out in the law whereby a Single Member was allowed to perform certain functions even in absence of the other Member of the Courts. This amendment being relevant is reproduced here for the convenience of reference:- Later on, vide Act-XXI of 1993 even single Member of the Court was made """ competent to record evidence of the witness. Under this provision of law, a Single Member present on the seat of the Court is competent to dispose of the bail applications, as was done in the present case by the Single Member of the Additional Tehsil riminal Court Mirpur. If the other Member has retired or due to some other reasons, is not present, that does not mean that due to his absence from the seat on any ground, the Court stood abolished. On ccount of this mis-conception, this revision petition has been filed before this Court. The learned Magistrate, as a Single Member of the Court, can affectively and competently adjudicate all those matters hich under the above referred provision of law, he has been _ made competent. As said earlier, in the present case the matter before the Court was in respect of the bail of the accused-respondents. The learned Magistrate has rightly held that he had the competence to decide this cause. The revision petition, therefore, is without merits which stands dismissed. (Aq. By.)
PLJ 1997 Shariat Court (AJK) 15 PLJ 1997 Shariat Court (AJK) 15 Present: CH. MUHAMMAD taj, J. MUHAMMAD ASGHAR-Petitioner « versus STATE-Respondent Cr. Misc. No. 52 of 1996, decided on 5.12.96. (i) Bail-- S. 497 Cr. P.C.-Penal Code (XLV of 1860) S. 302-Petitioner under age of 16 year-Proviso to S. 497 Cr.P.C., enabling court to release any person on bail, under age of 16 years or any woman or ny ick or infirm person, held, not mandatory, rather discretionary and each case must he considered on its merits. [P. 20] A PLD 1982 S.C. AJK 100,1984 P.Cr LJ 171 ref. & rel. (ii) Bail- S. 497 Cr. P.C.- Penal Code (XLV of 1860) S. 302-Petitioner of 12/13 1 years old, attributed role of catching hold of deceased who was a young, stout boy of 23 year's~Co-accused (brother) of petitioner, giving brief injury to deceased-No evidence on record to show that petitioner had knowledge of co-accused to commit murder of deceasedQuestion whether it was really required for other accused to catch hold for facilitation of offence, held, matter of further inquiry-Bail allowed. [P. 21 to 23] B, C & D PLD 1987 SC (AJK) 90, 1976 P. Cr LJ 758, 1983 P. Cr LJ 745. Bail- Bail-In case of death or life imprisonment-Wisdom behindBail is not to be refused merely on allegation that a person has committed an offence punishable with death or imprisonment for life unless rounds appear to exist to disclose his complicity-Wisdom behind it is that if accused in circumstances of given case is finally acquitted, how could he be compensated for his detention during trial, herefore law allows concession of bail to such a persons. [P. 22] C PLD 1983 S.C. (AJK) 9 ref. Sardar Abdul Hamid Khan, Advocate for the Petitioner. Ch. Mohammad Mushtaq, Addl. Advocate General for State. Sardar Mohammad Haleem Khan, Advocate for the complainant. Date of hearing: 5-12-96. order This revision/application has been filed against the order of District Criminal Court, Pallandri, passed on June 3,1996 whereby bail was declined to the accused-petitioner. 2. The facts briefly stated, are that a case under Section 302, APC was registered on February 13, 1996, on the report of Muhammad Akram, complainant, at Police Station Trar Khel, against the accused-petitioner and Muhammad Afzal accused. It was stated in the F.I.R. that the sent his son Muhammad Amjad to gift some clothings to the children of his real brother Muhammad Ashraf at his house situated at Pappay Nar, Tehsil Pallandri, At about 2. p.m. he was informed by his nephew Muhammad Habib that Muhammad Amjad was murdered by Muhammad Afzal and Muhammad Asghar sons of Muhammad Ayub, at Pappay Nar by knife and they have run away. On this information, the complainant reached the spot and found the dead-body of his son Muhammad Amjad lying on 'charpai' stained with blood, at Kote Dhera. Muhammad Anwar and Muhammad Ishaque sons of Bostan Khan were present near the dead body who informed him that they have laid the dead body on the 'charpai'. The occurrence was witnessed by Mst. Nazira Begum, wife, Mst. Mumtaz Begum, Mst. Naheed Akhtar, daughters and Muhammad Habib, son of Muhammad Ashraf. It was further stated that his son Muhammad Amjad was inquiring from Muhammad Afzal, accused who was accompanied by his brother Muhammad Asghar, as to why he abused Mst. Nazira Begum wife of Muhammad Ashraf 2 days before the occurrence when she was passing from there to fetch water for asking the accused through Sub. Muhammad Karim to abstain from writing anonymous letters to her niece Naheed Akhtar to developing illicit relations. The accused was excited attacked to murder his son. Muhammad Asghar accused caught hold of him while Muhammad Afzal inflicted knife blows at his chest who died on the spot. 3. After investigation, the challan under Sections 302/34, APC read with Sections 13/20/65, Arms Act, was forwarded to the District Criminal Court, Pallandri where after taking cognizance of the offences, the trial is in progress. The accused-petitioner applied for his bail which was disallowed. Feeling aggrieved by the order, a revision petition was -filed before the Shariat Court of Azad Jammu and Kashmir which due to absence of the Counsel at the time the case was called, was dismissed for want of prosecution, considering the same an application for pre-arrest bail. Therefore, the present application for grant of bail was moved. 4. Sardar Abdul Hamid Khan, the learned Counsel for the petitioner raised the following points in support of the petition :-- (i) That no prima facie case exists against the accusedpetitioner ; (ii) that the case of the petitioner requires further probe and is of further inquiiy for the following reasons : That the accused-petitioner was 12 years & some months old, at the time of commission of offence; (a) that the accused-petitioner, according to prosecution's case, was empty handed and was alleged to have caught hold of the deceased which, in the circumstances, was impossible as the deceased was a young of 23 years old, of a stout body, to have been caught hold by a small body of 12 years ; (iii) that the matter also requires further probe in the circumstances that none of cloths of the accused-petitioner was stained with blood, particularly when the cloths of other accused, Muhammad Afzal were alleged to have been stained with blood and were recovered as such ; (iv) that according to the prosecution stoiy, the accusedpetitioner caught hold of the deceased while the other accused, Muhammad Afzal gave a solitary blow with knife taken out of his pocket. The question whether the accusedpetitioner also shared the common intention, requires further probe; (v) that the accused-petitioner was studying in 8th class in the local School whose future career shall be spoiled in jail atmosphere; and (vi) that the District Criminal Court has decided the bail application ignoring the accepted and established principles of bail established by the superior Courts. The learned Counsel placed on record the original document of Form-B of the Registration Department, Government of Pakistan and a certificate issued by the Headmaster, showing the age of the accused-petitioner and referred to the following authorities in support of his assertions :-- (i) 1976 P.Cr.L.J. 758. (ii) PLD 1988 S.C. 413. (iii) PLD 1983 S.C. AJK 8. (iv) 1980 P.Cr. L.J. 640. (v) 1996 P.Cr.L.J. 1973. 5. Qa the other hand, Sardar Muhammad Haleem Khan, the learned Counsel for the complainant and Ch. Muhammad Mushtaq, the learned Additional Advocate General, addressed the following arguments :-- (i) That there is a strong prima facie case disclosed by the prosecution against the accused-petitioner. The accused is nominated in the F.I.R. promptly lodged. All the prosecution witnesses support the prosecution version. The other incriminating material brought by the prosecution, such as medico legal report, recoveries etc. also corroborate the prosecution version; (ii) that the points raised by the learned Counsel for the petitioner, particularly with regard to the age of the petitioner, are not relevant for the purpose of bail matter as those upon the merits of the case which, in presence of a prima facie case, are not to be gone into. It was also added that the age of the accused-petitioner is more than the one shown in the certificate as, according to the learned Counsel, normally the people get register the age of their children less than the actual age. (iii), that the accused-petitioner hared the common intention with the other accused, his elder brother, Muhammad Afzal which is shown by the conduct of the accused to have dragged the dead body of the deceased towards a 'Nullah' after the commission of offence; and (iv) that the trial Court after appreciation of the facts and law, disallowed the concession of bail to the accused-petitioner. The order does not require any interference by this Court as the same was passed after due consideration. The learned Counsel referred to and cited the following authorities in support their assertions :-- (i) PLD 1982 S.C. AJ&K 100. (ii) PLD 1982 Sh. C. AJ & K 104. (iii) 1984 P.Cr.L.J. 171. (iv) 1984 P.Cr.LJ. 177. (v) PLD 1990 S.C. 83. (vi) 1983 P.Cr. L.J. 1965. (vii) PLD 1992 S.C. AJ&K 33.. 6. In rebuttal of the arguments advanced by the learned Counsel for he complainant and State, the learned Counsel for the petitioner addressed further arguments : (i) That the allegation of dragging the dead 'body of the deceased was added later on as the said allegation is not found in the F.I.R. (ii) that all the prosecution witnesses are closely inter se related. There is no independent witness. 7. I have heard the learned Counsel for the parties and also gone through the record. The learned Counsel for the petitioner has placed on record the original document, Form-B issued by the Registration Department and a certificate issued by the Headmaster of Middle School Trar Khel, alongwith an affidavit worn in by the father of the petitioner, showing petitioner's date of birth as June 14, 1983. The complainant or the State has failed to bring anything on record in ontradiction f said documents. The occurrence is alleged to have taken .place on February 13, 1996 which shows that the age of the petitioner was 12 years and 8 months, at the time of alleged ommission of offence. 8. The accused-petitioner is alleged to have caught hold of the deceased while the other accused, his elder brother Muhammad Afzal is ttributed to have caused knife blow to the deceased at his chest. The age of the deceased at the time of occurrence is shown 23 years who is also shown as stout and healthy. It is not disclosed in the F.I.R. as to how the deceased was caught hold by the accused-petitioner. However, in the statements recorded later on, under Section 161, Cr.P.C., it was disclosed hat the deceased was caught hold from the back. The accused-petitioner was shown empty-handed and is not shown to have caused any injury to the deceased. None of his cloths were stained with the blood of the deceased, as such, were not recovered while those of the other accused, Muhammad Afzal were recovered. According to the prosecution, witnesses, Mst. Nazira Begum, Mst. Naheed Akhtar, Mst. Mumtaz Begum and Muhammad Ali who are shown eye-witnesses, and claim to have witnessed, to have taken out the knife by Muhammad Afzal, accused from his pocket, to inflict injury to the deceased. It was also stated by them that the said accused also inflicted fist blow on the face of the deceased as well, before inflicting the knife injury. 9. While considering a bail application under Section 497, Cr.P.C., if it appears to the Court that there are reasonable grounds for believing that the accused is guilty of offence punishable with death or imprisonment for life, he .shall not be released on bail unless the case is covered by any of the provisos maintained in the Section which are (i) any person under the age of 16 years; (ii) any woman; and (iii) any sick or infirm person, but if it appears to the Court at any stage of investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused as committed a non-bailable offence but that there are sufficient grounds for further inquiiy into his guilt, the accused shall be released on bail. 10. The question whether an accused under the age of 16 years involved in a case carrying death penalty or imprisonment for life, is entitled to the grant of bail on the sole ground, attracted the attention of different jurisdictions. The proposition came under discussion before the Supreme Court of Azad Jammu and Kashmir in the case titled 'Shabbir Hussain vs. The State' (PLD 1982 S.C. AJK 100) wherein it was held as under :-- "~S. 497, proviso-Bail in non-bailable offence-Proviso to S. 497 enabling Court to release any person under age of 16 years or any woman or infirm person-Held, not mandatory--Matter within discretion of Court and each case must be considered on its merits." In another case title 'Tahirur Rehman vs. The State' reported as 1984 P.Cr.L.J. 171, the following observation was made by the Shariat Court of Azad Jammu and Kashmir :-- -S. 497(2)--Penal Code (XLV of 1860) S. 302-Age~Mere fact petitioner was few months below statutory age mentioned in proviso to S- 497 (2), held, not by itself a ground for freeing him on bail-Proviso to S. 497 (2) not mandatory but only vests a competent Court with discretion to let off even a person accused of offence punishable with death or transportation for life, on bail." 11. Relying upon the authorities referred to above, it may be observed that the Proviso to Section 497, Cr.P.C. enabling the Court to release any person on bail, under the age of 16 years or any woman or any sick or infirm person, is not mandatoiy. The word used in the above referred Section clearly indicates that this matter is within the discretion of the Court and each case must be considered on its merits. It was contended by the learned Counsel for the accused-petitioner in his arguments detailed above that the matter, in the circumstances of the case, requires further probe, as such is of further inquiiy. The accusedpetitioner was shown empty handed and was alleged to have caught hold of the deceased when his elder brother Muhammad Afzal, accused is attributed to have caused injury after taking the knife out of his pocket which raises following points for consideration :-- (i) Whether a boy of 12-13 years old can catch hold of a young stout person of the age of 23 years ? (ii) Whether an elder brother would expose his younger brother of the age of 12-13 years to a young person ? (iii) whether the cloths of the accused-petitioner were likely to be stained with the blood of the deceased in the circumstances when those of the other accused, Muhammad Afzal inflicting knife injury, were stained with deceased's blood;? (iv) Whether the accused-petitioner shared the common intention with the other accused to kill the deceased, particularly in the circumstances when the knife was taken out of his pocket by Muhammad Afzal, accused, at the time of occurrence.? 12. It does not require any elaborate discussion that in the circumstances discussed above, it can safely be resolved that the matter requires further probe as to whether the accused actually caught hold of the deceased in the circumstances when the attribution is made to a small boy of 12-13 years old, to have done so for a young grown up person, particularly whether it was really required for the other accused to catch hold for the facilitation of the offence, apart from the fact that the matter requires probe as to whether the accused-petitioner shared the common intention with the other accused when he took out the knife from his pocket. There is no evidence on record supporting the fact of knowledge of the accused-petitioner for the intention of the other accused to take away the life of the deceased by infliction of knife injury. Therefore, it is safely held that the matter is of further inquiiy. Reliance in this regard can also be placed on the case titled 'Muhammad Khurshid vs. The State' decided by the Supreme Court of Azad Jammu and Kashmir , on March 31, 1985. A similar proposition was also raised in 'Muhammad Sharif vs. The State' (PLD 1987 SC AJK 90) wherein it was held as under :--. "-The appellants are ascribed the role of catching hold of the deceased while the principal accused is alleged to have inflicted injuries on his abdomen. It is not manifest as yet that the alleged weapon of offence (knife) taken out by the principal accused abruptly, was within the knowledge of the appellants. It cannot, therefore, be said with certainty at this stage that the appellants were aware of the fact that the principal accused was armed with a knife. The appellants acted in preconcert, neither it could be inferred that the accused-appellants had any knowledge that co-accused- (principal accused) had a knife on his person. In order to saddle the appellants with the responsibility of sharing common intention as envisaged under Section 34, APG, there must exist some evidence on record from which it could be inferred that these accused were aware of the fact that the main culprit, had a knife on his person.--" Reference may also be made to the case titled ' l Shahid Iqbal vs. The State' (1976 P.Cr. L. J. 758) wherein it was laid down as under :-- "--Sec. 497--Bail--(Murder case)~A solitary blow allegedly inflicted on deceased by co-accused while petitioner held deceased by arm-Question whether petitioner secured deceased arm needing further inquiry-Petitioner admitted to bail, in circumstances of case." The case of 'State vs. Matloob Hussain Shah' (1983 P.CrX.J. 745), can also be referred in support of the proposition in hand wherein the following observation was made by the Supreme Court of Azad Jammu and Kashmir:- "~The only allegation against the respondent is that he held the deceased before he was fired at by Ibrar Hussain Shah. It is yet to be determined as to whether the position in which the deceased was held, Ibrar Hussain, accused could safely hit at the deceased ignoring the fact that the fire may hit his father Matloob Hussain Shah, respondent-accused. It also makes us to believe that it is yet to be seen by the trial Court whether it was at all necessary for the respondent to have held the deceased because it will not have taken more than a second in inflicting the fire injury to the deceased. The question, therefore, whether the respondent in reality did secure the deceased in the circumstances of the case needs further inquiry.--" 13. It may also be added that bail is not to be refused merely on the allegation that a person has committed an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose .his complicity. The wisdom behind it is that if the accused in the circumstances of the given case is finally acquitted, how could he be compensated for his detention during the trial, therefore, law allows concession of bail to such a person. Reliance in this regard is placed on PLD 1983 S.C. AJK 9. 14. Keeping in view the facts discussed above and their accumulative effect, particularly in the light of age of the accused-petitioner, nature of allegation attributed to him and the other circumstances of the case, such as accused-petitioner being a student of Vlll-Class, the bail application is accepted, setting aside the order of the District Criminal Court, Pallandri. The accused-petitioner shall be released provided he furnishes bail bond in the sum of Rs. 5,00,000/- with two sureties and personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Pallandri. The authorities, i.e. PLD 1982 Sh. C. AJK 104, 1984 P.Cr.L.J. 177, PLD 1990 S.C. 83, 1983 P.Cr.L.J. 1965 and PLD 1992 S.C. AJK 33, with their distinct facts, are not applicable to the case in hand, as such are not discussed. (Aq.By,) Bail allowed.
Petition partly accepted Petition partly accepted.
PLJ 1997 Shariat Court (AJK) 28 PLJ 1997 Shariat Court (AJK) 28 Present: ch. muhammad taj, J. Malik MUHAMMAD NAWAZ KHAN and others-Petitioners versus STATE-Non-Petitioners Cr. Ref. No. 05 of 1996, Cr. Rev. No. 29 of 1996, Cr. Rev No. 30 of 1996 and Cr. Rev. No. 33 of 1996, decided on 14.12.1996. (i) Bail-- Bail-Rejection of-Attitude of accused-Question of-Accused person not surrendering himself before police after refusal of pre-arrest bail-Held: It is a settled proposition of law that an accused not urrendering himself before police after having been declined bail, not entitled to be heard Petition, dismissed. [P. 41 & 42] C, D 1993 SCR (AJK) 300 ref. (ii) Bail- BailPetition forChallanSubmission ofCondition forTrial Court while dismissing bail application giving condition that accused can move trial court afresh after submission of challan of case-- ondition, laid down by Sessions Judge with regard to said accused to move afresh only after presentation of challan against them, is against law-Accused are, at liberty to move trial Court afresh if they so eel advised even before resentation of challan. [P. 42] E (iii) Bail- Ss. 497, 498 Cr. P.C.-Bail-Evidence-Assessment of-Court has to make tentative assessment of evidence brought by prosecution as incriminating material or by accused in defence and other surrounding ircumstances as well and, does not in terms contain any restriction on courts power to assess evidentiaiy value of material placed before it--However, Court has to refrain, directly or indirectly, from giving ny conclusive finding on question of guilt or innocence of accused. [P. 38] B PLD 1962 S.C. 49, PLD 1972 S.C. 81, PLD 1978 S.C. 256 and 1995 SCMR (AJK) 104 ref. (iv) Bail--Pre-arrest-- Pre-arrest bail-Guidelines for-Matter of pre-arrest bail is to be dealt with in accordance with conditions, laid down by superior Court's from time to time in addition to conditions laid down u/S. 497Cr.P.C.--Most essential of them are that intended arrest would he tainted with mala fide and it must be established that accused-petitioner apprehends his arrest on account of ulterior motive orprosecution is motivated by malice as to cause irreparable injury to his reputation and liberty and police is motivated on political consideration or other ulterior reasons. [P. 36] A Mr. M. Nisar Mirza, Malik Muhammad Yousaf Khan and Ch. Muhammad Yousaf, Advocates for accused. Ch. Muhammad Sharif Tariq, Ch. Muhammad Azam Khan and Mr. Riaz Navid, Advocates for Complainant and Ch. Muhammad Mushtaq, Add. A.G. for the State. Date of decision: 14.12.1996. order The above titled reference and revision petitions arise out of same matter, as such are disposed of by this common order. 2. The fats forming the background of these bail matters are that a case under Sections 341/302, 324, 147, 148, 149, 109, 337-A, APC was registered at Police Station Kotli, on the report of Tahir Latif, complainant, on July 1, 1996 at 7.30 A.M. It was stated in the First Information Report that the complainant was the Polling Agent of Mahmood-ul-Hassan Chaudhary at Polling Station Narrali, in the general elections held on June 30, 1996. He stated to have hoarded the wagon carrying polling bags and polling staff from assembly point Goi. When the wagon reached Makrali, all of sudden persons armed with guns, appeared on the road and started firing a the wagon, resultantly Prof. Muhammad Kazim, Presiding Officer, Polling Station Seri Dharra, was murdered while Master Muhammad Boston s/o Deandli, Master Mustaq, Master Muhammad Iqbal, and Sajjad Ahmed driver were seriously injured. The assailants were Malik Muhammad Ishaque, Ex. P.R.O. of Malik Muhammad Nawaz, Minister, Malik a/z'as Shakkoo son of Muhammad Hussain, Malik Kabir, Mahmood Malik, Muhammad Shafique malik, Maroof Malik, Shaukat Saleem, Councillor Municipality Abdul Qayum Malik, private driver of Malik Muhammad Nawaz, elder son of Malik Muhammad Asghar, Malik Mushtaq, Ex- Chairman, Union Council Roli, and other unknown persons. It was further stated that Malik Kabir accused was apprehended on the spot. The assailants acted to snatch the polling bags, to change the results in favour of Malik Muhammad Nawaz, candidate. It was further disclosed that Malik Muhammad Nawaz, Minister of the Government and Malik Muhammad Mushtaq, Ex-Chairman Union Council Roli, planned the above conspiracy. The reason for delayed F.I.R. was shown of the accused persons having blocked the roads. 3. During investigation, Kabir, Shafique and Mahmood Ahmed, accused were apprehended, while Malik Muhammad Nawaz, Muhammad Mushtaq, Muhammad Ishaque, Muhammad Maroof, Shaukat Saleem, Abdul Qayum and Ayyaz Asghar were allowed interim pre-arrest bail by the District Criminal Court, Kotli. The trial Court consisting of Sessions Judge, Kotli and District Qazi, Kotli confirmed the interim bail earlier granted to Malik Muhammad Nawaz and Ayyaz Asghar and refused the pre-arrest bail to Muhammad Ishaque and Muhammad Maroof, accused and also declined bail after arrest to Muhammad Kabir, Muhammad Shafique and Mahmood Ahmed, accused. The Court differed on the point of confirmation of bail earlier granted to Shaukat Saleem, Mushtaq, Abdul Qayum, accused. The learned Sessions Judge Kotli, confirmed the bail of said accused while the District Qazi, the other member of the Court, refused to confirm the same. Due to difference of opinion, reference with regard to bail on behalf of the accused, was forwarded to this Court. Two revision petitions, one on behalf of Muhammad Ishaque and Muhammad Maroof, accused against refusal of their anticipatory bail and the other by Muhammad Kabir, Shafique and Mahmood Ahmed, accused, against the refusal of their bail after arrest, were filed by the accused persons. Muhammad Yunus, brother of Prof. (vi) that the independent prosecution witnesses, the polling staff did not implicate the accused in the case. It was explained that the witnesses, Muhammad Safeer, Patwari, Muhammad Iqbal, teacher, Assistant Presiding Officer and Sajjad, driver of the wagon did not implicate the accused in the case; (vii) that the statements under Section 161, Cr.P.C. of the prosecution witnesses were twice recorded to fill in the lacuna and weaknesses of the prosecution case which contradict each other. It was emphasized that the complainant party was bent upon to involve the accused and concoct a case against them; (viii)that for accused Muhammad Nawaz, Ayyaz Asghar, Shaukat Saleem, Malik Mushtaq and Abdul Qayum, the respectables of the District which also included senior most officers, i.e. District Magistrate, his Steno, Muhammad Azeem, Dr. Shabbir Kiani, Medical Superintendent, DHQ Hospital and Mr. Muhammad Sadiq, D.A.G., made their statements before the Investigating Officer and also filed their affidavits about the presence of accused at the time occurrence, in the Control-Room in the -office of S.S.P. Kotli where the same was established to receive the results of the elections; (ix) that it was admitted by the prosecution witnesses that the wagon carrying polling bags and polling staff was escorted and followed by two vehicles of Mujahideen of Jamait-e- Islami who were also armed, and exchanged firing at the time of occurrence with the assailants but none of them was cited as prosecution witness; (x) that the seat of injury of deceased Prof. Muhammad Kazim, showing entiy wound on the left side near his left ear, contradicts the prosecution version and raises doubts in he correctness of the stoiy in the circumstances that it is admitted that the two vehicles carrying "Mujahideen", one escorting and the other following the wagon were there and the "Mujahideen" also started firing. The possibility of deceased having been injured at the hands of "Mujahideen" cannot be ruled out in the circumstances; (xi) that the allegation of injury to the deceased is attributed to Malik Shakkoo while there is no specific allegation of causing injury to the deceased or any prosecution witness attributed to other accused. The said Malik Shakkoo is not before the Court; to be present in the aforesaid wagon who is not reported to be injured; (vi) that the wagon carrying the polling bags and polling staff was escorted and followed by two vehicles of "Mujahideen" of Jamait-e-Islami, who, according to prosecution, were armed and they also made firing when the assailants attacked on the wagon through firing. The seat of the injury on the deceased is located near his left ear, whereas the firing was claimed to have been made by the accused from the right side; (vii) that none of the "Mujahideen" in two vehicles described above, was examined except the one Mr. Aafai who did not identify any of the assailants; (viii)that member of the polling staff travelling through the aforesaid wagon, namely Muhammad Safeer, Patwari, Muhammad Iqbal, teacher, Abdul Qayum, Naib Qasid and Sajjad, driver of the wagon, did not nominate any of the accused persons or identify any of the assailants; (ix) that the prosecution after having recorded the statements of Sajjad, driver, recorded his another statement under Section 161, Cr.P.C. on 25.11.1996 which contradicted the statement recorded earlier. The latter statement recorded nearly after 5 months of the occurrence, contains the names of Abdul Qayum, Mahmood Ahmed and Shakkoo who were identified as assailants while in the earlier statement he categorically denied to have identified any of the assailants. Number of respectables of the Kotli District, particularly the District senior Officers which include Dr. Muhammad Shabbir Kiani, M.S. DHQ Hospital, Muhammad Sadiq, DAG, Muhammad Azeem, Steno of the Deputy Commissioner, Kotli, filed their affidavits and got their statements recorded before the Investigating Agency to the effect that accused Muhammad Nawaz, Ayyaz Asghar, Muhammad Mushtaq, Shaukat Saleem and Abdul Qayum, were present at the relevant time of occurrence in the Control Room; (x) that no recovery was effected upon Muhammad Kabir, Mahmood Ahmed and Shafique, accused apprehended by the police including the one apprehended on the spot; (xi) that the only evidence of conspiracy available with the prosecution is the statements of Muhammad Ilyas and Iqbal PWs whose statements under Section 161, Cr.P.C. were recorded on 15.7.1996 while the first informant disclosed about the conspiracy in the F.I.R. without having any information from the above two witnesses; (xii) that the only accused, Malik Shakkoo is alleged by the prosecution to have caused fire-arm injury to Muhammad Kazim, deceased and Muhammad Shafique and Mahmood hmed, accused are attributed to have inflicted the injuries to Sajjad, driver while none of the other accused persons is attributed any specific injury caused to other injured persons; (xiii)that it is a night-time occurrence took place on "election day" wherein the accused belonged to the party while the complainant party to other; (xiv)that some of the impartial witnesses do not support the prosecution version so far as their involvement towards the commission of offence is concerned; & .- (xv) that Ayyaz Asghar, accused is not nominated in the F.I.R. 12. Keeping in view the accumulative effect of the features arising out of the prosecution case which may include the time of occurrence, conflicting stat ments of he prosecution witnesses, the First Information Report being lodged on the next day, some of the impartial witnesses not supporting the prosecution in respect of involvement of the accused persons, the affidavits filed before the Investigating Agency by some of the important District Officers, stating for the accused Muhammad awaz, Malik Mushtaq, Shaukat Saleem, Abdul Qayum and Ayyaz Asghar to be present at the relevant time in the Control-room, the evidence with regard to conspiracy being recorded after a lapse of nearly one month and 15 days of the occurrence, make the case of further inquiry for the accused Muhammad ^ Nawaz, Ayyaz Asghar, Muhammad Mushtaq, Shaukat Saleem and Abdul Qayum. 13. The question whether the above accused are entitled to prearrest bail, it was claimed in their application moved for pre-arrest bail that they were innocent and were involved because of election enmily to prejudice their liberty and reputation. The question whether an accused person involved in a case attracting death enalty or transportation for life, is entitled to concession of pre-arrest bail, came under consideration before the Shariat Court of Azad Jammu and Kashmir in the case itled Gul Sanaubar vs. Nazir Ahmed" (PLD 1984 Sh. C. (AJK) 1) wherein it was belt' as under:- "--The relevant provision of law relating to bail is or., under sections 496, 497, 498 and 561-A, CnP.C. Sectu" ' Cr.P.C. covers bailable offences. Non-bailable cases a with under section 497, Cr.P.C. Section 497(1) provd to bail shall not be allowed in cases where sentence ipn of be awarded as death or life imprisonment Sub ser-tness j section 497, Cr.P.C. vests discretion to the Court \ ls not the question of grant of bail when in its opinio be present in the aforesaid wagon who is not reported to be injured; (vi) that the wagon carrying the polling bags and polling staff was escorted and followed by two vehicles of "Mujahideen" of Jamait-e-Islami, who, according to prosecution, were armed and they also made firing when the assailants attacked on the wagon through firing. The seat of the injury on the deceased is located near his left ear, whereas the firing was claimed to have been made by the accused from the right side; (vii) that none of the "Mujahideen" in two vehicles described above, was examined except the one Mr. Aafai who did not identify any of the assailants; (viii)that member of the polling staff travelling through the aforesaid wagon, namely Muhammad Safeer, Patwari, Muhammad Iqbal, teacher, Abdul Qayum, Naib Qasid and Sajjad, driver of the wagon, did not nominate any of the accused persons or identify any of the assailants; (ix) that the prosecution after having recorded the statements of Sajjad, driver, recorded his another statement under Section 161, Cr.P.C. on 25.11.1996 which contradicted the statement recorded earlier. The latter statement recorded nearly after 5 months of the occurrence, contains the names of Abdul Qayum, Mahmood Ahmed and Shakkoo who were identified as assailants while in the earlier statement he categorically denied to have identified any of the assailants. Number of respectables of the Kotli District, particularly the District senior Officers which include Dr. Muhammad Shabbir Kiani, M.S. DHQ Hospital, Muhammad Sadiq, DAG, Muhammad Azeem, Steno of the Deputy Commissioner, Kotli, filed their affidavits and got their statements recorded before the Investigating Agency to the effect that accused Muhammad Nawaz, Ayyaz Asghar, Muhammad Mushtaq, Shaukat Saleem and Abdul Qayum, were present at the relevant time of occurrence in the Control Room; (x) that no recovery was effected upon Muhammad Kabir, Mahmood Ahmed and Shafique, accused apprehended by the police including the one apprehended on the spot; (xi) that the only evidence of conspiracy available with the prosecution is the statements of Muhammad Dyas and Iqbal PWs whose statements under Section 161, Cr.P.C. were recorded on 15.7.1996 while the first informant disclosed about the conspiracy in the F.I.R. without having any information from the above two witnesses; (xii) that the only accused, Malik Shakkoo is alleged by the prosecution to have caused fire-arm injury to Muhammad Kazim, deceased and Muhammad Shafique and Mahmood Ahmed, accused are attributed to have inflicted the injuries to Sajjad, driver while none of the other accused persons is attributed any specific injury caused to other injured persons; (xiii)that it is a night-time occurrence took place on "election day" wherein the accused belonged to the party while the complainant party to other; (xiv)that some of the impartial witnesses do not support the prosecution version so far as their involvement towards the commission of offence is concerned; & (xv) that Ayyaz Asghar, accused is not nominated in the F.I.R. 12. Keeping in view the accumulative effect of the features arising out of the prosecution case which may include the time of occurrence, conflicting statements of the prosecution witnesses, the First Information Report being lodged on the next day, some of the impartial witnesses not supporting the prosecution in respect of involvement of the ccused persons, the affidavits filed before the Investigating Agency by some of the important District Officers, stating for the accused Muhammad Nawaz, Malik Mushtaq, haukat aleem, Abdul Qayum and Ayyaz Asghar to be present at the relevant time in the Control-room, the evidence with regard to conspiracy being recorded after a lapse of nearly ne month and 15 days of the occurrence, make the case of further inquiry for the accused Muhammad Nawaz, Ayyaz Asghar, Muhammad Mushtaq, Shaukat Saleem and Abdul Qayum. 13. The question whether the above accused are entitled to prearrest bail, it was claimed in their application moved for pre-arrest bail that they were innocent and were involved because of election enmity to prejudice their liberty and reputation. The question whether an accused person involved in a case attracting death penalty or transportation or life, is entitled to conc'ession of pre-arrest bail, came under consideration before the Shariat Court of Azad Jammu and Kashmir in the case titled "Gul Sanaubarvs. Nazir Ahmed" PLD 1984 Sh. C. (AJK) 1) wherein it was held as under:- "~The relevant provision of law relating to bail is covered under sections 496, 497, 498 and 561-A, Cr.P.C. Section 496, Cr.P.C. covers bailable offences. Non-bailable cases are dealt with under section 497, Cr.P.C. Section 497(1) provides that bail shall not be allowed in cases where sentence is likely to be awarded as death or life imprisonment. Sub section (2) of section 497, Cr.P.C. vests discretion to the Court to consider the question of grant of bail when in its opinion, the case nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look it the materials placed before it by the Investigating Agency and be prima facie satisfied that some tangible evidence can be offered which, it left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists." 9. In a latter case titled "Manzoor & 4 others v. The State" (PLD 1972 S.C. 81), Mr. Justice Sajjad Ahmed Jan, J., (as he then was), observed that the power conferred by ection 497, Cr.P.C. is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material would consist of ccusation made in the report made to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances urrounding the occurrence. The other relevant circumstances would include the evidence produced by the accused and bail has to be allowed or rejected on the basis of this aterial. 10. The question with regard to assessment of evidence also came under consideration before the Supreme Court of Pakistan in a case titled "Khalid Javed Gillan vs. The tate" (PLD 1978 S.C. 256), wherein the following observations were made:- "--It follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts must refrain directly or indirectly, from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shrike its obligation to decide the application for bail before it, and that application can only be decided by Courts" belief about the material produced before it." A similar proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in a case titled "Zahid Paris vs. The State" (1995 SCR (AJK) 104) wherein it was held as under:- "-At the bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of the evidence on record. At the same time Courts are not expected to make an order in vacuum. The Courts of law are supposed to make a tentative assessment of the F.I.R., statements of P.Ws. recorded under S. 161, Cr.P.C., the recovery evidence, the defence plea if any, and other circumstances and facts of the case and to reach a conclusion whether in the given circumstances the accused are entitled to the concession of bail or ot. 11. Relying upon the authorities discussed above, it is concluded hat in matter of bail, the Court has to make tentative assessment of evidence brought by the rosecution as incriminating material or by the accused in defence and the other surrounding circumstances as well and does not in terms contain any restriction on Court's ower to assess the evidentiary value of the material placed before it. However, the Court has to refrain, directly or indirectly, from giving any conclusive finding on the uestion of guilt or innocence of the accused. 12. Turning to the instant case, the following important features arising out of the prosecution case, are noticed:- (i) That according to the statement of the District Magistrate, Kotli found in the police diaries, the information with regard to the occurrence reached him at 11.30 p.m. on 30.6.1996. The information also disclosed the death of Prof. Muhammad Kazim, Presiding Officer, in the occurrence and it did not disclose any more; (ii) that it is pointed out by the Investigating Agency that the Wagon carrying the polling bags and staff was followed by the Duty Magistrate and a senior Police official, Incharge of the area, in a vehicle which also reached there soon after the occurrence; (iii) that no report at the spot or at Kotli, after the occurrence, was made when the place of occurrence is situated at 15-20 minutes' journey away from the Police Station; (iv) that the injured persons are reported to have reached in the Hospital within a short time; (v) that the F.I.R. was lodged next day at 7.30 A.M. at police Station Kotli on July 1, 1996, by the complainant claiming nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look it the materials placed before it by the Investigating Agency and beprima facie satisfied that some tangible evidence can be offered which, it left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists." 9. In a latter case titled "Manzoor & 4 others v. The State" (PLD 1972 S.C. 81), Mr. Justice Sajjad Ahmed Jan, J., (as he then was), observed that the power conferred by Section 497, Cr.P.C. is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material would consist f accusation made in the report made to the police, nature and credential of evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The other relevant circumstances would include the evidence produced by the accused and bail has to be allowed or rejected on the basis of this aterial. 10. The question with regard to assessment of evidence also came under consideration before the Supreme Court of Pakistan in a case titled "Khalid Javed Gillan vs. The tate" (PLD 1978 S.C. 256), wherein the following observations were made:- "--It follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts, and especially the superior Courts must refrain directly or indirectly, from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shrike its obligation to decide the application for bail before it, and that application can only be decided by Courts" belief about the material produced before it." A similar proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in a case titled "Zahid Paris vs. The State" (1995 SCR (AJK) 104) wherein it was held as under:- "~At the bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of the evidence on record. At the same time Courts are not expected to make an order in vacuum. The Courts-of law are supposed to make a tentative assessment of the F.I.R., statements of P.Ws. recorded under S. 161, Cr.P.C., the recovery evidence, the defence plea if any, and other circumstances and facts of the case and to reach a conclusion whether in the given circumstances the accused are entitled to the concession of bail or not." 11. Relying upon the authorities discussed above, it is concluded hat in matter of bail, the Court has to make tentative assessment of evidence brought by the prosecution as incriminating material or by the accused in defence and the other surrounding circumstances as well and does not in terms contain any restriction on Court's power to assess the videntiary value of the material placed before it. However, the Court has to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of he accused. 12. Turning to the instant case, the following important features arising out of the prosecution case, are noticed:- (i) That according to the statement of the District Magistrate, Kotli found in the police diaries, the information with regard to the occurrence reached him at 11.30 p.m. on 30.6.1996. The information also disclosed the death of Prof. Muhammad Kazim, Presiding Officer, in the occurrence and it did not disclose any more; (ii) that it is pointed out by the Investigating Agency that the Wagon carrying the polling bags and staff was followed by the Duty Magistrate and a senior Police official, Incharge of the area, in a vehicle which also reached there soon after the occurrence; (iii) that no report at the spot or at Kotli, after the occurrence, was made when the place of occurrence is situated at 15-20 minutes' journey away from the Police Station; (iv) that the injured persons are reported to have reached in the Hospital within a short time; (v) that the F.I.R. was lodged next day at 7.30 AM. at police Station Kotli on July 1, 1996, by the complainant claiming detailed merits of the case are not gone into at bail stage, particularly the bail before arrest; (ix) that there is a strong evidence of conspiracy against Muhammad Nawaz, Muhammad Mushtaq, accused, in presence of which they are not entitled to pre-arrest bail; (x) that the points raised by the learned Counsel for the accused for the grant of bail, particularly with regard to the first informant, nature of injury caused to the deceased, defence plea of being not present at the time of occurrence and thus furnishing affidavits in support of their plea of alibi, certainly touch upon the detailed merits of the case which cannot be decided without going deep into the merits. Such points are not required to be touched as this Court has to make a tentative assessment of the incriminating material collected by the prosecution; (xi) that keeping in view the heinous offence committed by the accused, none of them is entitled to concession of bail, whether after arrest or pre-arrest. The learned Counsel for the complainant referred to the following authorities in support of their contentions: - (i) PLJ 1984 S.C. 56 (ii) PLD 1983 S.C. 82 (iii) PLJ 1989 Cr.C. 541 (iv) N.L.R. 1980 SCJ 130 (v) 1981 S.C.M.R. 1092 (b) (vi) 1978 S.C.M.R. 236 (a) (vii) 1994 S.C.R. (AJK) 12 (b) (viii) 1994 S.C.R. (AJK) 272 (ix) 1994 S.C.R. (AJK) 136 (x) 1994 SCR (AJK) 59 (xi) 1985 P.Cr.L.J. 1546 (xii) 1987 P.Cr.L.J. 27(c) (xiii) PLJ 1983 S.C. 7 (xiv) NLR 1991 Cr. 745 (xv) 1989 P.Cr.L.J. 2140 (xvi) 1988 P.Cr.L.J. 1370 <xvii) 1985 P.Cr.L.J. 538 (xviii)1991 P.Cr.L.J. 732 (xix) 1983 S.C.M.R. 15 (xx) 1988 S.C.M.R. 5 6. The learned Additional Advocate General has supported the arguments advanced by the learned Counsel for the complainant though the Sate has not filed any appeal or revision against the impugned order. 7. I have heard the learned Counsel for the parties and also gone through the record including the police diaries as well as the case-law cited by the learned Counsel for the parties. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilt of an offence unishable with death or mprisonment for life, e shall not be released on bail unless the case is covered by any of the provisos maintained under Sub-section (1) of Section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has ommitted a non-bailiff offence but that there are sufficient grounds for further inquiry into .his guilt, the accused shall be released on bail under Sub-section (2) of Section 497, r.P.C. It may also be stated that the matter of pre-arrest bail has to be dealt with in accordance with the conditions laid down by the superior Courts from time to time in addition to the conditions laid down under Section 497, Cr.P.C. The most essential of them are that the intended arrest would be tainted with malafide J± and it must be established that the accused-petitioner apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice as to cause irreparable injury to his reputation and liberty and police is motivated on political consideration or other ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the fact of diverting the normal course of law, has to be exercised with caution. 8. The first question to be considered is whether the Court can assess the incriminating material and evidence brought by the accused or there are restrictions on Court's power to assess the evidentiary value of the material placed before it. The leading case on the subject is that of Kkalid Saigol v. The State (PLD 1962 S.C. 49) wherein the Court consisting of Mr. Justice A.R. Cornelious, C.J., Mr. Justice B.Z. Kaikaus, J. and Mr. Justice Hamoodur Rehman, J. pronounced the judgment as follows:- "--It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court, and as such, the Court is not called upon at that stage ta conduct anything in the detailed merits of the case are not gone into at bail stage, particularly the bail before arrest; (ix) that there is a strong evidence of conspiracy against Muhammad Nawaz, Muhammad Mushtaq, accused, in presence of which they are not entitled to pre-arrest bail; (x) that the points raised by the learned Counsel for the accused for the grant of bail, particularly with regard to the first informant, nature of injury caused to the deceased, defence plea of being not present at the time of occurrence and thus furnishing affidavits in support of their plea of alibi, certainly touch upon the detailed merits of the case which cannot be decided without going deep into the merits. Such points are not required to be touched as this Court has to make a tentative assessment of the incriminating material collected by the prosecution; (xi) that keeping in view the heinous offence committed by the accused, none of them is entitled to concession of bail, whether after arrest or pre-arrest. The learned Counsel for the complainant referred to the following authorities in support of their contentions:- (i) PLJ1984 S.C. 56 (ii) PLD 1983 S.C. 82 (iii) PLJ 1989 Cr.C. 541 (iv) N.L.R. 1980 SCJ 130 (v) 1981 S.C.M.R. 1092 (b) (vi) 1978 S.C.M.R. 236 (a) (vii) 1994 S.C.R. (AJK) 12 (b) (viii) 1994 S.C.R. (AJK) 272 (ix) 1994 S.C.R. (AJK) 136 (x) 1994 SCR (AJK) 59 (xi) 1985 P.Cr.L.J. 1546 (xii) 1987 P.Cr.L.J. 27(c) (xiii) PLJ 1983 S.C. 7 (xiv) NLR 1991 Cr. 745 (xv) 1989 P.Cr.L.J. 2140 (xvi) 1988 P.Cr.KJ. 1370 (xvii) 1985 P.Cr.L.J. 538 (xviii)1991 P.Cr.L.J. 735? (u? 1983 S.C.M.R. 15 (xx) 1988 S.C.M.R. 541. 6. The learned Additional Advocate General has supported the arguments advanced by the learned Counsel for the complainant though the Sate has not filed any appeal or evision against the impugned order. 7. I have heard the learned Counsel for the parties and also gone through the record including the police diaries as well as the case-law cited by the learned Counsel for the parties. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilt of an offence unishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos maintained under Sub-section (1) of Section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailiff offence but that there are sufficient grounds for further inquiry into .his guilt, the accused shall be released on bail under Sub-section (2) of Section 497, r.P.C. It may also be stated that the matter of pre-arrest bail has to be dealt with in accordance with the conditions laid down by the superior Courts from time to time in addition to the conditions laid down under Section 497, Cr.P.C. The most essential of them are that the intended arrest would be tainted with malafide ^ and it must be established that the accused-petitioner apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice as to cause irreparable injury ohis reputation and liberty and police is motivated on political consideration or other ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the fact of diverting the normal course of law, has to be exercised with caution. 8. The first question to be considered is whether the Court can assess the incriminating material and evidence brought by the accused or. there are restrictions-on Court's power to assess the evidentiary value of the material placed before it. The leading case on the subject is that of Khalid Saigol v. The State (PLD 1962 S.C. 49) wherein the Court onsisting of Mr. Justice A.R. Cornelious, C.J., Mr. Justice B.Z. Kaikaus, J. and Mr. Justice Hamoodur Rehman, J. pronounced the judgment as follows:- "--It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court, and as such, the Court is not called upon at that stage ta conduct anytime i n the (xii) that there are serious doubts, contradictions in the case which falsified the prosecution story. The accused have been involved in the case due to election enmity by the rival candidate, Mahmoodul Hassan Chaudhary, a candidate of Jamait-e-Islami. The accused are innocent and have been falsely involved to prejudice their liberty and reputation due to ulterior motive which is designed in the intended arrest of some of the accused to keep them in jail for he purpose; (xiii)that no recovery was made at the instance of the accused arrested by the police including the one claimed to have been apprehended on the spot which also casts a serious doubt on the prosecution case; (xiv)that the accused are entitled to tneTjenefit of doubt even at bail stage. The learned Counsel for the accused referred to the following authorities in support of their assertions:- (i) 1994 S.C.R. (AJK) 136. (ii) 1995 SCR (AJK) 104. (iii) PLD 1985 S.C. (AJK) 48. (iv) 1981 S.C.M.R. 935. (v) PLD 1987 Sh. C. (AJK) 63. (vi) PLD 1987 Sh. C. (AJK) 66. (vii) PLD 1987 Sh. C. (AJK) 10. (viii) 1993 S.C.R. (AJK) 300. 5. On the other hand, Mr. Muhammad Sharif Tariq, Ch. Muhammad Azam Khan and Mr. Riaz Navid Butt, the learned Counsel representing the complainant, raised the following points in support of their petition:- (i) That there is a strong prima facie case existing against the accused. The accused are nominated in the F.I.R. promptly lodged by the complainant. The prosecution version is supported by the prosecution witnesses particularly the natural witnesses present there in the wagon which include the complainant, witness Muhammad Mushtaq and the other witnesses. The prosecution version is corroborated by the medical evidence and the other incriminating material; (ii) that the accused are not entitled to the concession of anticipatory bail which not only hampers the normal procedure of investigation, but also are not entitled to the same as there is a prima facie case against them which is case was not decided in a judicial fashion. It may be mentioned that in case of non-bailable offences, the Court should be slow in granting bail before arrest in absence of the reasons mentioned above. The tendency of leniency and latitude in bail has, in fact, aided in increase in the crimes." A similar proposition also came under consideration before this Court in another case titled 'Fazal Dad Vs. The State' (PLD 1987 Sh. C. (AJK) 10), wherein it was resolved in the following manner: - "-No hard and fast rule or principle can be framed as a guideline to apply squarely in bail matters, as each case is to be decided in the light of its own facts. evertheless, the question of bail pre-arrest is to be considered slightly on different footing by having recourse to the grounds of malafide, concoction, self-defence, if any, accompanied by compassionate grounds. It is unnecessary that all the grounds listed above must primarily exist in each case for bail pre-arrest. If all or any one of those grounds is available, alongwith the state of facts of case under consideration helping the defence in grant of concession of bail prearrest, Court should not hesitate to grant the concession of bail prearrest " 7. On the basis of authorities discussed above, it may be held that the cases of bail pre-arrest are dealt with in a different manner than those of bail after arrest. In order to justify the grant of anticipatory bail, the petitioner must show that he apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice so as to ause irreparable injury to his reputation and liberty or the police was motivated on political consideration or for the ulterior reasons. The extraordinary jurisdiction of anticipatory bail which has the effect of diverting the normal course of law, should be exercised with caution. 8. While considering a bail matter, to form an opinion, the Court has to look into F.I.R., the statements of the prosecution witnesses recorded under Section 161, Cr.P.C. and the other incriminating material collected by the prosecution, including any plea of the accused. In the instant case, there is no allegation of causing any injury to the deceased or any of the prosecution witnesses, attributed to the accused-respondents by the prosecution. There are specific allegations attributed to the other accused for giving fire-arms injuries to the deceased and the injured witnesses. Though the accused were named in the F.I.R. and shown armed, but was not disclosed by any of the prosecution itnesses, including the complainant, that which of the arms was with them. No recovery was made at their instance. The occurrence is of night time. The accused were claimed to have been identified through torch light. The trial Court extended the concession of bail to the accused-respondents mainly on the ground that they were shown standing nearly about 272 feet away. Therefore, according to it, the identification through torch light requires further probe. 9. In view of the facts listed above, the case of accused-respondents require further probe for the reasons that there was a previous enmity existing between the parties. The other accused not before the Court had been specifically nominated in the F.I.R., to have caused injuries to the deceased and the other injured witnesses, while none of the accusedrespondents was claimed to have given any injury to the deceased or the prosecution witnesses. The allegation of aimless firing was attributed to the accused-respondents. No recovery of any sort was made at their instance. The occurrence, according to prosecution, took place at night time and the accused-respondents were claimed to have been identified hrough torch h'ght which, in the circumstances of the case,prima facie, appears to the little difficult Reliance may be placed on the case titled 'Muhammad Yunus Vs. Malik Muhammad Nawaz & others', decided by the Supreme Court of Azad Jammu and Kashmir, on March 28, 1997, wherein the facts closer to the case in hand, were involved and the pre-arrest bail allowed by the District Criminal Court and affirmed by this Court, was upheld by the Supreme Court of Azad Jammu and Kashmir. Reliance in this regard may also be placed on 1978 P.Cr.L.J. 795 (Zabiullah Vs. State), wherein relying upon the case titled 'Muhammad Akbar Vs. The State (1918 S.C.M.R. 7) the following observations were rnade:- "S. 497~Bail~Petitioners attributed part of only firing in air and brandishing hatchets in air-None of petitioners alleged to have attempted to cause injury to deceased or to any person accompanying deceased~F.I.R. also showing existence of enmity between parties-Prosecution yet to establish case against petitioners for their vicarious liability for alleged offence-Petitioners allowed bail, in circumstances." 10. In view of the above state of facts, and law, the order passed by the District Criminal Court Kotli, granting pre-arrest bail to the accusedrespondents No. 1 and 2, does not warrant any interference which has been passed after due consideration of law, as such the revision petition merits no consideration which is hereby dismissed. Before parting with the judgment, it would be necessary to state that the case-law cited by the learned Counsel for the petitioner (1) PLD 1985 Lahore 616, (2) 1996 P.Cr.L.J. 1202, (3) 1985 Petition dismissed.
PLJ 1997 Shariat Court (AJ&K) 49 PLJ 1997 Shariat Court (AJ&K) 49 Present: chaudhry muhammad taj, J. (i) AFAQ ANJUM and 2 others-Petitioners versus STATE-Respondent Criminal Revision No. 34 and Crl. Misc. No. 13 of 1997, decided on 9.4.1997. (!) Ball-Statutory- 8. 497 Cr,P.C. Islamic Penal Laws Act, Ss. 5/15 read with Ss. 460/307, 34, APC, 13/20/65 Arms Act, and Section 17 (3) of Offences Against Property (Enforcement of Hadood) ct-Bail on statutory grounds- Computation of period- While computing period of arrest or detention, it was not date of presentation of challan but date when accused-petitioners were arrested, which is to be taken into consideration. [P. 52] A 1983SCMR427re/. (ii) Bail-Statutory 497 Cr.P.C.-Bail on statutory ground-If in any case, due to an act or omission of accused or any person acting on his behalf, delay is caused, that shall not be counted towards delay aused by prosecution and would disentitle him to avail concession of bail-Accused-petitioners on 17.9.1995, 17.10.1995, 9.7.1996, 16.7.1996 and 9.9.1996 sought adjourn ments ither due to their own or through their counsel, after excluding period of delay occasioned by accused, period of detention of accused petitioners cannot be calculated as two years, herefore, are not entitled to concession of bail Petitions dismissed. [Pp. 54 & 56] B & C SCMR 1984 to 13, PLD 1982 SC 424 1986 P.CrJLJ. 1246, ref . Ch, Muhammad Azam Khan, Mr. Riaz Alam and Syed Mazhar Kaleem Shah, Advocates for Petitioners. Ch. Muhammad Sharif Tariq, Advocate for Complainant Ch. Muhammad Mushtaq, Addl: Advocate General for State. Date of hearing: 9.4.1997. ORDER The above titled two petitions arise out of the same matter, as such, are disposed of by this common order. 2. The above petitions have been filed against the order passed by the District Criminal Court, Mirpur, passed on March 17,1997, whereby bail was declined to the accused- etitioners. 3. The facts briefly stated are that a case under Sections 5/15, Islamic Penal Laws Act read With Sections 460/307, 34, APC, 13/20/65, Arms Act and 17 (3), Offences Against Property (Enforcement of Hadood) Act, was registered against the accused-petitioners and other accused, at Police Station Mirpur, on February 2. 1995, for which a hallan was forwarded to the District Criminal Court, Mirpur which is pending there. The accused-petitioners, after an amendment in Section 497, Cr.P.C. through aa Amendment rdinance of 1996, made by the President of Azad Jammu and Kashmir, moved the trial Court for the grant of their bail which was disallowed. Hence these petitions. 4. Ch. Muhammad Azam Khan, Mr, Riaz Alam and Syed Mazhar Kaleem Shah, the learned Counsel for the petitioners, raised the following points in support of their etitions:- (i) That the accused-petitioners, in view of the amendment incorporated in Section 497, Cr.P.C. were entitled to be released on bail. The trial Court without applying its mind, rejected their plea of bail, without advancing any reason; (ii) That the subordinate Court computed the detention of the accused-petitioners from the date the challan was submitted in the trial Court and failed to consider the same from the date of detention or arrest of the accusedpetitioners, as such, the order is illegal; (iii) That the Court below while computing the period of detention, wrongly excluded the period for which the accused-petitioners cannot be held responsible. It was explained that the trial Court excluded the period for » State Subject of Azad Jammu and Kashmir, or a State Subject residing in Pakistan. The analysis of the provisions shows that it is discretionary with the Court which has to be exercised keeping in view the cautions and checks provided therein, in the light of the judicial principles. Therefore, the claim of the accused-petitioners to be released on bail as a matter of right, contending the word used as "may" to be read as "shall", is without any substance. 10. It was contended by the learned Counsel for the petitioners that he delay even if occasioned in conclusion of the trial on certain dates, either due to occupation of the Counsel in some other Court or the reasons not relatable to the accused, cannot be attributed to them. The learned Counsel, particularly the Counsel representing Afaaq Anjam, accused argued that the adjournment made on 17.10.1995 was due to the Counsel being occupied in ome other Court Similarly, the other adjournments made by the Court, referred to by the learned Counsel for the complainant and the State, also cannot be attributed to the accused for any delay. 11. It may be stated that the Legislature has burdened the prosecution for completing the trial for the offences punishable with death or those not carrying death penalty, referred to above, within two years and one year respectively and failing to complete the same within the said period, the Court was empowered to release the accused on bail provided the accused himself was not responsible for delay in conclusion of the trial. Therefore, it follows that if in any case, due to an act or omission of the accused or any person acting on his behalf, the delay is caused, that shall not be counted towards the delay caused by the prosecution and would dis-entitle the accused to avail the concession of bail under the relevant provisions of law. The case-law referred to by the learned Counsel for the accused-petitioners, 1990 P.Cr.L.J. 2051, 1991 P.Cr.L.J. 534 and 1995 P.Cr.L.J. 693, with its distinct facts, is not applicable to the case in hand, as such no reliance can be placed on it. It would be relevant to mention that in 1990 P.Cr.L. J. 2051, the bail was allowed on the ground that the charge was not framed in the relevant case and the period of 2 years was completed. The learned Additional Advocate General appearing for the opposite side, also did not oppose it The other case, 1991 P.Cr.L. J. 534, is also of no avail to the accused-petitioners as in that case, after excluding the period for which the adjournment was sought, the statutory period was completed. Therefore, the question of adjournment sought on the basis of illness of the Counsel or otherwise due to occupation of the Counsel n other Court, was of a little significance. The authority reported as 1995 P.Cr.L.J. 693 is also not relevant as the same deals with the grant of bail, as it appears, of manner delayed by an act or omission on part of accused- Adjournments sought by defence for one reason or other at least on eight occasions and delay partly attributable to accused-Order sheet of trial Court showing most of witnesses having been present oh dates of hearing and their examination postponed owing to request made by defence counsel-High Court, held, right in exercising its discretion against petitioner in matter of grant of bail in circumstances." 14. A similar proposition came under consideration before the Karachi jurisdiction, in 1986 P.Cr.L.J. 1246 (Muhammad Yusuf v». The State) wherein the following observation was made:- "-As regards the third contention, it will be observed that the third proviso to section 497, Cr.P.C. is extendable to an accused person who has been detained for a continuous period exceeding two years and his trial has not been concluded, provided the delay in the trial has not occasioned due to an act or omission on the part of the accused or any other person acting on his behalf." 15. In the instant case, the accused were arrested on February 20, 1995. The order refusing bail to the accused-petitioners was recorded on March 17,1997. The Ordinance lapsed after living its life on March 18,1997. The accused-petitioners, on 17.9.1995, 17.10.1995, 9.7.1996, 16.7.1996 and 9.9.1996 sought adjournments either due to their own or through their Counsel. The last three adjournments related to Allah Ditta and Zulfiqar accused. After excluding the period of delay occasioned by the accused, the period of detention of the accused-petitioners on the day of announcement of the order or on the day the Ordinance was lapsed, cannot be calculated as two years. Therefore, it can safely be held that the accused-petitioners are not entitled to the concession of bail under the proviso, without adverting to the other merits involving the latter part of the proviso dealing with the convict or hardened and dangerous criminals etc., as no arguments were addressed in this behalf by the respective parties. The order passed by the trial Court, therefore, warrants no interference by this Court Consequently, the petitions, in the circumstances, are found to have no substance which are hereby dismissed. (MYFK) Petitions dismissed
PLJ 1997 Shariat Court (AJK) 57 PLJ 1997 Shariat Court (AJK) 57 Present: KHAWAJA MUHAMMAD SAEED, C.J. ARSHID MAHMOOD-Petitioner versus ASHTIAQUE AHMAD and 3 others-Respondents Crl. Rev. No. 89 of 96, dismissed on 11.12.1996. AJK Islami (Tazeerati) Laws Enforcement Act, 1974- -Offence of Zina (Enforcement of Hadood) Act read with sections 347/34 Penal Code-Contention that Additional Tehsil Criminal Court has seized to exist due to termination of service of one Member of Court (Two members courts were constituted at Tehsil and District level under the Act, 1974)-There is no dispute that courts in AJ&K at Tehsil and District level consisting of two members for adjudication of certain offences, were established under AJ&K Islami (Tazeerati) Law Enforcement Act, 1974-Initially due to absence of one Member, working of courts were affected adversely-Later on, an amendment was carried out in law whereby a single Member was allowed to perform certain functions even in absence of the other Member of Courts-Later on, vide Act XXI of 1993 even Single Member of Court was made competent to record evidence of witness-Held: Learned Magistrate has rightly held that he had competence to decide cause. [Pp. 57, 58, 59] A, B, C & D Mr. Muhammad Yunus Arvi, Advocate for Petitioner. Ch. Riaz Alam, Advocate for Accused-Respondent Nos. 1 & 3; Ch. Muhammad Mushtaque, Addl. Advocate General for State. Date of hearing: 11.12.1996. order The facts culminating into the present revision petition briefly stated are that on September 14, 1996, an application was moved before the Additional Tehsil Criminal Court Mirpur, on behalf of the accusedrespondents for their release on bail in a case registered against them under Section 10 of the Offence of Zina (Enforcement of Hadood) Act read with Sections 347/34 P.C. Prior to the filing of the above application, on August 20, 1996, the service of the Additional Tehsil Qazi who was serving on Ad hoc basis, was terminated by the Government. An objection was taken on behalf of the complainant that the Additional Tehsil Criminal Court has seized to exist due to the termination of the service of one Member of the Court. The objection was turned down by the trial Court vide order under revision. an accused person who was with the police for a period of two years and the Court did not hold the accused responsible for inordinate delay. The authority, 1996 P.Cr.L.J. 298 is not relevant to the proposition debated in the case. 12. It may also be stated that the legislature has codified the kw which earlier prevailed with regard to the grant of bail oh the ground of delay in cases specified in the foresaid Proviso of Section, 497, Cf.P.C. The adjournment sought on the grounds, such as illness of Counsel or his occupation in the superior Courts, in normal course of kw, is not eld to be an inordinate delay but is not helpful to the accused-petitioner under the aforesaid enactment as the accused has been held dis-entitled to the concession of bail if any delay due to his act or omission or any person acting on Ms behalf is occasioned in completing the trial within two years or one year in cases of death penalty or other on-bailable offences not carrying the death penally respectively, as the case may be, by the prosecution. Reliance in this regard may also be placed on 1984 S.C.M.R. 613 (Should Vs. State) wherein it was held in para 6 at page 615, as under : - "6. The case of two other appellants viz. Shafi Muhammad, however, stands on a different footing. We find no force in the contention that merely because the Court granted the adjournment on an application submitted by the accused, the blame cannot be attributed to such an accused for whose benefit the adjournment was granted. The fact that counsel representing the accused is busy with other professions! work and is unable to attend the trial of the accused will not ipso facto be construed a justification for delaying the trial. The accused has no doubt right to be represented by the counsel of his choice but if he has chosen a counsel who is frequently busy with other work, he cannot be heard to say that the delay was not occasioned on account of his acts or omissions of other persons acting on behalf of the accused. It is for the counsel of the accused to arrange bis cases in such a manner so as to save his client from consequences provided by law in the delay of the trial." 13. In another case titled 'Akhtar Abbas vs. The State' (PLD 1982 S.C. 424), the Supreme Court of Pakistan, while dealing with the relevant proposition, observed as follows "-S. 497--Bai!--Delay due to seeking adjournments- Intention of law--Not calculation of amount of delay caused by defence-Court to see whether finalization of trial in any Mr. Muhammad Yunus Arvi, learned Counsel for the petitioner argued that two Member's Courts were constituted at Tehsil and District level under the Azad Jammu and Kashmir Islami (Tehzeerati) Laws Enforcement Act, 1974. According to this law, the Additional Criminal Court; constituted at Tehsil level shall consists of a Magistrate and Tehsil Qazi. According to the learned Counsel, the powers of the Court can be exercised by the Additional Tehsil Criminal Court as a whole. Presently the office of the Additional Tehsil Qazi is vacant. It is, therefore, not a case in which any Member of the Court is absent due to leave or any other cause. The provision which was enacted later on, whereby a single Member was made competent in absence of other Member of the Court, to perform certain functions, was not attracted in this case, argued the learned Counsel. On the other hand, Choudhary Riaz Alam, learned Counsel for the accused-respondents has argued that the Additional Tehsil Criminal Court was established at Mirpur, as early as in 1974. According to he learned Counsel, the mere absence of any Member even due to his retirement, shall not be deemed that the Court constituted under the Act stood abolished. All those functions which through a ubsequent amendment Single Member was competent, can be performed by the Single Member available in the ; Court. I have considered the respective arguments of the learned Counsel for the parties and have also gone through the entire record of the case. There is no dispute that Courts in Azad Jammu and Kashmir a Tehsil and District level consisting of two Members for the adjudication of certain offences, were established under the Azad Jammu and Kashmir Islami (Tazeerati) Laws Enforcement Act, 1974. Initially due to the absence of one Member, the working of the Courts were affected adversely. Later on, an amendment was carried out in the law whereby a Single Member was allowed to perform certain functions even in absence of the other Member of the Courts. This amendment being relevant is reproduced here for the convenience of reference : -- Later on, vide Act-XXI of 1993 even Single Member of the Court was made competent to record evidence of the witnesses. Under this provision of law, a Single Member present on the seat of the Court is competent to dispose of the bail applications, as was done in the present case by the Single Member of the Additional Tehsil Criminal Court Mirpur. If the other Member has retired or due to some other reasons, is not present, that does not mean that due to his absence from the seat on any ground, the Court stood abolished. On account of this mis-conception, this revision petition has been filed before this Court. The learned Magistrate, as a Single Member of the Court, can effectively and competently adjudicate all those matters which under the above referred provision of law, he has been made competent. As said earlier, in the present case the matter before the Court was in respect of the bail of the accused-respondents. The learned Magistrate has rightly held that he had the competence to decide the cause. The revision petition, therefore, is without merits which stands dismissed. (AAJS) Revision petition dismissed.
PLJ 1997 Shariat Court (AJK) 62 PLJ 1997 Shariat Court (AJK) 62 Present: CHAUDHARY MUHAMMAD TAJ, J. MUHAMMAD MAQSOOD-Petitioner versus KABIR AHMED and others-Respondents. Criminal Revision No. 39 of 1996, decided on 3.4.97. (i) . Bail--Pre-arrest-- S. 498 Cr.P.C.-Bail»Pre-arrest~Grant of--Challenge to-Offence U/s 302, 448,147, 148,149, 109, 337-B, APC-Previous enmity between the parties existed-No overt act ttributed o accused-General allegation of ineffective firing-No recovery effected-Night time occurrence- Identification in touch lightly highly improbable-Trial courts order granting pre- rrest 'bail does not warrant interference in present circumstances. [P. 67] A 1978 PCr.LJ 795, 1978 SCMR 7, 1987 PCr.LJ 176, 1996 PCr.LJ 1202, PLD 1987 SC (AJK) 27, 1985 PCr.LJ 1546, 216 PLD 1985 Lah. 616, 1985 PCr.LJ 1313 ref. (ii) Bail-Pre-arrest -S. 498 Cr.P.C.vPre-arrest bail-Grant of-Pricniple-Extra ordinary jurisdiction of anticipatory bail which has effect of diverting normal course of law, should be exercised with caution-.-Grounds to justify grant of anticipatory Bail are: (i) Intended arrest is on account of ulterior motive; (ii) Prosecution motivated by malice to cause irreparable injury to reputation and liberty, or (iii) Police motivated on political consideration or for ulterior reasons. [P. 66] B PLD 1984 Sh. C. (AJK) 1 and PLD 1987 Sh. C (AJK) 10 ref. (iii) Bail--Pe-arrest Pre-arrest bail-Court while forming a opinion has to look into FIR, statement recorded u/s, 161 CrPC, any other in criminating material collected by prosecution, and plea of accused, if any. [P- 66] C Mr. Riaz NaveedButt, Advocate for the Petitioner. Mr. M. Nisar Mirza, Addl. Advocate General for the Accused- Respondents. Ch. Muhammad Mushtaq, Addl. Advocate General for the State. Date of hearing: 3.4.97. order This revision petition has been filed to call in question the order passed by the District Criminal Court, Kotii, on December, 04, 1996, whereby the accused-respondents were allowed pre-arrest bail. 2. The facts forming the background of this revision petition are that a case under Sections 302, 448, 147, 148, 149, 109, 337-B, APC was registered on the report of Maqsood Ahmed, complainant, on September 16, 1996, at Police Station Khuiratta, Tehsil Kotii. It was stated in the First Information Report that the complainant was resident of Dhamal, Tehsil Kotii. The accused, Muhammad Ayub and others were also residents of the same place. Over a piece of Shamilat land adjacent to this house, where Muhammad Tufail and Liaqat constructed their houses, a litigation between him and Muhammad Ayub & others, accused was going on for which reason the accused nursed a grudge against him and his family members. The accused also wanted to construct a house after taking forcible possessions of the said land. The accused, after having filed a civil suit, got issued a notice against his brother Muhammad Tufail for which the date was fixed as September 24, 1996. The accused after preparing a plan to construct a house, at 12 O'Clock at night, armed with deadly weapons, started firing to kill him and the inmates of his house. Muhammad Ayub accused was armed with rifle who fired at his sister Mst. Nusrat Begum, hitting her neck who died on the spot. Muhammad Khalil, with intention to kill, injured the left arm of Muhammad Tufail with the fire of his rifle. The other accused had been firing with their arms. The complainant and his mother Mst. Kushash Begum and sister-in-law, Mst. Razia Begum identified the accused through torch light. The accused committed the offence with the connivance of Muhammad Khan, Muhammad Aziz, sons of Bagh, Muhammad Rauf s/o Niaz Khan, Jamroze son of Haider Ali, Qudratullah s/o Khan Bahadur, Zulfiqar, Ex-AEO and Rehmatullah accused. The accused, after investigation were forwarded to face their trial before the trial Court, through the challan submitted in this regard. The accused-respondents were allowed anticipatory bail. The said order is the subject of challenge through this revision petition. 3. Mr. Raiz Navid Butt, the learned Counsel for the petitioner, raised the following points in support of the petition:- (i)' That accused-respondents No. 1 and 2 were nominated in the F.I.R. promptly lodged by the complainant. The specific role was also attributed to the said accused persons. The complainant's version Was corroborated by the prosecution witnesses. (ii) That a strong prima facie case on the basis of allegations levelled by the complainant, supported by prosecution witnesses in their statements alongwith other incriminating material collected by the prosecution, was disclosed against the above accused-respondents, for which a challan has also been submitted in the trial Court; (iii) that the District Criminal Court, ignoring the settled principles of bail established by the superior Courts, allowed the concession of anticipatory bail to the accusedrespondents. The impugned order, therefore, suffered from an illegality; & (iv) that the participation of the accused-respondents, in view of the evidence proposed, by the prosecution, is above any doubt, as such there was no case for the grant of pre-arrest bail to the accused-respondents. The learned Counsel referred to 1987 P.Cr.L.J. 176, 1996 P.Cr.L.J. 1202, PLD 1987 S.C. AJK 27, 1985 P.Cr.L.J. 1546, 216, in support of his assertions. 4. On the other hand, Mr. M. Nisar Mirza v the learned Counsel appearing for the accused-respondents, controverted the arguments advanced by the learned Counsel for the petitioner, in the following manner:- (i) That there is no prima facie case disclosed against the accused-respondents, by the prosecution; (ii) that accused-respondents No. 3 to 6 have been released under Section 169, Cr.P.C. and are no more accused in the case challaned before the trial Court; (in) that the case to the extent of accused-respondents No. 1 and 2, is of further inquiry as their participation in the occurrence, is doubtful. It was explained that there was no allegation of firing at the deceased or any of the prosecution-witnesses. A vague allegation of aimless firing was attributed to the accused-respondents. No recovery of any sort was made at their instance. No empty was recovered from the spot wherefrom the accused were alleged to have been firing; & (iv) that the trial Court, keeping in view the facts and circumstances of the case, proceeded to allow the concession of bail. The order passed by the trial Court has to be given weight, as such it warrants no interference "by this Court. The learned Counsel referred to PLD 1987 Sh. C. AJK 10 and the case titled "Muhammad Yunus & others , vs. Malik Muhammad Nawaz, deceased on March 28, 1997, by the Azad Jammu and Kashmir Supreme Court, in support of his assertions. 5. I have heard the learned Counsel for the parties and also gone through the record carefully. It may be mentioned at the very outset that the learned Counsel for the petitioner did not press the cancellation of bail allowed to accused-respondents No. 3 to 6, in view of their release under Section 169, Cr.P.C. Therefore, no resolution is required to their extent. 6. Next, it would be appropriate to advert to the preliminary point whether pre-arrest bail can be allowed to an accused involved in a nonbailable offence punishable with death or imprisonment for life. The proposition of allowing anticipatory bail in such like matters came under consideration of this Court in the case titled 'Gul Sanaubar vs. Nazir Ahmed' (PLD 1984 Sh. C. (AJK) 1), wherein it was held at under:- "-The relevant provision of law relating to bail is covered under Sections 496, 497, 498 and 561-A, Cr.P.C. Section 496, Cr.P.C. covers bailable offences. Non-bailable cases are dealt with under Section 497, Cr.P.C. Section 497(1) provides that bail shall not be allowed in cases where sentence is likely to be awarded as death or life imprisonment. Sub-section (2) of Section 497, Cr.P.C. vests discretion to the Court to consider the question of grant of bail when in its opinion, the case was considered as one of further inquiry. The cases of bail pre-arrest are settled under Sections 498 and 561-A, Cr.P.C. The scheme of law applicable to the non-bailable cases provides a guideline under Section 497, Cr.P.C. and the Court is vested with jurisdiction to grant or refuse bail in the light of such scheme. The cases of bail pre-arrest, on the 10. In view of the above state of facts, and law, the order passed by the District Criminal Court Kotli, granting pre-arrest bail to the accusedrespondents No. 1 and 2, does not warrant any interference which has been passed after due consideration of law, as such the revision petition merits no consideration which is hereby dismissed. Before parting with the judgment, it would be necessary to state that the case-law cited by the learned Counsel for the petitioner (1) PLD 1985 Lahore 616, (2) 1996 PCr.L.J. 1202, (3) 1985 P.Cr.L.J. 1313, (4) 1987 P.Cr.L.J. 176 (5) 1985 P.Cr.L.J. 216 and (6) 1985 P.Cr.L.J. 1546, with its distinct facts, is not applicable to the case in hand, particularly in presence of the law laid down by the Supreme Court of Azad Jammu and Kashmir, in the case titled 'Malik Muhammad Nawaz v. The State', referred to above, wherein the guide-lines have been provided for dealing with the matter relating to pre-arrest bail. (A.R.) Petition dismissed.
PLJ 1997 Shariat Court (AJ&K) 68 PLJ 1997 Shariat Court (AJ&K) 68 Present: muhammad reaz akhtar chaudhry, J. Mst. SADHA BEGUM-Appellant versus PERVAZ AHMAD KHAN and 2 others-Respondents. Sh. Appeal No. 6 of 1996, accepted on 5.4.1997. (i) Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)-- -S. 2(vii)-Option of puberty-Appellant exercised her right of repudiating marriage at the age of 24 years-Whether repudiation of marriage is established at this late juncture when she failed to exercise her ight before attaining age of eighteen years-Question ofIt is admitted by learned counsel for respondent that marriage has not been consummated, Rukhsati has not taken place, despite best efforts ade espondent- He has also filed suit for restitution of conjugal rights, in which it was pleaded by him, that after Nikah, she did not live with respondent as his wife and no rukhsati has taken place yet- his circumstance lends supporj, to fact pleaded in plaint that she has repudiated marriage-Held: Appellant has repudiated marriage performed during her age of minority- -Appeal accepted. [P. 72] C D (ii) Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)-- S. 2(vii)-Repudiation of marriage-What procedure is prescribed for repudiating marriage-When minor girl is given in marriage by her father or other guardian during her age of minority, then she has right to exercise 'Khair-ul-Balugh' for repudiating marriage on attaining age of eighteen years-Statute does not prescribe any particular form or procedure for repudiation of marriage-Held: Repudiation of marriage may be by oral words or even by conduct signifying rejection of marriage. [P. 71] A & B. PLJ 1981 Lah. 112. Mr. M. Tabasam Aftab Alvi, Advocate for Appellant. Mr. Gul Majid Khan, Advocate for Respondent No. 1. Date of hearing: 5.4.1997. order Through this appeal, the appellant has called in question the validity of the Judgment and decree of the Family Court Muzaffarabad dated 31.12.1995, whereby the suit of the appellant for dissolution of marriage on the basis of option of puberty was dismissed and the suit of the respondent for restitution of conjugal rights was decreed. 2. The succinct facts forming the back-ground of the instant appeal are that the appellant brought a suit for dissolution of marriage on the basis of the option of puberty before the Family Court Muzaffarabad. It was claimed by the appellant that her Nikah was performed with the respondent during her age of minority in 1986. On 17.10.1986, after attaining the age of the puberty, the ppellant came to know that on the occasion of the marriage of her brother, Muhammad Fiaz, with the sister of defendant No. 1, when the barat went to the house of defendant No. 1, then his father imposed conditions. He stated that rukhsati will only take place, if the father of the appellant will pay them Rs. 15,000/- and the Nikah of the appellant will be performed with the defendant No. 1. he father of the appellant-plaintiff was compelled to do so. The father of the appellant accepted the conditions. He accepted the nikah on behalf of the appellant with the defendant No. 1. When the appellant-plaintiff came to know about this Nikah, then she repudiated the nikah. During the pendency of the suit, another suit for restitution of conjugal rights was filed by the respondent. Both the suits were consolidated by the learned Family Judge. The learned Family Court dismissed the suit of the appellant and decreed the suit of the respondent. The instant appeal has been filed against this Judgment of the Family Court. 3. Mr. M. Tabasam Aftab Alvi, the learned Counsel for the appellant contended that in the content No. 3 of the plaint, it was pleaded by the appellant "that when the appellant-plaintiff came to know about her nikah, then she repudiated the Nikah", but there is no specific denial of this content, therefore, it is an admitted fact that the appellant after gaining the knowledge about her Nikah repudiated the Nikah. It was next maintained by the learned Counsel for the appellant that when the marriage has been repudiated by the appellant, then the lower Court has wrongly dismissed the suit of the appellant. It was further maintained by the learned Counsel for the appellant that alternatively, the marriage may be dissolved on the basis of the Khullah, because there is no chance of reconciliation among the spouses. 4. While controverting the arguments of the learned Counsel for the appellant, the learned counsel for the respondent, Raja Gul-Majid Khan, vehmently, argued and admitted that the Nikah between the appellant and the respondent was performed during the age of her minority. He submitted that she was entitled to repudiate the marriage before attaining the age of eighteen years. He submitted that in content No. 1 of the plaint, it was pleaded by the appellant that her Nikah took place with the respondent on 17.10.1986 and at that time she was about 13/14 years old, but she filed the suit in 1994, when she was about twenty four years old, therefore, she did not repudiate the marriage till attaining the age of twenty four years. Now she cannot repudiate the marriage. There is no proof that she repudiated the marriage on attaining the age of eighteen years. It was also pointed out by the learned Counsel for the respondent that Mst. Sadha Begum appeared as a witness and stated that her Nikah took place on 17.10.1986. At that time her age was 13/14 years and she filed the suit in 1994, when she was about twenty four years old, therefore, she has failed to exercise her right, when she attained the age of eighteen years. The learned Counsel for the espondent also conceded on the point that the marriage was not consummated and no Rukhsatihas taken place yet. 5. I have heard the learned Counsel for the parties and perused the relevant record and given my ut-most muse to the respective arguments advanced by the learned Counsel for the parties. 6. Section 2(VII) Dissolution of Muslim Marriages Act, 1939, contains as under:- "A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- (i) .............................................................................................................. (ii) ............................................................................. ...... (iii) (vi) (v) (vi) (vii) that, she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eight years". The aforesaid provision is very much clear. A woman having been given in marriage by her father or guardian during the age of minority, can repudiate the marriage before attaining the age of eighteen years, if the marriage is not consummated. Marriage between Muslims has a religious significance, under Muslims Law. When a minor girl is given in marriage by her father or other guardian, during her age of minority, then she has right to exercise the 'Khair-ul-Balugh' for repudiating the marriage on attaining the age of eighteen years. 7. It is also pertinent to note that the statute does not prescribe any particular form or procedure for repudiation of marriage, it may be by oral words or even by conduct signifying rejection of marriage. This view finds support from P.L.D. 1969 Lahore 448 P.L.J. 1981 Lahore 112. 8. In the instant case, in the content No. 3 of the plaint, it was pleaded by the appellant-plaintiff that after gaining the knowledge about the Nikah, she publically did not accept it and cancelled the Nikah. This content was not specifically denied by the respondent and this fact also finds corroboration from the circumstances of the case. According to the parties, their nikah was performed in 1986, when the appellant was 13/14 years old and rukhsati has not taken place yet. This circumstance lends support to the version of the appellant-plaintiff, that she has repudiated the marriage. The same like proposition arose before the Lahore High Court, in case titled "SardarBano vs. Saifullah Khan". In that case, the marriage of the appellant was performed with the respondent in the year 1944, when she was a baby of two years. The appellant and the respondent never lived as man and wife, the suit was instituted in 1966, when the appellant was about twenty two years old. It was eld by the High Court that despite having attained the age of twenty years, she remained separate from the respondent and it furnishes a strong circumstantial corroboration to her repudiation of marriage. I ould ike to reproduce the relevant portion of the Judgment reported in P.L.D. 969 Lahore 448 relevant page 452, which reads as under:- "The fact that despite the respondent's efforts.the appellant's rukhsati could not come off cannot be explained on any hypothesis other than this that she had rejected her marriage performed during her infancy, and she would not recant her repudiation. I consider that the fact that despite having attained the age of more than twenty years, she continued to live apart from the respondent, furnishes a strong circumstantial corroboration of her repudiation of the marriage in 1958, as stated by her mother and paternal and maternal uncles. Indeed having regard to the nature of the case and the right exercised by the appellant there could have been better evidence than that."The same view also finds support from P.L.J. 1981 Lahore 112, which reads as under:- "Such repudiation can also take place by her established conduct by staying away from her husband fter attaining the age of puberty and in having not gone to his house inspite of best efforts on his part." 9. In the instant case, as stated above that it is admitted by the learned Counsel for the respondent that the marriage has not been consummated, Rukhsati has not taken place, despite best efforts made by the respondent. He has also filed a suit for restitution of conjugal rights, in which it was pleaded by him, that after the Nikah, she did not live with the respondent as his wife up-til-now. According to the revision of the respondent, she has attained the age of twenty four years, but up-til-now, she did not live with the respondent as his wife and no rukhsati has taken place yet. This circumstance lends support to the fact, pleaded in content No. 3 of the plaint, that she has repudiated the marriage. 10. The nut-shell of the above discussion is that this appeal is accepted and the Judgment and decree of the lower Court dated 31.12.1995, are hereby set aside and it is declared that the appellant has repudiated the marriage performed during her age of minority. The suit of the appellant ' stands decreed and the suit filed by the respondent No. 1 for restitution of conjugal rights is hereby dismissed. This appeal stands disposed of in the terms indicated above. (B.T,) Appeal accepted. The End
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 1 [Service Tribunal AJK] Present : raja bashir ahmad khan, chairman and khawaja abdul hameed, member MUHAMMAD ASLAM-Appellant versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD and 4 others-Respondents Service Appeal No. 789, dismissed on 21.11.1996 Service Matter-- Civil Servant (C/zoiwA:fdar)--Dismissal from service-Challenge to--It is stated by appellant that on account of heavy rain and wind appellant went inside a room to avoid cold and rain and in the morning he found that bolt of door was broken-Appellant was primarily posted as chowkidar and in this capacity he is expected to remain vigilant and alert in performance of his duties-There appears no valid reasons to consider the matter for lesser penalty-Appeal dismissed. [P. 2] A Farooq Hussain Kashmiri, Advocate for Appellant. Additional Advocate General for Respondents. Date of earing: 21.11.1996 judgment Raja Bashir Ahmad Khan, Chairman.-This appeal has been filed against Order No. 16 for the year 1993-94 dated 8.6.1994 whereby the appellant was dismissed from the service. 2. The brief facts of the case are that the appellant joined service in Forest Department as Chowkidar on 1.11.1990. On the night intervening 13/14 March, 1994 a Computer and a Printer were stolen from the office of the Conservator Range Land Division. On the basis of said theft the appellant was charge-sheeted on 26.3.1994 and after the completion of the inquiry the appellant was dealt with as stated above. 3. The respondents have filed their written objections and denied the contents of appeal. 4. A replication on behalf of appellant has also been filed. 5. We have heard the counsel for the parties. 6. It has been frankly conceded by the counsel for appellant that the inquiry conducted against the appellant was in order and appellant could be punished for the misconduct he had committed. The learned counsel, however, pleaded that the penalty of dismissal from service is very harsh against a low paid Government employee. 7. We have given our anxious thoughts to the plea of counsel for appellant. From the statement made by the appellant before this Tribunal it transpires that on the fateful day the appellant was performing his duties as Chowkidar. It is stated by the appellant that on account of heavy rain and wind the appellant went inside a room to avoid the cold and rain and in the morning he found that the bolt of the door was broken. The appellant was primarily posted as Chowkidar and in this capacity he is expected to remain vigilant and alert in the performance of his duties. In the middle of March there is not much of cold in this region. The appellant tried to make up a story which was not accepted by the Superior Authorities of the DepartmentThe civil servants are lacking in observance of service discipline and further indulgence on the part of this Tribunal in a matter of discipline and proper service conduct may lead to disastrous results. There appears no valid reasons to consider the matter for lesser penalty. The appeal is liable to be dismissed. i 8. In view of the above the appeal is dismissed with no order as to costs. (K.K.F.) Appeal dismissed
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 3 [Service Tribunal AJK) Present : RAJA BASHIR AHMAD KHAN, CHAIRMAN AND KHAWAJA ABDUL hameed, member SARDAR MUHAMMAD SALEEM CHUGHTAI, ADDITIONAL SECRETARY FOREST , MUZAFFARABAD , AK --Appellant versus AZAD GOVERNMENT TO THE STATE OF JAMMU AND KASHMIR THROUGH CHIEF SECRETARY MUZAFFARABAD-Respondents Service Appeal No. 876, dismissed on 19.11.1996. Re-adjudication-- Matter having been once decided by Supreme Court cannot be re adjudicated upon in any other subsequent proceedings. [P. 4] A M. Tabassum Aftab Alvi, Advocate for Appellant. Noor Ullah, Advocate for Respondent. Date ofhearing : 19.11.1996. judgment Raja Bashir Ahmad Khan, Chairman.-This appeal is directed against Notification No. Admin/A-l(13)/Section V/95 dated 21.6.1995. 2. The facts as stated in the appeal are that the appellant was appointed as Entomologist on 17.7.1978 and was promoted as Entomologist B-18 on 3.10.1983. The post of Entomologist was later on re-designated asSenior Scientific Officer Health through order dated 1.11.1988. The appellant was appointed as Ex-officio Deputy Secretary Health on 7.3.1989and as Deputy Secretary Health on 24.2.1991. The appellant was appointed as Additional Secretary on 1.9.1992. The lien of appellant was, however, retransferred in the Health Department on 25.11.1993. The appellant filed an appeal against order dated 25.11.1993 before this Tribunal which appeal wasdismissed on 18.4.1995. Against the order dated 18.4.1995 the appellant filed an appeal before the Hon'ble Supreme Court. The Supreme Court repelled the contention of appellant that the posting of appellant as Additional Secretary was on permanent basis. 3. The appellant had filed review petition against Notification dated 25.11.1993 before the Government. The review petition was heard by Mr. Muhammad Yousaf, Special Assistant to Prime Minister who was delegated the powers of Government for the disposal of appeals/review petitions etc. vide Notification No. S&GAD/H-6(36)/R/VI/91 dated 23.12.1992. The Special Assistant dismissed the review petition of appellant but made the following observations:- "The review petition is, therefore, dismissed. However, it is recommended that the Government may consider him for promotion to B-20 in other departments, including the post of Secretary to the Government, whenever there are vacancies available, as his prospects of promotion beyond grade 19 in his parent Department do not exist for nonmedical staff." As a consequence of that finding Notification No. Admin/A-l(13)/SV/95 dated 21.6.1995 was issued which is subject matter of this appeal. 4. The written objections have been filed on behalf of respondents. It has been claimed in the written objections that the appellant has no locus standi and is not an aggrieved person which the meaning of Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. We have heard the counsel for parties and have gone through the record. 5. The contention of the counsel for appellant is that the order dated 21.6.1995 has not been expressed in terms of the decision of Special Assistant. The argument of the counsel is that the observations made by the Special Assistant reproduced above should have been incorporated in the impugned Notification. The Notification dated 25.11.1993 against which the appellant filed a review petition before the Government and as a result theimpugned Notification has been issued was the subject-matter of previous proceedings before this Tribunal and the Hon'ble Supreme Court. The Supreme Court was pleased to declare vide its judgment dated 14.10.1995 passed in Civil Appeal No. 31 of 1995 that the appointment of appellant as Additional Secretary was not on permanent basis. The matter having been once decided by the Supreme Court cannot be re-adjudicated upon in any other subsequent proceedings. The impugned Notification was issued on21.6.1995 whereas the Hon'ble Supreme Court decide the matter vide its judgment dated 14.10.1995. The facts on the basis of which the Notification dated 21.6.1995 was issued have been decided finally by the Supreme Court and, therefore, further adjudication of those facts cannot be made by this Tribunal. The appeal is liable to be dismissed. 6. The Special Assistant dismissed the review petition of appellantand it was rightiy done so. The observations/recommendations made by the Special Assistant do not create any high in favour of appellant for promotion and, therefore, these recommendations if not included in the impugned Notification do not create any right of appeal to the appellant The Government may, however, consider the case of the appellant for adjustment in the Civil Secretariat as recommended by the Special Assistant if it is permissible under law. 8. In light of the above stated facts we dispose of this appeal accordingly and dismiss the same with no order as to costs. (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 5 [Service Tribunal AJK) Present : RAJA BASHIR AHMAD KHAN, CHAIRMAN AND KHAWAJA ABDUL hameed, member SYED IMTIAZ HUSSAIN NAQVI and another-Appellants versus AZAD GOVT. OF THE STATE OF JAMMMU AND KASHMIR THROUGH CHIEF SECRETARY and 3 others-Respondents Service Appeals No. 827 and 830, decided on 14.11.1996. Azad Jammu and Kashmir Civil Servants Act, 1976- S. 21(2)~A representation is only competent where no provisions for appeal or review exist in rules in respect of any order-It is also clear fromsub-section (2) of Section 21 that a representation against such order can be made to authority next above authority which made order-It has also been provided under sub-rule (2) of Rule 9 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 that provisions applicable to appealshall apply mutatis mutandis to representations. [P. 8] A Farooq Hussain Kashmir, Advocate for Appellants. M. Tabassum Aftab Alvi, Advocate for Respondent No. 4 Sardar Rafique Mehmood Khan, Advocate for Respondents No. 1 to 3 in appeal No. 827. Ansar Tahir, Advocate for respondents No. 1, 2 in Appeal No. 830. Date of hearing : 14.11.1996. judgment Raja Bashir Ahmad Khan, Chairman.--This order will dispose of two Appeals titled as Syed Imtiaz Hussain Naqvi versus Secretary Tourism Wildlife etc. Appeal No. 827 of 1995 and Ch, Abdul Aziz versus Secretary Tourism etc. Appeal No. 830 of 1995. These two appeals as decided through this consolidated judgment as the parties are the same and the parties are contesting the case on the same set of facts. 2. The Appeal of Syed Imtiaz Hussain Naqvi is directed against order No. DG No. 30 of 1993-94 under No. 605-11 dated 30.10.1993 whereby the respondent No. 4 was promoted as Senior Accounts Clerk against the upgraded post of grade B-9. 3. The facts of this Appeal are that the appellant joined service as Junior Clerk on 5.22.1979 in grade B-5. He was awarded; selection grade B-7on 1.7.1987. The respondent No. 4 joined service as Junior Clerk on 6.7.1981 in grade B-5 and he was temporarily given grade B-7 on 23.11.1992. The appellant and respondent No. 4 were permanently promoted grade B-7 through order No. 68 of 1992-93 under No. 2020-31/BIB dated 15.3.1993. The respondent No. 4 Ch. Abdul Aziz was promoted as Senior Accounts Clerk against the post of grade B-9. The post of Senior Accounts Clerk was originally in grade B-7 and promoted to this post which was upgraded to grade B-9 vide impugned order. 4. In Appeal titled as Ch. Abdul Aziz versus Secretary Tourism etc., brief facts are that the Department of Tourism etc. was separated from the Department of Forests by order dated 18.2.1992. On the establishment of the new Department Tourism etc., one post of Senior Accounts Clerk and two posts of Senior Clerks were to be filled up by promotion. The case of promotion of appellant, respondent No. 3 and one Khurshid Anwar was sent to Selection Committee and they were approved for the promotion and accordingly the orders of promotion of parties were issued. The appellant Ch. Abdul Aziz was promoted as Senior Accounts Clerk whereas respondent No. 3 was promoted as Senior Clerk in grade B-7. The respondent No. 3 was assigned additional duties of Head Clerk in Department of Fisheries and he was allowed charge allowance against this post vide order which was issued under No. DG 33 of 1993-94 on 6.12.1993. The operative part of the order runs as under : 5 The appellant and respondent No. 4 were declared fit to hold the posts of Head Clerk B-11 and orders of promotion were issued on 5.5.1994 and were made effective from 25.4.1994. The respondent No. 4 on 30.6.1994 submitted an application before Director General Tourism and prayed for giving him promotion from 6.12.1993. The Director General granted his prayer and he was given promotion as Head Clerk B-11 with effect from 6.12.1993. This order was cancelled on the next day through order No. 15 of 1994-95 issued under No. 283-87/B-II-7/94 dated 25.8.1994. The respondent No. 4 filed a representation before the Director General Tourism who allowed the representation of respondent No. 4 and he was promoted as Head Clerk with effect from 6.12.1993. The appellant filed an appeal against this order before the Secretary of the Department and after exhausting the waiting period of ninety days has filed this appeal before the Tribunal. 6. The respondents in both the Appeals have filed written objections and have denied the respective claims of the appellants. 7. We have heard the counsel for the parties and have gone through the record. 8. In Appeal of Ch. Abdul Aziz versus Secretary Tourism etc., the main plank of attack of counsel for appellant is that the impugned order was issued by respondent No. 2 on a representation made by respondent No. 3against the order which was also passed by the respondent No. 3 (DirectorGeneral Tourism etc.) and, therefore, the order passed in representation is illegal, void and not sustainable. The counter argument of the counsel for respondent No. 3 is that the order dated 14.11.1994 waspassed, although on the representation of the respondent but the order was passed after hearing the parties and, therefore, this was a final order against which no appeal was competent before the respondent No. 1. The appellant should have directly come to this Tribunal for redress of his grievance. 9. The perusal of the record shows that the respondent No. 3 was entrusted with the additional duties of Head Clerk Fisheries by an order dated 6.12.1993. It was mentioned in the order that he would be entitled to get charge allowance of the post. This order is self-speaking in the sense that respondent No. 3 was not promoted against this post but he was given the charge of post and was allowed to draw the charge allowance. The respondent No. 3 filed an application to Director General Tourism requesting that he should be promoted/appointed Head Clerk in grade B-ll with effect from 4.12.1994. In fact, he wanted his promotion from 6.12.1993. On this application respondent No. 2 promoted respondent No. 3 as HeadClerk with effect from 6.12.1993. This order was however, cancelled suo motu by respondent No. 2 who passed order No. 15 of 1994-95 on 25.8.1994 whereby order No. 60 of 1992-93 issued on 5.5.1994 was restored. The respondent No. 2 filed a representation against this order before the Director General Tourism on 30.11.1994 and after hearing the parties the impugnedorder was passed and order dated 24.8.1994 was again made operative and order No. 15 of 1994-95 dated 25.8.1994 was declared illegal and against the rules. 10. The provisions of representation have been made under Section 21 of Azad Jammu and Kashmir Civil Servants Act, 1976. The Section reads as under :-- "Right of Appeal or representation :--(!) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as many otherwise be prescribed, be made within sixty days of the comimmication to him of such order. (2) Where no provision for appeal of review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order, Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."Sub-section (2) of Section 21 deals with the representation. A representation is only competent where no provisions for appeal or review exist in the rules in respect of any order. It is also clear from Sub-section (2) of Section 21 that a representation against such order can be made to the authority next above the authority which made order. It has also been provided under Sub-rule (2) of Rule 9 of Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 that the provisions applicable to the appeal shall apply mutatis mutandis to the representations. The cumulative effect of these provisions of law is that an aggrieved civil servant is entitled to file representation to the appellate authority or the authority next above the authority making the order. The impugned order was made by Director General on the representation of the respondent No. 3 which order could only be challenged through an appeal before an appellate authority or the authority next above the Director General Tourism. The Director General in representation could not cancel an order passed by him or by his predecessor-in-office. This illegal action of the Director General could not attain the status of appeal if he allowed the parties an opportunity of personal hearing. The order being patently illegal and void is liable to be set aside. 11. In Appeal titled as Syed Imtiaz Hussain Naqvi versus SecretaryTourism etc. a preliminary objections has beenraised by the counsel for respondents which is to the effect that the Secretary of the Department was made party on 5.9.1995 whereas impugned order was passed on 30.10.1993. The limitation against respondent No. 2 shall run from the date when he was made a party before this Tribunal. The appeal is hopelessly time barred. As against this argument the counsel for appellant contends that Secretaryof the Department is not a necessary part but a proper party. The order was passed by the Director General and he has already been made respondent in this appeal. From the record it is clear that an appeal against order of Director General dated 30.10.1993 has been filed before the Secretary of the ' Department. The Secretary may pass any order which he deems fit in the circumstances of the case. Since the Secretary of the Department is seized of the matter and he can pass any order which may effect the service rights of the parties he, therefore, cannot be termed as a proper party. We are of the view that the Secretary of the Department is a necessary party and the limitation against him shall start running from the date when he was made party in this Tribunal. This date is 5.9.1995. The impugned order was passed on 30.10.1993. This appeal is well beyond the period of limitation prescribed for filing the appeal before this Tribunal. This appeal is declared as time 'barred and is, therefore, liable to be dismissed as such. (K.K.F.) Order accordingly
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 9 [Punjab Service Tribunal, Lahore ] Present: SAFDAR HUSSAIN SHAH JAFRI, MEMBER I. MUHAMMAD SALEEM KHAN-Appellant versus I.G. POLICE PUNJAB LAHORE and another-Respondents Appeal No. 996/93 accepted on 17.10.1996 (i) Appointment-- An appointment in substantive capacity would obviously be determined by the date from which post of Legal Inspector against which appellant was recruited was created on permanent basis. [P. 13] A (ii) Punjab Civil Servants Act, 1974- S. 6(6)-Civils Servant-Confirmation of--Question of--Confirmation of a civil servant in a service or against a post shall take effect from date of occurrence of a permanent vacancy in such service or against such post or from date of continuous officiation in such service or against such post which ever is later. [P. 14] B Haflz S. A. Rehman, Advocate for Appellant. Syed Abbas Raza, District Attorney. Date of hearing: 22.5.1996. judgment The appellant Muhammad Saleem Khan was recruited as Inspector (Legal) vide order, dated 27-3-1990 issued by the D.I.G/Commandant, Police College , Sihala. He passed the prescribed departmental examination. (i.e Inspector Legal Class Course) during the term ending September/October, 1990 and he completed three years maximum period of probation on 6-4-1993. The appellant sought his confirmation in the rank of Inspector Legal vide petition dated 17-4-1993 which was endorsed by the D.I.G/Commandant Police College, Sihala on 15-6-1993. Finding no response to it, the appellant filed the instant appeal, after the expiry of 90 days under Section 4 of the Punjab Service Tribunals Act, 1974. 2. Learned Counsel for the appellant relies on the provisions of Rule 19.26 (3) of the Police Rules to contend that the appellant was entitled to be confirmed in his appointment after he had passed the training course, had rendered six months practical training and had further rendered 1 year service as Prosecuting Sub-Inspector. He states that the period of probation would of course be deemed to have been extended from 8-4-1992 to 6-4-1993as no order of confirmation was passed on 7-4-1992. 3. Learned Counsel further contended that the appellant was appointed against the existing vacancy and the fact that he was appointed on a temporary basis did not imply that he was necessarily appointed against a temporary vacancy. 4. Appearing on behalf of the respondents, Learned District Attorney stated that the appellant was appointed on purely temporary basis.He, therefore, referred to the provisions of Section 6(4) of the Punjab Civil Servants Act, 1974 to assert that there could be no confirmation against any temporary post. He fortified his view by a reference to Section 6 (6) of the Act, ibid, to contend that the appellant could only be confirmed from the date of occurrence of a permanent vacancy in his service. The aforesaid sub section (6) of Section 6 of the Punjab Civil Servants Act is reproduced below :-- 6(6) "Confirmation of a civil servant in a service or against a post shall take effect from the date of the occurrence of a permanent vacancy in such service or against such post or from the date of continuous officiation, in such service or against such post, whichever is later." 5. I have perused the written objections filed by the Commandant Police College , Sihala, who had recruited the appellant in service asAppointing Authority. The said respondent has conceded, in his written objections that "the appellant was eligible to be confirmed on the expiry ofhis probationary period i.e. three years (7-4-1993) but not from the date of appointment (7-4-1990)". The I.G. Police (i.e respondent No. 1) has, however, objected to the confirmation of the appellant on the ground that the appellant was appointed as temporary Inspector Legal in March, 1990 when 107 temporary posts of Inspectors/Legal were sanctioned by Government followed by the "De-seperation of Prosecution Branch" resulting in the transfer of 323 ADAs from the Law Department and their appointment as Inspector (Legal) vice Police Department's notification, dated 31-5-1991 and the placement of as many as 180 Inspectors Legal (erstwhile ADAs) as senior to the appellant who were yet to be confirmed. Learned D.A., therefore, maintains that the appellant could not be confirmed in his appointment asInspector (Legal). It has been stated in the said written objections that the uzter-se-seniority of the Legal Inspectors would be determined in accordance with the principles of policy laid down by the I.G. Police, Punjab in his letter dated 25-5-1994 in the following order :-- (i) Confirmed Inspectors/Legal (ii) From date of admission to list 'F' irrespective "of the fact that the officer is Ex-ADA or Inspector/Legal who remained in Police Department throughout (iii) From the date of regular continuous officiation in the rank, either the officer remained posted to Police Department or opted for Law Department in 1985 and transferred back in 1992. (iv) The ex-ADAs who were appointed in Law Department and opted for transfer to Police Department on 31.5.1992, will be considered fresh appointees from the date when they joined the Police Department. 6. The appellant had already become due for confirmation after he had completed three years period of probation to the satisfaction of the department. It has, however, to be seen whether the appellant was recruited against a permanent vacancy on 7.4.1990 to determine whether he had qualified for confirmation after completing three years period of probation.Learned District Attorney agrees that subsequent determination of seniorityin the manner as spelled out at Para 5 above could not have any bearing on the confirmation of the appellant if it had become legally due to him prior to the fixation of such seniority. Learned District Attorney, however, relies on the judgment of the learned Supreme Court reported vide 1987 SCMR (SC) 156 to contend that the appellant would not become permanent employeeautomatically merely because he had successfully completed his probationary period. 7. I have heard the learned counsel representing the appellant as also the learned District Attorney who forcefully defended the respondents notwithstanding, the evasive attitude on the part of the respondents who failed to confirm as to when the posts against one of which the appellant was appointed was initially created nor has it been confirmed whether it was created as a temporary post and if so, was it converted to permanent post subsequently and if so, from which date/financial year such atransformation in the nature of the post had taken place. The contention of the appellant, however, is that he was recruited "against the existing vacancies" and that the term "on purely temporary basis" used in their offer of appointment was normally incorporated in the offer of appointments made by Government Departments although it had ceased to be of any legal ignificance. According to the counsel for the appellant, the vacancies would be treated as permanent ones as the phrase "against the existing vacancies" could not bestretched to interpret that the vacancies existed on temporary basis. 8. The version of the respondent No. 1 (i.e. I.G Police, Punjab) is that the appellant was recruited as Inspector Legal w.e.f. 27-3-1990 againsttemporary post. He passed the prescribed examination of Inspector Legal in the Police Department vide notification, dated 31-5-1992, These officers also included those who originally belonged to the Police Department and had gone to Law Department as ADAs on their option in 1985. According to the said respondent, the seniority matter amongst Inspectors Legal who remained in Police Department and those who joined the Law Department and came back to the Police Department on 31-5-1992 including those who had been recruited as ADA in the Law Department cropped up; that it was determined in accordance with the Police Rules 13.15 (4) and 12.2.(3) according to which the petitioner was correctly placed at Serial No. 281 of the seniority list. The said respondent affirmed that although no formal orders regarding disposal of the representation of the petitioner for confirmation were passed, his representation was duly considered before determining the znter-se-seniority of the Legal Inspectors and ADAs and that according to the seniority list circulated on 25-5-1994, as many as 180 LegalInspectors were shown senior to him who were still waiting for their entry to promotion list 'F'. 9. I have carefully glanced through the provisions of Rule 12.2 (3) of the Punjab Police Rules. The provisions of the above rule deal with the question of the determination of mter-se-seniority of the Police Officers promoted from amongst the lower rank vis-a-vis those appointed by direct recruitment. Rule 12.2. (3) does not, in any case, lay down the procedure or the conditions precedent to confirmation of a directly recruited Inspector Legal or other police officials for that matter. As regards Rule 13.15 referred to by the respondents, the position is that it deals with the induction of the Sub-Inspectors and surgents of Police to list 'F' (i.e the select list for the purpose of their promotion as Inspectors of Police). According to Sub Rule (4) of Rule 13.15, the seniority of the promoted Sub Inspectors as Inspectors would be counted from the date of their enlistment in list 'F'. A careful perusal of Rule 12.2 (3) and Rule 13.15 (4) of the Police Rules, referred to above, indicates that these lay down the manner in which the seniority of promoted Police Inspectors vis-a-vis directly recruited Police Inspectors would be determined. That being so, seniority could not have properly beenassigned to the appellant and the Legal Inspectors of his category who were directly recruited by the Police Department unless they were confirmed asInspectors of Police from a specific date from which they were entitled to such confirmation under the rules. Such confirmation could alone be counted for determining their mter-se-seniority with the Legal Inspectors who had either continued in the Police Department since their induction in service or had gone to the Law Department as ADAs on their option and had come back from that department to the Police Department in the year 1992. 10. The factual position is that in the present appeal, we are concerned with the question of confirmation of the appellant and the other Legal Inspectors who were recruited alongwith him on 27-3-1990/7-4-1990. The formula devised by the I.G. Police and reproduced at Para-4 above for determining the inter-se-seniority of the Legal Inspectors and the ADAs is the subject of an appeal already pending before the Division Bench of this Tribunal and its legal validity shall be determined, in due course, independent of the present appeal which only deals with the confirmation of the appellant as Legal Inspector. The date of confirmation would, of course, have its bearing for determining the mter-se-seniority of the appellant vis-a vis other Legal Inspectors and the ADAs. 11. Rule 19.26 of the Police Rules actually deals with the training ofthe directly recruited Prosecuting Sub Inspectors of Police (now up graded as Legal Inspectors), in the Police Officers Training School for a period of one year, practical training for 6 months and in service probation/training for a period of l\ year (i.e 3 years in all). According to Rule 19.26 (3), after theexpiry of the 3 years period, specified above, they would be confirmed in their appointment provided they had rendered work to thesatisfaction of the Principal of the Police Training School and that of the Superintendent of Police of the District where they had served during such period of training and probation. 12. I am of the considered view that the following two facts would determine the date from which the appellant would be entitled to confirmation as Legal Inspector; (1) satisfactory completion of training, passing of departmental examination and rendition of satisfactory service during the period of his probation (3 years in all); (2) the date of confirmation would be the one from which permanent vacancy of Legal Inspector of Police had become available for the appellant. 13. I have carefully gone through the directions issued by the Chief Secretary, Government of the Punjab vide his letter dated 16-10-1951 andsubsequent instructions issued by the Inspector General of Police vide his letter dated 6-10-1958 (annexed to the file). According to the requisite instructions, the Provincial Government had decided in consultation with the Central Government that in cases of confirmation, the service rendered by Government servant on probation would unless the relevant rules prescribed otherwise be treated as service rendered in a substantive capacity and accordingly the date of confirmation of a probationer deemed fit for confirmation by the competent authority "should be the date of his appointment on probation and not any subsequent date". 14. The letter of appointment of the appellant clearly shows that he was appointed against an existing vacancy. An appointment in substantive capacity would obviously be determined by the date from which the post of Legal Inspector against which the appellant was recruited was created on permanent basis. 15. The provisions of Section 6(6) of the Punjab Civil Servants-Act 1974 reproduced above too confirm the above view. According to the provisions of Section 6(6) of the Act, ibid, confirmation of a civil servant in a service or against a post shall take effect from the date of the occurrence of a permanent vacancy in such service or against such post or from the date of continuous officiation in such service or against such post which ever is later. The appellant would, therefore, be entitled to confirmation as Legal Inspector from the date of his appointment as such i.e w.e.f 7-4-1990 or w.e.f the date on which the post against which he was recruited was converted to a permanent post by the Finance Department, in case the post was initially created on temporaiy basis in March, 1990 when the recruitment against the post was made by the respondent No. 2 namely D.I.G. olice/Commandant Police College, Sihala. Such confirmation would, of course, be without prejudice to the decision that may eventually be taken as regards the formula determining the interse-seniority of the appellant and such otherLegal Inspectors who were recruited as such and continued to work in the Police Department vis-a-vis those who opted to join the Law Department as ADAs in 1985 and sought repatriation to the Police Department from 1-6- 1992 as also such ADAs who were recruited in the Law Department and had sought transfer to the Police Department. The instant appeal is accordingly allowed subject to the above stipulations. 16. The parties are left to bear their own costs. (K.K.F.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C (Labour) 14 [Labour Appellate Tribunal Sindh] Present: mushtak All kazi, APPELLATE TRIBUNAL MUHAMMAD ARIF-Appellant versus Messrs AIRPORT HOTEL (PVT.) LTD. through Managing Director, Karachi Airport , Karachi-Respondent Appeal No. KAR-155 of 1996, dismissed on 23rd April, 1996. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-- S.O. 15(3)-Dismissal from service-Employee serving as helper in hotel- Challenge to-Allegation that he misbehaved with lone lady guest who was a transit passenger-Charge against employee not only was fully 1997 Tr.C. 15 muhammad arif v. airport hotel (Pvr) ltd. [Labour Appellate Tribunal Sindh] proved but employee had himself admitted same in reply to show-cause notice-Employee, in circumstances, was rightly dismissed from service. [P. 15] A & B M X. Shahani, Advocate for Appellant. Date of hearing: 23rd April, 1996. decision This appeal is directed against the decision of Fourth Sindh Labour Court, Karachi , dismissing the grievance petition of one Muhammad Arif a helper of Airport Hotel, for his reinstatement and back benefits etc. 2. The facts in brief are that one Asma Begum a transit passenger was returning from Saudi Arabia after performing Haj and she was to continue her journey to India. She had to wait for three hours at Quaid-e- Azam Airport Karachi and she was lodged at the Airport Hotel at about 7-00 p.m. Appellant Muhammad Arif was on duty as Housekeeper. He misbehaved with the lone lady guest and committed rape on her. The lady resumed her journey leaving a written complaint. P.I.A. Officers after a preliminary enquiry suspended Muhammad Arif, served him with the showcause notice and appointed Enquiry Officer. In reply to the show-cause notice Muhammad Arif practically admitted the charge therefore no report was lodged with the Police and Enquiry Officer was appointed and on completion of the enquiry in which Muhammad Arif was associated the appellant was dismissed from service. Complaint of Asma Begum and the reply of Muhammad Arif form part of the record of the enquiry. There was therefore no doubt regarding the incident having occurred during which Muhammad Arif had committed misconduct. The enquiry papers fully support the charge against Muhammad Arif. The learned Presiding Officer , Fourth Sindh Labour Court, therefore, recorded his findings that the misconduct had been committed by Muhammad Arif that the enquiry proceedings were fair and the dismissal was justified. 3. Mr. M.L. Shahani on behalf of the appellant has now tried to dispute the identity of the culprit but this point appears to have been raised before the Appellate Tribunal for the first time. The culprit had admitted the incident but blamed the lady for making him sit with her on her bed and later induced him of pressing her breast. This is the usual defence of such culprits who always abuse the lady of being sexy and making over ture and wanting to have sexual intercourse. In any case such a person cannot be kept at place like Airport Hotel where lonely lady passengers also come to stay. 4. There is no substance in this appeal which is accordingly dismissed in limine (K.KF.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 16 [Labour Appellate Tribunal Sindh] Present: mushtak Au kazl, appellate tribunal ABDUR RASHEED-AppeUant versus MEHRAN SUGAR MILLS LTD., TANDO ALLAH YAR through General Manager-Respondent Appeal No. HYD-104 of 1996, dismissed on 14.4.1996. Industrial dispute- Electric coolie-Termination of serviceChallenge toEmployee who on the very next day of his appointment, absented himself, sent application for medical leave-Medical certificates produced by employee were not proved to be genuine-Services of employee, thus were rightly terminated. [P. 17] A Syed Aftab Hassan, Advocate for Appellant. Date of hearing: 14th April, 1996. decision This appeal arises from the order of Sixth Sindh Labour Court, Hyderabad , whereby the grievance petition of the worker Abdur Rasheed claiming reinstatement was dismissed. 2. Appellant Abdur Rasheed was employed as electric coolie during the crushing seasons by Mehran Sugar Mills. He came for appointment atthe start of the season and was engaged on 26-9-1992 but on the very next day he absented himself and sent an application for medical leave supportedby Medical Certificate that he was suffering from typhoid fever. By an order dated 1st December, 1992 the appellant's service was terminated with effect from 27-9-1992 the date of his absence. The appellant then served the management as the grievance notice and filed petition for reinstatement with all the back benefits. 3. The learned Labour Court found that the two certificates produced by the appellant were not genuine. One was from a doctor of Theroo Shah near Naushero Feroze. A man falling ill on account of typhoid at Tando Allahyar would not go to a doctor at Naushero Feroze District for treatment. It was believed that the appellant after having obtained the job for the season had left for Karachi and stayed away there until his services were terminated. The learned Labour Court accordingly dismissed the application for reinstatement and back benefits. 4. Syed Aftab Hassan for the appellant has not been able even to produce the copies of the Medical Certificates. The termination was due to absence of the appellant and illness was obviously an excuse. The management had therefore to appoint another person in his place during the crushing season. 5. I can find no substance in this appeal which is accordingly dismissed in limine. (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 17 [Labour Appellate Tribunal Sindh] Present: MUSHTAK ALIKAZI, APPELLATE TRIBUNAL Syed QUDRAT SHAH and 5 others-Appellants versus H. NIZAM DIN & SONS, KARACHI-Respondent Appeals Nos. KAR-44 and KAR-57 to KAR-61 of 1996, dismissed on 8.4.1996. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968)-- -S.O. 12--Termination of service-Challenge to-Employees had failed toprove that they were victimised on account of union activities-Employers were justified under law for reasons of re-organisation to reduce their own workers' strength for effecting economy when orders for product of company had gone down-Management cannot, be compelled under law to keep workers under such circumstances-Services of employees, thus, were rightly terminated. [P. 18] A Muhammad Shafiq Qureshi, Advocate for Appellants. Date of hearing: 8th April, 1996. decision These are six connected appeals filed by Mr. Shafiq Qureshi on behalf of the workers of M/s. Nizam Din & Sons, Tents Makers at S.I.T.E., Karachi . It is alleged that there were about 400 workers employed in this establishment but the six workers' services were terminated under Order 12 of the Standing Orders Ordinance for the reason that the number of orders for the tents had considerably decreased. The termination orders were in writing giving reasons. 2. The case of the appellant was that about 50% of the workers were discharged without permission of the Labour Court . The learned Labour Court found that the grievance petition of these workers was clearly timebarr.edf»«nd no condonation application for delay had been made, but the reasons justifying the delay could not be accepted. The main grievance of the petitioners was that they were victimised on account of union activities. It is hard to believe that an industrial concern has terminated the services of bulk of its workers just on account Of union activities. There is no reliable evidence to prove this point. The respondents were justified under the law for reasons of re-organisation to reduce their own workers for effecting economy when the orders had gone down. It is not the intention of the labour laws to compel the management to keep the workmen under such circumstances. 3. Under the circumstances I can see no reason to interfere with the order of the Labour Court and these six appeals are dismissed in limine. (K.K.F.) Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 18 [Labour Appellate Tribunal Sindh] Present: MUSHTAK AU KAZI, APPELLATE TRIBUNAL ABDUL RASHID KHAN and 1565 others-Appellants versus PAKISTAN MACHINE TOOL FACTORY (PVT.) LTD., KARACHI-Respondent Applications Nos. KAR-4 and KAR-5 of 1996, decided on 22.4.1996. Payment of Wages Act, 1936 (IV of 1936)-- -Ss. 1(6), 15 & 17 read with Sindh Employees Special Allowance (Payment) Ordinance (V of 1986), S. 7-Recovery of allowance- Applications of employees for recovery of special allowance were concurrently dismissed both by Authority under Payment of Wages Act and Labour Court on ground that wages of employees exceeded Rs. 3,000 p.m. while Authority under Payment of Wages Act had jurisdiction only up to Rs. 3,000 p.m.-Special allowance claimed by employees not forming part of wages under S. 7 of Sindh Employees Special Allowance (Payment) Ordinance, 1986 same could not be added to wages of employees for the purpose of determining jurisdiction of Authority under Payment of Wages ActClaim of employees being in respect of allowance and not wages, no question thus arose of non-maintainability of applications of employees before Authority under Payment of Wages Act- -Order passed by Labour Court was set aside and case remanded to be decided afresh on merits. [Pp. 19 & 20] A Mr.Ali Amjad and Faiz Ghanghro for Applicants (in Application No. KAR-4 of 1996). Mr. Khadim Hussain for Applicant (in Application No. KAR-5 of 1996). IqbalAfridi for Respondents (in Application No. KAR-4 of 1996). Date of hearing: 22nd April, 1996. decision These are two>identical cases against Pakistan Machine Tool Factory in respect of wages of employees Abdul Aziz Butt and Abdur Rashld Khan and 1565 others. The learned Commissioner for Payment of Wages Act dismissed the applications of the employees on the ground that their wages exceeded Rs. 3,000 per month while the Authority had jurisdiction only up to Rs. 3,000 per month, therefore, the applications were not maintainable. The employees went in appeal before Fourth Sindh Labour Court, Karachi . The learned Labour Court held that the Authority has rightly decided the point of jurisdiction. He, however, found that Rs. 89 per month originally paid to the workers should not have been deducted on the ground that Rs. 200 were instead being paid to the workers while revising their wages. He also held that the arrears of Rs. 89 could not be recovered as such recovery was illegal but the appeals of the workers were dismissed on the question of jurisdiction. 2. Against this order the employees have preferred this Revision Application before this Tribunal. 3. Mr. Ali Amjad for the employees has referred on this point toSindh Employees Special Allowance (Payment) Ordinance, 1986. He has argued that under section 6(b) in case of Shops and Establishment Ordinance or in any other case such as the present one the Authority for Payment of Wages has the jurisdiction even under the provisions of the sections 6, 16, 17, 18, 19, 22, 23 and 26 of the Payment of Wages Act and the Authority can apply these provisions with necessaiy modification for the purpose of recoveiy of even Special Allowance and Additional Special Allowance. 4. Mr. Ali Ahmad has accordingly argued that the Authority for Payment of Wages Act should not have thrown out the applications of the employees for recovery of the allowances in view of the modification allowed by section 6(b) of the Allowance Payment Act. 5. Mr. Iqbal Afridi for the Machine Tool Factoiy has on the other hand argued that although the Sindh Employees Special Allowance (Payment) Act authorises the Authority under the Payment of Wages Act to deal with cases of Special Allowance also apart from the salary or wages. It does not enhance the pecuniaiy jurisdiction of the Authority under Payment of Wages Act from the limit Rs. 3,000 per month. Under section 2(vi) Wages means all remunerations capable of being expressed in terms of money except House Rent, Electricity Charges, Water charges, Travelling Allowance or gratuity on discharge. Mr. AH Amjad has however pointed out .-.7" that Special Allowance is not to be treated as part of wages for the purpose of Payment of Wages Act. Where the payment of allowances has been withheld or delayed by an employer the employee can apply for recovery to the Authority regardless of wages paid to him under section 7 of the Special Allowance Act. Special Allowance does not form part of wages. The Special or Additional Special Allowance cannot therefore be added to the wages and because the sum total exceeds Rs. 3,000 be taken out from the jurisdiction of the Authority for Payment of Wages Act. Mr. Ali Amjad clearly states that his claim is in respect of allowances and not wages and there is no question of non-maintainability of his application before the Authority. 6. Under the circumstances the order of the Labour Court is set aside the case remanded to the, Authority under Payment of Wages Act for ^iiw entertaining the claim, and dispersing of the question of allowances, on merits. 7. Case remanded. (K.K.F.) Order accordingly.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 20 [Labour Appellate Tribunal Sindh] Present \ mushtak ali kazi, appellate tribunal GHULAM NABI-Appellant versus Messrs PROGRESSIVE LABORATORIES (PVT.) LTD., KARACHI Appeal No. KAR-156 of 1996, dismissed on 21 April, 1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Grievance petition-Employee in his grievance petition had claimed overtime wages for ten years and also had sought cancellation of order of his transfer from one place of working to another-Petition was dismissed by Labour Court holding that employee could not claim overtime wages after ten years and that no mala fides was involved in his transfer from one place of working to another, since it was a routine matter-Held: Findings of Labour Court, could not be interfered with. [P. 21] A MM. Jeelani, Advocate for Appellant. Date of hearing: 21.4.1996. decision This appeal is directed against the order of the 1st Sindh Labour Court, Karachi dismissing the grievance petition of the appellant claim ing overtime wages for 10 years, cancellation of the order of transfer from Karachi to Hyderabad and the employers taking forcible work from him as Chowkidar. 2. The appellant was working as Chowkidar from 1-8-1983 with the respondent Laboratories. It is the case of the appellant that he worked for 12 hours per day and he was also forced to work on Fridays and holidays. That he was not being paid any overtime wages for this forced extra work. By letter dated 18-2-1993 he_was transferred from Karachi to Hyderabad office. He did not join at Hyderabad but served the respondent-Company with the grievance notice claiming overtime wages and withdrawal of the transfer order from Karachi to Hyderabad . He remained absent from duty with effect from 22-2-1993. 3. The company maintained that it was the practice for the Chowkidar to work for 12 hours per day without claiming overtime Allowance. That as per the terms and conditions of service he was liable to be transferred to any office of the company. That he was not therefore entitled to the reliefs claimed by him. 4. Thus the appellant has not been terminated from service by the company but he has absented himself from service on account of transfer. The learned Labour Court found that overtime could not be claimed after 10 years. That there was nothing mala fide in the transfer order and it was a routine matter. That the appellant is still in service but he has absented himself because he was legally transferred. 5. I can see no reason to interfere with the findings of the Labour Court . This appeal is accordingly dismissed in limine. (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 24 [Punjab Labour Appellate Tribunal, Lahore ] Present : justice (R) mian ghulam ahmad, chairman EXECUTIVE ENGINEER, SARGODHA DRAINAGE DIVISION, COURT ROAD, SARGODHA-Appellant versus MUHAMMAD MUNIR and 3 others-Respondents Appeal No. SGA-501/93, Punjab dismiss on 14.5.1996. Service Matter- -Beldars-Termination of--Challenge to--Contention that- appointments were on ad hoc basis made against purely temporary posts and retention of incumbents of posts was dependant on budgetoiy sanction which was made on yearly basis-When no sanction for next year came, services of these employees automatically came to an end-Very fact that sanction was accorded and funds were provided from year to year indicated that appointments had been made against permanent vacancies and appointees could not be relieved of their duties arbitrarily and summarily in the manner it was done-They had to be served with show cause notices and charge-sheets and made to face regular enquiries, before their services could be dispensed with-Appeal dismissed. [P. 25] A & B Ch. Muhammad Idrees, Advocate for Appellant. Mr. Shaukat Hussain Baloch, Advocate for Respondents. Date of hearing: 14.5.1996. judgment By this judgement, I shall be disposing of Appeals No. SGA-501 and 502 of 1993, both having been preferred on 28.10.1993 by the Executive Engineer, Sargodha Drainage Division, Sargodha, respondents in the former appeal being Muhammad Munir, Muhammad Nawaz, Manzoor Hussain and Muhammad Ashraf, latter appeal having one Manzoor Ahmad as the sole respondent, facts and legal propositions involved are similar. 2. Muhammad Munir etc. were appointed as Beldars and Manzoor Ahmad was appointed as Mate in the year 1989-90. They were removed from service on 12th & 13th of August, 1992, by a verbal order conveyed to them on 13.8.1992. They challenged the orders of termination of their services, by filing grievance petitions, under section 25-A of the Industrial Relations Ordinance, 1969, in the Punjab Labour Court No. 5, Sargodha . 3. The appellant as respondent before the lower court took up the plea that the appointments were on ad hoc basis made against purely temporary posts and retention of incumbents of the posts was dependant on budgetary sanction which was made on yearly basis. When no sanction for the next year came, the services of these employees automatically came to an end. 4. The learned Labour Court is of the view that status of the respondents being workmen having not been disputed, they are entitled to protection of Labour Laws and they can enforce their rights by invoking jurisdiction of the Labour Court concerned, and the very fact that sanction was accorded and funds were provided from year to year indicated that the appointments had been made against permanent vacancies and the appointees could not be relieved of their duties arbitrarily and summarily in the manner it was done. They had to be served with show-cause notices and charge-sheets and made to face regular enquiries, before their sendees could be dispensed with. Legally there was no room for removal of these persons from their service by verbal orders and without observing the requirements laid down by law. The impugned orders of termination of services of the respondents were set aside by the learned court'below. I have given my careful consideration to the points raised in appeal, by both sides. Actually, conclusive determination of the issues involved is not required, reason being that the respondents have been taken back in service, and the appellant is no longer interested in the respondents'. removal from service. The appeals obviously have become infructuous and the learned counsel for the appellant has rightly exhibited lack of interest in prosecuting the appeals further. In view of this development, as also on merits, the appeals are liable to dismissal; and I would order accordingly. The impugned decisions rendered by the learned Labour Court are maintained. There shall be no order as to costs. (M.S.N.) Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 26 (AJK) [AJK Service Tribunal] Present: raja bashir ahmad khan, chairman and khawaja abdul hameed, member SYED NAZIR HUSSAIN NAQVI, SUB-INSPECTOR POLICE-Appellant versus I.G. POLICE MUZAFFARABAD and 2 others-Respondents Service Appeal No. 776 of 1994, decided on 24.9.1996. -v Police Efficiency and Discipline Rules, 1992 Rule 7 (l)(a)-Non-observance of Rule-Effect of-Appellant was not communicated statement of allegations and was not allowed to explain charge and all others relevant circumstances-Respondent failed to frame charge-sheet and communicate it to appellant alongwith statement of allegations etc.-Show cause notice was served on appellant on 8.5.1994 Punishment was awarded on 11.5.1994 without giving him a period of 14 days for putting his written defence as required under Rule 7 1 (b)- Accused was not allowed his statutory right of 14 days for his written statement-Held : Inquiry against appellant was not conducted in accordance with relevant rules and is, therefore, not sustainable in the eye of law-Appeal partly accepted. [P. 30] A Ch. Ibrahim Zia, Advocate for Appellant. Sardar Rafique Mahmood, Advocate for Respondent. Date of hearing: 18.9.1994 judgment Raja Bashir Ahmad Khan, Chairman.--This appeal is directed against order Book No. 338 dated 11.5.1994 passed by Senior Superintendent of Police, Muzaffarabad whereby the appellant was dismissed from service. 2. Briefly stated the facts are that the appellant was performing the duty of Sub-Inspector Traffic Police Muzaffarabad. The Azad Jammu and Kashmir Legislative Assembly was in session on 8.5.1994, Senior Superintendent of Police Muzaffarbad issued detailed instructions for maintaining law and order during the Session of the Assembly. These instructions were communicated to the concerned officials through letter No. SSP/8702-8/94 dated 5.5.1994. The'appellant was on his duty near the Assembly Hall on 8.5.1994 when Chand Mubarak Sub-Inspector Police passed a wireless message of respondent No. 1 to appellant. The appellant was directed by respondent No. 1 to check Police Mazda car which was being driven by a person without police uniform. The appellant informed the above mentioned Sub-Inspector that the Police officials on duty in the city had no wireless set, therefore, the message could not be passed to them. The appellant was directed by respondent No. 1 to check this vehicle by himself. On the orders of respondent No. 1 appellant immediately left for the city and found that the car was being driven by Ishtiaq Ahmed Head Constable Police. When the appellant informed respondent No. 1 that car was being used by the family of Senior Superintendent Police the appellant was directed to report in the office of respondent No.l at 11 A.M. The car was in the official use of Senior Superintendent Police Muzaffarabad. The appellant complied with the orders of respondent No. 1 and when he entered the office, respondent No. 1 used abusive language against the appellant in presence of DIG Range Muzaffarabad, DIG Headquarter, SSP Muzaffarabad and OSD Major Adalat Khan. The appellant when tried to know the reason of this offensive behaviour of respondent No. 1 he was ordered to get out from the office. The appellant took off his belt and cap and presented them to respondent No. 1 in view of the offensive treatment meted out to appellant. The show cause notice was communicated to the appellant on behalf of respondent No. 3 in late hours of the day on 8.5.1994. The appellant made written request to respondent No. 3 that he should not proceed with the inquiry as he was eye-witness of the occurrence. Respondent No. 3, despite this written application proceeded with the inquiiy and awarded punishment of dismissal from service. The appellant filed an appeal against this order before respondent No. 2 on 30.5.1994. The appeal was not decided within statutory period of ninety days, therefore, appellant filed this appeal before the Tribunal. The respondent No. 2 later on, rejected the appeal of the appellant through his order dated 25.9.1994. The appellant was allowed to incorporate his prayer against the order of rejection of appeal through order dated 25.3.1995 passed by the Tribunal. 3. We have heard the counsel for the parties and have very carefully gone through the record. 4. The counsel for appellant has submitted that respondents have not followed the inquiiy procedure laid down in the Police Efficiency and Discipline Rules, 1992 which has caused prejudice to appellant. The inquiry proceedings being violative of the relevant rules are illegal and the decision made on such illegal proceedings is nullity in the eye of law. The submission of counsel for appellant is to the effect that the punishment to an accused can be awarded by an officer shown in the heading of Schedule attached to these rules or by an officer of higher rank. The initiation of inquiiy against the appellant was ordered by Deputy Inspector General Police Muzaffarabad through order Book No. 43 dated 8.5.1994 and Senior Superintendent Police Muzaffarabad was directed to hold inquiry under Efficiency and Discipline Rules and report the matter immediately. The Senior Superintendent Police is also shown as an Authority in the Schedule but the cognizance of the matter was taken by Deputy Inspector General Police and, therefore, Senior Superintendent Police Muzaffarabad ceased to be an Authority in this case. As per order of the Deputy Inspector General, Senior Superintendent Police was required to complete the inquiry and submit his report to Deputy Inspector General Police for appropriate orders. The procedure adopted and punishment awarded to the appellant was against the spirit of the rules and required interference by this Tribunal. In reply to this contention of the counsel for respondents has argued that the appellant faited to submit his explanation to the competent authority and, therefore, estopped to take any plea of non-observance to rules relating to the inquiry procedure adopted by the Senior Superintendent of Police. 5. We have carefully scrutinize the record placed before us and have considered the respective contentions of the counsel for the parties. It appears from the record that DIG Range Muzaffarabad took the cognizance of the case and was of the view that the appellant was guilty of server misconduct and he should be proceeded under the Efficiency and Discipline Rules. In this perspective of the matter the DIG shall be deemed to assume the role of the-Authority and SSP is to be considered as having been appointed as an Inquiry Officer to conduct the inquiry against the appellant. When DIG who is next higher officer in rank to SSP has assumed the role of the Authority in this case he was supposed to follow the procedure as given in Rule 7 of the above mentioned Rules. Rule 7 of the Police Efficiency and Discipline Rules, 1992 is reproduced below :-- "7. Procedure of Departmental Inquiry : (1) where an inquiry officer is appointed the authority shall; (a) Frame a charge sheet and communicate it to the accused together with the statement of the llegations, explaining the charge and of any other elevant circumstances which are proposed to be taken into consideration. (b) Require the accused within 14 days from the day the harge has been communicated to him to put to a written defence and to state at the same time whether he desires to be heard in person. (2) The Inquiry officer shall inquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessaiy and the accused shall be entitled to cross-examine the witnesses against him. (3) The inquiiy Officer shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing where any adjournment is given : (a) It shall not be more than a week, and (b) The reasons therefor shall be reported forthwith to the authority. (4) Where the Inquiiy Officer is satisfied that the accused is hampering, or attempting to hamper the progress of the Inquiry, he shall administer a warning and if thereafater he is satisfied that the accused is acting in disregard of the warning, he shall record a finding to the effect and proceed to complete the departmental Inquiiy exporte. (5) If the accused absents himself from the Inquiiy on medical grounds he shall be deemed to have hampered or attempted to hamper the progress of the Inquiiy, unless medical leave, applied for by him is sanctioned on the recommendation of a Medial Officer nominated by the authority for the purpose : Provided that the authority may, in his discretions, sanction medical leave up to seven days without the recommendation of the Medical Officer. (6) The Inquiiy officer shall within 10 days of the conclusion of the proceedings or such longer period as may be allowed by the authority." The perusal of the various provisions of this Rule show that the authority is required to first, frame a charge sheet and communicate it to the accused together with the statement of allegations explaining the charge and any other relevant circumstances which are proposed to be taken into consideration and require the accused to submit his explanation within 14 days. On receipt of the findings of the Inquiiy Officer the authority shall determine whether the charge has been proved or not. In case the charge is proved the authority shall awarded one or more of major or minor punish ments. The inquiiy proceedings are to be conducted on day to day basis with out any adjournment except for reasons to be recorded. Where the accused hampers or is attempting to hamper the progress of the inquiiy the Inquiry Officer shall admonish the accused by giving him a warning and after record ing a finding to that effect would proceed with the inquiiy exparte. In this case the respondents No. 2 and 3 completely disregard the procedure laid down in the Rules, On receipt of the directions from the DIG, SSP Muzaffarabad issued show cause notice to the appellant in the following terms : The accused by his application dated 9.5.1994 requested the Inquiry Officer to abstain from holding the inquiry as he was a witness of tS occurrence and was notified as a person interested in result of the inquiry against the appellant. Senior Superintendent Police after recording the statements of a few witnesses inflicted on appellant the punishment of dismissal from service vide Order Book No. 338 dated 11.5.1994. The appellant was not charge-sheeted by the DIG. The appellant was not communicated the statement of allegations and was also not allowed to explain the charge and all other relevant circumstances. It is the requirement of the Rule 7(l)(a) that at the time of charge-sheeting an accused person the statement of allegations alongwith other relevant circumstances which are proposed to be taken into consideration must be communicated to the accused and require the accused to submit his written defence within 14 days. The respondent No. 2 failed to frame charge-sheet and communicate it to the appellant alongwith the statement of allegations etc. Contrary to the procedure which was supposed to be adopted by the DIG (Authority) the SSP served a show cause notice on the appellant on 8.5.1994 and after recording the statement of Major Adalat Khan OSD, Abdul Qayum Gillani DIG Headquarter, and Noor Din Head Constable on 10.5.1994, proceeded to inflict the punishment on appellant on 11.5.1994. The show cause notice was served on appellant on 8.5.1994. The punishment was awarded on 11.5.1994 without giving him a period of 14 days for putting his written defence as required under Rule ?U)(b). The accused was not allowed his statutoiy right of 14 days for his written defence. Any lapse on his pail to furnish his written defence in the circumstances cannot be considered as the weakness of the case of the^ appellant as contended by the counsel for respondents. There appears a lot of force in the argument of the counsel for appellant that the inquiry against the appellant was not conducted in accordance with the relevant rules and is, therefore, not sustainable in the eye of law. 7. In light of the above discussion we accept this appeal set aside the impugned order ar.d remand the case with the directions that fresh proceedings may be taken against the appellant in accordance with the rules. The order of the suspension of the appellant shall, however, remain in force unless it is revoked by a competent authority. The parties shall bear their respective costs. (K.K.F.) Appeal partly accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 31 [ Punjab Service Tribunal] Present : MUHAMMAD ASLAM, MEMBER II SHABBIR AHMAD CHUGHTAI EXECUTIVE ENGINEER LG-RD DEPTT.-Appellant versus SECRETARY GOVERNMENT OF THE PUNJAB , LG & RD DEPTT. LAHORE and 3 others-Respondents Appeal No. 484/95, accepted on 10.11.1996. Promotion-- -XEN Local Government-Recommendation by Provincial Selection Board for promotion-Chief Minister approved recommendation-In supersession of previous order Chief Minister approved promotion of a junior office as S.E. in relaxation of rules and procedure-Challenge to- Appellant was duly promoted by Provincial Selection Board under rules, which were approved by Chief Minister as competent authority and notified vide a notification-Promotion was made in prescribed manner by competent authorityNo case has been made out for infringement of any rule or for any irregularity in promotion of appellant-Held : Promotion is to be regular and made in accordance with prescribed rules and manners-Held further : Notification of promoting appellant as S.E. was withdrawn, is to be malafide and void ab initio and having no legal effect- Appeal accepted. [P. 48] A Mr. M.A Riaz, Advocate for Appellant. Syed Abbas Raza, DA, for Respondent Nos. 1 and 2. Malik Abdul Majeed, Advocate for Respondent No. 3. Ch. Ghulam Qadir, Advocate and Qazi Umer Farooq, Advocate for Respondent No. 4. Date of hearing: 6.6.1994. judgmentm The facts of the case are that the appellant joined service as Assistant Engineer, Rural Works Programme on 7.3.69. In the seniority list of Executive Engineers issued on 10.7.1988, he is at Sr. No. 1 while Raja Atta Ullah, (respondent No. 3) and Mian Muhammad Yousaf (respondent No. 4) are respectively at Sr. No. 3 and 6. A post of S.E. was created in the office of Director General LG&RD Deptt. in 1989. According to the Punjab Local Government & Rural Development Service Rules, 1981 notified on 5.12.1981 the post of Superintending Engineer (BS-19) is to be filled up as follows :-- "By promotion on the basis of selection on merit from among the Executive Engineers in functional unit having 12 years experience in the department, if none is available by selection then by transfer." 2. The case for filling up the post of S.E. was considered by Provincial Selection Board in its meeting held on 23.9.1989 and the appellant was recommended by the Board for promotion as S.E. The Chief Minister approved the recommendation of the Board on 21.1.1990. The approval of the promotion of the appellant was conveyed by SGA&I Deptt. to Secretary, LG&RD Deptt. (respondent No. 1) on 23.1.1990. Consequently, the notification of promotion of the appellant as Superintending Engineer w.e.f. 23.9.1989 was issued by respondent No. 1 on 3.2.1990. The said notification was also notified in the Punjab Gazette dated 7.2.1990. The appellant was at that time working as Executive Engineer, LG&RD Deptt. Faisalabad. Before he could join the post on promotion, the following directive dated 3.2.1990 from the Chief Minister was received by respondent No. 1 :-- "Minutes of the Provincial Selection Board regarding the promotion of Mr. Shabbir Ahmad Chughtai, XEN, Local Government alongwith others were approved by the Chief Minister and the same were returned to the department. It has been brought to the notice of the Chief Minister that Mr. Shabbir Ahmad Chugtai has been wrongly promoted as S.E. and as such his case may be separately submitted for the information/orders of the Chief Minister within two days. Meanwhile his notification regarding promotion to the next grade may please be with-held." 3. Consequently, another notification dated 3.2.1990 was issued by respondent No. } withdrawing the earlier notification bearing the same number and date. In pursuance of the above mentioned directive dated 3.2.1990, respondent No. 1 submitted a summary dated 7.2.1990 to the Chief Minister, through the Secretary, Services, SGA&I Deptt., incorporating his views regarding the promotion of the appellant that the said promotion was based on the decision taken by the Provincial Selection Board. Secretary Services recorded his note dated 8.2.1990 on the summary and inter alia stated that the recommendations of the Board in favour of the appellant were based on merits of the case and in accordance with the criteria prescribed under the relevant rules. On this summary, the following orders of the Chief Minister were recorded on 19.2.1990 :-- "Chief Minister has seen and observed that since the aggrieved party has filed a writ petition in the Lahore High Court, we may await the final verdict of the court." 4. The position about the writ petition filed in the Lahore High Court by the parties is summed up as follows :-- (i) Writ Petition No. 708/90 was filed by respondent No. 3 requesting for declaring the promotion of the appellant as unlawful. This petition was disposed of on 23.4.1994 as having become infructuous in view of the cancellation of the order of promotion of the appellant. (ii) Writ Petition No. 5367/90 was filed by the appellant against the withdrawal of the notification of his promotion. This petition was disposed of on 26.4.1994 on the ground that it was hit by Article 212 of the Constitution. (iii) Writ Petition No. 7235/90 for quo-warranto was filed by one, Muhammad Akram against the appellant. This was dismissed in limine on 26.4.1994. Meanwhile respondent No. 3 was ordered to lookafter the work of the post of S.E. in addition to his own duties, under order dated 21.8.1993. After the disposal of petition a direction was issued by the Chief Secretary to respondent No. 1 on 31.5.1994 that the appellant should be promoted as Superintending Engineer in pursuance of the approval of the recommendation of the Provincial Selection Board by the competent authority conveyed on 23.1.1990. It was stated in this direction that the litigation against the appellant had come to an end and the said promotion was in order. A compliance report was also asked to be submitted to the Chief Secretary. These orders were not complied with. On the other hand, the following directives were issued by the Chief Minister on the dates shown against each :-- 16.7.1993 "In supersession of previous orders, Chief Minister has been pleased to approve the promotion of Mian Muhammad Yousaf, Executive Engineer, LG&RD, Lahore Division as S.E. and his posting as S.E., at Lahore in relaxation of rules/procedure. 2. Further necessary action may kindly be taken accordingly." 18.5.1994 "Chief Minister has been pleased to approve the revalidation of directive bearing No. US (Dev) CMS-OT-176/93-123779 dated 16.7.1993 issued in favour of Mian Muhammad Yousaf, Executive Engineer, LGQRD Deptt. on the subject (copy enclosed). 2. Further necessary action may kindly be taken accordingly." 28.7.1994 "Chief Minister has been pleased to approve the implementation of this Secretariat's order No. US (Dev)CMS-OT-176/93-123779, dated 16.7.1993 and the revalidation orders No. SO-II-CMS-OT-176/94-6462-33207 dated 18.5.1994. 2. He has desired that Mian Muhammad Yousaf, XEN LG&RD, Rawalpindi be posted as S.E. LG&RD with immediate effect and a report may he sent to this office within seven days. CM. has rejected the current charge of Raja Atta Ullah. 3. These orders are with reference to orders of the Lahore High Court, Lahore dated 26.4.1994. 4. Further necessary action may kindly be taken accordingly." 26.3.1995. "Chief Minister has seen and has desired that Chief Minister's earlier directive No. US (V)CMS-OT-281/94-3429- 39972 dated 29.7.1994 regarding promotion/posting of Mian Muhammad Yousaf as S.E. may be implemented." 5. It would be seen that the directive referred to above are for posting/promoting of Mian Muhammad Yousaf (respondent No. 4). It would be pertinent to point out that by the directive dated 28.7.1996, the Chief Minister had rejected the proposal for current charge appointment of Raja Atta Ullah (respondent No. 3.) ; 6. Subsequently, all the parties, the appellant, respondent Nos. 3 & 4 filed writ petitions before the learned Lahore High Court. Finally, in Writ Petition No. 14683/94, the learned Lahore High Court disposed of Writ Petitions No. 9527/94, 7517/94 and 6865/94 by a common order dated 9.3.1995, with the following order :-- "Accordingly, all these petitions are disposed of in the terms that the Secretary, LG&RD Deptt. is directed to examine the matter so as to determine as to whether or not any person stands appointed against the post in question and if so, whether that appointment has been given effect to. If the Secretary comes to the conclusion that the post still remains vacancy it shall be open to the competent authority to make a fresh appointment." 7. Consequently, a summary was submitted on 21.3.1995 by respondent No. 1 for information of the Chief Minister, on which the Chief Minister conveyed the directive dated 26.3.1995, to implement the earlier directive dated 28.7.1994 for the promotion/posting of respondent No. 4 as S.E. 8. Meanwhile, another summary was submitted through the Chief Secretary on 15.4.1995 on which the following order was passed by the Chief Minister on 14.5.1995 :-- "I have studied this matter in detail. Arguments can be advanced on either side as noticeable lacunae exist. However, I would be prone to reiterate my orders as at Annex-A." 9. The order dated 18.5.1995 was ultimately issued by respondent No. 1 whereby respondent No. 4 Executive Engineer (BS-18) Rawalpindi Division was transferred and posted as S.E. LG&RD, Deptt. in his own pay and scale/rank relieving respondent No. 3 of the additional charge. The instant appeal has been filed against the above mentioned order of the Chief Minister dated 14.5.1995 and the order dated 18.5.1995 passed by LG&RD Deptt. (respondent No. 11) with the prayer that the order of the Chief Minister dated 23.1.1990 approving the promotion of the appellant as Superintending Engineer and notification dated 3.2.1992 issued by respondent No. 1 promoting the appellant as S.E. (BS-19) in LG&RD Deptt. w.e.f. 23.9.1989 may be restored. 10. It would be pertinent to state here that Mian Muhammad Yousaf (respondent No. 4) also filed an Appeal No. 247/95 before this Tribunal in which he sought the implementation of the orders dated 16.7.1993, 18.5.1994, 28.7.1994 and 26.3.1995 (reproduced in para 4) whereby the Chief Minister contentedly approved the promotion of Mian Muhammad Yousaf as S.E. by relaxing rules relating to appointment and conditions of service. It may be stated that Mian Muhammad Yousaf did not implead Mr. Shabbir Ahmad Chughtai or Raja Atta Ullah (the appellant and respondent No. 3 respectively, in the instant appeal). Another Appeal No. 486/95 was filed before this Tribunal by Raja Atta Ullah on 18.6.1995, in which he impleaded Mian Muhammad Yousaf and Shabbir Ahmad Chughtai. Raja Atta Ullah in the said appeal prayed that he might be ordered to be posted as S.E. pending a decision by the Provincial Selection Board. The instant appeal was also filed on 18.6.1995. The learned Chairman decided Appeal No. 247/95 of Mian Muhammad Yousaf on 28.6.1995, during the pendency of the two other aforementioned appeals filed by Shabbir Ahmad Chughtai and Raja Atta Ullah which were entrusted to me as a Bench by the learned Chairman on 22.6.1995. Raja Atta Ullah requested for withdrawal of his Appeal No. 486/95; the same was, however, dismissed for non prosecution on 21.3.1996. The instant appeal was still pending when the learned Chairman allowed the Appeal No. 247/95 filed by Mian Muhammad Yousaf with the observation that the appellant in the said appeal (Mian Muhammad Yousaf) was seeking only implementation of an order (directives of the Chief Minister) and the relief sought was of executory nature without much going into the substantial question of vires of those directives. The learned Chairman accordingly dismissed the application of Raja Atta Ullah in which he had asserted his seniority as Executive Engineer. The legal status of the directives was not determined and the question of seniority of the parties involved was also not considered. The appeal before this Tribunal filed by the appellant against Mian Muhammad Yousaf, on the other hand, were independently entertained and admitted for determining the important questions of the status and fires of the directives of the Chief Minister and seniority as well as promotion to the post of S.E. Dealing with the prayer of Mian Muhammad Yousaf for implementation of the directives of the Chief Minister, the learned Chairman concluded his order with the following observations :-- "Now coming to the main appeal, the respondent Secretary admitted that the appellant was promoted in his own pay . and scale. It was held in PLD 1986 SC 349 that when promotion is made to a higher post, the incumbent has to be paid emoluments attaching to it for, it was thought to be unjust to get work of a higher post done without paying salary etc. fixed for it. That is why the expression "own pay and scale" was regarded at pp. 146-147 Punjab Esta Code as having no meaning or to be without any legal basis and indeed inconsequential. The appellant shall therefore, be paid the pay and scale of BS-19 with effect from 16.7.1993 when he was so promoted. A formal notification to that effect may be issued. The appeal is allowed to the extent that the appellant after having been promoted to BS-19 is entitled to pay and scale prescribed for the post of S.E. A formal notification shall be issued by the respondent Secretary to that effect." 11. Feeling aggrieved by the said order date 28.6.1995 Raja Atta Ullah and Shabbir Ahmad Chughtai both filed C.P. No. 828-L/95 and 865- L/95 before the learned Supreme Court and the leave to appeal has been granted. However, the learned Supreme Court by order dated 19.7.1995 suspended the operation of the finding/observation made by the learned Chairman in his order dated 28.6.1995 to the effect "the appellant after having been promoted to BS-19". Mian Muhammad Yousaf was relieved of the charge of the post of Superintending Engineer on 12.10.1995 and Mr. Aslam Ali Sabzwari, XEN, Public Health Engineering Department from out side the department was posted as S.E. 12. That main contentions of the appellant are as follows :-- (i) The appellant was duly promoted as S.E. (BS-19) w.e.f. 23.9.1989 by the competent authority and in the prescribed manner, the said order of promotion having been effectively made could not be reviewed or revised except on the ground of nullity, and since no such ground exists in the instant case, the order of promotion could not be withdrawn. (ii) No notice was served on the appellant nor he was heard before the impugned orders were issued. (iii) The order of promotion of the appellant was well considered and made in accordance with the rules. As against this, the subsequent order dated 14.5.1995, passed in isolation, cannot over-ride the original order dated 23.1.1990. (iv) The appellant was promoted on the basis of recommendations of the Provincial Selection Board as per provisions of the rules whereas the case of respondent No. 4 was not considered by the Board. (v) The Chief Minister is the appointing authority and can no doubt also relax the rules in accordance with the provisions of law, but in the instant case, the relaxation of rules, if any allowed in favour of respondent No. 4, cannot be legally sustained as the exercise of the power of relaxation is arbitrary and to the detriment of the appellant as neither any special reasons had been recorded in favour of respondent No. 4 nor any hardship is stated to have been removed. (vi) That respondent No. 4 cannot be treated to have been promoted on out-of-turn basis either, as the requirement of law and rules had not been fulfilled for the purpose. (vii) That provisions of relevant law and rules have been disregarded only to promote the individual interests of respondent No. 4 as is indicated by the repeated issuance of directives in his favour, rather than in public interest. This is violative of the law laid down by the superior courts. 13. Respondent No. 3 made the following main points :-- (i) The promotion of the appellant even as XEN in 1977 is illegal on the ground that he holds the qualifications of B.Sc. (Town Planning) which is not an engineering qualification and therefore he could not be registered with the Pakistan Engineering Council and as such he is ineligible to hold the post of an engineer and of XEN. In view of this, he is also not eligible to hold the post of S.E. (ii) The post of S.E. is lying vacant since 1989 and only stopgap arrangements were made till the department prepared a working paper recommending respondent No. 3 to be promoted as he was also the senior most eligible XEN and further that no departmental inquiry was pending against him. (iii) The appellant was proposed to be ignored for the reason of lack of qualifications as mentioned above as also because a departmental inquiry was pending against him. (iv) That Writ Petition No. 5367/90 filed by the appellant was dismissed as not maintainable, whereafter the appellant did not take any further measures to challenge the decision so that it attained finality. Writ Petition No. 7235/90 filed against the appellant was disposed of on technical ground of laches whereas the question of non-registration of the appellant with the Pakistan Engineering Council had been raised in the said writ petition. (v) Respondent No. 3 being the senior most eligible XEN and having been posted as S.E. to look after the work of the said post vide order dated 21.8.1993 deserves to be promoted as such. 14. Respondent No. 4 raised the following main objections :-- (i) That the order dated 14.5.1995 passed by the Chief Minister, being the final order was challenged on 18.6.1995 i.e. 3 days after the prescribed limit had expired. Further the order dated 18.5.1995 passed by respondent No. 1 should have been appealed against before the higher authority i.e. Chief Secretary or Governor and since no such appeal was made, the instant appeal is not competent. (ii) The learned Lahore High Court vide judgement dated 9.3.1995 directed respondent No. 1 to examine the matter so as to determine as to whether or not any person stood appointed as S.E. This shows that the post was vacant and nobody including the appellant had been appointed thereto. (iii) The appellant's promotion as XEN in 1977 was not in accordance with the law and he was not an engineer registered with the Pakistan Engineering Council under the Pakistan Engineering Council Act, 1976 as he was B.Sc. (Town Planning) and therefore not eligible to hold any post of engineer under the Govt. or local body. Since the first appointment was void ab initio, further promotion as S.E. would also be void. (iv) The post of S.E. is to be filled by promotion on the basis of selection on merit, and the appellant therefore cannot claim it as a promotion post. (v) Provincial Selection Board merely recommended the selection of the appellant and this fact alone does not confer any right of promotion. (vi) The notification dated 3.2.1990 promoting the appellant as S.E. did not attain finality for any purpose as the same had not been implemented as the appellant did not take the charge of the post nor he worked on the said post. (vii) The Chief Minister being the executive head was competent to pass any order considered appropriate and the orders dated 14.5.1995 passed by him are quite clear, being orders passed by the competent authority. (viii)The post of S.E. being a selection post, it was open to the Chief Minister as competent authority to consider any XEN of the functional unit suitable for the post. (ix) The orders dated 3.2.1990 whereby the appellant was promoted, were withdrawn as the appellant did not possess the qualifications of an engineer and as such respondent No. 1 was competent to recall the decision. On the other hand, the orders dated 14.5.1995 passed by the Chief Minister in favour of respondent No. 4 were competent orders which could only be enforced by respondent No. 1. (x) The Chief Minister is the appointing authority and is also competent to relax the rules, which he has done and the impugned order is legal for all purpose. 15. In the written objections filed by respondents No. 1 and 2, it is stated that :- (i) Respondent No. 3 obtained orders dated 3.2.1990 from the Chief Minister, directing the withholding of the notification of promotion of the appellant which had been earlier approved by the Chief Minister. However, the copy of the said order of the Chief Minister for respondent No. 1 was received on 3.2.1990 and issued on the same date. The order of promotion and withdrawal of the same were both issued on 3.2.1990. Respondent Nos. 1 and 2 have obviously confused the two orders mentioned as Annexure 'C' instead of Annex-G in paras 6 and 8 of their written objections. It was clarified during the course of the arguments that the annexures mentioned in the said paragraphs are actually annex-G meaning thereby that respondents No. 1 and 2 contended that the order of withdrawal of the notification of appointment of the appellant was received on 3.2.1990 and issued the same day. (iii) It is admitted that no personal hearing was given to the appellant while with-holding the order dated 23.1.1990 of the Chief Minister by which the appellant was approved for promotion as S.E. (iv) It is admitted that the order dated 23.1.1990 conveying the promotion of the appellant was passed by the competent authority in accordance with the rules. 16. The learned counsel for respondents No. 3 and 4 raised the objections of maintainability of appeal on the ground of resjudicata and subjudice. The objection of resjudicata is based upon this Tribunal's judgement dated 28.6.1995 rendered by the learned Chairman in Appeal No. 247/95 whereby Mian Muhammad Yousaf s appeal had been accepted. In reply, the learned counsel for the appellant raised the following contentions to show that the instant appeal is not hit by resjudicata :-- (i) In his aforesaid Appeal No. 247/95, Mian Muhammad Yousaf had not impleaded the present appellant (Mr. Shabbir Ahmad Chughtai) on respondent No. 3 (Raja Atta Ullah) as respondents. Therefore, the aforesaid judgement dated 28.6.1995 was not binding on the appellant. Reliance was placed on 1996 SCMR 1145. (ii) As explained above, matters directly and substantially in issue in this appeal are quite different from those which were directly and substantially in issue in Mian Muhammad Yousafs Appeal No. 247/95. The issues involved in the instant appeal are (a) the propriety of ignoring the approval of Provincial Selection Board especially after accepting the same (b) whether the regular promotion after it had been approved, ordered and notified by the competent authority could be withdrawn and (c) the scope and the effect of the directives of the Chief Minister on the promotion of the appellant. On the other hand, the issue in the aforementioned Appeal No. 247/95 was whether Mian Muhammad Yousaf, an XEN in BS-18, could be ordered to lookafter the work of the past of S.E. (BS-19) in his own pay and scale. The learned Chairman deciding the aforementioned appeal No. 247/95 relied on judgement PLC 1986 SC 349. The appellant in the said case, Mr. Imdad Ali Khan represented against his prolonged ad hoc appointment in grade-17 and on the promotion post in his own grade-17. He claimed the following two reliefs : (a) "Emoluments of the grade 18 post of DFO (with increments) so long as he performed the said duties and held the post" and (h) "regular promotion to the aforesaid post."It was explained whereas his first claim of payment of emoluments with increments of the same po,st was accepted by the Hon'ble Supreme Court, the second claim of regular promotion against the same post and for the same period was rejected on the ground that the said claim of regular promotion could not be proved to be in accordance with the recruitment rules applicable to him. It was observed as under : -- "The transfer order on which the appellant civil servant relies is not in fact a promotion order though in substance it may be. It is not in accordance with the law prescribed for such promotion. It is not against the reserved post. It is only a transfer order in his own grade but to a post which was in grade-18 i.e. the higher grade. Without observing the law the appellant civil servant could not claim regularization from the Service Tribunal of such a transfer/promotion." The appellant, in the said case was however, declared entitled to the scale and pay of the post. As pointed out by the learned counsel for the appellant, a distinction between the instant appeal and the aforementioned Appeal No. 247/95 has in fact been drawn by the learned Chairman himself as is also clear from the excerpt quoted from the said judgement in para 10 above. Accordingly, I do not find any force in the plea of res judicata taken by the learned counsels for respondent Nos. 3 and 4. 17. Since the aforementioned pending appeals before the honourable Supreme Court arose out of the judgement dated 28.6.1995 in Appeal No. 247/95, their scope remains the same and as such the pendency of those appeals in a different matter does not bar the appellant's instant appeal for regular promotion. 18. Both respondents No. 3 and 4 have challenged the appellant's eligibility for appointment as Executive Engineer in 1977 as well as his promotion as S.E. on the ground that he was not registered as a professional engineer with the Pakistan Engineer Council (Reliance has been placed on PLJ 1992 Karachi Page-I). In this connection, the learned couhsel for the appellant had drawn attention to the minutes of the meeting of the Provincial Selection Board held on 23.9.1989 whereunder the Board considered this very question in the light of similar objections raised by the Pakistan Engineering Council itself and it was resolved that Punjab LG&RD Service Rules, 1981 did not prescribe any particular academic qualifications for the post S.E. in the LG&RD Department and that under the said rules selection is to be made from amongst the Executive Engineers having 12 years service in the Department. The learned counsel in this connection also relied on the latest judgement of the learned Supreme Court reported as 1996 PLC (CS) 44 whereunder the following principle was laid down in connection with the powers of the Engineering Council and those of the government departments in matters of framing rules, regulating promotions of civil servants and employees of semi Govt. bodies :-- "In this regard we may point out that it is the domain of the Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one grade to another higher grade and whereas it is in the domain of the Pakistan Engineering Council to decide, as to whether a particular academic qualification can be equated with another academic qualification, but it has no power to say that the civil servants/employees holding particular academic qualifications cannot be promoted from a particular grade to a higher grade. The main object of the Act as pointed out by one of us (Ajmal Mian, J.) and Saiduzzaman Siddiqui, CJ) (as he then was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualifications or the working of the engineers department." "A perusal of the above quoted section shows that the Pakistan Engineering Council is vested with the functions to regulate the persons qualified to practice as professional engineers and consulting engineers and not persons who are employed in the Government or semi-Ggvernment Organizations." 19. In the light of the above, the question regarding eligibility of the appellant for appointment as Executive Engineer in 1977 and promotion as S.E. under the rules stands finally resolved, and no exception can be taken to his eligibility for appointment to the said post on account of his non registration with the Pakistan Engineering Council. It is also settled that the appellant is the senior most eligible Executive Engineer. It was also pointed out in the working paper put up to the Provincial Selection Board, that at one stage the appellant was not recommended for promotion on account of a pending inquiry. However, the latest position was duly considered by the Board and it was observed that the appellant had been dropped. 20. Respondent No. 4 also relied on the judgement dated 9.3.1995 wherein the learned Lahore High Court directed respondent No. 1 to determine whether the post of S.E. is vacant or not. He argues that the post was held to be vacant and as such the appellant could not claim to have been promoted as S.E. on the basis of the recommendations of the Provincial Selection Board approval to which was given by the Chief Minister on 21.1.1990. In this connection a perusal of the said order of the learned Lahore High Court reproduced in para-7 shows that the question of any person having been appointed to the post was to be determined by respondent No. 1 and he was to make a fresh appointment only after determining the question whether any person stood appointed to the post of S.E. or not and whether the said post was vacant or not. These questions, as we shall see, were to be determined in the light of the rules. Respondent No. 4 has also raised the plea that the appellant cannot claim promotion as a matter of right as the post of S.E. is a selection post. The Board merely recommended the appellant and this fact alone does not confer any right as the competent authority to make promotion is the Chief Minister who passed the order dated 14.5.1995 in favour of respondent No. 4 whereas the appellant never held the post of S.E. even as a result of Chief Minister's approval of his promotion as the orders were withdrawn by the Chief Minister who was competent to do so, and further that the Chief Minister being the appointing authority is also competent to relax the rules which he did by passing the order on 14.5.1995 resulting in the issue of the order dated 18.5.1995 posting respondent No. 4 as S.E. in his own pay and scale/rank with immediate effect relieving respondent No. 3 of the additional charge. It now remains to be seen whether the said orders of the Chief Minister could be interpreted to affect the order dated 21.1.1990 passed by him earlier approving the promotion of the appellant and the notification dated 3.2.1990 promoting the appellant as S.E. from 23.9.1989. 21. The admitted position is that the appellant is the senior most Executive Engineer and as we have seen above, he is also eligible for promotion/selection, that the Provincial Selection Board, as the competent selection authority prescribed under the rules recommended him for promotion as S.E. w.e.f. 23.9.1989, and the Chief Minister as the authority competent to make appointment to the post of S.E. (BS-19) approved the recommendations of the Board on 21.1.1990 and the notification dated 3.2.1990 for giving effect to the order of the competent authority was issued. The appellant was at that time working as Executive Engineer at Faisalabad. Before he could join his assignment on promotion, another notification was issued bearing the same date as the original notification of his promotion i.e. 3.2.1990 (Annex-G) withdrawing the earlier notification. Original record was summoned and perused to see how the notification was issued withholding the promotion of the appellant. Copy of the directive issued from the Chief Minister's Secretariat (placed at Annex-C page-28) is the true copy of the original available in the file of respondent No. 1. This directive bears 4 stamps of the offices of the Chief Minister's Secretariat and those of the respondent No. 1 bearing dates of 7.2.1990, 4.2.1990 and 6.2.1990. The directive is addressed to Secretary (Services) SGA&I Deptt. with copy to Secretary LG&RD Deptt. (respondent No. 1). The file from the office of Secretary (Services) was called and perused. The directive was never received in the said office. This is also borne out by the fact that both the original as well as the copy of the directive were signed by the Secretary LG&RD Department (respondent No. 1). The file was marked down to the Section Officer on 7.2.1990. In the light of this, the impugned notification dated 3.2.1990 could not have been issued on 3.2.1990 when the directive itself was received by the Section Officer (LG) at least five days later. It also shows that the date of issue of the directive has been wrongly shown as 3.2.1990 only to make it look as if it was issued on the same date when the original notification of promoting the appellant was issued, although the directive is shown to have been despatched by the office of Chief Minister's Secretariat not earlier than 4.2.1990. Thus, it could not have been issued on 3.2.1996. This means that the notification dated 3.2.1990 promoting the appellant remained in the field at least for five days when it was withdrawn deliberately by ante-dating the notification of withdrawal. Further, the Provincial Selection Board and its Chairman i.e. the Chief Secretary never received the directive of the Chief Minister for withdrawal of the notification of promotion. The withdrawal thus seems to have been engineered in haste and bypassing the normal channel for dealing with the cases of promotion to posts in BS-19 i.e. the SGA&I Deptt. Respondent No. 1 has clearly admitted in the written objections that respondent No. 3 obtained the impugned directive from the Chief Minister directing the withholding of the notification of promotion of the appellant. This has not been denied by respondent No. 3. The contention of the learned counsel for the appellant that the notification of withdrawal is mala fide is therefore not contradicted. The directive of the Chief Minister dated 3.2.1990 for withdrawing the notification of promotion of the appellant could not be legally implemented for the reason that the promotion had already been notified. Consequently, it was only logical for the responding department to proceed in accordance with the rules pointing out to the Chief Minister the impracticability of withholding the notification. Since the Chief Minister had observed that according to his information the appellant had been wrongly promoted, the only course available to the department was to go into the details of the processing of the case of promotion of the appellant, and in case the promotion was found to have been wrongly made, the specific irregularity or wrong committed should have been identified. Coming to the particular directives issued by the Chief Minister from time to time in favour of respondent No. 4, reproduced in para-5, it would be pertinent to point out that by the last order dated 14.5.1995 recorded on the summary submitted to him by the Chief Secretary Punjab, Chief Minister observed as under :-- "I have studied this matter in detail. Arguments can be advanced on either side as noticeable lacunae exist. However, I would be prone to reiterate my orders as at Annex-A." 22. The above orders of the Chief Minister were passed on the summary submitted to him after the Lahore High Court dispersed of-the various petitions by common order dated 9.3.1995 reproduced in para-7. It was also pointed out in the summary that the Chief Minister had desired to wait for the final verdict of the Court. Thus, the final order dated 14.5.1995 recorded by the Chief Minister on this case, referred to above, is to be seen in the light of his own orders for awaiting the decision of the Lahore High Court. According to that decision, as stated above, the entire question whether the post of S.E. was filled or not was to be examined by respondent No. 1. It was after such examination that a summary was submitted to the Chief Minister reiterating the earlier recommendations of the Provincial Selection Board and recommending the promotion of the appellant as S.E., but the Chief Minister passed the order dated 14.5.1996 as noted above, as a consequence of which the order dated 18.5.1995 was issued posting respondent No. 4 as S.E. in his own pay and grade. The post of S.E. was therefore not filled in the prescribed manner. 23. Although the Chief Minister in his order dated 14.5.1995 recorded on the summary himself indicated that the arguments could be advanced on either side, he reiterated his earlier orders whereby respondent No. 4 was to be promoted in relaxation of procedure and posted as S.E. The learned counsel for the appellant has argued that the directive of the Chief Minister for posting of respondent No. 4 as S.E. was implemented by respondent No. 1. However, no orders were passed by respondent No. 1 for regular promotion of respondent No. 4 as the directive could .not have been interpreted to mean regular promotion. The learned counsel for the appellant has also argued that the order dated 23.1.1990 passed by the Chief Minister was well considered and made in the prescribed manner whereas the impugned order dated 28.7.1994 in respect of respondent No. 4 was not passed in the prescribed manner. The notification dated 3.2.1990 withdrawing the promotion notification of the appellant is bad in law as it did not disclose any reasons and was passed without notice to the appellant. The said impugned notification is also of a political nature as it was obtained in disregard of the channel of communication and through fabrication of record. The appellant learned counsel relied on 1995 SCMR 650 to argue that the recommendations of the selection authority could not be rejected without giving any reasons and that the discretion cannot be exercised by an authority in an arbitrary manner and without regard to the recommenda tions of the selection authority. The main contention of respondent No. 4 is that the Chief Minister being competent authority can relax the rules. As stated above, the directives of the Chief Minister were not based on any recommendations by any departmental authority let alone the prescribed selection authority i.e. the Provincial Selection Board. In fact summaries free submitted again and again to the Chief Minister suggesting that the recommendations of the Provincial Selection Board already approved by the Chief Minister and also acted upon should be allowed to be carried through. None of the agencies concerned with the processing of the case for filling up the post of S.E. made recommendations in favour of respondent No. 4 whereas no such recommendations were made before the directives of the Chief Minister posting respondent No. 4 as S.E. were issued or got issued. There is no doubt about the power vesting in the Chief Minister for relaxing the rules. This power, however, is subject to the condition that relaxation can be given only to remove a hardship and only up to the extent of removing such hardship, and above all without taking away the right of other civil servants guaranteed under the law and rules. It is a matter of record that the case of respondents No. 3 and 4 was not examined from this angle nor any of the directives of the Chief Minister sought to remove any hardship. On the other hand, the record shows that the directives issued by the Chief Minister in favour of respondent No. 4 were implemented in disregard of prescribed procedure and the rules. The learned Supreme Court' had elaborated the points relating to the power of appointing authorities, the role of selection authorities and the appointments made on the recommendations of the selection authorities and those made independent of such recommendations. The learned Supreme Court in its judgement in Walayat Ali Meer's case reported as 1995 SCMR 650 elaborated the principles which are fully applicable to the instant case. In that case also, the appellant before the Supreme Court, though recommended by the relevant Selection Board was not promoted by the competent authority and the Federal Service Tribunal dismissed his appeal on the ground that although the appellant was recommended by the Selection Board yet it was not approved by the competent authority. The learned Supreme Court observed as under :-- "The contention that no employees has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion any breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority the aggrieved person would be entitled to challenge it." "Therefore, in the light of the above observation, the regulation providing for recommendation of the Promotion Board for promotion should have been taken into consideration which cannot be brushed aside lightly without due reason. Respondent No. 2 was inducted irregularly, the charge held by the appellant and respondent No. 2 was interchanged even after the induction of respondent No. 2 the promotion Board for the second time recommended the appellant for promotion, respondent No. 2 was never recommended for promotion, and yet he was absorbed in Group-DC, against a permanent vacancy. These facts go a long way to point out the illegalities, irregularities and breach of regulation without any just and reasonable ground leading to the conclusion that the impugned orr of respondent No. 1 was arbitrary, unfair and devoid of good aith The same judgement further lays down the following principle of law with regard to the exercise of discretion :--"The discretion is not to be exercised on whims, caprice and moods of the authorities. It is now well settled that exercise of discretion is circumscribed by principles of justice and fairness. The authority exercising discretion should take into consideration and advance the aim and object of the enactment, rule or regulation under which it is authorised to act. It should not act in complete negation of the object of such law, rule, regulation or established policy otherwise it will not be fair, reasonable and just exercise of power. The precondition imposed for exercise of discretion should be honored and respected unless for valid reasons they have to be discarded." 24. The principles laid down in the above quoted excerpt adequately take care of the contentions of respondents No. 3 & 4 that the Chief Minister being the executive authority could over-rule the recommendations of the Board. In the case cited above, the recommendations of the Board were not accepted by the competent authority, whereas in the instant case the appellant had been duly promoted for which notification had also been issued on the recommendations of the Selection Board which were duly approved by the competent authority. As such the case of the appellant is even on stronger footing and the promotion already ordered was withdrawn in total disregard of the rules and without information and knowledge of the appellant. 25. The learned counsel for the appellant has pointed out that the posting of Mr. M. Aslam Sabzwari as S.E. against this post is violative of the provisions of the Recruitment Rules reproduced in para-1, according to which the post of S.E. is to be filled from among the persons in the relevant Functional Unit and the method of appointment by transfer is required to be resorted to only when a person fulfilling the requisite conditions of appointment is not available within the functional unit. In the instant case, there was neither any occasion nor any action was taken resorting to the method of appointment by transfer as persons in- the functional unit to which the appellant as well as respondents No. 3 & 4 belong were available, and the appellant had already been selected and promoted in accordance with the rules. Further, even in the event of non-availability of a suitable person within the Functional Unit, the method of appointment by transfer as prescribed in rule 9 of the Punjab Civil Servant (Appointment and Terms of Conditions of the Services) Rules, 1974 is to be followed for which neither there was any occasion nor in fact it was done. The ratio of judgement in the case reported as 1995 SCMR 1053 is fully applicable to the instant case; an extract from the said judgement of the Hon'ble Supreme Court is reproduced below : "The notification quite clearly lays down that the post of Director General in the first instance is to be filled by promotion and resort to other methods of recruitment namely the direct appointment and induction of an outsider by transfer can only be made if no officer in the department is eligible and qualified for promotion. It is not the case of petitioner that the respondent was not eligible for promotion to the post of Director General. That being so, was not open to the Government to induct any officer from outside by means of transfer without first considering the respondent for promotion to the post in question which admittedly was not done." The filling up of the post by posting of an officer from outside the functional unit of the LG&RD Deptt. is therefore, violative of the law and rules and has resulted in the infringement of the service rights of the appellant who was not only eligible but was also duly promoted as S.E. under the rules. 26. The upshot of the above discussion is that the appellant, being eligible under the relevant rules was duly promoted as S.E. LG&RD Deptt. (BS-19) w.e.f. 23.9.1989 on the basis of the recommendations of the Provincial Selection Board, the competent selecting authority under the rules, made in its meeting held on 23.9.1989 which were approved by the Chief Minister as competent authority on 21.1.1990 and conveyed through the U.O. dated 23.1.1990 to the respondent No. 1, and notified vide notification dated 3.2.90. The said promotion was admitted by respondent No. 1 to have been made in the prescribed manner by the competent authority. No case had been made out for infringement of any rule or for any irregularity in the aforesaid promotion of the appellant. Resultantly, the said promotion is held to be regular and made in accordance with the prescribed rules and manner. The impugned notification purporting to have been issued on 3.2.1990 (Annex-G page-33), by which the earlier notification of the same date promoting the appellant as S.E. was withdrawn, is held to be illegal mala fide and void ab initio and having no legal effect. The appellant has been unlawfully prevented from entering upon the office of S.E. on promotion, without his fault. Accordingly, the appeal is allowed and the appellant is declared entitled to all back benefits including pay and allowances attached with the post of S.E. LG&RD (BS-19) w.e.f. 23.9.1989 the date from which he was promoted as such. The requisite action shall be taken by respondent No. 1 forthwith. Parties are left to bear their own cost. (M.S.N.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Service) 49 [Federal Service Tribunal, Islamabad ] Present: justice (R) abdul razzaq A. thahim, roshan ali mangi, nasim sabir syed and muhammad roza khan, members IMDAD ALI and 28 others-Appellants versus SECRETARY MINISTRY OF HEALTH, ISLAMABAD and 35 others- Respondents Appeals No. 478-R./95 and 28 others dismissed, on 8.9.1996. Civil Servants Act, 1973-- S. 12-A-Civil Servants-Promotion of-Case of-Government after introducing Section 12-A became of the view that persons from grade 1 to 15 will suffer tremendously if provisions of section 12 were implemented strictly-So an exemption from applicability of section 12-A was granted through office Memo. No. 4/4-81-R. 6 dated 6.10.1986--0nce regularization is made under exemption granted against provisions of section 12-A of Civil Servants Act, 1973 all infirmities stood condoned. [Pp. 54 & 56] A & B Raja Muhammad Asghar Khan and Syed Kazim Hussain Kazmi, Advocates for Appellants. Hafiz S.A. Rehman, Advocate for Private Respondents. Date of hearing : 6.3.1996. judgment Nasim Sabir Syed, Member : This judgment will dispose of twenty nine appeals mentioned above filed by the appellants under section 4 of the Service Tribunals Act, 1973 being identical in nature because common question of law and fact are involved in these appeals. The particulars of the appellants are as under :-- Sr. No. NameDate of Date of Date of appointment promotion Seniority as LDC. as UDC. as Asstt. Date of promotion Asstt. Incharg Remarks 1. Mr. ZafarAli 1G.1.1961 21.7.C5 21.3.77 Mr: Gulab Khan 27.1.71 24.3.81 28.8.19G3 18.9.90 Regularized as LDC vide Health Div. Circular No. F.5- 12/84-Admn-I dated 12.5.85. Interms of Est. Div. O.M-No. -do- Sr. No. Date of Name appointment asLDC. Date of Date of Date of promotion Seniority promotion as UDC. as Asstt. Asstt. incharge. Remarks 3. Mr. ImdadAH 31.3.65 28.9.72 28.7.85 -do- 4. Mr. Tasawar -do- Hussain Shah 6.9.G5 31.3.73 13.3.86 5. Mr.AliAsghar 22.7.1967 31.3.73 5.12.86 -d 6. Haji Abdul -do- Majid-II 1.11.1967 23.4.73 3.4.88 7. Muhammad Saecd Regularized as LDC Akhtar 28.12.67 20.1.G8 26.12.78 vide Health Div. No. 5- 12/84-Admn. 1 dated 12.5.85 in terms of Estt. Div. O.M. 1/8/73- ARCdt. 21.11.73 8. Muhammad Younis 7.3. G8. 27.4.73 17.7.88 -do- 9. Muhammad Arif -do- Bhatti 7.3.68 27.4.73 28.7.88 10. Muhammad Akram9.9.68 1.0.73 20.6.89 -do- 11. Mr. Khadim -do- Hussain 16.8.69 9.5.81 30.3.93 12. Muhammad Excess promotee Idrees 11.7.75 20.11.80 13. Manzoor Ahmad 25.1.71 3.5.75 Regularized as LDC vide Health Div. Circl. No. 5-12/84-Admn. I dt : 12.5.85. In terms of Estt. Div. OM. 1/8/73-ARC dt. 21.11.73. 14. GhulamRasul 2.11.72 20.2.76 -do- 15. Mt. Tablib -do- Hussain Shah 2.11.72 20.2.76 1G. Jamecl Hussain 23.12.72 20.2.76 -do- 17. Muhammad -do- IqbalKhan 29.12.72 21.G.77 18. MehdiKhan 1.2.73 21.6.77 -do- 19. AbdulJabbar 18.4.73 21.6.77 -do- 20. Ibrar Hussain 8.10.73 20.7.78 -do- 21. Nazir Ahmad Shahid 15.2.73 8.7.78 Regularized as UDC vide Health ] Sr. Date of Date of Date of Date of Remarks No. Name appointment promotion Seniority promotion as I.DC. as UDC. as Asstt. Asstt. incharge. 1.1.78 22. Muhammad Ahmed Khan 1.1.78 23. JoharAli 24. AbdurRashid 9.12.75 28.-1.82 25. Rashid Muhammad 12.1.76 28.4.82 26. Mohd Shamim Khan 16.4.76 28.4.82 27. AbdurRahim 12.8.76 16.2.84 18.3.85 28. Rashid Bukhari 7.1.77 29. S. Sibte-e-Abbas Zahidi Appeal No. 478(R)/95 : The appellant feels aggrieved by the final seniority list of Assistants issued by the Health Division vide Circular No. 5- 17/94-Admn. I dated 9.8.1995 whereby instead of reckoning the appellant's seniority from the date of actual promotion as Assistant (B-ll) with effect from 17.4.1973, he has been given with effect from 28.7.1995. A reference was also made to the full bench of the Tribunal which means that he has wrongly been assigned seniority with effect from 28.7.1995. The appellant submitted departmental appeal on 29.8.1995, but vide Memo. No. F.5-17/94-Admn. I dated 28.11.1995, according to him, has been wrongly rejected. 2. The facts leading to these appeals are that the appellant (Appeal No. 478(R)/95) joined Health Division as LDC on 31.3.1965. It is worthwhile to note that the appellant in April, 1965 was an LDC. He was promoted as UDC with effect from 28.9.1972 and as Assistant with effect from 17.4.1973. In the seniority list of Assistants etc., issued on 6.11.1973, the appellant was given seniority with effect from 17.4.1973 i.e. from the date of promotion and was placed at S. No. 58. In the seniority list issued on 15.4.1978, he was given seniority as Assistant with effect from 17.4.1973 and was placed at S. No. 26. 3. Thereafter, a seniority list of Assistants of Health Division was issued on 18.9.1980 and the appellant was shown at S. No. 24. Respondents No. 3 to 11, 14 to 21 and 26 were shown junior to the appellant. In this list respondents No. 22 to 25 and 27 to 36 have not yet been appointed/promoted ' as Assistants. That on 26.12.1985 final seniority list of Assistants was issued by the Health Division in which the name of the appellant was not at all shown at any serial number and the respondents who were junior to the appellant in the earlier seniority lists were made senior to him. 4. The appellant submitted a departmental appeal on 21.1.1986 to the Health Secretary. Simultaneously all the aggrieved went as a delegation to Ministerial Establishment and sought an interview with the Secretary Health to explain him the injustice done to the LDCs, UDCs and Assistants. The Health Secretary was pleased to meet the delegation of the affected persons on 21.12.1986 and after hearing the point of view of the aggrieved delegation, the Secretary Health in supersession of seniority list of 1985' prepared under the orders of Joint Secretary, was kind enough to constitute a committee to look into the whole affair. The Committee consisted of Mr. Muhammad Yousaf Khan, D.S. (B&I), Mr. Tariq Sher Khan, S.O. (Amdn. I) and Mr. Muhammad Saeed Akhtar, Assistant Incharge. The committee looked into the details of the matter and its impact. Thereafter, the appellant received Memo. No. F.9/88 Admn. I dated 15.5.1989 whereby the appellant was informed that after due consideration of all representations of Assistants, UDCs, etc. the case has been sent to the Establishment Division for their advice/comments. He was also informed that as soon as the reply was received, their cases will be dealt with accordingly. That on 1.4.1990, the Secretary, Health Division wrote D.O. Letter No. F.1/87-SO to the Secretary Establishment Division that the seniority list of Ministerial Establishment in the Health Division was issued in December, 1985 but a section of the staff had objected to the said list making out three points mentioned in Para-1 of his D.O. letter which reproduced as under: "(i) The departmental promotions claim that in the seniority lists they have not been given their due share and that the direct recruits have been adjusted against their share making them junior. (ii) Some of the ineligible employees posted as Assistants claim that they may be adjusted against direct quota posts without fulfilling the conditions of 5 years service after 20.11.1973. (iii) It has also been stated that the seniority lists issued in 1985 do not allocate posts of Assistants in the ratio of 50 : 50 etc." The Establishment Division in their letter dated 10.5.1990 conveyed to Secretary Health that in the case of seniority list of Assistants, UDCs and LDCs, forwarded by Health Division this list was not required to be vetted by the Establishment Division. The seniority of these officials was, therefore, to be finally determined by the Health Division/department itself. The Health Division again requested the Establishment Division in their D.O. Letters dated 26.2.1991 and 2.5.1991 for appointment of an arbitrator to resolve the issue between the concerned persons but the Establishment Division vide their letter dated 15.4.1991, advised the Health Division that there is no provision for arbitration in the establishment matters of government servants which are settled in accordance with the rules/instructions issued from time to time. In 1992 the Health Division, again referred the matter to the Establishment Division. Some of the aggrieved respondents filed appeals before the Federal Service Tribunal and in their orders dated 5.6.1995 passed in Appeals No. 124 to 127 and 139- R/1995, the Tribunal directed the Ministry of Health to issue a final seniority list of Assistants within one month. The Health Division thereafter issued the seniority list of Assistants vide Circular No. 5.17/94-Admn. I dated 9.8.1995. Since the appellant's seniority was not properly fixed, according to the appellant, he filed a departmental appeal. The Health Department vide their Memo. F.5-17/94-Admn. dated 28.11.1995, informed the appellant that his representation is time barred under the Civil Servants Act as already intimated to him vide Para-2 of Circular No. 5. 17/94 Admn. I dated 9.8.1995. One important aspect of the case to note is that seniority list of LDCs, UDCs and Assistants were got prepared by the Joint Secretary but the Secretary Health did not approve the list and had ordered seniority of 1995 to be revised and redrawn by the committee constituted by the Secretary and the said committee had redrawn seniority list of LDCs, UDCs and Assistants and had also prepared a Roster of vacancies about which the Health Secretary wrote 3/4 D.O. Letters to the Establishment Secretary to examine the seniority list drawn by the aforesaid committee. In the circumstances, there is no question of time barred in the appellant's case to which we agree. The prayer of the appellant is that "the appeal may kindly be accepted and his seniority may kindly be directed to be counted in accordance with three Full Bench and two other judgments of the Tribunal and the appellant may kindly be declared senior to respondents No. 3 to 36 and his 22 years old seniority as UDC and Assistant in the Health Division with effect from 28.9.1972 and 17.4.1973 respectively may kindly be restored to him with all consequential benefits". 5. Another important aspect of the case is that all these officials had been promoted during the period from 1st January 1972 to 5th July 1977 which is the period mentioned in section 12-A of Civil Servants Act 1973. For ready reference section 12-A is reproduced as hereunder : "12-A. Certain persons to be liable to removal, etc.- Notwithstanding anything contained in this Act or in the terms and conditions of a civil servant appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, the President or a person authorised by him in this behalf may,-- (a) without notice, remove such a civil servant from service or revert him to his lower post as the case may be, on such date as the President or, as the case may be, the person so authorised may, in the public interest, direct; or (b) in a case where the appointment or promotion of such a civil servant is found by the President or, as the case may be, the person so authorised to suffer from a deficiency in the minimum length of service prescribed for promotion or appointment to the higher grade, direct, without notice, that seniority in such case shall count from the date the civil servant completes the minimum length of service in such appointment or promotion, as the case may be." Substituted vide Civil Servants (Amendment) Ordinance, 1980. This plea of the appellants has legal validity and we are of the view that the question of inter-se seniority of the Assistants should have been drawn in accordance with the exemption granted against the general powers under section 12-A of Civil Servants Act 1973. The Government after introducing section 12-A became of the view that the persons from Grade-1 to 15 will suffer tremendously if provisions of section 12-A were implemented strictly. So an exemption from the applicability of section 12-A was grated through Office Memo. No. 4/4-81-R.6 dated 6.10.1986 which is reproduced as under : Government of Pakistan (Cabinet Secretariat) Establishment Division No. 4/4/81-R.6 Rawalpindi, the 6th October, 1986 OFFICE MEMORANDUM Subject: APPOINTMENT OF UNDER QUALIFIED CANDIDATES AGAINST THE POSTS OF ASSISTANT IN THE INTELLIGENCE BUREAU The undersigned is directed to refer to the Intelligence Bureau S. O. M.No.: 2/C/71-(59)/A, dated the 18th September, 1986 on the above noted subject and to say that the 14 officials listed were understandably appointed in terms of Establishment Division's Office Memoranda No. 18/1/68-F. II, dated 20.5.1969 and No. 1/10/72-F.II, dated 13th September, 1977. Their appointments were made during the period from 1.1.1972 to 5.7.1977. All such appointments fell under Section 12-A of the Civil Servants Act, 1973 and were subject to review. However, the Cabinet in its decision dated 15.7.1979 exempted the appointments in Grade-16 and below made during the above mentioned period from such review. 2. As regards the matter regarding their qualifications it has been held that the listed officials at the time of their appointment as Assistant were qualified to be appointed as such on temporary basis as against permanent basis, due to the relaxation in qualifications as allowed in 1969 and 1976. Their appointments, as such, in so far as their qualifications are concerned are considered to be regular. 3. This has the approval of J.S. (Reg). Sd/- Ch. Muhammad Saeed Anwar Section Officer" Later on persons in BPS-16 were also exempted from the application of this section. We will like to make a reference to Para-2 of this Office Memo, wherein it makes clear that the qualifications of the officials were also considered to be regularised. The crucial question which arises is as to whether or not after regularising of their services as Assistants their seniority in the cadre of LDCs and UDCs will affect their seniority as Assistants. This has become important for the reason that the department when fixing the seniority took the plea that their seniority in the LDC and UDC cadres will affect their seniority. This view seems to be not in consonance with the provisions of these examinations. We fail to understand that when the date of promotion of an Assistant has been regularized from a particular date then how the seniority list can be redrawn depending on the seniority as LDCs. Reference was also made to the case of Mr. Muhammad Zakaria Khan Vs. Secy. Establishment Division cited as 1990 (PLC) CS 45 wherein it was submitted before the Tribunal that no formal order of regularization in the cases of Assistants, appointed/promoted was necessary because whatever the illegality or infirmity was involved in their appointments stood condoned by virtue of the decision to exempt the cases of Grade-1 to 16 from the purview of Section 12-A of Civil Servants Act, 1973. This precedent was followed in the following cases : 1. 1990 PLC (CS) 45. Muhammad Zakaria Khan vs. Secy. Estt. Div. and others. (Appeal No. 296 (R)/86) 2. 1992 PLC (CS) 717. Rab Nawaz vs. Secy. Estt. Div. and others. (Appeal No. 515 (R)/90). 1993 PLC (CS) 220. Abdur Rashid & others vs. Secy. Planning & Development. (Appeals No.: 156(R) to 163(11), 166(R) to 168(R), 170(R), 17KR), 173(R) 178 (R) and 183(R)/90). They took the view that on account of exemption from Section 12-A of the Civil Servants Act, 1973 any infirmity or illegality against the appointments of officials of Grade-1 to 15/16 stood condoned. Similar point of view was given in the Appeal No. 398(R)/94 decided on 13.2.1995. 6. The above cited precedents make it abundantly clear without any I ambiguity that the final position which emerges is that once regularization is <nj made under the exemption granted against the provisions of Section 12-A of the Civil Servants Act, 1973 all the infirmities stood condoned. This applies to all the other appeals mutatis mutandis. In nutshell all the appellants be assigned seniority from 1.7.1980 when Section 12-A of the Civil Servants Act, 1973 was amended. Those who were regularized before 1.7.1980 will stand senior to them. All the LDCs and UDCs who where senior to them will be treated as deferred and will regain their seniority once they are promoted to the same ranks as that of the respondents. 8. All the appeals succeed in the manner and to the extent as discussed above. No order as to costs. Parties be informed. 9. Roshan Ali Mangi, Member.--! have gone through the judgement of my worthy brother, however, I feel otherwise, for the reasons discussed in the following paras. 10. The most important point in these appeals is whether or not, Section 12-A, is applicable in the case of present appeals. If it is applicable then to what extent. 11. It may be pointed out that during the period 1.1.1972 to 5.7.1977 some employees were appointed/promoted in accordance with law. Whereas some other appointments/promotions suffered from some legal infirmities. 12. The Section 12-A, was applied in the cases, where appointment or promotion of a civil servant suffered from a deficiency in the minimum length of service prescribed for promotion or appointment to the higher grade and seniority in such cases should count from the date civil servant completed the minimum length in such an appointment or promotion, as the case might be. 13. However, review under above Section was exempted in respect of the government employees from Grade-1 to 15/16, vide Cabinet Division's letter dated 6.10.1986. It was further clarified in the same letter that the matter regarding their qualification, the Assistants were qualified to be appointed as such on temporary basis as against permanent basis due to relaxation in qualifications as allowed in 1969 and 1976. Their appointments, as such in so-far-as their qualifications were concerned, were considered to be regular. 14. As such only those cases came within the purview of Section 12- which suffered from some legal infirmity. However, those cases which were regular and according to law would be beyond the purview of Section 12-A. In fact Section 12-A was special provision dealing with special cases of particular time. As such regular appointments and promotions were out of the purview of Section 12-A in our opinion. 15. It seems that the judgement of the present appeals has been made on the basis of Cabinet Division's above mentioned letter, arguing that "what ever the illegality or infirmity was involved in their appointments stood condoned by virtue of the decision to exempt the cases of Grade-1 to 16 from the purview of Section 12-A of the Civil Servants Act, 1973." 16. The perusal of the Section 12-A, shows, the cases t»f the appointment/promotion of those persons were to be reviewed, which suffered from the deficiency in the minimum length of service prescribed for promotion/appointment to a higher grarde. And the seniority of such cases, should be counted from the date of civil servant who completed the minimum length of service. 17. However, when it was found that the employees from Grade-1 to 15, would suffer tremendously if the provision of Section 12-A were to be applied in their cases as well. It was, therefore, decided to take away their cases from the purview of the said Section 12-A, vide Cabinet Division's letter dated 6th October, 1986. However, in their cases, qualifications were considered to be regular. 18. We are of the view, as it has been made amply clear in the Cabinet Division's letter, that appellants were not eligible for appointments, since they did not have the required qualification. However, by virtue of relaxation in qualification allowed in 1969 and 1976, respectively, they become qualified, therefore, were considered to be regular, under the protection of above mentioned Cabinet Division's letter. However, their appointments were temporary, but made against the permanent posts. 19. Their appointments, no doubt were made regular on the qualification basis, but it does not indicate, if it conferred upon them the right of seniority as well from the date they were early appointed. 20. These employees no doubt were made regular employees under special conditions, but this had created no vested right of seniority over the employees, who were appointed in accordance with the law operative at that time. This is clear from the perusal of Section 12-A, which says, that seniority in such cases shall count from the date a civil servant completes the minimum length of service in such appointment or promotion. From this it become clear, that such a promotee had to complete the required length of service before they became regular promotee in accordance with law. In other words, the rules which were in operation were allowed to be operative in no case were to be over ridden by the Cabinet's said letter. 21. Similarly, those appointees who fulfilled the requirements of appointment, in accordance with rules, should have the right to claim seniority/promotion over those, who were not eligible for such appointment, because of the lack of qualification. In their cases, those qualifications were relaxed, and they were made regular, hence should not claim the benefit of seniority/promotion under the protection of Section 12-A. 22. While the appointments were being made, some were appointed according to the prescribed rules, and others were not. And the Section 12-A, was applicable only to those appointments which were not according to law. As such Section 12-A is not applicable to all appointments during the said period. Therefore, Section 12-A cannot over-ride, the rules operative at that time. For example, the promotion/appointment of the Assistants was to be made at 50:50 under the rules, i.e. 50% of Assistants were to be made through promotion from amongst the U.D.Cs. and remaining 50% were to be recruited directly. 23. In the present appeals, the share of the posts of Assistant occupied by the promotees increased against that of the direct recruits. As such it was wrong as it was not in accordance with law, although those promotees were made regular under the protection of Cabinet Division's letter, and promoted as Assistants later on. Does this protection confer upon them the right to reckon their seniority from the date they were early appointed, when in fact they were not even eligible for such an appointment, and claim thereby seniority violating the prescribed ratio of 50:50. The Cabinet Division's said letter does not contain that provision. In fact the letter only regularised their qualifications, and therefore, is applicable only in such irregular appointments. It in any way is not applicable to those appointments which were made in accordance with law. Those laws were in operation. And those laws required, that a ratio of promotees and direct recruits should be maintained at 50:50. As such if this ratio is disturbed in favour of promotees, it should be reversed. Hence, the final list published according to law is correct. 24. The Section 12-A is not applicable in regular cases of the appointment/promotion. In this respect, the Tribunal has already given two judgements i.e. in Appeal No. 114(R)/93 (Ghulam Mustafa Khan V/s Ministry of Finance) and in Appeals No. 431 to 437(R)/95 (Hafiz Muhammad Anwar etc. V/s Ministry of Education). 25. For the reasons recorded above the appeals, having no merit are dismissed. Muhammad Raza Khan, Member.--(26) I had the privilege of perusal of the judgment proposed to be delivered by my learned brothers. I agree with the finding of my learned brother Mr. Roshan Ali Mangi and would like to add the following few lines, particularly on two main issues involved in these appeals. 27. The first and the foremost reliance of the appellants was on Section 12-A of the Civil Servants Act, 1973 read with the Cabinet Division Office Memorandum (providing certain exemptions) and the earlier judgments of this Tribunal in Muhammad Zakaria Khan vs. Secretary, Establishment Division reported in 1990 PLC (CS) 45. The appellants stress that since direct appointment or promotion during the period falling between 1971 to 1977 has been exempted from scrutiny, therefore, any infirmity in the appointments, procedure or quota shall not affect their rights and they may be held entitled to count their seniority in the respective cadre from the date of such appointment or promotion despite the fact that the appointment was ad hoc or the promotion was in excess of the quota. 28. Before interpreting or applying the said provision of law and the administrative instruction, it will be pertinent to trace the background in which Section 12-A was added to the Civil Servants Act, 1973 whereafter it was decided to exempt certain employees from the purview of the said amendment. Under the hen provisions of law, the Civil Servants, after the expiry of probation period in a particular post, could neither be reverted to a lower post nor their service could be dispensed with, unless they were proved guilty of misconduct, etc. under the Efficiency and Discipline Rules, however, Section 12 was the only section where it was provided that if a person was holding an appointment on ad hoc basis, he shall be liable to reversion to the lower post without notice. Thus, in addition to the provisions relating to the period of probation, this was the only enabling clause whereby the employer department could revert an ad hoc employee to a lower post without notice. In 1977, it was decided that certain classes of employees should be subjected to the scrutiny and this provision was added to enable the competent authority to remove such civil servants from service or to revert them to lower post without notice. Moreover, notwithstanding the other provisions of the statute, this clause was added to enable the same competent authority to decide that the seniority of the civil servants, with deficiency in the required minimum length of service, shall be reckoned from the date the said defect was removed. Thus section 12-A invested the competent authority with the power of removal, reversion and fixation of seniority of civil servants who were appointed or promoted between 1971 to 1977. Later on, it was felt that by strict application of the said provision of the law, several non-gazetted employees falling between grade 1 to 16 will be severely affected and, therefore, by two decisions of the Cabinet the Civil Servants in Grade 1 to 15 (and also in Grade 16) were excluded from the scope of scrutiny under Section 12-A of the Civil Servant Act, 1973. Thus the effect of this exemption was to place restriction that the competent authority will not scrutinise the cases of irregular appointees or promotees in BPS-1 to BPS-16 appointed or promoted between 1.1.1971 to 5.7.1977. This was a decision to protect certain civil servants from removal or reversion by the competent authority or its delegatee. Section 12-A had become the part of the statute and it could not be amended by executive decisions. The purpose of the decision of the Cabinet was only to the extent of empowering the agencies not to submit the cases of such civil servants for scrutiny to the authority concerned. The Cabinet decision had the effect of protection from scrutiny and it had neither regularised the irregularity nor legalised the illegality and did not entitle such civil servants to claim superior rights over those who were duly qualified and regularly appointed/promoted in accordance with quota and by following the required procedure against regular vacancies. We, therefore, hold that the appellants cannot claim the removal of infirmity in the appointment or promotion, on the basis of said Cabinet decision, particularly against private respondents who were duly qualified and appointed through proper procedure against the regular vacancies. 29. The appellants were appointed on ad hoc basis for a limited period i.e. till the availability of selectee from the Federal Public Service Commission. Some of the appellants were appointed or promoted against leave vacancies while others were temporarily promoted on ad hoc basis in excess of quota reserved for promotion. Many of them could not qualify the competitive examination, despite the provision to this effect in their letters of appointment. Although they were appointed/promoted earlier to the appointment of private respondents but, as stated earlier, their were infirmities in their appointments/promotions, whereas the private respondents were appointed/promoted, though later, but in a regular way and without any infirmity in their appointment. Thus the appellants claim to protect their career with effect from the date of joining service, or promotion to a higher post, whereas the contention of the private respondents is that due to the infirmities in the cases of appellants, they may be held to retain their seniority with effect from their regular appointment. 30. Another defect in the case of appellants is that the final seniority lists of LDCs/UDCs/Assistants were finalised and circulated on various dates in the year 1985. Some of the appellants did not care to challenge the said seniority list by seeking departmental remedy and therefore, the seniority list of 1985 attained finality against them. Others filed departmental appeals but those appeals were rejected and some of them did not care to persue the matter further and so the seniority list as we as the order of rejection attained finality. Some of them filed service appeals against the rejection of representations, but could not succeed in their service appeals and the appeals of certain appellants are already subjudice before the Supreme Court whereas others did not deem it appropriate to file further appeals and hence the decision of this Tribunal in their cases attained finality. Thus all the appellants (except those whose appeals are pending before the Supreme Court) have allowed the seniority list of 1985, the rejection of their departmental representation and dismissal of service appeals to attain finality and hence the present service appeals from them, on the same cause of action, are incompetent. 31. With these additional observations, I would also dismiss the appeals, with no order as to costs. Parties be informed.I agree with finding of my brothers Mr. Roshan Ali Mangi and Mr. Muhammad Raza Khan. ORDER OF THE TRIBUNAL By virtue of proviso (a) to sub-section (2) of Section 3A of the Service Tribunals Act, 1973, in term of majority opinion, all the appeals are dismissed. (M.S.N.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C . (Services) 61 [Punjab Service Tribunal, Lahore ] Present: mr. SAFDAR hussain shah jafri, MEMBER-I RASHID ALI EX-CONSTABLE--Appellant versus S.P. HEAD QUARTERS and 2 others-Respondents Appeal No. 1408/94 of 1996, partly accepted on 17-9-1996. Service Matter- Police Constable-Discharge from service-Challenge to-Appellant was discharged from service under Rule 12.21 of Punjab Police Rules, 1934 as he had served for a period of less than 3 years when, he was involved in a quarrel with a Head ConstablePenalty imposed on appellant could not be sustained in law-Provisions of Rule 12.21 of Police Rules could not have legally been invoked-Appellant should be appropriately reprimanded so that it continues to remind him of consequences of loss of self-control-Appeal partly accepted. [P. 61] A Mr. Muhammad Yasin Bhatti , Advocate for Appellant. Mr. Manzoor Hussain Bhatti , D.A. for Respondent. Date of hearing : 17.9.1996. judgment The appellant was discharged from service under Rule 12.21 of the Punjab Police Rules, 1934 as he had served for a period of less than 3 years when, according to the statement of the respondents, he was involved in a quarrel with a Head Constable, the rifle in his custody fell down and fired although the Head Constable luckily/escaped. He also absented himself from duty from 25-7-1992 till he was discharged from service vide order, dated 31-1-1993 passed by the Superintendent of Police ( Hqs ), Lahore . His appeal was rejected by the D.I.G of Police, Lahore Range on 3-10-1993 and his revision petition met the same fate on 15-9-1994 at the hands of the Additional I.G. Police, Punjab, Lahore . 2. The appellant conceded in the course of hearing of the instant appeal that he had lost temper as the Head Constable Qurban Ali had insulted him . The appellant recants but asserts that the penalty of "discharge" from service could have legally been imposed on the appellant had his work and conduct remained un-satisfactory during the 3 years period of his probation; that the provisions of Rule 12.21 of the Police Rules could not have legally been invoked in the instant case in which a specific charge of misconduct was brought against the appellant as, in that case, the procedure laid down under the Punjab Police (E&D) Rules, 1975 alone could have been followed if it was intended to clothe the proceedings against the appellant with any semblance of legality. 3. In view of the fore-going, I arn of the considered view that the penalty imposed on the appellant could not be sustained in law. However, the fact remains that the appellant had misconducted himself even if it is assumed that he was driven to a state of mind by the given circumstances. The mischief of the moment must be discounted while the appellant should be appropriately reprimanded so that it continues to remind him of the consequences of the loss of self control on his part. 4. In view of the fore-going, I accept the appeal, set aside the impugned orders and re-instate the appellant in service with the stipulation that the penalty of forfeiture of 2 years approved sen -ice shall be. imposed on the appellant. The period during which he has remained out of service since he was discharged till he resumes duty shall be treated as leave subject to title. 5. The parties are left to bear their own costs. (M.S.N.) Appeal partly accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 62 (AJK) [AJK Service Tribunal] Present: raja bashir ahmad khan, chairman and khawaja abdul hameed, member MUHAMMAD RASHID KHAN-Appellant versus AJK GOVERNMENT THROUGH ITS CHIEF SECRETARY and 2 others-Respondents Service Appeal No. 742 of 1994, dismissed on 1.10.1996. Service Matter-- Civil SeiTant-Promotion-Retrospective-Discrimination-Question of-- Respondents were already holding post of Additional Secretary whereas appellant was working as Deputy Secretary-Held : Question of discrimination does not arise-Appeal dismissed. [P. 65] A Mr. M. Tabassum Aftab Alui, Advocate for Appellant. Sardar Muhammad, Advocate for Respondent No. 1. Nemo for Respondents No. 2 and 3. Date of hearing : 1.10.1996. judgment Raja Bashir Ahmad Khan, Chairman.-This appeal is directed against Notification No. Admin/A-l(2)/Part II/V/93 dated 21.12.1993. 2. The facts of this appeal are that the case of the appellant was sent to the selection Board for promotion as Additional Secretary alongwith respondents No. 2 and 3. The appellant was selected and recommended for promotion to the post of Additional Secretary on the same day by Selection Board. The respondent-Government partially gave effect to the recommendations of the Selection Board and promoted respondents No. 2 and 3 giving retrospective effect to the promotions from 22.2.1992. The appellant was denied seniority with effect from 22.2.1992 and was given promotion from 21.12.1993. The Government has thus discriminately refused to give effect to the recommendations of the Selection Board. 3. The appellant has challenged the Notification dated 21.12.1993 on the following grounds :-- GROUNDS (A) That the promotion of the appellant was due w.e.f. 22.2.1992, as accorded to the respondents No. 2 and 3 for simple reason that the appellant was also selected and recommended for promotion by Selection Board alongwith the respondents No. 2 and 3 on the same day and date. As three posts of Additional Secretaries were also available according to Secretariat quota at that time when the appellant was comparatively better in merit and from all other aspects vis-a-vis to the respondents No. 2 & 3 as stated in para (2) of memo of appeal. Therefore, the respondent- Government has no legal, moral and any other technical justification or reason to treat discriminately to the appellant i.e. by picking and choosing, rewarding to one and make discrimination with the other. Keeping in view the provisions of sub-section 15, of section 4 of the Interim Constitution Act, 1974 which provides that "all State Subject are equal before law and are entitled to equal protection of Law". In Service matter, sub-section 17, of section 4 of the Interim Constitution Act, 1974 provides that "No State Subject otherwise qualified for appointment in the service of Azad Jammu and Kashmir shall be 4 discriminated." In the given circumstances the impugned Notification is liable to be amended accordingly. (B) That the impugned Notification dated 21.2.1993, is also liable to be amended for the reason that the same is malafide which has been issued by colourable exercise of powers by the respondent-Government because the respondent No. 1 inspite of the fact that the post of Additional Secretary in question was also available since long for the Secretariat group deprived the appellant from due date of his promotion so that the respondents No. 2 and 3 become senior to the appellant as well as for giving financial loss to the . appellant intentionally for ulterior motives. (C) That the impugned Notification dated 21.12.1993, is also liable to be amended because the same has been issued in disregard to the recommendations of the Selection Board as the Selection Board, did not make any difference between the respondents No. 2 and 3 and the appellant in respect of fixation of their seniority and the date of promotion." 4. We have heard the counsel for the parties and have also gone through the record. 5. The only contention made before us by the counsel for the appellant is that the appellant, respondents No. 2 and 3 were recommended for promotion to the post of Additional Secretary on the same date by the Selection Board. The respondents have been given retrospective promotion in pursuance to the recommendations of the Selection Board whereas the appellant has been denied his entitlement of retrospective promotion discriminately and has thus caused grievance to the appellant. On the point of discrimination the counsel for appellant relied on 1994 SCMR 402, 1983 SCMR 34 and PLD 1993 SC (Pak) 375. 6. We have carefully gone through the Notification No. Admin/Al(2)/Section V/93 dated 2.11.1993 whereby respondents No. 2 and 3 were given retrospective promotion and also the impugned Notification through which the appellant was promoted as Additional Secretary. The perusal of these Notifications reveals that respondents No. 2 and 3 were already working against the post of Additional Secretary in their own pay and scale whereas appellant was not working against the post of Additional Secretary. The argument that the case of the appellant was dealt with discrimination is not available to the appellant on the simple ground that the respondents were working against the posts of Additional Secretaries B-19, although in their own pay and scales and after the recommendations of the Selection Board they were given the benefits of the post of Additional Secretary. The appellant at the relevant time was working as Deputy Secretary and he could only be given benefits of the post of Additional Secretary from the date when he was promoted. 7. We have gone through the authorities relied on by the counsel for appellant. The facts of the reported case are entirely different from the facts of the instant case. In the reported cases the question of granting Secretariat Allowance was involved and it was resolved that if the allowance was given to one set of employees the same allowance can be given to the group of the employees performing the duties of similar nature. In the instant case the respondents were already holding the post of Additional Secretary whereas the appellant was working as Deputy Secretary. The question of discrimination in the present case, therefore, does not arise. 8. In the light of the above the appellant has failed to make out the case for interference by this Tribunal. We, therefore, dismiss this appeal with no order as to costs. (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 65 [Federal Service Tribunal, Islamabad ] Present : ROSHAN ALIMANGI AND MUHAMMAD RAZA KHAN, MEMBERS KHALID NAZIR KHAN--Appellant versus ' WAPDA THROUGH CHAIRMAN, LAHORE and 5 others-Respondents Appeal No. 210(2)/96, dismissed on 16.10.1996 Service Matter- UDC in WAPDA-Compulsory retirement-Challenge to-Appellant pleaded on humanitarian grounds, to convert his compulsory retirement into retirement on medical ground, nevertheless perusal of record reveals that he was dismissed from vide letter dated 19.10.1991 and Medical Board declared him unfit for service vide letter dated 8.1.1994-Prior to this nothing is available on record if at all he had ever applied for retirement on medical grounds-From this it follows his request to retire him on medical ground was afterthought-Appeal dismissed. [P. 67] A Mr. Muhammad Faiz Kharal, Advocate for Appellant. Mr. Abdur Rehman Madni, Advocate for Respondent. Date of hearing: 15.10.1996. judgmentm Roshan Ali Mangi, Member.-The appellant Khalid Nazir Khan was working as UDC in the respondent department. According to him due to his mental disorder, he had become insane. Respondent No. 4 dismissed the appellant from service vide order dated 19.10.1991 on the ground of Misconduct under the provisions of Pakistan WAPDA Employees (E&D) Rules, 1978. However, the respondent No. 3 being the competent authority reviewed his dismissal and converted it into compulsory retirement vide order dated 20.9.1994 on his own. The appellant impugned this later order and submitted a departmental appeal against it on 28.11.1994. His appeal, however, was rejected on 11.7.1995. Hence this appeal. 2. Pleading the case of the appellant, the learned counsel prayed to consider the case on humanitarian ground. According to him compulsory retirement was a punishment. He pleaded that since he was declared medically unfit for service by the Medical Board vide letter dated 8.1.1994, therefore, his request needed to be considered on purely medical ground, as such a retirement would enable the appellant to get 20% disability pension and also the grant out of WAPDA welfare fund in addition to his ordinary pension. 3. The respondent department has also filed preliminary objections. The charge against the appellant was that with an ulterior motive he contacted S.E. Sialkot at his residence on 18.12.1991 at 6.15 PM and showed him to letters of Assistant Director General Mr. Muhammad Naeemullah for Secretary, WAPDA containing certificate of availability for appointment of the staff. On scrutiny of papers S.E. Sialkot suspected the signatures on letters as forged one. He (the appellant) also tried to give illegal gratification to S.E. Sialkot for showing favour in cases of appointment. On further enquiiy he disclosed his identity as SDC, Shakargarh Sub Division. Besides this, the appellant was also involved in 13 stolen electricity meters by unlocking the door of meter room. In this regard an FIR No. 16 dated 30.12.1990 was registered at P.S. Shakargarh. 4. Accordingly the appellant was served upon explanation letter dated 4.3.1991 and show cause notice issued to him on 13.5.1991. However, the appellant neither submitted the defence reply nor did he bother to appear before the competent authority for personal hearing although he was directed to do so vide the same show cause notice. 5. Under the circumstances, he was imposed major penalty of removal from service under Rule 2(3) of Pakistan WAPDA Employees (E&D) Rules, 1978 but taking a lenient view, the authority i.e. respondent No. 3 converted his major penalty from removal to compulsory retirement. As such the orders passed by the competent authority were legal and lawful. 6. It is contended that the appellant was not in service when he was declared unfit by the Medical Board. It has further been submitted that since the appellant had already been treated leniently, therefore, there is no justification for converting his compulsory retirement into retirement on the medical ground. 7. We have listened to the arguments of both the sides and perused the record. 8. We find that the appellant was imposed major penally of dismissal from service which was later on converted into compulsory retirement by the authority on the ground of misconduct. The appellant had impersonated in order to get concession from the S.E. Sialkot to get the appointment for his people which act was unbecoming of an employee. Although he was issued explanation letter followed by a show cause notice but he neither replied to explanation letter nor to show cause notice. This proves that he was guilty and the charge levelled against him was correct. Although he was called for personal hearing but even for that he did not bother. The perusal of the explanation letter produced by the respondent department (copy of which was not placed on record by the appellant) reveals that the appellant was arrested by the police authorities Shakargarh for stealing jewelry and cash from the house of one Mr. Faiz Rasul. This very much reflects the character of the appellant. 9. Although the appellant has pleaded an on humanitarian grounds, to convert his compulsory retirement into retirement on medical ground, nevertheless the perusal of the record reveals that he was dismissed from service vide letter dated 19.10.1991 and the medical Board declare him unfit for the service vide letter dated 8.1.1994. From this follows that while he was declared unfit for service he was already dismissed from service. Prior to this nothing is available on the record if at all he had ever applied for retirement on medical grounds. From this it follows his request to retire him on medical ground was ground was afterthought. 10. Under the circumstances, we are unable to accept his appeal for the reason recorded above. The appeal having no merit is dismissed. 11. No order as to costs. Parties be informed. (M.S.N.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 68 [Federal Service Tribunal, Islamabad ] Present : noor muhammad magsi and roshan ali mangi, members SIKANDAR HAYAT KHATTAK-Appellant versus SECRETARY, LABOUR AND MANPOWER DIVISION, ISLAMABAD and another-Respondents Appeal No. 436(R) of 1996, dismissed on 13.10.1996. Civil Servants Act, 1973 (LXXI of 1973)-- S. 22(2) read with S. 4(1) of Civil Servants (Appeals) Rules, 1977-Posting and promotion-Question of~Appellant was selected for posting abroad, his immediate senior was already sent abroad and then it was his turn- This list should have been implemented fully and thereafter new selection should have been undertaken-Since Tribunals jurisdiction in matter of posting and promotion as per section 22(2) of Civil Servants Act, 1973 and also Rule 4(1) of Civil Servants Appeals Rules, 1977 and Supreme Court judgment in Civil Appeal No. 60 of 30.10.1990 is restricted-Held : Tribunal is unable to interfere into decision already made by department-Appeal dismissed. [P. 70] A & B Sh. Riaz ul Haq, Advocate for Appellant. Mr. Khalid Abbas Khan, Standing Counsel for Respondent No. 1. Respondent No. 2 in person. Date of hearing: 30.9.1996. judgment Roshan Ali Mangi, Member.-Brief facts of the ease are that in its meeting held on 5th August, 1989, the departmental Selection Committee selected officials of different categories for posting abroad in the Office of Community Welfare Attaches in Pakistan Missions abroad. The appellant who is a Stenographer, his name was, too, included in that list. His immediate senior, Mrs. Najma, Stenographer, had beet posted abroad & proceeded on 31.3.1996. The appellant therefore, was hoping that it would be the next turn of this posting abroad. However, a fresh Departmental Selection Committee was constituted on 21.5.1996 who selected the officials of various categories including the Stenographers for posting abroad but that list did not include the name of the appellant. 2. Being aggrieved by this selection list, the appellant submitted a departmental appeal on 10.6.1996 which was rejected by the Ministry vide O.M. dated 8th July 1996. Hence this appeal with the prayer to set aside the impugned order dated 21.5.1996. 3. The learned counsel for the appellant pleaded that there is a practice in the Ministiy that once an official is posted abroad, he is not sent particular post unless he can show a rule mandating so what he wants." 7. It has further been pointed out that as held by the Supreme Court, suitability for promotion to a particular post, is a matter to be dealt with by the Government on its administrative side and is not justiciable in the courts of law. (PLD 1988 Lahore 553, PLD 1960 S.C. 164). 8. In the written objections of the respondents, it has been submitted that the petitioner was appointed as a Stenographer in the Manpower Division w.e.f, 22.3.1990, whereas the respondents No. 2 Mr. Riazul Haq was promoted to the post of Stenographer w.e.f. 9.6.1982 and actually joined against the post w.e.f. 17.2.1985. It is obvious from this that the appellant is not senior in service to respondent No. 2. 9. It is also clear from the seniority list of Stenographers of the Manpower Division that respondent No. 2 is placed at S. No. 9 whereas the appellant is shown at S. No. 16. Therefore, respondent No. 2, being senior to the appellant, has been selected for posting abroad. Even otherwise the selection is done on the basis of seniority-cum-fitness basis. The Committee therefore, selected respondent No. 2 on the above principle in its meeting held on 21.5.1996. As regards the appellant's contention that the selection made by the department was in violation of the previous practice, it is not tenable under the rules. It is further stated that it is no denying the fact that 'practice' cannot over-ride the 'Rules', which are framed in consultation with the Establishment Division and FPSC. With these submissions, it is prayed that the appeal as well as stay application be rejected. 10. We have heard the parties at length and perused the record. We find no doubt in the list of candidates selected by the Departmental Selection Committee in 1991, the appellant was selected for the posting abroad, his immediate senior was already sent abroad and then it was his turn. This list should have been implemented fully and thereafter the new selection should have been undertaken. However, the respondents have quoted section 22(2) of the Civil Servants Act, 1973 and also rule 4(1) of the Civil Servants (Appeals) Rules, 1977 in support of their stand & besides this the judgment of the Supreme Court referred above, also. 11. In view of the position as laid down in the said Acts and judgement of the Supreme Court, we are handicapped to do anything. Since our jurisdiction in the matter of posting and promotion as per above Acts and Supreme Court's judgement, is restricted. In these circumstances, we are unable to interfere into the decision already made by the department. 12. For the reasons recorded above, the appeal having no substance is dismissed and the stay application is also rejected. 13. No order as to costs. Parties be informed. (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 71 [Federal Service Tribunal, Islamabad ] Present : noor muhammad magsi, roshan ali mangi, and muhammad raza khan, members DR. AKHTAR HUSSAIN-Appellant versus EXECUTIVE DIRECTOR PIMS and another-Respondents Appeal No. 361(R) 1996, dismissed on 28.10.1996. Service Matter- Doctor in PIMS--Removal from service-Challenge to-Change in blood group caused death of a patient which should not be taken so lightly because if such a person is let of it would not only allow such a person to be again negligent, but others would also not be deterred from committing such lapses-Held : Tribunal is of the opinion that punishment given to appellant is not unjustified-Appeal dismissed. [P. 75] A Hafiz S.A. Rehman, Advocate for Appellant. Mian Ishtiaq Hussain, Legal Advisor for PIMS. Date of hearing: 22.9.1996. judgment Roshan Ali Mangi, Member.-The appellant was serving as a Medical Officer in Pakistan Institute of Medical Sciences, Islamabad since February, 1988. He is aggrieved by order dated 2-4-1996 whereby he was removed from service with immediate effect and his name was struck off the strength of Islamabad Hospital on the ground of misconduct. 2. The appellant preferred an appeal to respondent No. 2 on 16.4.1996 which was rejected vide order dated 16.6.1996. Hence present appeal with the prayer to set aside the orders dated 2.4.1996 and 16.6.1996 respectively. 3. The brief facts of the appeal are that the appellant was issued charge sheet dated 8.2.1995 with the following allegations :-- "(i) You are drawing Non-Practicing Allowance and at the same time running a Private Lab. (ii) You are also drawing share of Blood Bank, while drawing the Non-Practicing Allowance. (iii) Certain expired kits were found from your charge, which were not purchased by the hospital."The appellant made a reply to this charge sheet on 13.2.1996. 4. Subsequently an enquiry committee was constituted who submitted its report to the Joint Executive Director, Pakistan Institute of" Medical Sciences, Islamabad . According to findings of the enquiry committee, on allegation No. 1, it observed as below :-- "Committee's observation is that there is gross disparity by allowing a few MOs/Registrar with minor diplomas to do private practice whereas refusing others not to do so. In view of the above fact, Dr. Akhtar Hussain should not be paid NPA in future and a definite policy should be framed for MO's/Registrar with minor diplomas to have a uniform principle applicable to every one." With regard to allegation No. 2, the Committee observed : "(a) Dr. Akhtar Hussain should be asked to refund NPA PIMS during the time he received blood bank share if such rules exist. (b) Concerned administration and accounts department persons should also be asked why they allowed it to happen. They are equally at fault.Dealing with allegation No. 3, the Committee observed : "It is recommended that he should be given a strict warning that he should not use expired kits in the hospital. Lastly, he should be transferred from blood bank to Pathology department." 5. On the findings of the enquiry committee, a show cause notice, dated 24.2.1996 was served upon the appellant and the appellant was advised to submit the reply to the show cause notice within a period of 8 days of the issuance of the notice, to which the appellant replied within the stipulated time. 6. In the meantime, when the appellant was still waiting for the result of the show cause notice, he was issued another show cause notice on 17.3.1996. In this notice a new following allegation was levelled :-- "Whereas, in connection with the death case of a patient, Mr. Noor Muhammad due to wrong blood transfusion it has been observed that you changed the blood group from AB-ve to AB -i- ve while according to expert opinion blood group cannot be changed without permission from the Incharge of concerned department where patient is admitted.It has also been established that certain expired kits of HIV were found under your charge, while according to expert opinion such kits cannot be used." the same was rejected. As such the impugned action taken against the appellant, was perfectly legal and justified. It has also been contended that the Joint Executive Director was the authorised officer in his case and fully competent to issue a charge sheet and show cause notice to the appellant And also the order, dated 2.4.1996, was issued with the approval of the competent authority i.e. the Executive Director. Therefore, the impugned order was in order. As such the allegations are rebutted. Concluding the arguments it has been prayed that the appeal be dismissed with costs. 11. We have heard the parties and perused the record. We find that the appellant was charge sheeted on the allegations :-- (i) that he was drawing non-practicing allowance as well as running his private Laboratory. (ii) He was drawing share of Blood Bank and also practicing privately. (iii) He used expired kits which were found from his office and which were not purchased by the Hospital.All these allegations were proved by enquiry committee and admitted by the appellant. No doubt the appellant was issued another show cause notice with fresh allegation that he changed the blood group. A perusal of his statement placed on the record shows that he did it although on the plea that was normally done i.e. one group can be used in place of other. Simultaneously, vide his main appeal, the appellant alleged that one Sister Iffat/Sugrical ward 6 to have committed vital mistake of sending wrongly label blood sample to the Blood Bank. These are two contradictory statements. He has implicated other to save his skin, simultaneously admitted the guilt. This clearly shows the type of conduct of the appellant. 12. Since the appellant has admitted the allegation that he changed the blood group, we feel that he was guilty of changing blood group. Since he did on his own, although he needed the approval of the Head of the Department, where the patient was under treatment. In these circumstances, we are of the opinion that the appellant is found guilty of all the three allegations levelled against him although he assured that he will neither do the private practice nor would share the Blood Bank and that he would not use the expired kits. All these admissions are sufficient to prove him guilty. He has also admitted that he charged the blood group, which caused the death of the patient. This was not trivial thing not to be reckoned with. Human life cannot be taken for granted. Such lapses cannot be ignored. 13. However, the learned counsel for the appellant pleaded that the punishment was harsh and the enquiry committee did not recommend such a punishment. In view of the fact, he prayed that since the major penalty of removal from service was harsh and not in commensurate with the guilt, therefore, this should be considered sympathetically. 14. We find that the change in the blood group caused death of a patient which should not be taken so lightly because if such a person is let of, it would not only allow such a person to be again negligent, but other would also not be deterred from committing such lapses. We are, therefore, of the opinion that the appellant should not go un-punished, otherwise the other people will behave in the same manner. In order that other should also deter from similar conduct which caused death to a patient under treatment, we are of the opinion that punishment given to the appellant is not unjustified. We fell unjustifiable to interfere into the action already taken by the department and therefore dismiss the appeal, having no substance, with no order as to costs. 15. Parties be informed. Muhammad Raza Khan, Member.--! have had the facility of going through the judgement proposed to be delivered by my learned brother and I cannot subscribe to the reasoning and conclusion of the said judgement, therefore a dissenting note is recorded as herein below: 16. In this case the appellant was served with a charge sheet on 8.2.1996 and his reply was received by the respondent department on 13.2.1996. The report of the Enquiry Committee was finalized somewhere between 13.2.1996 and 24.2.1996. In the said report the Enquiry Committee has unanimously held that "there was gross disparity by allowing a few Medical Officers/Registrars, with minor diplomas, to do private practices whereas refusing others not to do so. In view of the above fact Dr. Akhtar Hussain should not be paid Non-Practicing Allowance in future and a definite policy should be framed for Medical Officers/Registrars with minor diplomas to have a uniform principle applicable to every one". Thus with regard to charge No. 1, the Committee had observed that there was disparity in practice and there was no clear cut policy for the payment of NPA. The Committee had recommended discontinuation of NPA to the appellant in future. Thus the major penalty on charge No. 1 was not justified. 17. With regard to the second charge, the Committee observed "NPA as well as Blood Bank share were given by the Administration and Accounts Department. We are wondering why they allowed it for so many years. Dr. Akhtar Hussain could not have done it on his own." With these observations the Committee recommended that the appellant be asked to refund NPA "if such rules exist." Thus practically it means that there were doubts about the existence of rules. The Administration had been paying both the kinds of benefits and so the Committee recommended with regard to this charge that NPA should be recovered from the appellant. 18. With regard to the third charge, the Committee observed that the expired kits were admittedly available in the hospital and "this type of use of expired kits should not be done in the hospital. The Committee feels that if he would not have screened donors for AIDS, then these two positive cases blood would have been transferred to other healthy persons." The Committee recommended strict warning and transfer of the appellant from the Blood Bank. It was also admitted at the bar, on behalf of the respondents, that the expired kits were not supplied by the hospital nor there was any mis-appropriation of money/material or violation of the rules by the appellant. It was also admitted by the Committee that despite expiry of certain kits, donated by any company, the kits may still of useful and the expired kits were used to successfully detect two positive cases of HIV. 19. Thus the three charges levelled against the appellant through the charge sheet were properly investigated by the Enquiry Committee and the unanimous recommendations of three senior professional officers should not have been ignored lightly by the competent authority. The Committee had, at the most, recommended the refund of paid NPA and discontinuation of payment of NPA to the appellant in future. The rules are not in existence and the Committee had observed that there had been gross disparity in the grant of allowances and facilities which need to be stream-lined. The Committee had also observed that the expired kits were used with bonafides by the appellant in the interest of patients whereby two server incidents have been averted. Thus on the basis of such report the major penalty was not at all justified. 20. Rule 5(l)(iv) of the Govt. Servants (E&D) Rules, 1973, provides that on receipt of the report of the Enquiry Committee the authorised officer shall determine whether the charge has been proved. "If it is proposed to impose a minor penalty he shall pass order accordingly. If it is proposed to impose a major penalty, he shall forward the case to the Authority along with the charge and statement of allegations, the findings of the Enquiry Committee and his own recommendations regarding the penalty to be imposed. The Authority shall pass such order as it may deem proper." This rule suggests two steps to be taken in such matters. Firstly that the report of Enquiiy Committee has to be studied in detail to see whether charge has been proved and to determine the nature of penalty. Secondly that if the authorised officer is satisfied that the major penalty is to be imposed, he shall recommend the matter to the Authority for such purpose. Both these procedural steps are missing. The authorised officer has not appreciated the spirit and recommendations of the Enquiiy Committee. If the authorized officer was not satisfied with the recommendations he could have constituted another Committee or appointed another Inquiry Officer for the purpose but he could not brush aside of the recommendations of the Committee. Moreover, the Committee had already observed that the rules were non existent and the procedure adopted by the Administration suffers from disparity. It was also observed that the Administration was equally at fault for lack of supervision and that the so called default of the appellant had proved beneficial for the patients in at least two cases. Thus charges were not at all proved and the penalty could not be imposed on such recommendations. 21. The record does not disclose that the authorised officer has, at any time, made recommendations to the Authority for the imposition of a major penalty and, therefore, there was an incurable procedural defect and hence the major penalty could not be imposed. The record further reveals that another show cause notice was issued on 17.3.1996 alleging the change of blood group. An inquiry was also held in connection with the said allegation but the appellant was not associated in the said inquiry. The final recommendation of the said inquiiy does not contain any reference towards the appellant. The representative and the counsel for the respondent department conceded at the bar that the appellant was not all involved in the death case. Thus the record shows that the change of label from positive to negative was otherwise permissible but with the permission of the Ward Incharge and therefore it was only a violation of the protocol and not a professional misconduct. The major penalty of removal from service was therefore not justified. 22. In the light of the above observations, I would accept this appeal, set aside the impugned orders dated 2.4.1996 and 16.6.1996 and convert the major penalty of removal from service into the minor penally of stoppage of three increments for five years. The NPA of the appellant may be discontinued and previously paid NPA be recovered from the appellant on his reinstatement. The intervening period may be treated as leave of any kind due. ORDER OF THE TRIBUNAL By virtue of proviso (a) to sub-section (2) of section 3A of the Service Tribunals Act, 1973, the order of the Tribunal by majority view is that the appeal is dismissed. (M.S.N.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 77 [Punjab Labour Appellate Tribunal, Lahore ] Present: chairman mr. justice (rtd.) mian ghulam ahmad GENERAL MANAGER PRODUCTION, K.S.B PUMPS COMPANY LTD., ATTOCK-Appellant versus MUHAMMAD RIAZ-Respondent Appeal No. 348/95, dismissed on 9/7/96. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A--Grievance petitionAcceptance ofAppeal againstAccording to medical certificate respondent was suffering from cervical spondylitis of severe character-If actually this disease had over taken poor fellow, he was not to blame, if he could not attend to his duty for that long period. [P. 79] A (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A--Grievance petition-Acceptance of--Appeal against-Respondent was a well-behaved workman and he assumingly had remained absent for forty days at a stretch not without a genuine reason-Although there was no provision in rules, nor was there in vogue any practice that an employ could remain absent from duty over an un-specified duration, owing to illhealth even, there was certainly'room for a lenient treatment, ^ and extreme action of removal of worker from service was not warranted. [P. 80] B Ch. Abdul Rab, Advocate for Appellant. Muhammad Farooq, Advocate for Respondent. Date of hearing: 20.5.1996. judgment The appeal is directed against the decision dated 28.11.1995, rendered by Punjab Labour Court No. 6, Rawalpindi , by which grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, by an ex-helper, Muhammad Riaz, was accepted and his reinstatement in service without back benefits was ordered. 2. Muhammad Riaz had been employed by the appellant concern as a helper/worker on 3.1.1987 and was dismissed from service on 21.6.1995, on having been found guilty of misconduct, in a regular inquiry, that was initiated, following his alleged un-authorised absence from duty for a period of forty days from 30.5.1994 to 8.7.1994. The employee had taken up a stand to the contrary, by stating that he had fallen ill and applied for leave for 29.5.1994. According to him, prayer for grant of leave till recovery had been made, and on becoming physically fit, he had reported for duty on 8.7.1994 and submitted a medical certificate as well, in proof of his serious indisposition and medical advice for complete rest. He claims to have performed duty, as usual, till his removal from service. It is pleaded that throughout the span of his service he had attended to his work with devotion and dedication, to the entire satisfaction of the employer, who had no complaint against his conduct and performance. It is added that he had, however, been participating in the trade union activities, and this was not relished by th'e establishment, which was on the look-out to kick him out. 3. In the inquiry report Exh. R-4 submitted on 29.5.1995 by Mr. Tariq Waheed, Inquiry Officer, it has been stated that the employee had admitted his absence from duty for that long period and had thus also admitted the misconduct on his part. The Medical Officer of the Social Security Dispensary, Hassan Abdal had issued him a certificate of fitness on which would furnish proof of the fact he was alright, and had, without any reason or rhyme, opted to absent himself from duty, and that too for as many as forty days. The explanation furnished by the employee, as deposed by him, on appearing as a witness in the Labour Court, on 4.10.1994, however, is that he had been un-well on 27th and 28th May, 1994 and had been carried in a vehicle, belonging to the company, to the Social Security Hospital , where he was treated and discharged, on being kept there for a day only. He maintains that he was not satisfied with the treatment and had, therefore, to consult a private practitioner. He claims to have intimated the employer without any amount of delay that he continued to be indisposed and would be resuming duty on recovery. The claim that he had made an application in that behalf is, however, without proof, as possibly he could not tender any one in that regard, since the application stated to have been submitted by him must be lying with the establishment In the proceedings of inquiry, Exh. R-3, the representative of the management had stated that although Muhammad Riaz was fit to perform duty on 30.5.1994, he remained absent from duty, from that day onwards, till 8.7.1994, and that too without any intimation. On 8.7.1994 he tendered a medical certificate issued by a physician of Nawab-Abad, Wah Cantt., Dr. Moin Ahmad Khan (which exists at page 33 of the file of the lower court). The doctor has not been examined as a witness either in inquiry or in the court; but the representative of employer does not deny having been in receipt of the certificate in question. It has even been conceded, in response to a question posed by Malik Asghar, 'helper'/'representative' of the employee, that on 29.5.1994 an application for leave uptil recovery had been submitted by Muhammad Riaz and is available on the record. Well, if the application had contents different from those stated by Riaz, he could have been confronted with the same, had the said application been placed on record of the court by the management; but it is not forth-coming. 4. Even if Muhammad Riaz had made no further application for leave, as is maintained by the management, he could well be asked to attend the office, else produce a medical certificate, in support of his plea of continued illness of grave character. According to the medical certificate issued on 7.7.1994 by Dr. Moin Ahmad Khan, Muhammad Riaz was suffering from cervical spondylitice of severe character. I have personal experience; and I am aware of the pain, dis-comfort and agony, which the patient, suffering from this disease, has to incur. If actually this disease had over taken the poor fellow, he was not to blame, if he could not attend to his duty for that long period. 5. He was, however, under an obligation to keep his employer informed of the nature of the illness, as also his inability to perform his duty; and although, as worker, Riaz was expected to come to the office and do his duty punctually and regularly, and he should himself have intimated the employer about the cause for his absence from duty, I do not think, there was any harm, particularly with the change of mood of times and increasing emphasis on enjoyment of their inherent rights by the members of the labour class, if the management also could have carried to establish contact with the employee, in a bid to know as to what had prevented him from performing his duty. He had after all been in service of the company for a period exceeding seven years, and was presumably punctual in his attendance, efficient in his performance and normal in his conduct, for if it had been otherwise, the establishment must have taken action against him on any occasion of the kind in the past. 6. It was, on 18.12.1994, in the course of the inquiry proceedings, conceded by Altaf Rana, representative of the establishment, that negotiations between the management and the workers had been going on, during those days, as regards the Charter of Demands, placed before the former by the latter. It has, however, not been acknowledged that the labour class had gone desperate and resorted to violence, but it is not denied that there was some tension and bitterness in the relation-ship between the management and the workers and the latter had cordoned off the office of the General Manager, and even a notice about strike had been given. Altaf, however, does not concede that Muhammad Riaz had been proposed to be proceeded against for his active role in the trade union activities, or that he was an office-bearer of the union. Some of the workers/office-bearers had, of course, been served with show-cause notices and charge-sheets, as they had broken the glass panes of windows and had invaded the office of the General Manager and had further incited the co-workers to go on 'illegal strike'. 7. Against this back-ground, it will not seriously be disputed, likelihood of Muhammad Riaz having been picked up for an extreme action, could not entirely be ruled out, and possibility of a lenient view about his absence from duty, being taken, could not be excluded. Mr. Muhammad Afzal, Manager, Mechanical Production, had, on 21.2.1995, stated before the Inquiry Officer that Riaz had been working under him for a couple of years and he had often been ill, but he used to send leave applications or medical certificates, whenever he could not come for duty, and it was hardly once or twice that he was absent without intimation or leave. It would follow that, broadly speaking, Muhammad Riaz was a well-behaved workman and he had assumingly remained absent for forty days at a stretch not without a genuine reason. Although, according to the appellant, there was no provision » in the rules, nor was there in vogue any practice that an employee could remain absent from duty over an indefinite period, on applying for leave for an un-specified duration, owing to ill-health even, there was certainly room for a lenient treatment, and extreme action of removal of the worker from service was not warranted. Even warning would have sufficed especially if it was first instance of delinquency or lapse on the part of the employee, who had unfortunately not been keeping good health, as has been testified by his immediate officer, Mr. Muhammad Afzal. These being the facts and circumstances, I find myself dis-inclined to differ with the view expressed by the learned lower court. There was little justification for the poor worker's ouster from service. It is every body's knowledge and experience these days that it is an uphill task to get a job and even graduates are roaming about on roads, and for the bulk of the population it has become extremely difficult to make both ends meet. I am not, therefore, prepared to believe that the respondent had been able to have employment any where during this period; and he has deposed to that effect in categorical and convicting terms, and there is not evidence forthcoming in rebuttal of this assertion. The dismissed employee, as such, was not really dis-entitied to the back benefits. Since, however, he has not laid claim to the same, by filing a cross appeal, or by submitting cross objections, in the course of this appeal, he will remain without back benefits; but he must be reinstated in service, with effect from 21.6.1995, the date of his dismissal. In would uphold the Labour Court's decision dated 28.11.1995, by dismissing the Establishment's appeal, with costs. (K.A.B.) Appeal dismissed
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 81 [Punjab Labour Appellate Tribunal, Lahore ] Present: MIAN GHULAM AHMAD, CHAIRMAN MANAGING DIRECTOR, WASA-Appellant versus MUHAMMAD HANIF IJAZ-Respondent Revision Petition No. LHR-223 of 1996, accepted on 26.5.1996. Transfer-- Sub-Engineer WASA-Transferred from one place to other-Challenge to It is so well known that Civil Servant or official of autonomous body has not vested right to remain posted at particular place or against specific assignment; he is liable to transfer any where within establishment-Held : Power of competent authority to transfer subordinate can in no manner be curtailed. [Pp. 82 & 83] A & C Stay Order- Sub engineer WASA--Stay order issued by Labour Court suspendingtransfer order-Challenge to-Labour Court had thought lessly issued stay order, 'although official had absolutely no entitlement to it and same has remained intact over abnormally long period of two years-Held : Stay order amounted to interfering with smooth and normal working of important wing of Corporate body. [P. 83] B Mr. M.A. Ghani, Advocate for Petitioner. Khawaja Tariq Masood, Advocate for Respondent. Date of earing:26.5.1996. judgment By way of the present revision petition has been called in question the validity and soundness of an order dated 26.6.1994, passed by the Punjab Labour Court No. 2, Lahore, suspending operation of an order dated 14.6.1994, transferring the respondent, an official of WASA, LDA, from one place to another. 2. Muhammad Hanif Ijaz is a Sub-Engineer, posted in the WASA's office, situate in Township, Lahore . Vide order dated 14.6.1994, he was transferred from Township to Leak Detection Cell; and he challenged the order, by filing a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in the Punjab Labour Court No. 2, Lahore, late Presiding Officer of which Court issued a stay order, on entertaining the grievance petition, on 26.6.1994, suspending the aforesaid order oftransfer. Unfortunately he was in the habit of granting stay order, in every case, in routine, and in a truly mechanical and indulgent way. I am indeed surprised to find, that in the instant case, he had written a few lines before concedingto the grievance-petitioner ad-interim relief asked for. It is, however, to be pointed out that it was only a transfer order and the competent authority was well within his rights to shift a subordinate from once place to another, filling a similar or equivalent vacancy, in the exigencies of service and in the public interest. It was averred by the petitioner before the Labour Court that he had been made a rolling stone and had been transferred thrice during April, 1994, and this was his fourth transfer ordered in June, 1994, and positive malafides, on the part of his superior, the Deputy Managing Director, WASA attended the impugned act. It is, however, not un-likely that the petitioner in the Labour Court, respondent before this tribunal, might have himself managed his shifting from one place to another, in search of a lucrative job, and when he got it but was going to lose the post, on his shifting ordered on 14.6.1994, he could not put up with the situation and decided to assail the act of his Officer by approaching the Labour Court, and pleading that he was a workman, entitled to invoke the forum of the Labour Court. 3. It is so well known that a civil servant or an official of an autonomous body has not a vested right to remain posted at a particularplace or against a specific assignment; he is liable to transfer any wherewithin the establishment. Power of the competent authority to transfer a subordinate can in no manner be curtailed. It has been so held in a number of authorities, 1992 SCMR 1843, Nazir Hussain versus Chief Secretary N.W.F.P. may be quoted as one of which. 4. One would indeed be amused to find the official, in this case, urging that he would be subjected to immediate inconvenience, as also irreparable loss, is the event of his shifting from the Township Office, although all the places, where, one after the other, he was sent were situate within the metropolitan limits; but even if he was actually to undergo some sort of hardship, in moving fjom one place to another, he could not legally complain of the same and agitate aguinat it by approaching a court of law. He had no case for issuance of stay order. 5. 1 find, on record, a letter addressed by the Director Administration, WASA, LDA, Lahore, recently written to the Additional Legal Advisor of the local body, making grievance of the fact that subsistence of the stay order granted by the Labour Court in favour of Muhammad Hanif Ijaz over a period of about two years last has almost completely paralysed the working and discipline of the Township Division, and employees, as also members of the public and the labour class, have constantly been complaining of the behaviour of the Sub-Engineer. A number of complaints, embodying gross and sinister allegations against the conduct of the officials, have been appended with the aforesaid letter. Without, however, being influenced by the same, I would plainly observe that the Labour Court had thoughtlessly issued the stay order, although the official had absolutely no entitlement to it, and the same has remained intact ever an abnormally long period of two years, and amounts to interfering with the smooth and normal working of an important wing of a corporate body. The earlier the order is vacated, the better it would be for the ends of justice. 6. The impugned order was rendered about two years ago on 26.6.1994. As per office report, the revision petition is barred by nearly 600 days. It is, however, to be borne in mind that, as already said, the order has been holding the field throughout, and by reason of an enduring wrong being caused to all those concerned, there was correspondingly a continuing cause of action, and the order could be assailed, through a permissible mode, at any time, and 1 would not treat the revision petition to be barred by the law of limitation. Even, otherwise, such a wrongful and unsound, invalid and void order cannot be permitted to operate any more; and I would vacate it,with the promptness and eagerness, so eminently and so vividly warranted by the situation. The revision petition is accepted and the stay order dated 26.6.1994 is vacated. (B.T.) Petition accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 84 [Service Tribunal N.W.F.P.] Present: hidayatullah khan and taj muhammad khan, members NISHAT SHAH-Petitioner versus CHIEF ENGINEER, IRRIGATION, N.W.F.P. and others-Respondents Appeal No. 311 of 1995, decided on 12.10.1995. Service matter- -Civil Servants-Retirement of -Cancellation of-Effect-Civil servant who was to retire after completing twenty-five years, service, was granted one year's leave prior to retirement (L.P.R.) but later on said retirement was cancelled and one year's L.P.R. was considered as extraordinary leavewithout pay on the ground that according to audit report civil servant had not completed twenty-five year's service-Challenge to-Civil servant was entitled to full pay for period of one year for which he was granted L.P.R. as leave was not granted to civil servant due to his fault, but responsibility rested with Authorities concerned who were bound to act and keep maintain records of officials of department according to lawrules and standing Government Instructions-Civil servant was allowed full pay for the period he enjoyed L.P.R. [P. 86] A Mian Fazli Amin, for Appellant. Muhammad Shaft, Government Pleader for Respondents. Date of hearing: 12.10.1995. judgment Hidayatullah Khan, Member.-This appeal has been filed by the appellant against the order of respondent No. 2 dated 28.12.1992, by virtue of which the retirement of the appellant was cancelled with the direction to rejoin duty, with further order that the appellant be treated as absent from duty with effect from 1.1.1992 to the date of issue of impugned order and the same has been treated as extraordinary leave without pay while departmental appeal of the appellant against the impugned order was not replied by respondent No. 1. It has been prayed that the impugned order be set aside, the retirement and pension of the appellant may be restored as the appellant has completed 25 years' service and he may be allowed full pay with other benefits for the period from 1.1.1992 to the date of issue of the impugned order. 2. Brief facts of the case as narrated in the appeal are that the appellant was appointed as Guage Reader vide order dated 1.6.1956. The appellant performed duties on various posts. The services of the appellant were regularised as Assistant Store Keeper vide order dated 29.7.1974. The appellant was further regularised as Surveyor Grade-II vide Notification dated 4.7.1977. After completion of his 25 years' service, the appellant submitted his case for the grant of pension to respondent No. 2, who passed the impugned order dated 28.12.1992 by holding that the appellant has allegedly not completed 25 years' service. Moreover, the period from 1.1.1992 to the issue of the impugned order was treated as extraordinary leave without pay. Aggrieved with the impugned order, the appellant preferred a departmental appeal but the same has not been responded so far. Hence this appeal. 3. Respondents have filed their reply, contested the appeal and denied the claim of the appellant. Arguments heard and record perused. 4. It was contended by the counsel for the appellant that the appellant was a regular Government servant of the Irrigation Department. He was granted 365 days L.P.R. vide order dated 30.12.1990 (Annexure F) with the memo, of appeal, in which it has been clearly stated that the official will stand retired from service on 31.12.1991 (A.N.) Counsel for the appellant argued that it was that respondent department who was responsible for the grant of L.P.R. to the appellant before his superannuation. The appellant could not be held responsible for any objection raised later on by the Audit Department regarding the determination of his age of superannuation. He further stated that the impugned order of respondent No. 2, dated 28.12.1992 is liable to be set aside and the appellant should be held retired and his pension be restored as the appellant has completed 25 years of service. 5. The learned counsel for the respondents argued that the Competent Authority i.e. A.G. N.W.F.P. had correctly observe that the appellant's appointment as Surveyor with effect from 1.6.1977 has to be treated as a fresh appointment. Since before, he was performing the duties in work charge capacity. His regularisation of past service as such was not permissible under the rules for determining the pension case of the appellant. Since the appellant had neither completed 25 years' service nor attained the age of superannuation, therefore, his premature retirement was not in accordance with rules. In compliance with the above, respondent No. 2issued the impugned order, which is correct according to law. 6. The counsel for the appellant further contended that the delay in re-joining the service was not due to the fault of the appellant. He was entitled to full pay with all other benefits for the period from 1.1.1992 to the date of issue of the impugned order by respondent No. 2. Since it is a pecuniaiy loss to the appellant, the respondents were not justified in treatingthe period as extraordinary leave without pay. 7. Counsel for the respondents had no reply to this contention. Noother issues were raised, nor any preliminary objections were made by the respondents in their replies to the memo, of appeal and their counsel while arguing the case. 8. The Tribunal differs with the contention of the counsel for the appellant, to set aside the impugned order and hold the appellant retired alongwith restoration of his pension as no cogent/valid reasons were advanced to warrant interference in tins respect, nor any law or rules were quoted in this respect. 9. The Tribunal however agrees with the contention that the appellant was entitled to full pay for the eriod from 1.1.1992 to the date of issue of the impugned order by respondent No. 2, which was passed on 28.12.1992. This delay of about one year was not due to any fault of the appellant but the responsibility rested with the respondents who were bound to act and keep/maintain the records of the officials of their department according to law, rules and standing Government Instructions. 10. The Tribunal, therefore, while partially accepting the appeal, allows full pay etc. to the appellant for the period frum 1.1.1992 to the date of issue of the impugned order by respondent No. 2. Parties are left to bear their own costs. File be consigned to the record. (K.K.F.) Order accordingly.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 86 [Labour Appellate Tribunal Sindh] Present: mushtak Ail kazi, appellate tribunal M/s. MALIK ICE FACTORY, KARACHI and anothers-Appellants versus MUHAMMAD SIDDIQUE and others-Respondents Appeals Nos. WCK-2 and 3 of 1995, decided on 17.1.1996. Workmen's Compensation Act, 1923 (VII of 1923)-- -Ss. 2(l)(n) & Sched. II, Rr. 3, 4 & 8-Contention that deceased persons were not workmen as defined under S. 2(l)(n) of Workmen's Compensation Act, 1923 as factory had employed less than ten persons-Heirs of deceased persons had done whatever they could do to show that factoiy had employed more than fourteen persons while employer could not produce any evidence in rebuttal--Employer could not produce any register to prove that factoiy had employed less than ten persons-Heirs of deceased persons, thus were entitled to get amount of compensation as deposited with Commissioner for Workmen's Compensation. [P. 87] A & B Saifuddin Channa, Advocate for Appellants. Raja Shamsuzzaman, Advocate for Respondents. decision These two connected appeals arise from the order of Commissioner, Workmen's Compensation and Authority under the Payment of Wages Act, Karachi East, whereby heirs of deceased, Faiz Hussain and Taj Muhammad working in the Ice Factory who lost their lives due to explosion in the factory, were awarded compensation of Rs. 1,00,000 each. 2. Mr. Saifuddin Channa appearing for the proprietor of the factory has first argued that the factoiy employed less than 10 persons and the deceased who lost their lives were not therefore workmen^as defined underthe Workmen's Compensation Act, since under section 2(l)(n), Schedule II, clause (ii) it is provided that 10 or more persons should have been employed in the manufacturing process of ice in the factoiy. Mr. Raja Shamsuzzaman has on the other hand argued that according to oral evidence the factory employed more than 10 persons because admittedly at least 7 persons worked in each shift of the factory and there were two shifts employing a total of more than 14 persons. That the documentary evidence being in possession of the factoiy proprietor was deliberately not produced, though summoned by the brother of the deceased worker. 3. It is true that the burden of proof lies on the heir of the deceased claiming compensation to establish that the ice factoiy in question employed more than 10 persons but they have done whatever they could under the circumstances to show that the factory employed more than 14 persons. On the other hand there is no evidence in rebuttal and no Registers have been produced to prove that the factoiy employed less than 10 persons. 4. It has next been argued by Mr. Saifuddin Channa that the compensation for death as provided in the Workmen's Compensation Act was originally Rs. 30,000 but the figure was raised from Rs. 30,000 to Rs. 1,00,000 as compensation by the President's Ordinance. The life of the Ordinance is only four months and instead of passing an Act another similarOrdinance was promulgated for continuance of the first Ordinance. That the Supreme Court has held that the President cannot usurp the powers of the legislature and go on repeating the Ordinance when the Assembly is in session. Mr. Raja Shamsuzzaman has on the other hand pointed out that the ruling quoted is reported in PLD 1994 SC 363 in the case of Collector of Customs, Karachi v. M/s. New Electronics Private Limited and 59 others. In that case the Bench consisted of two Judges Ajmal Mian, J. and Saleem Akhtar, J. Ajmal Mian, J. held that there is no restriction as to the powers of the Governor or the President to re-issue an Ordinance containing identical provisions which were the subject-matter of the expired Ordinance. Saleem Akhtar, J. gave a conflicting judgment that Article 89 does not permit reenactment of the same Ordinance promulgated earlier and the Ordinance is therefore void and of no legal effect. The case was therefore referred to the third Judge Sajjad Ali Shah, J. who held that: "After careful perusal of both elaborate judgments in conflict with each other I concur in the judgment proposed to be delivered by my learned brother Ajmal Mian, J."The majority judgment therefore prevailed. 5. Under the circumstances compensation of Rs. 1,00,0.00 each has to be paid to the heirs of the deceased workers as deposited with the Commissioner for Workmen's Compensation Act. 6. The orders of the Commissioner for Workmen's Compensation are accordingly maintained and the appeals are dismissed. (K.K.F) Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 88 [Labour Appellate Tribunal Sindh] Present: MUSHTAK Au KAZI, MEMBER MUHAMMAD GHANI and others-Appellants versus M/s. BROTHER COMBINE (PVT.) LTD., KARACHI and others-Respondents Appeals Nos. Kar. 201 and 219 of 1995, decided on 8th February, 1996 . Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 51-Back benefits-Question of-Employee who was dismissed fromservice on ground of misconduct was re-instated with order of Labour Court, but he was allowed only 25% back benefits for period of two years out of five years in which he remained out of service-Challenge to- Employee who claimed that for all five years he remained out of job andfor all that period he depended for support on his brother, could not provesame nor it was probable that employee would not be able to get work for all that period-Employee, thus, had rightly been allowed compensation only for first period of two years. [P. 90] A Khalil-ur-Rehman, Representative for the Workman. M. Khursheed Ahmed Siddiqui, for the Management. Date of hearing: 6.2.1996 decision These are cross-appeals arising from the order of Second Sindh Labour Court, Karachi, allowing the grievance petition of Muhammad Ghani, Chowkidar, for re-instatement but awarding only 25% back benefits for the period of 2 years out of 5 years. 2. The facts, in brief, are that the respondent was employed as a Chowkidar in the establishment of appellant at S.I.T.E. On 18.1.1990 thisChowkidar was arrested by the Police alongwith two others for theft of 42 packages of ABC Wool from the adjoining godown of the sister-concern of the appellants. This theft is said to have occurred on 1st day of February, 1990. The police sent up tl;e accused before the Second Additional City Magistrate, Karachi . The Chowkidar was allowed bail on 31.3.1990. On 5th of April the Chowkidar reported for duty in writing but it appears from the facts and circumstances of the case that the appellant-company was reluctant to take this Chowkidar on duty because he had been released on bail, and later on discharged on 28th of July, 1991 for non-production of witnesses of the case. The appellants, it is said, did not allow the espondent Chowkidar to resume duty and he kept coming to the establishment premises but he was being gate-stopped. 3. On 22.4.1990 a charge-sheet was drawn up against him for misconduct for remaining absent from duty without permission from 18.3.1990 to 22.4.1990. The Chwokidar replied on 5.5.1990 that he was not being allowed to enter the premises for performing duties in spite of his repeated requests. On 17.5.1990 the respondent Chowkidar was served ith notice of enquiiy but during this period also he was not allowed to be present at the enquiry. He sent telex, telegrams and applications for being allowed tobe present at the enquiiy. He was, then, dismissed from service on 20.6.1990 for remaining absent for more than ten days. Obviously the alleged misconduct was an excuse as the Chowkidar was all the time anxious to resume duty after he was released on bail but since he was suspected of theft from the adjoining godown of the sister-concern he could not be re-instated in service having been suspected of omission of theft. 4. The Chowkidar sent his grievance notice by registered post and since it was received by the appellants they afterwards denied that the contents of the envelopes were a grievance notice. The same was sent for the second time. It was also denied that the Chowkidar performed any manualwork. The Enquiiy Officer and the record of the enquiry proceedings were not produced before the Labour Court . The Chowkidar was also not served with the second show-cause notice before ordering his dismissal. The second show-cause notice is not considered absolutely necessary if no prejudice is shown to have been caused to the accused for want of such notice but in this case the accused was not being associated with the enquiry and it is allegedthat the enquiiy proceedings were fake and not genuine. The learned LabourCourt, therefore, held that the said Chowkidar was entitled to be re-instated in service on account of a defective domestic enquiry. The respondent Chowkidar was, however, allowed only 25% back benefits up to 25.1.1992 during which period he was said to have been without any job and he depended for support on his brother but it was not shown that for all the 5 years that he remained out of job as Chowkidar, he could not find any other employment and it was also considered unfair to burden the Management with back benefits for such a long period- He was not, therefore, granted the back benefits for all the 5 years for want, of evidence that he was not gainfully employed for such a long time. Back benefits cannot be claimed as of right if the worker is reins'-itud in the job. They are granted after considering the evidence on useri; - J the c,u.>e. Since it has not been proved that the respondent Chowkidar was dependent on his brother for all the 5 years nor is it probable that he would not be able to get work for all this period, he has rightly been allowed compensation only for the first two years he remained with his brother. 5. In the result the Order of the Labour Court is maintained and the appeal of the management as well as the cross-appeal filed by the Chwokidar are dismissed. Back benefits, if any, may be paid to Chowkidar Muhammad Ghani according to the order of the Labour Court and balance, if any, deposited may be refunded to the Management. (K.K.F.) Order accordingly.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 90 [Labour Appellate Tribunal Sindh] Present: MUSHTAK AU KAZI, APPELLATE T :. .. iuNAL GHULAM QADIR SIDDIQUI-Appellp >c versus Messrs ENGRO CHEMICAL PAKISTAN LTD., kARACHI-Respondent Appeal No. HYD-473 of 1995, decided on 21st December, 1995 . Industrial Relations Ordinance, 1969 (XXII of 1969)-- S. 25-A--Employee an AssistantDismissal from serviceChallenge to Employee not only refused to obey order of his transfer from one place of working to another, but he also showed highhandedness and fought with management because of order of transfer-If employee instead of fighting with management, had moved management showing his inability on account of his domestic problems his case might have been considered sympathetically but mere fight with management would not solve problem-Grievance petition filed by employee against his dismissal was rightly dismissed by Labour Court. [P. 91] A 1981 SCMR 631 ref. Ashraf Hussain Rizvi, Advocate for Appellant. Date of hearing: 21.12.1995. decision This appeal is directed against the order of the Vlth Labour Court , Hyderabad , whereby the order of dismissal of the appellant dated 21.10.1993 was maintained and the grievance petition for re-instatement was dismissed. 2. The facts in brief are that the appellant was employed as an Assistant in the Office of the Regional Manager of the respondent company at Hyderabad . He was transferred from Hyderabad to Multan on 1.8.1993. He did not hand over charge but filed a petition before the N.I.R.C. The N.I.R.C. issued Prohibitory Order against the employers. Meanwhile the appellant was served with the charge-sheet and an enquiry was held against him. After about 17 months the N.I.R.C. dismissed the petition filed by the appellant and in the domestic enquiiy the appellant was dismissed from service. The appellant challenged his dismissal and filed grievance petition before the Labour Court , Hyderabad . 3. His first grievance was that he had no knowledge of any enquiry against him, but it was discovered that the enquiry had been adjourned for hearing at the request of the appellant himself. The next objection raised was that the copy of the enquiiy report was not supplied to him but it wasfound that the appellant had defied the enquiry proceedings and not takenany part in the enquiiy and no prejudice was caused by non-supply of the enquiry report as held in 1981 SCMR 631. The learned Labour Court found that throughout the proceedings the conduct of the appellant revealed highhandedness, carelessness and disobedience. He refused to obey the Transfer Orders for Multan on one pretext or the other and openly disobeyed the management. That no case of reinstatement in setting aside ofthe order of dismissal was made out and the grievance petition was therefore dismissed. 4. In the course of this appeal also the same arguments have been repeated but they do not appear to be genuine nor convincing. The appellant is still in the move to fight the management because of the order of transfer from Hyderabad to Multan . If the appellant instead of rushing to N.I.R.C. should have moved the employer showing his inability, on account of domestic problems, his case might have been considered sympathetically ; but mere fight does not solve the problem. The employees should also learned to be respectful and obedient to the management. 5. I can find no substance in this appeal which is accordingly dismissed in limine. (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 92 [Labour Appellate Tribunal Sindh] Present: MUSHTAK ali KAZI, APPELLATE TRIBUNAL SHAHZAD ALAM-Appellant versus PRESIDING OFFICER, IVTH SINDH LABOUR COURT , KARACHI and another-Respondents Appeal No. KAR-405 of 1991, decided on 13.11.1995 . (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. l(4)(a) and S.O. l(b)(e) & 12-Termiantion of service-Challenge to--Employee remained in service of employer company continuously for more than nine years-During that period of nine years employer company had been appointing employee and terminating his services for twenty-seven times simply to keep him as a temporary worker and finally his services were terminated on ground that temporary work for which he was employed was completed-Held: Since work on which employee was appointed continued for about nine years, it could not be said to be of temporary nature-Services of a worker whether temporary or permanent, no doubt could be terminated under S.O. 12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for explicit reasons in writing, but in case of the employee, reasons for his termination were to circumvent West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 19U8 and Industrial Relations Ordinance, 1969~Termination of employee, thus was illegal in circumstances. [Pp. 93 & 94] A (ii) Industrial Relations Ordinance (XXIII of 1969)-- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.Os. l(b)(e) & 12(3)- Termination of service-Challenge to-Provision of S.O. 12(3) of (Standing Orders) ordinance, 1968 did not specify type of worker and it was applicable to all categories of workers whether temporary or permanent- Reasons given for termination of employee that temporaiy work for which he was employed had been completed, were stereo-typed as repeated termination and re-appointment of employee for about twenty-seven times within nine years showed that employer company carried on carried on manufacturing work continuously and there was no re organisation or retrenchment in company-Employee, thus was a permanent worker, but even otherwise his services as any type of worker, could not be terminated under S.O. 12(3) of (Standing Orders) Ordinance, 1968, without an order in writing explicitly stating reasons for termination-Termination of employee, thus was unlawful in circumstances. [Pp. 94 & 97] B & D (iii) Maxim -Actio personalis moritur cum persona (meanings) A personal action dies with person, i.e. the right to sue is gone. [P. 95] C Gohar Iqbal, Adovate for Appellant. A Hafiz, Adovate for Respondents. Date of hearing: 22.10.1995. decision This appeal arises from order of the Fourth Sindh Labour Court, Karachi rejecting the petition of the appellant and upholding the impugned order of termination of his service under S.O. 12(3) of the Standing Orders Ordinance. 2. The appellant was working as a Packer in the respondent Pharmaceutical Company. According to the order of termination the appellant had been appointed on 5.9.1988 for the work of temporary nature and his employment was terminated by an order dated 3.11.1988 under S.O. 12(3) of the Ordinance. The reasons mentioned were that the temporary work for which he was employed became over. 3. On the other hand it was the case of the appellant worker that the Company employed him continuously form 1979 to 1988 but to circumvent the Labour laws each time before completion of the 900 days work his services were terminated and he was re-employed again on the next day. This was only to keep him as a temporary worker. The appellant has produced orders of appointment dated llth November, 1980, 13.12.1981, 26.4.1982, 30.11.1982, 9.6.1983 and 6.2.1984 and so on until his terminationby order dated 5.9.1988 terminating his employment from 3.11.1988. 4. Since the work continued from the year 1980 to the year 1988 it cannot be said to be of temporary nature. Thus, the Company had been appointing the worker and terminating his services for 27 times from 11.11.1980 to 3.11.1988, though according to the learned Advocate for theCompany the appointment was not always for the job of Packer but he was employed in different categories of work. In any case his work cannot be said ; to be of temporary nature. It is true that under S.O. 12(3) of the Ordinance the services of a worker whether temporary or permanent can be terminated for explicit reasons in writing but in this case apparently the reasons were to circumvent the Standing Orders Ordinance and the Industrial Relations Ordinance. 5. Unfortunately while the appellant worker was persuing hisremedies by filing a petition under section 25-A of the I.R.O. after his termination on 3.11.1988 and after dismissal of this petition by perusing his appeal before the Tribunal, he died on 22.2.1992, while his appeal was pending before the Tribunal. The appellant had mentioned in his affidavitthat after termination of his employment he was not been controverted by the Pharmaceutical Company. His basic pay was said to be Rs. 1,100 per month. 6. Standing Order 12(3) of the Standing Orders does not specify the type of worker, and it is applicable to all categories of worker whether temporary for permanent. The reasons five for termination are however stereotyped as the circumstances of his repeated appointments show that the Company carried on manufacturing work continuously and there was no re organisation or retrenchment. 7. However the appellant died pending these proceedings and the question arises whether the appeal will abate or will survive for the benefits of his heirs. 8. The law commonly applied is, that the personal action also dies with the person: Actio pcrsonalis rnorter cum persona". In some decisions by this Tribunal it has been held that the decision has to be beneficial to labour and where there is any doubt the labour shall succeed. That accordingly action will continue for the benefit of the legal representatives. This has been held in 1991 PLC 722 Mst. Noorjehan v. Sindh Road Transport Corporation It was held by Ahmed Ali U. Qureshi, J. as Appellate Tribunal that labour laws having been enacted for welfare of the workers, Labour Appellate Tribunal and Labour Courts should accept the construction that was favourable to workman. That in the absence of specific provision as to whether in such case the rights of the petitioner would lapse or continue, the Tribunal and Labour Courts would accept the proposition favourable to theworkman. 9. But in the above case apart from the question of decision being favourable to workman the objective law has not been discussed whether theaction should continue or lapse and whether the heirs of the worker could be heard by the Labour Courts in place of the worker. Since under I.R.O. the scope of section 25-A is veiy much limited and even when the worker ceases to be a worker after his resignation or retirement, he cannot continue to prosecute his remedies before the Labour Courts. 10. The learned counsel for the Company is however of the view that after death of the worker his legal representatives not being workers cannot pursue the proceedings initiated by the worker because the labour laws allow only a worker to seek the remedy before the Labour Court as LRs. not being workers can approach ordinary Civil Courts for redress. On this point the learned Advocate has referred me to a decision of my learned predecessor Z.A. 'Channa, J. as Appellate Tribunal in Pakistan Railways v. Sibghatullah 1980 PLC 514. In that case the LRs. of the deceased worker were allowed to prosecute the grievance petition before the Labour Court for payment of Group Insurance. It was held by the Tribunal that the grievance petition abates on death of the petitioner. The idea being that only a workman had the right to approach the Labour Court or the Tribunal for any grievance. The Labour Appellate Tribunal Punjab has also taken the same view, in the case of Shabbir Husain Shah v. Pakistan Railways reported in 1984 PLC 1160. In that case the Labour Court dismissed the grievance petition praying fur re-instatement and back benefits of the workman. The worker died after the decision of the Labour Court. It was held in appeal by the Tribunal that the appeal was not maintainable by legal heirs of the deceased workman. It was also remarked by the Supreme Court. a Company PLD 1991 SC 183, in Muhammad Habib Khan u. Pakistan '/',- that the Sindh High Court, had held that the special remedy under section 25-A, I.R.O., 19G9 would only be available to the workman, though under the Workmen's Compensation Act the Commissioner had jurisdiction to adjudicate on the claim preferred by flic heirs of the deceased. A claim under the Standing Order 10-B is admissible to the workman as well as in the case of his death, to his heirs. The question before the Supreme Court was for payment of compensation to the heirs of the deceased worker on account of disability, suffered by the worker. The Supreme Court accordingly held that Commissioner under the Wcikraen's Compensation Act can award compensation to'the heirs of the deceased worker. The observation whether the special remedy under section 25-A uf the Industrial Relations Ordinance would be only available to the workman and not to his heir was not a matter in issue and the question remained undecided. 11. Since there is conflict <;f decisions on the point whether the legal representatives of deceased workman can continue the petitioner or appeal, initiated by the deceased worker, it would be expedient to trace the histoiy of the basic principle governing this law. The rational basis of this law is the legal maxim "act iu personal is moniur cum persona". The maxim was in use at common law in U.K. The use has gradually been restricted to criminal law only and some branches of civil law where the right to sue does not survive. 12. The abatement of action by death of the plaintiff had been greatly reduced by Law Reform Act, 1934 and the application of this maximhas been discontinued in cases under Law of Toils, where the right of action do not survive on the death of the party. Distinction has, however, been made between the two principles of punishment and compensation while with regard to punishment the liability terminate with the life of the wrong doer the claim for compensation survive. It has been stated by Sir John Salmond in Salmond on Jurisprudence" as under:-"It is now considered that although liability to afford redress ought to depend in point of origin upon the requirement ofpunishment, it should depend in point of continuance upon those of compensation. For this form of liability has once come into existence, it is a valuable right of the person wronged; and it is expedient that such rights should be held upon a secure tenure, and should not be subject to extinction by a mere irrelevant accident such as the death ofthe offender. There is no sufficient reason for drawing anydistinction in point of survival between a right of a creditor to recover his debt and the right of a man who has been injured by assault of defamation to recovercompensation forthe loss so suffered by him According to the common law an action for penal redress died not merely with the wrongdoer but also with the person wronged. This rule has been abrogated by statute in part only. There can, however, be little doubt that in all ordinaiy cases, if it is right to punish a person at all, his lability should not cease simply by reason of the death of him against whom his offence was committed. A right of the person injured to receive redress should second to his representative like any other proprietary interest." 13. The law regarding affect of death of the plaintiff or defendant inits application in civil matters is provided in Civil Procedure Code. Rule 1 of Order XXII provides that:- "the death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives." Right to sue is based upon facts, which go to make up what is called "the .cause of action". It includes a right to appeal or right to obtain relief by means of legal procedure. The right of service is purely personal and comes to an end on death of the person claiming it, but if there is a claim for compensation or damages also, the right devolves on the legal representative of the deceased but under the Civil Procedure Code the party must claim in time to bring the legal representative on record. If this right is provided for the common man there is no reason why the labour class should be deprived of "this right in the Labour Laws specially when these laws are enacted to provide special benefits to labour who are mostly illiterate and ill equipped to file litigation in Court. Mere accident of death of a worker should not result in defendant/management being absolved of the liability to pay the ^compensation of back benefits to legal representative of the deceased worker. ^ I, therefore, agree with the proportion that the worker's appeal relating to ^payment of compensation does not abate although the prayer with regard to re-instatement gets extinguished on account of death of the worker being a personal privilege not capable of assignment. 14. In the result the requirement of section 25-A of the I.R.O. is to be liberally construed in favour of the worker. If the worker has brought his grievance in Court the claim regarding payment of back benefits does not abate on his death if it is sought to be continued for the benefits of his L.Rs.The action is brought by the worker and not by the L.Rs. or non-worker. On death of the worker by legal fiction the action continues and the L.Rs. are merely substituted for the deceased worker. The original action continue and no new action is brought by the heirs of the deceased being non-workers. There is, therefore, no bar under section 25-A of the I.R.O., 1969. 15. The deceased appellant has, thus, been deprived of his compensation merely on the ground of non-continuance of the cause of action. He was a permanent worker but even otherwise his services as nay type of worker, could not be terminated under S.O. 12(3) of the StandingOrders Ordinance, 1968, without an order in writing explicitly stating the reasons for the termination. His termination is, therefore, unlawful. 16. The order of the Labour Court is, accordingly, set aside and it is directed that the back benefits counted from the date of termination untilthe death of worker may be paid to his legal heirs within thirty days. The appeal is allowed in terms of the above orders. (K.K.F.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 98 [Labour Appellate Tribunal Sindh] Present: mushtak ali kazi, appellate tribunal SHAHNAWAZ-Appellant versus NATIONAL MOTORS LTD., KARACHI-Respondent Appeal No. KAR-272 of 1995, decided on 28.9.1995 . Industrial Relations Ordinance (XXIII of 1969)-- Ss. 25-A read with West Pakistan Industrial and Commerciajr"Employment (Standing Orders ) Ordinance (VI of 1968), S.O. IS--"""Misconduct-Allegation of-Dismissal from service-Challenge to-Appeal filed by co-employee was accepted by Labour Appellate Tribunal with full -~ back benefits, whereas appeal of employee which though was filed alongwith appeal of co-employee, was not kept connected with appeal of co-employeeDecision of Labour Court though as a whole was set asideby Labour Appellate Tribunal, but relief was granted only to co-employee and appeal of said employee remained pending-Case of both employees arose from same transaction and with same facts and it had not been shown as to how case of employee could be distinguished from that of coemployee-Since order passed by Labour Court in respect of grievance ' petitions of both employees had been set aside by Appellate Tribunal, it could not be restored for the case of employee-Judgment of Appellate Tribunal, thus would govern both cases including that of employee because decision of Labour Court as a whole had been set aside and employee could also be re-instated with full back benefits like coemployee. [P. 99] A Ali Amjad and Faiz Ghanghro, for Appellant. Qamruddin Hassan, for Respondent. Date of hearing: 28.12.1995. decision Pervez Iqbal and Shahnawaz, workers of National Motors Ltd^ Karachi, were charged with misconduct as they had entered the Canteen and insisted for the lunch being served to them at 12.00 noon instead of the appointed time of 12.30 p.m. They had exchanged hot words with the Canteen Manager and this had resulted in a row creating problem for the management. Both these workers were charge-sheeted and dismissed from service. They filed their grievance petitions before Labour Court No. 2 at Karachi and their petitions were rejected and dismissal was upheld. 2. The case of petitioner Pervez Iqbal was that at the relevant time he was undergoing treatment and was getting drip at the Hospital. The other petitioner Shahnawaz also denied his presence in the Canteen at that time. The learned Labour Court disposed of the case of both Pervez Iqbaland Shahnawaz by a common judgment and held that both the applicants were present at the time in the Canteen when the incident occurred and the Enquiry Officer had given a correcting finding. 3. Both the petitioners then preferred their appeals arising out of the same transaction before the Labour Appellate Tribunal. 4. Mr. Justice Agha Ali Hyder heard the appeal of Pervez Iqbal and held that the impugned order of the Labour Court could not be sustained. The order was therefore set aside and the appeal was allowed with full back benefits. Directions were issued for re-instatement of appellant Pervez Iqbal within a month. 5. Unfortunately the appeal of Shahnawaz was not kept together with the appeal of Pervez Iqbal although the decision of the Labour Court as a whole was set aside, the relief was granted only to Pervez Iqbal and the appeal of Shahnawaz remained pending. 6. Since the whole order passed in respect of petitions of Pervez Iqbal and Shahnawaz has been set aside it cannot be restored by this Tribunal for the case of Shahnawaz. The case of both these petitioners arise from the same transaction with the same facts as they both took the pleasthat they were not present in the Canteen at the time of occurrence. It has not been shown how the case of Shahnawaz can be distinguished from that of Pervez Iqbal except that while Pervez Iqbal was having a drip in the Hospital, Shahnawaz was having a separate lunch outside the Canteen at 12.30. 7. Under the circumstances the judgment of Mr. Justice Agha Ali Hyder will govern both the cases including that of Shahnawaz because the decision of the Labour Court as a whole has already been set aside. Appellant Shahnawaz may also be re-instated with full back benefits within one month from the date of this order. (K.K.F.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 100 [Labour Appellate Tribunal Sindh] Present: MUSHTAK ALI KAZI, APPELLATE TRIBUNAL MUHAMMAD YOUNUS-Petitioner versus PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI through CHAIRMAN/MANAGING DIRECTOR, KARACHI-Respondent Appeal No. KAR-39 of 1995, decided on 3rd December, 1995. Industrial Relations Ordinance (XXIII of 1969)-- -Ss. l(3)(c) & 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. l(4)(c)-- Grieyance petition-Maintainability of-Question of-Employee serving under (P.I.A.) was removed from service after issuing show-cause notice, but without holding an enquiryEmployee filed departmental appeal at time when every employee of P.I.A. was deemed to be a "civil servant"-- During pendency of Departmental appeal, West Pakistan Industrial andCommercial Employment (Standing Orders) Ordinance, 1968 was made applicable to employees of P.I.A.-Employee after rejection of his departmental appeal, instead of filing second departmental appeal, filed grievance notice and then grievance petition before Labour Court which was rejected-After rejection of Departmental appeal a fresh cause of action had accrued to employee and since at that time West PakistanIndustrial and Commercial Employment (Standing Orders) Ordinance, 1968, had become applicable to employee, his grievance petition should have been heard on merits instead of rejecting same especially when rejection of grievance petition was not provided under IRO 1969-- Decision of Labour Court is set aside and case is remanded for being heard and decided on merits. [Pp. 102 & 103] A & B Ch. Muhammad Ashraf Khan, for Appellant. Amir Malik, for Respondents. Date of earing: 27.11.1995. decision This is an appeal arising from the order of Fourth Sindh Labour Court, Karachi , dated 22.1.1995 whereby the grievance petition of the appellant under section 25-A of the I.R.O., 1969, for re-instatement was dismissed, on an application under Order VII, Rule 11, C.P.C 2. The facts, in brief, are that the appellant was a permanent employee in Group-IV in the P.I.A. designated as Traffic Supervisor. Two passengers, Shabbir Chaudhary and Muhammad Shareef, complained that on 24.5.1988 while travelling from Karachi to Faisalabad they had despatched one brief-case alongwith other luggage at the Counter of PK-366 for Karachi to Faisalabad Flight when Muhammad Younus, appellant, was the Traffic Supervisor Incharge at that Counter. They afterwards found 40 Tolas of gold and currency consisting of ten thousand rupees notes missing from the brief-case. The appellant's case was that the condition of brief-case was defective with loose locks. He had advised the passengers to take the brief-case with themselves as hand baggage but they had insisted on sending the brief-case alongwith other luggage. The appellant was, thereafter suspended from service by order, dated 25.5.1988. The Loader, one Shafiquddin, was also suspended but later on his order of suspension was withdrawn while the appellant was issued a show-cause notice. He was heard in person and then removed without any enquiiy. The appellant was removed from service by a letter dated 1/2-1-1989. This letter was delivered to him on 21.1.1989. Feeling aggrieved the appellant submitted a Departmental Appeal under the prevailing rules on 29.1.1989. At the relevant time under P.I.A. Act, 1956 the employees of PIA were declared to be governed by Essential Services Act as civil servants. On 2.12.1991 the appellant was informed that his appeal filed before the Federal Service Tribunal was dismissed on 3.11.1991 on the ground that the appeal was time-barred, since in those days Departmental appeal was not mandatoiy and the appeal before the Service Tribunal was required to be filed with thirty days of the dismissal. The appellant, then, preferred an appeal to the Supreme Court but that appeal was also dismissed on the ground that the appeal before the Federal Service Tribunal was time-barred having been filed after 4 months of the date of dismissal order. 3. This appeal filed before the Supreme Court was dismissed on 11.3.1992. A review petition was also filed before the Supreme Court but that too was dismissed in October, 1992. 4. The appellant, thereafter, kept pressing for a decision by the P.I.A. on his Departmental Appeal but every time he was given the reply that he should wait till he is informed by the Competent Authority. Ultimately by a letter dated 8.5.1994 received by him on 13.6.1994 the appellant was informed that his appeal was dismissed on merits by the P.I.A. 5. In the meantime Pakistan International Airlines Corporation Act, 1956 was amended on November, 2, 1989 and section 10(1), (2), (3) and (4) were omitted. Under this section the service under the PIA Corporation had been declared to be Service of Pakistan and eveiy employee of P.I.A.C. had been deemed to be a "civil servant" while under subsection (4), Industrial and Commercial Employment (Standing Orders) Ordinance was made not applicable to the employees of the Corporation. Thus, after this amendment of November, 2, 1989 the employees of the Corporation were also to be governed by the Standing Orders Ordinance and the Labour Laws. Since the order of dismissal passed against the appellant became final, on dismissal of his Departmental Appeal on merits, he served the Corporation with a grievance notice under section 25-A of the I.R.O., 1969 as a workman under the Standing Orders Ordinance, 1968. 6. It was held in the case of Allied Bank of Pakistan v. Tariq Mehmood Qamar 1980 PLC 106, that where appeal had been filed against the termination of service to the management the termination became final from the date of rejection of the appeal and the limitation was to run from the date of rejection of the appeal and not from the original order. This was on the analogy that right to sue accrue under Article 120 of the Limitation Act after excluding the period of two months' notice under section 80 of C.P.C. 7. It was also held in the case of Shakoorullah Khan v. Pakistan ailways 1983 PLC 340 that "the appellant was entitled to wait for a reasonable time for decision on his appeal before serving the employer with the grievance notice in preferring the grievance petition. 8. On this point it has been argued by the learned Advocate for the appellant that the appellant may file the appeal either after waiting for a reasonable time for the decision of his Departmental Appeal or he may file the same after actual decision of his Departmental Appeal and if the appeal before the decision of the Department was not heard because it was timebarred, the appeal after the decision by the Department could be filed as being within time and would not be barred by res judicata since the first appeal has not been heard on me'rits. 9. In the present case since Standing Orders have been made applicable to employees of the PIA Corporation and these orders applied to the case at the time when order of dismissal became final to rejection of the Departmental Appeal the employee instead of filing a second appeal filed a grievance notice under section 25-A of the I.R.O., 1969 on getting no reply he filed the grievance petition under section 25-A. 10. It has been admitted that no domestic enquiry was held against the appellant nor was any compensation paid to the complainant regarding theft of his gold and currency. Under these circumstances the Labour Court could not reject the grievance petition under Order VII, Rule 11, C.P.C. as rejection of the grievance petition is not provided under the I.R.O. Under section 36 of the I.R.O. the Labour Court can exercise power of a Civil Court only far the purpose of adjudicating and determining any industrial dispute and these are, procedural powers such as enforcing attendance of witnesses, production of documents or issuing commission and such other powers as are similar to these powers, ejusdem generis, as held in 1973 PLC 111, Brooke Bond (Pakistan) Limited v. Sindh Labour Court , Karachi and another by Tufail Ali, C.J. and Fakhruddin, J. 11. In view of the above discussion, even if the appeals filed before the decision on Departmental appeal were dismissed on the ground of limitation, the right of appeal which accrued after the decision of the Departmental Appeal on merits gave a fresh cause of action, and since by that time the Standing Orders Ordinance became applicable to P.I.A. Employees the grievance petition should have been heard on merits and not rejected under Order VII, Rule 11, C.P.C. The decision of the Labour Court , dated 22.1.1995 is, accordingly, set aside and the case is remanded for being heard and decided on merits. (K.K.F.) Order accordingly.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 103 [Labour Appellate Tribunal Sindh] Present: MusHTAK ALI kazi, member. CH. MASOOD AHMED and others-Appellants versus Messrs PAKISTAN MACHINE TOOL FACTORY LIMITED (P.M.T.F.), LANDHI, KARACHI and others-Respondents Appeals Nos. KAR-475 and KAR-486 of 1993, decided on 7.12.1995. West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968)-- -S.0.15(3)-Removal from service-Challenge to-Employee due to delay in payment of medical expenses, had written a very strong letter to employer in which he used veiy filthy and abusive terms for employer-Employee was removed from service after issuing him charge-sheet-Law does not allowing this type of hooliganism in factories-Orderly behaviour expected of all workers with regard to management-A worker not supposed to call such filthy names regarding his employerAct of employee was subversive of discipline, constituting grave misconduct warranting disciplinary action under (Standing Orders) Ordinance, 1968- -Order of Labour Court re-instating employee, is set aside, in circumstances. [P. 105] A AshrafHussain Rizvi, for the Worker. Muhammad Humayun, for the Management. Date of hearing: 7.12.1995. decision This appeal arises from the order of the Fourth Sindh Labour Court, Karachi, whereby the grievance petition of one Ch. Masood Ahmed for reinstatement was allowed but without any benefits. 2. The facts in brief are that respondent Ch. Masood Ahmed was employed as a fitter in the appellant Machine Tool Factory, Landhi, Karachi . ; He was a permanent workman with 20 years of service. The respondent Ch. Masood Ahmed was earlier removed from service and thereafter reinstated. During the interval he had fallen ill and he had demanded medical expenses bill, payment of which had been delayed by the management. The tamper of the respondent was already high and he was not pleased with the management. On the top of it the re-imbursement of medical charges took a long time. He therefore got annoyed and wrote a very strong letter to the management dated 23.6.1986. In that letter he used filthy and abusive terms for his employers calling them with innuendo such as: 3. The context in which these filthy and abusive phrases were used for the management is reproduced below for proper evaluation of the tamper of the respondent: 4. The respondent wag therefore vhwu I vm&WSSt Uil misconduct dated 14th July, 1986, describing the above act on the part of the respondent, as subversive of discipline, constituing grave misconduct Lisciplinary action under the West 5. But by that time the respondent, who appeared very clever, left the Machine Tool Factory on leave and proceeded to his native place somewhere in the Punjab. This charge-sheet was accordingly sent to him by registered post on 17.7.1986. This was within the period of 30 days as required under Order 15(4) of the Standing Orders Ordinance. 6. In fact a person who gives such filthy abuse to his employer has sufficient knowledge of its consequences that a charge-sheet would follow. In fact this was a challenge hurled at his employers and he left the Machine Tool Factory and returned to his native place in the Punjab perhaps under the impression that after such conduct, no employer possibly tolerate him. 7. The learned Advocate for the respondent has raised two objections to his dismissal; firstly that the use of abusive language for the employer is not an act of misconduct under Order 15 of the Standing Orders Ordinance. The language used in the charge-sheet that "the aforesaid act on your part is subversive of discipline and constitutes grave misconduct which warrants disciplinary action against you under West Pakistan Standing Orders Ordinance, 1968", does not cover such misconduct relating to use of abusive language by letter". According to the learned counsel the act subversive of discipline under subsection 3(h) is to be read together with disorderly behaviour during working hours at the establishment being termed ejusdem generis. Since the writing of letter was not during working hours in the establishment such letter would not be prohibited under subclause (h). This sub-clause has however not been used in the charge-sheet. What has been stated in act of grave misconduct under the Standing Orders Ordinance so that it has to be seen whether such an act is included in the list of acts and omissions under sub-clause (3) of section 15 or not. Moreover, another point arises whether the list of illustrations given under subsection (3) is to be considered as exhaustive or is a guide for such acts of misconduct which are to be punished. For instance sub-clause (a) shows willful insubordination and these insults to the management also fall under the phrase wilful insubordination which is also punishable by dismissal as a misconduct. 8. The next point urged by the learned counsel is that the chargesheet was actually received by the respondent at his native place on 29.7.1986. That this was late by 5 days beyond the period 30 days allowed. It is a well known proposition of law that Post Office Words as an agent of the addressee and delivery to Post Office, amounts to delivery to the addressee himself. Under the Contract Act, acceptance of proposal despatched in due course, by post, is complete from the time of despatch, notwithstanding any delay\or miscarriage in arrival from causes not within the control of the accepter". It has not been alleged that the charge-sheet was sent on a wrong address or was misdirected. Therefore the date of delivery would be the date of despatch on 17.7.1986 and therefore within time. Even otherwise as already stated the respondent who wrote such obusive letter had sufficient knowledge that he had committed a misconduct, for which he would be charge-sheeted and punished. The law does not allow this type of hooliganism in the factories. Orderly behaviour is expected of all the workers with regard to the management. A worker is not supposed to call such names regarding his employers, and get away with it, nor does he suppose that later would come to his rescue because he is the labourer. This is not the purpose of the labour laws to encourage indiscipline in the factories. 9. The oi'der of the Labour Court re-instating the respondent is therefore set aside. The connected cross-appeal for not granting the back benefits also becomes infructuous. In view of the finding regarding reinstatement, the appeal of M/s. Pakistan Machine Tool Factoiy is therefore allowed and the cross Appeal of Ch. Masood Ahmed the fitter is dismissed. (K.K.F.) Order accordingly.
PLJ 1997 Tr PLJ 1997 Tr.C . ( Labour ) 106 [ Labour Appellate Tribunal Sindh ] Present: mushtak ali kazi, appellate tribunal ALI AKBAR BOZDAR-Petitioner versus THE PRESIDING OFFICER, SIND LABOUR COURT NO. VIII, LARKANA and another-Respondents Industrial Relations Ordinance, 1969 (XXIII of 1969)- -S. 25-A-Grievance petition-Limitation-Grievance petition against order of employer corporation filed by employee after expiry of limitation period of three months-Employee sought condonation of such delay contending that since deductions were made from his salary every month, case was of continuing wrong-Contention of employee was repelled by Labour Court holding that cause of action arose when employee was ordered to pay misappropriated amount and mode of payment by instalments could not convert that wrong as a continuing wrong. [P. 107] A Inayatullah Mario, for Appellant. Date of hearing: 20.12.1995. decision Heard Mr. Inayatullah Mono for the appellant. The appellant serving as Purchase Officer, was found guilty of misappi'opriations which were ordered to be recovered from his monthly salaries by way of installments. After the expiry of the limitation period of three months, the petitioner served the Corporation with his grievance notice and then filed his grievance petition with an application under section 5 of the Limitation Act for condoning the delay. This application was dismissed and so also the grievance petition. Mr. Inayatullah Morio has argued that since the deductions are made from his salaries every month, this is case of continuing wrong. It has, however, been rightly held by the Labour Court that the cause of action arose when he was ordered to pay the amount misappropriated. The mode of payment of installments cannot convert that wrong as a continuing wrong. 2. The order of the Labour Court is accordingly maintained and the appeal is dismissed in limine . (K.K.F.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 107 [Labour Appellate Tribunal Sindh] Present: mushtak ALi kazi, appellate tribunal MUHAMMAD SULTAN-Appellant versus HYDERABAD DEVELOPMENT AUTHORITY through Director-General, Civil Centre, Hyderabad-Respondent Appeal No. HYD-8 of 1994, decided on 19th December, 1995 Industrial Relations Ordinance (XXIII of 1969)-- S. 25-A-Promotion--Question of-Contention that instead of Plumber employee should have been promoted as Junior Operator-Employee could not show any law or settlement under which he could claim his promotion as Junior Operator-Matter of promotion to a particular post not being industrial dispute, same could not be agitated in grievance petition under S. 25-A of IRO 1969 before Labour Court. [P. 108] A Appellant in person. Syed Masood All for Respondent. decision The appellant was appointed as valveman BPS-3 in H.D.A. He was then promoted ,as Pressure Mistiy BPS-5 and thereafter as a Plumber in BPS-6. His grievance was that instead of Plumber he should have been promoted as Junior Operator. The learned Vlth Labour Court , Hyderabad dismissed the grievance petition holding that the appellant had no legal right guaranteed or secured to claim his promotion as Junior Operator. The appellant has therefore appealed. 2. Syed Fasahat Hussain Rizvi, Advocate for the appellant has remained absent. Appellant has therefore been heard in person. He cannot show any law or settlement under which he can claim his promotion as Junior Operator. The appellant states that the post of Junior Operator is also in Grade-VI but there is opening for further promotion from that post. As Plumber, he cannot get higher promotion as a mechanic. These are not the matters which can be agitated in a petition under section 25-A of the I.R.O. This is not an industrial dispute which can be considered by the Labour Court . There is no substance in this appeal which is accordingly dismissed. (K.K.F.) Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 108 [Labour Appellate Tribunal Sindh] Present: MUSHTAK ALIKAZI, APPELLATE TRIBUNAL PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director, P.I.A.C., Karachi and 6 others-Appellants versus AMJAD HUSSAIN CHOUPHRYand another-Respondent Appeals Nos. KAR-128 and KAR-168 of 1995, decided on 2nd November, 1995. Industrial Relations Ordinance (XXIII of 1969)- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15-Dismissal from service-Re-instatement-Fresh enquiry-Employee working as Accounts Assistant, was dismissed from service after serving charge-sheet and holding domestic enquiiy against him on allegation of committing fraud and misappropriationGiving opportunity to employee for crossexamination jpf witness, was enough compliance with principles of natural justice it was not obligatory for Labour Court to direct fresh enquiry just because employee who had cross-examined certain witnesses and declined to cross-examine others at relevant time, wanted at later stage to cross-examine witnesses-Charge-sheet though was given to employee after more than thirty days' time as allowed under S.O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but since employee during preliminary enquiry had himself admitted his guilt, no prejudice was caused to employee if show-cause notice or charge-sheet was delayed, especially when same was issued after holding preliminary enquiiy of which employee had knowledge-Employee who was found guilty of offence on basis of which he was dismissed from service, could not be re-instated. [Pp. 110&1111A&B Amir Malik for the P.I.A.C. Nishat Warsi for the Workers. Date of hearing : 2nd November, 1995. decision These are two cross-appeals arising from the judgment of Fourth Sindh Labour Court, Karachi, whereby the grievance petition of Amjad Hussain Choudhry was partly allowed and he was ordered to be re-instated for the of purpose of holding a fresh domestic enquiiy but he was not granted the back benefits, while the employers Pakistan International Airlines Corporation have filed appeal against this temporary re instatement, the employee Amjad Hussain Choudhry has filed appeal against the order for withholding the back benefits. 2. The facts of the case in brief are that the employee Amjad Hussain Choudhry was appointed as Accounts Assistant in P.I.A. on 1-4- 1977 in Group IV. During the course of his duties he was found to have prepared forged Bills and Cash Memos. in the name of Subhan a Petty Contractor of P.I.A. and also 17 other vouchers regarding office equipment and 2 other vouchers of claiming mileage allowance. These vouchers were cashed and an amount of Rs. 3,13,045 were found to have been misappropriated. During the preliminary enquiiy the statement of Amjad Hussain Choudhry was recorded and he made confession regarding this defalcation. He was then charge-sheeted and 20 witnesses were examined against him during the domestic enquiiy. He cross-examined some of these witnesses but declined to cross-examine some other witnesses though full opportunity to cross-examine was allowed to him by the Enquiiy Officer. This fact has been admitted in his cross-examination by Amjad Hussain Choudhry. He admits that the Enquiiy Officer wrote down "no crossexamination by the defendant, opportunity given" and under this he admits to have signed this statement. He admits that he cross-examined P.Ws. 3 and 5 but not P.W. 4 likewise he had not cross-examined P.Ws. 6 and 7 and signed these statements where no cross-examination was written by the Enquiiy Officer. 3. The learned Labour Court framed issue No. 2 whether the charge of committing fraud in respect of Rs. 3,13,045 had been proved and his finding was that these pay vouchers appeared to have been clearly forged and the amount of Rs. 3,13,045 had been misappropriated. That the petitioner Amjad Hussain Choudhry had committed this fraud for which he was charge-sheeted by notice dated 22-7-1990. That this amount was found to have been misappropriated even by the Investigating Officer of P.I.A. and on his report the above show-cause notice was issued to him. In the preliminary investigation petitioner Amjad Choudhry had accepted his guilt in the presence of witnesses. His statement was recorded and entered in the preliminary report. The applicant was given opportunity to cross-examine the said witnesses but he did not avail of the opportunity. The petitioner had signed each page of the statement of P.Ws. in the domestic enquiry. The finding of the learned Labour Court on this issue is "I have gone through the enquiry proceedings and on careful examination of 20 prosecution witnesses and record of the respondent and find that the charge of fraud of Rs. 3,13,045 has been proved beyond any reasonable doubt and the Enquiry Officer has rightly decided the enquiry against the applicant ............. In view of the above discussion I hold that the charges of committing fraud of Rs. 3,13,045 has been proved against the applicant". However the learned Labour Court found that certain witnesses for the prosecution had not been crossexamined by the petitioner though he had admitted signatures on each page of the enquiry proceedings but just because, the petitioner has alleged that he had not been given "a fair" opportunity to cross-examine these witnesses the Labour Court directed a fresh enquiry for the purpose of crossexamination and meanwhile ordered re-instatement of the petitioner without allowing back benefits as he thought the back benefits depended on the findings of the Enquiiy Officer after allowing cross-examination. 4. It has been rightly argued by Mr. Amir Malik, Advocate for P.I.A that if an opportunity was allowed to the petitioner to cross-examine the prosecution witnesses and he had cross-examined some of the witnesses but not the others and signed all the statements, there is no reason why a fresh enquiry should be ordered under the circumstances. The opportunity given for cross-examination is enough compliance with the principles of natural justice and it is not obligatory for the Labour Court to direct a fresh enquiry just because the petitioner now wants to cross-examine the witnesses whom he had .declined to cross-examine formerly. Having come to the conclusion that the petitioner as Assistant Cashier had committed misappropriation of more than three lacs, there was no need to re-open the evidence on this issue. 5. Mr. Muhammad Nishat Warsi for Mr. M.L. Shahani has on the "other hand argued that the defalcation took place in the year 1989 but the Ajcharge-sheet was given on 22-7-1990 after more than 30 days time allowed lunder the Standing Order 15(4) of Standing Orders Ordinance, 1968. To this Mr. Amir Malik replies that the defalcation was reported to the Managing Director after the report of the preliminary enquiry. That the petitioner had confessed his guilt during the preliminary enquiry. He had therefore knowledge of the enquiiy even before the report was submitted to the Managing Director that since during the preliminary enquiry the applicant had admitted his guilt no prejudice is caused to the applicant if the showcause notice was delayed but in this case show-cause notice was issued on 22-71990 after preliminary enquiiy of which the applicant had knowledge. It has been decided by the learned Labour Court that the show-cause notice therefore cannot be said to have been time-barred and I can see no reason to hold otherwise. 6. In the result the order of the Labour Court regarding reinstatement of the petitioner in service within 30 days and holding a fresh enquiry within two months is set aside. The respondent having been found guilty could not be re-instated in service. The question of payment of any back benefits will not therefore arise nor is it necessary to hold a fresh enquiry. Both the appeals are disposed of in terms of this order. (K.K.F.) Order accordingly.
PLJ1997Tr PLJ1997Tr. C. Ill [Labour Appellate Tribunal Sindh] Present : MUSHTAK ALI KAZI, APPELLATE TRIBUNAL NATIONAL BANK OF PAKISTAN , KARACHI-Appellant versus AINUL HAQ-Respondent Appeal No. HYD-3 of 1993, decided on 17th October, 1995. Industrial Relations Ordinance (XXIII of 1969)-- -S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1 (4), proviso 1 & S.O. 15- National Bank of Pakistan (Staff Service) Rules, 1973, R. 39-Dismissal from service-Challenge to-Employee who had dishonestly misappropriated and disposed of pledged goods and left nothing in the godown, could not be re-employed in Bank where people reposed confidence and entrusted their valuables-Delay in preferring chargesheet to employee would not vitiate enquiiy and subsequent orders of his dismissal especially when he being employee of National Bank was governed by Bank's own statutory Rules and not by S. O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which allowed only one month's time from date of misconduct for service of charge-sheet-Order of Labour Court re instating employee in service, are set aside, in circumstances. ! [P. 113 & 114] A, B & C ' Gulzar Ahmed, Advocate for Appellant. Respondent in person. Date of hearing: 17th October, 1995 decision Heard Mr. Gulzar Ahmed for the appellant National Bank. Respondent Ainu! Haq has been heard in person because his Advocate has failed to appear for the last several hearings and there is no likelihood of the respondent being represented by his Legal Advisor. This appeal arises from the order of the Vlth Sindh Labour Court, Hyderabad whereby the petition of the respondent under section 25-A of the I.R.O. was allowed and he was re-instated with full back benefits. 2. The facts of the case in brief are that the respondent was working as a Godown Inspector on a salary of Rs. 3,750 per month at National Bank, ain Branch, Mirpur Khas. According to evidence in the years 1987, 1988 and 1989 30,000 mounds of Phutties and 75,000 Ibs cotton seeds were stored in the godown under signature of the respondent. In the year 1989 when the godown was inspected the above stock of cotton goods and cotton seeds was found missing from the godown, the respondent under orders of the Head Office proceeded on L.P.R. from 1-1-1990 for 365 days and left. Meanwhile he had already been charge-sheeted on 8-12-1990 before he proceeded on L.P.R. for misappropriation of cotton pods and cotton seeds worth Rs. 30,00,000 and 15,00,000 respectively. A domestic enquiiy was held and he was found guilty by the Enquiry Officer and dismissed by the Appointing Authority on 30-12-1990 one day before the appointed date of his retirement. 3. It is the case of the respondent that the godown was being inspected eveiy month but the goods were found to be intact. That before proceeding on LPR he had not handed over physical charge to his successor but the Manager had taken over charge on paper. Muhammad Ali Godown Inspector succeeded him and took physical charge on 14-12-1988 after the respondent had proceeded on LPR but the loss had already been detected on 14th December, 1988 when the respondent was in service. The action was taken against him in December, 1990 after two years because the file was moving around in the Department. 4. It is the case of appellant that the employees of National Bank are governed by their own Statutory Rules of Efficiency and Discipline and not by the Standing Order 15(4) allowing only one month's time from the date of ^ misconduct for service of the charge-sheet. In this case the charge-sheet was served on 8th December, 1990 when the loss was detected on 14th December, 1988. Mr. Gulzar Ahmed makes a statement that under the National Bank Rules no time limit is fixed for service of the charge-sheet. Rule 39 of the National Bank of Pakistan Staff Srvice Rules, 1973 is as under :-- "39. Disciplinary action-Procedure.-t-lt) Before it is decided to impose any penalty on an employee under rule 36 for an offence of which he has reported guilty, he shall be called upon by the Competent Authority to render a written explanation of the charges against him and show cause by such date as may be specified in this behalf as to why disciplinary action should not be taken against him. The employee's explanation together with the charges against him shall be submitted to the authority competent to award the punishment." 5. This rule does not provide any time limit for service of notice from the date of misconduct. These are the rules for National Bank Staff while the Standing Orders Ordinance is a general enactment. Under the Standing Orders Ordinance, 1968. Order I proviso, the Special Statutory Rules of Service applicable to the workman shall apply, and not the -' Ordinance. Proviso reads as under :--"Provided that nothing in this Ordinance shall apply to Industrial and Commercial Establishment carried on by or under the Authority of the Federal or any Provincial Government, where Statutory Rules of Service, conduct or discipline are applicable to the workman employed therein." 6. Therefore, the delay in preferring the charge-sheet does not vitiate the enquiry and subsequent orders of dismissal. 7. The respondent was a Bank employee who had been entrusted with movable property worth several lacs of rupees and he dishonestly misappropriated and disposed of the pledged goods and left nothing in the godown, before proceeding on L.P.R. and yet he has the check to come back and claim re-instatement in service, under the Standing Orders Ordinance. ' Such persons cannot be employed in the Banks where people repose confidence and entrust their valuables. Once the Banking system fails the country will be faced with another disaster. The commercial transactions will lease their sanctity, and trade and commerce will cease. 8. The orders of the Labour Court are accordingly set aside and the , appeal of the National Bank is allowed. The Bank benefits deposited by the "" Bank may be refunded. (K.K.F.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 114 [Labour Appellate Tribunal Punjab ] Present: sh. abdul waheed, appellate tribunal NASIR ALI and others-Appellants versus FACTORY MANAGER/PERSONNEL MANAGER, LYALLPUR COTTON MILLS, FAISALABAD-Resondent Appeal No. FD-216 of 1995/Pb., decided on 17th October, 1995. Industrial Relations Ordinance (XXIII of 1969)-- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 11-A-Closure of establishment-Termination of services-Challenge to-Since it was not possible to run Mill any more, an agreement was executed between employer and Collective Bargaining Agent (C.B.A.) representing employees and on basis of that agreement Mill was closed-Service of show-cause notices upon employees, in circumstances was not a prerequisite and in terminating services of employees, provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, had been flouted-Grievance petition filed by employees against their termination from services, was rightly dismissed by Labour Court in circumstances. [P. 115] A 1994 SCMR 2213 ref. Ch. Muhammad Bashir, Kh. Tariq Masud, Ch. Muhammad Ikram Zahid and Mian Ajmal Latiffor Appellants. <-.. Saleem Baig for Respondent. Date'of hearing : 4th October, 1995. judgment The instant decision would dispose of as many as 19 Appeals (Nos. FD-216/95 to 22/95, 232/95 to 236/95 and 239/95 to 241/95), having been preferred by the unsuccessful employees, whose grievance petitions under section 25-A of the Industrial Relations Ordinance, 1969 were on 6-8-1995 dismissed by the learned Punjab Labour Court No. 4, at Faisalabad. 2. Appellants were employees of the Lyallpur Cotton Mills, Faisalabad , their services were terminated, and they challenged the orders as being invalid and void, as the same were passed by the management, without affording them an opportunity of hearing. Permission of the Court for closing down the Mill, or a portion of it, and ouster of the appellants from employment of the mill, according to them, had not been obtained. They, therefore, sought re-instatement in service, with all the back benefits. 3. The stand-point of the respondent mill is that economic crisis and machinery breakdown had provided a valid basis for its closure or one of the Svings', where the appellants were employed. Heavy financial loss had forced the mill people to close it and dispense with the services of its employees. As it was not possible to run the mill any more, an agreement was executed between the management of the mill and the C.B.A. representing the employees, and on the basis thereof permission of the Court was successfully sought for closure of the mill. There is considerable force in the contention put forth by the learned counsel for the respondent that in these circumstances service of show-cause notices upon the employees was not a prerequisite and provisions of the Standing Orders Ordinance, 1968 had not been flouted. I agree with the finding of the learned lower Court. Learned counsel for the appellants, has not been able to point out any illegality having been committed by the mill management in terminating the services of their employees, who could not plead that any secured or guaranteed right of theirs had been violated. 4. The appellants were ousted from service, long before the agreement between the management and the C.B.A. was brought into being (on 3-7-1995). Old Spinning Section or Unit No. 1 of the mill was closed down in the year 1993. Now the entire mill has stopped its working and has no longer operational existence, and this fact is not disputed by the . appellants. Obviously, then, they cannot be taken back on the rolls of the mill, they can lonely lay claim to back benefits, if any. For termination of services of the employees not exceeding 50%, the employer has an entitlement, which can lawfully be exercised. When in July, 1995, the management and the C.B.A. had arrived at an agreement, the appellants were no longer the employees of the mill, having already been ousted, in the year 1993, on closure of Unit No. 1. 5. In so far as back benefits go, or entitlement to get salaries for a particular period is concerned, a plea to that effect could be incorporated in the grievance petition that was still pending, when the agreement in question was arrived at on 3-7-1995, whereby a section of the labour strength of the mill had been given 15 months emoluments, before termination of their service. 6. As regards the appellants' entitlement to retain the residential accommodation, the same may be asserted before the fllaqa Magistrate, who will have to be approached by the mill management, and in the event of employees' failure, they can have recourse to the Sessions Court, through a revision petition; but they cannot perpetuate their stay in the residential quarters over an indefinite period. Procedure has been provided in the Standing Order 16 of the Standing Orders Ordinance, 1968, and that will have to be followed by the mill proprietorship/management, in effecting ouster of the employees from their abodes, situate within the premises of the mill. Legally an employee on his expulsion from service of an industry can retain to residential accommodation for a maximum period of two months, as provided by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Unfortunately a chronic tendency has developed amongst members of the Labour Class to not leave residential quarters of months and years, after they have ceased to be employees of a particular establishment. If the mill people had asked them to quite, they were only enforcing their legal right. If any right to have residential accommodation exists, it would be enforceable by an employee, on his re instatement in service, when the employer would be under a legal obligation to provide residential accommodation to the employee, or to make payment of the requisite dues to him in lieu thereof. It cannot be denied that such stage has not yet arrived; but the employees continue to stick to the residential accommodation and are not prepared to stage exist, much against their entitlement, and the Court cannot come to their rescue for perpetuation of such a wrong. Actually it has been held in 1994 SCMR 2213 that a terminated employee no longer remains a workman, entitled to invoke the provisions of section 25-A of the Industrial Relations Ordinance, 1969. Competence of the petition, as such also appears to be doubtful. In any case, the appellants being no longer employees of the mill, when the agreement between the mill management and the C.B.A. was arrived at, in July, 1995 they seem to be disentitled to claim back benefits allowed afterwards to be existing employees under the agreement; and they are certainly 'disqualified' to retain residential accommodation, after expiry of the statutory period, which is only .two months. 7. This being the legal position, the appeal does not merit admission to regular hearing, and is dismissed in limine. (K.K.F.) Appeal dismissed
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 117 [Punjab Labour Appellate Tribunal, Lahore] Present: justice (RTD.) mian ghulam ahmad, chairman. MUHAMMAD ISHAQ MALIK-Appellant versus GENERAL MANAGER PAKISTAN RAILWAYS-Respondent Appeal No. 419/93, accepted on 3-12-1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)- -S. 25-A read with S. 37(3)-Grievance petition-Dismissal of-Challenge to-Employee's last assignment is shown to be carrying BPS-15, although according to him it was BPS-16, and he states to have actually also been serving against a post with BPS-17--Appellant could lay claim to allowance of afficiation, in BPS-17 for period of about one year, which he spent at Sukkur, particularly performing duties of higher assignment. [P. 118] A (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A read with S. 37(3)--Grievance petition-Dismissal of-Challenge to-Department was unduly insisted upon parting with dues in favour of appellant, considering his assignment to be one of grade-15 and not grade-16--Leave arrangements, "looking after a higher post in one's own pay and scale," "serving against a work-charged post" are terms, which are made use of by industrial establishment and Government Departments to save their funds and to inflict loss upon employees, who, even when they are nearing superannuation or retiring, are not dealt with magnanimously-This is neither equitables, nor proper and fair, on the part of the employee. [P. 119] B Sh. Khalil-ur-Rehman, Advocate for Appellant. Ch. Bashir Ahmad, Advocate for Respondent. Date of hearing: 19-9-96. judgment By way of the instant appeal, filed under section 37(3) of the Industrial Relations Ordinance, 1969, Muhammad Ishaque Malik has assailed the soundness of the decision dated 14.7.1993, rendered by the Punjab Labour Court No. 2, Lahore, presided over then by Haji Muhammad Akram Baity. His grievance petition under section 25-A ibid was dismiss. 2. Muhammad Ishaque Malik joined Railway service on 20.2.1949, and has been retired on 23.5.1984, as Foreman Telecommunication, and the last assignment is shown to be carrying BPS-15, although according to the appellant it was BPS-16, and he states to have actually also been serving against a post with BPS-17, Assistant Telecommunication Engineer, at Sukkur, from where he was transferred to Lahore , at the fag end of his service, and he retired during his posting at Lahore on 23.5.1984. On retirement he was shown to be holding a post with BPS-15 and he was paid his dues accordingly. 3. He is obviously aggrieved; but the respondent does not at all accept his version and maintains that he was not entitled to a grade higher than BPS-15, on the eve of his retirement. Mr. Farzand Ali, Office Superintendent Admin., office of the Deputy General Manager Railways Headquarters, Lahore has made his statement as PW-1 and has deposed, from the record, that scale of the post of the petitioner in the year 1979 (w.e.f. 1.5.1979) had been upgraded from BPS-14 to 15 and the pay of the petitioner had accordingly been fixed. He has, however, hastened to add that the letter dated 23.8.1979 did not apply to the case of the appellant and had relevance to the post of Sub Engineer Grade-V. The appellant, according to the witness, had been promoted for holding an assignment in BPS-16 on 5.10.1980, and when he was posted at Sukkur, he was to hold a senior assignment in his own pay and scale and was only required to look after the work of the A.T.E. Telecom Project Sukkur, where he served for about a year. Another piece of testimony of this witness must however be taken to be directly relevant and absolutely significant. He says that a person asked to work against a higher post for 21 days claim the officiating allowance, provided the case is cleared by the Departmental Promotion Committee. According to the witness, Muhammad Ishaque Malik appellant could not however claim even the allowance of officiation as he was only looking after the work of the higher post, and further was serving in the Proj ect at Sukkur against a work-charged post, which assignment was excluded from the deliberations of the D.P.C. In the estimation of this court, however, it is a stupid plea. How could it be urged that post at that level only a work-charged post. The same was very much in existence already, and even the appellant had worked there for a year. On no valid premises could the post be termed as a work-charged one. The witness has himself also deposed that a person serving on a post for a period of just three weeks would become entitled to claim the officiating allowance. The witness has qualified his statement by adding that it should be a regular post and clearance must have been given by the D.P.C. 4. It is to be noted in this regard that exclusion of the post from the cases to be considered by the D.P.C. was an arbitrary act of the 'Authorities' and had no legal justification. Poor employee, nearing the age of superannuation must have found himself helpless and could not manage inclusion of the item in the deliberations of the DPC; and in a wrongful manner he was made to suffer perpetually. By all means, in my considered view, the appellant could lay claim to the allowance of officiation, in BPS-17, for period of about one year, which he spent at Sukkur, practically performing the duties of the higher assignment. 5. In so far as upgradation of the post from Grade-14 to 15 was concerned, there is no dispute about it. Similarly, upgradation of the post to BPS-16 should not be taken to be a matter of doubt. Policy letter Exh. P-2 lays down that the posts in question have been upgraded to RNSP-16 w.e.f. 1.5.1979. It did not make any discrimination between regular posts and work-charged posts, the wisdom being that posts having been in existence for years together continued to be treated as work-charged ones, with no valid justification. With effect from 1.5.1979, the appellant should have been treated as having been promoted to a post with BPS-15, under a general order, and further upgraded to BPS-16, in the year 1980, and subsequently he had been officiating against a still higher post with BPS-17 at Sukkur The policy letters, Ex. P-2 & Exs. R.2 & 3, issued in the year 1979, were not implemented and the appellant was deprived of what was due. Full and final settlement of dues, at the time of his retirement, was made, but in grade-15 and not grade-16. There is no denying the fact that the appellant will be treated to have finally retired from service in BPS-16 and not BPS-17, former being his substantive appointment. Although he could claim salary of a post with BPS-17 even, for the period he served at Sukkur, from where he was sent back to his parent Department, at Lahore, he could lay claim to arrears, persion, etc. with reference to a post with BPS-16. The Department has unduly insisted upon parting with the dues in favour of the appellant, considering his assignment to be one of grade-15 and not grade-16. 'Leave arrangement; looking after a higher post in one's own pay and scale', 'serving against a work-charged post', are the terms, which are made use of by the Industrial establishments and the Government Departments to save their funds, and to inflict loss upon the employees, who, even when they are nearing superannuation, or are retiring, are not dealt with magnanimously. This is neither equitable, nor proper and fair, on the part of the employers. 6. Learned lower court has also held the grievance petition to be time-barred, as the petitioner was retired on 30.5.1984, and he filed the grievance petition with a delay of about 4^ years on 2.10.1988. In this behalf it is to be borne in mind that, as indicated by documents marked 'A' to 'D', the appellant had been communicating his grievances to the 'Authorities', making requests for vindication of his cause, from August, 1984 to August 1988 (in the reverse order) When the 'Authorities' however, did not pay heed to his submissions and requests, he was constrained to have recourse to the court of law for redressal of his grievance. He should be taken to have rather adopted a more cautious course and a more proper channel, as he did not hasten to come to the court. He had no alternative but to have access to the Labour Court , when the concerned quarters turned a deaf ear and did not respond to his representations. In the circumstances, it cannot be assumed that he had slept over the issue and had not agitated his cause before those who mattered. He served the statutory grievance notice (Exh. P-4), on the General Manager, Pakistan Railways, Headquarters, Lahore ,, on 15.9.1988. I refuse to treat the grievance notice, followed by the grievance petition, filed on 2.10.1988, to be barred by the law of limitation. 7. I find that the averments of the appellant and his reasoning do not suffer from any distortion of factual position or mis-interpretation of any legal proposition. The learned lower court, in endorsing the view-point of the establishment, has, it appear, fallen in error and failed to appreciate the stand-point of the employee, in its true perspective. I would set aside the impugned judgment dated 14.7.1993, on acceptance of appeal, with costs. Dues payable to the appellant shall be calculated, and payment made by 28.2.1997, at the latest, keeping in view the observations made and the findings recorded in the course of this judgment, and hesitation ought to be exhibited by the 'Authorities in that regard. (K.A.B.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. ( Labour ) 124 [Punjab Labour Appellate Tribunal, Lahore ] Present : mr. justice (RTD.) mian ghulam ahmad, chairman UNITED BANK LIMITED EMPLOYEES UNION-Appellant versus PRESIDENT UNITED BANK LIMITED and 5 others-Respondents Appeal No. LHR-164/96, dismissed on 18-7-96. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 34 read with S. 22-A (12), 15 and 53-Unfair labour practice-Case of Application for grant of ad-interim injunction-Maintainability of-Unless, appellant body can lay hands upon or pin-point malafide motives or ulterior intentions, expressed in a manifest manner, it cannot just be assumed or taken for granted that management is imbued with malice or vindictiveness. Appeal dismissed. [P. 125 ]A Mr. Asmat Kamal Khan, Advocate for Appellant. Ch. Fazal Elahi , Advocate for Respondents. Date of hearing: 18-7-96. judgment The appeal is directed against an order dated 26.6.1996, rendered by the Punjab Labour Court No. 3, Lahore, at Ferozewala , by which the main petition of the United Bank Limited Employees Union, filed under section 34, read with sections 22-AQ2), 15 and 5.3 of the Industrial Relations Ordinance, 1969, on 10.6.1996, alongwith an application for grant of ad-interim injunction, has been dismissed. 2. The learned Presiding Officer of the Labour Court has held, and rightly so, that the main petition is couched in general terms and does not call in question any specific order, causing a particular grievance or grouse to the union or its members. The basis of the request made are only apprehensions or fears of the employees, who think, they will be transferred on a large scale by the management, in order to smash their lawful trade union activities. Unless, however, the appellant body can lay hands upon or. pin-point malafide motives or ulterior intentions, expressed in a manifest manner, it cannot just be assumed or taken for granted that the management is imbued with malice or vindictiveness. Well, if indeed, the apprehensions of the union are well-founded, and the alleged intentions entertained by the management are likely to be translated into reality, ia bo distant future, it is open to the union to approach the N.I.R.C. for curbing or restraining apprehended acts of alleged unfair labour practice. 3. I do not find myself inclined, in the least, to interfere with the impugned decision delivered by the Labour Court , which is hereby upheld. The appeal has no merit and is dismissed with costs. (K.A.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 125 [Punjab Labour Appellate Tribunal, Lahore ] Present : justice (retd.) mian ghulam ahmad, chairman MUSADAQ HUSSAIN-Appellant versus HABIB BANK LTD. CIRCLE OFFICE MULTAN Through its Senior Vice- President and another-Respondents Appeal No. BR-41 of 1983, accepted on 1.7.1996 Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25-A (4) and S. 38(3)-Bank employee-Dismissal from service- Challenge toIt has been explained that in presence of his colleagues and members of public, appellant had very badly been treated--He was insulted, sent out of office for few hours, recalled and again abused outrageously, by being addressed "Mama"~He was young ex-Army man and might also have become some what insolent, resorting to having even fling at officer, but he was not disobeying him or calling in question. authority of officer, who had by his own erratic behaviour invited his subordinate-Held : He ought to be dealt with by Bank Management in magnanimous manner, so that he and his children are not deprived of their livelihood for ever-Appeal accepted. [P. 130 & 131] A & B Mr. Masood Ahmad Ghuman, Advocate for Appellant Mr. Muhammad Shafiq Paracha, Officer Grade I for Respondents. Date of hearing: 3.6.1996. judgment Last station of posting of Musadaq Hussain, employed as Assistant by the Habib Bank Limited, was Fort Abbas , District Bahawalnagar; and he was dismissed from service on 15.2.1981. This resulted in litigation, which has a chequered histoiy, that may briefly be narrated below. 2. Musadaq Hussain was, on 17.6.1980, charge-sheeted, on a number of counts, treated to be instances of gross misconduct on his part. He submitted a reply to charge-sheet, giving a Me to the allegations. The reply was considered as unsatisfactory, and a domestic inquiry followed, pursuant to which a second show-cause notice was served on him in November, 1980. He was ultimately removed from service of the bank on 15.2.1981. He preferred a departmental appeal on 25.2.1981. The same was dismissed on 31.8.1981. Grievance notice was served on 19.10.1981; and the grievance petition under section 25-A, Industrial Relation Ordinance, 1969 was filed before Punjab Labour Court No. 8, Bahawalpur, on 1.12.1981. 3. The grievance petition was dismissed on 22.12.1982, by Mr. Masood Ahmad Ansari, Presiding Officer of the aforesaid Court. Musadaq Hussain filed an appeal under section 37, I.R.O., on 22.1.1983. Mr. Justice (Rtd.) Sardar Muhammad Abdul Ghafoor Khan Lodhi, the then Chairman of this Tribunal, on 22.10.1983, accepted the appeal and set aside the order of the official's dismissal from service, but without back benefits. The Bank filed a writ petition, challenging the verdict delivered by this Tribunal; and a Division Bench of the Lahore High Court allowed the writ petition. The employee went in appeal before the august Supreme Court of Pakistan. The same was accepted and the judgment of the Division Bench was set aside. The Bank's contention that terms and conditions of service of employees of nationalized banks and other financial institutions were governed by the Wage Commission Award, which could only be enforced by the Commission, did not find favour with the Supreme Court, as it was held that award of the Wage Commission was also enforceable under section 25-A, Industrial Relations Ordinance, 1969. The case was remanded for decision of the issues arising out of the other contentions of the bank, namely, no grievance notice had emanated from the ex-employee, and even if it be assumed that the application he had addressed to the bank could be treated as a grievance notice, the same was time-barred, and the grievance petition, following such notice, was legally incompetent. ' 4. Mr. Justice Malik Lehrasap Khan, by a judgment announced on 29.3.1988, upheld the decision dated 22.10.1983, rendered by this Tribunal, ordering reinstatement of the official. It was held that the grievance notice was in order, and it was also not time-barred, having been issued on 19.10.81, following dismissal of the departmental appeal, vide order dated 31.8.1981. The Inquiry Officer had found the official guilty of seven charges; but after elaborate examination of the records and appraisal of the evidence led by the parties before the Inquiry Officer, as also before the Labour Court, the Tribunal had concluded that only two out of seven charges stood established. The honourable Judge of the High Court further observed that the afore-mentioned finding of fact, which was not the result of any misreading of evidence, recorded by a tribunal of competent jurisdiction, could not and should not be interfered with by the High Court, in exercise of its writ jurisdiction. It was also remarked that if the competent authority were to come to the conclusion that out of seven charges only two were proved, the authority might have passed a punishment short of dismissal; and thus the approach of this tribunal to the issue, as also the conclusion arrived at, were endorsed. 5. The Habib Bank went in appeal further to the Supreme Court of Pakistan, and honourable Judges, Mr. Justice Abdul Shakoor Islam and Mr. Justice Rustam S. Sidhwa separately recorded their reasons, but generally concurred in the opinion that the High Court's finding was liable to interference. The appeal of the bank was allowed and the case was remitted to this Tribunal for determining as to what punishment would meet the ends of justice, on the charges proved against the official. The observations made are illuminating. The honourable Senior Judge has enumerated the seven charges, and the replies thereto, submitted by the accused official, and differed with the view-point of this Tribunal that since only two charges amounting to misconduct had, in its assessment, been proved, the order of dismissal of the appellant was not sustainable and further that the' punishment could not be altered or amended, in the manner, an appellate authority, over and above the Inquiry Officer, in the same set-up, was empowered to do. This Tribunal in its judgment dated 22.10.1983 had observed that if the Inquiry Officer had found the official to be guilty of only two and not all the charges, possibility of imposition of a lesser penalty could not be excluded altogether, and the Tribunal, as such, was left with no alterative but to set aside the order of dismissal in entirety. 6. The Supreme Court was of the view that this Tribunal had fallen in error in construing the judgment quoted before it, being Chan Pir Shah versus Congothene Chemical Industries Limited and others (NLR 1978 Labour 7), inasmuch as, in the course of the said judgment, an earlier decision of the High Court announced in the case Sardar Sher Muhammad versus Rao Bashir All Khan and another (PLD 1962 Lahore 172) had been quoted and distinction had been drawn between the appellate jurisdiction and Constitutional jurisdiction of the court. It was proclaimed by the Supreme Court that the Appellate Tribunal was not bound to either sustain the Inquiry Officer's order in totality or to set it aside completely, and it was well within its powers either to ratify the order or to vary or amend it, in accordance with the facts established, whatever was deemed fit. It was also remarked that the submission made by the learned counsel for the accused official to the effect that he had suffered enough for the charges proved against him was a matter for the Tribunal to address. 7. His Lordship Mr. Justice Rustam S. Sidhwa expressed himself separately, in sharing the view of the Senior Judge, his Lordship, Mr. Justice Abdul Shakoor-ul-Salam. Rule laid down in Sher Muhammad's case, it was observed, related to different parameters, within which an appellate court could act, as opposed to the High Court exercising its Constitutional jurisdiction. Rule enunciated in Rehmat Elahi versus Government of West Pakistan (PLD 1965 Lahore 112) pertained to a detention matter, where an order could be struck down if the grounds, or some of those, on which it was founded, were later found to be invalid or non-existence, but the rule regarding detention matters could not be applied to labour cases. It was pronounced that the view that if seven charges of misconduct and/or lesser infraction were proved, for which initially the employer had dismissed the employee, and later majority of the charges were found to be not sustainable or supportable, the order of dismissal was to be struck down as a whole, could not be accepted. 8. My learned predecessor had, in his judgment announced on 22.10.1983, recorded reasons, upholding only two charges (No. 4 and 6) but not the others. The official had allegedly received Rs. 60/- in one case and Rs. 30/- in another, in excess, from the customers. He, however, maintained that he had actually received Rs. 2.617/- and Rs. 12.320/- and not Rs. 2,667/- and Rs. 12,350/-, respectively. The persons concerned were not examined, and the bank employees, who deposed against the official before the Inquiry Officer, were probably not the eye-witnesses. Had they seen 'excessive' amounts being passed and lesser amounts being entered in the record, and the same really tantamounted to embezzlement of money, as also interpolation or forgery, the official was expected to have been taken to task or 'caught red-handed' there and then. When the official was transferred to another branch, the record came in custody of his successor, and was accessable to others, who might have been instrumental in the alleged interpolations. Charges at serial No. 1 and 2 thus were not established. 9. Charge at serial No. 8, my learned predecessor has rightly concluded, also did not constitute misconduct. The official had himself reported to the Manager the shortage in money, tendered by a client, Haji Shamas Din, and thus could not be treated as an act of mis-appropriation. The device adopted by the Manager for verifying the bonafides of the official did not make any sense and my learned predecessor has rightly remarked that sealing of some cash in an envelop and asking the official to balance the cash without opening the envelop was purpose-less. He was probably trying to test the knowledge of arithmetic of the official or the level of his efficiency in counting cash. Haji Shamas Din also, however, did not appear as a witness. My predecessor is of the opinion that the instruction about not opening the envelop, containing some cash, not being a reasonable order, the act of the official in opening the envelop, in order to check the whole cash, did not amount to misconduct 10. Charge No. 5 is just a reference to a previous incident, which was a dosed chapter, as the official had been pardoned on his assurance that such conduct (mis-behaviour with superiors) would not be repeated in future. As regards charge at serial No. 7, which is to the effect that the official had stolen cash receipts and stamps from the Branch and the same were recovered from him, my learned predecessor has formed the opinion that this charge is also base-less. As stated in the charge at serial No. 6, the official had visted the Zonal Office, Vehari, on 1.6.1980, and had refused to go to Fort Ahbas, the place of his posting. The Manager had stated before the Inquiry Officer that the official had delivered to him the keys, saying that he did not want to work under him. In his reply to the charge-sheet, the official had said that the Manager had openly told him that the Vice President had instructed him (the Manager) to involve him (the official) in some case, so that he could be handed over to the police and his services could be brought to an end. On different occasions, the Manager had mis-appropriated certain amounts and had put the blame on him. As the Manager, in a gentlemanly manner, was not receiving the keys from him, the official had gone to the Zonal Office at Vehari and made over the keys, as also seals and stamps, to Mr. Saleemi, intimating him additionally about the incident of 25.5.1980. Mr. Saleemi passed on those articles to the Manager, Fort Abbas Branch. Mr. Saleemi had also checked the cash in the Bank Branch at Fort Abbas and found the same to be intact. The act of taking away seals, stamps, etc., in the circumstances, was not attended by any criminal intentions, and it could not be called a theft. 11. In the opinion of my learned predecessor, charges at serial No. 4 and 6 stood established, as the official had not attended the office for a few days. He should have joined his duty at the Fort Abbas Branch and then made a request for his transfer else-where. He could also apply for leave. He had mis-behaved with his officer, seizing him from collar and giving a fist blow on his head, in presence of the staff members, on 25.5.1980. In this behalf, the reply of the official in worth consideration. According to him, he had protested at the manner, in which he was being dealt with by the Manager, who got annoyed and turned him out. After 2/3 hours he was summoned and asked to undertake counting of cash, which was earlier found to be deficit by Rs. 139/-. The Manager called him 'Mama' and as the word was in the nature of abusive language of the worst order (in Punjabi), and no gentleman could tolerate it, he (the official) took serious exception to it and retaliated by paying his officer in the same coin. In the circumstances, in which the alleged incident occurred, the name, in my view, did not amount to a mis-behaviour, worthy of serious notice, as also cognizance; and this fool of a man has suffered for it immeasurably, as he lost his job, and was made to face litigation, which has stretched over as many as sixteen long years. He had to go through the ordeal of this long-drawn and tedious litigation, right upto the Supreme Court. The Labour Court, the Appellate Tribunal, the High Court and the Supreme Court, all forums, have dealt with the matter twice. It was not all an easy exercise. He has relentlessly fought for vindication of his honour, as also for his rehabilitation in service. My learned predecessor seems to have himself given not much of weight to even the established charges, as in ultimate analysis he had treated the official to be deserving reinstatement in service, through the logic adopted, with reference to a reported case, in that regard, had not found favour with the apex court. 12. Before coming to my own conclusions, I may also refer to the technical objections raised by the respondents, namely, the Authorities of the Habib Bank. The objections have satisfactorily been answered and found to be without much of force in paras No. 6 to 8 of this Tribunal's judgementdated 22.10.1983. The same have indeed not been pressed, in right earnest, by the respondents before me. 13. The honourable Judge of the Supreme Court, Mr. Justice Rustam S. Sidhwa, like the Senior Judge, Mr. Justice Abdul Shakoor-ul- Salam, has referred to the provisions of section 25-A(4) as also section 38(3) of the Industrial Relations Ordinance, 1969, in emphasising that the LabourCourt is required to go into all the facts of the case and pass such orders, as may be just and proper, in the circumstances of the case; and the Appellate Tribunal shall also exercise all the powers conferred by the Ordinance on the Labour Court, and may confirm, set aside, vary or modify the decisions rendered by the Labour Court, under section 25-A. While the employer ispermitted to impose the necessaiy punishment, attracted to a charge found proved, it is the duty of the Labour Court, as also the Appellate Tribunal, to see whether the punishment awarded by the employer is sustainable. If the misconduct is indeed made out, the dismissal order may be maintained, and even lesser punishment may be imposed, if the circumstances of the case so warrant. If misconduct is really not made out, the court/tribunal may not necessarily sustain the dismissal, and may impose what it considers to be a fair punishment, unless the case does not call for anything more than a warning. 14. I would not entirely agree with the contention raised by the learned counsel for the appellant official that the Supreme Court could straight away give a verdict against the official and the object in remanding the case for re-decision was to afford to the official the necessaiy relief.Similarly, it will also not be correct to contend, as has been done by the learned counsel for the respondents, that the observations made by the Supreme Court furnish a clear indication to the effect that this Tribunal should propose ai.d impose adequate penalty for the official, who did not deserve exemption or absolvement from the whole mass of charges. According to the learned counsel, banks are very sensitive institutions, as they deal with cash day and night, and employees of banks must be very humble and docile, as also very obedient and disciplined. Learned counsel for the appellant has an answer to furnish to the so-called established insinuations of indiscipline and rowdyism allegedly indulged in by the official. It has been explained that in presence of his colleagues and members of the public, Musadaq Hussain had very badly been treated. He was insulted, sent out of office for a few hours, recalled and again abused out rageously, by being addressed as 'Mama'. He was a young ex-Army man and he might also have become some-what insolent, resorting to having even a fling at the officer; but he was not dis-obeying him or calling in question the authority of the officer, who had by his own erratic behaviour invited his subordinate is retaliation and infuriation. Years have passed, when this minor incident had occurred. The official has, as already said, suffered tremendously and incalculably. He ought to be dealt with by the Bank Management in a magnanimous manner, so that he and his children are not deprived of their livelihood for ever. I have myself been advising the appellant to stop wearing bitter and ferocious looks on his face. Probably by temperament, or just by looks, he is un-pleasant and volatile. Let us hope, he sheds this kind of conduct, for it has not paid him, rather he has paid a very heavy cost for it. 15. I would absolve the appellant of all the charges, not just in executive style, but in keeping with the mandate of my judicial conscience, considering the entire evidentiary material on record, the whole circumstances of the case, and the torture-some history of the litigation. The appeal is accepted, with of course no order as to costs, and the impugned order delivered on 22.12.1982 by the Labour Court , upholding the order dated 15.2.1981 of the Bank Management, stands set aside. As the official has suffered a lot and has also spent extensively on the litigation, and maintains that he has also been out of job, and no evidence has been led by the respondents to the contrary, I would also hold the appellant entitled to half of the back benefits, for the entire period, he has been out of employment of the bank. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 131 [Federal Service Tribunal, Islamabad ] Present: justice (RETD.) abdul razzaq A. thahim, chairman, roshan ali mangi and muhammad raza khan, members. SULTAN MAHMOOD-Appellant versus SECRETARY DEFENCE, RAWALPINDI-Respondent Appeal No. 394(R) of 1995, accepted on 13.5.96. Seniority- Seniority-Transfer from one cadre to another-Effect on Seniority-Rules provided for filling of post by promotion, direct appointment or by transfer but when a person is transferred from another cadre it should not be to the detriment to civil servant already working for a long period in said cadre-Competent Authority can certainly grant such person any benefits as it wishes in interest of public service but while granting benefit to one employee, vested rights of other cannot be infringed--Held : Position of seniority of appellant cannot be affected by change of designation of respondent No. 3--HeId further : Seniority of person already in cadre cannot be disturbed-Appeal accepted. [P. 134] A & B Syed Kazim Hussain Kaztni, Advocate for Appellant. Mr. Shahzad Hussain, Dy. Director for department. Date of hearing: 10.3.1996. judgment Muhammad Raza Khan, Member.--The appellant is presently employed as Survey Officer in B-16 w.e.f. 22.3.1985 on regular basis. He appears at serial No. 5 of the seniority list of Survey Officers as on 1.1.95. The respondent No. 1 issued order on 8.2.95 whereby the respondent No. 3 was transferred from the cadre of Assistant Manager to the cadre of Survey Officer by change of designation. There was a stipulation in the said order that the respondent No. 3 will reckon his seniority w.e.f. 10.4.85 i.e. the date of his promotion to B-16. This phrase of reckoning seniority in the new cadre with effect from the promotion in the previous cadre aggrieved the appellant who filed a departmental representation and thereafter he has moved the present service appeal. 2. The respondents contested the appeal by written objections wherein, beside the question of limitation, the appeal was resisted on themain ground that the conduct of the appellant was unsatisfactory and the respondent No. 3 being foreign trained officer in serial photography was theonly appropriate choice to replace another retiring officer and, therefore, therespondent No 3 was transferred to the cadre of Survey Officer by change of designation and since the transfer order was passed in. public interest, without any benefit to the respondent No. 3, therefore he was allowed toreckon his seniority from the date he was promoted to B-16 as Assistant Manager, 3. So far as unsatisfactory performance of the appellant is concerned that is not a point in issue in this case Ik- was shown at serial No. 5 of the seniority list and he has been holding the post of Survey Officer for almost 10 years. It appears that various warnings were issued to him and certain re'marks were recorded in his ACR but the seniority of a civil servant could not be disturbed merely on the observations in the ACR ana issue of warning letters. 4. On the point of limitation it can be observed that the impugned order was issued on 8.2.95 which was implemented on 2.4.95 and the appellant filed an application on 13,4,95 with the prayer that his seniority position may not be disturbed and the fresh entrant to the cadre may be placed at the bottom of the list as per practice in the department. Although the application dated 13.4.95 was not decided directly but a letter was addressed on 14.6.95 to the officer iucharge of the appellant who had earlier forwarded his application. This letter does not speak about the rejection of the application, however, the change of designation of the respondent No. 3 in public interest was clarified. Thereupon the appellant filed a detailed departmental appeal/representation on 26,6.95 and on failure to receive response within the statutory period, the appellant has moved the present appeal. Thus the appellant has vigilantly pursued his remedy and he has never been silent over what was hapivning in the cadre which might adversely affect his future career, therefore, there is no delay in filing the appeal. 5. The main issue in this case concerns the fixation of seniority of civil servant on transfer from one cadre to another cadre. The general principles of seniority, as contained in the Esta Code, has classified to types of transfers, the one based on the option and desire of the civil servant and the other in public interest. It was provided that "Seniority on transfer froui one office to another. The instructions in the ibi facing paragraphs regulate the position of a deputations t in his parent office. As regards his seniority in the office to --vui .h he is transferred, it should be determined in the following manner :-- i.a) When it is open to the person concerned to accept or refuse an offer of appointment in another officer, he should count, his seniority in the new office from the date of his transfer to that office. ibi When a peiscit is compulsorily transferred to another lit of conscription, or alongwith the post , he should be allowed to count his ii,;u_ ;s service in the grade towards l t,ii ,--',, in the new office." 6. It appears that i:ie order clatud b-2,95 providing for reckoning of seniority w.e.f, 10,4 86 i e. the cLle of his promotion to B-16 was based on the above-quoted piin^-it uf Hota, Cock lumping in view the said provision a number of transfer.-, were Gr,iut:u us public interest allowing the retrospective reckoning of seniority ui the new cadre and several matters were agitated before the TnhiKiri's and the Courts where the effect of transfer with or without the appikation/option/choice of the employee concerned was examined minuU-ly, However, by the introduction of Seniority Rule 1993 the suid piovision contained in General principles of Seniority stood repealed us per rule-7 read with Rule-4 thereof, Rule 4 lays down "Seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service/cadre/post." 7. Therefore, the above said provision of choice or public interest stood repealed by Rule 4 quoted hereinabove. The philosophy of the said rule was that a person already serving in a particular service or post for certain period of time matures his seniority position with the expectation for further promotion. In case of the principle of reckoning seniority from the retrospective date in the parent department, the employee of the new department will suffer irrepairably and such provision might be applied with malice and to the detriment of the people already serving in a particular cadre. Thus with the enforcement of the Seniority Rules 1993, the distinction and categorisation was removed and it was provided that the seniority will be fixed from the date of regular appointment in a particular service/cadre or post. Moreover under Section 8 of the Civil Servants Act it was provided that the seniority of the Civil Servant shall be determined or reckoned as may be "prescribed" and by clause (f) of Section 2(1) of the Act the term "prescribed" was defined to be the rules under rule making authority as vested in the President or any person authorised in this behalf in accordance with Section 25 of the Act. Therefore Seniority Rules 1993 were enforced under the powers vested under Section 25 read with Section 8 of the Act and therefore these rules over ride the Administrative Instructions as contained in the Esta Code under the general principle of seniority. 8. The learned counsel for the respondents relied on PLD 1974 S.C899 and 1995 PLC (CS) 273 and argued that although the rules provided for filling of post by promotion, direct appointment or by transfer but when a person is transferred from another cadre it should not be to the detriment to the civil servant already working for a long period in the said cadre. The competent Authority can certainly grant such person any benefits as it wishes in the interest of public service but while granting benefit to one employee, the vested rights of others cannot be infringed. We agree with these arguments and have to do hold that the position of seniority of the appellant cannot be affected by the change of designation of the respondent No. 3. The respondent-department can give extra financial benefits to the respondent No. 3, if so desire, and he can be treated to have retained lien in his'parent cadre, however, the seniority of person already in the cadre cannot be disturbed. 9. As a result of the above discussion, the appeal is accepted and the impugned, order is set aside. No order as to costs. Parties beinformed. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 135 [Federal Service Tribunal, Islamabad ] Present : safdar HussAiN shah jafri, member I. SYED MUHAMMAD MOHSIN SHAH-Appellant versus I.G. POLICE PUNJAB, LAHORE and another-Respondents Appeal No. 536/94, partially allowed on 24-10-1996. (i) Service Matter- -Civil Servant-Dismissal from service-Challenge to--Misconduct--Charge ofScope of Efficiency and Discipline Rules does not include consideration of entire past of a civil servant in a given case of misconduct on his part as such an exercise could alone be conducted while considering case of a civil servant for retirement under Section 12 (i) of Punjab Civil Servants Act, 1974. [P. 138] A (ii) Suspension- A suspended official could not legally be asked to perform duty unless he was re-instated in service-Punishing him with removal from service cannot, therefore, be sustained in law. [P. 138] B Mr. M.Y. Bhatti, Advocate for Appellant. Mr. Manzoor Hussain Bhatti, District Attorney. Date of hearing : 24.10.1996. judgment The appellant Muhammad Mohsin Shah was suspended on 14-9-1988 and was served with a notice on 2-10-1988 (Annexure-A/II) whereby he was asked to show cause as to why one or more of the major penalties including dismissal from service should not be imposed upon him on account of the alleged unauthorised absence from duty on his part from 15-8-1988 to 28-8-1988. The explanation given by the appellant was not considered satisfactory. However, the D.I.G. Police, Sargodha Range vide his order No. 9547/E, dated 25-5-19S9 (Annexure-A/3) statedly took lenient view of the matter and imposed upon him the major penalty of reduction in pay by 2 stages after giving him personal hearing. The D.I.G. Police, Sargodha Range, however, observed in the aforesaid order dated 25-5-1989 that the appellant again absented himself from duty since 12-9-19S8 i.e the date on which he was placed under suspension and that the Superintendent of Police, Khushab was appointed as Authorised Officer to deal with the appellant departmeutally on that charge. The appellant was consequently "charged by the Superintendent of Police, Khushab in exercise of his functions as Authorised Officer as Under : "You were placed under suspension by D.I.G. of Police, Sargodha Range , Sargodha vide his office Endst. No. 16451- 53/4, dated 12-9-1988. You did not turn up to attend this office since the date of suspension (i.e 12-9-1988) nor did you inform about your absence to the under signed or any other Senior Officer. It appears from your conduct that you are a malingerer and habitual absentee and do not take interest in the discharge of your official functions. Thus you have been found guilty of mis-conduct/in-efficiency and are liable to disciplinary action under Punjab Civil Servants (E&D) Rules, 1975." The appellant, of course, explained his position on 30-5-1989/6-6-1989. Enquiry into the matter was statedly held by D.S.P (Headquarters), Khushab who held him guilty of the charge of absence from duty during the period of his suspension. The Superintendent of Police, Khushab recommended the award of major penalty to the appellant. He was served with a notice for personal hearing for 15-10-1989 and the findings of the enquiry officer and recommendations made by the authorised officer were statedly conveyed to him. The notice was served through local police on the official on 18-10-1989. On his request, he was asked to appear the D.I.G. Police, Sargodha Range on 21-10-1989 but he failed to turn up on the fixed date. The D.I.G. Police, Sargodha Range (i.e. respondent No. 2), therefore, took the view that the appellant was not interested in service as he had failed to appear before him for personal hearing. Consequently, the said respondent, vide his order, dated 23-10-1989 received by the appellant on 31-10-1989 removed the appellant from sen-ice w.e.f 21-10-1989 by treating the "period of suspension as such." The appellant could not file appeal against the said decision for the reason that only 12 days later, the appellant was involved in a criminal case on the basis of FIR No. 313 dated 12-11-1989 at P.S. Khushab. He was arrested and challaned to the court after completion of police investigations. The Trial Court sentenced him to 2 years R.I vide order dated 8-7-1990 (Annexure-A/7). On appeal, however, the Learned Additional Sessions Judge, Khushab, vide his order, dated 3-4-1991 allowed the appeal filed by him, set aside the impugned judgment dated 8-7-1990 and acquitted the appellant of the criminal charges by giving him the benefit of doubt The appellant thereafter filed appeal against his removal from service before the I.G. Police on 3-7-1991 which was rejected by the Additional I.G. Police vide his order, dated 30-3-1994 (Annexure-A/12). The appellant consequently filed the instant appeal before this Tribunal under Section 4 of the Punjab Service Tribunals Act, 1974 against his removal from service. 2. Learned Counsel for the appellant refers to Para-3 of the letter, dated 31-7-1989 addressed by the Superintendent of Police, Khushab (i.e the authorised officer) to the D.I.G. Police, Sargodha Range (i.e the authority) to show that according to the Head Clerk S.P's officer, Khushab who had appeared before the enquiiy officer as one of the 4 prosecution witnesses, the appellant did not attend office since the date of his suspension during the year 1988. However, in the year 1989, he attended office for 2 days in March, for one day in April, 2 days in May, 5 days in June and for 2 days in July for short periods after which he had been leaving office without any lawful permission of the authority. The other witnesses namely Muhammad Riaz, Sikandar Zulqarnain and Saif-ur-Rehman corroborated the statement of Head Clerk in the course of the enquiiy. It was also stated by the Head Clerk that the defaulter clerk had been initialling the absence marked by Head Clerk in the attendance register in the office. Learned Counsel also referred to the fact that the appellant was suspended on the charge of absence from duty from 15-8-1988 to 28-8-1988. The penalty of reduction in scale by 2 stages was imposed upon him but instead of re-instating the appellant, new proceedings were initiated against him on the ground that he had remained absent from duty during the period of suspension. The contention of the Learned Counsel is that Government had no where provided that a suspended official was required to attend office and to perform duty during the period of his suspension. Learned Counsel maintains that actually the appellant was required to obtain permission to leave station during the period of suspension so that he remained available for facing the enquiry proceedings which were be in the offing against him. 3. Learned Counsel for the appellant, however, maintains that the appellant was actually proceeded against malafide as the appellant had refused to perform duty during the period of his suspension when he was called upon to perform official work by the Head Clerk during the inspection of the S.P's office by the D.I.G. Police. 4. Learned Counsel refers to the fact that the appellant was paid his salary from the date of his suspension i.e 12-9-1988 till February, 1989. Learned Counsel, therefore, infers from this fact that the appellant's absence from office was not considered by the respondent department as unauthorised one as otherwise he would not have been paid his salary at all. 5. Learned Counsel, however maintains that the appellant was never directed to remain present in office during the period of his suspension or to mark attendance daily. The responsibility for his absence during the period of his suspension could not, therefore, be nailed to his door. 6. Learned Counsel states that actually the police personnel in uniform are required to report to the Police Lines in the event of theirsuspension and are required to remain present during the office hours whereas the appellant who was not governed by the Punjab Police Rules ashe was borne on Ministerial strength of the S.P's office was not required to remain present in the office of the S.P. Khushab. The apprehension of the Learned Counsel is that the provisions ofPolice Rules were probably working on the mind of the respondents who treated the appellant as if he was a police official in uniform and demanded from him discipline as was expected of such personnel. 7. Learned Counsel finally contends that the appellant was paid subsistence allowance during the period of his suspension. The respondents were not, therefore, legally competent to compel the appellant either to remain present in the office or to perform any duty. Elaborating his point further, Learned Counsel maintains that suspended official could not be expected to sustain himself and his family without doing some other work. The respondents had no moral or legal authority to demand his presence in office except when he might be required to attend office in connection with the departmental proceedings. Learned Counsel vehemently maintains that the impugned orders were fit to be set aside. 8. Appearing on behalf of the respondents, Learned DistrictAttorney relies on the written objections filed by them. He particularly referred to the fact that the appellant had even earlier been censured twice on account of his absence from duty for two days in may, 1988 and 13 days in March, 1988 apart from the penalty of censure on account of his failure in disposal of important papers, in addition to the reduction in pay by two stages on account of his substance from duty from 15-8-1988 to 26-8-1988. Learned District Attorney maintained that the work and conduct of the appellant had remained unsatisfactory. He, therefore, urged that the appeal should be set aside. 9. I have heard the learned counsel for the appellant and have taken note of the points raised by the Learned District Attorney. I am afraid the scope of the efficiency & Discipline Rules does not include consideration of the entire past of a civil servant in a given case of misconduct on his part as such an exercise could alone be conducted while considering the case of a civil servant for retirement under Section 12(i) of the Punjab Civil Servants Act, 1974. 10. The appellant concedes that he had regretted his inability to perform duty during the period of his suspension. Such conduct was not infact worthy of a conscientious civil servant. He is indeed fit to be censured again on this account. However, I am of the view that the penalty of removal from services imposed on him was apparently disproportionate to the ungratifying stance taken by the appellant when he refused to perform duties while he was under suspension. A suspended official could not legally be asked to perform duty unless he was re-instated in service. Punishing himwith removal from service cannot, therefore, be sustained in law. 11. In view of the foregoing, I accept the appeal, set aside the impugned orders whereby the appellant was removed from service, re instate him in service and impose upon him the penalty of censure on account of the indiscretion shown by him as a civil servant. The period of his absence from duty from the date he was removed from service till he resumes duty shall be treated as leave of the kind due. 12? The parties are left to bear their own costs. Appeal partially allowed as above" (M.S.N.) Appeal partially allowed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 139 [Federal Service Tribunal, Islamabad ] Present: muhammad ismail, noor muhammad magsi and roshan An mangi, members. AMIN JAN--Appellant versus SECRETARY TO GOVERNMENT OF PAKISTAN and others- Respondents Appeal No. 369 (R) of 1996, accepted on 9.9.1996. (i) Limitation- Government Servant-Appeal against Government department- Limitation-Question of--It is against principles of natural justice and fairplay to kill vested right of a civil servant on alter of limitation- Supreme Court held in a number of judgment that appeals be not dismissed on ground of limitation, when facts of case have merits- Appeal accepted. [P. 143] B (ii) Seniority- Government Servant-Seniority-Determination of-Principle of-It is a settled law that when an employee is deferred, on promotion, he gets seniority from date his juniors are promoted-It was, therefore, incumbent upon department to have allowed appellant his seniority onpromotion to next higher grade, from date his juniors were promoted-He was not superseded, but deferred due to reasons beyound his control- That does not forfeit his right to reckon his seniority from date his juniors were promoted. [P. 143] A Shah Abdur Rashid, Advocate for Appellant. Hafiz S.A. Rahman, Advocate for Respondents. Date of hearing: 4/9/96. judgment Roshan Ali Mangi, Member.-The facts leading to this case are that the appellant Mr. Amin Jan joined the T&T Department in the year 1973. He was promoted to the post of A.D.E (B-17) w.e.f. 26.12.1983 on 5.7.1988. A seniority list of A.D.E. was circulated in which the name of the appellant was placed at SI. No. 25. The name of his junior Mr. Muhammad Afzal, respondent No. 4 on the other hand appeared at SI. No. 26. At such ,the appellant was shown senior to respondents No. 4. 2. The D.P.C. was convened in the year 1988, in which promotion to the post of regular D.Es (B-18) was considered. Out of them 15 were promoted, vide order dated 19.10.19S8. But the appellant alongwith some other officers, were deferred. Respondents No. 4 to 8 although being junior to the appellant were among those who were promoted. 3. Another meeting of DPC was held in 1991. The appellant along with others was promoted to B-18 on 15.6.1991. In this promotion order, the names of the respondents No. 9 to 11 were placed over and above the appellant, although in B-17 he was senior to them. 4. Apprehending further promotion, the appellant submitted departmental representation on 11.10.1995 to the competent authority praying therein to allow him to keep intact in original seniority of A.D.E. as in B-17, and to antidate his promotion to B-18 w.e.f. 19.10.1988, the date of promotion to B-18 of his junior officers, and deferment of appellant with consequential financial benefits. But his appeal was rejected by a letter dated 3.7.1996. Hence the present appeal before the Tribunal. 5. Pleading the case of the appellant, his learned counsel argued that appellant's rejection order dated 3.7.96 was liable to be set aside and was entitled to be given seniority in the cadre of Divisional Engineers, w.e.f. 19.10.88 when he was deferred and his juniors were promoted on the grounds that in the year 1988, when besides his seniors, respondents No. 4 to 8 who were his juniors were promoted, the appellant was not superseded but was deferred. Under the general principles of seniority printed at page 225 onward in 1989 ESTACODE, para 'B' provided as follows :-- ". Departmental Promotion. --(i) Officers who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that :-- an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch. when in a single reference, the Selection Board/DPC are asked to recommend more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board/DPC inrespect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made." 6. It was pleaded that the appellant was not superseded in 1988, but on account of deferment, his promotion was withheld. On his promotion to B-18 in 1991 he had regained his seniority and date of promotion w.e.f. 19.10.1988 when his juniors namely respondents No. 4 to 8 were promoted. 7. He therefore, prayed that under the circumstances and position of law and rules stated above, appellant's promotion shall be deemed to have been place w.e.f. 19.10.88 with consequential benefits, and he shall stand senior to Muhammad Afzal Saleem, respondent No. 4. 8. The written objections shave been filed on behalf of the respondents. It has been contended that the appellant entered in the erstwhile T&T Department (now PTCL) as an Engineering Supervisor on 15.4.1973. Subsequently he was appointed as Assistant Engineer (BPS-16) against direct recruitment quota during January, 1979. During October, 1983, he was considered alongwith others for his promotion to the post of Asstt. D.E. (B-17) against the quota reserved for T&T employees possessing degree in Engineering or equivalent. The DPC did not, however, recommend him alongwith others eight employees due to their technical knowledge being not upto the mark. Later on in compliance to the judgment passed by the Federal Service Tribunal in appeal filed by Mr. Ashraf Ahmed Khan, one of the Asstt. Engineers, who was not recommended by the DPC for promotion in B-17 for the reason referred to above, he was promoted as Asstt. Divisional Engineer (B-17) w.e.f. 26.12.83. 9. The appellant was considered for promotion to the post of D.E. (B-18) alongwith others during the year 1988, but he was not cleared by the relevant DPC due to he being under probation/training at that time, and he also did not qualify the professional test of A.D.E. (B-17) which is the pre requisite for promotion to the post of Divisional Engineer (B-18). 10. On termination of his probation and after having qualified the professional test of Asstt. Divn. Engineer (B-17), the appellant was reconsidered and cleared by the relevant DPC and promoted to the post of D.E. (B-18) w.e.f. 15.6.91. 11. It has been argued that antidation of promotion is not allowable under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. According to the written arguments of the appellant promotion of an employee takes place w.e.f. the date of approval of the competent authority. 12. The appellant after having fulfilled the requisite conditions of eligibility, was promoted to the post of D.E. (B-18) w.e.f. 15.6.91. So his seniority in B-18 is to take place from the date of his promotion as prescribed vide para 8(4) of the Civil Servants Act, 1973. 13. With these submissions, it has been contended that the prayer of the appellant is not tenable under the law and rules. He has been correctly assigned his seniority in B-18 from the date of his promotion in B-18 which is strictly in accordance with the law and rules. Hence his appeal be dismissed. 14. When the case came up for regular hearing, the learned counsel for respondent raised the point of limitation, although such a point was not taken up vide written objections. Of course, he did not have objection as regard the facts of the case were concerned. He admitted them fully. 15. As regards limitation, the learned counsel for the respondents stated that it had two aspects - one legal and other factual. As regards factual, there was neither original order, nor the appellate order in the field. As regards the former, the appellant was deferred in 1988 and promoted to B-18 on 15.6.1991. He did not agitate for the antidation of his promotion. In other words, he had accepted that position at that time. As such he cannot now agitate at this belated time. He further argued that the appellant submitted his representation for antidation of his promotion and seniority on 11 Oct' 1995, which was replied on 3 July, 1996. As a matter of fact he should have come to the Tribunal after expiry of mandatory period of 90 days. But chose to wait and that period was over. And approached the Tribunal much later. In other words he had accepted the position. Now it was too late to agitate. As such his appeal was clearly time barred. 16. The learned counsel for the respondents raised yet another objection i.e. the impugned order dated 3rd July, 1996 was not addressed to the appellant. Besides, he also objected that departmental appeal was notaddressed to Board of Directors, who constituted the appellate authority. Concluding his arguments, the learned counsel contended that if-the casejudged on the legal ground, it has no legal base. It was time barred, as the cause arose in 1991, when the appellant got promotion, however, he made an appeal although not to proper authority in 1995 and approached the Tribunal in 1996, as such the appellant's appeal was patently time barred, hence liable to be dismissed. 17. The learned counsel for the appellant on the other hand took position that the appeal can not be dismissed merely on the grounds of limitation if the facts of the case have merit. In this regard he quoted the following judgments of the Supreme Court in support of his stand :-- (i) 1986 SCMR 1213-1216 (ii) 1987 SCMR 367(iii) 1990 SCMR 1356 (iv) 1970 SCMR 170 (v) 1991 SCMR 640 (vi) 1995 SCMR P. 16 (vii) 1996 SCMR 850 (854). 18. As regards, the objection of the learned counsel of the respon dents pertaining to non addressing of the impugned order to the appellant,the learned counsel for the appellant pleaded that the said impugned order contained in para 3, which mentions as: "The officer may please be informed accordingly". From this he contended that the appellant was informed and accordingly he took the action of filing appeal before the Tribunal. As suchthe learned counsel for the respondents' objection was not tenable. 19. We have heard the parties at length and perused the relevant record. 20. The main issue to resolve is whether or not the appellant is entitled to his original seniority on promotion i.e. with effect from the date of promotion of his juniors, under the law when he was deferred, but not superseded. As a matter of fact if the appellant was considered to be at fault as learned counsel for the respondents contended, when he did not agitate on his promotion to reckon his original seniority the department cannot be absolved from its duties to have given the appellant his original seniority on its own either. 21. We find that the appellant was deferred, due to whatever reason, during the consideration of promotion of the appellant alongwith others in 1986 by the DPC. However, later on he was promoted to B-18 during the meeting of DPC held in 1991. It is a settled law that has also been quoted by the learned counsel for the appellant above in para 5, that when an employee is deferred on promotion, he gets seniority from the date his juniors are promoted. It was, therefore, incumbent upon the department to have allowed the appellant his seniority on promotion to next higher grade, from the date his juniors were promoted. He was not superseded, but deferred due to reasons beyond his control. That does not forfeit his right to reckon his seniority from the date his juniors were promoted. 22. The learned counsel's objection prima facie appears justified when he contended as to why the appellant did not agitate at that time. Wefor the moment agree with him. But at the same time we are of the opinionthat the department too had erred not to have given the original seniority to the appellant, as he was deferred not superseded, hence on his promotion he was entitled to his original seniority in accordance with law automatically. We asked the respondent department, was it not supposed to assign the seniority to the appellant on their own, on his promotion from the date his juniors were promoted? The learned counsel for the respondents replied that Tribunal was supposed to decide such issues. Any how if he did agitate at that time, it does not forfeit his right to reckon his original seniority. It is against the principles of natural justice and fairplay to kill the vested right of a civil servant on the alter of limitation. In this regard the learned counsel for the appellant has quoted number of judgments of the Supreme Court in which it has been held that appeals be not dismissed on the ground of limitation, when the facts of the case have merits. And we subscribe to that view and condone the delay if at all caused under the circumstances; 23. For the reasons recorded above, we accept the appeal and direct the department, that the appellant shall reckon his seniority from the date his juniors were promoted, with all consequential benefits. 24. No order as to costs. 25. Parties be informed. (K.A.B.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 144 [Punjab Labour Appellate Tribunal, Lahore ] Present : JUSTICE (RETD.) MIAN GHULAM AHMAD, CHAIRMAN TUBE WELL EMPLOYEES UNION through SYED SIKANDAR ALI SHAH, PRESIDENT, WAPDA COLONY, MANDI BAHAUDDIN, DISTRICT MANDI BAHAUDDIN-Petitioner versus CHIEF ENGINEER, IRRIGATION, SARGODHA & others-Respondents Petition No. GA-131/96, Punjab , dismissed on 8.4.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (1968), S.P. 15(3)--Termination of services of ad hoc appointees on move of Tube Well Employees Union who claimed appointments of children and relatives of those already in service against these posts-Whether Labour Court could proceed without impleading union as necessary party and whether order of acceptance of grievance petition suffers from legal infirmity-Petitioner union has, without becoming party to petition pending in court below, invoked jurisdiction of Labour Appellate Tribunal straight-away, which course is , neither proper nor permissible under LawUnion of employees was at liberty to apply to Labour Court for its impleadment as party to pleadings-Body, however, did not care to fulfil afore-said formality and preferred to rush to this forum for requisite relief, which cannot readily be conceded to them-Held : Learned Lower Court does not appear to have committed any material irregularity or illegality, or by-passed any express provision of law in rendering impugned order, on entertaining grievance petition-Revision petition dismissed being not proceedable under law. [P. 145] A & B lr Mr. Asmat Kamal Khan, Advocate for Petitioner. Mr. Nasarullah Khan, Head clerk for Respondent No. 1. Rao Tahir Jamil, Clerk for Respondent No. 2. Ch. Fazal Elahi, Advocate for the remaining Respondents. Date of hearing: 8.4.1996. judgment Respondent No. 3 to 146 had been recruited by the Irrigation Department, on ad hoc basis, and the Chief Engineer on 13.2.1996 ordered that their services be terminated with immediate effect. This is stated to have been done on a move made by the Tube Well Employees Union, Mandi Bahauddin, members of which union claimed that their children had a prior right for such recruitment, and the outsiders had to be ignored, while making fresh appointments. Actually, the Executive Engineer is said to have in hurry recruited respondents No. 3 to 146 in contravention of the conditions of the 'settlement' arrived at between the Employees Union and the Authorities of the Department, who had earlier conceded to the demands of the union in that behalf. 2. Respondents No. 3 to 146 filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in the Punjab Labour Court No. 7, Gujranwala . The court on 15.2.1996 passed an interim order to the effect that the employees must not be removed from service, except by due process of law. This order caused grievance to the petitioner body, which claims to be the representative union of the employees, having been registered as CBA. This status has been disputed by the respondents before me. According to them, there was neither any settlement in existence, nor was there any rule or practice, which required that the Department must not recruit any one else, except children and relatives of those already in service. The petitioner uniojfc .however, has pleaded that a right guaranteed under a settlement and available under law has been violated, whereas no such right of respondents No. 3 to 146, enforceable under any law, settlement or award, has been infringed. It is also alleged that no grievance notice as required by the statute, was served upon respondents No. 1 and 2, by the remaining respondents, and the grievance petition, therefore, would not be competent Another important plea taken up by the petitioner before this court is that the union was a necessary party to the proceedings, and by not impleading it as a party to the proceedings before the lower court, the petition there had been rendered as one not maintainable. 3. It is to be noted, at this juncture, that the petitioner union has, without becoming a party to the petition pending in the court below, invoked the jurisdiction of the Labour Appellate Tribunal straight-away, which course is neither proper nor permissible under the law. The union of the employees was at liberty to apply to the Labour Court for its impleadment as a party to the proceedings. The 'body', however, did not care to fulfil the afore-said formality and preferred to rush to this forum for the requisite relief; which, I am afraid, cannot readily be conceded to them. They may, if so advised, approach the Labour Court , with a request that they be arrayed as co-respondents in the grievance petition. It will be open to them to place before the court their stand-point; and if it is found to be correct or aound, the court may opt not to yield to the demand of the grievance-petitioners about their retention in service. 4. The learned lower court does not appear to have committed any material irregularity or illegality, or by-passed any express provision of kw, in rendering the impugned order, on entertaining the grievance petition. I would Hjgrqigv the revision petition being not proceedable under the law. (B.T.) Petition dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 146 [Punjab Appellate Tribunal, Lahore ] Present : JUSTICE (RETD). MlAN GHULAM AHMAD, CHAIRMAN. LIAQAT ALI--Appellant versus MUNICIPAL CORPORATION, SARGODHA & another-Respondents Appeal No. SGA-451 of 1994, Punjab, dismissed oa 16.4.1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- Ss. 25-A & 51--West Pakistan Industrial and Commercial Employment (Standing Orders) Ord., 1968 (VI of 1968) S.O. 15 Dismissal from service without giving opportunity to face inquiry-Whether justified-When official was just not willing to associate himself with process of inquiry and was not available at his given address, Authorities could not communicate to him charge sheet as also orders making appointment of inquiry officer-Authorised officer and enquiry officer has no alternative but to proceed ex-parte against official who could not as such take refuge behind his pretended un-awareness about proceedings of Inquiry-Held : By no standard of justice and fair-play, appellant justified his retention in service. [Pp. 149 & 150] D & E (ii) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968)-- -S.O. 15(3)-Employee of Municipal Corporation dismissed from service- Validity of medical certificates produced by appellant and ex-parte proceedings against him--It also established that doctor had been issuing certificates to support fake claim of pretended illness and Appellant was so cunning person that he would not attend to his duty despite being physically and mentally healthy, but would justify his absence from duty by obtaining certificates about his fictitious ailment-He was absolutely unwilling and incorrigible, as also extremely clever official, whose only object was to received emoluments and who was least interested in doing any work-Held : Certificate having been issued dishonestly and avariciously, which merit out-right rejection with disdain same deserve. [P. 149] B & C (iii) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (VI of 1968)-- - S.O. 15(3)--Employee of Municipal Corporation-Dismissed from service on charge of absence from dutyGrievance petition dismissed on ground of limitation-Challenge to-Date of dismissal being 8.7.1991, grievance notice, followed by grievance petition having emanated in early 1993 must be taken to be hopelessly time barred-It is to be noted that no application for condonation of delay had been submitted with grievance petitionAppeal accordingly dismissed. [P. 147] A Mr. Nasir Ahmad Qureshi, Advocate for Appellant. Date of hearing: 16.4.1996. judgment By an order dated 4.10.1994, Mehar Muhammad Altaf Hussain, Presiding Officer, Punjab Labour Court No. 5, Sargodha dismissed the grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, on 9.3.1993, by Liaqat Ali, against the Municipal Corporation, Sargodha , and the Commissioner, Sargodha Division. He has preferred the present appeal, assailing validity and operativeness of the aforesaid order. 2. Liaqat Ali got employment with the Municipal Corporation, Sargodha, on 27.4.1985, as water-carrier, and served later as Naib Qasid, as also as Baildar. He was absent from duty on 1.3.1990, owing to his illness, as was pleaded by him. He was allegedly not permitted to resume duty thereafter and was served with & charge-sheet on 27.5.1991. He was dismissed from service on 8.7.1991. He claims to have served upon the mployer a grievance notice, but he has not furnished a copy thereof, nor given its date. The postal receipts and the acknowledgement receipts tendered in that behalf, however, indicate 16.2.1993 as the date of issuance of such notices to the Municipal Corporation, as also the Commissioner Sargodha, and 17/18.2.1993 as the date of service of notices. The date of dismissal being 8.7.1991, the grievance notice, followed by the grievance petition, having emanated in early 1993, must be taken to be hopelessly time-barred; and it has rightly been so held by the learned lower court. It is to be noted that no application for condonation of delay had been submitted with the grievance petition. 3. On merits also, the petitioner before the Labour Court had no case. By tendering in evidence certificates, Exhs. P-7 to 9, Liaqat Ali has endeavoured to establish that he had been over-taken by a disease and remained under treatment of different doctors from 25.2.1990 onwards, till 12.6.93, when, as certified as per document Exh. P-10, he was declared to be fit for resumption of duty, standing no longer in need of any medical treatment or bed rest. Earlier he had been advised complete bed rest, initially for a year, with effect from 25.3.1990, and subsequently for 1 \ years, with effect from 26.3.1991 to 10.6.1992, as certified by one Dr. Ehsan Ullah, Professor of Surgery, Allama Iqbal Medical College, and Visiting Sfirgeon, Services Hospital, Lahore. Doctors, in our country, and probably every where in the world, have been performing miracles; and it is so well known that it is no problem to obtain certificate of any kind from medical practitioners, by being paid a few hundred rupees. Liaqat Ali belongs to Sargodha, and, as per certificates afore-cited, he has been getting medical treatment at Lahore, or has been obtaining certificates from doctors at Lahore. If he was hospitalized, he should have produced in evidence hospital record in that-behalf; and if he could undertake arduous journey from Sargodha to Lahore , it is not understandable as to how was he unable to move about and had to remain confined to bed at his home place, Sargodha . Well, if he could travel from Sargodha to Lahore, and back, he could also pay visits to his office, to tell his superiors that he was actually ailing. He has, while appearing as his own witness, as PW-1, deposed that off and on he had been coming to his office for doing his duly, but he was not allowed to do so. It would then be intriguing as to how this was possible when he had been advised complete bed rest from 25.3.1990 to 10.6.1992, for a period exceeding two years, by a medical specialist. One is also at a loss to understand as to how could the employer be so hard on him this time, when, on earlier occasions, as indicated by the documents Exhs. R-l to 9, he had leniently and rather indulgently been dealt with. It seems that he was very fond of leave and used to remain generally absent from duty. He had availed of four months leave, from 1.11.1989 to 28.2.1990, for carrying out necessary repairs to his allegedly dilapidated house. Exh. R-8 shows that he had, on a previous occasion also, availed of leave for a period of about three months, with effect from 1.6.1989 to 21.9.1989. He had been suspended/ousted from service, but he managed to secure an order of his reinstatement, by approaching the Deputy Mayor, who had no competence in the matter, and the order was, therefore, reversed by the Mayor. In the application, Exh. R-9, he said that he had suffered a mental break-down. This claim did not have in its support any medical certificate and actually on a subsequent date ex-post facto sanction of leave was accorded, vide order dated 23.9.1989. That means that he had remained absent from duty, without leave, for that long period, and had been very 'kind' to the Corporation in making re-appearance, one fine morning on 23.9.1989. Leave was granted and his reinstatement in service was ordered with effect from 25.9.89, vide order issued by the Administrative Officer of the Municipal Corporation (Exh. R-8). Still before, from 1.12.88 to 28.2.1989, for a period of full three months, he had availed of another spell of leave, as per Exh. R-7, on the pretext of repairing a house that had fallen down. The same house, it may be borne in mind, was again going to fail down, according to the official, who applied for four months leave, about a year afterwards (1.11.1989 to 28.2.1990), although he must have repaired his house, by remaining on leave for three months from 1.12.1988 to 28.2.1989, as he had applied for that leave for the said purpose. Documents Exhs. R-l and 2 furnish proof of the fact after availing of long spells of leave, Liaqat All would turn up for a day or two in his office and again dis-appear and his superior officers had reported on 5.3.1990 and 18.8.1990 that he had again been absent for a period of about six months and his performance had been absolutely unsatisfactory and his conduct in service wholly objectionable. This was treated to be wilful absence from duty and it was observed that he wax a habitual absentee and was not taking any interest in his work. He was, therefore, placed under suspenction. Document Exh. R-8 furnishes a similar indication. He was reinstated with effect from 25.9.1989 and was asked to report for duty in the Company Bagh. He came to the place only once, on 1.10.1989, and remained absent till 8.10.1989. His conduct afterwards was consistently and contumaciously offensive, as also rebellious, as discussed above. 4. He was charge-sheeted on 27.5.1991, copy of the charge-sheet being Exk Rrlfi. He had been suspended on 5.3.90, as per Exhs. R-ll and R-15. Notices were issued to him, calling upon him to participate in the departmental inquiry initiated against him. Exhs. R-12 to R-14 show that he had been avoiding his service and appearance in the proceedings of inquiry. Service was Ultimately effected through affixation. Inquiry proceeded exparte against him; and as per report dated 8.7.1991, Exh. R-10, he was found to be guilty and a recommendation was made that his services be dispensed with. On the same day, he was removed from service, vide orders Exh. R-17. 5. From what has been said above, there is no escape from the conclusion that he was an absolutely un-willing and incorrigible, as also an extremely clever official, whose only object was to receive emoluments and who was least interested in doing any work. He had an aversion for duty, which he seldom performed. The employer had no option but to terminate his services. He could avail of no legal provision and no equity for his v retention in service. Even the Labour Laws, which were enacted and the Labour Courts, which were created, primarily for benefit of workmen, could not come to his rescue. It has rightly been remarked by the learned court below in paras 6 and 8 of the impugned judgment that on the one hand the official claimed having been advised complete bed rest, from 25.3.1990 to 10.6.1992, as per medical certificates produced by him, and on the other hand, he claimed having also been coming to his office for performing duty, and had even secured reinstatement order on 18.8.1990 (as indicated by Exh. R-l), from which development it would follow that he was fit to perform duty and he no longer needed bed rest. Conversely it also established that the doctor had been issuing certificates to support a fake and false claim of pretended illness and Liaqat Ali was so cunning a person that he would not attend to his duty, despite being physically and mentally healthy, but would justify his absence from duty by obtaining certificates about his fictitious ailment I am not prepared to give any importance whatever to these certificates, having dishonestly and avariciously been issued, which merit out-right rejection with the disdain the same deserve. 6. When the official was just not willing to associate himself with the process of inquiry, and was not available at his given address, the Authorities could not communicate to him! the charge-sheet, as also the orders making appointment of the inquiry officer. The authorized officer and " the enquiry officer had no alternative but to proceed ex-parte against the official, who could not, as such, take refuge behind his pretended unawareness about the proceedings of inquiry. The superiors seemed to have taken all possible precautions, and undertaken all efforts in that behalf, and then decided to dismiss him from service, as, by no standard of justice and fairplay, Liaqat Ah' justified his retention in service. Had he been allowed to continue, his stay would in all probability have under-mined the general discipline in the office and encouraged work-shirkers and mischief-mongers, like him, which incidence would not have been conducive to promoting public interest 7. I entirely agree with the learned Labour Court , and would uphold the impugned decision, whereby dismissal order of the appellant was kept intact and was not set aside. The appeal has no merit and is hereby dismissed, with costs throughout. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 150 [Punjab Labour Appellate Tribunal, Lahore] Present: justice (retd.) mian ghulam ahmad, chairman. ATLAS TYRES LIMITED, SHEIKHUPURA-Appellant versus ATLAS TYRES LIMITED EMPLOYEES UNION and two others- Respondents Appeal No. QSA-159 of 1996 Punjab, dismissed on 21.12.1996 . (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- - Ss. 22 & 25-A-Collective bargaining-Referendum-Holding of-Petition for direction for holding referendum filed by Atlas Tyres Employees Union accepted by Labour Court in ex-parte proceedings against establishment-Whether such action of Labour Court was without legal justification-Question of-Perusal of impugned decision leaves little doubt about fact that number of attempts were made by Labour Court to effect service upon establishment, respondent No. 1 before it, but report always came that it had not been possible for process server to do needful and that service was being deliberately avoided-There was no occasion for court to have called upon process server to make statement as his report about service of respondent was in normal course to be treated as correct one unless effectee had come along and made a move for setting aside order of ex-parte proceedings or made application for action against ' process server-Held : Establishment had intentionally avoided service and court had no alternative but to proceed against them ex-parte at the end-Appeal without merit is accordingly dismissed. [Pp. 152, 153 & 154] A, B, C & F (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 34~Decision on petition by Labour Court without impleading other two unions of Atlas Tyres Ltd.-Challenge toThis aspect of matter could have been brought to notice of court by Establishment alright and Court could then make proper order; but when nobody for establishment had turned up, court could not on its own, acquire awareness about this fact or hold opinion that other two unions had been left out, wilfully, and only union having approached Labour Court thus was not acting in matter with clean hands and bonafide intentions. [P. 153] D (iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- ..._s. 22-A (10)(12)--Filing of petition by Employees Union in Labour Court for issuing directions to establishment for holding referendum-Whether union had no locus standi to file such a petition-Question of-Although two years term of C.B.A. had expired, new referendum had not been held and responsible for it mainly was establishment and in circumstances, trade union already certified as C.B.A. about which there is no dispute, could hold on. [P. 153] E Mr. Imran Bokhari, Advocate for Appellant. Mr. Safdar Hussain Sindhu, Advocate for Respondent No. 1. Mr. Muhammad Anwar Butt, Senior clerk for Respondent No. 2. Mr. H.R. Haider, Advocate for Respondent No. 3 union. Date of hearing : 15.12.1996. judgment The appeal is directed against the decision dated 3.6.1996, rendered by the Punjab Labour Court No. 3, Lahore, at Ferozewala, allowing a petition filed by the Atlas Tyres Employees Union, Lahore Sheikhupura Road, read with section 34 of the Industrial Relations Ordinance, 1969, respondents there being the General Manager, Atlas Tyres Limited, Lahore, and the Registrar of the Trade Unions, Lahore Region, Lahore. The Union afore-said, claiming to be the CBA, had made a move to the Labour Court, for a direction for holding referendum, the previous one for a term of two years having been held in February, 1994. An allegation was levelled that the proprietorship/management of the concern had become revengeful against the CBA, and was making a desperate bid to victimize the members and the office-bearers of the union, oust them from service, and evict them from the premises used by the union as its office. As many as 89 workers were allegedly stopped at the gate and prevented from making entry into the interior. Whereas the CBA, it was asserted, was keen for holding the referendum at the earliest, the management was out to delay the exercise, with ulterior considations and malaftde motives. 2. In the proceedings before the Labour Court, the establishment did not make participation, although the Registrar's representative did appear and submitted also the written statement. Evidence of the establishment was closed; and on considering the evidence led by the trade union, in the light of the averments embodied in the written statement filed by the Registrar, the Labour Court proceeded to allow the petition, with a direction that process of referendum would be conducted and completed within one month positively. 3. The instant appeal was preferred by the establishment on 19.6.1996, when, as prayed for by the appellant concern, proceedings of the referendum were stayed. I have carefully gone through the-grounds of appeal and I am constrained to observe that there is little force in the main plea taken up by the appellant, the same being that exparte proceedings had been taken against the establishment by the Labour Court with no legal justification. A perusal of the impugned decision leaves little doubt about the fact that a number of attempts were made by the Labour Court to effect service upon the establishment, respondent No. 1 before it, but the report always came that it had not been possible for the process-server to do the needful and that service was being deliberately avoided. Learned counsel for the appellant states that the proclamation issued in th« weekly 'KAHKUSHAN' was not in the knowledge of the establishment and no effort had been made to serve the notice through registered post Submission is that on a number of dates of hearing, in the petition pending before the Labour Court, the appellant concern and their counsel were present in the eo'jrt i n as many as 14 grievance petitions and connected matters, but neither the court nor the process-server made a bid to serve them as regards the petition in question. In this regard my own experience is that even regularly engaged and heavily-paid Advocate avoid acknowledging service, even in the course of the same proceedings, if, for instance, the matter has been dismissed in default and a move has been made for its revival. Exparte proceedings may have been ordered against a respondent, and before the next date of hearing, an application has been submitted for annulment of the order of ex-parte proceedings and notice has been ordered to be issued to the learned counsel for the appellant/petitioner, who would generally refuse to receive the notice, stating that the same be served upon the party or person concerned directly. It has been pointed out by the learned counsel for the appellant that the learned lower court had failed to record the statement of the process-server, who had actually furnished a false or bogus report WeU, there was no occasion for the court to have called upon the process-server to make a statement, as his report about service of the respondent was, in normal course, to be treated as a correct one, unless the affectee had come along and made a move for seting aside the order of ex parte proceedings or made an application for action against the process-server. A resume of the developments, having taken place during the past two years, as revealed in the petition under section 34, furnishes an irresistibk indication that efforts made by the Registrar towards holding a referendum seemed to have consciously and persistently been frustrated by the establishment, who obviously were interested that the field should remain open and collective bargaining with the labour class should be avoided over as long a period as possible. I have also not been able to follow in what manner had the appellant made appearance in the court in other matters, whether h« wa the Managing Director of the concern or another representative. How could the court be cognizant of the fact that in a different matter, the concern or their counsel were evading service, so that the court could call upon its process-serving agency to establish contact with the representative of the establishment, as also the counsel, in the court or the purpose of 'service'. I would, therefore, treat this plea as a flimsy one. I am convinced that the establishment had intentionally avoided service and the court had no alternative but to proceed against them ex parte at the end. 4. There is another plea. Three trade unions are in existence and the Employees Union, in the proceedings of the petition under section 34 of the Industrial Relations Ordinance, 1969, had not impleaded the other two trade unions as parties. This aspect of the matter could have been brought to the notice of the court by the establishment alright, and the court could then make a proper order, but when nobody for the establishment had turned up, the court could not, on its own, acquire awareness about this fact, or hold an opinion that the other two unions had been left out, wilfully, and the only union having approached the Labour Court thus was not acting in the matter with clean hand and bonafide intention, la so fur as the contention about the Employees Union having no locus standi in the matter is concerned, 1 find it difficult to agree with the learned counsel for the appellant Although the two years term of the CBA had expired, new referendum had not been held and responsible for ft mainly was the establishment, and in the circumstances, trade union already certified as CBA, about which there is no dispute, could hold on. 5. According to the learned counsel for the appellant, the N.I.R.C. having become cognizant of the affair, the Labour Court was divested of its jurisdiction in the matter, and reference has been made to sub sections (10) and (11) of Section 22-A of the Industrial Relations Ordinance, 1969. Sub section (12), however, postulates that jurisdiction of the Labour Court to entertain cases of unfair labour practice would not be ousted, although when a case of unfair labour practice is pending before the Commission, the labour court will refrain from dealing with it, in exercise of its jurisdiction in the matter. On perusal of the papers placed before me, by the learned counsel for the appellant, it has been disclosed that the President/General Secretary of the Workers and Staff Union had approached the N.I.R.C. in September, 1995, and the N.I.R.C. had announced its order on 30.6.1996. The learned Labour Court had rendered its decision earlier on 3.6.1996. The establishment, as already said, did not make appearance in the proceedings before the Labour Court ; and it does not known if the Registrar had brought to the notice of the court the fact of pendency of any matter, respecting Atlas Tyres Limited, before the N.I.R.C. The vital aspect of the issue, however, is, if it was the same matter which the two forums were seized of simultaneously. The CBA was in enjoyment of certain benefits and privileges as had been agreed upon in the settlement arrived at with the establishment, and the Workers & Staff Union had made grievance of the fact that they were being deprived of the requisite amenities, benefits, etc. by the rival union, namely, the Employees Union. 6. It is interesting to find that even the Hon'ble Chairman of the N.I.R.C. had, while making a direction that the establishment would not discriminate between the rival factions and accord them equal treatment, had passed orders that the Registrar Trade Unions would hold the referendum, at the earliest, under his supervision, Negotiations respecting the demand notice the Registrar was restrained to undertake, so long as the status of the CBA was not conferred on one of the three trade unions through the referendum. In the course of arguments before me, as well, I have felt that the trade unions may be at daggers-drawn, for advancement of their self-fish ends, but they are all keen that the referendum be held at the earliest, without which exercise the establishment may resort to exploitation, and the cause of the working class will essentially be jeopardized. 7. This being the factual and legal position, the appeal is rendered to be one without merit; and I proceed to dismiss it, with no order as to costs. The Registrar, Trade Unions, Lahore , respondent No. 2, shall immediately take steps to initiate the exercise of referendum, so as to conclude it by 31.1.1997v It is expected that the Registrar would remain absolutely impartial, independent and fair, in the entire process. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 155 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RETD.) mian GHULAM ahmad, chairman ZAHOOR HUSSAIN-Appellant versus SUPERINTENDENT TELEGRAPHS, SMALL TELEGRAPH OFFICES SARGODHA and another-Respondents Appeal No. SGA-385 of 1993, accepted on 3.11.1996. West Pakistan Industrial & Commercial Employment (Standing Order) Ordinance, 1968 (VI of 1968)-- S. 0. 15-Appointment of appellant against temporary post of T.W.M-- Termination from service without assigning any reason although 12 persons had been appointed against these posts subsequent to his appointment who are still in service-Grievance notice under section 25- A, Industrial Relations Ordinance, 1969 dismissed by Labour Court- Challenge toUnder West Pakistan Industrial & Commercial Employment (Standing Order) Ordinance, 1968, employee in service for period exceeding nine months will acquire status of permanent workman, who cannot be ousted from service, except on grounds of misconduct and in that event, he has to be served with show-cause notice and made to face regular enquiry-Department could very well manage to retain him or could remove from service junior most amongst those who had been appointed afterwards-Held : Appellant had been continuously in service for so long, from 16.6.1990 to 11-10-1992, he had been acquired vested right to remain in service and he could not be ousted, except by following course prescribed by law for terminating services of permanent employee- Appeal accepted. [Pp. 156 & 157] A,B & C Mr. Shaukat Hussain Baloch, Advocate for Appellant. Mr. G.M.D. Chaudhry, Advocate for Respondents. Date of hearing: 20.10.1996. judgment The learned Punjab Labour Court No. 5, Sargodha, presided over by Mehr Ahmad Yar Lali, on 3.8.1993, dismissed the grievance petition, filed under section 25-A of the Industrial Relations Ordinance, 1969, by Zahoor Hussain, respondents in appeal here, being the respondents in the petition , before the Labour Court. He has come up in appeal to this Tribunal. 2. Zahoor Hussain, vide order dated 16.6.1990 ( Exh. R-2 ) was appointed against a temporary post of T.W.M. and was posted in the Telegraph Office, Chashma, District Mianwali. His services were terminated with effect from 12.10.1992 vide Exh. R-14. Actually, one Abdul Sami, TPO, Telegraph Office, Chashma had preceeded on TL-I Course, and in his place Ashiq Hussain TWM had been pronoted as TPO, on officiating basis. The plea of the Department is that on return of Mr. Abdul Sami, on conclusion of the course, Ashiq Hussain was reverted (pages 91/93 of the Labour Court's file ), with effect from 11.10.1992. This event is also incorporated in the general transfer order issued on 5.11.1992 ( Exh. R-33 at page 85 ). As Zahoor Hussain had got the employment against the post vacated by Ashiq Hussain, on his promotion, he had to quit, when Ashiq Hussain came beck, and he could not possibly take exception to his removal from service, having been recruited on purely temporary basis, as was indicated by the appointment order, (Exh. P-21)/(Exh. R-2), dated 16.6.1990. It is so maintained by the respondents, according to whom no reason had to be assigned and no show-cause notice had to be issued to the employee for bis removal form service. 3. On the contrary, it is submitted by the appellant that his appointment letter dated 16.6.1990 (Exh. P-21)/(Exh. R-2) did not envisage that his appointment had been made against a leave vacancy, although the establishment had described his appointment as purely temporary, as is usually done in such cases, so that the employees could oust an employee at any time, according to their whims, without attributing any reasons. Impliedly, appointment of Zahoor Hussain (an outsider candidate) had been made, when Ashiq Hussain TWM had been promoted, ob officiation basis, as TPO, in place of Abdul Sami, who had left for TL-I, training course, as \b shown by the order dated 13.6.1990 (Exh. R-l). It was however not expressly stated like that, in the appointment order, pertaining to Zahoor Hussain. He continued to be appointed for three months duration, successively, from 16.6.1990 onwards (Exh. R-2 to R-12). As per Exh. R-13, Ashiq Hussain came back to his substantive post of TWM, with effect from 12.10.1992, to work at the Chashma Telegraph Office, since Abdul Sami had rejoined his post of TPO, after finishing his training in TL-1 Course. 4. Zahoor Hussain maintains that as many as 12 persons had been appointed against the posts of TWM, subsequent to bis appointment, and he has tendered in evidence documents Exhs. P-l to P-12 in that behalf. They are still in service, whereas he has been picked up for his removal from service, for reasons best known to his superiors. There is an important piece of evidence, coming forth from the mouth of the witness of the respondents themselves, namely, Muhammad Latif, Superintendent, Telegraphs, Sargodha, who has testified to the fact that a number of appointments to the post of TWM had been made during the period 25.6.1990 to 20.6.1991 and they continued to be in service. He has also deposed that Zahoor Hussain has been in service continuouly form 16.6.1990 to 11.6.1992. Well, if that is the actual position, the Department cannot possibly make out a justification for terminating the services of Zahoor Hussain, while retaining all others. Under the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, and employee in service for a period exceeding nine months will acquire the station of a permanent workman, who cannot be ousted from service, except on grounds of misconduct, and, in that event, he has to be served with a show-cause notice and made to face a regular enquiry. In the present case, Zahoor Hussain's ousted from service has been ordered in an arbitrary manner, without observing such legal formalities. 5. Learned counsel for the appellant has relied on a number of authorities, including 1992 PLC 179/827 (Labour Appellate Tribunal Sindh), wherein it has been laid down that service of workman no longer required' could not constitute a valid reason for removing a workman from service and that such statement or claim would call for further probe. People appointed after the aggrieved person are still working; and this bare fact will lead to the conclusion that the post against which the aggrieved person was working was of permanent character and not of temporary nature. I do not agree with the view-point of the learned lower court that Zahoor Hussain could not be brought at par with the TWMs who had been appointed against permanent or regular vacancies, although afterwards, and that the appointment of the appellant was by way of a step-gap arrangement, which automatically ended, on the arrival of the actual incumbent If Abdul Sami had resumed duty as TPO, and in consequence Ashiq Hussain had been reverted as TWM, this development would not Ipso-facto entail entail ouster of Zahoor Hussain from the post of TWM, in the Telegraphs Office, Chashma, The Department could very well manage to retain him or could remove from service the junior-most amongst those who had been appointed afterwards. It may be reiterated here that Zahoor Hussain had initially not been appointed against the leave vacancy, created by temporary promotion of Ashiq Hussain, in place of Abdul Sami. When Zahoor Hussain had been continuously in service for so long, from 16.6.1990 to 11.10.1992, he had acquired a vested right to remain in service, and he could not be ousted, except by following the course prescribed by law for terminating the services of a permanent employee. 6. There can hardly be any doubt about the status of Zahoor Hussain being a workman, keeping in view the nature of his duties. Even though he was an employee of a Department under the direct superintendence of the Federal Government of Pakistan he could not be regarded as a civil servant It has been so pronounced repeatedly by the superior courts of the country. 7. The upshot of the above discussion is that the appeal succeeds, It is hereby accepted and the impugned order is set aside. Zahoor Hussain shall be reinstated in service, with immediate effect and by reason of his break in .service he will not suffer in the matter of his seniority. He has been out of service for no fault of his part, but he has not practically served that Department I will hold him entitled to half of the back benefits, from the date erf his removal from service (12.10.1992), till such time he is enabled to resume duty as TWM. (B.T) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 158 [Punjab Labour Appellate Tribunal, Lahore ] Present : justice (retd.) mian ghulam ahmad, chairman QURESHI SHER MUHAMAMD & 4 others-Petitioners versus Syed ZAWAR HUSSAIN SHAH BOKHARI & another-Respondents Application No. SGA-717 of 1996, accepted on 14.12.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 8(7) read with Civil Procedure Code 1908, S. 20-Petition against order of Registrar Trade Unions-Whether competent before Labour Court at Lahore when cause of action accrued at Sargodha-Jurisdiction-Question of--Mere fact that order passed by Registrar Trade Unions, Lahore has been impugned by way of petition u/S. 8(7) of Industrial Relations Ordinance, 1969, would not confer on Labour Court at Lahore competence in the matter, as Registrar's jurisdiction extends throughout province-Words "resides", "carries jon business" or "works for gain" occurring in section 20 C.P.C, apply to natural persons only and not to legal entities-Cause of action accrued to respondent or any one else for that matter, within territorial limits of Labour Court at Sargodha-Held: Labour Court at Sargodha is proper Court, which is competent to deal with issue-Petition allowed. [P. 159] A, B & C PUD 1954 Sind 117 ; PLD 1965 310 (g) and PLD 1982 Quetta 84. Mr. Naseer Ahamd Qureshi, Advocate for Petitioner. Mr. Asmat Kamal Khan, Advocate for Respondent No. 1. Mr. Zaigham Abbas Bokhari, Superintendent for respondent No. 2. Date of hearing: 5.12.1996. order A petition under section 8(7) of the Industrial Relations Ordinance, 1969, filed on 23.10.1996 by Syed Zawar Hussain Shah Bukhari, against the Registrar of the Ti'ade Unions, Punjab, Lahore, is pending before the Punjab Labour 'Court No. 2, Lahore. Respondents No. 2 to 6 in the petition have approached this Tribunal with a request that the petition be entrusted to the Punjab Labour Court No. 5, at Sargodha. Earlier, on 2.7.1996, on Ashiq Bilal had filed a similar-petition in the Labour Court at Sargodha, impleading Syed Zawar Hussain Shah Bukhari as a respondent (No. 5). According to the applicants before this Tribunal, the afore-said petition was a collusive one, having been get instituted by Zawar Hussain Shah, in the name of one of his friends, Ashiq Bilal. Syed Zawar Hussain Shah himself also filed his own petition under section 8(7) of the Industrial Relations Ordinance, 1969, on 10.9.1996, in the Labour Court at Sargodha . It was, however, withdrawn and was accordingly dismissed, On 21.10.1996. The present petition by Syed Zawar Hussain Shah Bukhari was filed on 23.10.1996, this time, in the Labour Court at Lahore. 2. So obviously, even according to Syed Zawar Hussain, the competent court in the matter was the Labour Court at Sargodha . The mere fact that an order passed by the Registrar Trade Unions, Lahore has been impugned by way of the petition under section 8(7) of the Industrial Relations Ordinance, 1969 would not confer on a Labour Court at Lahore the competence in the matter, as the Registrar's jurisdiction extends throughout the Province. Reference has been made to PLD 1954 Sindh 117, PLD 1965 SC 310(g) and PLD 1982 Quetta 84, in urging that Provincial Government or a Provincial Department of the Government has existence and functions every where throughout the Province, but strictly speaking it resides" "Carries on business", or "works for gain" no-where, within the meaning of S .20, C.P.C., and its omni-presence would hardly be of any significance or relevance, for determining the question of jurisdiction of the court. These words occurring in S. 20 apply to natural persons only and not to legal entities. Cause of action had accrued to Syed Zawar petitioner, or any one else for that matte^ within the territorial limits of the Labour Court at Sargodha . The union has its Head Office and the Administrative Department (the Punjab Irrigation Scarp-II Circle) is also headquartered at Sargodha . The parties, except of course the Registrar, are also putting up at sargodha . No-confidence move against Syed Zawar Hussain Shah had also been made there. Considered from any angle, the Labour Court at Sargodha is the proper court, which is competent to deal with the issue. Institutions of the petition in a Labour Court at Lahore has in-appropriately been made, and it might have been done with ulterior considerations and no good intentions, with a view to put pressure on the adversaries and to subject them to un-necessary inconvenience and expenditure. 3. I would allow the application, with draw the petition dated 23.10.1996, titled "Zawar Hussain Shah Vs. Registrar Trade Unions and others", from Punjab Labour Court No. 2, Lahore , and make it over to Punjab Labour Court No. 5., at Sargodha , for its decision in accordance with law. A copy of the order shall be conveyed to both the courts concerned, and another copy may be given 'dasti' to the petitioners or their counsel. Next date in the Labour Court at Sargodha would be 11.1.1997. (B.T) Petition allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 160 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice(retd.) mianghulamahmad, chairman MUHAMMAD ARIF--Appeuant versus POSTAL DEPARTMENT through DIVISIONAL SUPERINTENDENT, POST OFFICES, JliELUM and another-Respondents. Appeal No. JM-43 of 1993, accepted ob 17.11.1996. (i) Confirmation- -Postal employee having more than 6 years serviceNot confirmed against post he was holding prior to his selection in other department-Legal position of employeePerson on initial appointment in Government service is to remain on probation for year and on expiry of this term, probation period is deemed to have been extended, if no express order is made, and in absence of order, period of probation, on expiry of extended term, on an conclusion of two years, will be deemed to have successfully been completed-Held : Court of law cannot permit Government or competent authority to retain extra-Constitutional powers ef arbitrary character-Condition of, continuous officiation, attached to service of civil servant, was treated as unlawful. [P. 164} C & D PLD 1992 (SC) 96, PLD 1969 Quetta 13 and PLD 1964 (SC) 572. (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 2(xxvui) S. 25-A-Clerk of Postal Department-Whether workman or civil servantWhether entitled to maintain grievous petition under LR.O. 1969Question of-Clerk of Post and Telegraph Department would be 1 covered by definition of Vorker' as accruing in S. 2 (xxviti) of Industrial j Relations Ordinance, 1969, and not by one, as embodied in S. 2(n), read £ with Schedule n of workers compensation Act-Sub-sectioB (3) of Section ] 1 of Industrial Relations Ordinance, 1969 envisages that although provisions of Industrial Relations Ordinance, 1969 would not be applicable to persons employed in administration of state, but low paid employees of Railways, Post offices, Telegraph & Telephone Department have been excluded, and they, unless they are performing jobs of administrative, managerial or supervisory character, would be entitled to invoke provisions of Labour Laws, by having recourse to Labour Courts- Held : Employes of Post offices are entitled to maintain petitions under Section 25-A of Industrial Relations Ordinance. [P. 165] E 1988 PLC (CS) 114 (iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25-A--Senior Clerk of Postal Department selected u District Accountant in N.P.S.-16 in a newly set up department-Refusal by parent department to take him back in service when department was disbanded and his services were terminated from there-Whether his lien was in fact and appellant was entitled to claim employment in his previous department-Question of-In present case, it appears, official had not been relieved by Postal Department, with stipulation that he was to work with Literacy and Mass Education Commission on deputationHe joined that Department independently for better future, but even if it was so, Postal Department, could not refuse his re-absorption in same capacity, in : . which he had left-Held : Lien of civil servant, as per Fundamental Rules, R. 14-A(a) could not be terminated under any circumstances, evenwith his consent-Appeal accepted. [Pp. 163 & 165] A & B 1994 PLC (C.S.) 210, 1996 PLC (C.S.) 402, 1994 PLC (C.S.) 1566, PLD 1981 (C.S.) 531,1992 PLC (C.S.) 411,1993 PLC (C.S.) 105 (100), 1992 PLC (C.S.) 411. Mr. Farooq Zaman Qureshi and Mr. All Hussian Khan, Advocates for Appellant. Mr. Asif Nazir, Advocate for Respondents with Mr. Muhammad Mukhtar, Asstt. Superintendent. Date of hearing: 17.11.1996. judgment Prayer of Muhammad Arif, who was petitioner before the Punjab Labour Court No. 6, Rawalpindi, having approached the said court, by way of a petition, under section 25-A of the Industrial ^ Relations Ordinance, for reinstatement in service of the Postal Department, with back benefits, was turned down by the decision dated 20.12.1992; and he has come up in appeal to this Tribunal, back-ground of his case being as below:- 2. Muhammad Arif, on 6.12.1980, got employment in the Postal Department as Senior Clerk. He was selected as a District Accountant in NPS-16 in a newly set up Department, the Literacy and Mass Education Commission (Nai Roshni School System). He joined service there on 28.4.1987. The department was disbanded and his services were terminated with effect from 1.7.1990. He states to have immediately reported back to his parent department (Postal Department), but he was not taken back in service by the said department. 3. The learned Labour Court has endorsed the stand-point of the respondent dependant department the same being that the appellant had taken up and altogether different and new assignment, had in no manner retained lien with the parent department and had thus no entitlement to claim re-employment there, although, according to the appellant, he had been given an understanding, on his leaving the Postal Department, that he had certainly not served his connection with the said department but continued to have his lien there, he had not been able to satisfy the court below about the manner in which he continued to be an employee of the Postal Department, despite his selection in service else where. I agree that mere oral assertion made in that behalf could not normally be believed. Even the department however has not been able to satisfactorily state as to how the official had staged exit from there. Appearing as RW-1, Mr. Muhammad Aslam, Superintendent Post Offices, Jhelum has deposed that in the record brought by him, Muhammad Arif s application, submitted to his superiors, for being relieved of his duty in the Postal Department, was not available, but he (RW-1) was clear in his mind that no undertaking of any kind had been given to the official and he had left the service of the department for all times to come. It is to be borne in mind that if on any count there exists a state of confusion of doubt, benefit of doubt, has to be given to the employee or the workman. Fortunately, for the appellant, judicial pronouncements are all in his favour, although I myself was initially of the view that when the official had got employment in an organization with better prospects, and on leaving a post of Grade-7 he had got an assignment carrying Grade-16, he could not be taken to have still maintained his liaison with the previous department. He relinquished his former post and joined a new one in the same manner, a person in service does, on being selected for a post in the Armed Forces or in the Central Superior Services. 4. In a case reported as 1994 PLC (C.S.) 210, the aggrieved person had joined service as Lecturer in NPS-17, on the recommendation of the Federal Public Service Commission. Through proper channel he applied for a post, carrying NPS-18, available with the Literacy and Mass Education Commission, Islamabad , and he was selected as District Project Manager. He asked the Principal of the previous Institution to provide him with the relieving order. He was informed that his name had been struck off the strength of the said Institution, with effect from the date he had joined his new post. He filed an appeal before the Federal Service Tribunal and was afforded the requisite relief. It was held that his appointment as Lecturer was against a substantive post, but even if it was temporary, it would be irrelevant, in so far as question of retention of lien with the organization, he had joined first, was concerned. Lien of a civil servant, as per Fundamental Rules, R. 14-A (a) could not be terminated, under any circumstances, even with his consent. Same view was expressed in the case reported as 1994 PLC (C.S) 1566 (Service Tribunal Punjab). An Assistant at Director in the Industries Department had been selected in the CSS, in the Accounts Group, but during his training in the Civil Service Academy, his services were some how terminated, and he reported for duty in the Directorate of Industries, but was not allowed to join, on the plea that he could not possibly retain lien in the previous department. The Punjab Service Tribunal held otherwise. The Supreme Court of Pakistan has laid down an explicit rule on the subject, in the cases reported as 1992 PLC (C.S) 411 and 1996 PLC (C.S) 402. Lien of a permanent incumbent of a post could not be terminated, even with bis consent, and such termination will take place only when he is confirmed against some other permanent, post in a different department or organization. The term 'deputation' has a distinct connotion, although it has not formally been defined in even ESTA CODE. According to the practice in vogue, a Government servant is regarded as a 'deputationist', when he is appointed or transferred through process of selection to a post in a department different from the one to which he permanently belongs. PLD 1981 (S.C) 531 and 1993 PLC (C.S) 105(110). Before a person goes on deputation to another organization or department, the borrowing as also the lending offices have to determine the conditions and abide by the same. 5. In the present case, it appears, the official had not been relied by the Postal Department, with a stipulation that he was to work with the Literacy and Mass Education Commission on deputation. He had joined that B department independently, for a better future; but even if it was so, the Postal Department could not refuse his re-absorption in the same capacity, in which he had left In 1992 PLC (C.S) 411, it was observed that notwithstanding non-specification of terms and condition of deputation, an official/officer would be deemed to be on deputation with the next department, and conditions of his service would be regulated, as if hs had been borrowed by the subsequent organization. 6. The appellant says that his name was wilfully kept out of the list of those having been confirmed in service, although it carries the name of a junior, Muhammad Akram, at serial No. 60 of the list, Exh. P-9. He served the Postal Department for a period of little less than six and a half years, and yet was not confirmed. According to the respondents, the appellant had not yet been confirmed against the post he was holding prior to his departure from the department. It is to be noted in this regard that a person on initial appointment in government service is to remain on probation for a year, and on expiry of this term, the probation period is deemed to have been extended, if no express order is made, and in absence of an order, the period of probation, on expiry of the extended term, or on conclusion of two years, will be deemed to have successfully been completed. It is so provided in the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. In the Pakistan Post Offices Manual, Vol. IV, three months preliminary course in the Postal Training Centre, followed by a probation for a period of 15 months, is provided. On successful completion of the initial training, and then the advanced course, an official would be eligible for confirmation against the post he is holding. If he fails in the first attempt, in the final examination, he may be allowed a second chance. On failure even in the second attempt, probation period will be extended for a term of another six months. If during the probation period the work or conductof an official is found unsatisfactory, or he is considered to be unlikely to improve, the appointing authority may either discharge him or may extend his probation for further period as deemed fit. The appellant maintains that his work/conduct, as an employment of the Postal Department, has been upto the mark, if not exemplary. Nothing adverse has been brought on record. In PLD 1970 Quetta 115, it has been pronounced that a court of law cannot permit the Government or the competent authority to retain extraconstitutional powers of arbitrary character. Condition of 'continuous officiation', attached to service of a civil servant, was treated as unlawful. It will thus be deemed that Muhammad Arif had been confirmed against a substantive post of Grade-7 on having rendered service extending over 61/2 years. In PLD 1992 (S.C) 96, PLD 1964(S.C.) 572, and PLD 1969 Quetta 13, it has been observed that no one can be permitted to reap the benefits of or to take advantage of his won wrong. If the Department had desplayed slackness in the matter of confirmation of the appellant, against his substantive post, he should not be made to suffer for that. 7. This Tribunal, while disposing of Appeal No. 411/91, Muhammad Zafar Iqbal versus Pakistan Post Office, through its Chief Postmaster, Jhelum Cantt, and another, has held that a clerk of the Post and Telegraph Department would be covered by the definition of 'worker', as occurring in section 2(XXVHI) of the Industrial Relations Ordinance, 1969, and not by the one, as embodied in section 2(n), read with Schedule II of the Workmen's Compensation Act. Subsection (3) of Section 1 of the Industrial Relations Ordinance, 1969 envisages that although the provisions of the Industrial Relations Ordinance, 1969 would not be applicable to the persons employed in the administration of the State, but the low-paid employees of the Railways, Post Offices, Telegraph & Telephone Departments have been excluded, and they, unless they are performing jobs of administrative, managerial or supervisory character, would be entitled to invoke the provisions of the Labour Laws, by having recourse to the Labour Courts. This would dispel and displace the contention of the respondents that the appellant is to be regarded as a 'civil servant', who even otherwise is no longer on the rolls of the Postal Department. Employees of Post Offices are entitled to maintain petitions under section 25-A of the Industrial Relations Ordinance (1988 PLC 114(Sindh Labour Appellate Tribunal). 8. In so far as the appellant's entitlement to beck benifits is concerned, it would be of advantage to refer to a judgement of this Tribunal reported as 1985 PLC 169, Muhammad Younus versus The West Pakistan Co-operative Consumers Society Ltd., Lahore . The appellant can legitimately claim that he shall be put to the same position, in which he was at the time of his exit from the postal department; but in the recent ruling of the Hon'ble Supreme Court of Pakistan, 1996 PLC (C.S.) 402, it has been laid down that the employee would not be entitled to claim back benefits. The appellant has not served the department throughout this period; and I do not think that on any valid premises the emoluments for this period should be awarded to him. The claim to back benifits is, therefore, taken to be untenable. I have the feeling that the question of the employee's retention of lien has been in doldrums, but not without ostensibly genuine hesitation on the part of the Department; and although arrears of emoluments for the period 1.7.1990 onwards may not be conceded to the appellant, he shall have still a right to fixation of his seniority, on the strength of length his service, ever since December, 1980, when he initially joined service with the Postal Department. Consequential promotion and fixation of salary ought not to be refused to him, for he has already suffered a lot, having been kept out of the fold of the Department, since July, 1990 to date. The appeal is accepted, to the extent indicated above, but there shall be no order as to costs of the litigation. (B.T) Appeal accepted to extent indicated.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 166 [Punjab Labour Appellate Tribunal, Lahore ] Present : justice (RTD.) mian ghulam ahmed, chairman MUHAMMAD NAZIR-Appellant versus PAKISTAN RAILWAY etc.--Respondents Appeal No. Lhr-228/93 dismissed on 27.11.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25-A read with S. 5 of Limitation Act (1908)~Grievance petition- Dismissal of~Challenge to--Grievance petition was filed in Labour Court on 30.6.1988 and application under S. 5 of Limitation Act was submitted with a delay of about 3^ years on 26.11.1991-Appellant dismissal from service had taken place on 30.4.1985--Grievance petition suffered from a gross and inexcusable lapse-Lapse or lacuna, which grievance petition suffered from could not lightly be taken and gross delay in no manner could be condoned-Appeal dismissed. [P. 168] A Ch. Muhammad Bashir, Advocate for Appellant. Ch. Bashir Ahmed, Advocate for Respondents. Date of hearing : 28.10.1996. judgment Hqji Muhamamd Akram Baitu, learned Presiding Officer, Punjab Labour Court No. 2, Lahore, on 3.4.1993, dismissed Muhammad Nasir's grievance petition, under section 25-A of the Industrial Relations Ordinance, 1969, treating it as time-barred. He has come up in appeal to this court. 2. Muhamamd Nasir was an employee of Pakistan Railways and had been dismissed from service on 30.4.1985. Grievance petition before the Labour Court was filed by him, without an application for condonation of delay, and it was dismissed on 15.6.1991. This Tribunal, however, remanded the case, vide order dated 17.9.1991, where-after an application for condonation of delay was submitted but the same was also rejected on 8'.3.1992. Revision petition preferred by the petition was accepted by this Tribunal on 28.4.1992. It was directed that the application for condonation of delay be decided afresh. The respondent Department took up the plea that the application under section 5 of the Limitation Act, having not initially accompanied the main petition under section 25-A of the Industrial Relations Ordinance, was liable to dismissal. 3. Main contention of the learned counsel for the appellant is that the aggrieved workman had been seeking his remedy in wrong forums and the time so spent should have been taken into account by the learned L bour Court, with a view to judge the credentials of the grievance-petitioner, who could not wilfully and even negligently mace the omission. Such lapse would have dealt a damaging blow to his cause. This all happened inadvertently, and bona fides of the aggrieved person could not be questioned, it is urged. Learned Labour Court, relying on PLJ 1993 Tr.C. Lahore 11, on 3.4.1993, allowed the Misc. application filed by the respondents and dismissed Muhammad Nazir's grievance petition as being barred by the law of limitation. 4. It is surprising the Muhammad Nazir has throughout been illadvised. He had approached the Authority under the Payment of Wages Act for recovery of arrears for the period he had remained out of job. He had also recourse to the civil court, but his civil suit was dismissed on 13.4.1988, for want of jurisdiction. Twice at least he unsuccessfully invoked the constitutional jurisdiction of the Hon'ble High Court. Writ Petition No. 2084 of 1985 was tiled on 17.5.1985, and it was dismissed, on the following day, with the direction that he should file a grievance petition in the Labour Court. On 11.6.1986, he submitted such a petition, which was returned on 29.10.1986, as the Hon'ble High Court had rendered a general ruling on 10.4.1985 and the Labour Court was of the view that it had no jurisdiction to deal with the matter. The Department, on 4.12.1986, asked the employee to resume duty; and he reported for duty on 12.12.1986. 5. Muhamamd Nazir on 23.5,1988 served a notice on the employer, for realization of his dues. Writ Petition No. 4875 of 1986 was also filed for recovery of arrears; and subsequently a grievance petition on 25.6.1988 for achieving the same object was submitted in the Labour Court. At page 93 of the Labour Court's file there is available an affidavit shown to have been sworn and submitted by Muhammad Nazir, but it is without any verification by an Oath Commissioner. An application for condonation of delay exists at page 95. It is un-dated, but it is shown to have been submitted on the same date, i.e. 25.6.1988. Both these scripts do not carry any stamp of the Reader of the Court or the Superintendent of the Office, and these papers might have been inserted later on, in an unauthorized manner. Page marking has been done thrice. Yet another application for condonation of delay is available on record of the Labour Court, at pages 97 to 100, accompanying affidavit being at page 101. The same are dated 26.11.1991 and are in order. 6. Learned counsel for the appellant, in the course of his arguments, has taken up an odd plea. Ee says that he had submitted an application under section 5 of the Limitation Act alright, but it was owing to a misunderstanding. That he could not bring it to the notice of the court, nor did the court probably come across it, but it was all on account of some confusion.' The application dated 26.11.1991, under section 5 of the Limitation Act (at page 97), however, gives a lie to the afore-said assertion, as it has clearly been stated therein that the petition had not submitted an application for condonation of delay, with the main grievance petition, owing 168Tr.C. pakistan WAPDA foundation v. muhammad alam PLJ [Punjab Labour Appellate Tribunal Lahore] to inadvertence or over-sight, but the omission was not intentional. As he had remained busy in pursuing his cause in the wrong forums, the Civil Court and the High Court, as also before the Authority under the Payment of Wages Act, he could not detect the defect, inherent in his move made to the Labour Court by way of a grievance petition. An earnest request has been made in the application dated 26.11.1991 for condonation of delay. 7. It is, however, to be borne in mind that the delay is palpable. The grievance petition was filed in the Labour Court on 30.6.1988, and the application under section 5 of the Limitation Act was submitted with a delay of about 3^ years on 26.11.1991. Muhammad Nazir's dismissal from service had taken place on 30.4.1985. Even the grievance petition, under section 25- A of the Industrial Relations Ordinance, 1969, thus suffered from a gross and inexcusable lapse; and if that much delay had initially been caused in coming to the Labour Court, care should have been taken by he aggrieved person to have made a prayer for condonation of the patent delay, by submitting an application under section 5 of the Limitation Act, alongwith an affidavit, in the proper form. This, however, was done with a further delay of 3% years, as already said. 8. In these circumstances of the case, the lapse or lacuna, which the grievance petition suffered from, could not lightly be taken and the gross delay in no manner could be condoned. In coming to such conclusion, the learned Labour Court does not appear to have fallen in error. It would endorse the impugned order dated 3.4.1993, and would dismiss the appeal, being devoid of any merit, but with no order as to costs. (K.A.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. 168 [Punjab Labour Appellate Tribunal, Lahore ] Present : justice (rtd.) mian ghulam ahmed, chairman THE PAKISTAN WAPDA, FOUNDATION-Appellant versus MUHAMMAD ASLAM-Respondent Appeal No. LHR-150/95, dismissed on 27.10.1996. Industrial Relations Ordinance, 1969 XXIII of 1969)- -S. 25-A--Grievance petition-Non filing of written statement despite last opportunity-Defence struck of--Challenge to-Labour Court need not necessarily conduct itself in manners and style of a civil court, and service matters of workmen, involving their livelihood and welfare, may be dealt with in a little summary fashion, but ultimate ends of justice have not been frustrated and interests of the organization have not gravely been 170Tr.C. pakktan WAPDA foundation v. muhammad alam PLJ [Punjab Labour Appellate Tribunal Lahore ] 3. A perusal of the document Annexure 'C' gives an impression that probably the Assistant Manager had become somewhat 'personal' and was keen to get rie of Muhammad Alam, as early as possible. In quite an odd and un-usual manner, his services were dispensed with. Letter Annexure 'D' (this court' file), telling Muhammad Alam, that his services were being terminated w.e.f. 1.3.94 (F.N.), and on expiry of one month notice period, the services would stand finally terminated w.e.f. 31.3.1994 (A.N.) was intended to be operative retrospectively. The superiors seemed to have become vindictive against the official, who despatched the grievance notice on 5.4.1994 and then filed the grievance petition in the Labour Court on 8.6.1994. Notice thereof was served on the employer on 23.6.1994, and, on the same date, the veiy post was abolished vide Annexure 'E' (file of appeal). Document Annexur 'C' furnishes proof of the fact that the Assistant Manager had become un-duly touchy about the attitude of Muhammad Alam, who had allegedly" dis-cbeyed him (the Assistant Manger) in a rude manner, although he had subsequently carried out the job assigned to him half-heartedly". The official remained absent from duty just for two days, 19th & 20th February, 1994. He applied for twelve days' leave on 2.3,94. It has been described as, "on leaving behind an application he again dis appeared, on 2.3.1994, making a request for twelve days' leave". By way of the same communication, the Assistant Manager made a request to the Manager for posting of a substitute (in place of Muhammad Alam), at the earliest. This development would demonstrate that the post was subsisting, although the assignment had suffered in work allegedly owing to un-willing attitude of the in-cumbent (Mohammad Alam). Only about a year before, on 3.6.1993, (Annexure 'A' of this file) the Managing Director had accorded approval for creation of two posts for maintenance of accounts of P.W.F. Vehicle Repair Workshop, Faisalabad, the same being Accounts Assistant and Accounts Clerk, carrying respectively BPS-11 and BPS-7. Abolition of the post appeared to have been done in un-due haste by the establishment to justify its refusal to take back Muhammad Alam within its fold. 4. As respondent before the Labour Court the Foundation had not taken care to contest the matter seriously and had not submitted the written statement, despite last opportunity having been provided for the purpose. Resultantiy the defence was struck off on 14.5.1995, when the grievance petition was allowed, as there was available on record no material in rebuttal of the assertions of the employee. I agree, to some extent, with the learned counsel for the establishment that although the appellant organization, respondent before the Labour Court, had lost all chances of putting in defence, the Labour Court ought to have applied its mind to the pleadings of the petitioner and called upon him to make his statement as a witness. Reasons should have been given and findings recorded, as regards soundness of the stand-point of the petitioner. According to the learned counsel for the appellant, the impugned one is not a speaking order, as such. 5. It is to be noted that a Labour Court need not necessarily conduct itself in the manner and style of a civil court, and service matters of workmen, involving their livelihood and welfare, may be dealt with in a little summary fashion. I am satisfied that ultimate ends of justice have not been frustrated and interests of the organization have not gravely been prejudiced because of the manner adopted by the Labour Court in examining the issue in no good detail. Within my own sphere, I have discussed the matter in some-what elaborate manner, and I have a sense of satisfaction that I have in no way endeavoured to be un-kind and unfair towards the establishment's cause. I do not think that there is warrant for remand of the case to the lower court, with a direction that a detailed decision be rendered, on enabling the establishment to make its submissions in writing, in the form of reply or written statement, and then calling upon the parties to adduce evidence. The exercise would unnecessarily procrastinate the proceedings, without serving any useful purpose, and in turn it will prolong the period of unemployment and accentuate the agency of the poor employee. 6. I would endorse the order of the Labour Court and would dismiss the appeal of the Organization, but with no order as to costs. (K.A.B) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 171 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (retd.) mian ghulam ahmad, chairman DIRECTOR ADMINISTRATION and SECURITY WATER & SANITATION AGENCY F.D.A. FAISALABAD-Petitioner versus FARUKH SAGHEER-Respondent Revision Petition No. FD-162/96, dismissed on 24.11.1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1.969)- -S. 25-A read with Order XLI, Rule 27 and Order XVIII Rule 17 C.P.C.- Grievance petition-Re-examination of witness-Appliation for--Rejection of-Challenge to-If such practice is allowed, sanctity of court proceedings will be set at naught and a party desirous of brining on record certain evidentiary material in accordance with his interests and wishes will get latitude to make such bids again and again; but such venture obviously would vitiate whole process, and other party to litigation certainly will adversely be affected; and this in turn would entail mis-carriage of justice. [P. 172] A (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- -S. 25-A read with order XLI Rule 27 and Order XVHI Rule 17 C.P.C.- Grievance petition--Re-examiantion of a witness-Application for- Rejection of-Challenge to-There is a provision of production of additional evidence in appellant court (O. XLI, R. 27 CPC) as also for re- examination of a witness by the trial court (0. XVIII, R. 17 CPC)--T.hese provisions, however, are quite rarely to be availed of, and only with a view to assist the court in arriving at a correct and just decision and for advancement of ends of fairplay and justice-Such exercise has not to be undertaken in routine and in casual fashion-When some new evidentiary material, not in existence already, springs up or is discovered at a later stage, and it has absolute relevance to the matter in controversy or when court finds itself handicapped in certain respects, it is empowered to re call a witness for re-examination or to call upon parties to lead more evidence on being moved by a party, or even suo moto Petition dismissed. [P. 173] B Syed Sajjad, Advocate for Petitioner. Ch. M. Ikram Zahid, Advocate for Respondent. Date of hearing: 24.11.1996. judgment By way of his revision petition, soundness of an order dated 14.3.1996, passed by the learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad, in the course of proceedings of a petition filed under Section 25-A of the Industrial Relations Ordinance, 1969, by one Farukh Sagheer, Sub Engineer, against the 'Authorities' of WASA/FDA, has been called in question. The respondent before the Labour Court, the revision-petitioner here, made a request to the Labour Court for re-examining a witness, RW-1, who was found to have committed errors in making his statement and correction thereof was required, according to the learned counsel for the establishment. Some additional evidence was also intended to be adduced. The learned lower court has observed that there is no provision in law, empowering a court to grant such permission. How can a witness be enabled to amend or modify or improve upon his version? If such practice is allowed, sanctity of the court proceedings will be set at naught and a party desirous of bringing on record certain evidentiary material in accordance with his interests and wishes will get the latitude to make such bids again and again; but such venture obviously would vitiate the whole process, and the other party to the litigation certainly will adversely be affected; and this in turn would entail mis-carriage of justice. 2. The respondent before the Labour Court, in this case, had dosed the evidence, and this must be taken to be a well-considered and a material step, which would leave little room for re-opening of the case. There is provision for production of additional evidence, in appellate court ( Order XLI, rule 27, C.P.C.), as also for re-examination of a witness by the trial court (Order XVIII, rule 17, C.P.C.) These provisions however are quite rarely to be availed of, and only with a view to assist the court in arriving at a correct and just decision and for advancement of ends of fair-play and justice. Such excise has not to be undertaken in routine and in casual fashion When some new evidentiary material, not in existence already, springs up or is discovered at a later stage, and it has absolute relevance to the matter in controversy or when the court finds itself handicapped in certain respects, it is empowered to re-call a witness for re-examination or to call upon the parties to lead more evidence on being moved by a party, or even suo moto. 3. It is, however, to be borne in mind that such an eventuality I more the need or requirement of the court, than it is the right or entitlement of a party to the litigation; and the primary object is search for reality, a mission of fact-finding, and objective dispensation of justice, which is the ultimate end of process of court and machinery of administration of justice. Well, all such elements appear to be lacking in the instant case; and no cogent reasons were stated in the court below by the learned counsel for the respondent for grant of the un-usual prayer made there. The employer could cot be allowed to fill up the lacunae or gaps in his evidence, to make amends for his errors and lapses, and to amend or rectify the testimony, which suffers in certain respects. If the statement of a witness of the establishment was going to prejudice its cause, it had to blame none else but itself, and it could not be helped there. It would of course be open to the learned counsel to furnish an explanation in that regard, in an effort to convince the court, as regards genuineness or correctness of its cause, and about infirmity or unsoundness of the pleas taken up by the official. Request contained in the application under Section 151 C.P.C. had also been made too late in the day, when final arguments in the case before the Labour Court had already been addressed, twice in fact. Copy of the statement of the witness has been tendered, and it is sought to be extensively amended or altered, which incidence would be absolutely odd and un-usual indeed. 4. The impugned order has been rendered by the learned Presiding Officer of the Labour Court , on application of mind, and on correct appreciation of the question raised before him; and it does not call for any interference. The revision petition has no merit and is hereby dismissed with costs. (K.A.B) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 174 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (retd.) mian ghulam ahmad, chairman EXECUTIVE ENGINEER, MEDICAL COLLEGE-Appellant versus MUHAMMAD ASHRAF-Respondent Appeal No. FD-275/93, Punjab dismissed on 21.12.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A read with Industrial and Commercial Employment (Standing Orders) Ordinance, 1968-Grivance petition-Acceptance of--Challenge to-According to provisions of Industrial and commercial Employment (Standing Orders) Ordinance, 1968 an employee having remained in service continuously for a period exceeding nine months would acquire a permanent status, and his removal from service cannot he ordered, except through due process of law, that is, by observance of all legal formalities, as issuance of show-cause notice and a charge sheet and holding of a regular departmental enquiry into alleged incidents of delinquency or misconduct-There is no such charge against the employee and dispensation of his services, simplicitor, in accordance with whims of 'Authorities', would obiviously not be justified-Appeal dismissed. [P. 175] A Rana Farman Ali Sabir, Advocate for Appellants. Zahid Ikram, Advocate for Respondent. Date of hearing : 24-11-1998. judgment By an order dated 15.12.1991, services of Muhammad Ashraf, respondent Supervisor, were terminated, and the said order was successfully brought under challenge by having recourse to the Punjab Labour Court No. 4, Faisalabad, as his grievance petition was accepted on 14.6.1993, and he was ordered to be reinstated in service, although without back benefits. The 'Authorities' of the Provincial Buildings Department have preferred the present appeal. ,2. Muhammad Ashraf was employed as Supervisor, and was removed from service, as Line-man, on 30.12.1991, according to him. There was one percent Quetta reserved for disabled persons in Government service. The Chief Engineer, Buildings Department, South Zone, Lahore had addressed letter Exh. P-4 to all the Superintending Engineers, and similarly the Government had intimated all the Administrative Secretaries, Heads of attached Departments and the Commissioners that disabled persons were not to be ignore, at the time of fresh recruitment, one percent being their Quetta (Exhs. P. 24 to P-27). 3. The appellants maintain that the respondent being a workcharged employee, he could be retained in service, subject to availability of funds and continuance of the projects in question, and that as such, the employee had no vested right to claim permanent absorption in the set-up. Through a written order dated 15.12.1991, the respondent had been removed from service, and as he had refused to receive the same, a copy had been affixed at the notice board for his information The grievance petition, preceded by the grievance notice, was stated to be barred by the law of limitation. 4. Assertion of the employee that his services had been terminated by a verbal order and in an arbitrary fashion, it seems, has no substance, but there is no denying the fact, and it had been admitted by the appellants, respondents, before the Labour Court, that he is a disabled person. A witness of the respondents, having appeared as RW-1, has made a statement to the effect that 60/70 work-charged employees in the Division are still on the rolls of the establishment. It is then not known as to why had the respondents picked up, for an adverse action and for his ouster from service, Ashraf alone. According to the provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, an employee having remained in service continuously for a period exceeding nine months would acquire a permanent status, and his removal form service cannot be ordered, except through due process of law, that is, by observance of all the legal formalities, as issuance of show-cause notice and a charge-sheet and holding of a regular departmental enquiry into alleged incidents of delinquency or misconduct. There is no such charge against the employee; and dispensation of his services, simplicitor, in accordance with the whims of the 'Authorities,' would obviously not be justified. 5. Termination order was issued on 16.12.1991, the same being Exhs. R-3 and R-4. Since the order admittedly was not despatched to the employee by post, and there is no authentic evidence in proof of the allegation that he had refused to receive the order, the assertion as regards the grievance notice, followed by the grievance petition, being time-barred, would not evidently be tenable, especially as his departmental appeals, Exhs. P-15, 16 and 23, had not been decided. Keeping in view the nature of the duty performed by the respondent, he has to be taken as a workman, entitled to protection of the Labour Laws and to have vindication of his status and security in service, on having recourse to the Labour Court . The impugned ' order of respondent's removal from service, as such, is not sustainable in law. The order of the Labour Court setting aside the said order must be taken to be unexceptionable. I would, therefore, dismiss the department's appeal as being devoid of merit 6. The respondent has filed cross objections, laying claim to back benefits. Having been removed from service on no valid premises, and having remained jobless ever since the incident of his dismissal from service, the respondent, in my considered opinion, is entitled to half of the back benefits, for the period during which he was not on the rolls of the Construction Division of the Medical College , Faisalabad . I am not conceding to him the benefits in entirely, as he has practically not served the establishment, although for no fault on his part. (K.A.B) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 176 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (retd.) mian ghulam ahmad, chairman SHER JHANG-Appellant versus MANAGING DIRECTOR PECO and 3 others-Respondents Appeal No. Lhr-614/93, partly accepted on 19.11.1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Grievance petition-Back benefits-Claim of-Proceedings in the labour court stretched over period of 5h years, and appeal preferred before this Tribunal has also consumed about three years-Appellant is not entitled to such benefits, in entirety, for whole period because in evidence appellant and his witnesses have not testified to fact of his remain jobless. [P. 177] A (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Grievance petition-Dismissal of-Challenge to--An employee cannot possibly lead evidence in negative to establish that he has not gainfully been employed during disputed period, and it is for the establishment always to prove, by leading evidence, the fact that ousted employee had got a job alright and had been earning his livelihood, to certain extent, which magnitude has also to be established as a fact- Respondents are ordered to pay 20% of emoluments, ever since appellants removal from service-Appeal partly accepted. [P. 178] B Malik Bashir Ahmad, Advocate for Respondents. Date of hearing: 20-10-1996. judgment The appeal is directed against the decision dated 24.11.1993, rendered by the Punjab Labour Court No. 3, Lahore, at Ferozewala, dismissing the grievance petition filed under section 25-A of the Industrial Relations Ordinance, 1969 by Sher Jhang against the Officers of the Pakistan Engineering Company, Lahore 2. Sher Jhang was Accounts Assistant ( C & S ), Accounts Department of the Badami Bagh Works, Lahore (of the Company) and was charge-sheeted on 8.2.1988 for misconduct, having remained absent from duty without sanction of leave and without permission, for a period exceeding ten days, from 26.1.1988 to 6.2.1988. Charge-sheet is Exh. R-3, and reply to it tendered on 13.2.1988 by Sher Jhang is Exh. R-4/ P-l. His explanation was that he was on leave, having duly been sanctioned, but as for attending to a personal piece of business he had to go to Multan, he could not assume duty, and although he did apply for leave without pay, the letter requiring him to resume duty was received by him on 11.2.1988, as in his absence from home, his mother had received the letter dated 20.1.1988. He said that he was suffering from back-ache and was having treatment from a doctor. He was, however, charge-sheeted and made to face a regular enquiry, proceedings of which have been placed on record as Exhs. R-l and R-2. In the opinion of the Enquiry Officer his absence from duty had adversely affected his seat work and had also marred discipline in the office, inducing the other employees to behave likewise. His dismissal from service was recommended. The enquiry report was acted upon and he was removed from service. 3. The learned lower court has upheld and endorsed the action of the establishment by undertaking a comprehensive discussion in para-18 of the judgement, observing in para-19 that as the disciplinary action, suffered from no irregularity, the grievance petition filed by the employee could not be treated as competent or having any valid premises for its initiation. The learned Presiding Officer of the Labour Court has taken note of an apparent inconsistency in the stand-point of the official, having taken up the plea of indisposition of his father, while cross-examining Mr. Mujahid Hussain Syed, Manager Administration, RW-3, as against his mother's ailment, as pleaded in the grievance petition. I, however, find, on perusal of the grievance petition, that Sher Jhang had not pleaded like that in the petition, although while making his statement in the Labour Court as PW-3, he did depose having applied for leave on the ground of ailment of his mother. On the face of it, it appears that, the management had taken a veiy serious view of absence of the official from duty, ordering his removal from service in consequence, although there was room for taking a lenient view and much less punishment would have sufficed. I, however, need not undertake any discussion in that behalf, by taking into consideration the pleadings of the , parties, the evidence led in the enquiiy and in the Labour Court, and the reasons recorded by the learned lower court, in upholding the extreme action of the management, the reason being that Sher Jhang has got employment as a Lecturer some where and is no longer interested in his re-employment with the respondent concern. He is only desirous of having the back benefits. 4. He was removed from service on 6.4.1988, and he filed the grievance petition in the Labour Court on 23.5.1988. The proceedings in the Labour Court stretched over a period of 5h years; and the appeal preferred before this Tribunal on 30.12.1993 has also consumed about three years . In the grievance petition also, he has laid claim to all the back benefits; I do not think 'that he has entitlement to such benefits, in entirety, for the whole period, April, 1988 to-date. In evidence Sher Jhang and his witnesses have not testified to the fact of his remaining jobless. The mere fact that he had made a claim to back benefits was enough to have put the management on the alert, and they should have strived to give a lie to this claim by adducing evidence that Sher Jhang. after his removal from the rolls of the PECO, had got employment some where also and had not remained jobless. It has been held by Superior Courts in several reported cases that an employee cannot possibly lead evidence in the negative to establish that he "has not gainfully been employed during the disputed period, and it is for the establishment always to prove, by leading evidence, the fact that the ousted employee had got a job alright and had been earning his livelihood, to certain extent, which magnitude has also to be established as a fact. Sher Jhang is a sentimental and sensitive person, and he has manifestly suffered humiliation and mental agony, besides financial drain, by reason of his having been rendered jobless in an abrupt manner. He has also to be compensated in terms of restoration of his mental peace, as also rehabilitation of his social status. The respondents are ordered to pay to him 20% of his emoluments, ever since the date of his removal from service, i.e. April, 1988 till end of 1992, where-after he got employment as a Lecturer, as stated (without contradiction) by him in the course of his arguments. (K.A.B) Party accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 178 Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RTD.) mian ghulam ahmed, chairman ZAHOOR HUSSAIN SHAH-Petitioner versus PUNJAB LABOUR COURT NO. 9 MULTAN ETC.-Respondents Revision Petition No. 327/96, dismissed on 24.6.1996, Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Grieyance petition-Transfer orders-Challenge to-An aggrieved person cannot urge that he has a vested right to remain at a particular place and is not liable to transfer any where else-Manifestly, he cannot enforce it as an inalienable or justiciable right through agency of court of law-Petition dismissed, [P- 180] A Ch. Bashir Ahmad, Advocate for Respondents. Date of hearing : 24.6.1996. judgment Learned Punjab Labour Court No. 9, Multan , on 9.5.1996, dismissed on application submitted for issuance of temporary injunction, alongwith his main grievance petition, by Zahoor Hussain Shah, who had challenged the order of his transfer from Multan to Lahore , by invoking the provisions of Industrial Relations Ordinance, 1969. This revision petition is directed against the aforesaid order dated 9.5.1996 of the Labour Court . 2. I am astonished to find that the learned Presiding Officer of the Labour Court , who has generally a very soft corner for the Labour class, has not found it possible to concede to the petitioner the requisite relief on interim scale even. But, I must say that he has given sound reasons for , rejection of the prayer. Zahoor Shah has been unlucky in having met failure | on having recourse to the N.I.R.C. as well. The learned Member of the N.I.R.C. had, on 11.12.1994, dismissed the petition made for grant of injunction, recalling the stay order initially issued on 1.7.1991. It appears that the stay order had remained intact for about 3h years. 3. Zahoor Shah is a Security Guard, employed by the Punjab Road Transport Corporation, having his posting at the Inter-City Depot, Multan On 15.6.1991, his shifting to the Green Town G.T.S. Depot (Urban), Lahore was ordered. He has, however, managed to perpetuate his stay at Multan, over the years, and pleads that he is not liable to transfer from Multan to any i other place. The learned lower court has enumerated his contentions, in para No. 2 of the impugned order. According to the petitioner, the policy decision of the Government of the Punjab does not permit transfer of a low- ! paid employee, and again, transfer order in his case has been passed by the I Director Admn., although the District Manager, G.T.S. was the competent officer. As he has actively been participating in the trade union activities, as a member of the P.R.T. Azad Mazdoor (PIAM) Union, the management, as also the rival trade union, Muslim Labour Union, have turned hostile towards him. It is also submitted that the Transport Minister has imposed a ban on transfers and the same is in force still. 4. Learned Member of the N.I.R.C. has dealt with the matter almost comprehensively and spurned the insinuation of the petitioner that he has been subjected to victimization or vindictiveness by the Authorities of the Corporation, and it has been observed that nothing has been brought on record in support of the assertion that the petitioner has been picked up for ,, shifting to a far-off place by way of vengeance. 5. I am afraid, it would be difficult for the petitioner to urge and establish that his transfer has not been ordered in public interest, or in the exigencies of service. An order of transfer, as has been pronounced by the worthy Member of the N.I.R.C., cannot successfully be challenged, unless mala fides are shown and proved as a fact. Transfer of a Government servant may be ordered at any time and at any place for good management of an organization and for smooth running of a government department. Transfer cannot be avoided in the name of or on the pretext of participation in trade union activities. No case of unfair labour practice was made out, in the estimation of the learned Member of the N.I.R.C., which refused to interfere with the order of transfer and vacated the stay order that had earlier been issued in favour of the employee. 8. It is to be pointed out that the ban on transfers, appointments, promotions, etc., of employees of P.R.T.C. could not possibly be perpetual and could not even stretch over a long period, as internal working of the Corporation would adversely have been effected, had there been no appointments, promotions and transfers over an indefinite period. Well, if such a ban, as is alluded to by the employee, is still in vogue, he could very well approach the Minister concerned and get his transfer cancelled, for the Authorities could not dare defy a directive of the nature in question. 7. I have sympathy for the petitioner, who says that he has two wives and 14 children and cannot possibly made his both ends meet, with the meagre pay, he is drawing, and especially at an expensive place like Lahore, where he will have to get a house at exorbitant rate of rent. Such compassion apart, I am afraid, an aggrieved person cannot urge that he has a vested right to remain at a particular place and is not liable to transfer any where else. Manifestly, he cannot enforce it as an inalienable or justiciable | right through agency of the court of law. 8. Learned counsel for the respondents has stated at the Bar that the petitioner has finally been relieved at Multan on 11.3.1996, but he has not cared to join his duty at the new place of posting, and since 11.3.1996 he has been absent from duty, and is intended to be proceeded against in a departmental inquiry. The Authorities are veiy bitter about him, as he has not permitted implementation of the transfer order passed several years ago on 15.6.1991. Golden Hand Shake Scheme is going to be enforced and the organization may be wound up in near future. Those, who are not feeling comfortable in the set-up, and wish to stage exist for any reason, would be at liberty to avail of the benefits provided under the Scheme. 9. This court had suggested to the learned counsel for the respondents on the previous date, i.e. on 16.6.1996, that he should prevail upon the Authorities to permit the petitioner to continue serving at Multan , keeping in view his limited emoluments and the ever rising cost of living. In reply to that suggestion, the learned counsel has made submission, which is to the effect that Zahoor Shah having not moved to his new place of posting, in spite of having been relieved, was entitled to no indulgence, although the Authorities could, well think in terms of accommodating him, if he had joined duty at Lahore, started working there, and then made a representation for his transfer back to Multan. 10. In view of what has been observed by the learned Member of the N.I.R.C. and by the learned Presiding Officer of the Labour Court, and in the light of the discussion made above, it appears that the petitioner has hardly any case for interference by this Court with the impugned" order announced by the Labour Court on 9.5.1996. The order is upheld, and the revision petition is dismissed, although with no order as to costs. (K.A.B.) Petition dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 181 [Punjab Lahore Appellate Tribunal Lahore ] Present : justice (retd.) mian ghulam ahmad, chairman NASEER AHMED-Petitioner versus GENERAL MANAGER, QUALITY TEXTILE MILLS ETC.--Respondente Revision Petition No. 177/96, dismissed on 22-4-1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 38(3-A)-Application for recalling order of exparte proceedings by employer-Labour Court suspended operation of its ex-parte decision- Challenge to-Learned lower court has not rendered impugned order by reviewing any earlier order-It was an act performed by court in continution of series of different developments, taking place from time to time, ever since submission of grievance petition, and especially after announcement of ex-parte decision-Court concerned was certainly not divested of power or pass such orders for furtherance of ends of justiceA court or an authority making an order can certainly recall it, or vaiy or amend it, before it has finally and irrevocably been acted-Petition dismissed. [P. 183] A Mr. Muhammad Saeed Azhar, Authorized representative of petitioner. Date of hearing : 21-4-1996. order The petitioner had filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in the Punjab Labour Court No. 3 , . Lahore , at Ferozewala. The employer, namely, the General Manager, Quality Textile Mills Ltd., Ferozewala, through his counsel, entered appearance in the court, on receiving intimation, but on a certain subsequent date, owing to absence of the respondent, ex-parte proceedings were taken against him. The grievance petition was accepted ex-parte and the petitioner was also 1997 naseer ahmad v. G.M., quality textile mills [Punjab Labour Appellate Tribunal Lahore ] Tr.C. 183 6. I am afraid, the worthy representative has put in this extra labour and burdened the litigant with enormous expenditure for nothing, as the learned lower court has not rendered the impugned order by reviewing any earlier order. It was an act performed by the court concerned in continuation of series of different development, taking place from time to time, ever since submission of the grievance petition, and especially after announcement of the ex-parte decision. The court concerned was certainly not divested of power to pass such orders for furtherance of ends of justice. A Court or an Authority making an order can certainly recall it, or vary or amend it, before it has finally and irrecovably been acted" upon. Even if that could not be done, and the learned Labour Court had fallen in error ia passing an injunctive order, a few days before, on 18.4.1996, it may not be allowed to operate or remain in tact, over any length of period, if the employee is able to convince the court that such an order could not lawfully be rendered and the time to do it is just day after tomorrow. The employee could certainly afford to wait for two days more, the disputed order having been passed two days more, the disputed order having been passed four days before, on 18.4.1996. Actually payment of past dues tc him and his reinstatement, ordered in ex-parte manner, by the Labour Court on 2.4,1896, are the events which have not materialized so far, even though he has resorted to initiation of punitive action against the defaulting employer (the 'judgment-debtor), by Invoking the provisions of section 25-ACS) of the Industrial Relations Ordinance, 1969. I fail to follow, if this has been the state of affairs, why and how on earth could the employee so un-scmpulously be exploited and distracted and made a victim of increasing dis-illusionment, by being unnecessarily brought before this forum, with a pseudo or illusory expectation, that he would be afforded certain measure of relief. This is something highly reprehensible and extremely distressing. The more the employee is left 'un-guided' by the worthy representative, the better it would be for him. The poor fellow could normally and comfortably place before the labour court his view-point on the next date i.e. on 24.4.1996, and the labour court may come to the conclusion that there was no justification for rescission of the ex-parte decision, and for even temporary suspension of the process of execution of the said decision, and this object could even be achieved without the employee being ill-advised to resort to the extreme measure of prosecuting the employer, who, otherwise, might well have developed a soft corner for the oppressed employee. The employer also might lose, and the employee might ultimately win, even on merits, following a genuine and fair contest. 7. Like a deaf and dumb being I am not supposed to keep on seeing what is happening and go on listening to what is being said. It is the sole appellate and revisional tribunal of the province in the sphere of labour cases. It is also expected to exercise a supervisory role and see to it that the labour courts in their functioning and the labour lawyers in their advocacy keep themselves on the right track. 8. The move made before this forum, by way of the present revision petition, makes no sense indeed, and I am not inclined to entertain it, even for a moment. It is hereby dismissed (in limine), with the disdain it deserves. A copy of this order shall immediately be conveyed to the court below for information and guidance. (K.A.B.) Petition dismissed
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 184 [Punjab Labour Appellate Tribunal Lahore ] Present: justice (reid.) mian giiulam ahmad. chairman COLONY TEXTILE MILLS LIMITED-Petitioner versus MUHAMMAD YAR-Respondent Revision Petition No. 343/95, dismissed on 28-4-1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 2 2(xxviii) and 25-A read with S. 2(i) and S.O. 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968-Grievance petition-Maintainability ofChallenge to--Workman-Status of-If services of an employee are terminated in breach of clause 12(3) of (Standing Orders) ordinance, 1968 he can claim to be a workman, even though he does not fall within ambit of definition of worker or workman, covered by 2 (xxviii), he will eminently attract provisions of Labour laws-Quantum of salary apart, if an employee does manual or clerical work and is not engaged in any managerial or executive or supervisory duty, he is to be treated as workman, and would be entitled, by all means, to knock at doors of Labour Court, moreso, when very means of his livelihood have been taken away, by reason of termination of his services [P. 185] A & B Mr. Muhammad Tariq Draishak, Advocate for Petitioner Mr. M. Khalid Farooq, Advocate for Respondent. Date of hearing : 28-4-96. judgment By this judgment, rendered in the revision petition captioned above, I propose to dispose of as many as seven identical Revision Petitions (No. 342/95, 343/95 and 430/95 to 434/95), calling in question soundness of the orders rendered by the learned Labour Court at Multan, rejecting the establishment's applications moved for dismissal of the employees' grievance petitions, filed under section 25-A, Industrial Relations Ordinance, 1969, praying for their reinstatement in service, with all consequential benefits. 2. Learned counsel for the employer relies on 1994 SCMR 2213, in maintaining that the employees can no longer be treated as workers or workmen, as defined under section 2 (xxviii) of the Industrial Relations Ordinance, 1969. The revision-petitioner's stand-point is that the employees may have recourse to any other forum, or agitate their cause at any other plat-form, as the forum of the Labour Court is not available to them for redressal of their grievance. The learned lower court has found itself dis inclined to accept this view-point. It is observed that the provisions of Standing Order 12(3) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 provide that a workman aggrieved by termination of his services, in any form, may invoke the provisions of section 25-A of the Industrial Relations Ordinance, 1969. 3. One indeed fails to follow that would he the remedy available to an employee, who has been removed from service, by way of retrenchment, discharge, termination or dismissal, if the forum of the Labour Court or Labour Appellate Tribunal remains no longer available to him. Special statutes were enacted and the Labour Courts were created in order only to provide a remedy to the aggrieved employees, who fell prey to excesses of the employers. Extreme penalty, an employer can inflict, would be the one which aims at ouster of an employee from service. During service, his grievance, if any, would be of trivial nature. It would tantamount to denying substantial justice to the working class, if such narrow and technical construction is put on the provisions and workers are enabled to seek relief only in respect of complaints, hardships and grievances of interim or ordinary nature, by having recourse to Labour Courts. Would not it be an industrial dispute, if differences between an employer and an employee culminate in absolute elimination of the employee from the very rolls of the establishment, reason may be any ? 4. If services of an employee are terminated, in breach of clause (3) of Standing Order 12, and if, as defined in section 2(i) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, he can claim to be a workman, even though he does not fall within the ambit of the definition of worker of workman, covered by clause (xxviii) of section 2 of the Industrial Relations Ordinance, 1969, he will eminently attract the provisions of the Labour Laws. Quantum of salary apart, if an employee does manual or clerical work and is not engaged in any managerial or executive or supervisory duty, he is to be treated as a workman, and would be entitled, by all means, to knock at the doors of the Labour Court, more so, when the veiy means of his livelihood have been taken away, by reason of termination of his services. 5. I would endorse the view-point of the learned Labour Court ; and I do not find myself persuaded at all to agree with the view pleaded and canvassed by the employer, in this case. Finding the revision petitions to be devoid of merit, I would dismiss the same, with a direction that the grievance petitions be decided on merits at an early date. (K.A.B.) Revision dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 186 [Punjab Labour Appellate Tribunal Lahore ] Present: justice (RTD.) mian ghulam ahmad, chairman MUHAMMAD IDREES-Appellant versus M/s. AVARI HOTELS LIMITED, LAHORE arid others-Respondents Appeal No. LHR-536/91, accepted on 18-7-1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Grievance petition-Dismissal of-Challenge to--Workman- Status of--Designation or salary of incumbent of a post would not be determining factor and what really would decide status of a person will be nature of duty being performed-An assignment ostensibly of supervisory character may not necessarily take person out of purview of members of working class, if actually he is doing some manual work-If manual work is not ancillary or incidental to main work, but is a substantive part of assignment, holder of such assignment would fall under definition of "worker"--Similarly, status of a person as a workman would remain same even if some subordinates are working under him but he continues to operate manually-Appeal allowed. [P. 188] A & B Ch. Muhammad Bashir, Advocate for Appellant. Irshad All Mian, Advocate for Respondents. Date of hearing: 14-7-1996. judgment Grievance petition filed under section 25-A of the Industrial Relations Ordinance, 1969, by Muhammad IJrees, against M/s. Avari Hotel and its General Manager, was on 21.8.1991 dismissed by Haji Muhammad Akrarn Baitu, Presiding Officer, Punjab Labour Court No. 2, Lahore. He has come up in appeal to this Court. 2. Muhammad Idrees had been employed by the Avari Hotel. The Mall, Lahore as Chief Saucier in July, 1985, and his service were terminated vide order dated 10.9.1987. This was done, according to the appellant, without assigning any reason and without serving him with a show-cause notice or making him to face any enquiry. He brought the order under challenge by way of a grievance petition on 9.12.1987. The learned lower court has held the petition not to be maintainable, as the petitioner before it could not claim to be a worker. Sana Ullah examined as a witness by the hotel management deposed in the lower court that he had been working as an Assistant of Muhammad Idrees, who had as many as 20/25 employees under him. Duties of the petitioner were of supervisory nature and as such the forum of the Labour Court was not available to him for redressal of his grievance, if any. 3. The learned lower court has, in particular, referred to the oral testimony of Sana Ullah, as also the documents Exhs. R-l to R-6, the letter of appointment (Exh. R-2) indicating that his pay per month was Rs. 5500/-. In Exh. R-5 are enumerated different jobs, as may as 70, against which persons with varying qualification and experience have been employed. Ex. R-6 denotes the nature of duties of a supervisor. Exh. R-3/1 are 'Officers Service Rules' and Exh. R-4 is the application which Muhammad Idrees had made to the Board of Trustees for membership of the Hilton International, Lahore , Officers Provident Fund. 4. Earlier, my learned predecessor had rendered a judgment on 24.11.1991, remanding the case to the Labour Court for redecision, with a direction that the respondents (the hotel management) be afforded an opportunity to lead documentary evidence as regards the nature of the supervisory work, if any, being done by the appellant. It was observed that the mere fact that the appellant had agreed to be bound by the Officers Provident Fund Rules was not sufficient to oust him from the pale of Svorker'. Likewise, providing 'Officers Service Rules' to the appellant did not prove that Muhammad Idrees was an officer and not a worker. Ex. R-5 enlists 70 designations pertaining to the Hilton International Lahore, which was housed in the same building, but, Idrees, it may be noted, was an employee of Avari Hotel and not the Hilton International. Exh. R-5, at serial No. 25 of which the post of Chef Saucier finds mention, was as such excluded from consideration. RW-1 had testified to the fact that a number of persons were working under the appellant, but he had not disclosed the name of any one of them, and thus this was considered to be a fake statement, leading no where. v 4. Judgment of the Hon'ble Supreme Court, reported as PLD 1986 SC 633, cited by the appellant, was not relied upon by this tribunal, the reason being that it pertained to a case relating to Hotel Intercontinental, Lahore, and not the Avari Hotel. I, however, find no reason why this ruling should be discarded. It has enunciated the broad principles, which have to be borne in mind by a court, while deciding the question whether or not an employee is a worker; he may be employed any where. 5. The dictionary meaning of the word 'Chef is 'Head Cook' or 'Master Cook'. It will, however, not be disputed that a Cook is a cook, even if he is a Head Cook or In charge of Cooks. RW-1, as witness of the respondents, has himself stated that Muhammad Idrees used to personally prepare certain 'dishes' with his own hands, and he would also furnish an example of correct cooking, by making a personal demonstration, if some one would spoil a dish. Muhammad Idrees had no powers of making any appointment, nor could he grant leave to any one, although he could recommend an application for leave. Sana Ullah says that Muhammad Idrees petitioner had been preparing breakfast, as also other dishes, at times, especially during rush hours. 6. In 1993 PLC 868 (Labour Appellate Tribunal Sindh), it has been held that Head Waiter having no power to hire and fire does not cease to be a worker, even if he supervises work of others and draw pay exceeding Rs. 800/- per month. The definition of Vorker', as occurring in section 2 (i) of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, embraces even a person, who are engaged in doing only unskilled or manual or clerical work. 7. Designation or salary of incumbent of a post would not be the determining factor and what really would decide the status of a person will be the nature of the duty being performed. An assignment ostensibly of supervisory character may not necessarily take the person out of the purview of members of the working class, if actually he is doing some manual work. If manual work is not ancillary or incidental to main work, but is a substantive part of the assignment, the holder of such assignment would fall under the definition of "worker 1 . Similarly, status of a person as a workman would remain the same, even if some subordinates are working under him but he continues to operate manually. Authorities that may be cited in this regard are 1992 SCMR 505, 1983 SCMR 1313, 1979 SCMR 304, 1987 PLC 697 (Karachi High Court) and 1992 PLC 387 (Labour Appellate Tribunal Sindh) 8. I am of the considered view that despite the fact that Muhammad Idrees is labelled as supervisor and is drawing salary running into four figures, he continues to be a workman. The finding recorded by the learned lower court, while dismissing the grievance petition of the appellant, is set aside, and the appeal is allowed, although with no order as to costs. The case shall go back to the Labour Court No. 2, Lahore , for its decision afresh on merits. It shall be put up for further proceedings in the court below on 4.8.1996. (K.A.B) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 189 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RTD.) main ghulam ahmad, chairman MUBARIK ALI MEHBOOBI-Appellant versus UNITED BANK LIMITED THROUGH ITS PRESIDENT, KARACHI ETC.--Respondents Appeal No. 289/1995, allowed on 14-9-1996. (i) Industrial Relations Ordinance, 1969 (XIII of 1969)-- -S. 25-A-Grievance petition-Maintainability of-Even if it is found that provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are not available to an employee of National Bank of Pakistan, it would not necessarily lead to conclusion that he is not entitled to invoke provisions of S. 25-A of IRO, 1969- For coming to a labour court, he will, of course, have to demonstrate that he is a workman, as defined in S.2 (xxviii) of the Ordinance, and further that a right guaranteed or secured by or under any law, award or settlement has been infringed. [P. 191] A (ii) Industrial Relations Ordinance, 1969 (XIII of 1969)-- - S. 25-A read with 0. VII R. II Civil Procedure Code, 1908-Grievance Petition-Dismissal of-Provision of Order VII Rule 11 CPC would not enable a labour court to cut short procedure and decide mixed questions of fact and law without providing opportunity of producing evidence to parties. [Pp. 191 & 192] B Syed Anwar-ul-Hasan Gilani, Advocate for Appellant. Mian Muhammad Saleem, Advocate for Respondents. Date of hearing : 10-9-96. judgment The appeal is directed against the decision dated 4.10.1995, rendered by the learned Labour Court at Multan, accepting an application submitted by the United Bank Limited, under Order VII, rule 11, C.P.C. and dismissing Mr. Mubarik Ali Mehboobi's grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, for want of jurisdiction. - 2. Mr. Mehboobi had challenged the order of his dismissal from service, by approaching the Labour Court at Multan, on 5.1.1994. Earlier, he had approached the National Industrial Relations Commission. Single Member of the Commission, camping at Lahore, on 6.2.1993, passed an order in his favour, observing that his suspension could not extend beyond a B period of 28 days. The suspension order dated 20.5.1992 was, as such, suspended with effect from 16.6.1992. The Bank was directed to pay full wages and allowances to the employee, with effect from 16.6.1992, and send to the Commission under sealed cover the final report of inquiry, on completion of inquiry, by 30.4.1993. The bank management preferred an appeal before the Full Bench of the Commission at Islamabad. The aforesaid order dated 6.2.1993 was set aside by the Full Bench, presided over by Mr. Justice (Rtd.) Atta Ullah Sajjad, Chairman of the Commission, by a decision announced on 2.9.1993. 3. It was pronounced that the learned Member had assumed jurisdiction, in disregard of the facts of the case and the law applicable, and in making an order that the inquiry report be submitted to him, the learned Member had also travelled beyond the prayer made by the petitioner in the case, and, of his own accord, had assumed jurisdiction, which, in the circumstances of the case, he did not have. It was also observed that no reference to the law, under which period of suspension was to be restricted to 28 days, had been made by the learned Member, who should also have issued a short notice to the management of the Bank, so that full facts could be placed before him, and the management could be saved from an adverse ex-parte order. In the opinion of the Full Bench, a petition under clause (g) of subsection (8) of section 22-A of the Ordinance, could be competent only if the aggrieved person could establish that he was a worker and further that he had reasonable grounds to entertain an apprehension of his victimization through an unfair labour practice on the part of the employer. 4. The honourable Commission had held Mr. Mehboobi to be an officer and not to be a workman, keeping in view the nature of his duties, as also quantum of his salary. At the same time, it was also observed that it was for the petitioner to show that despite being an officer, he would fall within the definition of Svorker', as contained in the Industrial Relations Ordinance, 1969 and other Labour Laws. 5. In this behalf the contention raised by the learned counsel for the appellant before this Tribunal does not appear to be devoid of force. He maintains that the Commission might have mainly been influenced by failure on the part of the aggrieved person in establishing that he had been made a victim of an unfair labour practice, by reason of his trade union activity. At the end of para No. 7 of the judgment, it has been observed, "There is no mention at all of any trade union of workers or even of any sort of liaison of the petitioner with any trade union of workers". The hold that a person is a worker, or not, falls within the exclusive domain of the Labour Court and this Tribunal, and a finding recorded in that regard by the N.I.R.C. would not be binding on either the Labour Court or upon this Tribunal. If a Labour Court proceeds to reject a grievance petition, under Order VII, rule 11, C.P.C. without recording evidence, such an order would not be sustainable in law. Provisions of C.P.C. can be invoked by a Labour Court only for the purposes mentioned in section 36 of the Ordinance. It was so pronounced in 1996 T.D. (Labour) 168 (Sind Labour Appellate Tribunal) and 1990 PLC 441 (Sind Labour Appellate Tribunal). In 1993 PLC 595 (Supreme Court of Pakistan), it has been laid down that even if it is found that provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 are not available to an employee of National Bank of Pakistan, it would not necessarily lead to the conclusion that he is not entitled to invoke the provisions of section 25-A, Industrial Relations Ordinance, 1969. For coming to a Labour Court, he will, of course, have to demonstrate that he is a workman, as defined in section 2 (xxviii) of the Ordinance, and further that a right guaranteed or secured by or under any law, award or settlement has been infringed. 6. If the appellant is not able to establish the aforementioned incidence as a fact, he will be out of court; but in all fairness he should be afforded an opportunity to prove, as he claims, that he is a workman, entitled to invoke the jurisdiction of the Labour Court for redressal of his grievance. 7. Learned counsel for the respondents, relying on 1996 CLC 245 (Karachi High Court), has endeavoured to show that the appellant having approached the Labour Court with unclean hands, by reason of having suppressed or concealed the fact of his earlier having approached the N.I.R.C. in the matter, and thus being guilty of an in-equitous conduct, was not entitled to any relief. In this behalf, it is submitted by the appellant that he had knocked at the doors of the N.I.R.C. against his un-justified suspension, extending over an indefinite period, whereas he has now come to the Labour Court , assailing the validity and operativeness of the order of his removal from service. It is to be noted that the honourable Karachi High Court had made the observation, while disposing of a writ petition, and it is so well known that under Article 199 of the Constitution of Pakistan, the High Court exercises its extra-ordinary discretionary jurisdiction, and it is up to the High Court to deny or to afford a relief of equitable nature to the petitioner before it, depending always on judicious exercise of discretion, aimed at securing advancement of justice and preventing perpetuation of injustice. The appellant says, he had not indulged in any mis-statement or concealment of fact in a deliberate, calculated or motivated manner; he just omitted to state in the grievance petition, filed before the Labour Court, that prior to that he had recourse to the N.I.R.C. also. Even if there was any omission or lapse on his part, as alluded to or alleged by the other side, its impact was not fatal and it was not even of veiy grave character. It has also to be borne in mind that substantial justice should not be denied to an aggrieved person by giving un-due weight to technicalities. I do not think that there was any intentional omission or suppression on the part of the appellant in regard to material facts or the history of litigation, so as to preclude him from coming to the competent court. It has also been said that Labour Court should not have refused to afford an opportunity to the appellant to bring home his assertion of being a workman, entitled to invoke the provisions of section 25-A, as grievance-petitioner in that forum. In 1990 PLC 441 (Sind Labour Appellate Tribunal) it has been observed that provisions of Order VII, rule 11, C.P.C. would not enable a Labour Court to cut short the procedure and decide mixed questions of fact and law without providing opportunity of producing evidence to the parties. 8. The learned Labour Court appears to have been 'over-whelmed' by the observations made and 'sub-dued' by the finding recorded by the N.I.R.C., although indirectly. I would allow the appeal and set aside the Labour Court 's order dated 4.10.1995 and will leave the parties to bear their own costs. The case is remanded to the Labour Court at Multan for its decision on merits, in accordance with law. The parties shall appear in the said court for further proceedings on 30.9.1996. As, however, the appellant appears to have suffered tremendously, owing to his remaining out of service, over a long time, it is desired that the grievance petition shah 1 be disposed of finally before December winter spell. (K.A.B.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 192 [Punjab Service Tribunal, Lahore] Present : syed safdar HussAiN shah jafari, member -1 MUHAMMAD IKRAM-Appellant versus SECRETARY GOVT. OF PUNJAB ETC.-Respondents Appeal No. 435/91, accepted on 15-10-96. Locus Paenitentiae- Locus Paenitentiate-Principle of-Civil servant-Dismissal of-Challenge to-Appellant was appointed as Junior clerk on temporary basis-Services of appellant were, however, terminated on the ground that as a result of re-instatement Mr. Muhammad Ali Khan Reader, Muhammad Saleem, Copying clerk who had a the meantime been promoted as Reader was reverted to his original post of copying clerk as in consequence thereof, services of Mr. Muhammad Akram Tahir Copying Clerk (i.e. the Appellant were dispensed with)-Challenge to-Service of appellant cannot be dispensed with in view of principle of locus paenitentiae as he was recruited in consultation with Departmental Selection Committee and he was not impleaded in appeal, as necessary-Appellant shall be placed at disposal of surplus pool and he shall be absorbed against any available vacancy. [Pp. 196] A Locus Paenitentia- -Locus paenitentiae (a place or chance of repentance), a power of drawing back from a bargain before any act has been done to confirm it in law- Bell's Scots Law Dictionary (see also page 607 of Wharton's Law Lexicon. [P. 197] B Main Muhammad Hussain, Advocate for Appellant. Mr. Manzoor Hussain Bhatti, District Attorney. Date of hearing: 15-10-96. judgment The appellant, Mr. Muhammad Ikram Tahir, was appointed as Junior Clerk on temporary basis and was placed on probation for two years vide order dated 29-1-87 (Annex 'B') passed by Presiding Officer, Punjab Labour Court No. 3, Lahore. The services of the appellant were, however, terminated vide order dated 7-3-91 by the said respondent (Annex. 'A') on the ground that as a result of re-instatement of Mr. Muhammad Ali Khan, Reader by Punjab Service Tribunal, Muhammad Saleem, Copying Clerk who had in the meantime been promoted as Reader was reverted to his original post of Copying Clerk and in consequence thereof, the services of Mr. Muhammad Ikram Tahir Copying Clerk (i.e. the appellant) were dispensed with. The appellant filed an appeal against the said order dated 7-3-91. The appeal was rejected by Secretary to Govt. of the Punjab, Labour and Manpower Department vide letter, dated 25/27-7-91. The appellant then| brought the instant appeal before this Tribunal on 25-8-91 on time. 2. The contention of the learned counsel for the appellant is that the appellant was recruited as Junior Clerk on regular basis as was evident from the fact that he was placed on probation for a period of two years. The learned counsel, therefore, maintains that the services of the appellant could not have legally been dispensed with on the ground that the vacancy against which he was recruited had ceased to exist The learned counsel refers to Para 3 of the letter dated 17-2-91 (Annex. 'J') to show that the said respondent had held the appointment of the appellant as unlawful on the grounds that the appointment order did not reflect that the appointment of appellant had been made on the recommendations of the Departmental Selection Committee. Learned counsel refers to the note recorded by the concerned official of the Labour Court No. 3 on the Labour Department's letter, dated 20-1-91 to show mat the appellant had actually been recruited on the basis of the recommendations of the Departmental Selection Committee. The relevant record was not, however, available as it was lost during the floods in September, 1988. The learned counsel, further refers to the letters at Annex. 'G' and 'H' whereby the Presiding Officer, Punjab Labour Court No. 3 had testified that the appellant had been recruited on the basis of the recommendations of Departmental Selection Committee. 3. Learned counsel further maintains that the Presiding Officer, Punjab Labour Court No. 3 had not applied his independent mind while terminating the services of the appellant for the reason that a copy of the impugned order was duly endorsed by him to the Secretary, Govt. of the Punjab, Labour Department with reference to his letter, dated 17-2-91 to show that the orders of the Labour Department had been complied with. 4. Learned counsel maintains that the orders passed by the appellate authority could not be sustained in law as the impugned order dated 7-3-1991 had also been passed by the Presiding Officer, Labour Court No. 3 under the directions of the appellate authority itself. Learned counsel maintains that the impugned order whereby the services of the appellant were dispensed with and his appeal was rejected by the appellate authority was fit to be set aside. 5. Learned counsel for the appellant has finally referred to the combined seniority list of the Clerical Staff of the Labour Courts as it stood on 1-1-89 (Pages 21 and 22) to show that the official mentioned at serial No. 19 of the said seniority list namely Mr. Abdul Rehman was junior to the appellant on all Punjab basis and even if it was assumed for a moment that the number of vacancies/posts had been reduced, the services of the said official namely Mr. Abdul Rehman should have been dispensed with as he was actually the junior-most official working in the Labour Court. Learned counsel also refers to serial No. 15 of the seniority list to show that yet another Clerk namely Mr. Muhammad Irshad was working as Copying Clerk on ad hoc basis. Learned counsel, therefore, maintains that the said official could not have been retained in service at the cost of the appellant. 6. Learned District Attorney relies on the objections filed by respondents. Learned District Attorney states that the combined seniority list of the Clerical Staff was provisionally prepared to consider the question of grant of Selection Grade to the staff. He asserts that seniority list of the ministerial staff of the Labour Courts had never been prepared on an All Punjab basis and that it was maintained Labour Court-wise. Learned District Attorney further contends that in case the argument of the learned counsel for the appellant to the effect that Qari Abdul Rehman was actually the junior-most official on an All Punjab basis and was liable to lose his job was accepted, then it would be necessary for the appellant to implead the said official as well, as he would in that case, constitute necessary party in the instant appeal. Learned District Attorney maintains that for this purpose either the appellant shall have to file the amended memo of appeal or otherwise the court could take suo-moto notice to hear the said official before passing any order in the matter. Learned District Attorney further states that the said seniority only related to junior clerks. If the intention was to issue a combined seniority list for all the Labour Courts in the Punjab , the incumbents of such other posts as Stenographers, Assistants, Accountants etc. should also have been mentioned in the instant seniority list. According to him, seniority list on an All Punjab basis for the above mentioned posts had not been prepared/circulated by the Department which shows that the seniority list of staff of the Labour Courts was/is maintained Labour Court - wise. 7. I have heard the arguments and have perused the record. The Punjab Labour Court Employees Service Rules, 1978 laid down that the appointing authority for the ministerial establishment mentioned in the schedule appended to the said rules would vest in the "Presiding Officer" concerned. That shows that the Presiding Officer of every Labour Court would be the appointing authority for the purpose of making recruitment against vacancies that might become available in that court If the Govt had intended to make recruitment to posts for all kbour courts on an All Punjab basis, the powers of appointing authority would have been delegated to a civil servant holding higher post in the administrative heirarchy e.g. Secretary or Addl. Secretary, Labour Department The fact that the powers of appointing authority vested in the Presiding Officer of the respective court itself shows that the seniority list would be maintained separately for the ministerial establishment of every court. I do not, therefore, agree with the learned counsel for the appellant that the seniority of the Clerical Staff was required to be maintained on an All Punjab basis. That being so, the argument that in the event of reduction of vacancies in the Labour Court No. 3, the services of Qari Abdul Rehman should have been dispensed with before terminating the services of the appellant would not hold good. In this view of the matter, the said official did not constitute necessary party in the instant appeal nor was there any reason for this Tribunal to indulge in hearing the said official as he did not at all constitute necessary party in the instant appeal. 8. I am of the considered view that the seniority of the Labour Court No. 3 would be confined to the said Labour Court only. It has, however, to be seen whether the services of the appellant had legally and fairly been dispensed with, in view of the circumstances that had come to the light and are being projected in the succeeding paragraphs. 9. The factual position is that one Mr. Muhammad Ali, Reader, Labour Court No. 3 was dismissed from service on 31-5-86. He assailed the order of his dismissal before this Tribunal and he was ultimately re-instated in service vide order dated 2-12-90 as a result of acceptance of his appeal by the Tribunal. During the interregnum, however, the department had promoted one Mr. Muhammad Saleem, Copying Clerk as Reader in place of Mr. Muhammad Ali and had appointed the appellant Mr. Muhammad Ikram Tahir against resultant vacancy of Copying Clerk. Since the department had assumed that a clear vacancy had come into existance due to the dismissal of Mr. Muhammad Ali from service and regular promotion of Mr. Muhammad Saleem as Reader, the respondent department had rightly made recruitment of the appellant against the clear vacancy of Copying Clerk. This fact alone confirms the version of the concerned Clerk as also that of Presiding Officer of Labour Court No. 3 that the recruitment of the appellant was made in consultation with the Departmental Selection Committee on regular basis. This fact is further confirmed by the appointment order of the appellant itself under which the appellant was placed on probation for a period of two years. Quite obviously, an ad hoc employee is not placed on probation. 10. .The contention of the respondent is that as a result of re instatement of Mr. Muhammad Ali, Reader in service, the chain re-action ensued in as much as Muhammad Saleem was reverted from the post of Reader to that of Coying Clerk. This is how the post occupied by appellant ceased to exist and he came within the mischief of the provisions of Section 10(2) of the Punjab Civil Servants Act, 1974 which reads as under :-- "10(2). In the event of a post being abolished or number of posts in a cadre or service being reduced, the services of the most junior person in such cadre or service shall be terminated." 11. In view of the above position, there is hardly any ground to challenge the order under which the services of the appellant were dispensed with. It has, however, to be seen whether the respondents had rightly proceeded to recruit an-other person when the said Muhammad Ali of the same Court was again dismissed from service on 28-3-92. The appellant had already served in the department as a regular employee for a period of 4 years. I am, therefore, of the considered view that while filling up the vacancy for the second time, the appellant had preferential right to be considered for appointment as Copying Clerk again. I am fortified in my view by the fact that the Government has created a surplus pool in the SGA&ID to pay salary to surplus employees of Govt. Departments till they are absorbed against other vacancies. The appellant who had become surplus to the requirements of the Department. While his termination from service under Section 10(2) of the Punjab Civil Servants Act, 1974 cannot be assailed in law, the manner in which the same vacancy was again filled up without adjusting the appellant too cannot be accepted as the facts of the case further unfold themselves in the next paragraphs. 12. The official representing the department has produced an application, dated 18-5-92 filed by the appellant before the Presiding Officer, Labour Court No. 3. In the application, the appellant again sought appointment as Clerk in the court. The Presiding Officer, however, passed the following order on 19-5-92 :-- "Since this Court has not advertised any vacancy, this application, is premature which is hereby filed". Sd/r Presiding Officer 19-5-92 13. The official representing the department has also produced relevant file containing application of one Mr. Muhammad Asghar, Naib Qasid of the Court for promotion as Clerk as also the minutes of the Departmental Promotion Committee held on 14-9-92. While the application of the appellant was not considered on the ground that the vacancy had not been advertised and the application of the appellant was premature, the appointing authority promptly promoted a Naib Qasid as Clerk in consultation with the Departmental Promotion Committee. Since there was only one post of Cleric, it should not have been offered to the Naib Qasid by way of promotion because only 20% posts of Clerks could be filled in by promotion from amongst the officials is Scale No. 1 to 4 otherwise eligible for promotion as Clerk. More-over, the minutes of the Departmental Promotion Committee show that the appellant was appointed as Clerk. That being so, the appellant was not given chance to compete alongwith the said Naib Qasid who was directly recruited as Junior Clerk without advertising the post. I am, therefore, constrained to conclude that the said official was recruited by showing undue favour while the appellant was denied the chance of competing for appointment as Clerk which post he had held on regular basis for 4 years in the same office. 14. In view of the fore-going discussion, I accept the appeal, set aside the impugned order and direct that the appellant shall be re-instated in service w.e.f. the date the said Copying Clerk namely Muhammad Asghar Zafarwas recruited i.e. w.e.f. 15-9-92. The services of the said official namely Mr. Muhammad Asghar Zafar cannot now be dispensed with in view of the principle of locus poenitential as he was recruited in consultation with the Departmental Selection Committee and he was not impleaded in the instant appeal either, as necessary party. The net result would be that the appellant shall be placed at the disposal of the surplus pool and he shall be absorbed against any available vacancy of Junior Clerk preferably in the Labour Courts and if no such vacancy is available, against any other vacancy of Junior Clerk under the Government of the Punjab. 15. The parties are left to bear their own costs. (K.A.B.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 197 [Punjab Services Tribunal, Lahore ] Present: safdar hussain shah jafri, member -1 MUHAMMAD ASLAM-Appellant versus THE ADDITIONAL INSPECTOR GENERAL POLICE PUNJAB ETC.- Respondents Appeal No. 324/94, Allowed on 15-9-96. Punjab Civil Servants Act, 1974- -Police Constable-Short in minimum prescribed height by one inch- Dismissal from service-Challenge to-Once D.I.G. of police had recommended the condonation of deficiency in prescribed minimum height, he was legally barred from taking a different view particularly when his recommendation was accepted by I.G. of police as well-Same would be true of revisional order passed by Additional Inspector General of Police because such an order militated against order passed by I.G. of police himself-Appeal accepted. [P. 200] A Mr. Muhammad Ismail Tayer, Advocate for Appellant. Mr. Manzoor Hussain Bhatti, District Attorney for Respondents. Date of hearing: 15-9-96. Announced on: 15-9-96. judgment The Superintendent of Police (Admn.), Lahore noted, vide his order, dated 29-9-1992 (Annexure-D) that the appellant Muhammad Aslam (Ex- Constable No. 1 (1961) measured 5 Feet 6 Inches as he was short in the minimum prescribed height by one Inch, dismissed him from service alongwith 6 other constables whose height also fell short of the minimum height prescribed for the Police Constables. The appellant represented against this order on 10-10-1992 (Annexure-E). Instead of passing any order on the appeal filed by the appellant against the order of his dismissal from service, referred to above, the D.I.G. of Police vide his letter, dated 10-5-1993 recommended the condonation of deficiency in the height of the appellant. Necessary condonation was allowed by the Inspector General of Police vide his letter, dated 22-5-1993 (Annexure-F). The logical result of such condonation would be that the D.I.G. of Police should have accepted the appeal filed by the appellant against his dismissal from service by the Superintendent of Police. However, the D.I.G. of Police proceeded to reject the appeal of the appellant. He did take notice of the fact that after his dismissal from service, the appellant had applied to the Inspector General of Police, Punjab for condonation of deficiency in height which was eventually granted by the said authority on 22-5-1993. Inspite of taking note of this fact of transcendental importance, he proceeded to reject the appeal of the appellant and to maintain the original order as regards the dismissal of the appellant from service on the vain excuse that the appellant "should have obtained relaxation in deficiency in height prior to his enrolement." He took the view that the relaxation granted by the CPO could not "be considered to have retrospective effect". He also charged that the appellant "had manoeuvred his recruitment in a fraudulent manner and that he had rightly been dismissed from service as he less than 3 years service." The revision petition filed by the appellant against the order dated 27-6-1993 (Annexure-G) was, of course, rejected by the Additional Inspector General of Police, Punjab vide his order dated 10-2-1994 (Annexure-I). 2. Learned Counsel for the appellant contends that once the Inspector General of Police had condoned the deficiency in the height of the appellant on 22-5-1993, the appellant should have been re-instated in service by the D.I.G of Police who had himself recommended the condonation of deficiency in the height of the appellant. Learned Counsel further states that the Constables Muhamamd Latif No. 11994 and Muhammad Ashfaq No. 10587 who had also been dismissed from service alongwith the appellant vide order dated 29-9-1992 were also subsequently re-instated in service. Learned Counsel, therefore, maintains that the appellant was subjected to stark discrimination. He urges that the impugned orders were fit to be set aside. 3. Learned District Attorney relies on the written objections filed by the respondents. Learned District Attorney as also the official representing the department, however, confirm that the Ex-Constables namely Muhammad Latif and Muhammad Ashfaq were indeed re-instated in service after the deficiency in their height was condoned by the Inspector General of Police. 4. I have heard the parties and have perused the record. I am afraid I cannot uphold the view taken by the D.I.G. Police in his appellate order. The D.I.G of Police, Lahore Range had himself recommended condonation of deficiency in height on 22-5-1993. His recommendation was accepted by the Inspector General of Police who allowed such condonation on 22-5-1993. Since condonation in the minimum prescribed height had been allowed by the Inspector General of Police, the D.I.G. Police was left with no option but to re-instate the appellant in service. The argument that the condonation could not have been granted retrospectively is hardly tenable. The word 'condonation' is generally used for delay and, therefore, it would naturally be applicable to the past as also to the present. Condonation of deficiency could be allowed by relaxing a rule retrospectively as well, unless such relaxation was likely to adversely affect others who had derived any benefit from such relaxation of Rules. In the instant case, the benefit thereof would be available to the beneficiary i.e the appellant who would become 'eligible' for appointment as Constable right from the day he was recruited. To say that such condonation would be applicable only prospectively would be against the facts of the case as well because it was very clear that the appellant had already joined service and had under-gone training as constable. It was, therefore, clear that condonation of deficiency in the prescribed height would be applicable to the appellant right from the date of his induction in service as constable. 5. I do not agree with the D.I.G. of Police on the point that the appellant had secured recruitment fraudulently either, for the reason that it is the recruiting staff which measures the height of the candidates and any failure .on their part in correctly measuring the height of a candidate could not be .attributed to such candidates unless substantial evidence was available to show that a candidate had secured such appointment by fraud. The observations made by the D.I.G. of Police to the effect that the appellant had maneouvred his recruitment in a fraudulent manner is, therefore, more of a conjecture than observations made on substantive evidence. 6. I am of the considered view that once the D.I.G. of Police had recommended the condonation of deficiency in the prescribed minimum height, he was legally barred from taking a different view particularly when his recommendation was accepted by the Inspector General of Police as well. The same would be true of the revisional order passed by the Additional Inspector General of Police because such an order militated against the order passed by the Inspector General of Police himself on 22-5-1993. 7. In view of the fore-going discussion, I accept the appeal, set aside the impugned orders, dated 29-2-1992, 27-6-1993 and 10-2-1994 and re-instate the appellant in service with the stipulation that the period from 29-2-1992 till he resumes duty shall be regularised as leave subject to title. 8. The parties are left to bear their own costs. Appeal allowed is above. (A.P.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 200 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (Urn) mian ghulam ahmad, chairman MUMTAZ AHMAD-Appellant versus DIVISIONAL ENGINEER TELEPHONES-Respondent Appeal No. 68/96, accepted on 18-11-1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A read with S. 37(3)-Grievance petition-Dismissal ofChallenge toSince appellant has been in service for a period exceeding nine months, he had acquired status of a permanent workman, under provisions of Industrial and commercial Employment (Standing Orders) Ordinance, 1968-He was also entitled to protection and safe-guards postulated by labour laws; and his services could not be terminated, except in due process of law-Mere description of the posting as a temporary one or having been made as a stop-gap arrangement, would not divest worker of his statutory right. [P. 202] A & B Kh. Tariq Masood, Advocate for Appellant. Mr. Inam-ul-Islam, Advocate for Respondent. Date of hearing: 30-10-96 judgment By the decision dated 19.2.1996, Mian Abdul Qayyum, Presiding Officer, Punjab Labour Court No. 1, Lahore has dismissed the grievance petition filed by Mumtaz Ahmad, under section 25-A of the Industrial Relations Ordinance, 1969, 'Authorities' of the Telephone Department being the respondents. He had come up in appeal to this court, preferred under section 37(3) of the Ordinance. 2. Mumtaz Ahmad was employed against a work-charged vacant post of Colony, and he worked for a period of about five years, it is so stated by him, in the grievance petition filed in the Labour Court on 10.1.1993. On 18.3.1992 he was appointed as a Line-man, BPS-4, against the leave vacancy of one Muhammad Riaz Lineman, who had proceeded on leave for 730 days. He thus pleaded having acquired a right to continue in that capacity, but his services were terminated on 10.10.1992, as being no longer required; but once again he was employed as cooly on daily wages on 11.10.1992. He is presently working as a cooly. He served a grievance notice on his employer (Exh. P-3) on 7.12.1992. The respondent did not accept his claim of having attained permanent status as lineman, entitled to be retained on that post. The learned Labour Court has endorsed the view-point of the establishment, by referring to 1993 PLC 393 (Karachi High Court) and 1990 SCMR 1539, and quoting an observation of the august Supreme Court of Pakistan, in para-9 of the judgment. I however find myself in least agreement with the reasoning recorded by the learned lower Court. Even the Supreme Court has pronounced that status of a person as a permanent workman has to be adjudged, with reference to the nature of the work he has been doing. If the same is not of permanent nature, howsoever long may be the period of employment, the employee cannot be classified as a permanent workman. Statement of an Officer of the establishment, who has appeared as RW-1 in the lower court appears to be of immense importance, although as indicated by the document Exh. P-l, Mumtaz Ahmad had been appointed as a lineman in BPS-4, as a stop gap arrangement, against the leave vacancy that occurred on one Muhammad Riaz Lineman proceeding on long leave. Mere insertion of the phrase in the order of appointment, "it is a stop gap arrangement and the appointment is liable to be terminated at any time without any notice or assigning any reason therefor", would not be enough to displace the claim of the employee. It has become customary with Government Departments, as also industrial establishments, to adopt this terminology, with a view to escape their liabilities and to defeat the claims of the employees, in making assertion to enjoy the vested rights to remain in service, not liable to ouster, in an arbitrary and summary fashion. Abdul Qayyum, Assistant Engineer, Phones has deposed as RW-1 that persons with shorter length of service had been regularized in service, the post against which Mumtaz Ahmad had been employed as a lineman was of permanent nature, and when his services as lineman were dispensed with, posts of Coolies and Linemen were in existence. Even the appointment order dated 28.3.1992 (Exh. P-l) makes mention of the fact that Mumtaz Ahmad was the senior-most Cooly. Mumtaz Ahmad as PW-1 has also deposed that he had qualified the examination held for promotion as Lineman in the year 1992. It is also to be noted that there had taken place no break in his service, as he ceased to be a lineman on 10.10.1992, whereas on the very next day he was shown to have been re-employed, once again, as a Cooly. 3. The post of cooly, Mumtaz Ahmad has held for a number of years, and by nature of the duty, he was performing, he was to be regarded as a workman. Since he has been in service for a period exceeding nine months, he had acquired the status of a permanent workman, under the provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Well, then, he was also entitled to the protection and safe guards postulated by the Labour Laws; and his services could not be terminated, except in due process of law, i.e. on the ground of misconduct, and the prescribed procedure, as is well known, was issuance of a showcause notice and a charge-sheet, followed by a regular enquiry. This course was admittedly not followed; and the appellant thus had a right to have recourse to the Labour Court , for redressal of his grievance. It has been pointed out by the learned counsel for the respondent that minimum qualification for appointment as a Lineman was matriculation. This may be true, in case of initial and direct appointment as Lineman, but a departmental candidate, on the strength of length of his service, and seniority, and on qualifying the departmental examination, could not be prevented from claiming promotion as a Lineman. As already said, mere description of the posting as a temporary one, or having been made as a stop gap arrangement, would not divest the worker of his statutory right 4. I would, as such, accept the appeal and set aside the impugned order of the Labour Court . The appellant is service, but has been forced to work as Cooly on daily wages. This would be too much on the part of the 'Authorities', who are bent upon treating him as a Cooly, and that too on daily wages, although he has served the department for several years. He shall be treated as a permanent employee and promoted as a Lineman and treated so ever since 28.3.1992, when he was initially appointed as a Lineman, even though against a leave vacancy, the reason being that according to the department's own witness, a responsible officer, the vacancy of lineman had not become non-existent Arrears shall be calculated and paid to the appellant; but there shall be no order as to costs of this litigation. (K.A.B.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Service) 203 [Service Tribunal AJ&K, Muzaffarabad] Present: raja bashir ahmed khan, chairman, khawaja abdul hamid, member Sh. NISAR AHMAD NISAR-Appellant versus SPEAKER LEGISLATIVE ASSEMBLY AJK & another-Respondents Service Appeals No. 760 & 766, decided on 22.5.1996. (!) Azad Jammu & Kashmir Service Tribunal Act, 1975- -S. 4 and AJ&K Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1992. R. 5(2)-Rules-Violation of-Effect. Respondent No. 2 appointed as Private Secretary B-17 by respondent No. 1 in violation of existing Rules-Both appellants, already promoted, affected adversely-Notification-Challenge to in appeal : Held : Under rules, post of Private Secretary to Leader of opposition could be filled only by promotion on basis of selection on merit from among Private Secretaries-Promotion of respondent No. 2 was not made in B-17 on regular basis and as a Private Secretary in B-16 was appointed as P.S to Leader of opposition in BPS-17 Appointment, held further. Clearly against spirit and method of recruitment given rules and cannot be sustained-Appeal accepted. [Pp. 205 & 206] A (ii) Azad Jammu & Kashmir Service Tribunal Act, 1975-- -S. 4 and AJ&K Legislative Assembly and Secretariat (Recruitment and Conditions of Service) Rules, 1992 R. 5(2)~Appeal--Service matters-'oudf altrerampartem' --Principle of-Violation of--Reversion order-Passing of- Reversion order of appellants, passed without hearing themPrinciple of 'adui alteram partem, held, violated-Impugned Notifications, held further, illegal and inappropriate and can be declared as having been without lawful authority is liable to be quashed-Appeals accepted- Respective position of appellants, restored with all back benefits. [P. 207] B & C M/s M. Tabassam Aftab Alvi and Hqji Mohd. Ashraf, Advocates for Appellants. Rqja Mohd. HanifKhan, Advocate for Respondents. Respondents No. 2 & 4, in person, bate of Decision: 22-5-1996. judgment Raja Bashir Ahmad Khan, Chairman.-We propose to distsose of appeal No. 760 of 1994 titled as Sh. Nisar Ahmed Nisar versus Speaker, Legislative Assembly and appeal No. 766 of 1994 titled as Kh. Muhammad Anwar Loan versus Speaker, Legislative Assembly by this consolidated judgment since the impugned Notification and respondents in both the appeals are same. 2. The facts of Appeal No. 760 of 1994 filed by Sh. Nisar Ahmed Nisar briefly stated are that the appellant joined service as Junior Clerk in 1973 and on the recommendations of Selection Committee was promoted as Private Secretary to Secretary Legislative Assembly on 19.3.1992. The post of Private Secretary to Opposition Leader in grade B-16 was crated vide Government order dated 27.1.1992. The appellant was appointed by transfer as Private Secretary to Opposition Leader on 7-6-1993. The post of Private Secretary to Opposition Leader was upgraded from B-16 to B-17 with special pay of Rs. 375/- through the Notification No. 8035-40/LA/94 dated 19-8-1993. The appellant was granted selection grade B-17 on the recommendations of the Departmental Committee through the Notification dated'3.2.1994. On the upgradation of post of Private Secretary to Opposition Leader the appellant Kh. Muhammad Anwar Loan was appointed as Private Secretary on 3.2.1994. The appellant was also promoted as Private Secretary to Deputy Speaker in lien of one Sajjad Hussain. The Speaker of Legislative Assembly appointed respondent No. 2 as Private Secretary B-17. The respondent No. 2 before his appointment was holding the post of Private Secretary B-16. The appellant filed a review petition before respondent No. 1. After waiting for a period of ninety days the appellant has filed this appeal before the Tribunal. 3. In other Appeal titled as Kh. Muhammad Anwar Loan versus Speaker Azad Jammu and Kashmir Legislative Assembly and others, the appellant Kh. Muhammad Anwar Loan was Private Secretary B-17 and was working as Private Secretary to Deputy Speaker in lien of one Mr. Sajjad Hussain. He was appointed by transfer as Private Secretary B-17 to Leader of Opposition under Notification No. 731-831/LA/94 dated 3.2.1994. The appointment of respondent Raja Arshed Hussain who was Private Secretary in B-16 was made as Private Secretary to Leader of the Opposition in grade B-17. The appointment was, however, ordered to be at the discretion of the Leader of the Opposition and was to last at the expiry of tenure of Leader of the Opposition. The appellant felt aggrieved of this order and filed a review petition before respondent No. 1 on 1.5.1994. The review petition remained undecided and when the statutory period of ninety days elapsed the appellant has filed this appeal. 4. The written objections have been filed on behalf of the respondents in the titled appeals. Similar objections have been raised in both the appeals. 5. We have heard counsel for the parties and have gone through the record. 6. On behalf of the appellants it has been contended that the order of appointment of respondent Raja_Arshed Hussain is violative of the Rules known as the Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1992. In pursuance of provisions of Rule 5(2) of said rules the Speaker was pleased to prescribe the minimum qualifications, experience and method of recruitment to various posts in the Assembly through Notification No. LA/10628/92 dated 28.12.1996 for the post of Private Secretaries to Speaker/Deputy Speaker and Leader of Opposition. The method of recruitment was as follows :-- Private Secretaries to Speaker/Dy. Speaker and Leader of Opposition (B-17). (i) Degree from recognized University; (ii) Shorthand speed of 120 w.p.m and (iii) Typing speed of 40 w.p.m. i) (ii) By promotion on the basis of selection on merit from among Private Secretaries (B-16) ; or By promotion on the basis of selection on merit from among the Personal Assistants and Senior Scale Stenographers with at least five years experience as such ; or (iii) By transfer of a suitable person already employed in any department of Govt. in equivalent scale or (iv) By initial recruitment. Under the rules the post of Private Secretary to the Leader of Opposition! could be filled only by promotion on the basis of selection on merit from] among Private Secretaries. The promotion of respondent Raja Arshed Hussain was not made in B-17 on regular basis and as a Private Secretary in B-16 was appointed as Private Secretary to Leader of the Opposition in BPS- 17. This appointment is clearly against the spirit and method of recruitment given under the rules and cannot be sustained. The counsel for the respondents has argued that the order of appointment and promotion of &. appellants dated 3.2.1994 was purely temporary and could be terminated at the will of the competent authority particularly in the case of appellant Sh. Nisar Ahmed Nisar whose lien was kept against the post of Private Secretary to Secretary Assembly. The contention of counsel for respondents could carry some weight if the appointment of respondent Raja Arshed Hussain was made in accordance with the provisions of rules. Since the appointment is devoid of any legal sanctity, therefore, the contention of counsel for respondents cannot be accepted. 7. The counsel for Speaker Legislative Assembly in Appeal of Kh. Muhammad Anwar Loan made a statement before the Tribunal on 27.9.1995. The statement is reproduced as below :-- From the statement it appears that the post of Private Secretary to Leader of the .Opposition is of permanent nature and was not discretionary post The appointment against this post could only be affected by promotion on the recommendations of Selection Committee. The order in respect of appellant Kh. Muhammad Anawr Loan has been passed without hearing the appellant and to this extent the appeal of Kh. Muhammad Anwar Loan is valid. 8. In view of this statement of the counsel for Speaker Legislative Assembly there remains no doubt to hold that the dislodging of Kh. Muhammad Anwar Loan, the appellant was illegal and he was deprived of special pay which was attached to this post. 9. The counsel for appellants has also argued that the order of reversion of appellants was passed without hearing them and the principle of 'audi ateram partem' has also been violated. The counsel for appellants has referred 1995 SCR 324 PLD 1985 AJK 17 in support of this argument The record on the file is abundantly clear that the appellants were condemned unheard. The impugned Notification in view of the authorities cited above is illegal and inappropriate and can be declared as having been passed without lawful authority and is liable to be quashed. The appellants were holding posts although temporary but after having been declared suitable for promotion. They were in the higher grades of pay. Kh. Muhammad Anwar Loan was drawing special pay of the post The appellants were deprived of the remunerations attached to the posts on account of illegal order of the respondent No. 1 and both the appellants appeared to have been affected in matter of their pay and allowances. The order under appeal had the effects in it to deprive appellants of their legal rights. They are, therefore, aggrieved persons and could lawfully come before this Tribunal for the redress of their grievance. 10. In view of the above we accept both the appeals, set aside the impugned Notification and restore the respective positions of the appellants with all back benefits as they were entitled at the time of issuance of impugned Notification. No order as to costs. (Aq.By.) Appeals accepted.
PLJ 1997 Tr PLJ 1997 Tr. C (Services) 207 [Federal Service Tribunal, Islamabad ] Present : JUSTICE (R) ABDUL RAZZAQ A. THAHIM and muhammad raza khan, member S.M. FURQAN-Appellant versus CHAIRMAN WAPDA ETC.-Respondents Appeal No. 24(K) of 1996, partly accepted on 1/9/96. (i), General Clauses Act, 1897 (X of 1897)-- S. 21~"Locus Poenitentiae" -Principle of--An illegal act can be withdrawn at any time as and when it comes to notice and under General Clauses Act, authority who can do certain thing has also power to undo same. [Pp. 211] A Mr. S. Abrar Bukhari, Advocate for Appellant. Mr. Arshad Zaman Kayani, Advocate for WAPDA. Date of hearing: 2/9/96 judgment Muhammad Raza Khan, Member.--The appellant was working as Field Store Keeper in WAPDA since 1.11.1974. In 1986, he was promoted as Senior Store Keeper and posted in Tube-well Electrification Division, Hyderabad . In 1986, WAPDA took a decision for grant of BPS-12 to the Senior Store Keepers working in the Inventory Control Department and it was also provided therein that the Store Keepers of Hydel Organisations will also be allowed same pay scale after the Authority has evolved the Inventory Control procedure for Generation and (T&G) Stores on the lines of procedure already prescribed for Distribution. The appellant made an application for the grant of BPS-12 and consequently vide order dated 14.3.1993, he was allowed BPS-12 with effect from 23.11.1988. In September, 1995, a show cause was issued to the appellant proposing the withdrawal of BPS-12 which was allegedly granted inadvertently. The reply submitted by the appellant on 3.10.1995 was not accepted and vide order dated 19.10.1995, the earlier order dated 14.3.1993 was withdrawn and thus the appellant was reverted from BPS-12 to his original scale and the payment of emoluments for the period from 23.11.1988 to 19.10.1995 was ordered to be recovered in twelve monthly instalments. After seeking departmental remedy, the present appeal has been filed mainly on the ground that the impugned order dated 19.10.1995 has not been passed by the competent authority and that since the earlier order dated 14.3.1993 was already implemented, therefore, it cannot be withdrawn, and in any case the recovery of the amount already paid cannot, at all, be ordered. 2. The respondents have contested the appeal by the written objections filed on 24.4.1996 on the main ground that the benefit of higher scale in BPS-12 was not admissible to the appellant because he was posted on the Hydel side and the higher scale has been allowed to the Senior Store Keepers working in the Stores on Distribution side where the procedure of Inventory Control are applicable. 3. We have listened the arguments on behalf of the parties and perused the record. To resolve the controversy, it will be sufficient to refer to three documents in the chronological order. On 4th September, 1986, the Pakistan WAPDA (Power Wing) Stores Management Subordinate Staff Service Jlules, 1986 were enforced and in Rule 2 of Part I, it was provided : " "Unless otherwise decided by the Authority at any time by general or special order, these Rules shall apply to the subordinate store staff on the strength of Inventory Control Organization of Power Wing of the Authority, except :-- (1) Deputationists; (2) Persons engaged for a specified period on contract Rule 5 (c) ibid provided : "Placement/promotion to the posts of Senior Store Keeper in BPS-12 will be made from amongst the Senior/Junior Store Keepers posted in the three departments of the Power Wing (Distribution, Generation and T&G) located in the Region where the vacancy occurs. (Region corresponds to the jurisdiction of the Area Electricity Board)." On 23.8.1988, the Managing Director (T&G), WAPDA House, Lahore addressed a letter to the Chief Engineer (Admn.), (Power), WAPDA House, Lahore, demanding grant of higher pay scales to stores staff of T&G Organisation in these words : "Continuation this office letter No. 8398-99/MDT&G/A- 16(A) dated 2.8.1988. Deputy General Manager (1C) T&G Wapda, Lahore, vide his letter No. 3352-59/DGM/IC/T&G dated 4.8.1988 (copy enclosed) has intimated that there are other staff in Warehouse i.e. SSK and JSK who have requested through several appeals for granting their enhanced scale No. 12 & 11 respectively as allowed to the Store Staff working under General Manager (1C) Distribution as the nature of duties performed by them are identical. It is, therefore, requested that the case of stores staff of T&G Organisation may please be reconsidered and allowed basic pay scales allowed to the stores staff of Inventory Control of Distribution." The Managing Director (Power), WAPDA, Lahore issued a letter on 23.11.1986 with reference to some complaints but practically responding to the letter of the Managing Director (T&G) dated 27.8.1988, as follows: "The Authority has approved the grant of BPS-12 to Senior Store Keepers and BPS-11 to Junior Store Keepers who are actually and physically working in Inventory Control Set-up. The Store Keepers of Hydel Organisation will also be allowed the same pay scale after the Authority has evolved the Inventory Control Procedure for Generation and T&G Stores, on the lines of procedure already prescribed for Distribution." The perusal of these three documents will show that the Stores Subordinate Staff Service Rules, 1986 were made applicable to the Inventory Control Organisation of the Power Wing. Hence unless specifically decided by the Authority by a general or special order, these rules cannot be applied to other Sections. Efforts were made by the responsible officers of T&G Organisation demanding for extension of benefit to other employees performing functions of the similar nature in other Stores. However, this has not been approved by the Authority although a commitment has been made that with the evolvement of Inventory Control Procedure the benefits will be extended to other Sections as well. The appellant as well as his learned counsel stated that initially the higher scales were restricted to the Inventory Control Department of Distribution side, however in 1988 this facility was also extended to the Transmission and Grids as well as to the Generation side but no document could be produced to support the said contention. Even otherwise the appellant was posted in the ELBOD Hyderabad on the Construction side and he will thus not be benefitted by any orders of upgradation on the Transmission or Generation side. 4. The appellant also relied on the minutes of the meeting held on 26.7.1992 which was attended by nine senior officers of the Authority and the item of Agenda for the meeting was "Removal of anomalies in pay scales of the staff of Stores Establishment employed in Power Wing with those of Inventory Control Staff". The appellant mainly relied on the concluding paragraph which reads as follows : "The above views and proposals of General Manager (Hydel) were then discussed thoroughly by the participants and the following proposals were formulated and agreed through consensus :-- 1. The extension of the provisions of "The Pakistan WAPDA (Power Wing) Stores Managements Subordinate Staff Service Rules 1986" to all the other Departments of Power Wing, for the purpose of grant of pay scales. 2. Uniformity of scales for the same posts throughout the Power Wing. 3. Deletion of the qualification of B.A., as an alternative for the posts of Store Keepers in cases of Departments other than Distribution. 4. The absorption of the existing stores staff of the non- Distribution Departments into the Cadre to be made as has been implemented in the Distribution Wing already successfully by allowing them revised pay scales under the said Rules 1986 as follows :-- (i) Those who possess a Graduate Degree with 1 year experience or Matriculates with 3 years experience will be considered. (ii) Those who are efficient, have satisfactory service record and are familiar with the names of Stores items may be considered for absorption on the recommendation of the Head of the Organisation. (iii) Those who neither possess the qualifications and experience as at (i) above nor are recommended by the head of the Organisations as at (ii) above may be considered for absorption in clerical jobs." On the basis of these conclusions drawn by this meeting, the appellant had earlier requested for grant of higher scale and the said request was accepted by respondent No. 3. The perusal of the above extract will show that the meeting had finally recommended for the removal of anomaly and for the extension of benefit to other sections as well, but the said conclusions are merely in the shape of proposals or recommendations and do not amount to the decision. Even if the said meeting was convened for the purpose of taking some final conclusive decision in the matter, such decision could not be taken as the decision of the Authority as required under the above quoted rules of 1986. The proposal/recommendation of the meeting dated 27.6.1992 had to be submitted to the Authority for final decision and unless the decision is finally notified, the recommendation has no binding force. 5. The contention of the appellant that the impugned order was not passed by the competent authority is devoid of force because the earlier order dated 14.3.1993 extending the benefit of the higher scale with retrospective effect was passed by the office of Chief Engineer, GSC (S), Power, Wapda, Hyderabad and the impugned order dated 19.10.1995 for withdrawal of the said facility was also passed by the same authority. An illegal order can be withdrawn at any time as and when it comes to notice and under the General Clauses Act, the authority who can do certain thing has also power to undo the same. Reliance can be placed on 1989 SCMR 441 and 1994 SCMR 249. 6. So far as the recovery of the amount already paid is concerned, the said amount was paid under the orders of a competent authority although the orders were not in accordance with rules, but the appellant cannot be penalised for the fault of the authorities concerned. Hence we partially accept this appeal and direct that the amount already drawn by the appellant shall not be recovered from him, and with these observations the rest of the prayer in appeal stands dismissed with no order as to costs. 7. Before parting with the judgment, we may observe that Store Keepers working under the same Authority should be treated equally. The preferential treatment with a particular section amounts to discrimination with similarly placed other employees and thus violative of Article 25 of the Constitution. The matter has been agitated at various levels within the department and as stated hereinbefore, various officers and committees have recommended the extension of benefit to other Store Keepers as well. We were told during the arguments that the Inventory Control Procedure has been adopted by other Wings of Transmission, Generation and Construction side and the restriction of the enhanced scale to the Distribution side amounts to clear discrimination. It is high time the Authority should take proper decision in accordance with the rules to avoid the discrimination and anomaly amongst the same class of civil servants performing similar functions and liable to be transferred elsewhere. (K.A.B.) Appeal partly accepted.
as Deputy Secretary through the process of horizontal movement as Deputy Secretary through the process of horizontal movement. 2. The undermentioned Grade-19 ex-cadre officers serving under the jurisdiction of the Tourism Division are eligible for appointment as Deputy Secretaries in the Secretariat Group :-- (1) Miss Shireen Ghory (Formerly Deputy Chief now Controller, Department of Tourist Services). (2) Mr. Naseerullah Awan, Deputy Chief. (3) Mr. Muneeruddin, Deputy Chief. (4) Mr. Farooq Ata, Deputy Chief. (f) Later on the appellant was appointed as Deputy Secretary vide notification dated 19-6-1984. Similar notification for appointment of another Officer Miss Shireen Ghory wasissued on 30-1-1983. Both these notifications are reproduced for the purpose of comparison :--" Rawalpindi , the 19th June, 1984. NOTIFICATION No. 59(24)/83-E-21 Mr. Naseerullah Awan, Controller, Department of Tourist Services is transferred and posted as Deputy Secretary, Culture, Sports and Youth Affairs Division under Section 10 of the Civil Servants Act, 1973 with effect from 3rd June, 1984 (A.N) and until further orders." " Rawalpindi , the 30th Jan., 1983. NOTIFICATION No. 43/1/81-E. 2: Miss Shireen Ghori, a Grade-19 Officer, at present Deputy Chief, Tourism Division is transferred and posted as Dy. Secretary, Culture, Sports & Youth Affairs Divn. under Section 10 of the Civil Servants Act, 1973, in her own Grade with effect from 11.1.83 and until further orders." (g) However, the same Miss Shireen Ghori was inducted into Secretariat Group vide notification dated 17-12-1988. The said notification and the notification dated 4.1.1996, whereby respondent No. 4 has been inducted, are reproduced hereinbelow for the purpose of comparison : "Rawalnindi. the 17th Dec., 1988. NOTIFICATION No. 59-30/88-E. 2: Miss Shireen Ghoiy, formerly Deputy Chief (BPS-19) Tourism Division is appointed as Deputy Secretary (BPS-19) with effect from 11.1.1983 and inducted in the Secretariat Group with effect from the same date.2. On induction, Miss Shireen Ghoiy will remain posted in the Culture, Sports and Youth Affairs Division till further NOTIFICATION Colonel Zahid Omar is inducted as Deputy Secretary (B-19) in the Secretariat Group with effect from the date he retires from Pakistan Army.2. On induction Colonel Zahid Omar is posted as Deputy Secretary, Cabinet Division, until further orders vice Mr. Javed Mahmood (BPS-19) DMG." From the extensive reproduction of extracts from various letters and notifications in the preceeding paragraphs, the following deductions can be made :-- (i) That nominations were invited in 1980 for horizontal movement of BPS-19 Officers from Occupational Groups and other cadres into the Secretariat Group; (ii) That the process of horizontal movement, within the prescribed quote has continued till 1996, although with the minor change the horizontal movement has been restricted to the Occupational Groups only by change in the policy in the recent years whereby other cadres and services have been excluded; (iii) That the Officers appointed from other cadres and Groups as Deputy Secretary under Section-10 of the Civil Servants Act, 1973 were later on absorbed/inducted into the Secretariat Group; (iv) That by practice the Federal Government has established precedents of inducting the Officers from other cadres, ex-cadres and even those who did not belong to the civil service; (v) That the appellant had been transferred from a regular service in the Tourism Division, after having been selected by the then Central Public Service Commission and later on promoted as Deputy Chief to BPS-19 and that right from his transfer and posting as Deputy Secretary in 1984 he has been performing the duties satisfactorily which means that he has qualified the required period of three years satisfactory service to become eligible for induction; and (vi) That the appellant has not been transferred back to his original department for over twelve years and his original appointment in 1984 was an appointment by transfer and not an appointment on deputation and, therefore, he has accordingly severed all his relationship with his previous department. 4. Despite the above deductions the appellant has not been inducted in the Secretariat Group despite his dozens of representations. Evasive replies have been issued occasionally that his case will be placed before the Selection Board as and when so decided. In such a situation of uncertainty the appellant has been pursuing the immediate authorities as well as the resp. No. 1 because at the fag-end his career, where he was to retire on superannuation in 1997, he is unaware of his present status and future prospects, whereas his colleagues and several others, who have been transferred in the same manner, have not only been regularly inducted into Secretariat Group but have also been promoted in accordance with their turn and seniority. 5. Before proceeding further it will be appropriate if the technical objection raised on behalf of the contesting respondent is dealt with. The first and the major objection with regard to the present appeal is that there was no final order whereby the terms and conditions of service of the appellant have been adversely affected which can be challenged by the present appeal under section 4 of the Service Tribunals Act, 1973. The term 'final order' has no-where been defined in the statute or the rules. The Hon'ble Supreme Court has held in some cases that a letter amounting to denial of a vested right can be termed as a final order and even thepublication of an advertisement in the press whereby the terms and conditions of any civil servant are adversely affected has been held to be afinal order whereafter the service appeal has been held to be competent. In the instant case, the appellant has been denied the facility of induction on the only ground that a decision in this respect has not been made by the competent authority to place the cases of induction of certain officers before the concerned Central Selection Board. The appellant had been waiting all along for such a decision at the appropriate level. Vide notification dated 4-1-1996 the respondent No. 4 was inducted as Deputy Secretary (BPS-19) in the Secretariat Group which amounted to the refusal of the rights of consideration of the appellant by the Selection Board for induction in theSecretariat Group. Thus the said notification amounted to a final originalorder of rejection of the claim of the appellant and he was justified to file service appeal under section 4 of the Service Tribunals Act after exhaustingthe departmental remedy. Moreover, vide judgment of the High Court dated 14-3-1996 the respondent No. 1 was directed to provide an opportunity of hearing to the appellant on 24-3-1996 and thereafter his departmental appeal, supplemented by the averments of the writ petition, may be decided within one month thereafter. This means that the respondent No. 1 had to decide the departmental appeal by 23-5-1996. This has not been done. Since the direction of the learned High Court was of a positive nature, therefore, its non-implementation amounted to refusal of the departmental appeal and, therefore, it can be held that the departmental appeal was practically rejected on 23-5-1996 and, so the said refusal to comply with the directive amounted to a final order. 6. The learned standing counsel has stressed the issue of limitation and the written objections have stated a self-contradictory phrase that the appeal suffered from limitation as well as latches. The perusal of the record shows that in 12 years of the posting of the appellant as Deputy Secretary he has made 13 representations, one writ petition and 19 letters addressed from the senior-most officers recommending his case and justifying his demand. The said letters were written by the respectable luminaries in the galaxy of top administration, like Syed Ijlal Haider Zaidi, Syed Salim Abbas Jillani and Dr. Zafar Altaf. It is worth-while to mention that the said officers have recommended the case of the appellant and others similarly placed officers through 1, 14 and 2 letters respectively. In the said letters the authorities concerned have not only supported the demand of the appellant but also justified his achievements and had referred to the decision of the Secretaries Committee constituted under the provisions of the Rules of Business as supported by the Constitution of Pakistan and have also declared that the appellant and other similar officers are not only eligible but they deserved as a matter of right to be inducted to the Secretariat Group. The authorities have also warned about the repercussions of delay in their induction, on their out put and utility. Despite all these record attempts on behalf of the appellant as well as the Secretaries of his Divisions, coupled with the recommendations of the Adviser and even the Parliamentary Secretary for the Establishment Division, the respondent No. 1 has not moved to even intimate the result of these representations, recommendations and justifications. Even the verdict of the Honourable High Court, issued in a Constitutional petition, was not honoured. Thus in such a situation if the learned standing counsel stamps the appeal as hit by limitation or latches, we, are sorry to observe that more vigilance cannot be demonstrated by any other appellant. If the respondent No. 1 adopts an attitude of not responding to any of the scores of communications and representations, there will be neither-any original nor an appellate order and, therefore, nobody will be able to file any service appeal in such circumstances. Limitation runs from the date of accrual of cause of action or passing of the impugned original or appellate order. There had been all along commitments that his case will be considered in due course and that the cases of similar nature shall be processed after getting a policy decision at the appropriate level and, therefore, the appellant had constantly been pursuing the remedy and there are neither any latches on his part nor the appeal is affected by the provisions of limitation. As stated earlier the final order was passed in January, 1996 and the present appeal was well within time. 6. Now we touch the main vital issue of the eligibility of the appellant for induction into Secretariat Group. Para-5 of the written objections states that "the relevant provision for appointment by horizontal movement in the Secretariat Group allows induction, by such method, ofonly those officers who belonged to Occupational Group and Provincial service. The appellant does not belong to any Occupational Group. He is anOfficer of ex-cadre service. He is, therefore, not eligible for induction even under this provision". This is not a true reflection of the instructions on the subject. As quoted in para-3(a) and (b) hereinbefore, the relevant instructions of horizontal movement into the Secretariat Group are contained in serial No. 20 and 21 of Chapter XIV relating to the "frame work of rules and procedures applicable to the Occupational Groups" in the Esta Code. Originally the horizontal movement as Deputy Secretary in the Secretariat Group was restricted to the Occupational Groups of Grade-19Officers but later on, with the approval of the competent authority, it was provided that all government servants in Grade-19 will be eligible for appointment as Deputy Secretary by horizontal movement. However, the appointment was subject to the consideration by the Central Selection Board. That is why in the original letter of 1980 it was indicated that Officers of other Occupational Groups and cadres will be appointed as Deputy Secretaries by horizontal movement. This practice was followed later on and the nominations were invited from Government Servant not belonging to theOccupational Groups and they had been inducted into the Secretariat Group. Even by the established practice, as stated earlier, another colleague of the appellant as well as respondent N. 4 have been inducted as Deputy Secretaries and they did not belong to Occupational Group and, therefore, the established practice has re-confirmed the instructions that all Government servants are eligible for induction and consequentially the appellant is also eligible thereto. 7. The learned standing counsel argued that the appellant was practically on deputation with the Federal Government and, therefore, his claim for induction is not justified. This argument is not endorsed by the written objections. Even otherwise deputation is an entirely different phenomena as compared to the appointment by transfer u/S. 10 of the CivilServants Act. During the process of deputation, the terms and conditions of service of the potential deputationists, are settled between the borrowing authority and the lending authority and the period of deputation is prescribed therein. In the instant case there was no stipulation of terms and conditions of service nor the appellant was appointed on deputation for a fixed period. His appointment under section 10 was a simple appointment by transfer under the principle of horizontal movement and without any specification of the period. Hence the argument is repelled. 8. It has been stated in the written objections that the appellant and others similarly placed civil servants cannot demand induction into a particular group because it was a discretion of the Government. We do not agree with the contention for the reason that the chain of events, as narrated hereinbefore, demonstrate that the discretion has already been exercised and it is no more available. The nominations were invited by the Establishment Division and the services of various eligible Officers were offered in reply to the said invitation. This offer was accepted by the Government and the civil servants concerned joined their new assignment by terminating their relationship with the previous department. Thus with the acceptance of offer and its implementation a valid contract has come into existence and the terms of such contract are now bindings on the parties and not discretionary with any one of them. 9. We cannot overlook a sentence appearing in para-8 of the letter addressed by the Secretary Defence to the respondent No. 1 on 12-10-1992 wherein it was recorded that "the Secretaries Committee, established under Rule 9 of the Rules of Business, 1973, also noted the gravity of the problem and the disappointment it would generate among OMG and Section 10 appointed officers with three years service should be inducted in the Secretariat Group through the Central Selection Board."We fell the pinch of disappointment felt by the OMG Officers that their chances of promotion are affected due to the induction cf officers from other groups and services. This is unprecedented, as compared with the rest of the service structure of the country. However, till the rules are amended and the scheme is modified, it has to be honoured. The Parliamentary Secretary for the Establishment Division in a letter dated 23-8-1994 recorded as follows :-- "Islamabad, the August 23,1994 "I. 20% posts of Deputy Secretary were reserved under Central Secretariat Services (Class-I) Rules 1965 for promotion of Section Officers (BPS-18). This percentage of promotion is still in force. However, against this reserved percentage, 644 Section Officers (BS-18) have been promoted as Deputy Secretary from 1975 to June 1994 while only 15 officers have been inducted in the Secretariat Group resulting in skewedrepresentation of share percentage in favour of OMG at the expense of legal share of other occupational groups/ex-cadre services. This imbalance needs to be rectified, to whatever extent possible, in order to rationalize the structure of the Secretariat in the spirit of 1973 Administrative Reforms." Therefore, till such time the scheme for horizontal movement is modified, the quota reserved for such horizontal movement has to be honoured. On the one hand there is sure disappointment for the OMG Officers but on the other hand, the fate of those officers is at stake who have heen transferred under Section 10 of the Civil Servants Act by a horizontal movement for induction into Secretariat Group and their future hangs in balance. 10. The term 'induction' is alien to the service laws, rules and instructions. At the most horizontal movement is the word that has been repeatedly used. We have again to refer to the extract recorded at para-3 (c)hereinbefore where it has heen provided that the appointment by horizontal movement shall be ordered after its clearance by the Central Selection Board. Therefore, once a civil servant is transferred from one department to a Secretariat Group under Section 10 of the Civil Servants Act by horizontal movement, he is deemed to have been approved by the Central Selection Board and hence inducted. The process of induction after the appointment by horizontal movement is nothing but an extra-legal bottleneck. The learned standing counsel and the representative of the department could not produce any record of the induction policy or instructions whereby induction is justified after the implementation of the horizontal movement. Central Selection Board is a body approving the selection of the civil servant at the time of initial entry. The approval of the Central Selection Board was, therefore, necessary prior to the notification under section 10 and further proceeding for putting up the case before the Central Selection Board again for the purpose of induction is not supported by any legally valid administrative instructions. The Secretaries Committee have prescribed a period of satisfactory service of three years to justify the regularization oftransfer by horizontal movement The extract from the letter of Parliamentary Secretary shows the fixation of quota for the purpose. Therefore, any appointment by transfer under section-10 within the limit of prescribed quota will amount to horizontal movement which will be deemed to have been regularized after the stipulated period of three years satisfactory service. 11. Before parting with the judgment it may also be mentioned that the reply contained in para-3 of the written objections give on impression that the appellant will be considered for induction according to the policy invogue at the time of such consideration. This view is not in accordance with the established principles. The appellant was appointed as a result of invitation of nomination for horizontal movement in 1980 and the policy prevailing at that time shall be applicable to him whenever his terms and conditions of service are considered. Any change in the policy will be operative prospectively but not to the disadvantage of the appellant who has joined the service in 1984 as a result of an invitation of the offer in 1980. 12. The result of the above discussion is that we accept this appeal and direct that the case of the appellant may be placed before the relevantCentral Selection Board for consideration within a period of three months bench forth. On induction, after such consideration, he will be deemed to havebeen inducted with effect from 3.6.1987, the date of completion of three years satisfactory service after the horizontal movement in the Secretariat Group. 13. No order as to costs. 14. Parties be informed. (K.A.B.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 224 [Federal Service Tribunal, Islamabad] Present: mr. noor muhammad magsi and roshan ali mangi, members, AMIR HAMZA, EX-SSP--Appellant versus FEDERATION OF PAKISTAN ETC.-Respondents Appeal No. 49KR) of 1996 partly accepted on 10.11.1996. (i) Misconduct-- Civil servant-Case of-Whether behaviour of appellant fall within scope of "misconduct-Question of-Being a government servant, appellant was not supposed to raise political constitutional issues under rules-Nor was he supposed to disobey lawful instructions/orders of his superiors, or adopt behaviour unbecoming of an officer or gentleman-Such a behaviour is uncalled for and undesirable and prejudicial to Govt. interest, and cannot be condoned for any reason-Tribunal is of the opinion that type of appellant's behaviour which also contained his disobedience of his superior and non compliance of their orders do fall within domain of misconduct, on which major penalty can be imposed upon an employee of government; he has correctly been penalized- Subsequently Tribunal also feel that to err is human and to forgive divineSo taking lenient view in circumstances of case, Tribunal convert appellant's penalty of removal from service into a minor penalty ofwithholding of three increment, without cumulative effect-Appeal partly accepted. [P. 230] B, C & D (ii) Public Servant- Civil servant--Case~A person no doubt has every right to have any political belief, but when he joins government his behaviour should be within domain prescribed under prescribed rules-Whenever he breaks them, he would be liable to be proceeded against. [P. 229] A Mr. Shah Abdur Rashid, Advocate alongwith the Appellant. Mr. Kahlid Abbas Khan, Federal Counsel. Date of hearing: 6.11.1996. judgment Roshan All Mangi, Member.-The appellant Mr. Amir Hamza, ex-SSP, Northern Areas Police, is aggrieved by the order dated 23.5.1996, whereby he has been dismissed from service. He filed departmental appeal against the impugned order, but even on expiry of 90 days statutory waiting period, the same has not been responded to. Hence this appeal. 2. The brief facts of the case are that the appellant joined Police Service of Northern Areas, as an Inspector in 1972, and ultimately reached the position of Senior Superintendent of Police and got move-over in B-19. 3. Events started against the appellant with the speach of his wife in the Northern Areas Council, wherein she complained against the ChiefExecutive (the Minister of N.A. & Kashmir Affairs) for neglecting the Members of the Council, while in his presence, when he was presiding over the meeting on 24.7.1995. 4. Three days thereafter the appellant's wife made a speach, he was transferred on 22.7.1995 from the post of SSP Ghizer to KANA Division, without assigning him any job. No one was appointed in his place that he vacated at Ghizer. This transfer according to the appellant was to pressurise appellant's wife not to demand the rights of the citizens of Northern Areas. 5. Since this did not bring out the required results, according to the appellant, the persons in powers started to collect material against him. His record from the office of Ghizer was obtained and scrutinized to dig out some fault to enable the authorities to proceed against him for the same. But nothing came out of that 6. On 4.8.1995, the Prime Minister visited Skardu. She wanted to meet lady councillor. But she was informed that no lady councillor could be found available. This was done to prevent the appellant's wife from meeting the Prime Minister. Prime Minister returned to Islamabad without meeting the lady Councillor. The appellant's wife, therefore, sent a Fax message toPrime Minister on 7.8.95 narrating all the circumstances and subsequently requesting her (P.M.) for interview. Besides, this appellant's wife sent a message to Prime Minister through fax for interview on 15.8.95, 19.8.95 and 21.9.95 but all these were prevented to reach the Prime Minister. 7. The appellant was transferred from the KANA Division and posted as a Deputy Secretary, Food and Agriculture, Northern Areas at Secretariat Gilgit vide order dated 5.11.1995. This deprived him of special pay/allowance admissible to SSP, on one hand, and the appellant having only field experience was likely to commit mistake in the new Secretariat, on the other, so that he could be proceeded against, on committing some mistake. As such his transfer was malafide. 8. However, the appellant complied with the orders of high ups and submitted his joining report on 19.11.1995, after availing of the joining period. 9. However, since the appellant was being harassed, according to him, continuously, he therefore made a complaint in his joining report. He had observed therein that he was being treated unjustly, and raised some constitutional issues, relating to relationship between the Northern Areas and the Federation of Pakistan. He had also stated in joining report that there was no representation of N.A. in the Parliament. 10. The appellant joined the Food Department but he was neither given any assignment, nor the office or any stationery or furniture. No accommodation either was provided to him. This all according to him was malafidely done. Resultantly the appellant complained on 28.12.1995 against this treatment of authorities, and further requested them to post him back as S.P. to District Ghizer, the post which was lying vacant since his transfer to the KANA Division. 11. The appellant was issued show cause notice on 7.12.1995, which was received by him on 17.12.1995. In this show cause notice he was alleged to have made certain statements, vide his joining report, which amounted to misconduct. Therefore, he was asked to show cause why he should not be dismissed from service. 12. The reply to show cause notice, was made on 26.12.1995 in which constitutional position was reiterated and it was explained that it was in the interest of Northern Area and Pakistan, if there was fair dealing between the two. Besides this the appellant requested for his personal hearing. The appellant also took the position that whatever was contained in his joining report it did not amount to misconduct, hence there was no justification for proceeding against him under E&D Rules, 1973. 13. Without receiving reply to show cause notice, and without affording him the personal hearing, the appellant was suspended from the service on 28.12.1995. On his suspension, appellant's wife sent a fax message to Prime Minister on 1.1.96 for interview to explain appellant's case. However, the appellant was dismissed from service vide Office Order dated 23.5.1996, communicated to him through the Chief Secretary Northern Areas. On 11.6.1996 the appellant made a request that he might be provided with the original letter of his dismissal from the service issued from the Office of the competent authority i.e. Prime Minister, whom he considered to be the competent authority. 14. The above application was not responded to, therefore, the appellant made an appeal/review petition against the impugned order on 20.6.1996 explaining all the circumstances of the case. To which no responsehas been made sofar, even after the passage of mandatory period of 90 days. 15. Pleading the case of the appellant, Mr. Shah Abdur Rashid, his learned counsel, submitted that the impugned order was mala fide. He stated that the facts constituting malafide was given in details in the memo of the appeal. The malafide order, pleaded the learned counsel, was without jurisdiction and ineffective, and could not be validated even by Constitution of Pakistan. In this regard he quoted rule 6(2) of the Service Tribunals (Procedure) Rules, 1974. Secondly, the learned counsel argued that the appellant did not commit any mis-conduct on the grounds of contents of his joining report, reproduced in show cause notice. The said contents do not come under the definition of misconduct given in the Govt. Servants (E&D) Rules, 1973. 17. Thirdly under Article 19 of the Constitution of Pakistan every citizen has a right of freedom of expression. If the appellant is treated as defecto subject to the laws of Pakistan, then he has a right to freely express his view. In his joining report, the appellant has expressed his views as of right. By terming appellant's expression of Constitutional and legal opinion as misconduct, the authorised officer has offended the Constitution to which he is subject. 18. Fourthly, the appellant was not given meaningful personal hearing either by authorised officer or by the authority and as such he has been condemned unheard. 19. Fifthly, the joining report was not intended to be made public. It was for limited purpose i.e. for explaining the legal position. It does not offend any rule of conduct and as such was not actionable. 20. Lastly, the penalty of dismissal from the service, was highly excessive. Such a penalty and penalty of removal or compulsory retirement are awarded in cases of corruption, embezzlement or conduct involving moral turpitude. 21. With these submission it was prayed to accept the appeal and set aside the impugned order, and direct the respondents to reinstate the appellant with all back benefits. 22. The respondent's side have also filed their preliminary objections and resisted the appeal on the grounds that: (i) the contents of the speach of the appellant's wife did not only contain derogatoiy remarks against the Minister for KANA, who is the Chief Executive as well as the Inspector-General of Police of Northern Areas, but also were likely to generate hatred against the non-local officers of that area. The Speech delivered it was contended was presumably written by the appellant as his wife was unable to read it. Even otherwise, it was contended, it (speech) had no bearing on the instant case. (ii) The appellant was directed to undertake protocol/security duties in connection with the visit of the President of Pakistan. In response he sent a wireless message, which did not only contain the derogatoiy language but also confirmed that the appellant lacks discipline, decency andspirit of subordination as required for a disciplined force. The appellant refused to proceed on to Shandur where he was required to undertake his protocol duties. A number of complaints were received by the N.A. administration regarding his corruption, had public relations, and involvement in local politics. (iii) His transfer to KANA Division was made with the approval of the Minister of KANA, who was empowered under schedule VI of the Northern Areas Rules of Business, 1994, as such legal. (iv) His posting as S.P. in Ghizar was found detrimental to the discipline of Police Force. He was therefore, transferred in the public interest However, the appellant was posted as Deputy Secretary in the same grade with a view to rehabilitate him providing him a fresh start by the Chief Executive, N.A. (v) The appellant challenged the legal authority of the Pakistan Government to govern Northern Areas and declared his own right to refuse to obey any law extended to that region by the Govt. of Pakistan. This amounted to an act of "misconduct" in terms of rule 2(4) of the Government Servants (E&D) Rules, 1973. (vi) The show cause notice was issued to the appellant in accordance with Govt. Servants (E&D) Rules, 1973 under the signature of "Authorised Officer" as such was perfectly legal. (vii) In his reply to show cause notice the appellant; (a) challenged the authority of the Minister for KANA to issue sue!: a notice. ;];i challi.-r.ged relationship of N.A. with Federal Government. (el levelk-d baseless and irrelevant allegations against the Minister as well as Chief Secretary-This all was unbecoming of a disciplined and responsible Officer. (viii)The penalty of dismissal was imposed on the appellant was approval of The "Authority" and communicated under regular office procedure. All this was in accordance with UiW. 23. The learned counsel fi-r the respondent further informed at the bar that Status of Northern Areas is suhjudice before the Supreme Court of Pakistan. As such it cannot be discussed. 24. As regards, administration of N.A., it was informed that its administration is carried out under N.A. Rules of Business, 1994 and Legal Frame Work Order, 1994. 25. The scrutiny of the record of the appellant, by the C.P.O was a normal administrative function. As such his allegation that the said scrutiny was malafide, was denied. 26. It was controverted, if the appellant was not afforded the opportunity of personal hearing. He was heard personally by authorised officer and reiterated his position as taken in the charge assumption report, as well as in his written reply to the show cause notice. 27. With these submissions, it has been prayed, since the appellant has not only committed "Misconduct" but is also totally unrependent, the appeal therefore, be dismissed, and impugned order upheld. 28. We have heard the parties at length and gone through the record. 29. In our opinion, the appellant appears to be a political activist. His all actions seem to have been generated by his political beliefs. All his outburst seem to have been due to his political belief, that locals are not being treated by the Government of Pakistan fairly and evenly. They are not being given the representation at the National level. His ideas and actions seem to have been coloured by this situation. 30. Although it is right, that Constitution (article 19) bestows upon the citizens of Pakistan including those of the N.A., the right of speech and freedom of thought & views as pointed out by the learned counsel for the appellant, nevertheless, the appellant cannot be made immunel from limitations imposed under Government employees Conduct Rules, 1964, as countered and rightly by learned Standing Counsel, being a regular Govt. employee. 31. The perusal of the contents of his joining report as well as the wireless message that appellant sent in response to instructions given to him by higher authority to make security protocol arrangement, in connectionwith the visit of President of Pakistan, reveal, that instead of carrying out the orders of his senior, he made observations/comments which had u political tone and were irrelevant. This shows the insubordination of the appellant and un-becoming behaviour of a responsible officer. He no doubt has every right to have any political belief, but when he joins the govt. his behaviour should be within the domain prescribed under the prescribed rules. Whenever he breaks them, he would be liable to be proceeded against. Whether such a behaviour fall within the ambit of 'Misconduct'under the rules, we propose to quote the same as under :- "Misconduct" means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and, a gentleman and includes any act on the part of a Governmentservant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Government servant, " 33. Judged on the criteria of the type of behaviour that fall withinthe scope of "misconduct" the type behaviour of the appellant without any doubt falls within the contents of misconduct, as is revealed from above. Being a Govt. Servant, he therefore, was not supposed to raise political/constitutional issues under the above rule. Nor was he supposed to disobey the lawful instructions/orders of his superiors, or adopt behaviour unbecoming of an officer or gentleman. We therefore, feel sorry not to subscribe to the views of the learned counsel for the appellant, that type of . behaviour of the appellant did not fall within the domain of misconduct. 34. We are of the opinion that issues/objections raised and feelingexpressed by the appellant are clearly coloured and created by his political behaviour, which being a Govt. Servant he was not supposed to do so under the Govt. Servants Conduct Rules, 1964, as also rightly pointed out by the learned Standing counsel. These feelings and attitude, generated by his political behaviour would obviously prejudice the Govt. interest and would also adversely affect the behaviour of his other Govt. employees/his colleagues. Such a behaviour is uncalled for and undesirable and prejudicialto Govt. interest, and cannot becondoned for any reason. 35. However, the learned counsel for the appellant has submitted that the penalty of dismissal from the service was highly excessive. Accordingly to him such a penalty and penalty of removal or compulsory retirement are awarded in cases of corruption, embezzlement or conduct involving moral turpitude. As such, the penalty was not in consonance with tne magnitude of his guilt. 36. We are of the opinion that type of his behaviour which also contained his disobedience of his superior and non-compliance of their orders do fall within the domain of misconduct, on which the major penalty can be imposed upon an employee of the Government, and we feel, that he has correctly been penalised. Subsequently we also feel that to err is human and to forgive divine. We are conscious that one should not be pushedagainst the wall, which might turn the person to become extremist. So taking the lenient view in the circumstances of .the case, we convert his penalty of removal from the service into a minor penalty of withholding of three increment, without cumulative effect. He shall be reinstated into the service w.e.f. the date he was removed. His period of absence from duty from the date, he was removed from service to the date, when he will rejoin his service be treated as leave due. 37. Ordered accordingly, with no order as costs. 38. Parties be informed. (M.S.N.) Appeal partly accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Service) 231 [Federal Service Tribunal, Islamabad ] Present: mr. noor muhammad magsi and roshan ali mangi, members Mrs. GHAZALA YASMEEN and another--Appellants versus SECRETARY, DEFENCE DIVISION, RAWALPINDI and 2 others- Respondents Appeal No. 405 and 406 (R) 96, accepted on 24/10/96. Constitution of Pakistan , 1973- Art. 25-Equality before law-Fundamental right of--Appellants no doubt have been found guilty, but at same time two other teachers were also found guilty in same case-However, they were only imposed penalty ofstoppage of increments, whereas, wife of appellant was removed from service on similar allegation--As such respondents committed an act of discrimination which is not tenable under law-It was also against Art. 25-Appeal accepted. [P. 236] A Fazal Hussain Chaudhry, Advocate for Appellants. Khalid Abbas Khan, Federal Counsel. Date of hearing: 16/10/96. judgment Roshan Ali Mangi, Member.-The appellants of these two appeals are husband & wife, and have been proceeded against the same allegation though, imposed different penalties. But the facts & law applicable are identical, we therefore, propose to dispose of them with a single judgment. 2. Having been aggrieved by the same impugned order dated 27.2.1996, whereby appellant Muhammad Sohail Khalid was imposed penalty of stoppage of 4 increments, with cumulative effect w.e.f. 1.12.1996, whereas appellant Mrs. Ghazala Yasmeen, was removed from service w.e.f. 15th March, 1996, against which they preferred departmental appals to the competent authority on 27.3.1996, which remained un-responded even after the passage of mandatory period of 90 days, hence these appeals. 3. The brief facts of these appeals as stated in the memos of appeals are that the appellants were appointed as untrained Teacher (B-15) in F.G.Ashique Hussain Public School, Azad Jammu and Kashmir. The appellant, Mrs. Ghazala Yasmeen was appointed on 1.1.1987, whereas appellant Muhammad Sohail Khalid on 8.9.1988. Both of them were transferred to F.G. School Khuzdar Cantt, Baluchistan on 13.8.1990. On upgradation of the post from 15 to 16, they were accommodated in the upgraded posts w.e.f. 1.6.1991. Thereafter, the appellants were transferred to F.G. Public School, Landi Kotal in January, 1994. The appellant, Mrs. Ghazala Yasmeen taught Islamiat (Compulsory) and Pakistan Studies to Class 9th students, whereas her husband taught physics and General Maths to 9th class & 10th class. The appellant's husband undertook private tuition of the students of 8th, 9th and 10th classes at the request of parents and taught English and Maths. 9. They were asked to set question papers for the annual examination scheduled to be held w.e.f. 4.12.1994. The wife set question papers on Islamiat, whereas her husband on Maths. 10. According to appellants, an anonymous complaint was lodged with the principal to the effect that some papers were leaked, in which besides others both the appellants were implicated. 11. Consequently both the appellants' explanation was called by the Principal. Wife appellant was asked to explain, as to why unauthorised communications of official documents (question papers) were leaked to nonofficial persons (students) vide letter dated 11.12.1994 and further was advised to submit the reply by 12.12.1994. Whereas husband appellant was issued warning letter on 21.12.94, for not taking due interest in his official duties and further was asked to explain his position in that regard. Wife appellant made her reply denying the allegation on 12.12.1994 and the husband appellant on 22.12.1994. However both of them were issued warning on 28.12.1994. 12. A fact finding committee was appointed on 15.6.95 to investigate the leakage of some papers. For this purpose, the statements of the teachers as well as of students were recorded. The statements of the two appellants were also obtained. It was allegedly found that the appellants had leaked the papers for gratification. 13. Accordingly, they were issued charge sheet, alongwith the samestatement of allegation on 31st July, 1995. However, we are reproducing the one given to husband appellant for the sake of convenience :-- (a) While performing the duty as T & T, you taught tuition to the students of 9th class. Your wife Mrs. Ghazala Yasmeen, T & T, openly declared in the class room that those students who came for studies at their residence, would be divulged papers and helped in their passing the exam. Accordingly, you with help of your wife leaked out 5 question papers, i.e. Pakistan Studies, Islamiat (Comp) Urdu, English and Math (Genl) in the Annual Examination, 1994, which were later on photostated or dictated by the students to help each other. The leakage of the paper took place at your house in your presence with your active involvement. Ob) you accepted illegal gratification from the students in the name of tuition. 14. Lt. Col. Bashir A.Y. Anjura, was appointed as an Enquiry Officer to conduct the inquiry. The inquiry was conducted, and report completed. As per inquiry report, the charges of leakage of question papers and acceptance of illegal gratification were proved. Consequently the appellants were served with show cause notice, alongwith the report on 8.11.1995, although appellants alleged that they were not provided with enclosures and the evidence recorded by the Enquiry Officer. The appellants replied to show cause notice denying allegation on 27.11.1995. However, competent authority being not satisfied with reply and having found them guilty of misconduct imposed upon Mrs. Ghazala Yasmeen, the penalty of removal from service w.e.f. 15.1.1996 vide order dated 27th Feb' 1996 and upon her husband the penalty of stopping 4 annual increment with cumulative effect vide order dated 27th Feb' 96. 15. Mr. Fazal Hussain Chaudhry, the learned counsel for the appellants pleaded that all the disciplinary proceedings were initiated on basis of some anonymous complaint, which was to be destroyed in accordance with the instructions contained at SI. No. 451-452 of the Establishment Manual 1992. In the circumstances of those facts, the learned counsel argued that the action taken by the respondent would be void and unlawful. 16. Secondly, it was submitted that the appellants were warned on 28.12.1994 by the Principal and then penalised the wife by removing her from service and the husband's 4 increments were stopped with cumulative effect, vide order dated 27.2.1996 for the same allegation. It proved malafide intention. 17. Thirdly, he alleged that the inquiry was held at the back of the appellants. The statement recorded by the Inquiry Officer, were not supplied to the appellants and the statements of prosecution witnesses were not recorded on oath. The inquiry centred around oral evidence and based on un-authenticated evidence, biased, and contained remarks of Inquiry Officer. Vital documentary evidence viz papers set by the appellants, the question papers leaked out to the students by the appellants, the manuscripts of question papers set by the other teachers and leaked out by the appellants, were not produced on the eve of the inquiiy to enable the appellants to satisfy them about their authenticity. 18. Fourthly, it was argued that appellants set only 2 papers but were accused for leaking 5 papers. It was brought to notice of the bench, that M/s Niaz Muhammad Rahi, UGT and Muhammad Sohail, T G T were also charged for leaving question papers like the appellants, however, they were only imposed penalty of stoppage of increments whereas, appellants specially the wife has been removed from the service, on the same allegation. It was a clear case of discrimination on the part of the respondents. As such the penalty of removal from service while the appellant has 9 years unblemished record, was excessive and harsh. 19. Fifthly, it was submitted that the documents relied upon wereneither supplied nor shown to the appellants to defend themselves, which amounted to denial of their fundamental right to defend themselves. 20. Sixthly, it was alleged that the Enquiry Officer was biased. To support this allegation, it was pointed out that the appellants were addressed a letter dated 13.9.95 whereby they were induced to confess their alleged guilt, so that their case could be dealt with leniently. It was further alleged that instead of confining inquiry to only charges, the Enquiry Officer casted aspersion on the appellant wife vide para 7&9 of the report on page 6. Andfurther, recommended severe action against her, of which Enquiry Officer, according to the learned counsel, was not supposed to make. 21. Seventhly, it was contended that the charge sheet, show cause notice and impugned order, were issued by the authorised officer. The impugned order did not show if it was issued with approval of the competent authority. 22. Lastly, it was contended that the appellants were also not supplied with the enclosures of the enquiry report to enable them to submit fresh defence to a second show cause notice. 23. With these submissions, it was prayed, that the impugned orders be set aside, and the wife appellant reinstated in the service, with all back benefits. 24. The comments have been filed on behalf of the respondents where-in both the appeals have been resisted vehemently. 25. It has been stated that Mrs. Ghazala Yasmeen, T G T and her husband Mr. Suhail Khalid, T G T, both were transferred from F.G. School Khuzdar, on their now request in Jan., 1994. She alongwith her husband reported for duty on 13.1.94 at F.G. Public School, Landi Kotal. The appellant (wife) prepared the question papers on Islamiat (Compul) and herhusband prepared papers on Math of class 9 in November, 1994, before the annual examination, watch was to start from 4.12.94. Her husband taught tuition to the students at his home. The students mainly were pushed by the appellant (i.e. wife appellant) who openly declared in the class that those students, who come for studies at their (appellants) residence, will be toldpapers and helped in their passing the exam. The appellant (wife) became the main culprit. She used various tactics to get the students at her residencein the name of tuition, but accepted various amounts ranging from Rs. 175/- to Rs. 800/- each for leaking of the papers. For this she used duplicate copies of the question papers. A complaint was received in the Directorate in May, 1995. Accordingly a fact finding inquiry committee was constituted to ascertain the truth. The Committee held both the appellants responsible for leaking five papers. The Principal then cancelled the papers and prepared new ones. After the findings of the said Committee the appellants were charge sheeted vide letter dated 31.7.1996 and inquiry instituted to enquire into the matters. The inquiry officer held the appellants responsible for leakage of five papers. As such they were served with show cause notices alongwith statements of allegations vide letters dated 8.11.1995 and 4.1.1996. Both of them replied to the show cause notices, however, their reply was incomplete. They were also advised to attend the Directorate for their personal hearing, however, they did not avail of that opportunity within the stipulated time. As such major penalty was imposed on wife appellant and minor penalty was imposed on the husband appellant vide separate letters for each dated 27.2.1996. 26. Responding to the points raised by the learned counsel for the appellants, it has been stated vide the written comments that although it has been admitted that the inquiiy officer did write letters to the appellant, nevertheless it has been contended that they (letters) were meant to advise to confirm that charges contained in the charge sheet, and giving appellants, the full opportunity to defend their cases. Had they any doubt about the bad intention of the enquiry officer, they should have intimated the Directorate well in time before enquiry. However, the Directorate did not receive any application from the appellants in that regard. Nor it received any request to change the enquiry officer. As such the allegation was unfounded. 27. It is rebutted if the complaint received was anonymous. In fact it was made by one Haji Gul Khan Afridi of Khyber Agency. The fact finding committee held the appellants responsible for leakage of 5 papers namely, Pakistan Studies, Islamiat, Urdu, English and Maths (G), and acceptance of illegal gratification. It was also denied if the appellants were not suppliedwith the inclosures of the enquiiy report. On the request of the appellants, an other copy of the enquiiy report alongwith the annexures, was also supplied to them. 28. Admittedly, the appellant (wife) set question paper on the Islamiat, and her husband the question paper on Maths, but has subsequently been contended that when the Principal had told the teachers, who were teaching the same subjects to different sections of the same class,to peruse the relevant question papers, the appellant wife cleverly copied the question papers and kept them with her. Later on they were leaked to the students. 29. It has been controverted, if she was not afforded opportunity for the personal hearing. With these submissions it has been prayed to dismiss the appeals. 30. We have heard the parties at length and perused the record, available on the files. The perusal of the record reveals, that a written copy of complaint by one Haji Gul Khan is available on the file, which shows that claim of the learned counsel for the appellants that it was anonymous is notcorrect. As such the respondents were correct in their action to conduct the disciplinary proceedings against the appellants, in accordance with relevant laws. 31. The appellants were warned against the allegations vide letter dated 28.12.1994 by the Principal and then they were penalised for the same allegation. Such an action was termed by the learned counsel for the appellants as malaftde. But we do not subscribe to his view. Warning in our opinion was not the punishment nor it debarred the respondents from imposing the penalties on the appellants, when their guilt was proved. We, therefore, repeal his objection. 32. Perusal of the record further shows that the appellants were very -much associated with the enquiries. They were allowed to cross examination the witnesses. This disprove their allegation that the enquiry was conducted on their back. 33. The appellants claim, that charge sheet, the show cause notices as well as the impugned order were issued by the authorised officer. They complained that impugned order did not show if it was issued with approval of the competent authority. What actually they hint at is whether the impugned order was approved by the Secretary Defence, being the next higher authority, as the Director was the authorised officer. 34. In fact, the Principal should have been authorised officer and the Director, the Authority. In any way the Director in fact is the authority. Being the competent authority, the Director has correctly passed the order. Even otherwise, we are of the opinion that this is a technical objection, which does not affect the merits of the case. As such we repell this objection. 35. The appellants no doubt have been found guilty, but at the same time two other teachers, namely M/s Niaz Muhammad Rahi, UGT and Muhammad Suhail, T G T, were also found guilty in the same case. However, they were only imposed penalty of stoppage of increments, whereas, wife appellant was removed from service on the similar allegation.As such the respondents committed an act of discrimination, which act is not tenable under the law. Although, the husband appellant was treated like others. This is an important point to ponder. 36. Keeping in view this act of discrimination on the part of the respondents, we are of the opinion that it was against the onstitutional article 25. We therefore, convert the penalty of removal of the wife appellant from the service into stoppage of 4 annual increments with cumulative effect. She shall be reinstated and her period of absence from duty from the date she was removed from service till she joined afresh will be treated as leave due. However, the penalty imposed on her husband shall remain unchanged. 37. No order as to costs. 38. Parties be informed. (K.A.B.) Appeal accepted
PLJ 1997 Tr PLJ 1997 Tr.C. (Service) 237 [Federal Service Tribunal, Islamabad ] Present: abdul razzaq A. thahim, chairman and mr. roshan Au mangi, member. SALEEM JAHANGIR MIRZA-Appellant versus THE SECRETARY, MANAGEMENT SERVICE DIVISION, ISLAMABAD-Respondent Appeal No. 488(R)/96, accepted on 19.11.1996. Service Matter- Civil Servant a Deputy Director in Management Services-Request for permission to apply for post of Director in Ministry of Population Welfare, has not been granted-Challenge to-It is right of every civil servant to apply for higher post in order for better prospects and he cannot be debarred from doing so, especially when Establishment Division has already given its clearance to forward application. [P. 237] A Appellant in person. Mr. Khalid Abbas Khan, Federal Counsel for Respondent Department alongwith Mr. Saifullah, Asstt. Management Services Division, D.R. Date of hearing: 18.11.1996. judgment Roshan Ali Mangi, Member.Appellant Mr. Saleem Jehangir Mirza, Deputy Director, Management Services Division, who appeared in person, has a grievance against office order dated 12.8.1996 whereby his request for permission to apply for the post of Director, Ministry of Population Welfare, advertised by the FPSC, has not been granted. He, therefore, has come up in present appeal with the prayer that the respondent Ministry be directed to allow him the permission to apply for the said post. 2. Mr. Khalid Abbas Khan, the learned counsel appearing on behalf of the respondents stated at the bar that the matter was referred to the Establishment Division and that Division has agreed that the applications be forwarded but inspite of their advice, the Management Services Division is reluctant to forward the applications. The representative of the Management Services Division stated that since there is dearth of the officers, therefore, the department is not inclined to forward the application. 3. After hearing the parties, we are of the view that it is & right of every civil servant to apply for a higher post in order for better prospects and he cannot be debarred from doing so, especially when the EstablishmentDivision has already given its clearance to forward the application. We, therefore, direct the Management Services Division to immediately forward the application of the appellant to the FPSC and report compliance. 4. Ordered accordingly. (K.K.F.) Order accordingly.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 238 [Federal Service Tribunal, Islamabad ] Present: mr. node muhammad magsi, and mr. roshan ali mangi, members. SAJJAD ALI-Appellant versus CHIEF ENGINEER, HYDEL, NORTH WAPDA , WARSAK and two others- Respondents Appeal No. 56(P)/96, accepted on 14.11.1996. Adverse Remarks 'Foreman in WAPDA-A.C.R. of appellant containing adverse remarks- Challenge to-One would wonder that appellants, performance was rated very good during first 8 months of 1995 and was also given good pen picture, however, he was rated average during remaining 4 months of same year and was also awarded adverse remarks-Held: Evaluation of his performance of said period was subjective and biased-Appeal accepted and remarks expunged. [Pp. 242 & 243] A, B & C Appellant in person. Mr. Muhammad Latif, Advocate for Respondents, alongwith Mr. Dilawar Khan, Resident Engineer, D.R. Date of hearing: 12.11.1996. judgment Roshan Ali Mangi, Member.-Appellant Sajjad Ali, at present working as Foreman, Boni Power House, WAPDA, Chitral, has contested office order dated 21st May, 1996, whereby he has been communicated adverse remarks in his ACR for the period from 1.9.1995 to 31.12.1995. He submitted his departmental appeal by covering letter, dated 6.6.1996, to which reply was made by the Competent Authority vide letter dated 24.7.19£S, informing him, that his appeal was not acceded to. He, therefore, approached this Tribunal by way of this appeal on 8.9.1996, and again on pointing out certain i aadequecies on 15.9.1996. 2. The assessment and adverse remarks communicated to the appellant in his ACR for the period from 1.9.1995 to 31.12.1995 are reproduced below: "Part IV Final Assessment and Recommendations. 17 - d. Average. 18 - c . Not yet fit for promotion. Part V Reporting Officer's remarks. 20 - I.O The Officer has average performance. 21 - TRO "The officer under report remained involved in politics and irrelevant activities. He as a punishment was transferred to Booni Chitral. His reputation has been viewed suspected by every individual of this P/Station." 3. The appellant who appeared in person, pleaded that the above remarks were awarded to him in his said ACR by the Assistant Resident Engineer under the influence and coercive pressure of Resident Engineer , Dargai . As such they were incorrect, baseless and contrary to the facts, henceliable to be reversed on the following grounds:- (a) that during his service, all his ACRs had been upto the mark, because he had been working honestly through/the entire period of his service. (b) that during the period of the said ACR, he did not commit any illegal act. (c) that prior to the award of the said ACR, no notice was served upon him, no warning was issued to him and no explanation was called from him. (d) that the Resident Engineer, Dargai, had developed a personal grudge against the appellant, and the ACR in question is the result of that grudge. 3-A. With these submissions, it has been prayed to expunge the adverse remarks. 4. The preliminary objections have also been filed on behalf of the respondent. At the very out set, the learned counsel for the respondent , raised the question of time limitation. 5. Therefore, we shall take up first this issue. The appellant was communicated adverse remarks vide letter dated 21.5.1996. Against which he preferred departmental appeal vide covering letter dated 6.6.1996. It wasresponded to on 24.7.1996, informing the appellant that his request was not acceded to. In the same letter he was advised to appear before the competent authority for personal hearing. The appellant was heard personally on 24.8.1996. Again he submitted another departmental appeal on 3.9.1996, which appears un-responded to, i.e. why he approached Tribunal by way of this appeal first on 8.9.1996, which probably was inadequate, therefore, later on 15.9.1996. 6. The learned counsel for the respondent was right, when he pointed out that the request of the appellant was not acceded to on 24.7.1996, he should therefore, have approached the Tribunal within the stipulated period of 30 days according to the law, i.e. on 25.8.1996. However , he approached the Tribunal on 8.9.1996 i.e. about 14 days later. 7. But when that said impugned order also contained the offer to the appellant for personal hearing before the competent authority and since it was pregnant with some hope, therefore, he chose to wait and exercise it , which he did obviously on 24.8.1996. 8. However, this waiting for personal hearing cannot be treated as intentional. He did not sleep over it. He was continuously perusing his case. Unfortunately he could not succeed. Whatever the position, we condone sucha delay, if any, under the circumstance of the case. 9. The learned counsel for the respondent further alleged that theappellant had manipulated the ACR for the period 1.1.1995 to 31.8.1995. And the said report was not available on the record. He also raised the objection, that the appeal was bad for non-joinder of necessary party viz. WAPDA and observed that it was liable to be dismissed on that account only. 10. On the merit, the learned counsel stated that conduct of the appellant during the said period remained destructive to the department. He had started irrelevant activities such as gathering of WAPDA employees inside the sensitive areas of Dargai Power House during his duty hours. His behaviour with his officers was highly improper, disgraceful and contemptuous. He was in the habit of using abusive language against respondent No. 3. In this regard the learned counsel took us to papers placed on the record containing his comments and observation regarding his superiors. 11. The learned counsel further alleged that the appellant was in the habit of writing annonymous applications/letters to the high officers. He forged a news paper statement of some body else and entered the name of Mr. Dilawar Khan, Resident Engineer-respondent No. 2-in the photostat copy of same and circulated the same to high officers which created a very bad situation for the respondent No. 2 till the time, the position was exclained by respondent No. 2. 12. It was brought to the notice of bar that prior to the award of adverse remarks, the appellant was given advise/warning to refrain from destructive activities. 13. The claim of the appellant that he was awarded adverse remarksunder the influence of Resident Engineer was denied. 14. With these submissions, it has been prayed to dismiss the appeal. 15. We have heard the parties and perused the record. 16. The perusal of the two letters, dated 10.12.1995 and 11.12.1995 respectively and written by the appellant to the Resident Engineer, Dargai reveal that he (appellant) had made complaint against the behaviour and activities of one Muhammad Akram, Driver. The appellant had clearly brought out in those letters that the said driver had not only threatened him of getting him transferred to Chitral, as he (the driver) was assured by Resident Engineer that he would do so, if he (driver) desired any body to transfer to Chitral, but also asked the appellant to stop taking interest in Union Election. 17. He had, therefore, stated in the said letter, that he would keep himself aloof from election if the Resident Engineer desired so. Subsequently the Resident Engineer was requested to stop the said driver from insulting the other employees and to refrain from those activities. 18. A joint application again was addressed to Resident Engineer by the employees of the Dargai Power Station on 11.12.1995 complaining therein against the undesirable behaviour of the said driver, with a request to restrain him from those activities. 19. The appellant, therefore, alleged the said driver to have poisoned the ears of the Resident Engineer and thereby became instrumental in getting the appellant adverse report. This he has also alleged in his memo of the appeal. 20. The respondent side on the other hand countered this allegation of the appellant and clarified that the said driver was neither powerful nor influential to pressurise the officers to write adverse ACR of the appellant for the said period. 21. However, we are of the opinion that the very fact, that respondent had defended the said driver against whom the appellant had made a complaint to the Resident Engineer with the request to stop his undesirable behaviour. However, even then no action was taken shows that there must be some-thing fishy. Hence the appellant has got eveiy right to suspect the said driver to have influenced the impression of the ResidentEngineer regarding the appellant adversely, specially when the appellant who seems big mouthed as it appears from his written statements produced by the respondent before the Bench. 22. The events start with advice to the appellant in writing vide letter dated 14.9.1995. He is alleged to have made politics by gathering staff inside the Power House and used the unparliamentary language against the Resident Engineer and High ups. He, therefore, is advised to be careful in future otherwise it will be reflected in his ACR for the period ending 1995. Also he could be recommended for transfer from the Power Station. 23. Again the Resident Engineer addressed another letter to the appellant with a copy of that letter to Chief Engineer on 17.12.1995. He repeated the same allegations and further alleged him that the appellant and his other colleagues threatened him Le. the Resident Engineer with dire consequences that kind of malafide intention, therefore, had been seriously viewed by him (Resident Engineer) and as such were not to able any more and would be mentioned in his CR "As Adverse Remarks" for the period 1995 besides, recommending his case for transfer from the Division. 24. On 27.12.1995, the Resident Engineer wrote a letter to the Chief Engineer to transfer the appellant alleging him to have indulged in politics and thereby vitiated the atmosphere, and created problems for him (Resident Engineer). Accordingly he was transferred to Chitral. 25. From the above, it is clear that events which seems to have been pre-planned started on 14.9.1995 with an advice to appellant. On 17.12.1995 , he was against asked to mend his ways or he would be given adverse remarks in his ACR for the year ending 1995, and would also be recommended for transfer. Ten days thereafter Le. on 27.12.1995 , his transfer was recommended; and subsequently the appellant was transferred to Chitral and ultimately awarded adverse remarks as already intimated earlier for the period from 1.9.1995 to 31.12.1995. This all was done within a period of three months, that the appellant worked under the Resident Engineer. 26. The appellant has produced his ACR for the period from 1.1.1995 to 31.8.1995 and reveals that he has been rated very good through out. His reporting officer in the pen picture has rated "the officer is very hard working, most intelligent and honest and fit for promotion." 27. From the above, the contradiction between the two assessments of the performance of the appellant appears quite obvious. 28. One would wonder that the appellant's performance was rated very good during the first 8 months of 1995 and was also given good penpicture, however, he was rated average during the remaining 4 months of the same year and was also awarded adverse remarks. 29. The claim of the appellant was that through out his career hisrecord had been good. This was not contradicted by the respondent Since , no such record was placed either on the file or produced any, at the time of regular hearing before Tribunal. 30. And the fact that the learned counsel for the respondents agitated and objected the placing of the ACR by the appellant for the period from 1.1.1995 to 31.8.1995 on the file and further observing that such a document was fraudulently obtained, of which he was not supposed, show that he was aware of such a document which would negate the evaluation made by the Asstt Resident Engineer. As such agitation of the learnedcounsel for the respondent against production of such a document was natural. 31. The upshot of the above discussion is that the events and the two different just opposite assessments of the appellant's performance in our opinion creates in our mind, a doubt if the one given to the appellant for the period in question was not biased and influenced by the situation as created by the driver Muhammad Akram, whom the appellant alleged. 32. One would question if the appellants earlier period of eight months of his performance is rated very good and he is given good pen picture, how would the later period of 4 months of his performance become average and he was given adverse remarks. We are sorry, cannot subscribe B to that view. It appears that appellant's evaluation of his performance of the said period was subjective and biased. 33. As regards the allegations that the appellant is in the habit of writing annonymous applications/letters to high ups, and that he forged a newspaper statement of some body and entered the name of Resident Engineer (Mr. Dilawar) respondent No. 2 in the photostat copy of the same and circulated the same to high ups, which created a very bad situation for him (Respondent No. 2) till the time the position was explained by the respondent No. 2. It is a settled law that the anonymous applications/letters are not be relied and acted on. The respondent side have not produced any document to establish, that act of forgery was committed by the appellant Inview of the position, we cannot say that the appellant did the same. 34. In the result, we accepted the appeal, expunge the remarks given to appellant, for the period from 1.9.1995 to 31.12.1995, and up grade his average to a good grade. 35. No order as to costs. 36. Parties be informed. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C . (Services) 244 [Federal Service Tribunal, Islamabad ] Present: MR. NOOR MUHAMMAD MAGSI AND mr. muhammad raza khan, members. M. UMAR KHAN MOHMAND-Appellant versus FEDERATION OF PAKISTAN and 2 others-Respondents Appeal No. 73(P) of 1995, accepted on 29.10.1996. ( i ) Civil Servants Act, 1973 (LXXI of 1973)-- S. 22(2) read with S. 4(b) of Service Tribunals Act, 1973-Appellant working as Inspecting Addl. Commissioner, Incometax at Peshawar- Superseded by certain officers promoted to posts of Commissioner Incometax -Challenge to-Whether promotion is vested right of appellant- -Question of-If person not considered for promotion, Tribunal can lookinto circumstances whereunder he was ignored for such consideration- If civil servant concerned, has been deprived of facility of consideration, Tribunal can certainly direct that he may be considered to protect his vested right in this contextHeld: Appellant can neither demand his promotion nor appeal in this context was maintainable before Tribunal as per section 4(l)(b) of Service Tribunals Act, 1973. [P. 245] A & B (ii) Deferment-- Appellant recommended for promotion by Selection Board, but competent authority deferred his promotion-In what cases deferment can be ordered-Question of-Recommended Civil Servant cannot be deferred without any reason-There is clear policy regulating deferment and supersession Held: Deferment is ordered only where recommending authority has insufficient record before it and consideration and evaluation of
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 247 [Federal Service Tribunal, Islamabad] Present: mr. nook muhammad magsi and muhammad raza khan, members. SHAH NAWAZ-Appellant versus CHAIRMAN WAPDA, LAHORE and 3 others-Respondents Appeal No. 48(P)/1996, accepted on 29.10.1996. (i) Removal from Service- Removal of appellant from service in ex parte action-Challenge to Whether service through officer of appellant was proper service- Question of--Admittedly, WAPDA is one of biggest Institution in country but it cannot be presumed that it was bigger enough to loose track of employees particularly within range of same Area Electricity Board-Representative of respondent Department could not furnish any proof of service of any notice on appellant directly-Incurable defect in procedure had occurred as appellant was neither associated in inquiry proceedings nor was given final Show Cause Notice-Held: Appellant was not served properly directing him to appear personally to explain his view point. [P. 248] A (ii) WAPDA Employees (Efficiency and Discipline), Rules, 1979- Removal of Senior Clerk from service by S.E. although Chief Engineer was his appointing/Promoting Authority-Whether removal of appellant was lawful-Question of-Under WAPDA Employees (Efficiency and Discipline) Rules, 1978, Competent Authority to impose major penalty is appointing authority or further higher authority, but not authority subordinate to appointing authority-Perusal of office order shows that appointing authority for senior clerk by direct recruitment was Chief Engineer or Superintending Engineer, but authority competent to promote official as senior clerk was Chief Engineer only-Since appointing/Promoting Authority was Chief Engineer only, therefore, authority competent to impose major penalty will also be Chief Engineer , for appellant-Superintending Engineer can be competent authority for direct recruits, if any-Held: Respondent No. 3 was not competent authority to impose major penalty on officials in B. 7-Appeal accepted. [P. 249] B & C Mr. Abdul Wahid, Advocate for Appellant Ch. Muhammad Latif, Advocate for WAPDA alongwith Mr. Sabz Ali, Assistant and Mr. Gulzada, Senior Clerk, Chief Engineer Office, Peshawar, D.Rs. Date of hearing: 10.10.1996. judgment Muhammad Raza Khan, Member.-The appellant has been in service of WAPDA for almost 14 years. He joined as Junior Clerk and was alter on promoted as Senior Clerk. He was holding this appointment at various stations. On 21.12.1994 a letter of explanation was served on the appellant in connection with the installation of a three phase meter at a service station on the basis of a forged reconnection form. The appellant replied to the said notice on 31.12.1994. No further steps was allegedly taken against him and vide an order dated 4.4.1995 the respondent No. 3 imposed a major penalty of removal from service. After seeking departmental remedy, which was finally rejected on 18.6.1996 and communicated to him vide a letter dated 13.7.1996, the appellant has filed the present appeal under section 4 of the Service Tribunals Act, 1973. 2. The respondent-department contested the case. Objections were filed, supported by the relevant documents. We have listened to the argument on behalf of the parties. The main objection of the appellant was that the allegations contained in the original letter of explanation pertain to a question of fact, which allegation was denied and, therefore, it was necessary for the respondent-department to have held proper inquiry which was not conducted, it is an established principle that the controvercial facts are to be proved against the employes by holding regular inquiry wherein the employee concerned has to be associated with full opportunity to examine the record, cross-examine the witnesses and to avail the opportunity of personal hearing for the proper explanation of the controversy. No such steps appear to have been taken in this case. The impugned order of removal from service contained a phrase that a penalty was being imposed as an ex parte action for the failure on the part of the appellant to furnish his defence reply and to appear for personal hearing. The appellant, on the other hand, alleges that the said letters asking for defence or personal hearing were never delivered to him nor these letters v. r ere addressed to him at the station where he was posted. The representatives of the respondent-department were of the view that the appellant was served through his next officer on the basis of available address but the appellant states that he was transferred in the meanwhile to another station and no notice whatsoever was received by him at that Station. Admittedly, WAPDA is one of the biggest institution in the country but it cannot be presumed that it was bigger enough to loose track of employees particularly within the range of the same area Electricity Board. No effort appears to have been taken to serve the notices on the appellant or to get him associated with the proceedings of the inquiry. The representatives of respondent-department could not furnish any proof of service of any notice on the appellant directly. Thus we have to hold that the incurable defect in the procedure had occurred as the appellant was neither associated in the inquiry proceedings nor was given the final show cause notice. He was also not served properly directing him to appear personal to explain his view point. 3. Another vital defect in the impugned order imposing of penalty of removal from service was that the appellant was working as a Senior Clerk in B-7, and admittedly the Chief Engineer was the appointing/promoting Authority for the Senior Clerk. The Superintending Engineer i.e. respondent No. 3 was not the competent authority to impose major penally of removal from service on Senior Clerk in B-7. Under the WAPDA Employees (Efficiency and Discipline) Rules, 1978, the competent authority to impose the major penalty is the appointing authority or further higher authority but not an authority subordinate to the appointing authority. The respondentdepartment was provided sufficient time by us to prove that either the respondent No. 3 was the appointing authority for the appellant in B-7 or he was so designated by any notification of WAPDA. The representatives of the respondent-department admitted after consultation of record that the appointing authority for B-7 official was the Chairman, Area Electricity Board and they produced a copy of an office order dated 10.1.1975, whereby certain powers were delgated to various authorities. The perusal of the said Office Order shows that the appointing authority for Senior Clerk by direct recruitment was the Chief Engineer or the Superintending Engineer, but the authority competent to promote an official as Senior Clerk was the Chief Engineer only. Similarly in the next column relating to the description of .the authority competent to impose major penalty, the name of the Chief Engineer and Superintending Engineer is mentioned but, since the appointing/promoting authority was the Chief Engineer only, therefore, the authority competent to impose major penalty will also be the Chief Engineer for the appellant. The Superintending Engineer can be the competent authority for direct recruits, if any. The learned counsel for the respondents argued that the appellant had filed the appeal to the Chief Engineer and, therefore, he had practically considered him as the next higher authority/the appellate authority and so the penalty imposed by the respondent No. 3 was in order. This argument does not contain any force because the impugned order was passed by the Superintending Engineer and the appellant had not choice but to file appeal to the Chief Engineer as next higher authority. Further, if the Chief Engineer was not competent to dispose of the appeal, he was bound to refer the matter to the authority, competent to act as the appellate authority. But the addressing of the appeal to the Chairman, Area Electricity Board does not amount to confer the appellate powers on him nor does it divest him of the powers of the competent authority to impose major penalty under WAPDA Employees (Efficiency and Discipline) Rules, 1978. Thus we hold that the respondent No. 3 was not the competent authority to impose major penalty on officials in B-7. In the light of the above observation we accept this appeal, set aside the impugned order dated 4.4.1995 and 20.6.1996 read with letter dated 13.7.1996 and direct that the appellant may be reinstated into service forthwith. The respondent-department will, however, at liberty to conduct regular inquiiy on the same charge if so advised. However, if the inquiry proceedings are not completed within a period of three months, the reinstatement of the appellant will be deemed to be with all consequential benefits. 4. No order as to costs. 5. Parties be informed. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 250 [Labour Appellate Tribunal, Lahore ) Present: mian ghulam ahmad, chairman. Mian WARIS All-Petitioner versus REGISTER OF TRADE UNIONS, LAHORE REGION (NORTH ZONE) LAHORE and 2 others-Respondents Revision No. 653/1996, dismissed on 22.12.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 8(7)--Orders of Labour Court allowing respondents to become partiesto proceeding in appeal-Challenge to--Synopsis of written arguments submitted by learned counsel for respondent available on file of revision petition makes it abundantly clear that petitioner, on one hand and respondents No. 2 and 3, on the other, have been tagged in litigation before N.I.R.C., as also honourable High Court, both forums having been approached twice-By no stretch of imagination, as such, it can be urged by revision petitioner that respondents No. 2 and 3 are not necessary, not even proper parties to proceedings before Labour Court-Held: Respondent No. 2 and 3 are necessary parties and learned lower Court in ordering their impleadment has committed no wrong-Revision petition being devoid of merit is accordingly dismissed. [P. 251] A Rana Abdul Hamid Talib, Advocate for Petitioner. Mr. Anwar Hussain Butt, Senior Clerk for Respondent No. 1. Respondents No. 2 and 3 in person. Date of hearing: 18.12.1996. judgment By way of the present revision petition has been called in question the validity/soundness of an order dated 28.7.1996, passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore, allowing an application of Liaqat Ali Malik and Farhat AH Khan, respondents No. 2 and 3, for becoming parties to the proceedings of an appeal filed under section 8(7), Industrial Relations Ordinance, 1969, by Mian Waris Ali, Registrar of the Trade Unions, Lahore Region having originally been arrayed as the only respondent. 2. According to Waris ALi, he alone could bring under challenge the Registrar's order dated 29.2.1996, whereby the proceedings of an amendment having been made in the constitution of the union, extending the term of office-bearers from one year to two years, were not approved. Learned counsel for the revision-petitioner, appellant before the Labour Court, has placed reliance on PLJ 1982 Karachi 414. In the said ruling, however, it has been held that remedy respecting Registrar's refusal to notify or approve an alteration in the constitution or a change of office-bearers of a union, would be available to the aggrieved trade union and not to a group of newly-elected office-bearers. The authority, I must say, is being misconstrued by the petitioner/his counsel. Mian Waris Ali claims to be the President of PAD&SC Headquarters Employees Union, having originally been elected for a year, and having extended his term to two years. The Registrar had refused to concur; and as an aggrieved person, Waris Ali had approached the Labour Court in the matter. His appeal filed under section 8(7) of the Industrial Relations Ordinance, 1969 may be treated as competent; but the submission made by those having newly been elected as office-bearers of the union, on expiry of term of one year, would be a different thing. What they urge is that without their impleadment in the proceedings, correct state of affairs may not be brought to the notice of the Labour Court and an adverse order by the Labour Court would directly affect their status. They claim to have (amongst others) been elected respectively as President and General Secretary of the union for the nex£ term. Mian Waris Ali, however, refused to recognise them. 3. Annual elections, having been held on 11.1.1995, for one year, the next election was due in January, 1996. Mian Waris Ali, however, with unholy intentions, and with a view to foist himself alongwith his hirelings, on the set-up, had refused to take steps for the fresh election, and actually in May, 1995 he allegedly fabricated the proceedings, converting the term of office-bearers to two years instead of one year. Respondents No. 2 and 3 lodged complaints with the Registrar in October, 1995 and they alsorequested the Registrar to see to it that the elections were held as per schedule. The Registrar rejected the proceedings dated 2.5.1995 and asked the petitioner to declare the schedule of elections of the union for the year 1996. The petitioner, however, did not respond, as he had lost the support ofthe majority of the workers. 4. Synopsis of the written arguments submitted by the learned counsel for the respondents, available on the file of the revision petition, makes it abundantly clear that Mian Waris Ali, petitioner, one hand, and Liaqat Ali Malik and Farhat Ali Khan, respondents No. 2 and 3, on the other, have been tagged in litigation, before the N.I.R.C., as also the honourable High Court, both forums having been approached twice. By no stretch of imagination, as such, it can be urged by the revision-petitioner that respondents No, 2 and 3 are not necessary, not even proper parties to the proceedings before the Labour Court . In obedience to the direction of the Labour Court , Liaqat Ali and Farhat Ali, have already been arrayed as respondents No. 2 and 3. Election for the year 1997 is due in January; but the litigation has hampered the process and the exercise of fresh elections will obviously be held up. According to respondents No. 2 and 3, the petitioner is interested in delaying the process, which eventuality, I feel, would be in nobody's interests. I have no doubt in my mind that Liaqat Ali and Farhat Ali are necessary parties; and the learned lower court in ordering their impleadment has committed no wrong. The impugned order is un exceptionable and the revision petition, being devoid of merit, is hereby dismissed, with costs. 5. The learned Labour Court shall proceed with the main matter and dispose it of expeditiously. (B.T.) Petition dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 252 [Labour Appellate Tribunal, Lahore ] Present: mian ghulam ahmad, chairman PUNJAB INDUSTRIAL DEVELOPMENT BOARD through its MANAGING DIRECTOR, LAHORE-Appellant versus Mrs. MUBASHRA BASHARAT etc.-Respondents Appeal No. MN-276/93- Punjab , dismissed on 19.12.1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A~Whether Grievance Notice drafted by Advocate is not valid- Question of-It would be stupid plea to urge that grievance notice served by Basharat Ahmed on management was drafted by Advocate and this could not be treated as valid notice-If such notice could emanate from aggrieved person, there was no reason why Advocate could not draft it or send it or address it to establishment on behalf of aggrieved officer. [P. 254] A (iij Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A-Whether grievance notice should contain all averments and allegations-Question of-It is not necessary that grievance notice should contain all , averments and allegations which subsequently grievance petition has to embody-Held: There is no such requirement in law. [P. 254] B (iii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25-A-Termination of Service as P.A. to General Manager and appointment as Labour officer on re-instatement-Whether acceptance of new assignment in supersession of post of P.A. amounted to waiver of his grievance against establishment-Question of--Even though he had accepted fresh appointment as Labour Officer with same establishmentthat did not imply ipso facto that he had no claim against establishment as regards his re-instatement in set-vice throughout or his claim to back benefits as P.A.-He did not signify his intention to waive his dues asP.A., either by words or by conduct-Held: There is no wrong with conclusion drawn by Labour Court-Appeal devoid of force, accordingly dismissed. [P. 255] C & D Date of hearing: 11.12.1996 judgment The appeal is directed against the decision dated 14.6.1993, rendered by the learned Presiding Officer, Punjab Labour Court No. 9, at Multan, accepting the grievance petition, filed under section 25-A of the Industrial Relations Ordinance, 1969, by Basharat Ahmad, whose services as Labour Officer were terminated with effect from 17.4.1984. Following are the facts, but it may be mentioned here that during the pendency of the appeal, Basharat Ahmad unfortunately expired, and he was replaced by his legal heirs, widow, three daughters and two sons. 2. Basharat Ahmad was recruited on 31.10.1982 as Incharge-timeoffice and was confirmed on 30.4.1983. Thereafter he became P.A. to the General Manager, with effect from 1.6.1983. The Assistant Commissioner, Dera Ghazi Khan asked the management of the Ghazi Textile Mills Ltd., D.G. Khan, to change his assignment, but instead of doing that, the management terminated his services with effect from 17.4.1984. Later on,there was a correspondence between the mill management and the learned Commissioner, D.G. Khan Division, on the subject. The stand taken up by the management was that Basharat Ahmad was working against the interests of the establishment, disclosed its secrets and his conduct amounted to corruption on his part. Basharat Ahmad maintained that he had fallen prey to religious prejudice and there was nothing materially against him and he, therefore, deserved his reinstatement in service, with all the back benefits, including costs of the litigation. 3. In the course of his service, Basharat Ahmad was once appointed as Labour Officer and the stand point taken up by the establishment was that it carried pay of Rs. 5,000/- per month, and the employee as such could not be treated as a workman, entitled to protection of labour laws, to be enforced through the competent Labour Court. It was also maintained that having received the total amount, due to him, and accepted the post of Labour Officer, in supersession of the post of P.A., Basharat Ahmad had in fact, waived all his grievances, if anv, against the establishment. This plea of the mill management prevailed with the Labour Court, and Basharat Ahmad's grievance petition was dismissed, as being based on no sound premises. When Basharat Ahmad, however, went in appeal, he was successful and this Tribunal remanded the case to the Labour Court for redecision, particularly of the question of waiver. The learned Labour Court passed a fresh order on 14.6.1993, accepting Basharat Ahmad's grievance petition, and setting aside the order dated 17.4.1983, terminating his services. He was directed to be reinstated in service with back befits, minus, of course, the dues he had already received from the mill management as labour Officer. It was observed that for creating good relationship between the parties they would bear their respective costs of the litigation. 4. The question of waiver has come under consideration of the Labour Court in an objective way, I must say. It has been said that waiver is either by words or by conduct and that there is no evidence about Basharat Ahmad having waived his grievance by words. Similarly, it was pronounced, waiver by conduct was not proved against him, as had he intended to do so, he would not have pressed his grievance petition and the management should have insisted upon its withdrawal, before re-employing Basharat Ahmad as Labour Officer. If there was a compromise between the parties, it won couched in no concrete terms but was vague, with the result that Basharat Ahmad's grievance petition remained pending throughout, and it was not rolled back. 5. Basharat Ahmad's grade as Incharge-time-office was Rs. 400-35- 750/50-1000, and he drew Grade 8 as P.A. when however subsequently he was promoted as Labour Officer, his monthly salary was enhanced to Rs. 5,000/-. It was rightly observed by the learned lower court that if his activities amounted to corrupt practices or mal-practices on his part, it did warrant a probe and a regular enquiry. The management did not serve on him any show-cause notice and did not communicate to him any reason for his dismissal from service as P.A. Even if as "Ahmadi" his activities were considered to be prejudicial to good order, or dangerous for the mill management, he should have been charge-sheeted and made to face an enquiry. But such requisite formalities were dispensed with, and the establishment just terminated his services which order was held, and rightly so, to be unsustainable in law. Actually, it appeared, religious prejudices have worked against him and the same resulted in his dismissal from service. It would be a stupid plea to urge that the grievance notice served by Basharat Ahmad on the management was drafted by an Advocate and this A| could not be treated as a valid notice. If such notice could emanate from the aggrieved persons, there was no reason why an Advocate could not draft it or send it or address it to the establishment on behalf of the aggrieved officer. It is at the same time, not necessary that a grievance notice should contain all the averments and allegations which subsequently the grievance petition has to embody. There is no such requirement in law. 6. The argument advanced by the Labour Court in holding late Basharat Ahmad not to have waived his rights, or slept over his grievances, must be taken to be well-based, for the reason, that he did not during his life-time expressly waive his rights and did adhere to his entitlement to claim his reinstatement in service with back benefits. Even though he had accepted fresh appointment as Labour Officer, with the same establishment, that did not imply if so facto that he had no claim against the establishment as regards his reinstatement in service throughout or his claim to back benefits as P.A. Had he intended to do so, he could clearly express himself before the Labour Court, or before the establishment, with or without the intervention of the Labour Court, that he was withdrawing his grievance petition and giving up his claim to all dues accruable to him as P.A., continuing to be P.A. incessantly in service of the Ghazi Textile Mills, with no break. Since he did not signify his intention to waive his right to continuity in service, or to his dues as P.A., either by words or by conduct, he was rightly held by the Labour court to have entitlement to that, inspite of the fact that the establishment had taken him on its rolls, in promoted capacity as Labour Officer, with higher status and salary. I do not find any wrong with the conclusion drawn by the Labour Court and would endorse it in toto. The appeal preferred by the management against the decision of the Labour Court is devoid offeree and is hereby dismissed with costs. 7. Dues shall be calculated by the mill management and paid to the unfortunate legal heirs of Basharat Ahmad deceased, who have by all means a right to receive the same, now that Basharat Ahmad is no longer alive, in service of the establishment. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 255 [Labour Appellate Tribunal, Lahore ] Present: mian ghulam ahmad, chairman. MANAGING DIRECTOR/EMPLOYER, JUBILEE TEXTILE INDUSTRIES (PVT) LTD. FAISALABAD-Appellant versus MUNIR AHMAD and 2 others-Respondents (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)- -S. 25-A~Re-iristatement of employees by Labour Court with full back benefits-Challenge to-Whether employees were serving elsewhere during intervening period and could claim back benefits-Question ofIt has not been possible for appellant to convince court below on strength of reliable evidence that these persons had got employment in some other industry, and they were only exploiting or black-mailing former establishment and employer, by dragging them into litigation for furtherance of their nefarious and selfish ends-Held: They must have been through veiy hard and ominous time, on having remained joblessfor number of years-These three persons are awarded half of back benefits-Appeal dismissed. [Pp. 257 & 258] A & C (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Re-instatement of employee with full back benefits-Challenge to-In urging that workmen had themselves stopped coming to Mill and, of their sweet will, had deserted or discontinued service, cannot conveniently be availed of against of employees, as establishment has not been able to bring any evidence on record, to satisfaction of court that they had voluntarily abandoned service-Held: Plea that their services would be deemed to have come to an end, once had voluntarily discontinued coming to premises to perform heir duties cannot be upheld. [P. 258] B Mr. M. A. Javed, Advocate for Appellant. Mr. Naimatullah Khan, Advocate for Respondents. Date of hearing: 21.10.1996. judgment Pir Akhtar Hussain Bodla, learned Presiding Officer, Punjab Labour Court No. 4, Faisalabad , on 17.2.1993, ordered reinstatement of Munir Ahmad, Muhammad Rafiq and Nazir Ahmad with full back benefits. The Managing Director of the Jubilee Textile Industries, Abdullahpur, Faisalabad has preferred the present appeal, assailing the soundness of the aforesaid decision. 2. As many as eleven employees, including the aforesaid persons, had on 5.3.1989 filed a grievance petition in the Labour Court at Faisalabad , under section 25-A, Industrial Relations Ordinance, 1969. They were employees of the Industry, although, according to the employer, all these people, except Munir Ahmad, Muhammad Rafiq and Nazir Ahmad, had never served the establishment and as such had no locus standi to approach the Labour Court for enforcing their service rights. As regards the aforementioned three persons, it was asserted by the employer before the Labour Court that they were only temporary employees and had left the sendee voluntarily on 1.1.1989, since when they had been serving some other industry at Faisalabad . It was added that they were not signatories to the grievance petition. It was contended that the Managing Director of the concern was not actually the employer, had improperly or unnecessarily been made a party to the proceedings and the proper person had not been impleaded as respondent before the Labour Court. Yet another objection taken up by the respondent before the Labour Court was that the petitioners there had not served any grievance notice upon the employer, without which the grievance petition could not proceed. 3. Muhammad Azam, one of the petitioners in the Labour Court, made his statement (as PW-2), and another person, Muhammad Ashraf was also examined as a witness (PW-1). Muhammad Ashraf, having been removed from service of the Industry, in question, was treated by the Labour Court to be an interested and inimical and not an independence or a truth ful witness, having a back-ground of hostility against the establishment. The learned lower court, however, considered the statement of Muhammad Azam PW-2, besides going through the relevant record, in coming to certain conclusions, which, I do not think, are in any way incorrect or un-sound. The relevant register carried the names of Munir Ahmad, Muhammad Rafiq and Nazir Ahmad only, and not the other eight persons, as employees of the Industry. As already said, the respondent before the Labour Court, appellant before this forum, had maintained that these persons also had opted to stage exist from the fold of the establishment, as probably they had got more lucrative jobs elsewhere. 4. Normally, during these difficult times, when unemployment is the order of the day, no person, who has got a job some where, would leave it, since he and his family would just starve, the prices of commodities of daily use having rocketed sky-high. In line with the learned Labour Court, I am not prepared to believe that the above-mentioned three persons had abandoned employment, of their own accord. The appellant, as respondent in the lower court, had not been able to lead any worth-while evidence to establish the assertion that Munir, Rafiq and Nazir had left the service, without being asked or forced by the establishment to do so. Had they doneit voluntarily, there was no earthly reason why they should have afterwards approached the Labour Court and invoked aid of the Labour Laws for reemployment. It has not been possible for the appellant to convince the court below, on the strength of reliable evidence, that these persons had go employment in some other industiy, and they were only exploiting or black mailing the former establishment and the employer, by dragging them into litigation for furtherance of their nefarious and selfish ends. 5. Admittedly, Rafiq, Munir and Nazir were not intimated, throughany order in writing, that their services were no longer required or that they were being ousted from service for any other reason or on a charge of misconduct etc. against them. Their services were terminated orally and this incidence obviously was violative of the provisions of Standing Order 12(3) of the Standing Orders Ordinance VI of 1968. They were required to be served with show-cause notices and charge-sheets and were also to face regular inquiries, before their services could be dispensed with, which could also not be done without proof of any allegations against them and not just by observance of legal formalities on paper. In so far as the objection about absence of grievance notice, taken up by the employer, is concerned, it stands falsified by the documents Exhs. P-4, 5 7 10, as also the postal receipts Exhs. P 26, 27 & 32. The notices despatched by registered post were returned onrefusal by the addressees, as indicated by Exhs. P-15, 16 21. The technical objection about non-maintainability of the grievance petition thus turns out to be having no substance. The grievance petition, as also the power of attorney in the name of Ch. Naimatullah Khan, Advocate, who had drafted and filed the petition, carry the signatures of all the employees, and it will not be proper, as also safe, to give credence to the assertion of the employer that the grievance petition had been filed in the Labour Court in an un authorized manner, as the learned counsel or his clerk had himself affixed the signatures of all of them. 6. The grievance petition, to the extent of Munir Ahmad, Muhammad Rafiq and Nazir Ahmad, had rightly been allowed, and as regards others it had been dismissed on perfectly valid premises. The authorities cited by the learned counsel for the appellant, as 1991 SCMR 2087, NLR 1929 Labour 130 (Karachi High Court) and 1984 PLC 631 (Labour Appellate Tribunal Punjab), in urging that the workmen had T3 themselves stopped coming to the mill and, of their sweet-will, had deserted or dis-continued service, cannot conveniently be availed of against of the employees, as the establishment has not been able to bring any evidence on record, to the satisfaction of the court, that they had voluntarily abandoned service. The plea that their services would be deemed to have come to an end, once they had voluntarily dis-continued coming to the premises, to perform their duties, cannot be up-held. 7. It has been pronounced in 1991 SCMR 2087 and 1990 PLC 255 (Lahore High Court) that pleading of a fact is one thing and proving the same is a distinct and independent matter and mere oral assertion of a workman about entitlement to back benefits should not be taken as enough, for warding him the same, and that too in totality. If a petitioner's own statement is silent on the point, he cannot be said to have remained jobless for the disputed period and held entitled to his emoluments, following his reinstatement. Back benefits do not automatically flow from the order of a worker's reinstatement in service. In the instant case, however, an assertion has been made by a witness, Muhammad Azam, that the employees all havebeen without any job, since the time they were removed from the rolls of the establishment. Muhammad Azam has specifically named only one person,Muhammad Rafiq, in that context, and has made a general statement about others. It is true that proof of a fact in the negative is not always possible. The only statement, the aggrieved persons could make, was that they had not gainfully been employed else where. For negation of this statement and for proof of the establishment's claim that these persons had not remained jobless, but had been working for gain throughout, positive evidence couldonly be produced by the appellant, as respondent before the Labour Court. The evidence on this count required, on both sides, is frankly lacking; but it is certainly an act of cruelty, justifiable from no legal or moral angle, that the employees, one fine morning, were asked to stop coming to their places of duty. They must have been through veiy hard and ominous times, on having remained jobless for a number of years. I would, therefore, award these three persons half of the back benefits too. They shall immediately be reinstated in service, if already it has not been done. The appeal of the establishment fails and is dismissed with costs, in the terms above. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 259 [Federal Service Tribunal, Islamabad ] Present: mr. justice (retd.) abdul razzaq A. thahim, chairman, mr. noor muhammad magsi and mr. muhammad raza khan, members MISS AFROZE BECUM-Appellant versus SECRETARY EDUCATION-Respondent Appeal No. 177 (R)/96, accepted on 27.11.1996. Service Matter- Civil ServantCase ofFrequent Transfers of petitioner and redesignation of "Director" from earlier designation of "Member"--Non-compliance of earlier judgment and Ex-cadre postingChallenge to-- Although under Civil Servants Act, Civil Servant is liable to serve anywhere in countiy, that is why in earlier judgment we did not want tocomment on latest assignment in PMLC given to appellant/petitioner, believing that observations made in judgment will be considered seriously in interest of public service-Ex-cadre posting of appellant was entirely inviolation of Rules of Business, and, therefore, illegal-Re-designation of appellant as "Director" from earlier designation of "Member" in PMLCwas clear instance of misuse and excessive use of authority-Held: There being no justification for ex-cadre posting of petitioner, she may be given her substantive appointment as Director General in which post she is already confirmed since 1991. [P. 261] A Raja Muhammad Asghar Khan, Advocate alongwith Petitioner. Mr. Khalid Abbas Khan, Federal Counsel for Respondents, alongwith M/s. Javed Iqbal, Section Officer, Ministiy of Education and Ghayyur Abbas. Date of hearing: 27.11.1996. order The present petitioner an Officer of the Education Division was promoted as Director General (B-20) in Federal Directorate of Education, Islamabad by an order dated 20.10.94 and was confirmed as such w.e.f. 10.9.91. During the early months of 1995 she was transferred to several assignments and was placed under constant tension including the nondisbursement of monthly salary for several months together, issuance of orders without the sanction of the competent authority, frequent ex-cadre posting, without the confirmation of availability of posts, directing her to report for duty at a particular office and keeping her waiting for posting for long periods etc. All these matters were discussed in detail in the judgment of this Tribunal in Appeal no. 177(R)/96. In the said judgment the operative paragraph read as follows: - "In the light of the above observations we accept this appeal and direct that the irregular appointment and postings ordered during 27.4.1997 to 4.6.1996 may be regularized so that these orders may not affect the terms and conditions of the appellant adversely in future. Respondent No. 2 should check up why the Establishment Division has been by-passed while making several posting and transfers within or beyond the service cadre of the appellant. The respondents should further ensure that the terms and conditions of the appellants service are settled properly and notifications are amended and the salary is to be released to the appellant in time, with all connected benefits." 2. It appears that no appeal was filed against this judgment before the Supreme Court of Pakistan and this judgment was not implemented as well. The petitioner was constrained to file the present petition on 1.10.96 for implementation of judgment, pointing out some additional matters, happening subsequent to the said judgment. It was alleged that at the time of hearing of earlier appeal it was stated on behalf of the respondent department that the appellant has been given the post of "Member" in the Prime Minister Literacy Commission but subsequent thereto her designation was converted into that of "Director". It was further alleged that the salary for considerably long period has not been released and the judgment was not being implemented by the respondent department in its true spirit. 3. On notice to the respondents the Establishment Division confirmed the findings of this Tribunal (in the said judgment) that the Establishment Division has not been consulted and the approval of the competent authority i.e. Prime Minister has not been obtained while making the said order of posting in the PMLC. Vide letter dated 16.11.96 the Establishment Division confirmed that "the appointing authority to post in BPS-20/equivalent and above in the Autonomous/Semi-Autonomous Bodies is the Prime Minister". Appointment of the appellant "in the PMLC had perhaps been made without the approval of the competent authority". Thus, the Establishment Division suggested that the Education Division should move a summary for ex-post-facto regularisation of the irregularities. Despite the above referred findings of this Tribunal and the clarification by the Establishment Division, the Education Division has still adopted the reluctant attitude. No one appeared on behalf of the Ministry of Education on 21.11.96 despite notice. The case was adjourned for today, i.e. 27.11.96, and the representative of the Ministiy of Education filed a letter dated 26.11.96 (although with considerable delay), requesting for adjournment of the case on the ground that the dealing officer has proceeded abroad and the next responsible officer has proceeded on long leave and that due to several changes in the Ministiy of Education the respondent No. 2 has not yet seen the file for resolving the issue. 4. As we have already held, regretfully, in our said judgment thatthe appellant has been treated un-reasonably during the last one and a half years but her agony has not been relieved even after the findings of this Tribunal despite its attaining finality. It is conceded by eveiy quarter that all rules and regulations, instructions and statutes have been trampled in caseof the appellant but none of the respondents have come to her rescue. The admitted illegalities have not been rectified and she being a confirmed Director General (B-20) Federal Directorate of Education, is being tossed around without the approval of the competent authority, merely on personalvendetta. 5. Although under the Civil Servants Act, a civil servant is liable to serve anywhere in the countiy, that is why in the earlier judgment we did not want to comment on the latest assignment in the PMLC given to the appellant/petitioner believing that the observations, made in the judgment,will be considered seriously in the interest of public service and keeping in view the brilliant record of the appellant as an educationist. However, the attitude of the Education Division (coupled with the observation of the Establishment Division) compels us to hold that the ex-cadre posting of the appellant was entirely in violation of Rules of Business and, therefore, illegal. The re-designation of the appellant as "Director" from the earlier designation of the "Member" in the PMLC was clear instance of mis-use and excessive use of authority. We, therefore, hold that there being no justification for excadre posting of the petitioner, she may be given her substantive appointment as Director General, in which post she is already confirmed since 1991. Her salary for 1.1.96 to 14.6.96 should be released immediately but not later than 15 days hereof, failing which the Tribunal will be constrained to order the attachment of funds of the respondent No. 1 underOrder 21 of the Civil Procedure Code to the extent of the said amount. No order as to costs. Parties be informed. (B.T.) Petition accepted.
PLJ 1997 PLJ 1997 Tr.C . ( Labour ) 262 [ Labour Appellate Tribunal, Lahore ] Present: MIAN GHULAM AHMAD, CHAIRMAN MANAGING DIRECTOR, NATIONAL TUBEWELL CONSTRUCTION CORPORATION (PVT) LTD. LAHORE-Petitioner versus MUHAMMAD ARSHAD FITTER and another-Respondents Revision No. Lhr-623/96, accepted on 28.11.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25-A-Grant of interim injunction by Labour Court to employees of National Tubewell Construction Corporation against apprehended ouster from serviceWhether employment of contractual character could be terminated on expiry of terms of contract and whether on strength of length of service employees had attained status of permanent workman- Question of-If by operation of law respondents make claim have become permanent workmen, entitled to protection of Labour laws, they may resist , by all means, by leading evidence-Respondents will have to establish that they have become workmen with permanent status and corporation cannot proceed against them in arbitrary manner- Petitions accepted . [P. 263] A Kh . Tariq Masud , Advocate for Petitioners.Mr . Asmat Kamal Khan, Advocate for Respondents. Date of hearing: 24.10.1996. judgment By this judgment, I shall be disposing of two Revision Petitions (No. 623 and 624 of 1996), having been preferred by the "Authorities" of the National Tubewell Construction Corporation, in assailing the soundness of the decision dated 26.6.1996, rendered by the learned Punjab Labour Court No. 3, Lahore, at Ferozewala , granting to the respondents, petitioners before the said court, interim injunction pendentelite . Against their apprehended ouster from ^service, the respondents, as petitioners before the Labour Court, had filed grievance petitions under section 25-A, Industrial Relations Ordinance, 1969, pleading that on the stength of length of service put in by them they had attained the status of permanent workmen, and could not be removed from service, except in accordance with law, on the ground of misconduct, if at all they were alleged to have been guilty of any instance ofmisconduct . The Corporation, has, however, not issued them show-cause notices, served them with charge-sheets and made them to face regular enquiries, but has straight away passed the orders of termination of their services, which orders are not sustainable in law. The Projects where they have been working are stated to be still in operation, and their services, therefore, should have been regularized and not dispensed with, in the manner it has been done, or is proposed to be done. 2. On the contrary, it was urged by the "Authorities" of the Corporation before the Labour Court, and as revision-petitioners before this Tribunal, they have again maintained that the employment of the affectees is of contractual character and on the expiiy of term of contract they are liable to lose their service and cannot insist upon their retention or continuance in service . No right guaranteed or secured by law is likely to be violated, nor has there been infringement of any terms of the contract, entitling the employees to seek relief from the Labour Court . 3. Finding, however, existence of an arguable case in favour of the employees , relief of aa ' interim injunction was conceded in their favour by thelearned lower court, especially as in its view the employees would be exposed to irretrievable injury and immense inconvenience, in the event of their immediate removal from service. In the course of arguments, learned counsel for the revision-petitioners, Kh . Tariq Masud , has in explicit terms given an undertaking that the Corporation people/"Authorities" will not terminate the services of the respondents (the employees), with immediate effect , but they will proceed against them in accordance with law; and if in ultimate analysis, according to the employees, they have illegally or wrongfully been dealt with, they may seek proper remedy, by having access to the competent court. It is added that the establishment cannot evidently be restrained from taking steps or initiating any proceedings, as regards employment of the respondent, in accordance with law, 4. I am of the view that this undertaking on the part of the revisionpetitioners should satisfy the respondents, and they should feel secure, for the present. If by operation of law, the respondents make a claim have become permanent workmen, entitled to protection of the Labour Laws, they may resist, by all means, their removal from service, or an apprehended adverse action, by leading evidence. The respondents will have to establish that 1 they have become workmen with a permanent status and the Corporation can not proceed against them in an arbitrary manner. I would accept the revision petitions and would set aside the impugned orders dated 26.6.1996. The parties shall appear in the Labour Court for further proceedings on 15.12.1996. (B.T.) Revision Petition accepted
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 267 [Federal Service Tribunal, Islamabad ] Present: mr. aftab ahmad and mr. roshan ali mangi, members SAAD SHARIF-Appellant versus MANAGING DIRECTOR, N.P.F. ISLAMABAD and another-Respondents Appeal No. 240 (R)/96, dismissed on 3.7.1996. (i) Leave Encashment Eligibility of leave encashmentQuestion ofLeave encashment is allowed to individual who do not avail leave in lieu of which he is paid compensation-In a year, Govt. employee is allowed one month's, earned leave--If he does not avail it, he would be entitled to one month's salary. [P. 269] A (ii) Service Matter- Appellant working on deputation with National Police Foundation, Islamabad as Secretary in B.P.S. 20-Claim for leave encashment turned down-Challenge to-According to Foundation's, Rules, its employees are entitled to leave encashment-Civil servant on other hand, carries forward balance of earned leave at his credit on date of his transfer, as per section 36(2) of Finance Division's S.R. 1313(1) 80, dated 20th December, 1980-Held: Appellant is not entitled to leave encashment but he is to carry forward balance of earned leave at his credit on basis of his transfer-Appeal having no substance is accordingly dismissed. [P. 269] C & D (iii) Words & Pharases- -Bonus-What is-Bonus is linked with profitability of organization-If no profit is made in any year, no bonus would be paid-It is sometime paid for two months, sometimes for three months, depending upon profit earned by organization. [P. 269] B Appellant in person. Syed Akhtar Hussain Sabzwari, Advocate for Respondent No. 1. Date of hearing: 30.6.1996. judgment Roshan Ali Mangi, Member.-Appellant, Mr. Sa'ad Shairf s, who is working at present on deputation with the National Police Foundation, Islamabad (hereinafter to be referred as Foundation) as Secretary (BPS-20), contention in the present service appeal is, that, Foundation allows leave encashment (after each service year) equal to one month's pay. According to him there are number of precedents cases in which this facility has been allowed. Even the appellant was allowed leave encashment in the year 1995. However, the same facility was disallowed to him, when he applied for it in 1996, on the ground of old deputation term of 1990. The appellant therefore, submitted departmental appeal against the rejection order on 12.2.1996. But the same has not been responded to, even after the expiry of the mandatory period of 90 days. Hence this service appeal. 2. The appellant who appeared in person, pleaded that 13th pay in a 12 month calendar year constituted Bonus. He was, therefore, entitled to bonus and was also entitled for it in terms of the Finance Division's O.M.dated 3rd August, 1993, so long he would be on deputation in the Foundation. He should not be treated less favourably in financial terms than the employees of the Foundation, he argued. He was of the opinion that since he was allowed leave encashment bonus, as a matter of practice, after the exchange of correspondence between the Ministry of Interior and the Foundation, therefore, he should have been allowed the leave encashment bonus in 1996 as well. 3. Concluding his arguments, based on the above submission, he prayed that the respondents might be directed to allow him one month's pay at Rs. 13,595/- as leave encashment bonus, as per past practice, as well as on the available precedents, without any discrimination. 4. The respondent's side has also submitted their objections, wherein it has been contended that the leave encashment is allowed only to its employees, if they do not avail annual leave in the past calendar year as per Service Rules applicable to employee of the Foundation. As such it has been rebutted, if at all the appellant was entitled to any leave encashment. 5. - It has further been admitted that in some past precedents, encashment was allowed, but at the same time it has been explained that it was unfortunately due to lack of proper scrutiny and by-passing the Director Finance. However, it has been pointed out that the encashment made in the past needs to be recovered from the relevant respective receipients. 6. It has also been admitted that the appellant too was allowed the facility in question. However, it is alleged that he availed the facility byavoiding the file to be routed through Director Finance and obtained the payment with the approval of the Managing Director as such it was not in order. This payment needs, therefore, to be recovered. Whatever, the position, in any case, the appellant was not entitled to the facility of leave encashment under the rules. 7. We have heard the parties and perused the record. It appears that appellant has mixed up the leave encashment with the bonus. In fact these are two different entities. Leave encashment is allowed to individual who do not avail leave in lieu of which he is paid compensation. In a year, the Government employee is allowed one month's earned leave. If he does notavail it, he would be entitled to one month's salary. The bonus on the other hand is linked with profitability of the Organization. If no profit is made in any year, no bonus would be paid. It is sometime paid for two months, sometimes for three months, depending upon the profit earned by the Organization. 8. According to the Foundation's Rules, its employees are entitled to the leave encashment. The civil servant, on the other hand, carries forward the balance of earned leave at his credit on the date of his transfer, as per section 36(2) of the Finance Division's SRO 1313(1)80, dated 20th December, 1980. 9. In view of the above rule position, the appellant would not beentitled to any leave encashment. As such the appellant has not been less favourably treated, as alleged by him. As regard the leave encashment to the other similar cases the respondents have rightly pointed out that they were erroneously paid and are needed to refund the amount of encashment already made. Even the appellant was paid leave encashment. But he, it was pointed out, by passed the Finance Director, and got the direct approval of the Managing Director, which is not in order. Under the rules he was not entitled to it. He also needs to refund it. 10. The upshot of the above discussion is that the appellant is not entitled to the leave encashment, but he is to cany forward the balance of earned leave at his credit on the basis of his transfer, in terms of Rule 36(2)of the Finance Division's SRO dated 20th December, 1980. For the reasons recorded above, the appeal having no substance is dismissed with no order as to costs. 11. Parties be informed. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 270 [Federal Service Tribunal, Islamabad ] Present: abdul razzaq A. THAHIM, chairman, noor muhammad magsi, aftab ahmed and roshan An mangi, members MUHAMMAD ASLAM and others-Appellants versus SECRETARY MINISTRY OF SCIENCE & TECHNOLOGY etc.-Respondents Appeals Nos. 602(R)196, 603(R)/96, 604(R)/96, 605(R)/96, 606(R)/96, 607(R)/96, 608(R)/96, 609(R)/96, 610(R)/96, 611(R)/96, decided on 25.1.1997. Service Tribunals Act, 1973 (LXX of 1973)-- S. 4(l)~Contention that declaration he given that employees of the PCRWR are civil servants and as well as are entitled to pensionaiy benefits-Held : There is no order in field to be appealed against before Service Tribunal, and as such mandatory provisions of section 4(1) of Service Tribunals Act are not satisfied-Held further : These kinds of declaration can hardly be given by Tribunal in service appeals-Tribunal cannot make such declarations.. [Pp. 271 & 272] A, B & C S.A.M. Wahidi, Advocate for Appellants. Khalid Abbas Khan, Federal Counsel for Respondents. Date of hearing: 25.1.1997. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-These ten appeals filed by M/s. Muhammad Aslam, Muhammad Ma] id, Miss Meena Sikandar, Saleem Mufti, Muhammad Ashraf, Jehangir Ahmed, Ejaz Ahmed Bokhari, Samar Gul, Mufti Sultan Shahid and Dr. Abdul Majeed involve common questions of fact and law. These have been heard together and are being disposed of by this single judgment. 2. Pre-admission notice was issued to the respondents and in pursuance of the notice, Mr. Khalid Abbas Khan, learned Federal counsel has appeared alongwith the departmental representatives, and we have heard the learned counsel for the parties at length. 3. All the appellants are working in the Pakistan Councilof Research in Water Resources (hereinafter referred to as the Council), under the Ministry of Science and Technology. There is no impugned order nor any appellate order but the prayer in these appeals is as under " ... it may please be declared that:- (i) PCRWR is a Government organisation/office and not an autonomous body; and (ii) the appellant, and subject to all just exceptions other employees of PCRWR, are civil servants and entitled to all the benefits and privileges, including the pensionary benefits, admissible to other civil servants." From the above prayer and the pleadings, the declaration is being sought from this Tribunal about the status of the organisation as well as to determine the terms and conditions of employees of organisation like other civil servants. Reliance has been placed on a decision of this Tribunal in Appeal No. 169(R)/92 (Dr. S. Nazre Hyder vs. Secretary, Establishment Division & another) and the judgment of the Supreme Court in Civil Appeal No. 739 of 1992. 4. The contention of the learned counsel for the appellants is that declaration be given that the employees of the Council are civil servants and as well as are entitled to pensionary benefits. When his attention was drawn to the provisions of Section 4(1) of the Service Tribunals Act, 1973, where by any aggrieved person can come to the Tribunal against an order whether original or final passed by a departmental authority affecting his terms and conditions, which factor is missing in these appeals, he submitted that the appellants made representation that they are not being considered as civil servants like other employees of the Government for the purpose of other allied benefits, and for other grievances appeals will be brought later on. We have gone through the earlier judgment of the Tribunal in Appeal No. 169 (R)/92, wherein opinion of the Establishment Division was challenged before this Tribunal, and this Tribunal on remand of the case by the Supreme Court, decided the issue on the basis of Naeema Khan's case (PLD 1990 SC 612) but in these appeals, there is no order in the field to be appealed against before this Tribunal, and as such the mandatory provisions of Section 4(1) of the Service Tribunals Act are not satisfied. The learned counsel for the appellants was asked to point out the specific relief being claimed by the appellants from this Tribunal, but he only submitted that declaration be made that the appellants are civil servants and entitled to pensionary benefits. These kinds of declaration can hardly be given by the Tribunal in service appeals. The organisation has been set up by Resolution and every organisation has its own rules and structures and all matters with regard to terms and conditions are to be decided on grievance brought by aggrieved persons and Tribunal always examines all the points including jurisdiction. In these appeals the appellants have not been able to show in what respect their terms and conditions are affected. We are sorry, the Tribunal cannot make such declarations. It is open to aggrieve persons to bring specific grievance with regard to violations of their terms and conditions by fulfilling the requirement of law such as making applications and appeals etc. In these appeals no order whether original or appellate has been challenged. For this we refer to Sections 4 and 5 of the Service Tribunals Act, 1973 as follows:-"4. Appeals to Tribunals.--(I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him, (or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal);: Provided that:- (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973 or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal o r application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; (and) (b) "no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969." 2. Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred:- (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in sub section (3) of section 3; and (b) in any other case, to a Tribunal referred to in sub section (7) of that section. Explanation.~ln this section "departmental authority" means any authority other than a Tribunal, which is competent to make an order in respect of any off the terms and conditions of civil servants. 5. Powers of Tribunals,~(l) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil court and shall have the same powers as are vested in such court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of:- (a) enforcing the attendance of any person and examining him on oath; (b) compelling the producting of document; and issuing commission for the examination of witnesses and documents." For the aforesaid reasons, the appeals are misconceived and dismissed in litnine. (M.S.N.) Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 273 [Federal Service Tribunal, Islamabad ] Present: JUSTICE (R) ABDUL RAZZAQ A. THAHIM, CHAIRMAN AND noor muhammad magsi, member MUHAMMAD FAHIM-Appellant versus FEDERATION OF PAKISTAN and 4 others-Respondents Appeal No. 47(K) 1996 decided on 9.12.1996. Service Matter- Secretariat allowance-Claim of-Scheme of Secretariat allowance was introduced on 1.7.1988 vide Finance Division OM where employees of Federal Secretariat and later on others department like C.B.R., P.B.C & PTV etc. were also granted this allowance on the basis of High Court judgments and Tribunal judgments-Appellant did not approach any above forum nor option was given by the appellant-Revised policy was also not been challenged by appellant where adjustment was given- Held: At this belated stage when Secretariat allowance has since been discontinued w.e.f. 1.6.1994, the appellant has no case for the Secretariat allowance-Policy cannot be revised which is closed chapter-Appeal dismissed. [P. 276] A Mr. Kanwar Mukhtar Ahmad, Advocate for the Appellant. S.M. Shahudul Haq, for Respondents. Date of hearing: 9.12.1996. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-Appellant Mr. Muhammad Fahim is working as Stenotypist in the Department of Stationery and Forms Department, Karachi. He was appointed as Stenotypist in the FPSC on 11.4.1990. He applied for the same post in the Stationeiy and Forms Department and was selected and joined on 14.7.1992 (BPS-12). He made an application to the Controller of Stationary and Forms on 18.4.1995, in which he prayed that he may be granted Sect. Allowance (now Personal Allowance) on the basis of earlier judgment of the High Courts, etc. His request for the Sectt. Allowance was not granted. Being dis satisfied, he has now come before the Tribunal with the prayer that he is an employee of the Attached Department of the Cabinet Division, therefore, this Tribunal may declared that the appellant and other employees of the Department of Stationery and Forms are entitled to payment of Secretariat Allowance/Personal Allowance @ 20% in view of the Finance Division OM dated 1.7.1988. They have also claimed the appears. 2. The appeal was admitted. The comments have been filed by the Finance Division and we have heard the learned counsel for both the parties. 3. Mr. Kanwar Mukhtar Ahmad, the learned counsel for the appellant argued that Department of Stationery and Forms is an Attached Department of the Cabinet Division, therefore, the appellant and other employees are entitled to the/Secretariat Allowance. He has referred to Finance Division O.M. No. F. l(32)/Imp. 88, dated 1.7.1988 and submitted that almost all the Courts have decided the cases that all employees of Federal Government are entitled to Secretariat Allowance quoted the instances of the Federal Service Tribunal, Federal Shariat Court and the High Courts and other attached Departments and submitted that the appeal be allowed and the appellant and other employees of the Department of Stationeiy and Forms be given Sectt. Allowances from 1988 with arrears. He has placed reliance on various judgment of the High Courts and the Supreme Court. He has also referred to 1991 SCMR 1041 and submitted that there is discrimination that the appellant is APowance as done in the case of the Attached 4. Mr. Syed Muhammad Shahudul taque, appearing for the respondents submitted that under ^ e QM u the employees of the Federal Secretariat were only entu ec j t and not the employees of the Attached Departments. It said allowance was abolished in 1994 and new pay scu es introduced vide OM dated 15.6.1994 whereby option, was g ven tc employees either to draw the existing pay scales plus Sectt. Allowu^g or t new pay scales plus Personal Allowance, which option the appellant^ no exercise and, therefore, it is a closed chapter and the appellant cannot , this allowance at this belated stage when the situation has altogether. 5. Mr. Tihawwar Ahmed, Deputy Secretary, Finance Division has elaborated the contentions and placed on record copies of Ofnce Memoranda issued from time to time in this context. It is argued that the Govt. has reviewed the policy on the introduction of new pay scales vide OM dated 15.6.1994 and under paragraph 6 of the said OM, options were taken from the employees, but the appellant did not exercise this option u.id is continuing to draw pay in the revised pay scales" and as such he is not entitled to the/Sectt. Allowance. 6. The scheme of the Secretariat Allowance was introduced vide Finance Division OM date 1st July, 19SS and initially the employees of the Federal Secretariat were allowed this Allowance, but subsequently some of the Departments like CBR, PBC & ?TV etc. and the judicial forums, e.g. High Courts' Federal Shariat Court and the federal Service Tribunal were allowed this benefit on the basis of judgments of the High Courts and the Tribunal. However, the appellant and the employees of the Department of Stationer" and Forms neither went to the High Court nor before this Tribunal for grant cf this allowance. Meanwhile, the Government reviewed the matter and en the introduction of Basic Pay Scales of the Federal Govt. employees from BPS-1 to 22, vide Finance Division OM kq. F. 1(2)- Imp/94(i'i dated 15th June, 1994, it was decided that those employees who were drawing old pay scales could get this Sectt. Allowance but incase of those employees who opt for new pay scales were not entitled to the allowance, but personal allowance under certain conditions contained in paragraph 5(i) of the said O.M. The relevant paragraphs 5 and 6 of the C.i{. is reproduced hereunder:- "5. Allowances:- (i) Secretariat Allowance.--With the introduction of new scales of pay, the Secretariat Allowance is abolished w.e.f. 1.6.1994 and the amount actually drawn on 31.5.1994 will be converted into Personal Allowance. Personal Allowance in case of Government employees in 3PS 17-22 shall be reduced by the amount of annual increments, by which the fovernment employees' pay may be increased after 1.6.1994, and shall cease as soon as his pay is increased by an amount equal to/or more than his exempted from this adjustment to the extent that their Personal Allowance will not be reduced/adjusted. (ii) Other Allowances, Special Pays etc, --Special pays an other allowances including House Rent Allowance will be maintained at the level drawn/admissible at the rate as on 31.5.94. . Option: (a) All existing Government employees are given option either to draw the existing pay scales plus Secretariat Allowance or the new pay scales plus Personal Allov.-ance in the manner as at 5;i! above. Option to retain existing scale with Secretariat Allowance must, however, be given in writing by the employees concerned to the audit office/Drav.-ir.g and disbursing Officer concerned by the 15th J":'.v. 1994. Option once exerci==:i shall be final. (b) An existing C vernr.i.;:: e:::'l.}ct who does not exercise "ind ccn.municate such option within the prescribed time l::r.;;. shall be deemed to have opted to be governed by the new scales and abolition of Secretariat Allov.-ance." The appellant fs working in the Department Tf Stationery and Forms since July, 1992 end was not drawing Sectt. Allowance ar.j io also the other employees jf the Department as they were not entitled to th.: Allowance, and they are not party before us. Even the appellant did r.;t -'r;:'.y -".! 1995 when, according to him, he for the first time made an ajipll^ticn on 15.4.1995, although he was fully aware that some other Departments had g:ne to the' Courts or the Federal Sendee Tribunal and the Supreme Court tor grant of this relief. Inspite of the fact that option was token from all ............ departments including the department of Stationery & Forms but appellant has not given any option and is drawing new pay scales. The revised policy is very clear and this policy has not been challenged by the appellant or any of the employees of the department in any forum. In the revised policy the Government has taken care of those who were drawing Secretariat Allowance and adjustment has been made. Therefore at such a belated stage when the Secretariat Allowance has since been discontinued w.e.f. 1.6.1994, the appellant has no case for the Secretariat Allowance as we car.not revise the entire policy which is now a closed chapter. 7. The appeal having no merit is dismissed with no order as to cosls. (MGB) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 277 [Punjab Service Tribunal, Lahore ] Present: muhammad aslam, member I MURID HUSSAlN-Appellant versus DIVISIONAL FOREST OFFICER, DERA GHAZI KHAN etc.-Respondent Appeal No. 661/9, accepted on 21.11.1996. Efficiency and Discipline Rules, 1975 (PCS)-- R. 2<c) first proviso-Contention that no Authorised Officer was appointed-Divisional Forest Officer seemingly acted in both capacities (Authority and Authorised Officer) under Rule 2(c) first proviso of PCS, E & D Rules 1975--However. Punjab Service Tribunal has been holding for long that if Authority acts as Authorised Officer, then in a way it reduces itself to a comparatively lower status and in that it would act no more than Authorised Officer could-In other words, Authorised Officer while so acting cua'J impose at best a minor penalty-Thus, Authority reducing itself to ilie L'vel of Authorised Officer will be able to impose only a minor penally and would not be competent to award a major penalty as was done in instant case-Appeal allowed. [P. 278] A 1994 PLC (CS) 477 rel Al-Haj Muhammad Iqbal, Advocate for Appellant. Manzoor Hussain Bhatti, DA for Respondents. Date of hearing: 21.11.1996. judgment The appellant Murid Hussain, Block Officer, Forest Department, Jatoi Range , District Muzafargarh made successive complaints of illegal feelings 1 against Murid Hussain, Forest Guard, Beat No. Ill, Kotla Isan Block whereupon a checking party was deputed to assess the loss and determine the liability. He mad a report on 1.11.1990 recording a finding that trees numbering 690 valuing Rs. 90,ISO/- (Annex-E) were illegally felled with the consent and connivance of the aforesaid Forest Guard whose transfer from the place was essential. 2. On receipt of the report, Respondent No. 1 (Divisional Forest Officer) called explanation not only of the Forest Guard but also of the appellant who of course submitted that he lost no time in reporting the loss to higher ups and recording it in his inspection diaries. The Divisional Forest Officer, however served the appellant with a charge sheet dated 25.12.1990 indicating that he and the Forest Guard both were responsible for illicit cutting of 690 trees. An Inquiry Officer was appointed to determine the charge, and he in his report dated 27.4.1991 (Annex-H) hdd him guilty. Agreeing with the inquiiy report, respondent No. 1 allegedly without considering the evidence on the point, imposed upon him the penalties of (i) recoveiy of Rs. 45,075/- to be effected at the rate of 1/3 of his monthly salary, and (ii) censure vide his order dated 2.3.1992 (Annex-I). 3. Aggrieved by the aforesaid order, he preferred a departmental appeal before respondent No. 2, Conservator of Forest, who dismissed it as per his order dated 12.6.1993. Finally, he brought the instant appeal. 4. It was urged in support of the appeal that under rule 2.7 Chapter-II of the Forest Manual, the appellant as a Forester was supposed only to detect and compound forest offences in which duty he never defaulted in/as much as he detected the impugned loss, recorded them in his various reports as well as inspection diaries and that, thereby he was absolved of any liability for the losses in question. Secondly, he submitted that the inquiiy report was based on no evidence; thirdly that no Authorised Officer was appointed in the case vitiating the entire proceedings; fourthly that the appellate order was non-speaking, and lastly that no copy of the inquiiy report was furnished to him. 5. The appeal was contested asserting that the appellant was involved in the illegal felling; that even earlier he was awarded similar punishments; that if he needed a copy of the inquiiy report, he could have applied for it; and that otherwise he had fully participated in the proceedings. However no specific answer was given in the comments to the precise assertion that no Authorised Officer was appointed in E&D proceedings conducted against the appellant. 6. It seems difficult to abridge the objection that no separate authorised officer was appointed in the case. The Divisional Forest Officer seemingly acted in both the capacities under rule 2(c) first proviso of PCS,E&D Rules, 1975. However, this Tribunal has been holding for long that if the authority acts as authorised officer, then in a way it reduces itself to a comparatively lower status and in that it would act no more than the authorised officer could. In other words, the authorised officer while so acting could impose at best a minor penalty. Thus, the authority reducing itself to the level of authorised officer, will be able to impose only a similar minor penalty, and would not be competent to award a major penalty as was done in the instant case. Recoveiy is a major penalty which the Divisional Forest Officer (respondent) was legally not competent to award against the appellant. Reference may be made to 1994 PLC (CS) 477 in this regard. I see no reason to hold otherwise. 7. In the light of the foregoing, the appeal is allowed, the impugned order dated 2.3.1992 and 12.6.1993 are set aside, the amount already recovered shall be refunded to the appellant. However, the respondents shall be free to conduct a denovo inquiiy in accordance with the rules. (M.S.N.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 279 [Federal Service Tribunal, Islamabad ] Present: ABDUL RAZZAK A. THAHIM, CHAIRMAN, AFTAB AHMED AND muhammad raza khan, members. JAVED IQBAL-Appellants versus SECRETARY, MINISTRY OF HOUSING & WORKS, ISLAMABAD etc.--Respondent Appeal No. 262(R) of 1996, decided on 18.12.1996. Civil Servants Act, 1973- -S. 25 read with Article 212 Constitution of Pakistan (1973)-Civil Servant- -Case of-Allotment of a house to appellant being a civil servant by the Minister for Housing and Works but same was allotted to another civil servant having lower grade than appellant-Appeal before sendee Tribunal-Maintainability of-Helcl: After enforcement of Allocation Rules of 1993 with approval of President in exercise of his powers under section 25 of Civil Servants Act, 1973, question of allotment of accommodation has become a part of terms and conditions of sendee of civil servants and thus falling with exclusive jurisdiction of Federal Service Tribunal in accordance with Article 212 of the Constitution of Pakistan, 1973. [P. 283] A Mir Afzal Malik, Advocate alongwith the Appellant. Respondent No. 3 in Person. Date of hearing: s18.12.1996. judgment Muhammad Raza Khan, Mernber.--The facts lying in the background of this appeal are that a House No. 388-E, Street No. 58, G-6/4, Islamabad (hereinafter referred to as the subject house) was likely to be vacated and the appellant was the person who initially requested the Minister for Housing and Works on 31.5.1995 for its allotment The appellant is a Section Officer in BPS-17 in the Ministry of Defence and entitled to "E" type accommodation. He was already in possession of a quarter of lower category. The respondent No. 1 issued a directive on 6.6.95 to respondent No. 2 in these wcrds:- "1 am directed to refer to this Division's letter of even number dated 31.5.1995, on the above cited subject and to say that Secretary, Housing and Works has desired thai quarter No. 27-E, St. 58, F-6/4, Islamabad may be allotted to Mr. Javed Iqbal, Section Officer, Ministry of Defence, Pak. Sect. II, Islamabad in supersession of all previous orders. Your are requested to take further appropriate action in the matter accordingly." This letter was supplemented by yet another letter issued by respondent No. 1 on 3.10.1995, which is also reproduced hereiubalow ;- "In continuation of this office order dated 6.6.95, I am directed to say that the competent authority has desired to allot II.No, 3SS-E, St 58, 5-6/4, Islamabad, to Mr. Javed Iqbal, Section Officer, M/'o Defence, Rawalpindi, on subject to vacation basis. 2. You are directed to take appropriate action in the matter accordingly, under intimation to the undersigned for compliance to the higher authority." It appears that respondent No. 2 did not issue any formal allotment order despite these two directives by the concerned Division of the Federal Government. It also appears that, as per evil practice prevailing in the department, a letter from a Private Secretary to the Minister was manipulated on 28.6.1995 and promptly an allotment order was issued by ' respondent No. 2 on 3.7.1995 in favour of respondent No. 3. This respondent No. 3 was an Assistant in B-ll, holding selection grade of B-15 and entitled to "D" type accommodation as per Pakistan Allocation Rules, 1993. Prior to this allotment order dated 3.7.1995, she was already in possession of another "E" type accommodation in 1-8/1, Islamabad. Only six days after the said allotment, the said respondent No. 3 moved a civil suit in the Civil Court at Islamabad on 9.7.1995 for getting an injunction to the effect that the said allotment order may neither be superseded nor the house be allotted to some-one else. It appears that "D" type house in possession of the appellant was allotted to one Mr. Pervaiz Akhtar on 17.6.1996 by respondent No. 2, presumably on the basis of the order of respondent No. 1 dated 6.6.1995 for the allotment of subject house to the appellant and in consequence whereof the house already in his possession was further allotted to Pervaiz Akhtar in response to the directive of the Works Division. The Estate Office (respondent No. 2) informed the said Division that the subject house will be allotted to the appellant on vacation of the house. It further appears that the appellant vacated his house and.occupied the subject. hoi-.se. The respondent No. 3 got an ex-parte decree in her favour from the Civil Court without impleading the appellant as a party. The appellant, thereafter filed an appeal and got himself impLaded in I he said suit. The ex-parte order was consequently set asiue and the case was remanded for fresh trial. Despite the present litigation, the said suit Hied by respondent No. 3 is still pending in the Civil Court. Side by side with these developments, respondent No. 2 issued a notice of ejectment on 21.5.1996 and allegedly pasted the same on the door of the subject (in possession of ihe appellant) directing him to hand over the vacant possession of the said accommodation, within certain hours, failing which possession will be obtained by force. This ejectment notice has been challenged by the appellant in the present service appeal with the request that the said notice may be vacated and the respondent No. 2 be directed to issue a formal allotment order of the subject house in favour of the appellant. 2. The official respondents as well as private respondent No. 3 contested the appeal by filing written objections. We have listened to the arguments and examined the record, The request of the appellant for temporary injunction was also considered and the impugned order was suspended till the disposal of main appeal. 3. Prior to the discussion on the merits of the appeal, it is necessary to handle the preliminary legal objection with regard to the jurisdiction in the matters of allocation cf accommodation to the civil servants. Normally, a civil servant can file service uppe:.u against his employer department for violation of any terms and conditions of service. The appellant was an employee of the Government of Pakistan, posted in the Ministry of Defence as Section Officer, and private recpunuent X.>. 3 was an employee of the Corporate Law Authority. The Works Division was not the employer Division of either of them. The Pakistan Allocation Rules, 1971 were in the shape of administrative instructions issued by the Ministry of Works for regulating the process of allocation etc. of Government accommodation to civil servants and. therefore, this Tribunal had not interfered in the questions of allocation of accommodation. However, in 1993, the earlier rules were repealed and fVcsh Allocation Rules were promulgated with the approval of the President arid in exercise of the powers under Section 25 of the Civil Sen'ants Act, 1973. Thus, from 1993 the allocation of accommodation had become a part of the terms and conditions of service of the civil servants falling within the scope of the said Rules. Therefore, the jurisdiction of any other institution or forum was barred under Article 212 of the Constitution. The practice of filing civil suits and getting injunction, in connivance with the officials of respondent No, was an extra-Constitutional measure. We have noticed in several cases that certain employees of the Federal Government approached the Civil Courts with a declaratory suit and got a temporary injunction which continued indefinitely in certain cases. Most of such suits are filed at the instance of the officials of the Estate Office (respondent No. 2). The respondent No. 2 either concedes the issue before the Civil Court or allows the decision to be made in favour of a particular person by default on the part of the Estate Office. This is arranged either by delay in filing written statements, replies or delay in engaging a counsel to defend the Estate Office. In certain other cases, the representative of the Estate Office even conceded for the grant of temporary injunction in favour of a particular allottee. Thus, on one hand, the officials of respondent No. 2 fail to perform their functions impartially by showing extra favour to certain allottees and thereby strengthing the general feeling of certain motives behind the allotments. On the other hand, by the attitude the representative of the Estate Office fail to properly assist the Civil Courts and thereby defeat the clear provisions of the Constitution. We were told at the bar that the High Court has issued instructions to the Civil Courts not to entertain the declaratory suits from the civil servants relating to allocation of accommodation in accordance with Allocation Rules, 1993 on the ground that it has become a part of the terms and conditions of service falling within the exclusive jurisdiction of the Federal Service Tribunal. However, by active connivance and positive concealment, the officials of respondent No. 2 succeed in the manipulation of temporary injunctions from the Civil Courts in violation of the directive of the High Court and in derogation of the provisions of the Constitution. 4. The instant case is a typical example of such connivance and active participation in getting a decree in favour of respondent No. 3. As stated earlier, the Works Division issued direction for the allotment of subject house to the appellant on 6.6.1995. The respondent No. 2 did not bother to comply with the said direction issued by its controlling Division, under the Rules of Business. In the meanwhile, the information appears to have been passed on to arrange a letter from an official of the Minister and thereupon the Estate Office hurriedly issued the allotment order on 3.7.1995 in favour of respondent No. 3 succeeded in getting an injunction from the Civil Court at Islamabad without having any cause of action. Not only the injunction was passed but the case was heard and decided within a couple of weeks without any effort on the part of the Estate Office to disclose the lack of jurisdiction of the Civil court in the terms and conditions of service of the civil servants and "without intimation of the fact that the appellant was a necessaiy party to the said suit. Such an attitude amounts to collusion instead of mere concealment or negligence. The respondent No. 3 was already in occupation of a house, above her entitlement, and succeeded in getting the formal allotment letter of the subject house from respondent No. 2 to the prejudice of the rights of the appellant and within a couple of days of the said allotment, she got the stay orders from the Civil Court without having any cause or grievance. She did not implead the appellant as a party and tried to mislead the Court. Even during the proceedings before this Tribunal, she was given an option to consider the withdrawal of her case from the Civil Court for the appropriate adjudication of her rights with that of the appellant by this Tribunal. However, she did not concede to withdraw the same. Therefore, the issue of adjudication of her rights for the allotment of the subject house is not before this Tribunal. So, in brief, we hold that after the enforcement of the Allocation Rules of 1993 with the approval of the President in exercise of his powers under Section 25 of the Civil Servants Act, 1973, the question of allotment of accommodation has become a part of the terms and conditions of service of the civil servants and thus falling within the exclusive jurisdiction of this Tribunal in accordance with the Article 212 of the Constitution. 5. It was argued on behalf of the respondents that there was no allotment order in favour of the appellant and, therefore, he was in wrongful possession of the subject house and the impugned order has been issued in accordance with the powers vested in the respondent No. 2. We are at a failure to appreciate the argument for the sole reason that respondent No. 2 was neither an autonomous authority nor was vested with any statutory power. Under the Rules of Business of 1973, respondent No. 2 was to work under respondent No. 1 and in accordance with the Pakistan Allocation Rules the Minister for Housing and Works was the competent authority having the reserved quota of 10% and under the Rules of Business, the orders of the Minister were to be executed by respondent No. 1. Therefore, we hold that the orders passed by respondent No. 1 were to be honoured by respondent No. 2 and, therefore, any direction from the Works Division amounted to allotment order and the respondent No. 2 was bound to issue a formal letter of allotment on receipt of such directive. The Private Secretary to Minister had no authority either directly or a delegated one to issue a direction to the respondent No. 2 in this regard. Hence the direction issued by the respondent No. 1 on 6.6.1995 was not only prior in time but was also passed by a competent authority than the one issued on 28.6.1995 in favour of respondent No. 3. Moreover, there is no claim that the said directive of 6.6.1995 was not received by respondent No. 2. It was certainly received by respondent No. 2, and that is why the "D" type accommodation in possession of the appellant was allocated to one Pervaiz Akhtar on 18.6.1995 whereby the accommodation in possession of the appellant was farther allocated and it could be deemed to be in compliance with the directive of the Works Division. He, therefore, occupied the subject house on its vacation in anticipation of a formal letter in this regard. 6. The appellant was entitled to 'E' type accommodation under the Allocation Rules. Such a accommodation cannot be allowed to any one else entitled to a lower categoiy except in the event that no one of the entitled category was available with the request for its allotment. It was contended that respondent No. 3 was already in possession of 'E' type accommodation and on 3.7.1995 the subject house was not allotted to any body else therefore, it could be allotted to respondent No. 3 in exchange of her accommodation. We do not agree with the argument because the wish for better accommodation cannot deprive those entitled to a better category. Comparatively, the appellant was more entitled to the subject house being the accommodation of his category than the respondent No. 3 who was already occupying an accommodation higher than her entitlement 7. In view of the above discussion, we accept this appeal, set aside the impugned Notice dated 21.5.1996 read with the allotment order dated 3.7.1995 in favour of respondent No. 3 and direct that the appellant has rightly occupied the subject house in compliance with the direction of the respondent No. 1 and thus a formal allotment order may be issued in his favour accordingly. No order as to costs. Justice (R) Abdul Razzaq A. Thahirn, Chairman.--! agree with my learned brother Mr. Muhammad Raza Khan, Member and he has dealt with all aspects of the case in detail. I would like to add that in Writ Petition ' No. 475/1990 (Safdar Ali Malik vs. Estate Officer, Estate Office, Government of Pakistan, Islamabad & Others), decided on 29.11.1993, the Lahore High Court observed as under:- As admittedly, the petitioner is a civil servant and is aggrieved of alleged violation of term and conditions of service, therefore, his remedy is before the relevant Service Tribunal and not before this Court as per provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The writ petition is, therefore, dismissed." Therefore, the point has been settled that in such a matter the aggrieved civil servant has got way to come before this Tribunal and I would not like to go into the controversy that the concurrent jurisdiction is being exercised by other forums, and it was admitted on behalf of the respondent No. 3 during the course of arguments that declaratory suit is still pending in the Civil Court. Whatever the case may be, the Civil Court has got its own jurisdiction but whjle exercising the jurisdiction in civil suits, much care to be taken about the decisions of the superior courts as quoted in para 3 of this judgment, when under Article 212 of the Constitution, this Tribunal has exclusive jurisdiction in matters of terms and conditions of civil servants, and there are number of Judgments of High Courts and Supreme Court. (M.M.A.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 285 [Federal Service Tribunal, Islamabad ] Present: abdul razzaq A. tiiahim, chairman and muhammad raza khan, member. MUHAMMAD TARIQ YAHYA-Appellant versus DEPUTY COMMISSIONER/DIRECTOR GENERAL EXCISE & TAXATION, ISLAMABAD-Respondents Appeal No. 204(R)/96, decided on 24.6.1996. Government Servants E & D Rules, 1973-- R. 4-Stenotypist in Excise and Taxation Department--Termination of services ofAppeal againstContention that under E & D Rules, 1973, termination is not a penalty and order is illegal-That by way of termination, appellant cannot be debarred from services and it is contrary to law-Held : Such words 'debarred from future employment' are normally used in the orders whereby penalty of dismissal from services is imposed on accused official by the competent authority-Held further : Under Rule 4 of the Government Sen/ants (E & D) Rules, 1973 minor and major penalties have been defined but termination from services 'is not a punishment provided in these rules' and to this extent, impugned order suffers from legal infirmity, but it does not make order illegal, ab-initio and it is clearly amount removal-Appeal dismissed . [P. 288] A & B Raja Muhammad Asghar Khan, Advocate alongwith Appellant. Khalid Abbas Khan, Federal Counsel for Respondent alongwith Mr. Zahcer, Assistant, Excise & Taxation Deptt. Date of hearing: 24.6.1996. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-Appellant, Mr. Muhammad Tariq Yahya, was working as Stenotypist, in the Office of the Excise & Taxation Department, Islamabad Capital Territory (ICT). The disciplinary proceedings were initiated against him and after observing all the formalities, his services were terminated by order dated 13.12.1995. Being aggrieved, he filed departmental appeal; having received no reply he has now come before this Tribunal under Section 4 of the Service Tribunals Act, 1973. 2. Mr. Raja Muhammad Asghar Khan, Advocate appeared for the appellant and argued that the charges against the appellant are vague and not proved as there was no documentary evidence against him. It is submitted that the services of the appellant have been terminated but under the E&.D Rules, 1973, termination is not a penalty and the order is illegal. He has referred to 1985 PLC (CS) 478; 1986 PLC (CS)812 and 1989 PLC (CS) 407. Therefore, this order is bad in law and may be set aside. It is argued that by way of termination, he cannot be debarred from service which has been done in this case, which is contrary to law. 3. The comments have been filed and we have heard Mr. Khalid Abbas Khan, Federal counsel for the respondents. It is argued that the appellant was found guilty of the charge at regular inquiry and the competent authority after issuing final show cause notice imposed the penalty of termination. It is submitted that although there is no such penalty in the E&D Rules, but it can be inferred that it amounted to removal from service, and this omission on the part of the respondents cannot vitiate or make the whole proceedings illegal. 4. The appellant was charged on the following allegations:- "(1) That you have misplaced official files of the two stolen cars recently recovered by Islamabad Police having Registration Nos. IDE-7943, IDE-7593. That file No. IDC-5481 of another stolen car was issued in your name from record room on 13.11.1991 but was never returned by you and the said file is still outstanding against your name as per the record. (2) That you have been making entries in the Registration register without having the authority to do the same. (3) That you have been doing physical verification of the vehicles without having the authority to do the same. (4) That the preliminary enquiiy has revealed that you have exceeded your capacity as stenotypist to gain monetary benefit and as such you are guilty of misconduct and corruption. (5) That your above mentioned conduct, reveals that you are guilty of inefficiency, misconduct and corruption as defined in rules 3 of the Govt. Servants (E&D) Rules, 1973." He replied that he being a Stenotypist was not supposed to deal with the files, therefore, the allegation of misplacing the files is baseless as he was not custodian of the official record. With regard to making entries, he submitted that he was, under verbal orders of Raja Muhammad Saleem, Excise Inspector, asked to make entries in the Register which was never objected by the departmental authorities. Regular inquiry was conducted and the findings of the Inquiry Officer are as unden- "I have gone through the record and carefully examined the statements of witnesses. It has been revealed that:- (i) Mr. Tariq Yahya as working as Stenotpypist of E.T.O., having absolutely no business with the entries of Registrar; (ii) All the files which were missing from the office were entered in the register by Mr. Tariq Yahya including the two vehicles No. IDE-7943 & IDE-7593. (iii) The file of Car No. IDE-54S1 was issued in the name of Tariq Yahya s which was never returned to the office. Therefore, in the light of above conclusion it is abundantly clear that the three charges 1, 2 and 3 stand proved against Mr. Tariq Yahya; There is however no direct evidence as regards the other charges, therefore, they are not proved against the accused." According to the inquiiy report, charges 1, 2 and 3 have been proved but it is stated in the report that there was no direct evidence as regards the other charges. The appellant being a Stenotypist had absolutely nothing to do with the entries in Registration Register, which according to his own admission he had been doing at the instance of Raja Muhammad Saleem, Excise Inspector. All the witnesses produced at the regular inquiry unanimously stated that the appellant had been making entires in Registration Register and the appellant could not rebut that he was not involved in the charges of missing of official files and making entires in the Registration Register for which he was not authorised to do that business. It may also be observed that even in the preliminary inquiiy conducted by Assistant Commissioner, it was found that the appellant was involved in about 8 cars theft cases at various stations of Islamabad and during the inquiry he had disclosed that he had been preparing bogus documents in connivance with one Tariq Mehmood Gondal for his stolen cars for consideration of Rs. 20,000/- per vehicle, for which after completion of challans, the cases were referred to Courts by Police for trial. Although this matter is not before us but the admitted position is that the appellant is involved in this scandal and charges 1, 2 and 3 stand proved against him which are out come of his conduct of involving in these scandals. The competent authority after serving on him director general excise & taxation [Federal Service Tribunal, Islamabad] the final show cause notice imposed the penalty of termination by order dated 13.12.1995. This order is under attack and it is reproduced as under: "ORDER The services of Mr. Tariq Yahya, Sterio Typist of Excise & Taxation Department, Islamabad are terminated with effect from 1st December, 1995. lie is also debarred from all future employment under Government or Semi Government Organizations. His particulars are given below:- 1. Name. Muhammad Tariq Yahya S/Typist. 2. Father's name liana Muhammad Mursaleen Khan 3. Date of birth 11.11.1961. 4. Permanent Village and PO Piplan, Street Jamia Address Masjid, Madni Mohallah Kassuban District Mianwali, 5: NIC No. 241-61-019319. 6. Height 5'-7". 7. Mark of Wound mark on the nose. Identification Sd/- Deputy Commissioner/D.G. E&T Islamabad." By this order the services of the appellant have been terminated with effect from 1.12.1995 and he has also been debarred from future employment under Government or semi-Government organizations. It may be mentioned here that such words 'debarred from future employment' are normally used in the orders whereby penalty of dismissal from service is imposed on accused official by the competent, authority. Under Rule 4 of the Government Servants (E&D) Rules, 1973 minor and major penalties have been defined but 'termination from service' is not a punishment provided in these rules, and to this extent the impugned order suffers from legal infirmity, but it does not make the order illegal ab-initio, and it clearly amounts removal. 5. We, therefore, are of the view that since the whole proceedings were taken under E&D Rules and so also the impugned order, the penalty of 'termination of service' shall be deemed to be "removal from service" and we order accordingly. As already observed in the concluding paragraph 5 the appellant is- not debarred from future sendee. Consequently the appeal having no merit is dismissed with costs. (M.M.A) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 293 [Federal Service Tribunal, Islamabad ] Present: muhammad ismail, roshan alt mangi and muhammad raza khan, members. NOOR MUHAMMAD HALEEM--Appellant versus PRIME MINISTER OF PAKISTAN etc.« Appeal No. 135(4l)/96, decided on 25.2.1996. (i) Civil Servants Act, 1973- S. 4 read with section 22--CM1 servant case of--Proforma promotion- Question of-Ordinarily, Federal Service Tribunal does not interfere with discretionaiy powers of concerned departmental hierarchy, but at the same time, there is no dearth of authorities, wherein it has been held that Tribunal can go into the question of promotion only if any injustice had been done to a civil servant. [P. 296] B PLD 1980 SC 22, 1991 SCMR 1129 and PLD 1994 SC 539 rel. (ii) Service Matter- Civil servant-Case of-Contention that ACRs were written by persons, who were holding similar post and status as that of appellant and as such they were invalid-ACR's of appellant were got initiated from his colleages of same cadre and status, who were in competition with him for next post and as such reports were nullity in the eye of law. [P. 295] B Hafiz S.A Rehman, Advocate for Appellant. Muhammad Rashid Sheikh, Section Officer M/0 Defence alongwith his counsel Khalid Abbas. Date of hearing: 26.5.1996. judgment Muhammad Ismail, Member.-The appellant, Noor Muhammad Haleem, was serving as Meterologist (BPS-18) in the Meteorological Department when a seniority list was circulated in April, 1973, placing him at Serial No. 34 and Respondent No. 4, Abdul Majid, at Serial No. 35. Subsequently a revised Seniority List of Deputy Director/Senior Meteorologists was circulated in 1984, wherein too the appellant was shown senior to him as his name appears at Serial No. 6 while that of Respondent No. 4 at Serial No. 7. However, when the Central Selection Board-II, in its meeting held on 26.2.1995, considered the appellant alongwith Respondent No. 4 for promotion to the post of Director (BPS-19), it did not clear him as his score was less than the requisite threshold of 60 marks. The appellant was superseded several times but lastly when Respondent No. 13, ShaukaT Ali Arain, was promoted to BPS-19 on 23.4.1994, he submitted a departmental appeal on 12.6.1994, which remained unresponded to. He then approached the High Court for obtaining directions for the disposal of his departmental appeal. It was on the basis of the directions of the High Court, that the appellants departmental appeal was disposed of on 23.1.1996 and the reply thereto was communicated to him on 29.6.1996. The appellant then filed the present appeal before this Tribunal on 25.2.1996 under section 4 of the Service Tribunals Act, 1973. 2. The appellant's case is that the qualification of the ACRs was taken into consideration without grant of two marks of teaching experience coupled with negative marking of 3 marks on account of punishment of "Censure" and it was for this reason that the qualification of 62 marks was brought down the requisite threshold of 60 marks. According to the learned counsel, the appellant was entitled to two marks on account of teaching experience at the institute of eterology/Geophysics, Karachi , but they were not added to raise the qualification. He also alleged that the ACRS for the years 1969, 1978, 1979, 1980 and 1981 were got initiated from his colleagues of the same cadre and status, who were incompetition with him for the next post and as such the reports were a nullity in the eye of law and can be treated as non-existant. The learned counsel stressed, that the qualifications for all these years had to be calculated keeping in view the appellants previous record and that he should not be deprived of promotion on the basis of the reports for the said years. 3. The learned counsel for the respondents admits, that the appellant was placed above the respondent No. 4 in both the seniority lists but he argued that when his case was considered for promotion, his score fell short of the requisite standard and as such the Central Selection Board II did not clear him for BPS-19. The appellant was awarded a minor penalty of censure in 1979 but he did not challenge the same before any competent forum. Subsequently, when he addressed a representation to the Secretary in 1993, the said penalty was withdrawn. Since the appellant's record of service was indifferent and the quantified score was less than the minimum threshold of 60 marks, he was not cleared by the Central Selection Board-II more than once. He further argued, that the appellant's appeal is incompetent as no appeal lies against the supersession, unless mala fide is proved. 'In the instant case, no mala fide is proved and, therefore, the appellant cannot challenge his grievance by way of appeal before this Tribunal. Regarding the objection that ACRs for the year, 1969 1978, 1979, 1980 and 1981, were initiated by his colleagues and as such they were not of any importance, it "was submitted that the reports were written by the Deputy Director and countersigned either by the Director or by the Director General and, therefore, they were valid and did not lose their sanctity. It was also submitted, that although the adverse remarks were expunged and the penalty of "censure" was withdrawn, nevertheless the overall gradings in the ACRs of the appellant for the years 1969, 1972 and 1989 were not upgraded and thus he could not achieve the minimum threshold of 60 marks. The learned counsel further submitted, that the appellant was considered for promotion 1>> the CSB-II in its meetings held on 20.2.1985 27.6.1986, 11.2.1991, 13.12.1992 and 20.2.1994, but he was superseded on each occasion, as he could not achieve the target of minimum threshold of 60 marks and indifferent record, as such the appellant's request for proforma promotion with retrospective effect, does not merit consideration and, consequently, the appeal deserves dismissal. 4. We have heard both the parties and have also perused the record made available to us. Neither, the appellant nor the respondent-department has produced the minutes of the meeting and, therefore, without going through them, it is difficult for us to come to a correct conclusion. We are, however, constrained to observe that, on the one hand, the appellant is contesting that the ACRs for the years 1979, 1980 and 1981 were written by the incompetent officers, while on the other hand, he stresses that, had two marks been added to his score, he would have achieved more than the requisite threshold of 60 marks, and would have become eligible for the post of Director in 1985. Besides this, the appellant's submission that, after expunction of the adverse remarks and the withdrawal of the penalty imposed upon him, he was entitled to the promotion, is also of no avail to him, as admittedly no one becomes automatically entitled to higher post, after expunction of the adverse remarks. In the case reported as 1985 SCMR 1410, it has been laid down by the Hon'ble Supreme Court, that a person not found fit for promotion on account of adverse remarks, cannot on account of expunction of those remarks, get the order of supersession set aside. The appellant was superseded on account of indifferent record and it is not the appellant's case that, after the expunction of the adverse remarks, his overall garding was raised, therefore, the contention of the appellant, that he was entitled to promotion in higher grade is misconceived and merits no consideration. The alternative submission, that after the expunction of the adverse remarks, the respondents should have raised his grading is also of no avail to him, as in our view, mere expunction of the adverse remarks, does not ipso facto entitle a civil servant for higher grading, unless and until the ACR is upgraded. 5. The other plea of the learned counsel, that the appellant's ACRs for the year 1969, 1978, 1979, 1980 and 1981, were written by his colleagues and as such they are of little significance. We have seen the relevant ACRs and find substance in the contention of the appellant that they were written by the persons, who were holding similar post and status as that of the appellant and as such they were invalid as it has been laid down in para 2.33 of "A guide to Performance Evaluation" as under:- "that the'report should be initiated by the next higher officer and countersigned by an officer higher than reporting officer." The reports were admittedly written by the officers, who were the counterparts of the appellant and as such they ought to have been got re written by an officer, who was higher in rank and well-conversant with the work of the appellant but it is too late now and the appellant's grievance cannot be redressed at this stage. 6. Coming to the next objection, we find that if the appellant's contention regarding his seniority over respondent appellant's ontention regarding his seniority over respondent No. 4 is accepted, then his prayer for proforma promotion with effect from the date he (Abdul Majid) was promoted i.e. 20.2.1985, become a past and closed chapter, as he failed to seek remedy within the period prescribed by law in such matters and claim of the appellant is not entertainable. The appellant's grievance occurred on every supersession, therefore, in our view, his claim with effect from the dates the said Respondent No. 13 was promoted, cannot be rejected altogether. However, it has been laid down in the case reported as 1986 PLC (CS) 174, that the proforma promotion cannot be challenged retrospectively and the act of Government in not giving promotion to a civil servant, does not result in any infringement of his fundamental rights under the Constitution. Again in the case reported as 1985 PLC (CS) 28, it was laid down that proforma promotion cannot be claimed as of right and it is absolutely for the department to see whether a civil servant can be granted proforma promotion or not. Therefore, ordinarily, this Tribunal does not interfere with the discretionary powers of the concerned departmental hierarchy, as irrespective of the above judgments, it has also been barred by section 4 of the Service Tribunals Act, 1973, read with section 22 of the Civil Servants Act, 1973, but at the same time, there is no dearth of authorities, wherein it has been held that this Tribunal can go into the question of promotion only if any injustice had been done to a civil servant. If any authority is needed we would quote PLD 1980 SC 22, 1991 SCMR 1129 and PLD 1994 SC 539. In this case we find that the respondents have failed to establish that 2 marks of teaching experience had been added to the appellant's score when he was considered for promotion. We, therefore, remand the case to the Respondent Department, to look into the matter as it appears from the letter dated 24.8.1991, that the appellant had remained posted in the Institute of Meteorology and Geophysics as Senior Instructor from 26.10.1977 to 26.6.1982. The Respondent Department is at liberty to judge the appellant's suitability in BPS-19 only with effect from the date Mr. Shaukat Ali, Respondent No. 13, was promoted and not prior to that as he had remained indolent in seeking remedy at the relevant time. 7. In the result the appeal is disposed of in the manner and to the extent indicated above with no order as to costs. (M.S.N.) Case remanded.
PLJ 1997 PLJ 1997 Tr.C. (Services) 293 [Federal Service Tribunal, Islamabad ] Present: muhammad ismail, roshan alt mangi and muhammad raza khan, members. NOOR MUHAMMAD HALEEM--Appellant versus PRIME MINISTER OF PAKISTAN etc.« Appeal No. 135(4l)/96, decided on 25.2.1996. (i) Civil Servants Act, 1973- S. 4 read with section 22--CM1 servant case of--Proforma promotion- Question of-Ordinarily, Federal Service Tribunal does not interfere with discretionaiy powers of concerned departmental hierarchy, but at the same time, there is no dearth of authorities, wherein it has been held that Tribunal can go into the question of promotion only if any injustice had been done to a civil servant. [P. 296] B PLD 1980 SC 22, 1991 SCMR 1129 and PLD 1994 SC 539 rel. (ii) Service Matter- Civil servant-Case of-Contention that ACRs were written by persons, who were holding similar post and status as that of appellant and as such they were invalid-ACR's of appellant were got initiated from his colleages of same cadre and status, who were in competition with him for next post and as such reports were nullity in the eye of law. [P. 295] B Hafiz S.A Rehman, Advocate for Appellant. Muhammad Rashid Sheikh, Section Officer M/0 Defence alongwith his counsel Khalid Abbas. Date of hearing: 26.5.1996. judgment Muhammad Ismail, Member.-The appellant, Noor Muhammad Haleem, was serving as Meterologist (BPS-18) in the Meteorological Department when a seniority list was circulated in April, 1973, placing him at Serial No. 34 and Respondent No. 4, Abdul Majid, at Serial No. 35. Subsequently a revised Seniority List of Deputy Director/Senior Meteorologists was circulated in 1984, wherein too the appellant was shown senior to him as his name appears at Serial No. 6 while that of Respondent No. 4 at Serial No. 7. However, when the Central Selection Board-II, in its meeting held on 26.2.1995, considered the appellant alongwith Respondent No. 4 for promotion to the post of Director (BPS-19), it did not clear him as his score was less than the requisite threshold of 60 marks. The appellant was superseded several times but lastly when Respondent No. 13, ShaukaT Ali Arain, was promoted to BPS-19 on 23.4.1994, he submitted a departmental appeal on 12.6.1994, which remained unresponded to. He then approached the High Court for obtaining directions for the disposal of his departmental appeal. It was on the basis of the directions of the High Court, that the appellants departmental appeal was disposed of on 23.1.1996 and the reply thereto was communicated to him on 29.6.1996. The appellant then filed the present appeal before this Tribunal on 25.2.1996 under section 4 of the Service Tribunals Act, 1973. 2. The appellant's case is that the qualification of the ACRs was taken into consideration without grant of two marks of teaching experience coupled with negative marking of 3 marks on account of punishment of "Censure" and it was for this reason that the qualification of 62 marks was brought down the requisite threshold of 60 marks. According to the learned counsel, the appellant was entitled to two marks on account of teaching experience at the institute of eterology/Geophysics, Karachi , but they were not added to raise the qualification. He also alleged that the ACRS for the years 1969, 1978, 1979, 1980 and 1981 were got initiated from his colleagues of the same cadre and status, who were incompetition with him for the next post and as such the reports were a nullity in the eye of law and can be treated as non-existant. The learned counsel stressed, that the qualifications for all these years had to be calculated keeping in view the appellants previous record and that he should not be deprived of promotion on the basis of the reports for the said years. 3. The learned counsel for the respondents admits, that the appellant was placed above the respondent No. 4 in both the seniority lists but he argued that when his case was considered for promotion, his score fell short of the requisite standard and as such the Central Selection Board II did not clear him for BPS-19. The appellant was awarded a minor penalty of censure in 1979 but he did not challenge the same before any competent forum. Subsequently, when he addressed a representation to the Secretary in 1993, the said penalty was withdrawn. Since the appellant's record of service was indifferent and the quantified score was less than the minimum threshold of 60 marks, he was not cleared by the Central Selection Board-II more than once. He further argued, that the appellant's appeal is incompetent as no appeal lies against the supersession, unless mala fide is proved. 'In the instant case, no mala fide is proved and, therefore, the appellant cannot challenge his grievance by way of appeal before this Tribunal. Regarding the objection that ACRs for the year, 1969 1978, 1979, 1980 and 1981, were initiated by his colleagues and as such they were not of any importance, it "was submitted that the reports were written by the Deputy Director and countersigned either by the Director or by the Director General and, therefore, they were valid and did not lose their sanctity. It was also submitted, that although the adverse remarks were expunged and the penalty of "censure" was withdrawn, nevertheless the overall gradings in the ACRs of the appellant for the years 1969, 1972 and 1989 were not upgraded and thus he could not achieve the minimum threshold of 60 marks. The learned counsel further submitted, that the appellant was considered for promotion 1>> the CSB-II in its meetings held on 20.2.1985 27.6.1986, 11.2.1991, 13.12.1992 and 20.2.1994, but he was superseded on each occasion, as he could not achieve the target of minimum threshold of 60 marks and indifferent record, as such the appellant's request for proforma promotion with retrospective effect, does not merit consideration and, consequently, the appeal deserves dismissal. 4. We have heard both the parties and have also perused the record made available to us. Neither, the appellant nor the respondent-department has produced the minutes of the meeting and, therefore, without going through them, it is difficult for us to come to a correct conclusion. We are, however, constrained to observe that, on the one hand, the appellant is contesting that the ACRs for the years 1979, 1980 and 1981 were written by the incompetent officers, while on the other hand, he stresses that, had two marks been added to his score, he would have achieved more than the requisite threshold of 60 marks, and would have become eligible for the post of Director in 1985. Besides this, the appellant's submission that, after expunction of the adverse remarks and the withdrawal of the penalty imposed upon him, he was entitled to the promotion, is also of no avail to him, as admittedly no one becomes automatically entitled to higher post, after expunction of the adverse remarks. In the case reported as 1985 SCMR 1410, it has been laid down by the Hon'ble Supreme Court, that a person not found fit for promotion on account of adverse remarks, cannot on account of expunction of those remarks, get the order of supersession set aside. The appellant was superseded on account of indifferent record and it is not the appellant's case that, after the expunction of the adverse remarks, his overall garding was raised, therefore, the contention of the appellant, that he was entitled to promotion in higher grade is misconceived and merits no consideration. The alternative submission, that after the expunction of the adverse remarks, the respondents should have raised his grading is also of no avail to him, as in our view, mere expunction of the adverse remarks, does not ipso facto entitle a civil servant for higher grading, unless and until the ACR is upgraded. 5. The other plea of the learned counsel, that the appellant's ACRs for the year 1969, 1978, 1979, 1980 and 1981, were written by his colleagues and as such they are of little significance. We have seen the relevant ACRs and find substance in the contention of the appellant that they were written by the persons, who were holding similar post and status as that of the appellant and as such they were invalid as it has been laid down in para 2.33 of "A guide to Performance Evaluation" as under:- "that the'report should be initiated by the next higher officer and countersigned by an officer higher than reporting officer." The reports were admittedly written by the officers, who were the counterparts of the appellant and as such they ought to have been got re written by an officer, who was higher in rank and well-conversant with the work of the appellant but it is too late now and the appellant's grievance cannot be redressed at this stage. 6. Coming to the next objection, we find that if the appellant's contention regarding his seniority over respondent appellant's ontention regarding his seniority over respondent No. 4 is accepted, then his prayer for proforma promotion with effect from the date he (Abdul Majid) was promoted i.e. 20.2.1985, become a past and closed chapter, as he failed to seek remedy within the period prescribed by law in such matters and claim of the appellant is not entertainable. The appellant's grievance occurred on every supersession, therefore, in our view, his claim with effect from the dates the said Respondent No. 13 was promoted, cannot be rejected altogether. However, it has been laid down in the case reported as 1986 PLC (CS) 174, that the proforma promotion cannot be challenged retrospectively and the act of Government in not giving promotion to a civil servant, does not result in any infringement of his fundamental rights under the Constitution. Again in the case reported as 1985 PLC (CS) 28, it was laid down that proforma promotion cannot be claimed as of right and it is absolutely for the department to see whether a civil servant can be granted proforma promotion or not. Therefore, ordinarily, this Tribunal does not interfere with the discretionary powers of the concerned departmental hierarchy, as irrespective of the above judgments, it has also been barred by section 4 of the Service Tribunals Act, 1973, read with section 22 of the Civil Servants Act, 1973, but at the same time, there is no dearth of authorities, wherein it has been held that this Tribunal can go into the question of promotion only if any injustice had been done to a civil servant. If any authority is needed we would quote PLD 1980 SC 22, 1991 SCMR 1129 and PLD 1994 SC 539. In this case we find that the respondents have failed to establish that 2 marks of teaching experience had been added to the appellant's score when he was considered for promotion. We, therefore, remand the case to the Respondent Department, to look into the matter as it appears from the letter dated 24.8.1991, that the appellant had remained posted in the Institute of Meteorology and Geophysics as Senior Instructor from 26.10.1977 to 26.6.1982. The Respondent Department is at liberty to judge the appellant's suitability in BPS-19 only with effect from the date Mr. Shaukat Ali, Respondent No. 13, was promoted and not prior to that as he had remained indolent in seeking remedy at the relevant time. 7. In the result the appeal is disposed of in the manner and to the extent indicated above with no order as to costs. (M.S.N.) Case remanded
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 297 [Federal Service Tribunal, Islamabad ] Present: muhammad islam and noor muhammad magsi, members. Syed SHAHID AKHTAR-Petitioner vei'sus M.A.G., RAWALPINDI and another-Respondents Appeal No. 495(R)/95, decided on 6-2-1996. Adverse Remarks- Civil Servant-Adverse remarks-Expunction of-Prayer for-Rejection of Appeal against-Adverse remarks recorded in ACR are not based on facts and deserves to be expunged-Held : There is no technical defect with adverse remarks recorded in appellant's ACR-Repoiting Officer has pointed out not only to weak points of appellant but also mentioned in pen-picture that he is intellectual, intelligent, hardworkerThis shows that Reporting Officer has given quite independent assessment of performance of appellant during year in question-Impugned remarks are fully justifiedAppeal dismissed. [P. 298] A S.M.A Wahidi, Advocate alongwith Appellant. KhalidAbdus Khan, Federal Counsel for Respondent. Dated of hearing: 6-2-1996. judgment Noor Muhammad Magsi, Member.--The appellant who is working as Assistant Estate Officer (Accounts) in the Estate Office, Islamabad has filed this appeal for expunction of adverse remarks recorded in his ACR for the year 1990 which was conveyed to him on 15-8-91. On receipt of the copy of the ACR containing adverse remarks, the appellant represented to respondent No. 1 on 26-8-91 which was ultimately rejected vide order dated 28-11-95. 2. We have heard the parties. It has been argued by the Counsel for the appellant that the adverse remarks recorded in his ACR for the year 1991 are not based on facts and deserves to be expunged. He also contended that the appellant actually served in NLC from 30-4-90 to 31-12-90, as such the period of report should have been for the said period instead of 1-1-90 to 31-12-90 as mentioned in the ACR communicated to the appellant. 3. A perusal of the ACR communicated to the appellant and the adverse remarks mentioned in para 4 of the appeal shows that all of them are based on the personal knowledge of the Reporting Officer as well as the Countersigning Officer under whom the appellant has been working in major pail of the year 1990. The learned counsel for the appellant despite his best efforts, was not in a position to raise any technical objection against the remarks awarded to the appellant. The Reporting Officer was the best judge for the assessment of the performance of the appellant under whose immediate supervision he worked during the year in question. It is also borne out from the record that there were disciplinary cases against the appellant during the year in question which is indicative of the fact that the remarks awarded to the appellant are well founded. The same have also been confirmed by the Countersigning Officer who has specifically mentioned that 1 the appellant proved himself to be untrustworthy. In this state of affairs, we do not find any technical defect with the adverse remarks recorded in the appellant's ACR. The Reporting Officer has pointed out not only the weak points of the appellant but has also mentioned in pen-picture that he is . intellectual intelligent hard worker. This shows that the Reporting Officer j has given quite independent assessment of the performance of the appellant ! during the year in question. 4. In view of the above, we do not find any reason to expunge the impugned remarks which are fully justified. However, the mistake which requires to be rectified is that the report for the year 1990 ought to have been considered only for the period from 30.4.90 to 31.12.90 during which the appellant worked in N.L.C. under the Reporting Officer. With this modification, the appeal is dismissed. No order as to costs. (M.M.A.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 298 [Federal Service Tribunal, Islamabad ] Present: noor muhammad magsi and muhammad raza khan, members. ABDUL HAFEEZ SIDDIQI-Appellant versus GENERAL MANAGER PAKISTAN RAILWAYS H.Q. LAHORE and anotherRespondents
Appeal No. 45(k) of 1996, decided on 9-4-1996. Service Matter- Civil Servant-Retired after rendering thirty four years, nine months and 24 days of service "'with respondent department (Pakistan Railway)- Commutation of pension-No benefit was allowed for extra period of nine month and 24 days-Benifits of extra year of service will be admissible only on completed year of service and no benefit could be allowed for a period of which was less than a year-Contention of-ESTACODE had prescribed in several provisions that deficiency of less than six month is always to have been candoned and service of a fraction of a years for more than six month will be considered to be completed years without any requirement of order of condonation of deficiency-Held : Appellant had undoubtedly rendered service for a period of 9 months and 24 days and this period has to be deemed to be a completed year without any requirement of condonation from any quarter-Appeal accepted. [P. 299 & 300] A & B Ainuddin Khan, Advocate alongwith the Appellant. Miss Naheed Ahmed, Advocate for Respondent department. Date of hearing: 17-2-1997. judgment Muhammad Raza Khan, Member.--The case of the appellant was that he retired from service on 8.12.95 after rendering thirty four years, none months and twenty four days of service with the respondent department. He was allowed pension and consequential benefits for 34 years of service. However, not benefit was allowed for the extra period of nine months and 24 days. He has demanded for the calculation of pension for the said additional period and the recalculation of commutation value on the said basis. The respondent department was of the opinion that vide notification dated 9.7.1986, the benefits of extra years of service will be admissible only on the completed year of service and, therefore, no benefit could be allowed for a period which was less than a year. The comments had also stated that the appellant had tried to short-cut the procedure and had not exhausted the departmental remedy. 2. The perusal of the record shows that the second objection on behalf of the respondent department was not correct. Departmental remedy was exhausted and a departmental appeal was filed by the appellant on 8.1.96. So far as the merits of the case are concerned, the appellant has admittedly served for almost 35 years with a deficiency of two months and 6 days only. The ESTACODE had prescribed in several provisions that the deficiency of less than six months is always deemed to have been condoned and the service of a fraction of a year for more than six months will be considered to be a complete year without any requirement of order of condonation of deficiency. However, the deficiency for more than six months could not be considered as a full year unless the deficiency is condoned by the competent authority. Thus, the scheme of the policy was that the employees may be extended the maximum benefit for the period of service rendered by them. The service for a period of less than six months could also be computed to be a full year after and delay is condoned whereas in the instant case the appellant had undoubtedly rendered service for 9 months and 24 days and this period has to be deemed to be a complete year without any requirement of condonation from any quarter. 3. Not only in cases of computation of period for the purpose of qualifying service but generally in all practical matters, the fraction of less than half in ignored but the fraction of more than half is considered to be a complete unit. Moreover, in view of general principles of interpretation a provision of law or rule is to be interpreted in favour of the citizen. The deficiency of two months and 6 days can certainly be allowed to be condoned instead of ignoring a period of 9 months and 24 days without any benefit. So far as the department is concerned, it will suffer a petty amount of a benefit of Rs. 51/- in the pension and less than ten thousand of rupees as commutation amount, but it will have a dual effect-firstly the appellant will get sufficient benefit out of this meagre amount and secondly the other employees will be motivated by the favourable benevolence on the part of the respondent department. The departmental appeal as already there for almost one year but it is unfortunate to observe that it was not placed before the competent authority for appropriate favourable orders. 4. The clarification of AGPR relied by the respondent department cannot supersede the general instructions of the Federal Government contained in the ESTACODE and the policy guidelines for computation of pension. The President was pleased to allow a benefit of 2% increase in pension for each extra year of service rendered beyond thirty years. This benefit was to be extended with the same spirit. The clarification of AGPR also amounts to declare that the benefit of 2% increase in pension will be calculated in terms of years only and not in terms of months, meaning thereby that a person serving for a couple of months in the extra year beyond thirty years of service will either be allowed benefit for the entire year by condonation of the deficiency or otherwise, but the pension cannot be computed on the basis of fraction of 2% for the months in a year for rendering extra service. '5. With these observations, the appeal is accepted and the respondent department is directed to recalculate the pension by counting nine months and 24 days as complete one year for the purpose of computation of pensionary benefits and release the said amount to the appellant on the basis of recalculated pension and commutation. No order is made for costs. (M.M.A.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Service) 301 [Federal Service Tribunal, Islamabad ] Present: mr. noor muhammad magsi and muhammad raza khan, members. IRFAN ANWAR BALOCH-Appellant versus SECRETARY MINISTRY OF COMMUNICATIONS ETC.--Respondents Appeal No. 59(K) of 1996, decided on 17-2-1997. (i) Discrimination- Discrimination-Term discrimination denotes refusal of a vested right of one particular person and grant of same right to another one carrying junior merit-Extending favour without existence of a vested right does not become a precedent for another similarly placed person with no vested right. [P. 303] A (ii) Favouritism- -Appellant refused group of his choice at time of selection-Discrimination on ground of favouritism-Challenged to-Held: Do not find any element of violation of any vested right of appellant-Cases of favouritism cannot become precedents nor vest a particular person with any valuable right on point of discrimination-Appeal dismissed. [P. 303] C (iii) Limitation- Limitation-Appellant belongs to 1986 batch whereas first representation demanding reallocation of group was made in November, 1995 i.e. almost nine years after accrual of cause of action-Service laws prescribed schedule of limitation for seeking remedy not beyond scope of 120 days- Held : Much water has flowed below bridges during past decade-Several people have matured their vested rights of seniority at a particular positionClock cannot be reversed for ten years to accommodate appellant in a group to which he was allegedly entitled in 1986Service appeal based on a time-barred representation is never competent-Even appeal filed six months after appellate orderAppeal dismissed. [P. 304] D (iv) Vested rights- Vested rights-Enforcement of-Vested rights can be enforced through judicial or Constitutional process but concessions, favours and extension of facilities do not invoke judicial jurisdiction. [P. 303] B Mr. Shabbir Ahmad Awan, Advocate for Appellant. Niaz Ahmad Khan, Advocate for Respondents. Date of hearing: 17.2.1997. judgment Muhammad Raza Khan, Member.-The appellant had participated in the competitive examination held by the Federal Public Service Commission in the year 1986. In the merit list, he secured the position at S. No. 367 on all-Pakistan basis which was calculated to be at S. No. 14 in the further bifurcated merit list of Urban Siridh. He belongs to Sukkur (urban Sindh). It is contended in the appeal that at the time of application for participation in the competitive examination, the appellant had mentioned his choice of Groups as District Management Group Police Group, etc. etc. However, as a result of the final conclusion of the selection process, he was allocated Postal group. There was also a condition in the officer letter that no representation shall lie against the allocation of a particular group, hence allegedly, in compliance of the said provision, the appellant did not file any representation to any quarter. However, the appellant found that the respondent No. 5, who was placed at S. No. 390 in the merit list of the said examination of 1986 was allocated District Management Group. Another person namely Dr. Fazlullah Pechuhu appearing at S. No. 258 was reallocated District Management Group on 22.1.93. It was also alleged that vide yet another order dated 2.3.94, one Mr. Ali Mumtaz Zaidi was allocated District Management Group from the Information Group. He was also a participant of 1986 batch. Thus, the appellant considered himself to have suffered discrimination and filed a representation in 1995 which was forwarded by his Ministiy to the establishment Division on 1.11.95. This representation was rejected on 17.1.96 and allegedly the appellant filed an appeal on 10.3.96 but the same was also rejected in April 1996 and the result whereof was communicated vide letter dated 11.6.96. Hence in the present appeal, filed on 20.6.96, the appellant asks for his reallocation from the Postal Group to the District Management Group. 2. The respondents contested the appeal. We have listened to the arguments on behalf of the parties and perused the record of the case including the written objections filed on behalf of the respondent department. 3. Prior to commencement of discussion on merits of the case, we must place on record that the main stress of the appellant was placed on the point of discrimination as allegedly the others were allowed the benefit of reallocation to a better Group whereas he was being refused. Except the respondent No. 5 none else junior to the appellant in the merit list was reallocated 1 the better Group which means that the appellant who was placed at S. No. 367 was not allocated the Group of his choice and similarly Dr. Fazlullah Pechuhu placed at much better position at S. No. 258 was also not originally allocated the Group of his choice. Similarly, others, carrying better position than the appellant, were also not placed in the relevant Group. However, some of them pursued their remedy and got the Group changed through various agencies. This reallocation may termed as favouritism but it cannot amount to discrimination. The term discrimination denotes the refusal of a vested right of one particular person and grant of the same right to another one carrying junior merit. Extending favour without the existence of a vested right does not become a precedent for another similarly placed person with no vested right. Thus, so far as the appellant is concerned, he was not vested with any right to be allocated a particular Group and the reallocation of Group to a person placed 23 steps below the appellant does not invest him with an immediate right to be so favoured. Not only the 22 persons falling in between the appellant and the respondent No. 5, but dozens of persons, at least, falling between S. No. 258 to 390 were also similarly ignored but the extension of special favour does not become a precedent for all of them of demand similar treatment. Vested rights can be enforced through judicial or constitutional process but concessions, favours and extension of facilities do not invoke the judicial jurisdiction, particularly when there was no immediate right of the appellant to be the sole affectee of the alleged discrimination. In the earlier judgments of this tribunal, it was also held that the orders passed by an authority and implemented by the respondent department cannot be invalidated thereafter either on the ground of discrimination or on the basis of incompetence of the competent authority. Thus, we do not find any element of violation of any vested right of the appellant and we further hold that the cases of favouritism cannot become precedents nor vest a particular person with any valuable right on the point of discrimination. 4. Another issue requiring analysis and deliberation is with regard to the limitation. The appellant belongs to 1986 batch whereas the first representation demanding the reallocation of the Group was made in November, 1995 i.e. almost nine years after the accrual of cause of action. The service laws have carefully prescribed schedule of limitation for seeking remedy but no period of limitation extends beyond the scope of 120 days. The filing of service appeal after 120 months is entirely inconceivable not only in service matters but in any other case of enforcement of civil rights. Confronted with this situation, the learned counsel for the appellant argued that since the basic order where-from the appellant has been aggrieved, was a void one, therefore, limitation would not run against the same. We are at a loss to appreciate the force behind this argument. If the selection of the appellant or allocation of Postal Group to him was a void order, he loses all the ground. If the decision of the FPSC regarding the allocation of Postal Group in denial of the choice of District Management Group was deemed to be a void order, the appellant should have protested earlier. In fact, the analysis of the entire situation discloses that there was no order at all which was being stamped as void one. Therefore, the argument of extension of period of limitation on the ground of the order being void is repelled. 5. The learned counsel for the appellant argued that the main defence of the respondents in their written objections was that the allocation of Group was the sole discretion of the Federal Public Service Commission and it is based on the determination of suitability by the said Commission and no other authority or forum was competent to order the reallocation of any Group or to convert the unsuitability of a candidate for a particular Group into his suitability for the same. Based on this contention of the respondents, the learned counsel for the appellant argued that in several cases, the Groups have been changed not by the Commission but by various other agencies like the Prime Minister's Secretariat, Establishment Division; Federal Service Tribunal and the Wafaqi Mohtasib. This argument is also devoid of force to a great extent. This Tribunal had simply directed in five appeals that the order of an authority, howsoever invalid, if implemented, cannot be reversed on the principle of locus poenitentia. Therefore, no reallocation was ordered by the tribunal. Similarly, the perusal of the findings recorded by the Wafaqi Mohtasib shows that he has highlighted the defects in the procedure that was being followed in the selection during the competitive examination and the allocation of Groups. Such a finding has resulted in the issuance of recommendations only and no executable judgment had been passed. Similarly, the establishment Division had issued notifications on the basis of certain observations of the Wafaqi Mohtasib Secretariat and, therefore, it has not reallocated the Group. In addition thereto, the exercise of an authority not vested in a person or an institution, cannot become a precedent for a similar exercise of authority by any other institution. It is generally stated that legal orders are considered to be precedents for similar orders but illegalities cannot serve as precedents for other illegalities. The order made by several agencies were, as per learned counsel for the appellant, passed by excessive use of authority, does not justify the demand for repetition of such an order in future. Even otherwise, if the appellant persists his claim, he could also have availed the same remedy as the others have adopted but the filing of a service appeal against a non-existent original impugned order is not conceivable. 6. With regard to question of limitation, it may be stated that the cause of action had accrued to the appellant in 1986. Much water has flowed below the bridges during the past decade. Several people have matured their vested right of seniority at a particular position. The clock cannot be reversed for ten years to accommodate the appellant in the Group to which he was allegedly entitled in 1986. The first representation was made by the appellant in late 1995 which was dismissed on the point of limitation. Had the said representation been decided by the department on merits without indicating the representation as time barred, the delay could have been deemed to have been condoned by the department. However, the said representation had been rejected on the legal issue of limitation and the service appeal based on a time-barred representation is never competent. Even the appeal had been filed on 20.6.96. i.e. almost six months after the appellate order>whereas the law prescribes the period of thirty days only to challenge an appellate order by service appeal. 1. Thus, looking to the case from every angle, we find that the appellant did not seek his legal remedy within time. He was not considered suitable for any of the Groups mentioned by him in the order of choice. There was no violation of any vested right, the extension of favour to another colleague does not become a precedent to be followed lor him and that too after the expiry often long years, we are of the opinion that there is no force in this appeal which is hereby dismissed. No order as to costs. (M.M.A.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 305 [Federal Service Tribunal, Islamabad ] Present: mr. muhammad raza khan and mr. nasim sabir syed, members. MAZHAR QAYYUM-Appellant versus WAPDA THROUGH ITS CHAIRMAN and 2 others-Respondents Appeal No. 84(L)/1996, dismissed on 5.6.1996. (i) Interpretation- -Rules, regulations, statutes and even Constitution can be interpreted but demands and expectations are not liable to interpretation. [P. 308] D (ii) Service Matter-- ... -Every discrimination to a civil servant does not entitle him to file service appeal-Discrimination in withdrawal of a right or entitlement amending terms and conditions of service of a civil servant can be rectified by Federal Service Tribunal-However, discrimination for extension of benefit or application of policies could not be rectified by service appeal. [P. 308] C (iii) Service Tribunals, Act, 1973 (LXX of 1973)-- ....S. 5-Under Section 5 of Service Tribunals Act, 1973 Tribunal can either confirm, set aside, vary or modify order appealed against. [P. 307] A (iv) Service Tribunals, Act, 1973 (LXX of 1973)- -Tribunal does not have any power to create a rightIt can simply restore an established right by confirming, setting aside or modifying impugned order. [P. 307] B Mr. Nazir Ahmad Qureshi, Advocate for Appellant. Mr. Abdur Rehman Madni, Advocate for Respondents. Date of hearing: 5.6.1996. judgment Muhammad Kaza Khan, Member.-The appellant is employed as Store Keeper Regional Stores Wapda. On 29-8-1994 he filed an appeal to the Secretary WAPDA asking for extension of scheme of selection grade to the Junior Store Keepers, Senior Store Keepers and Stock Clerks of the Stores Staff. No action was allegedly taken on the said appeal and he filed a writ petition before the Lahore High Court wherein he was directed to file a representation to the next higher authority against the non-disposal of the appeal expeditiously. Consequently he filed an appeal to the Chairman, WAPDA on 14.12.1995. This representation was also not decided within six weeks as stipulated by the High Court So the appellant filed a contempt petition as a result of which the respondent No. 2 intimated the rejection of the said appeal vide his letter dated 17-3-1996. Although this letter has been made the basis of this appeal but it has not been challenged or assailed in the grounds of appeal filed on 9-4-1996. 2 In the said appeal the appellant has referred to various orders whereby certain percentage of almost every cadre of employees have been placed in selection grade by the Authority, however, the staff connected with store except helpers have been excluded from the benefit of such scheme. Thus by way of this appeal the extension of scheme has been demanded and its refusal has been challenged as discriminative, arbitrary and inequitable. 3. The respondents filed their written objections stating therein that the Inventory Control Staff was granted better scales as compared to their counter-parts in other Wings of the same Department. It was further added that Senior Store Keepers and Junior Store Keepers in the Inventory Control are allowed BPS-12 and BPS-11 respectively whereas the employees with the same designation working in other Wings of the Department are allowed BPS-7 and BPS-5 respectively. Therefore, the appellant and other staff of Inventory Control has not been discriminated rather they have been given preferential treatment. Since they were already on better footings, therefore, the extension of the scheme was not found advisable. Certain legal objections were also raised. 4. The service appeal can be filed under section-4 of the Service Tribunals Act, 1973 but any civil servant who is aggrieved by any order affecting the terms and conditions of his service can file such an appeal. Thus < the pre-requisite of filing the service appeal is that there must be any guaranteed terms and conditions of a particular civil servant which must have been violated by some order of the departmental authority. In the instant case there is neither any vested right of the grant of selection grade to the appellant and others no such facility has been withdrawn by any original order. The appellant has at the most raised a demand for the grant of a facility and the demands cannot become an entitlement and part of the terms and conditions of service unless it is accepted and notified accordingly by the competent authority. Hence the demand does not mature in the terms and conditions of service and the service appeal is, therefore, incompetent. 5. There has been no original order whereby the appellant could have been aggrieved. Normally a grievance is caused to the civil servant by an order of the departmental authority which is challenged by way of representation or appeal and then a service appeal is filed. The instant case was set in motion by the appeal in the form of a demand for the extension of a facility. This does not specify the requirements of section-4 of the Act. The learned counsel for the appellant very aptly remarked that servant can approach the Tribunal against, any original or appellate order and although there is no original order in this case but there is certainly an appellate order dated 17-3-1996 which can be challenged by a service appeal. The argument, although brilliant and spontaneous, is not convincing for the reason that appellate order cannot be conceived without existence of the original order. The term appeal itself denotes that there is an original order which is being challenged before the higher authority in appeal. The appellant order follows subsequently. Therefore, there must be an original order as well as appellate order and in the presence of both the orders are aileast the original order, the aggrieved civil servant has choice to challenge the original or appellate order in the service appeal. In the instant case there has been no original order and, therefore, the appeal is incompetent on this ground as well. 6. In this case as stated earlier, there is no original order which could have been amended or modified by the appellate authority. The appeal was practically in the form of a demand which has been rejected. Something additional was demanded which is refused. Nothing has been taken away. Therefore, the terms and conditions have not been affected adversely because the adverse orders are passed when something admissible is being withdrawn. The selection grade was not admissible earlier and it is not admissible even when the appeal was filed or it was rejected. 7. The same analogy off the power of the appellate authority extends to the jurisdiction of this Tribunal as well. Under Section-5 of the Service Tribunals Act, 1973 the Tribunal can either confirm, set aside, vary or modify the order appealed against. In the absence of an original entitlement and the adverse order there is nothing to be set aside to restore the original facility, no modification or alteration of the impugned order can restore the benefits or terms and conditions to the appellant. The Tribunal does not have any power to create a right. It can simply restore an established right B by confirming, setting aside or modifying the impugned order. Hence we conclude that the appeal was misconceived and incompetent. 8. The learned counsel for the appellant further urged that failure to extend a benefit to a particular class of employees amounts to discrimination which has not been considered in accordance with the injunctions of Islam as held by the Federal Shariat Court . We are in full agreement what discrimination is neither allowed in Islam nor under the Constitution. However, the forum selected by the appellant is no appropriate. The appellant could have gone to the appropriate forum for the rectification of discriminative treatment. Every discrimination to a civil servant does not entitle him to file service appeal. Discrimination in withdrawal of a right or entitlement amending the terms and conditions of service of a civil servant can be rectified by this Tribunal. However, discrimination for the extension of benefit or application of policies could not be rectified by service appeal. 9. Another ground taken on behalf of the appellant and based on the verdict of the Hon'ble Supreme Court reported in PLD 1978 SC 61 relates to the interpretition of service rules in favour of the civil servants. We again endorse the argument that when two interpretitions are possible of a legal proposition the one favouring the employee has to be preferred rather the one favouring the State against the interest of the civil servant. However, in the instant case we are at a loss to appreciate which service rule is sought to be interpreted in favour of the appellant. Had there been a rule which would have created an entitlement in the appellant it would have been interpreted but in this case there is neither any rule nor any executive instructions in favour of the appellant. Rules, regulations statutes and even the Constitution can be interpreted but the demands and expectations are not liable to interpretation. 10. While further extending the principle of discrimination the appellant has demanded better facilities on the principle of "equal pay for equal work" If this may be the position, how will be the appellant react to the contention by the respondent that similarly placed Store Keepers in other Wings of Wapda are in scale No. 5 and the appellant was in scale No. 11. 11. Another point is also to be discussed before concluding the judgment. Under Section-4 of the Service Tribunals Act, 1973 the aggrieved civil servant can file service appeal but in the instant case it appears that the appellant seeks the extension of the policy of selection grade not only to him but to all the other Senior and Junior Store Keepers as well as the Stock Clerks in the Stores Department. Neither the rest of the employees have been impleaded as appellants nor even their names have been mentioned in the list to convert the present appeal into representative capacity under Order-1 Rule-10 of the Civil Procedure Code (which is though not directly applicable to the civil appeals). 12. The result is that we find the appeal as misconceived and incompetent which is hereby dismissed. In view of the unique nature of the appeal, there'shall be no order as to costs. Parties be informed. (M.S.N.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 309 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (retd.) ghulam ahmad, chairman. MUHAMMAD ASLAM ASHRAF-Petitioner Versus MANAGING DIRECTOR, WASA, LAHORE ETC.-Respondents Revision Petition No. LHR-352/96, dismissed on 16-7-1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 30--Transfer of an L.D.A. employee-Challenge to-Rejection of- Revision against-A subordinate (and even an officer) is liable to transfer any where any time and it is not vested right of a employee to remain posted at a particular place or stick to an assignment of choice- Presumption is that shifting of an employee is ordered in public interest, in exigencies of sendee or for administrative reasons-Held: Petitioner has not been able to bring home his stand-point that his frequent shifting is a sequel to his being a activist or a founder member of his trade union- His status of being a workman, is also a matter of doubt-He is only trying to hoodwink factual position and exploit issue for furtherence of his selfish endsPetition dismissed. [P. 310] A & B Kh. Tariq Masud, Advocate for Petitioner. Mr. M.A. Ghani, Advocate for Respondents. Date of hearing: 16-7-1996. judgment By an order dated 11.6.1996, the learned Punjab Labour Court No. 3, Lahore , at Ferozewala, rejected the prayer of the petitioner for staying his transfer from one place to another; and he has preferred the present revision petition to assail the soundness of the said order. 2. I have heard the learned counsel for the parties, and given my careful consideration to the submissions made by the petitioner in particular. 3. The learned Labour Court has, I must say, dealt with the matter in a comprehensive, as also objective manner. My own experience is that the civil servants and the employees of autonomous bodies generally exert political influence and make use of their contacts in getting posts and places of their choice, and if and when such a bid is foiled, they rush to courts and do not even hesitate to have recourse to the High Court, by filing writ petitions for restraining or quashing orders of their transfer. 4. In the instant case also, it has happened like that, as would be revealed, on a perusal of the impugned order itself. This person seems to be fond of the 'Construction Directorate', where he had a long stay,' stretching over about &h years. From there he was shifted to DMD (O & I\l), responsible for water supply, as also sewerage and drainage of the city. Pie had to be allocated to some Sub Division, and was posted ia the City Sub Division, vide order dated 22,3.1995. initial orders transferring him from the Directorate of Construction to the DMD (O & M) having been issued on 13.3.1995. He had not yet joined and the orders had not been implemented, and he was asked to join duty in the Township Division. It is rightly maintained by the respondents that these were not three transfers but it was in actual practice a single event of shifting of the official. He did not relish his assignment and made approaches to the Member, WASA of the LDA, for this transfer to the Construction Division, where in accordance with his own desire he was shifted on 5.6.1995, in place of one Taj Din, who got a stay order from a court of law, with the result that the posting order of the petitioner could not he implemented and he was asked to join duty in the Shahdara Sub Division. This post again was not one of his liking and he endeavoured to have his posting in the Hydrology Directorate. He was successful, but this order too could, not be acted upon, and he had to go to the Drainage Division, where he reported for duty on 8.2.1996, 5. It is thus not a long chain of transfers: but even if one, in service of the Government or a corporate body,, has to face such a dilemna, he has no right to grumble, since a subordinate (and even an officer) is liable to transfer any where any time, and it is not the vested right of an employee to remain posted at a particular place or stick to an assignment of choice. Presumption is that shifting of an employee is ordered in public interest, in exigencies of service, or for administrative reasons. It has aptly been observed by the learned Presiding Officer of the lower court that assertion of an employee thai he has been shifted owing to his trade union activities, not liked by his superiors, or that he has been made a victim of vengeance by his officers, cannot be taken for granted, and must not, be believed, without any evidence in support. The petitioner, in this case, has not been able to bring home his stand point that what he calls his frequent shifting is a sequel to his being an activist or a founder member of his trade union. His status of being a workman, eligible to invoke the j urisdiction of the Labour Court, in the matter, is also a matter of doubt still, and he will have to establish it, by leading relevant evidence in the lower court. He is only trying to hoodwink the factual position and exploit the issue for furtherence of his selfish ends. This he ought not be allowed to do. 6. The impugned order is not at all exceptionable, and the petitioner has no jtase for restraining his shifting from one place to another; and the revision petition therefore, is dismissed, being without merit. There shall be no order as to costs, (MYFK) Petition dismissed
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 311 [Federal Service Tribunal, Islamabad ] Present : AFTAB AHMAD, ROSHAN ALIMANGI AND muhammad raza khan, members. MUSHTAQ AHMAD--Appellant versus SECRETARY CABINET DIVISION ISLAMABAD and another-Respondents Appeal No. 52 (B) of 1996, accepted on 5.12.1996. Service Matter- Civil Servant-Promotion of-Case of-Non-Communication of ACR - Effect-Appellant was not communicated relevant adverse remarks, thus he was not in a position to defend himself, which is mandatory under law-Appeal accepted. [P. 315] A Mr. Shah Abdur Rashid, Advocate for Appellant. Mr. Javed Aziz Sandhu, Counsel for Respondents. Date of hearing: 5.12.1996. judgment Roshan All Mangi, Member.-The relevant facts leading to this appeal are that when working as Private Secretary (B-16) in the Cabinet Division, the appellant was sent on deputation to serve as Private Secretary to the Chief Election Commissioner, Azad Jammu & Kashmir (AJ&K) with Headquarters at Islamabad. While the appellant was serving as P.S. (B-16) the posts of the Private Secetaries in the Ministries and Divisions of the Government of Pakistan were upgraded from B-16 of B-17 alongwith their incumbents w.e.f. 1.7.1983 vide Office Memorandum dated 18.3.1986. 2. The appellant was repatriated to the Cabinet Division from the office of Chief Election Commissioner, w.e.f. 15.7.1988. On his return, he therefore, submitted an application with the request to allow him also the up-gradation in Grade-17 w.e.f. 1.7.83. as it was given to his other colleagues. His request was acceded to and he was given up t -gradation to B-17 w.e.f. 15.7.88 instead of 1.7.83 the date on which the other Private Secretaries had been upgraded to B-17 under Office Memo dated 18.3.86. On his written request he was given upgradation w.e.f. 1.7.83 in grade-17 vide Notification dated 25.5.1993. - 3. In the meanwhile, Office Memo was issued on 18.3.86 whereby the post of Private Secretaries was up-graded from B-17 to B-18 as per sub para (b), which reads as : "The incumbents of the post of Private Secretary (B-17) be eligible for the grant of B-18 after putting in 7 years satisfactory service in B-17." Since the appellant had rendered 7 years service in B-17, hence he became eligible for the grant of B-18 w.e.f. 1.7.1990. Accordingly he made several requests but no order in this respect was passed. 4. The appellant retired from service on 1.1.1994, after according to him, completing his entire service satisfactorily. 5. The appellant on 23.4.1995 made a formal representation to the competent authority claiming that he was entitled to grant of B-18 w.e.f. 1.7.1990 when he had completed 7 years of service in B-17 in terms of O.M. dated 18.3.86 as amended. But his request was rejected on 9.8.95 on the ground that his ACRs were not satisfactory, hence was not eligible for the grant of B-18. Aggrieved by the said order, the appellant filed appeal No. 345(R)/95 before the Federal Service Tribunal which was dismissed by the Tribunal and order passed and communicated to the appellant on 1.11.1995. 6. The appellant, therefore approached the Supreme Court by way of Civil Petition for Leave to Appeal No. 671 of 1995. The Honourable Supreme Court finding that the order rejecting the appellant's claim without referring his case for the grant of selection grade in B-18 to DPC, directed to issue notice to Establishment Division and Cabinet Division to explain the position. 7. On receipt of notice, the case of the appellant was referred to the DPC by Cabinet Division, which recommended his Selection Grade. Ultimately it was approved by the Estt. Division and accordingly the appellant was granted Selection Grade (B-18) w.e.f. 1.7.1992 vide Notification dated 16.6.1996. 8. The appellant was not happy with the date of grant of B-18. His claim was to get it w.e.f. 1.7.1990. The Hon'able Supreme Court, however, on 17.6.1996 after hearing arguments closed the matter on the basis of their order passed on 16.6.96 by observing that it was open to the appellant to approach the competent forum on the fresh cause of action. 9. The appellant, therefore, filed a representation dated 14.7.96 to the competent authority for the grant of Selection Grade w.e.f. 1.7.90 instead of 1.7.92, to which no response was made even after the expiry of 90 days. Hence this appeal. 10. It was pleaded that the appellant had completed 7 years service in B-17 on 1.7.90, which fact was not denied by the respondents. Therefore, in term of Office Memo dated 18.3.86, the appellant was entitled to be granted B-18 on completion of 7 years of satisfactory ervice. It was observed that the respondents were taking out of certain entries in his ACRs while he was serving with the Chief Election Commissioner, AJ&K. It was brought to the notice of the bar that in the reports from 1st Jan' 84 to 1st June' 87, the Chief Election Commissioner appears to have been recorded that the appellant was not or not yet fit for promotion. But these reports were never communicated to the appellant. Refusal to grant the Selection Grade from due date i.e. 1.7.90 was violative of the instructions 3.1(vii) to "A Guide to Performance Evaluation" which reads as : "A confidential report containing adverse remarks should not be taken into consideration until they have been communicated in writing to the officer concerned and decision taken on his representation if any." It was observed that it is the admitted position that the appellant was not communicated the so-called adverse remarks recorded in his ACRs at any time. If the adverse remarks if any, had been communicated to him he would have represented against those remarks and would have improved himself if there was any short coming. Hence, adverse remarks now cannot be used against the appellant. It was emphasised that the appellant had at this credit satisfactory service. He was never awarded any penalty nor he was informed of any adverse remarks. The fact that the remained in the service through out shows that he was working satisfactory. 11. Even otherwise, the word "satisfactory" occurring in Office Memorandum, dated 18.3.86, does not mean that the civil servant should not have earned the adverse remarks. The words "satisfactory service" is not used in the said office memo in that sense. Even grant of pension also under CSR 470 provides that full pension can be granted only if service of a person had been thoroughly satisfactory. The fact that the appellant earned full pension on retirement on 1.1.94 and his service was certified to be thoroughly satisfactory show that his service was through out satisfactory. It was clarified that the so called adverse remarks were recorded during the period the appellant was serving with the Chief Election Commissioner and covered the period from 1.1.84 to 1.6.87. Thereafter his reports were good i.e. with effect from 2.6.87 to 15.7.88. In any case it was observed on 1.7.90 the appellant had at least good reports for more than 3% preceding years and was declared fit for promotion in the ACRs. It was, therefore, argued if in those reports the appellant was declared fit for promotion it was not understandable as to why he should not be given selection grade (B-18) w.e.f. 1.7.90, as his preceding reports were also good. It was brought to the notice of the bar that threshold of the appellant was higher than 50 marks as required under the Promotion Policy. In these circumstances, it was pleaded that refusal to grant Selection Grade (B-18) to the appellant from the date the became aligible, if not granted, would be illegal and violative of the relevant rales. 12. It was, therefore, prayed that he may be allowed Selection Grade (B-18) w.e.f. 1.7.90, the date on which he completed 7 years of satisfactory service and became eligible, instead of 1.7.1992. 13. The objections had been filed on behalf of the respondents. It has been contended that the 7 years of satisfactory service is essential for the grant of Selection Grade to Private Secretaries (B-17). The appellant has mis-conceived the facts because he was not possessing the satisfactory service during the period from 1984 to 1987. 14. It has been brought to the notice of the Bench that earlier his case was considered by the Move Over Committee for the grant of moveover. Although the appellant was eligible for the grant of move over on 1.12.89 but he was not granted move over in B-18 as he did not possess 5 years of satisfactory service, which was essential for move over. However, the grant of move over on later date, i.e. 1.12.1992, made the appellant clear that he did not possess 5 years satisfactory service. The appellant did not represent against the grant of move over, therefore, at this stage his plea for not conveying the adverse remarks, is unjustified and time barred. 15. It has been submitted that since these adverse remarks related to the period he was on deputation with the Chief Election Commissioner, AJ&K, it was the Commissioner who had to communicate the adverse remarks to the appellant. It has further been submitted that on the direction of Honourable Supreme Court, his case regarding the grant of Selection Grade was placed before the Departmental Promotion Committee. The appellant required 7 years satisfactoiy service in B-17 for the grant of Selection Grade although he earned adverse remarks in his ACRs for the period 1984 to 1987. However, he earned good/very good ACRs in 1988 to 1992. His ACR from the period 1.6.1987 to 31.12.1987 was also good. In spite of his three ACRs which did not recommend promotion/grant of selection grade to the appellant, the Departmental Promotion Committee decided grant of selection grade to him w.e.f. 1.7.1992. 16. As regards the appellant's stand that he got his pension on his satisfactory service, it has been contended that might be applicable in the case of pension, but that cannot be applied for the purpose of promotion/grant of selection grade. The adverse remarks in the ACRs of an official bar promotion, move-over and grant of selection grade, whereas pensionary benefits were also given even the official has adverse remarks in his ACRs. It has further been observed that pensionary benefits require only completion of the qualified service. The rules/criteria for grant of selection grade to Private Secretaries have separately been notified by the Establishment Division vide O.M. dated 18.3.86. With these submission, it has been prayed to dismiss the appeal with costs. ' 17. We have heard the parties at length and gone through the documents available on the file. We find that the appellant has been denied the grant of selection grade even after completing 7 years of satisfactory service as prescribed under the said Rules. The main plea of the respondents was that the appellant earned adverse remarks during the period when he was with the Chief Election Commissioner, AJ&K and according to respondents, it was duty of the Election Commissioner to have communicated those remarks to the appellant. This position was contested by the appellant emphasising that the respondents were required under Instruction 8.1 (vii) of "A Guide to Performance Evaluation" to have communicated in writing those remarks to the appellant and decision taken on the appellant's defence. In our opinion the stand of the appellant is correct. Any decision on mi-communicated adverse remarks will not be justified and would be against natural justice and fair play, espectially when it has been admitted by the respondents, vide their comments, that the appellant's relevant ACRs were received by them in 1988. As such they were required to communicate the same to the appellant and afforded him the opportunity of his defence. Since no such opportunity has been afforded to the appellant, hence those adverse remarks will not be justified to be considered for his grant of selection grade. 18. Although the respondents have held the view that the request of the appellant for selection grade was barred by proviso (bj of Section 4 of the Service Tribunals Act, 1973 which says: "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade;" 19. Nevertheless the respondents have committed an illegal infirmity by not communicating the adverse remarks to the appellant and thereby denied him the opportunity to defend himself, cannot be overlooked especially when in this regard the Supreme Court has held the view in 1995 SCMR 650 (Walayat AH Mir vs. Pakistan International Airlines Corp.) "while exercising discretion, Authority should not. act arbitrarily, unreasonable and in complete disregard of relevant rules and regulations. Exercise of discretion is circumscribed by principle of justice and fairness". It has further been held : "Dictum that no employee has vested right in promotion is although correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for malafide reasons or due to arbitrary act of competent authority, would entitle aggrieved person to challenge the same." 20. The upshot of the above discussion is that the appellant was not communicated relevant adverse remarks, thus he was not in a position to defend himself which is mandatory under the law. We, therefore, to meet the ends of justice and fair play, accept the appeal and direct the respondents to consider his case for grant of selection grade (B-18) in the light of observations as made above, w.e.f. 1.7.1990, the date on which he had completed 7 years of satisfactory service. 21. No order as to costs. 22. Parties be informed. (M.S.N.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 316 [Federal Service Tribunal, Islamabad ] Present: justice (R) abdul razzaq A thahim, chairman, roshan ali mangi and muhammad raza khan, members. MUHAMMAD AKHTAR-Appellant versus PHIME MINISTER OF PAKISTAN, THROUGH ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others- Respondents Appeal No. 294(R) of 1996, accepted on 25.11.1996. Service Matter- Civil Servant-Promotion of--Case of--Ante-date promotion-Case of-That post of Solicitor is 100% by promotion, but he was deprived promotion as contract was given to Mr. Wahidi contrary to rules-Appellant has been promoted, his promotion may be ante-dated as Solicitor (B-20) from date he was eligible and post was lying vacant-Appellant has referred to 1993 PLC (CS) 1404 and submitted that directions be issued to respondents to issue notification for ante-dation of his promotionHeld: Appellant was prevented, for no fault of his, to work on a higher post, and in view of law laid down by Hon'ble Supreme Court reported in 1973 SCMR 304, is entitled to pay of higher post-Reference is also made to a decision of Federal Service Tribunal reported in 1993 PLC (CS) 1404-Held further: Appellant is eligible for promotion of post of solicitor ante-date- Appeal accepted. [P. 316 & 321] A & B Appellant in person. Mr. M. Javid Aziz Sandhu, Standing counsel for respondent department. Date of hearing: 25.11.1996. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-Appellant Mr. Muhammad Akhtar is presently working as Solicitor (BPS-20) in the Law and Justice Division. He was promoted from the post of Deputy Solicitor vide notification dated 8th August, 1995 and this promotion was subject to complete training course of NIP A. His case is that the post of Solicitor (BPS-20) fell vacant on 30.6.1991 when the contract of Mr. S.A.M. Wahidi was over and since the post was to be filled 100% by promotion and he being fully eligible for promotion as Solicitor, is entitled to ante-dated promotion from that date as his case was not deliberately processed in spite of directions of the higher authorities. 2. The appellant argued his case and submitted that the post of Solicitor is 100% by promotion, but he was deprived promotion as contract was given to Mr. S.A.M. Wahidi contrary to the rules. He submitted that he was fully eligible for the said post and he made so many representations but with not result, and due to some difficulties he could not come before the Tribunal but since he has now been promoted, his promotion may be ante dated as Solicitor (B-20) from the date he was eligible and post was lying vacant. He has referred to 1993 PLC (CS) 1404 and submitted that directions he issued to the respondents to issue notification for ante-dation of his promotion. 3. Notices were issued to the respondents and they have filed objections. The law and Justice Division has filed comments and it has been stated that the post of Solicitor fell vacant on 1.7.1991 but the case of the appellant could not be processed due to missing ACRs for the years 1989, 1990, 1991, 1992 and 1993, but later on a certificate to this fact was placed on the record and thereafter the case was referred to the Establishment Division on 26.10.1994. It has further been stated that after the expiry of reemployment period of Mr. Wahidi, the appellant was given current charge of the post from time to time for which he was duly paid Rs. 1100/- p.m. and as soon as proposal for his regular promotion was approved, notification therefor was issued on 8th August, 1995 from the date of its approval. The Establishment Division in their comments''have stated that there is no law whereby a civil servant could be promoted from the date of occurrence of a vacancy or from the date of his becoming eligible and, therefore, his request for grant of ante-dated promotion with retrospective effect was not tenable and rejected. At the time of regular hearing, the same arguments were reiterated by the learned counsel for the respondents. 4. We have considered the submissions of the parties. The appellant has now been promoted as Solicitor (BPS-20) in the Law and Justice Division, vide notification dated 8th August, 1995, with immediate effect. He was the senior most Deputy Solicitor and there is no denial that the post of Solicitor is to be filled 100% by promotion and it is admitted fact that he was eligible and qualified in all respects for that post. The post of Solicitor fell vacant on 30.6.1991 after termination of re-employment period of Mr. S.A.M. Wahidi, but his case for promotion was not processed rather he was given current charge of the post of Solicitor. The case of the appellant is that he was performing the functions and duties of Solicitor on current charge basis since 1989 and being an eligible officer was entitled to ante dated promotion against the vacant post of 100% promotion. He prayed that his promotion be ante-dated from the date of his eligibility i.e. 1.10.1988 or in the alternative from 1.7.1991 after termination of re-employment period of Mr. S.A.M. Wahidi. There is force in the submission of the appellant because when the post of Solicitor fell vacant on 1.10.1988 and was to be filled 100% by promotion, but arrangement of re-employment of one officer Mr. S.A.M. Wahidi, without any cogent grounds, was made thus depriving the appellant of his legitimate right for promotion against promotion quota. But the appellant remained silent and Mr. S.A.M. Wahidi got reemployment and continued upto 30.6.1991. As such, we are not inclined to consider the claim of the appellant for the above reasons from 1.10.1988, bu prima fade case from 1.7.1991 is made out and we have examined the record. One of the objections from the respondents is that his case was delayed because he had not undergone NIPA course. The record shows that the appellant did this course from October 1, 1995 to January 18, 1996 from NIPA, Peshawar. This is contrary to the objection of the respondents as the appellant had been promoted to BPS-20 much earlier vide notification dated 8th August, 1995, without having gone to NIPA and one of the conditions is that promotion is subject to the condition that he will complete the Course. This could have been done in 1991 when post fell vacant. The contention of the appellant is that he was never deputed for the said course, therefore, without his fault he could not be punished, and also submitted that in spite of that, he was promoted and deputed after promotion to undergo the said Course which he successfully completed. We find force in his submission and on this ground the appellant could not be deprived of his legitimate right. 5. The Law and Justice Division have, filed comments and paragraph 9(a) is relevant and is reproduced herein-below : "...On expiry of the period of re-employment of Mr. S.A.M. Wahidi the current charge of the post of Solicitor was granted to Mr. Muhammad Akhtar with effect from 1.7.1991 which was further extended for three months that is from 1.10.1991 which the approval of the Minister for Law, Justice and Parliamentary Affairs. Thereafter case was taken up for approval of the competent authority for making a reference to the Establishment Division for placing the case of the appellant for regular promotion as Solicitor on 30.10.1991. The higher authorities did not accord approval to the said proposal." It is thus clear that the case of the appellant was taken up in 1991, but the higher authorities did not accord approval for the said proposal, but no plausible explanation has been put forward from the respondents side. It is strange that though he was eligible and the post was lying vacant for a long time, but his case was not sent to the Central Selection Board for four years and he is given current charge. The only objection put forward is that promotion to a particular post becomes effective from the date of approval of the competent authority and not from the date the vacancy occurs or an officer becomes eligible. We are sorry we do not agree and would not give a licence to the functionaries to keep the case pending for submission to the CSB at their pleasure for years and years without cogent reasons, and putting the civil servants into unnecessary litigation and causing mental torture to them. We are of the view that it is clearly a hard case when the appellant was eligible for promotion in 1988 but some person was brought in by way of re-employment, and his promotion which was to be made 100% by promotion was thus marred, and it is a clear violation of law and the promotion policy. The Law and Justice Division, in para 9(c) of their comments, have stated that the appellant was given current charge of the post of Solicitor from time to time, viz 1.7.1991 to 30.9.1991; 1.10.1991 to 31.12.1991; 28.7.1994 to 27.1.1995; 7.2.1995 to 6.3.1995 and 17.5.1995 to 7.8.1995, and was allowed dual charge pay at the rate of Rs. 1100/- p.m. for holding the current charge but it was not the redressal of his grievance. It appears that a reference was made by Mr. Justice Sheikh Riaz Ahmed, the then Secretary, Law and Justice Division to Secretary, Establishment Division on 24th October, 1994, the contents of the letter read as under: Subject: FILLING UP THE POST OF SOLICITOR (BPS- 20) IN THE LAW, JUSTICE AND PARLIAMENTARY AFFAIRS DIVISIONS: My dear Secretary, A post of Solicitor (BPS-20) is lying vacant in the Law, Justice and Parliamentary Affairs Division since termination of the period of re-employment of Mr. S.A.M. Wahidi, Ex-Solicitor. 2. According to the notified Recruitment Rules, the post of Solicitor is required to be filled 100% by promotion and failing that by transfer/initial appointment. Mr. Muhammad Akhtar, a Deputy Solicitor (BPS-19) working against the said post since 9th April, 1987 is eligible to be considered for the subject post 3. I shall feel highly obliged if his case is placed before Central Selection Board in its next meeting. 4. A.C.R. dossier, I.C.P. Chart and Proposal Form for the Central Selection Board are annexed. With regards, Yours sincerely, SD/- Mr. Justice (Sh. Riaz Ahmed) Mr. Mazharul Haq Siddiqui, Secretary, Establishment Division, Islamabad ." The contents of the above letter indicate that all the formalities were complete in 1994 but in spite of that, the promotion case was not finalised. The stand of the respondent department is that ACRs of the appellant for the years 1989, 1990, 1991, 1992 and 1993 were not available for various reasons, and that is why the case was not processed. We are sorry we cannot accept such kind of argument, as it was not the fault of the appellant. It is also interesting to note that on 3.4.1994 it was decided by the Law and Justice Division to place a certificate of missing ACRs on the CR dossier of the appellant and thereafter the case was referred to the Establishment Division for its submission to the Central Selection Board. It is a sad state of affairs as this exercise could earlier be completed rather than delaying the matter for such a long time. However, the Law and Justice Division vide its OM dated 27th March, 1996, while forwarding the representation, recommended that case of the appellant to the Establishment Division, and it is reproduced as under : "No. F. 10(l)/93-A.I. Government of Pakistan Ministry of Law, Justice and Parliamentary Affairs (LAW AND JUSTICE DIVISION) Islamabad 27th March, 1996. OFFICE MEMORAND UM Subject: REPRESENTATION FOR ANTE-DATED PROMOTION AND FOR GRANT OF ARREARS OF PAY AND ALLOWANCES FROM THE DATE, THE POST OF SOLICITOR FELL VACANT IN THE MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS. The undersigned is directed to forward herewith a representation made by Mr. Muhammad Akhtar, Solicitor, of this Division for ante-dated promotion and grant of arrears of pay and allowances. 2. It is stated that the officer was promoted as Solicitor w.e.f. 8.8.1995, vide this Division's notification No. F. 10(l)/93-A.I, dated 8.8.1995, whereas the post had fallen vacant on 1.7.1991, after termination of re-employment period of his predecessor, Mr. S.A.M. Wahidi. The case for promotion of the officer was delayed for want of missing ACRs for the years 1989,1991 and 1992. 3. The Establishment Division are requested to kindly consider the request of the officer for ante-dated promotion. Sd/- (Abdul Qadir) Section Officer Establishment Division, (Mr. Sultan Khan, S.O.), Islamabad ." It is thus an admitted fact that injustice was done to the appellant, firstly when the vacancy of Solicitor was filled up by re-employment of Mr. S.A.M. Wahidi, contrary to the rules, as it was a 100% promotion post; and secondly the case of the appellant for regular promotion was delayed on one pretext or the other. We have also observed in so many cases that inordinate delay is caused in arranging the meetings of the Central Selection Board, with the result that the matters of promotions of the civil servants are delayed for no fault of theirs and subsequently, the points are raised that promotion is to be made from the date of approval by the competent authority. May be so, but such delay is due to late steps taken by the functionaries, for which we suggest that the Establishment Division may take cognizance and issue necessary instructions that cases of promotions be expedited without delay to safeguard the interest of the civil servants, because promotees to be considered for promotion with effect from the date when vacancy in that quota becomes available, as held by Their Lordships in the case reported in 1985 SCMR 1158. We hold that the appellant was prevented, for no fault of his, to work on a higher post, and in view of the law laid down by the Hon'ble Supreme Court reported in 1973 SCMR 304, is entitled to the pay of the higher post. Reference is also made to a decision of this Tribunal reported in 1993 PLC (CS) 1404. 6. Upshot of the above discussion is that we accept the appeal and hold that he is eligible for promotion of post of Solicitor (BPS-20) with effect from 1.7.1991. (M.S.N.) 7 ' No ° rder as to COStS ' Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Services) 321 [Federal Service Tribunal, Islamabad] Present : justice (R) abdul razzaq A. thahim, chairman and mr. roshan An mangi, member. MUHAMMAD TASNEEM SAEED-Appellant versus CHAIRMAN, MANAGING COMMITTEE, MIRAGE REBUILD FACTORY, P.A.C. KAMRA and 3 others-Respondents Appeal No. 619(R)/96, dismissed on 20.1.1997. Civil Servants Act, 1973 (LXXI of 1973)-- S. 2(l)(b)-Demonstrator in Mirage Rebuild Factory Intermediate College, Kamra-Whether appellant is a civil servant-Question of-Under paragraph 24 "Status of MRF Degree Science College," it is provided that it is a self-financing private institution which is run under control of managing Committee-Decision of Chairman, Managing Committee is final and cannot be referred to any Government agency for redress-It is thus clear that this educational institution has got its own rules, which have neither been gazetted nor have approval of Federal Government- Held: Appellant as per Section 2(l)(b) of Civil Servants Act, 1973 is not a . civil servant and as such cannot invoke jurisdiction of Federal Service Tribunal-Appeal dismissed. [P. 325] A, B & C Mr. Rao Fazal Khan Akhtar, Advocate alongwith Appellant. Col. (R) Hayatullah Sikandari, Principal, on behalf of Respondents. Date of hearing: 20.1.1997. judgment Justice (R) Abdul Razzaq A. Thahim, Cb.airman.-Mr. Muhammad Tasneem Saeed, the appellant in this case, was appointed as Demonstrator in Mirage Rebuild Factory (MRF) Intermediate College, Kamra, vide letter dated 2nd February, 1991. Disciplinary proceedings were initiated against him on the allegations that he publicised the contents of a letter that was presumed to have been written to him by a fellow lady teacher, and therefore, the appellant made overtures to her and later propagated that she was fond of him and wanted to marry him. Consequently, he was issued show cause notice. The appellant replied to this show cause notice and the competent authority by order dated 21st October, 1996 terminated the services of the appellant. He filed departmental appeal to the Managing Director, MRF, PAC, Kamra, but the same was rejected vide letter dated 12th November, 1996. He then filed this appeal before the Tribunal under Section 4 of the Service Tribunals Act, 1973. 2. The appeal was admitted and notices were issued to the respondents. Comments have been filed on behalf of the Chairman, Managing Committee, MRF Degree Science College , through the Principal of the College, wherein legal objection of jurisdiction has been raised. Therefore, before we come to merits of the case, we would like to settle this legal objection first whether the appellant is a civil servant or not. 3. Mr. Rao Fazal Khan Akhtar, learned counsel for the appellant submitted that the competent authority of this College is a uniformed officer and the institution is running on the pattern of PAF Model Inter College , Sargodha and other like institutions. He has referred to a judgment of this Tribunal in Appeal No. 256(L)/94 (Malik Muhammad Pervaiz Akhtar vs. Managing Committee, PAF Model Inter College , Sargodha ), decided on 31.10.1995, wherein it has been held that employees of such Colleges/institutions are civil servants. It is further argued that leave to appeal has been granted by the Supreme Court in the aforesaid case. He submitted that in these circumstances, it would be just and proper it this appeal is decided after the decision by the Supreme Court on the point of jurisdiction. ,, 4. Col. (R) Hidayatullah Sikandari, Principal submitted that there is much difference between the PAT and MRF College. He argued that this College is funded by its own funds and they are not getting any kind of assistance or grant from the Government, therefore, it is a private institution and its employees are not civil servants. In support of his submissions, he referred to the relevant provisions of the terms and conditions of service of the Teaching staff. 5. There are so many educational institutions which are being run by private organisations and from their own funds, such as, Grammer Schools and some public schools though in the Board of Governors some officers are nominated from the Government, but directly Government has no control over such institutions nor grant is paid to them. In the instant case, definite plea has been taken that this educational institution is not funded by the Ministry of Education, Ministry of Defence or any other Government agency. Col. (R) Hidayatullah Sikandari categorically stated at the bar that even grant is not being taken from the PAF or MRF. In the comments, the respondents have taken the following points with regard to jurisdiction: "2. MRF Degree Science College is a self financing private institution which is run under the control of Managing Committee. As per terms and conditions of employment, accepted and signed by employees at the time of induction, the decision of the committee is final and has to be abided by all members of the staff. 3. The college pays salaries to its staff from its private funds without any involvement of the government exchequer, nor it receives funds from any of the government quarters. 4. The College is headed by a retired Colonel from the Army who has been employed as Principal and is being paid out of the college private funds. Hence, no serving officer in uniform is directly involved in running the administration of the college. 5. Since Mr. Tasneem Saeed was a private servant of MRF Degree Science College and was getting his pay from the college private fund, as such he cannot be called a civil servant according to law." To this, Mr. Rao Fazal Khan Akhtar, learned counsel for the appellant could not be able to explain or prove if the Government is contributing any amount to this educational institution, but he only submitted that the administrative control of the College is under uniformed officer. Let us examine the definition of the civil servant as contemplated in Section 2 (1Mb) of the Civil Servants Act, 1973 and it reads as under : "2(l)(b) "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include :-- (i) -a person who is on deputation to the Federation from any Province or other authority; (ii) A person who is employed on contract, or on workcharged basis or who is paid from contingencies; or (iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923)." Such a question had come up before this Tribunal in Appeal No. 379(R)/1986 filed by Miss Naeema Khan vs. Ministry of Education and others, decided on 9.3.1988. In that case, the appellant was working in Islamabad Model College , constituted under the Resolution and being run by the Board of Governors of which the Chairman was the Secretary, Ministry of Education and other Members were Government officials. The Tribunal held the view that employees of the Islamabad Model Colleges/Schools were civil servants. The judgment of the Tribunal was challenged in the Supreme Court in the case of Mrs. M.N. Arshad & Others vs. Miss Naeema Khan & Others (PLD1990 SC 612) and the Supreme Court held that Islamabad Model Colleges/Schools established under the Resolution were working in coniH'ction \villi the affairs of the Federation' and its employees were civil servants and amenable to jurisdiction of the Federal Service Tribunal. But in the instant case, this educational institution has got its own terms and conditions for the teaching staff, being run by the Board of Governors, i.e. the Managing Committee of the College and its employees are not working in connection with the 'affairs of the Federation' and as such are not civil servants. The learned counsel for the appellant has based his claim on the judgment of this Tribunal in Appeal No. 256(L)/94 (Malik Muhammad Pervaiz Akhtar vs. Managing Committee, PAF Model Inter College Sargodha . In that appeal, one of the point which pursuaded the Tribunal, was that during the arguments it was brought to the notice of the Tribunal that in 1994 a sum of Rs. 4 lac was budged to the College by the Ministry of Defence; but in the present case this institution is being run by private funds, perhaps, from collection of fees, etc. but no grant is being given by the Federal Government. Let us examine the terms and conditions of the teaching staff, which was duly accepted and signed by the appellant at the time of his joining service under the College. Under paragraph 18 it is clearly provided that no member of the staff shall on retirement be entitled to any pension or bonus. Under paragraph 24 "Status of MRF Degree Science College", it is provided that it is a self financing private institution which is run under the control of Managing Committee. The decision of Chairman, Managing Committee is final and cannot be referred to any Government agency for redress. It is thus clear that this educational institution has got its own rules, which have neither been gazetted nor have the approval of the Federal Government. However, the contention of the learned counsel for the appellant is that the Principal of the College, who is a retired Colonel, has been given the benefit of pension and gratuity, but this point does not advance the case of the appellant and cannot help him to become a civil servant for the purposes of Service Tribunals Act, 1973. Moreover, we have gone through the appointment order of the appellant. He was appointed on probation for one year and it is specifically mentioned that he will be confirmed for retention in service at the end of a year of satisfactory service with the institution; and in para 3 it is clearly mentioned that after his confirmation in service, if it is decided to dispense with his service, he will be given one month's notice or one month's pay. From these provisions, it is clear that these are the terms and conditions of Government servants but relate to private institution where they have got their own terms and conditions for their staff. The appellant accepted these terms and conditions having the knowledge that this institution had got the status of a private institution. In these circumstances, without going into merits or demerits of the case, we are of the view that the appellant is not a civil servant and as such cannot invoke jurisdiction of this Tribunal. Accordingly, the appeal is dismissed being not maintainable, but with no order as to costs. (M.S.N.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 326 [Punjab Labour Appellate Tribunal, Lahore] Present: justice (R.) mian ghulam ahmad, chairman. CH. ARSHAD ALI ANJUM, PATRON-IN-CHIEF UNITED LABOUR UNION (C.B.A) STATE BANK OF PAKISTAN LAHORE-Petitioner versus REGISTRAR OF TRADE UNIONS, NORTH ZONE, LAHORE REGION and 3 others-Respondents. Revision Petition No. LHR-561/95-Pb. dismissed on 4.12.1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 38(3-A)--Civil Procedure Code (V of 1908) O.XVII, Rule 3-Closure of evidence of petitions by Labour Court-Challenge to-Petitioner availed a number of opportunities for purpose, but failed to examine single witness and did not even personally make statement in court-Out of thirteen witnesses, only two, were in attendance on last date fixed by court, but even they were not prepared to make their statements in absence of senior counsel, Labour Court was constrained to close evidence of petitioner under Order XVII, rule 3 C.P.C.-There being no evidence available on record in support of averments of petitioners before Labour Court, Petitions for lack of Proof were dismissed-Held: Closure of evidence of petitioners passed by learned lower Court is un exceptionable. [Pp. 331 & 332] C, D & F (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 38 (3-A)--Controversy over election of Workers Union in which each group claimed themselves patron-in-chief and General Secretary Inquiry held by Registrar, Trade Union on receipt of proceedings challenged in appeal-Whether Registrar was competent to hold inquiry and whether its validity could be attacked-Question of-Held : Objection raised against validity of inquiry is devoid of force-Held further : Registrar, by all means is empowered to act in matter in manner it was done-Petition without merit is accordingly dismissed. [Pp. 330, 331 & 332] A, B, E & G Mr. Zafar Iqbal Chaudhary, Advocate for Petitioner. Respondents No. 1 to 3 in person. Qureshi Muhammad Hafeez, Advocate for Respondent No. 4. Date of hearing: 4.12.1996. judgment 1. Parties to the revision petition before this Tribunal, and their sequence, are the same, as before the Labour Court , in the petition filed there under Section 8(7), Industrial Relations Ordinance, 19G9. By the decision dated 28.11.1995, learned Labour Court No. 3, Lahore at Ferozewala, had dismissed the appeals/applications filed (against an order dated 6.3.1995, passed by the Registrar of Trade Unions, Lahore), separately Ly two persons, namely Arshad Ali Anjum and Muhammad Haneef Ramay, claiming respectively to be Patron-in-Chief and the Secretary General of the United Labour Union (C.B.A.), State Bank if Palustan, Lahore. Arshad Ali Anjum has preferred the present revision petition under Section 38 (3-a), I.R.O. 2. On 19.12,1995, when the revision petition was entertained, on hearing the learned counsel for the petitioner, and was admitted to regular hearing, operation of the Registrar's order dated 6.3.1995 and the Labour Court's order dated 28.11.1995 was suspended. Shortly after-wards, on the same day, Rao Jamshed Ali Khan, respondent No. 4, olongwith his counsel, Qureshi Muhammad Hafeez, Advocate made appearance before me, where upon, on hearing them preliminarily, I passed an order, which I would re produce below:- "19.12.1995-Rao Jamshed Ali Khan, respondent No. 4, alongwith his counsel, Qureshi Muhammad Hafeez, Advocate, in company of Syed Alamdar Hussain, Patron-in- Chief appeared in the court, soon after an order admitting this revision petition was passed. According to them, they had gone to Ferozewala, for appearance in Punjab Labour Court No. 3, where Arshad Ali Anjum's own petition moved before the court for recalling its order dated 28.11.1995 was fixed for hearing. The petitioner opted to absent himself from the Labour court and instead approached this Tribunal by way of the present revision petition. Smelling some "foulplay", they rushed to this court, where they came across Arshad Ali Anjum, who, however, on seeing them staged exit stealthily. They say, they had a mind to bring him before the court and make their submissions, in his presence. In a most clamorous fashion and in a bitterly grumbling tone, they made the court aware of abhorrably chequered career of this litigation, making an earnest request for vacation of the stay order. They were advised to make a move in writing. Learned counsel representing respondent No. 4 has drawn the attention of the court to Section 13 of the Industrial Relations Ordinance, 1969, enumerating functions and powers of Registrar of Trade Unions, including his privilege, to hold an inquiry in regard to affairs of a trade union (election of its office-bearers and its working etc. not excluded). In particular, it has been urged, with reference to Section 38(3-a), Industrial Relations Ordinance, 1969, that Labour Appellate Tribunal originally did not have revisional powers, and such powers were conferred on it by Ordinance IX of 1977, with insertion of subsection (3-a) under Section 38. These powers may be exercised, either on its own motion by the Tribunal, or on a move by the aggrieved party, but no order shall be passed, adversely affecting any person, without giving such person a reasonable opportunity of being heard. The initial order passed by this Tribunal, on admitting the revision petition, it is submitted, will have farreaching repercussions, inasmuch as the office-bearers elected on as back as 6.3.1994, would be restrained from functioning, and this would ensue, despite the fact that only one person, out of 25 office-bearers of the union, elected in March, 1994, has been arrayed as respondent in the revision petition, being the Secretary General (Rao Jamshed Ali Khan), Arshad Ali Anjum, petitioner, claiming to be patronin-chief, having purposely kept his counter-part, Syed Alamdar Hussain Shah, out of the arena. It has been stated at the Bar before me that the petitioner has been moving from one court to another, without any success. He invoked the jurisdiction of all the Labour Courts at Lahore, the N.I.R.C. at Islamabad, and had recourse to the honourable High Court, at least four times, having met failure in all forums. On as recently as 14.12.1995, Full Bench of the N.I.R.C. is stated to have set aside the order dated 30.7.1995, rendered earlier by a learned Single Member, N.I.R.C., who had recalled his own , order dated 30.3.1995, calling upon the State Bank to implement the Registrar's order dated 6.3.1995. It is stated that this important development is in the knowledge of the petitioner but he has omitted its mention and has rather distorted a reality-Single Member's order dated 30.7.1995 having been rescinded by the Full Bench-With the result that the Registrar's order dated 06.3.1995 holds the field and has to be acted upon. Even the fact of pendency of the matter in Labour Court No. 3, Lahore, at Ferozewala, has been concealed by the petitioner. If what has been stated before me by the learned counsel for the respondent is correct-and I have no reason to doubt itit would imply that there has been a diabolic suppression of mass of material facts on the part of the petitioner, who has thus endeavoured to mis-lead the court, and has rendered himself in-eligible, all the more, to grant of any discretionary relief, on interim scale. 1 would have heard the petitioner and his learned counsel, in regard to the instant application, made by respondent No. 4, before passing any order of consequence; but it is just not possible, as the court will remain closed from 21.12.1995 to 8.1.1996, and tomorrow I intend availing of leave, as my real nephew is going to get married. On hearing respondent No. 4's counsel, in absence of the petitioner and his counsel, I proceed to recall my order passed early in the day, in so far as suspension of operation of Registrar's order dated 6.3.1995 and Labour Court's order dated 28.11.1995 is concerned. I must hasten to add that such an order may be revived, if the petitioner is found entitled to it, when the learned counsel for the parties address the court on 16.1.1996, the date already fixed. Let a copy of this order be communicated, without delay, to the petitioner/his counsel." 8, I am not in the habit of such re-capitulations, and I have made departure in this case, as the above order will throw enough of light on the history of the industrial dispute in question and it is almost a resume of the submissions, which learned counsel for respondent No. 4, in particular, has made before me in final fashion as well. 4. On 10.10.1994 Arshad Ali Anjum had recourse to the Punjab Labour Court No. 1, Lahore, assailing the act of the Registrar in initiating an inquiry into the election of the office-bearers of the union, claimed by Arshad Ali Ahjum to have been held on 29.9.1994, and by his rival faction to have been conducted on 22.9.1994. Shortly after-wards, Arshad Ali Anjum also filed a writ petition in the High Court and opted to withdraw the afore-said petition dated 10.10.1994 on 20.12.1994, as in the meantime the opposite group had also approached the Labour Court, with a request for vacation of the stay order dated 10.10.1994. The writ was ultimately dismissed on 6.3.1995 by Mr. Justice Sharif Hussain Bukhari. 5. Syed Alamdar Hussain Shah, as patron-in-chief of the union, invoked the jurisdiction of the N.I.R.C and Arshad Ali Anjum became a party to the proceedings, in connivance with the petitioner there, according to respondent No. 4. The NIRC rendered an interim order, which was, however, re-called and the petition was dismissed on 30/31.7.1995. Full Bench of the N.I.R.C was then approached, but Arshad Ali Anjum met failure there as well, his cause having been dismissed on 14.12.1995. Another writ petition was filed in the High Court, and it was dismissed by Mr. Justice Ch. Khursheed Ahmad; and the I.C.A. also met the same fate. Third writ petition was then filed, and the same was dismissed by Mr. Justice M. Javaid Butter, with a direction that both the Labour Court and the N.I.R.C would dispose of the matters before them within a month. Allegedly, another petition, in the name of one Muhammad Ameen Khan, President of the group of Rao Jamshed Ali Khan, was filed, through an advocate, whom he had never engaged as a counsel. It was later on withdrawn. The present petition under Section 8(7) had been filed in the Labour Court No. 1, Lahore, on 12.3.1995. As the learned Presiding Officer of the said court had unfortunately expired, the petition was withdrawn from there by this Tribunal and made over for disposal to Punjab Labour Court No. 3, especially as the High Court had made a direction on 27.7.1995 about decision of the same within a month. The said court has passed the final order on 28.11.1995. 6. Constitution of the union was amended and approved on 16.2.1994. On 17.3.1994 referendum was held and the United Labour Union emerged as victorious. Arshad Ali Anjum and Rao Jamshed Ali were elected respectively as the patron-in-chief and the general secretary. Differences developed between the two, with passage of time, and the two groups came to be at war with each other. Rao Jamshed Ali's group held its election on 22.9.1994 and Arshad Ali Anjum's group claimed having done so on 29.9.1994. Rao Jasmhed Ali was elected as the general secretary and Alamdar Hussain of his group as the patron-in-chief. Similarly, Arshad Ali Anjum, in the election stated to have been held on 29.9.1995, became patron- in-chief and Muhammad Haneef Ramay was elected as the general secretary, as was stated. The proceedings of both these elections were submitted for approval before the Registrar, who ordered an inquiiy. As many as 836 members are said to have made their statements. The Registrar had yet to announce his order, concurring with the inquiry report, on 10.10.1994, when Arshad Ali Anjum filed a petition before Labour Court No. 1, and obtained a status-quo order, with the result that the Registrar could not render the final order, for about two months and ten days. The petition remained pending in the Labour" Court, before it was withdrawn on 20.12.1994, and then the litigation, as already stated, saw so many forums, almost all having been approached by Arshad Ali Anjum. The Registrar on 6.3.1995 passed an order approving election dated 22.9.1994, after the High Court (Mr. Justice Sharif Hussain Bukhari) had dismissed the writ petition, on the same day. 7. It is stated that in the proceedings before the Registrar, Arshad Ali Anjum had also associated himself throughout and had affixed his signatures on all the relevant papers, in token of his participation, and when he realized that the order was going to be against him, be approached the Labour Court, early in the morning on 10.10.1994, and got a stay order. The activity of the union has remained almost suspended throughout this period, by reason of Arshad Ali Anjum having been moving from one forum to another. Last referendum having been held in March 1994, the next one was due in March 1996; and it is high-time that proceedings for a fresh referendum are initiated, at long last, so that the stale-mate comes to an end, which development would be conducive to the cause of the workers and their unions, as the tug-of-war going on between the two groups will benefit the establishment or those averse to the welfare of the labour class. 8. Arshad Ali Anjum, in his petition, has not impleaded all the several office-bearers of his own group, as either co-petitioners or respondents, and has not even arrayed his counter-part, Syed Alamdar Hussain Shah, as a co-respondent. Except Muhammad Haneef Ramay, none else appears to have sided with Arshad Ali Anjum and seconded his claim of having legitimately conducted an election on 29.9.1994. Registrar's finding is that the election held on 22.9.1994 was a genuine one and the one dated 29.9.1994 was only a farce. 9. In order, to enable him to establish his assertion that the election dated 29.9.1994 was a valid exercise and the election dated 22.9.1994 was a sham or bogus affair, Arshad Ali Anjum was required by the Labour Court to lead evidence. He, however, availed of a number of opportunities for the purpose, but failed to examine a single witness and did not even personally make a statement in the court. On the crucial occasion, he slipped away to Karachi, stated as was in the court, and he changed his counsel, thrice at least, the gentlemen being Mr. Muhammad Saeed Ansari, Syed Manzoor Ali Gilani, Mr. Farooq Zaman Qureshi and his junior Mr. Haroon Mirza. Out of thirteen witnesses, cited by him, only two, Abdul Hameed and Tariq Hassan, were in attendance on the last date fixed by the court, but even they were not prepared to make their statements in absence of the senior counsel, as was made known to the court. This being the position, the Labour Court was constrained to close the evidence of the petitioner, under Order XVII rule 3 C.P.C. Proceedings of both the petitions, one filed by Arshad Ali Anjum and the other by Muhammad Haneef Ramay, had been consolidated, but both the petitioners had preferred to stay away. There being no evidence available on record, in support of the averments of the petitioners before the Labour Court, the petitions for lack of proof were dismissed. On legal plane as well, the objections raised against validity of the inquiry conducted and the order passed by the Registrar have been found, and rightly so, to be devoid of force. Registrar, by all means, is empowered to act in the matter, in the manner it was done, and according to the learned counsel for respondent No. 4, Registrar's order cannot be challenged in revision, although Labour Court's order could be brought under challenge, and the revision petition to that extent only would be competent, it is so contended. That apart, the act of the order of closure of evidence of the petitioners, passed by the learned lower court, considered from any angle, is un-exceptionable. One fails to follow, what else the petitioners wanted and how they were entitled to seek from. the court further indulgence in the matter of production of their evidence. Almost all the forums have been exhausted by this gentle-man; and I think, b6 Sh9Wl$ now bgw his head before the process of law and agree to holding of neither Arshad Ali Anjurn, nor Jamshed Ali Khan, or their groups. 10. Before I close, 1 would like to comment on an application submitted on 9.10.1996 by Arshad Ali Anjum, with a request that the order dated 19.12.1995 passed by this court against him be reviewed and re-called, and certain observations or remarks recorded therein be expunged. I had already said, towards the end of the order, that the same was liable to recission or review and the order passed earlier in the day in favour of Arshad Ali Anjum, on admitting his revision petition, could be revived on hearing both sides, if the utterances against him were found to be incorrect or inapt. Today's judgment, however, leads me to the conclusion that there has been suppression of certain material facts in the revision petition and concealment of incidence of the petitioner having approached different forums must certainly be taken to be some thing, which could not )e approved of or commented by this court. In any-cause, if transgression or aggression was made by the other side, the respondent No. 4, the petitioner, Arshad Ali Anjum should not take it into heart and should not be made to suffer for it, at the same time. He was after all having recourse to the Labour Court, the N.I.R.C and the High Court for vindicating his honour as also the righteousness of things his cause in his own estimation, although there was lawful little warrant for having gone to the High Court again and again. This was certainly not in good taste and such practice ought to be depricated. Now that final verdict by this Hon'ble Tribunal has gone against Arshad Ali Anjum, he cannot possibly ask for revival of the status-quo in his favour and recission of the order vacating the stay, later .in the day, on 19.12.1995. 11. The revision petition has no merit and is hereby dismissed with no order as to costs. Referendum having last been held on 17.3.1994 and office-bearers of the union having been elected on 22.9.94, further delay in the pr'ocess can no longer be permitted. The election of the union as also the referendum both are due. The Registrar would arrange undertaking both the exercises with the least possible delay, under his direct supervision. Exercise should take about a month to conclude, but it should not be delayed beyond end of January 1997. Petition dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 333 [Punjab Labour Appellate Tribunal, Lahore ] Present: mr. justice (RTD.) mian ghulam ahmad, chairman. PSIC WORKERS UNION, LAHORE through ITS GENERAL
SECRETARY-Appellant versus REGISTRAR OF TRADE UNIONS, NORTH REGION, LAHORE and 3 others-Respondents Appeal No. 22/1996, dismissed on 7.11.1996 . Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 34~Dismissal of Petition for declaration to effect that Registration of PSIC Staff Union is illegal-Challenge to-Whether Trade Union can make a move to Labour Court for de-registration of another Trade Union- Question of--It cannot be disputed that petition, in manner it was preferred before Labour Court was not proceedable; and it would have only been exercise in futility, if in its defective or incompetent form, petition under section 34 of ordinance would have been proceeded with by Labour Court calling upon parties to produce evidence in support of their respective stand-points, after having stiffled or stayed act of regis tration of rival Union, PSIC Staff Union-Learned Presiding Officer of Labour Court has pointedly referred to verdict rendered by Supreme Court of Pakistan in case reported as 1992 SCMR 36, and has maintained that no guaranteed or secured right of C.B.A. have been infringed, and body, therefore, was not entitled to have invoked jurisdiction of Labour Court in matter-Held : Impugned order is un-exceptionable--Appeal dismissed. [P. 334 & 335] A & B Rana Abdul Hamid Talib, Advocate for Appellant. Mr. Ahsan All Bokhari, Labour Officer for Respondent No. 1. Mr. Nasir Mahmood Rathore, Advocate for Respondents No. 2 and 3. Mr. Muhammad Riaz, Assistant Director for Respondent No. 4. Date of hearing: 30.10.1996. judgment The appeal is directed against the decision dated 18.1.1996, rendered by learned Labour Court No. 1, Lahore, dismissing the appellant union's petition filed under section 34, Industrial Relations Ordinance, 1969, as being incompetent.. Respondents in appeal were the respondents in the petition before the Labour Court 2. Respondents No. 2 and 3, allegedly, at the instance of respondent No. 4, the establishment, had moved the Registrar of Trade Unions, respondent No. 1, for registration of their union, PSIC Staff Union. Claiming to be the C.B.A., the PSIC Workers Union approached the Registrar, with a request that the rival union (PSIC Staff Union) should not be registered, especially as there were already in existence two trade unions. According to the appellant, petitioner before the Labour Court, as C.B.A. the PSIC Workers Union had served upon the establishment a demand notice for recognition of certain rights and fulfilment of certain demands of the workmen, and the establishment had projected their pocket or puppet union, the PSIC Staff Union, to seek registration, so that they could serve the interests of the establishment and indulge in activities prejudicial to the cause of the working class. The petition was filed on 15.5.1994 and was. presented before the learned Presiding Officer of the Labour Court , on the following day, i.e. on 16,5.94, when the Register was directed not to pass any final orders. The Registrar, however, is said to have taken up the plea that the orders of the court were conveyed to him at 10.00 A.M., whereas he had already at 9.45 A.M. passed final orders as regards registration of the PSIC Staff Union, of which Mukhtar Awan and Muhammad Ilyas Chaudhry claimed respectively to be the President and the General Secretary. Registration of the latter union was sought to be declared as illegal. It was pleaded that the rights of the petitioner union had adversely been affected, the PSIC Staff Union having acted at the instance of the Corporation, with a view to defeat the 'Demands Notice' pending with the Management, having been served upon the same by the petitioner union as C.B.A. 3. Main grievance of the appellant union is that while dealing with its application for ad interim injunction, the learned lower court has chucked out the main petition, although its decision was not possible without appraisal of evidence, (which the parties would have led before the Labour Court) and without hearing full-dress arguments. Summary disposal of the petition, under section 34, Industrial Relations Ordinance, 1969, by the Labour Court is stated to have occasioned mis-carriage of justice, inasmuch as the express provisions of the Ordinance have been by-passed and legitimate interests of the working class have been trampled, in accord with the wishes of the establishment. 4. Learned Presiding Officer of the Labour Court has pointedly referred to the verdict rendered by the Supreme Court of Pakistan in the case reported as 1992 SCMR 36, and has maintained that no guaranteed or secured rights of the C.B.A. have been infringed, and the body, therefore, was not entitled to have invoked the jurisdiction of the Labour Court in the matter. It is, however, urged by the learned counsel for the appellant that an illegally-registered union would infringe the rights of the C.B.A. under section 22 ibid, adding that another union could not be registered, unless it fulfilled and the requirements under the law, as envisaged by section 3 of the Industrial Relations Ordinance, 1969, providing that no worker would be entitled to be a member of more than one trade unions at one time. Submission is that had the Registrar allowed the existing unions to participate in the inquiry, it could be shown to him that the third union had, on its rolls, not even the minimum required strength of workers and certain opportunists had ventured to become members of more than one trade unions simultaneously. Because of non-association of the C.B.A. with the exercise, the act of registration of the up-coming group, a pseudo trade union, would be rendered null and void, and the Registrar was duty-bound to have inquired into and scrutinized all these aspects of the issue. It was alleged that the Registrar had proceeded with the process of registration of the union, in question, in disregard of the prohibitory order having been passed by the court, on entertaining the petition under section 34, I.R.O., 1969. 5. Question of availability of a secured or guaranteed right has elaborately been discussed in the judgment, 1992 SCMR 36. Jn an earlier ruling of the Lahore High Court, reported as NLR 1983 Labour 185, it was held that a Labour Court/Appellate Tribunal was not competent to examine the validity of registration of trade union and its certification as C.B.A., since these forums did not enjoy all the powers of a Civil Court under the Code of Civil Procedure. In another case, 1992 PLC 23, the Karachi High Court expressed itself in more precise and comprehensive terms on the subject. It was pronounced that the Registrar, in view of section 10 of the Ordinance, was the sole authority to file a complaint before the competent Labour Court, soliciting cancellation of registration of a trade union. Such a move would lie within the exclusive jurisdiction of the Registrar. However, a grievance or petition, urging him to lodge such a complaint could not be said to be un-maintainable or in-valid. Once registration of a trade union is effected, the matter would travel beyond the Registrar's domain'or control. On being duly moved, or suo moto, the Registrar can come to the Labour Court for de-registration of a trade union, if it is discovered that registration of a union had been effected in contravention of law or was otherwise wanting in -the mandatory requirements, prescribed by the Ordinance. Registration of a trade union, under section 8 ibid, is not to assume a mechanical form, but has to be a conscious exercise, reflecting and satisfying test of objectivity. In 1988 PLC 637, it was held by this Tribunal that the Registrar only was competent to apply to the Labour Court for cancellation of registration of a Labour Union and that a trade union had no locus standi to make such a move directly to the Labour Court. This being the factual and legal position, it cannot be disputed that the petition, in the manner it was preferred before the Labour Court, was no proceed-able, and it would have only been an exercise in futility, if, in its defective or incompetent form, the B petition under section 34 of the Ordinance would have been proceeded with, by the Labour Court, calling upon the parties to produce evidence in support of their respective stand-points, after having stiffied or stayed the act of registration of the rival union, PSIC Staff Union. '6. Learned counsel for respondents No. 2 and 3 has cited to support his contention 1991 PLC 841 (Karachi High Court) and 1991 PLC 207 (Lahore High Court). There cannot be any cavil with the principle enunciated and the view expressed in these cases. It is in-evitable to hold an inquiry into the rival claims of trade unions existing and operating in particular set-up; and if a workman has got himself enlisted as a member of two more trade unions, he would be dis-quali6ed. A trade union cannot claim registration, unless it has membership of one-fifth of the total number of workmen employed by an establishment It is so postulated by sections 3 and 7 of the Ordinance. An inquiry cannot objectively be undertaken, without associating with it the employer, as also all the unions in existence. Keeping them out, while considering the question of registration of a particular trade union, would also be violative of principles of natural justice. Question requiring determination in the present case, however, is a different one. It has to be examined if an establishment or a trade union can make a move to the Labour Court for de-registration of another trade union. The answer plainly is in the negative. 7. I would endorse the impugned order, finding it to be un exceptionable. The appeal has no merit and is hereby dismissed, with no order as to costs. The exercise of holding the referendum shall be initiated and concluded within a maximum period of two months. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 336 [Punjab Labour Appellate Tribunal, Lahore ] Present: JUSTICE (R) MIAN GHULAM AHMAD, CHAIRMAN. JAFFAR ALI-Appellant versus CHAIRMAN, MUNICIPAL COMMITEE, SAMUNDM, DISTT. FAISALABAD and another-Respondents Appeal No. 467/1992, dismissed on 3.12.1990. Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25--A Clerk in Town Committee-Promotion of-Challenge to- Appellant had not filed any departmental appeal with Deputy Commissioner, who was competent to hear such an appeal-Appellant ( could not claim protection of Labour Laws, by invoking jurisdiction of Labour Court, and normal course open for him was to agitate against Respondent No. 2's promotion, as Head Clerk, as a departmental appeal- Appeal dismissed. [P.337&338JA&B Ch. Nemotullcth Khan, Advocate for Appellant Mr. M. Irshad Chaudhry, Advocate for Respondents. Date of hearing: 3.12.1996, judgment^ Decision of the learned Labour Court, Faisalabad having gone against Jaffar Ali (on 26.11.1992), he has come up in appeal to this forum, following being briefly the facts of the case. 2. On retirement of Fazal Ahmad, Head Clerk, Town Committee, Samundri, District Faisalabad, Muhammad Azhar Iqbal, respondent No. 2, was promoted in his place, and Jaffar Ali challenged the order, and his grievance petition was accepted on 30.9.1990 (Exh. P-l) by Mr. Ghulam Sarwar Sheikh, Presiding Officer, Punjab Labour Court No. 4, Faisalabad . Again, however, Muhammad Azhar Iqbal was given preference by Municipal Authorities over Jaffar Ali, in the matter of promotion; and Jaffar Ali, once again, on 12.3.1991, filed a grievance petition under section 25-A, Industrial Relations Ordinance, 1969, which, as already said, was disallowed. on 26.11.1992 by Pir Akhtar Hussain Bodla, Presiding Officer of the said court. According to Jaffar Ali, he was senior to Muhammad Azhar Iqbal, having been recruited as Clerk on 11.2.1981, the latter having been appointed in the same capacity afterwards on 14.12.1982. It is also averred by him that although he was a Matriculate, and Azhar Iqbal was F.Sc., yet the said factor will not weigh against him, as it is a case of promotion and not initial recruitment. He being senior-most and having un-blemished record should have been given preference over Azhar Iqbal, being at No. 1 and the latter being at No. 3, one Muhammad Jamil falling in between. It is also submitted by the appellant that he has been ignored owing to political considerations, but in evidence nothing has been said in that regard. Jaffar Ali hds made his statement as PW-1 on 7.10.1991, and has deposed that he had served for 17 years as Clerk in the Army, adding that during the whole service span he was never served with any charge-sheet or show-cause notice, nor was any disciplinary action taken against him, nor was he made to face inquiry on any count While cross-examining him, learned counsel for Muhammad Azhar, respondent No. 2, has elicited from him admission as regards the Municipality being not an industry or commercial organization, nor a factory, and Municipal Rules being applicable to service of the employees of the municipality. It is not denied by Jaffar Ali that even his opponent had been appointed against a permanent post and that he is not engaged exclusively in a manual work. It is also conceded by Jaffar Iqbal that he had not filed any departmental appeal with the Deputy Commissioner, who was also competent to hear such an appeal. He had done his Matriculation in 1962 in third division. Muhammad Azhar Iqbal had been promoted as Head Clerk, on as back as 16.6.1988, since when he has been performing his duties satisfactorily, it is not disputed. 8. I have seen the order dated 30.9.1990, passed by Mr. Ghulam Sarwar Sheikh, who then presided over Punjab Labour Court No. 4, at Faisalabad. It has been observed therein that promotion is not a guaranteed or secured right of a worker, who, however, has a right to be considered for promotion, when it is due. Jaffar All had been ignored, according to the learned Labour Court, in a fanciful and perfunctory manner, and had, in fact, never been considered for promotion, which order, therefore, could not be clothed with legality and must be taken to be unsustainable in law. Vide order dated 30.9.1990 the learned Labour Court directed that the post of "Head Clerk" be filled in strictly in accordance with the rules and established principles and not in a whimsical or arbitrary way. 4. Jaffar All thereupon was considered by the Board, and by a resolution regularly passed on 9.1.1991, Jaffar Ali, Muhammad Jamil, as also Muhammad Azhar Iqbal, were all considered, and it was resolved that Muhammad Azhar Iqbal suited as Head Clerk in all respects, as since 14.2.1982 as Clerk and since 16.6.1988 as Head Clerk his performance had been absolutely up to the mark. The learned Presiding Officer of the Labour Court, who subsequently rendered the decision on 26.11.1992, concurred with the competent authority in that regard, and came to the conclusion that the Municipal Resolution dated 9.1.1991, endorsing appointment of Azhar Iqbal as Head Clerk, was in every respect in order. Earlier, on 30.9.1990, the learned Presiding Officer of the Labour Court had given the opinion that Jaffar Ali had probably not been considered for promotion as Head Clerk and that he had a right to be considered, although he could not insist upon his promotion, which was not his vested right 5. Here I would differ with the view expressed in the impugned order dated 26.11.1992 that Jaffar Ali, or, for that matter, Muhammad Azhar Iqbal, was to be treated as a worker. I would over-rule this opinion and will stick to my own opinion, which is to the effect that Jaffar Ali could not claim protection of Labour Laws, by invoking the jurisdiction of the Labour Court, and normal course open for him to agitate against Azhar Iqbal's promotion, as Head Clerk, was a departmental appeal which right he should have exercised in time. Any-how, it is open to the competent authority tb condone the delay and ignore the. time spent by Jaffar Ali in having agitated his rights twice before the Labour Court , successfully for the first time, and unsuccessfully on the second occasion. 6'. Finding no force in the present appeal, I would dismiss it, with costs. (AAJS) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 339 [Punjab Labour Appellate Tribunal, Lahore ] Present: JUSTICE (R) MIAN GHULAM AHMAD, CHAIRMAN. MUHAMMAD AKRAM CHAUDHARY-Appellant versus ADMINISTRATION, QUAID-I-AZAM DIVISIONAL PUBLIC SCHOOL, GUJRANWALA-Respondent Appeal No. 445/94-Punjab, dismissed on 3.6.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)- S. 25--Senior SofTool teacher in Quaid-e-Azam Public School (An educational institution run by a trust)~Dismissal from service-Grievance petition against before Punjab Labour Court No. 7-Dismissal of petition- Challenge toAppellant has been imparting eduction to students and could in no manner claim that he has been doing exclusively a clerical work or a manual job, as it was only intellectual exercise-Mere fact that appellant has been writing digits and words or blackboard and on exercise book of students and making corrections with hands, does not obviously involve any manual or clerical kbour, and he could not claim to be a workman, particularly as he was in BS-17-Manual or clerical work, if any, was only incidental to main work of appellant, who was entrusted with task of imparting education to students-It was an educational institution, being run by a Trust, it Was not a unit of joint stock con., any, falling within definition of a commercial establishment, nor was any manufacturing process or any industrial activity being undertaken within premises of InstituteAid of provisions of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, or IRO, 1969 could not be invoked by appellant in his favour, who could not have recourse to Labour Court, by filing a grievance petition, which was not at all maintainable-Petition dismissed. [P. 340] A Mr. Abdul Hakim Awan, Advocate for Appellant Mr. Mushtaq Mehdi Akhtar, Advocate for Respondent. Date of hearing: 3.6.1996. judgment The appeal is directed against the decision dated 29.9.1994, rendered by the learned Punjab Labour Court No. 7, Gujranwala, dismissing the grievance petition of Muhammad Akram Chaudhry, filed under section 25- A, Industrial Relations Ordinance, 1969. Following are briefly the facts :-- 2. Muhammad Akram Chaudhry was appointed as Senior School Teacher in Quaid-i-Azam ivisional Pubh'c School, Gujranwala, on 27.8.1988, and he was dismissed form service on 4.3.93. This order, according to him, was without lawful authority, as also ineffective against his rights, as he had not been served with a show-cause notice, or a chargesheet, nor had he been ade to face an inquiry, and thus had been condemned unheard. According to him, he was a workman, and the Institute he was serving was a commercial and industrial institution, to the employees of which Labour Laws were applicable. 3. These averments of the appellant, petitioner before the Labour Court, were controverted by the respondent, the Administration of the Public School, according to which, Muhammad Akram Chaudhry could not claim to be a workman and could not, at the same time, invoke the jurisdiction of the Labour Court for redressal of his grievance, if any. It has been brought to the notice of the court by the respondent that the petitioner's performance was not upto the mark and he did not improve it in spite of warnings. He could not qualify the B. Ed. Examination, during his entire career and remained on probation throughout. The assertion that he was not heard has no basis, as he appeared before the Discipline Committee of the Institute on 24.1.1993 and was made aware of the dissatisfaction of the __ Institute as regards his proficiency, as also the charges against him, but he could not satisfy the Committee, and in accordance with the recommendations of the Discipline Committee, his services were terminated, in the best interests of the institution, on 4.3.1993. 4. The plea of the petitioner before the Labour Court , appellant before this forum, made to the effect that the School is being run on commercial or industrial basis cannot be endorsed, by any stretch of imagination. He had been recruited in the Senior Section and subsequently shifted to the Junior Section, because of lack of ability; and the allegation that this had been done by the Principal in collusion with the Headmistress could not be upheld. The appellant has been imparting eduction to the students and could in no manner claim that he has been doing exclusively a clerical work or a manual job, as it was only intellectual exercise. Quaid-i- Azam Education Trust has been running the school as a Public School, on the strength of subscriptions, contributions, donations, grants, gifts, aids, etc., besides the fees charged from the students. The mere fact that the appellant has been writing digits and words on black boards and on the exercise books of the students, and making corrections with hands, does not obviously inyolve any manual or clerical labour, and he could not claim to be a workman, particularly as he was in BS-17. The manual or clerical work, if any, was only incidental to the main work of the appellant, who was entrusted with the task of imparting education to the students. How could it be averred that it was a private institution, with commercial or industrial basis. It has rightly been observed by the learned Labour Court that the statement made by the teacher would resolve the controversy in question. It was an educational institution, being run by a Trust, and Mr. Muhammad Akram was functioning as a teacher in promoting the cause of education. It was not a unit of the joint stock company, falling within the definition of a commercial establishment, nor was any manufacturing process or any industrial activity being undertaken within the premises of the Institute. Aid of the provisions of the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, or the Industrial Relations Ordinance, 1969 could not be invoked by the appellant in his favour, who could not have recourse to the Labour Court , by filing a grievance petition, which was not at all maintainable. 5. The learned lower court had arrived at a correct conclusion and had rightly dismissed the grievance petition of Mr. Muhammad Akram, whose appeal similarly has no force, what ever; and it is hereby dismissed, with costs throughout, as for redressal of his grievance the appellant has chose throughout a wrong forum. (AAJS) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 341 [Punjab Labour Appellate Tribunal] Present: JUSTICE (R) MIAN GHULAM AHMAD, CHAIRMAN. HABIB BANK LTD., through PRESIDENT, KARACHI, and 3 others-Appellants versus MAHMOOD AHMAD QADRI-Respondent Appeal No. G.A.-161/93, accepted on 23.10.1996. Service Matter Bank employee (Assistant)-Removal from service-Reinstated by lower court-Challenge to~Findings of learned Labour court, that enquiries had not been conducted in a proper way, cannot possibly be endorsed Enquiries against respondent were not vengeance-oriented, as he became General Secretary of Workers Union in year 1984 and was charge-sheeted in year 1988-He was ousted from service in February, 1991, and in no undue or indecent haste-He had probably got into his mind that as he had been appointed General Secretary of trade union, he was to be ^governed by no service rules, and no norms, and he, therefore, cared little for office discipline and did not display any sense of duty-Allegations against official were established, and he was correctly found to have remained absent from duty without any lawful excuse-He could not be said to have earned an entitlement to receive his emoluments for period, he did not perform any dutyAppeal accepted. [P. 344] A Mr. UmarMvi, Advocate for Appellants. Mr. Muhammad Zaman Qureshi, Advocate for Respondent Date of hearing: 23.10.1996. judgment By the present judgment, I propose to dispose of two appeals, captioned above, as the facts and legal questions involved are practically the same. 2. Mahmood Ahmad Qadri was appointed as Messenger in the year 1979 and promoted in 1986 as Assistant by the Habib Bank Limited; and he was removed from service on 26.2.1991. He alleged that management of the Habib Bank Limited had become revengeful against him, owing to his trade union activities, and especially as in 1984 he had been elected as General Secretary of the Union of the employees, certified as CBA. What went against him in particular was that he had lodged complaints, Exhs. P-l to 6, against the Circle Executive, Sialkot , as also Zonal Chiefs, Narowal, about certain irregularities committed by them. He was served with charge-sheets and an enquiry officer was appointed for holding a probe. On his application, the enquiry officer was replaced by a new one, but he too was partial. He had to have recourse to the National Industrial Relations Commission, and he obtained a stay order, whereafter the Habib Bank Limited did not take further action against him. According to Qadri, a 'conciliation meeting 1 was held and he was assured that final action would not be taken against him, whereupon, the petition before the N.I.R.C. was got dismissed in default. Mr. Qadri maintains that actually he had been compelled not to pursue the proceedings before the N.I.R.C. He has, however, neither explained, nor established on record, how did the 'Authorities' force him to withdraw the proceedings pending before the N.I.R.C., and in what manner was the assurance, if any, given to him, that in the event of his non-pursuit of the proceedings before the N.I.R.C., final action would not be taken. He even unsuccessfully applied to the N.I.R.C. for revival of his cause. It is not denied that he was also allowed to coopt a co-worker with him, in the course of the enquiry; but Mahmood Ahmad Qadri alleges that no worker had actually been spared by the 'Authorities' to assist him in the enquiry proceedings. This again is a vague allegation; and, on the face of it, it appears that Mr. Qadri is telling lies. According to Mahmood Ahmad Qadri, the charge-sheets against him had not been signed by and the enquiry had not been held by competent officers. Mr. Qadri alleges having made complaints against the Circle Executive, Sh. Muhammad Aslam, and the enquiry officers were below his rank. Merely by saying that Sh. Muhammad Aslam had become personal against him and the enquiry was required to be conducted by officers above the rank of Sh. Muhammad Aslam, the onus will obviously not shift on to the management. Mahmood Ahmad was just an Assistant, and the enquiry officers, one after the other, were the Managers, who were certainly senior in rank. It seems that the complainant in the enquiries against Mr. Qadri was Mr. Ashfaq Ahmad Butt, and the two charge sheets were Exh. P-7 and P-9, Qadri did furnish replies to the notices, or the charge-sheets, but opted to stay away and did not afterwards join the enquiry proceedings. He was even required to come and attend, but he preferred to remain absent; and thus the management was justified to proceed against him ex parte. His plea is that he had been tansferred to Shakargarh, in order only to cope with a departmental formality, so that he could draw his pay as an appointee at Shakargarh; otherwise he was ordered to continue to serve at Sialkot This claim again has nothing in proof; and the fact remains that he had never joined duly at Shakargarh. He says that he had no criminal intention to remain absent from duty at Shakargarh. This stand-point is, however, false, on the face of it, as the mere fact that he remained absent from duty at Shakargarh, for a long time, would establish the obstinacy, mischief-mongering and insubordination, on his part. He says that he remained absent from duty on medical grounds. This certainly was not a sound plea. He was absent from duty since 19.3.1988, without leave, and without even informing his superiors about the incidence. 3. As per charge-shest, Exh. P-7, it was alleged that Mahmood Ahmad Qadri had received medical expenses, over and above his entitlement, which amount he got in league with one Dr. Muhammad Hussain of General Hospital, Sialkot Cantt. He showed the expenses of treatment of his father Ghulam Rasul as Rs, 7,800/-; and as per stand-point of the management it was a forged medical bill. A report was obtained from the actual doctor and the same is available at pages 363/369 of the file of the lower court. He had received this amount for his father, Ch. Ghulam Rasul, as operation expenses. Dr. Capt Khawar Rafique, however, certified (per pages 369-371 of the file of the lower court) that he had never worked in the said hospital, nor had he given any other treatment to the patient, and actually there were no arrangements available for operation of serious patients ia the General Hospital, Sialkot Cantt. Receipt for Rs. 7,800.00 issued on account of treatment charges did not appear to be in order, according to the Chief Executive Officer, Sialkot Cantt (at page 371). However, as a special case, the Assistant Vice President of the Bank had allowed Mr. Qadri to get Rs. 8.300/-, as excess payment, over and above the prescribe;! annual monetary limit for the year 1987 (page 377); but the record would establish that Mr. Qadri could go to any extent in deriving monetary benefits, including medical expenses. 4. There was also an allegation (charge sheet Ex. P-9) that he had committed forgery and altered the amount in the receipt dated 20.12.1987, from Rs. 500.00 to Us. 1500.00, by adding digit T before the figure 500. He was staying in a hotel at Karachi in connection with his Federation meeting and the hotel management was not in touch with. The Bank Managements as is revealed from the charge sheet Exh. P-9, was informed by the hotel management that through fraud, forgery and misrepresentation, Mr. Qadri had gained a wrongful advantage of a few hundred rupees, having received Rs. 1,500/- in place of Rs. 1,050/-, actually spent, and in that regard he had no plausible explanation to offer. The above-said incidence, in the opinion of the Bank Management, amounted to gross misconduct on the part of Mr. Mahmood Ahmad Qadri. 5. Mahmood Ahmad Qadri had never cared to explain his position by joining the enquiry proceedinp and remained absent throughout, on the pretext of personal illness, or sickness of his children, or for other reasons, and the Bank Management was wholly justified in proceeding against him exparte. The enquiry officers, belonging to the Bank, according to Mr. Qadri, were not expected to be impartial or fair. There was, however, no way out for the bank people, but to hold an enquiry against Mr. Qadri through officers of the Bank, who had no personal enmity against him. It was open to him to coopt with the proceedings of the enquiry and repudiate the allegations of corruption, misappropriation of money etc., as also long absence from duty. Since he had no excuse to put forth, he preferred not to join the enquiry proceedings. How can he say that the allegation of his absence from duty, or the other one, had not been enquired into properly. This is a familiar pattern of a trade unionist, which he followed, and did not care a fig for his superiors and did not give any importance, what ever, to the charge sheets served on him and to the enquiries held against him. He was even warned by the enquiry officer but he did not appear before him on a single day. In the enquiries, the allegations levelled against him were found to be sound or well-based; and he did not even furnish replies to the second show-cause notices, Exhs. P. 15 and 16, which he was served with, on conclusion of the enquiries. 6. He now says that he had remained unemployed throughout this period, but he has adduced no evidence in that regard, in support of his stand-point. He is not to be heard, when he says that his prolonged absence from duty was not actionable under the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969. He had probably got into his mind that as he had been appointed General Secretary of the trade union, he was to be governed by no service rules, and no norms, and he, therefore, cared little for the office discipline and did not display and sense of duty. The findings of the learned lower court, recorded at the end of the impugned order, that the enquiries had not been conducted in a proper way, cannot possibly be endorsed. Enquiries against him were not vengeance-oriented, as he became General Secretary of the Workers Union in the year 1984 and was charge-sheeted in the year 1988. He was ousted from service in February, 1991, and in no undue or indecent haste. The learned lower court, it appears, has chosen to be indulgent towards the employee, although at the same time the bank management has been permitted to conduct the enquiries afresh and award of back benefits has been held to be dependent upon the result of fresh enquines, to be conducted in future. I am of the opinion that no such enquiry was needed; and the previous enquiries were perfectly in order. The allegations against the official were established, and he was correctly found to have remained absent from duty, without any lawful excuse. He could not be said to have earned an entitlement to receive his emoluments for the period, he did not perform any duty with the bank. 7. Resultantiy I would set aside the impugned order, rendered by the Labour Court on 25.2.1993, and would accept Habib Bank's appeal. The one preferred by Mahmood Ahmad Qadri, laying counter claim to back benefits, fails and is hereby dismissed. There shall be no order as to costs. (AAJS) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 345 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (R) mian ghulam ahmad, chairman. GENERAL MANGER, HYESONS SUGAR MILLS, KHANPUR-Appellant versus SARDAR AHMAD etc.-Respondents Appeal No. 6/1997, decided on 3.3.1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A-Grievance petition-Unfair labour practice-Allegation of~ Contention by mill authorities that services of employees were terminated by mill management through retrenchment as there was every apprehension of closing down of mill and collapse of project as a whole-Appellants had been rendered surplus in consequence of re organisation-Held : Orders terminating services of employees are maintained-Appeals accepted. [Pp. 346 347 & 348 ] A B & C Cft, M. Ikram Zahid, Advocate for Mill Management. Mr. Javed Jalal, Advocate for Employees. Date of hearing: 3.3.1997. judgment By the present judgment are proposed to be disposed of 91 appeals (8 appeals No. 6 to 13 of 1997 having been filed by the Mill Management against the employees, Sardar Ahmad and others, and 83 appeals, No. 16 to 98 of 1997, having conversely been preferred by Sardar Ahmad etc. employees against the Mill Management. Proceedings of the grievance petitions, filed by the employees under section 25-A, Industrial Relations Ordinance, 1969, in the learned Labour Court at Bahawalpur, were consolidated, and a common judgment was delivered, accepting the grievance petitions, excepting, of course, the claims of the employees as regards their back benefits. Sardar Ahmad etc. employees have, by filing counter appeals, laid claims to back benefits as well. 2. Services of the employees were terminated by the Mill Management through retrenchment, as they had been rendered surplus in consequence of re-organization. The employees, however, maintained that this could not be done, as they had become permanent and their services could not be dispensed with, in the summary manner it was done. They were ousted from service allegedly in an illegal, as also malafide, manner, as persons even junior to them were retained and they were victimized on account of their trade union activities. Explicit reasons were not stated in the termination letters, which were also not issued by the employer. 3. It is contended by the learned counsel for the Mill Management that private institutions do not maintain lists of seniority of their employees, and even those in Government service cannot insist upon preparation of such lists as a vested right, in so far as the Federal Government employees are concerned. It is urged that preparation and maintenance of seniority list is not a requirement of law, as in the provisions of the Standing Orders Ordinance, 1968 it does not find mention any where. Terminations, it is submitted, took place as a result of an undertaking or assurance given by the General Secretary of the Union, who was fully cognizant of the fiscal position of the mill, four managements of which had, in succession, been changed and the mill was continuously running deficit (balance sheets being Exhs. R-8 to 10). The directors etc. had also submitted their resignations and replaced by new incumbents, as indicated by the documents Exhs. R-4 and 5; and in any case it was not a routine affair. By promulgation of section 144, Cr.P.C. (Exh. R-6), the affairs were being conducted from 1981 onwards, and some members of the mangerial staff/owners had even been convicted and fined ur.Jer Sugar Factories Control Act in the year 1989 (Exh. R-7). The Mill Management had even approached the N.I.R.C., and the General Secretary of the Workers Union, as respondent there, had filed written statement in the year 1993, initially contesting the petition filed under section 22-A(8)(g), Industrial Relations Ordinance, 1969, and then making a conceding statement, an undertaking having been given about non-commission of unfair labour practices. The petition, afore-mentioned, was ultimately withdrawn on 28.10.1993, by the learned counsel, representing the Mill Management, in presence of the Secretary General of the Trade Union and in view of a statement made by Mr. Javed Jalal, Advocate, on behalf of the respondents, members of the union (Exhs. R-15 to 17). Exh. R-18 indicates that a mutual agreement between the Management and the C.B.A. had been arrived at, in collaboration with the Conciliator of the Labour Department Mill Management had been allowed by the C.B.A. to terminate the services of the surplus workers and members of the staff, obviating the possibility of closing down of the project as a whole. It was also agreed that a fresh job analysis of the workers and staff, in all sections and units of the mill, would be undertaken, and general retrenchment would be resorted to, although an endeavour would be made to keep it to the minimum, to avoid frustration of the working class, as also impairment of their efficiency and productivity. The Legal Representative of the Mill as advised to withdraw all the cases against the Union pending in the N.I.R.C., on reciprocal basis, for maintaining good relations between the parties. On behalf of the employees it has been urged before me that the C.B.A. had acted in league with the Mill Management and the General Secretary was in its 'pocket'. I am afraid, this oral assertion cannot be given any weight, as C.B.A., as is well known, represented the working class, being their collective body, duly certified as C.B.A. 4. The agreement, afore-mentioned, also appeared to be in the interests of the working class as well, as there was every apprehension of closing down of the mill and collapse of the project as a whole. On behalf of the Mill Management at has been said that the C.B.A. office-bearers had acted in collaboration with the Mill Management and drawn up a list of those who were to be struck off the rolls of the concern, but some of the employees maintained that this was done in a dis-honest and malafide manner, as they had put in decades of service continuously and were not liable to ouster, viewed from any standard. The workers could very well make a request to the court to ask the Mill Management to tender the relevant record and to show to the court that the principle of 'first come, last go' has been observed, while preparing lists of the workers, whose retrenchment was under way, and that reduction in the number of employee's had been made under sheer necessity. I would not agree with the view-point of the learned counsel for the Mill Management that this principle, it was not incumbent upon the management, to follow. What else are the Labour Laws meant for? The Labour Courts and this Tribunal ha-, e to see that unfair treatment is not been meted out to the members of the labour class. The N.I.R.C. functions to curb unfair labour practices. I would not, however, dispute the right of the Management to reduce the number of workers, in view of financial constraints. The record reveals that the mill was facing real financial difficulties; but while going through the retrenchment process it had essentially to be seen, as to who amongst the workers were temporary, adhoc or work charged, and who amongst them had attained the status of permanent workers. 5. Mr. Javed Jalal, Advocate, has pointed out that the person, who has been examined as RW-1, to bring forth the view-point of the Mill Management, was not in the employment of the mill at the relevant time. That may be true, but he could certainly depose from the record and as regards the data and facts in existence. Since, however, the employees have not been able to establish that the management had resorted to 'pick and choose', and victimization in the process of retrenchment had, in a manifest manner, been done, the assertion that they were made victim of vengeance and the exercise was undertaken to deprive them of their annuallycalculated amenities cannot be believed. According to the learned counsel for the employes, the employer's petition before the N.I.R.C. had been withdrawn, which development would indicate that the management had not a fair case. It is, however, to be borne in mind in this respect that this had been done on an undertaking given by the C.B.A. and a settlement made by their counsel before the N.I.R.C. 6. In so far as the question of termination letter having incompetently been issued is concerned, it my be mentioned that the General Manager had instructed the Admn. Manager to act in the matter and the Labour Court has also endorsed this assertion of the employer and come to the conclusion that the employees had not been 'shunted out', owing to their trade union activities, although the exercise was undertaken in no bona fide manner and principle of seniority was not strictly adhered to, while curtailing the number of workers, according to the courtbelow. 7. I find myself inclined to differ with the findings arrived at by the learned Labour Court and would set aside the impugned judgments. The appeals preferred by the mill management are hereby accepted, although with no order as to costs. The order terminating the services of the employees are maintained. Their claim to back benefits, as such, would be rendered as invalid and untenable; and the appeals filed by the employees all consequently fail and are hereby dismissed, again with no order as to costs. (AAJS) Appeals accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 349 [Punjab Labour Appellate Tribunal, Lahore ] Present: mr. justice (R) mian ghulam ahmad, chairman. UMAR HAYAT-Appellant Versus RAFHAN MAIZE PRODUCTS COMPANY, FAISALABAD-Respondent Appeal No. FD-178/96/Punjab accepted on 16.2.1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-
S. 25-A--Grievance petition-Dismissal from serviceChallenge to Allegation against employee that he had man-handled General Secretary C.B.A. who t se clothes had been torn off-It was considered to be riotous behaviour as also subversion of disciple-According to employee E.O. had conducted himself in a partisan manner, had mis-read evidence and given incorrect fmdings~In same occurrence two other persons were involved- One was allowed to got scot free, one annual increment of others was withheld--A very harsh penalty of ouster from service was awarded to petitioner-Held : Alleged conduct of employee's part did not amount to misconduct of kind as would have attracted harsh view taken by E.O. in matter and adopted by mill management, in passing final order against employeeAppeal succeeds and allowed with costsAppeal allowed. [P. 349 & 351] A, B & C Appellant in person. Mr. M.A. Javed, Advocate for Respondent. Date of hearing: 16.2.1997. judgment 1. The appeal is directed against the decision dated 10.6.1996, rendered by Punjab Labour Court No. 4, Paisalabad, dismissing the grievance petition of Umar Hayat, filed under Section 25-A, Industrial Relations Ordinance, 1969. 2. Umar Hayat was working as "Senior Filler, Glucose Refmary", with the Rafhan Maize Products Company Ltd., Faisalabad , and was dismissed from service on 25.7.1995, on an allegation of misconduct. He had allegedly man-handled Muhammad Arshad Aziz, General Secretary, C.B.A., whose clothes had been torn off. It was considered to be riotous behaviour so also subversion of discipline, on the part of the employee. According to Umar Hayat, the Enquiry Officer had conducted himself in a partisan manner, had mis-read the evidence and given incorrect findings. Umar Hayat pleads that the mis-hap took place outside the mill premises, between two factions of the same union, and he was not at all responsible for it. In the same occurrence, two other persons, Ali Nawaz and Qurban Ali were involved. Whereas Ali Nawaz was allowed to go scot free, one annual increment of Qurban Ali was withheld. Umar Hayat says that a very harsh penally of ouster from service was awarded to him, with a view to take him out of arena of election. Discrimination was practised amongst the three officials, it is averred. Mr. M.A. Javed, Advocate, representing the respondent concern, has, however, relied on 1995 PLC (C.S.) 740 (Supreme Court of Pakistan), 1996 SCMR 336,1986 PLC 493 and 1997 PLC 715 (Labour Appellate Tribunal, Punjab), in urging that if a plea of fact is not pleaded, no case can be founded on such plea and no evidence can be led in support thereof. Points raised in the pleadings only can be considered and adjudged. Before any Tribunal he cannot subsequently take up the plea that the charges levelled against him were distinguishable from those against his associates. It is urged that Umar Hayat had never pleaded discrimination before the Labour Court, and had also not adduced any evidence in that behalf. Leaned counsel is, however, incorrect there; and surprisingly the Enquiry Officer had arrived at findings polls apart as regards the three officials, above-mentioned, facing similar or same charge of having assaulted Muhammad Arshad Aziz. This gentleman did not belong to the proprietorship or the management of the mill and was not supposed to have been made a victim of assault by the members of the trade union. He was himself the General Secretary of the Union notified as C.B.A. Umar Hayat, it is submitted, was planning to contest the election for a higher office in the trade union, and his rival in the union, as also the management, had become vindictive against him. He was elected Joint Secretary in 1987 and he remained in office for six years. The Enquiry Officer, no doubt, examined eleven PWs and eight witnesses in defence and the evidence was also discussed by the Enquiry Officer, who came to the conclusion that charge of misconduct stood proved against Umar Hayat, who did take part in the proceedings of enquiry and even cross-examined the witnesses of the prosecution and in the end produced witnesses in defence as well. He did not make any application for change of the Enquiry Officer, with whom he had no dispute and whose creditability or impartiality he did not challenge, in the opinion of the learned court below. It is, however, to be borne in mind that an enquiry is generally conducted by a person appointed by the management and in all likelihood he will conduct himself under the influence of the management and against the interest of the employee. A presumption, therefore, can be raised against impartiality or independence of the Enquiry Officer, whose findings must be viewed with great care and caution by a court of law. An Officer having been appointed by the Management to hold an enquiry against a subordinate cannot be expected to apply his free and independent mind to the facts of the case, rendering honest findings, not divorced from facts and representing absolute truth. The assertion that the incident had a different complexion and in any case it had occurred outside the mill has to be weighed and given due importance. In the course of .arguments Umar Hayat said he was vowing by the Holy Book that he had no grouse against Muhammad Arshad Aziz and had not resorted to any mis-behaviour with him. I feel that in the circumstances of the case others equally involved were leniently dealt with, whereas extreme view was expressed and a penal action was taken against Umar Hayat, who said he had to maintain his widowed mother and three sisters, father being dead. 3. Learned counsel for the respondent has cited in support his view point 1991 SCMR 2087 in urging that the appellant's conduct could not be termed as above board and he could not lay claim to back benefits. I am of the view that to some extent Umar Hayat might have to blame himself in the ugly incident and the loss caused to the interests and finances of the concern by reason of the disorderly behaviour of the co-workers; but I would reiterate that viewed with a non-partisan approach he did not deserve to be awarded the extreme penally of dismissal from service. The alleged conduct on his part did not amount to misconduct of the kind as would have attracted the harsh view taken by the Enquiry Officer in the matter, and adopted by the mill management, in passing the final order against the accused employee. He has been out of job since 25.7.1995; and no evidence has been led by the respondent to the effect that during the intervening period he has been doing any work or earning income from any other source. He has served one company for twelve years, without earning any adverse report and must be taken to be a jealous and zealous guardian of legitimate interests of the concern. 4. I would rescind the dismissal order dated 25.7.1995, and set aside the Labour Court 's order dated 10.6.1996. The appeal succeeds and is allowed with costs. Umar Hayat shall be reinstated in service with immediate effect and will be deemed to have served the factory with no gap. He will also be entitled to full back benefits for the period he has been out of service of the respondent. (AAJS) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 351 [Punjab Labour Appellate Tribunal, Lahore] Present: mr. justice (Em) mian ghulam ahmad chairman. M/s. WYETH LABORATORIES-Appellant versus MAHMOOD-UL-AHAD--Respondent Appeal No. Lhr. 112/96, dismissed on 17.2.1997. Industrial Relations Ordinance, 1969 (XXII of 1969)- S. 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--Workman-Termination of~ Grievance petition-Acceptance of-Appeal against-Under provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, a permanent workman, employed by a commercial establishment could not be ousted from service against provisions of law, and a commercial institution, could not keep post of an operator vacant for that long peripd continuously, even if he was not holding a'key post-Such an employee who had remained in service for a period exceeding nine months could invoke aid of labour laws, by having recourse to competent Labour Court, even if there was no charge of misconduct against him--Appeal dismissed. [P. 353] A Name of Advocates are not mentioned. Date of hearing: 17.2.1997. judgment Validity/operativeness of a decision dated 31.3.1996, pronounced by the learned Presiding Officer of Punjab Labour Court No. 1, Lahore, has been assailed by the employer, namely, M/s. Wyeth Laboratories, Pakistan Limited, Gulberg, Lahore, through its Personnel Manager, the facts and legal propositions involved briefly being as below :-- 2 Mahmood-ul-Ahad was employed by the Wyeth Laboratories Pakistan Limited as a Packing Operator, Grade IV, in the year 1975, and his services were terminated, on 29.5.1991. It was observed by the employer that Mahmood had actually abandoned the employment and was not available to perform his duties, over a long time, inspite of gracious attitude of the Management and the Wyeth Laboratories being a commercial establishment could not afford to keep the post vacant for an indefinite period, and was constrained to dispense with the services of the employee, in accordance with the conditions of 'Contract of Service'. He was paid one month's wages, in lieu of notice, and was told to stage exit from employment in final fashion. 3. According to Mahmood-ul-Ahad, the order passed against him by his employer was by way of victimization, that was occasioned on account of his trade union activities, and his services were terminated under the garb of his alleged absence from duty for a period of about fifteen months. He claims to have served his employer with a valid grievance notice on 28.8.1991, through registered post, and when the notice was not attended to, he had no option but to have recourse to Labour Court for the requisite relief. 4. It is a simple proposition that has cropped up for consideration by this court in appeal, decision by the Labour Court having gone against the employer and in favour of the employee. It is maintained by the employer that the employee had actually abandoned employment, voluntarily, long time back, and the establishment was under no legal obligation to issue him a show-cause notice or a charge-sheet or to make any probe against him by way of a departmental enquiry. It was not disputed that here was no charge of misconduct against the employee, who was, therefore, ousted from service in a manner, permissible by law, as also conditions of his employment. According to the respondent, however, he had successfully completed the probationary period, had been confirmed in his job, and had attained the status of a permanent workman. He was elected as President of the Wyeth Workers Union on 29.5.1991, and, on the same day, final action was taken against him, although he was not, conveyed the order, and he became aware of it about a week afterwards. The termination order dated 29.5.91 in Exh. PI and the grievance notice dated 28.8.1991 is Exh. P2, postal receipt being Exh. P3. He made an absolute denial of the allegation that he remained absent from duty from March, 1990 to May, 1991, without leave or permission of the employer. Leave applications, he said, with the establish ment He also repudiated the employer's plea that he had given up the idea of doing service and was no longer interested in the employment As against his deposition, made as PW-1, the Manager (Personnel), Wyeth Laboratories, appeared in the witness box as RW-1, his name being Mr. Azhar Bilal, who tendered in evidence, photo-stat copies of Mahmood-ul-Ahad's identity card, attendance register, application for employment, and letter of termination of his services. He was adamant that Mahmood had not attended to his duty in the factory from 1.3.1990 to 29.5.1991, as was indicated by his service record, Exh. R-3 to R-17. He had also not intimated his employer about the reasons for his prolonged absence from duty. The establishment could not ignore such long absence of any worker from duty. He also testified that friends of Mahmood-ul-Ahad had been bringing verbal messages and telling the management that he would be coming, and tb^e latter too conveyed to the worker oral messages, requiring him to join duty, with no positive response. Even after the termination of his services, Mahmood-ul-Ahad did not make any effort to come back or to tell the establishment as to why he had remained absent from duty for such a long period. Mushtaq Ahmad, Clerk, who made the entries in the Attendance Register, photo-stat copies being Ex. R-3 to R-17, has not been examined in evidence; but RW-l's cross-examination in that regard is revealing. For an absent employee, 'A' is marked, but in the case of Mahmood-ul-Ahad, it was not done like that, the reason being that the establishment had the impression that he might be late and on coming late he would explain his position. The explanation furnished by the witness is amusing indeed. The establishment kept on waiting for arrival of Mahmood for as long as fifteen months; and was so considerate to him that an order about increase in the salary on 27.1.1991 (Ex. P 4) was also passed, although Mahmood-ul-Ahad was stated to have remained absent from duty, incessantly from 1.3.1990 to 29.5.1991. These entries also were fluid-borne. This would make the record truly doubtful, and the reason given by the witness for applying fluid is not at all convincing, as he has said that this had been done to convert presence of the petitioner (before the Labour Court) to show his absence from duty, in actual practice. Surprisingly, as admitted by RW-1, no letter or warning had been sent to the employee, during that long period, asking him to join duty. 5. The learned lower court has arrived at a correct conclusion that under the provisions of the West Pakistan Industrial and Commercial i Employment (Standing Orders) Ordinance, 1968, a permanent workman, employed by a Commercial Establishment, could not be ousted from service in tiie manner it was done, and a Commercial Institution, a Medicinal Firm, could not Seep post of an Operator vacant for that long period continuously, even if he was not holding a key post Such an employee who had remained in service for a period exceeding nine months could invoke the aid of the Labour Laws, by having recourse to the competent Labour Court, even if there was no charge of misconduct against him. A grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, would be maintainable, as order of employee's ouster from service could not be regarded as an order of termination simplicitor, required to be made in writing. It was a regular order of termination of services of an employee, and absence of the employee from service, without leave, was far in excess of ten days, at a stretch. Termination order, in the present case, in the opinion of the learned lower court, is a device adopted by the Management for avoiding a domestic enquiry, which, in the circumstances of the case, was a must, as vacancy of a post, for that long period, was likely to result in financial loss to the establishment, although the respondent before the Labour Court did not state like that, in the written statement/reply submitted in response to the grievance petition. 'Job description' of Mahmood-ul-Ahad also was not placed on record and explained in evidence, and one cannot lend cars to the appellant's assertion made as respondent before the Labour Court that oral messages were exchanged between the establishment and the employee, for full fifteen months. The establishment kept idle and quiet and attitude of in action was shed only when (on 29.5.1991) the employee was elected as President of the Workers Union, and the establishment became probably frightful of his trade union activities. It has not incorrectly been observed by the learned court below that the post of Mahmood should have been filled in within a reasonable period and there was no justification for the establishment to keep quiet and remain in state of in action for a period of 15 months. It is not averred that any worker in his place had been appointed, before he was asked to quit. Ultimately, a short cut was adopted for^ dispensing with the services of Mahmood-ul-Ahad, in the Labour Court 's view, and it was not difficult to find the reasons for adoption of this course by the establishment. If Mahmood had become that lethargic or obstinate, there was no earthly reason for an increase of fifty rupees per month, with effect from 1.1.1991, that was made in his monthly emoluments. The same was conveyed to the employee at his 'employment address' and not his 'home address' which circumstance will leave little doubt about the fact that till 1.1.1991, at least, Mahmood-ul-Ahad had been performing his duty and attending to his job, alright. It seems certain that he was made a victim for his trade union activities on 29.5.1991, when he rose to the formidable office of the President of the Union . The learned lower court has taken note of the fact that Mahmood's claim of having been so elected has remained uncontroverted, and he has not even been cross-examined, on that count, and there is no reason by his claim made in that behalf be not treated as correct 6. I have no reason to doubt the bona-fldes of the employee and to rescind the order of termination of his services. The impugned order rendered by the learned Labour Court on 31.3.1996 is certainly not susceptible to interference by this court and is upheld. As it has not been proved on record that Mahmood has been doing any other job or has gainfully been employed any where, ever since dispensation of his services, on 29.5.1991, I would hold him entitled to the back benefits, in entirely, as well. The impugned decision dated 31.3.1996 is, in toto, maintained, therefore. The appellant shall also bear the costs of the litigation throughout. (K.A.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 355 [Punjab Labour Appellate Tribunal, Lahore] Present: mr. justice (rtd) mian ghjtlam ahmad, chairman. Messrs GRANULARS (PVT) LIMITED KARACHI , Through its Chief Executive, and two Others-Appellant's versus Soofi HIDAAYTULLAH-Respondent Appeal No. GA-227/95, dismissed on 20.2.1997. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- , -S. 25-A-Termination of service-Grievance petition-Acceptance of~ Appeal against-Employee was a workman and was entitled to a show cause notice, as also a charge sheet, and could not be made to quit service, except on proof of charge of misconduct, to be established through a formal enquiry, which employee was never made to go through-Learned lower court thus was absolutely justified in setting aside order of employees removal from service in manner it was done. [P. 356] A (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A--Grievance petition-Dismissal of-Appeal against-Back benefits- Whether to be granted-Question of-Employee signed a statement that he was not interested in back benefits if his reinstatement in service was - ordered-Employee is now endeavouring to wriggle out of this commitment, but he cannot possibly be permitted to do so. [P. 357] B ShaukatAli Jauid, Advocate for Establishment. Muhammad Bashir, Advocate for Employee., Date of hearing: 20.2.1997. judgment By the present judgment I propose to dispose of two appeals, captioned above, as the same arise out of the one and the same order, rendered by the Punjab Labour Court No. 7, at Gujraawala, on 3.10.1995. 2. Soofi Hidayatullah was initially on 8.4.1991 appointed as Store Keeper by M/s. Granulars (Pvt) Limited, Karachi. He has, however, also been operating as Sales Field Supervisor; but the learned lower court has treated him as a workman keeping in view the nature of the job that he had been performing. Provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 were also held to be applicable to his case; and it was observed that as he had been ousted from service on 22.9.1993, and some one else had been appointed in his place, without a show-cause notice, a charge-sheet, and without making him to face an enquiry, the order of his dismissal from service was not sustainable in law. 3. The learned lower court has referred to a letter dated 29.10.1991, Exh. P-2, indicating that the post of Field Supervisor from 21.7.1990 to 31.10.1990 had been offered to Hidayatullah as a temporary measure, with a nominal increase in pay. The permanent letter of appointment Exh. P-3 had been issued on 8.4.1991, with reference to his application dated 5.2.1991, and interview held on the following day, i.e. 6.2.1991. His appointment had been made actually as a Store-Keeper, with consolidated salary of Us. 2,500/- per month. He had, however, been promised to be placed on the permanent roll of the staff, subject to satisfactory completion of the probationary period. In the appointment letter, at conditions No. 6 and 7, a provision was made for termination of his services, or his dismissal from service, subject to certain conditions. It is, however, so well known that such term or conditions of service is generally incorporated in the appointment letters, but it has seldom been given effect to by the law courts, the reason being that such condition runs counter to the legal parlance and the employer has never been allowed to enjoy liberty of ousting his employees from service in an arbitrary and dictatorial manner. Exh. P-4 is the letter dated .22.9.1993, terminating the services of Soofi Hidayatullah, with immediate effect, without observance of any legal formality, the only exception being that the employee was offered one month's salary in lieu of notice and he was told that his services were no more required by the company, 4. No material has been placed on record to establish that the probationary period, as stipulated by condition No. 1 of the appointment letter Exh. P3, had been extended or initially its time-limit had been laid down. This being the factual and legal position, there remains no doubt about the fact that the employee was a workman and was entitled to a showcause notice, as also a charge-sheet, and he could not be made to quit service, except on proof of charge of misconduct, to be established through a formal enquiry, which Soofi Hidayatullah was never made to go through. The learned lower court thus was absolutely justified in setting aside the order of Soofi Hidayatullah removal from service, in the manner it was done. Similarly there was absolute legal justification for ordering his reinstatement in service, particularly as the post of Store-Keeper, which manual post he held till the end, did exit and did not become extinct, Soofi Hidayatullah having made over the charge of the post of Store Keeper to one Asad Malik. By no means, Soofi Hidayatullah was liable to removal from service, without observance of the legal formalities, as laid down by the Labour Laws!" 5. On 28.9.1995 Hidayatullah signed a statement that he was not interested in the back benefits, if his reinstatement in service was ordered. Hidayatullah is now endeavouring to wriggle out of this commitment, but he cannot possibly be permitted to do so. Hidayatullah had on 26.12.1995 filed an appeal of his own, claiming back benefits. This appeal, as per office report, was badly time-barred, and could not be allowed, on the score alone. I would dismiss SooS Hidayatullah's appeal about payment of back benefits and would also dismiss the Establishment's appeal filed against Soofi Hidayatullah, assailing validity of Labour Court's order dated 3.10.1995. There shall be no order as to costs. , (KA.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 357 [NWFP Service Tribunal, Peshawar ] Present: muhammad qaim jan khan chairman and arbab azizullah khan, member Dr. Syed MUHAMMAD ZAHOOR ALI SHAH -Appellant' versus THE DIRECTOR GENERAL etc.-Respondents Service Appeal No. 528/1995, dismissed on 21.10.1996. Seniority- Civil Servant-Seniority of--Determination -of-Both appellant and respondent No. 4 were selected in same batch by public service commission and appointed as medical officers (BPS-17) vide notification dated 16.4.1986-In case of selection by Public Service Commission, ad hoc service rendered by candidates does not count towards their seniority--/rtter-se seniority of selectees of Public Service Commission and same batch is determined by merit assigned to them by commission- According, to combined merit list of Public Service Commission respondent No. 4 appears in order of merit at S. No. 62 whereas appellant "is placed at S. No. 209~As such in seniority list prepared by Health Department-Appellant has shown junior to respondent No. 4-Moreover according to Rules senior medical officer will be incharge of institution- Appeal dismissed. [Pp. 359 & 360] A Mr. Adam Khan and M. A/am, Advocates for Appellant. Mr. Sikandar Sahibzada, Advocate for Respondent No. 1 to 3. Sahibzada Shahpur Jan, Advocate, for Respondent No. 4. Date of hearing: 21.10.1996. Announced on: 21.10.1996. judgment Muhammad Qaim Jan Khan, Chairman.-This is service appeal under section 4 of the Service Tribunals Act 1974 filed by Dr. Syed Muhammad Zahoor Ali Shah, appellant against the order of respondent No. 1, dated 3.8.1995, directing that respondent No. 4 will be the incharge of Rural Health Centre, Takhat Bhai and the representation of the appellant has been turned down. Facts giving rise to the present appeal are that the appellant was appointed as Medical Officer (B-17) on 3.4.1984 on ad hoc basis which were later on regularized vide order dated 16.4.1986, copy annexure-A. That respondent No. 4 was also appointed on adhoc basis on 29.9.1985 and lateron regularized. That the services of appellant and respondent No. 4 were treated to have been regularized from the dates of their respective dates of ad hoc appointments and paid the back service benefits. The appointment of respondent No. 4 on regular basis was then postponed and was issued lateron, as per foot note on annexure-A. That the post of Senior Medical Officer (Incharge) Rural Health Centre, Takht Bhai fell vacant and the appellant was transferred and posted there as Incharge Senior Medical Officer on 16.1.1994, copy annexure-B. That the respondent No. 4 was transferred and posted as Medical Officer-II at Rural Health Centre, Takht Bhai on 11.10.1994. That the appellant and respondent No. 4 were promoted as Senior Medical Officers (B-18) on 13.4.1995, copy Annexure-C. That consequent upon the said promotion, the appellant already holding the charge, assumed the same as Senior Medical Officer, Incharge Rural Health Centre, Takht Bhai on 18.4.1995, copies Annexures D to F. That respondent No. 4 was also posted as Senior Medical Officer at Rural Health Centre, Takht Bhai against the alleged vacant post, vide order dated 24.7.1995, copy Annexure-G. That respondent No. 1 vide letter dated 3.8.1995, on the request of respondent No. 4 ordered that respondent No. 4 will be the incharge of Rural Health Centre, Takht Bhai on the basis of alleged seniority and that the appellant will draw his pay against the post of Woman Medical Officer (BPS-18), copy Annexure-H. Aggrieved with the impugned order, the appellant submitted a representation on 6.8.1995, which was turned down on 9.8.1995, hence the present appeal. The relevant copies are Annexures I and J. The grounds of appeal are that the impugned orders are void, illegal and against the principle of natural justice. That the appellant is senior as against respondent No. 4 regarding their respective dates of appointments as Medical Officer in B-17. That in case appellant and respondent No. 4 are considered to have been appointed in one batch (though not admitted), the appellant being older in age is to be considered senior according to their respective date of birth. That no seniority list is ever communicated to the appellant and while perusing his representation, the appellant came across the provisional seniority list notified on 9.8.1994, which is also challenged on 19.8.1995 through a representation to respondent No. 1. That there is only one post of Senior Medical Officer (B-18) in Rural Health Centre, Takht Bhai and the appellant is working on that post since 18.4.1995, which was duly approved by respondents 1 and 3, copies Annexures E and F. That respondent No. 4 has been holding subordinate post to the appellant in BPS-17 and BPS-18. That the pay of the appellant has been fixed in B-18 against the sole post of Senior Medical Officer at Rural Health Centre, Takhat Bhai with effect from 18.4.1995 and he is drawing the same continuously. That only the post of Senior Medical Officer was held by the appellant and there is no vacant post of Senior Medical Officer (B-18) at the time of posting of respondent No. 4 as Senior Medical Officer. So his posting at Rural Health Centre, Takht Bhai is illegal and unjustified. That the impugned order amounts to cancellation of posting order of the'appellant as Senior Medical Officer, Incharge of Rural Health Centre, Takht Bhai and also withdrawal of accrued right without proper hearing and the same is void and illegal as the appellant has been condemned unheard. In the prayer, the appellant has asked for setting aside of the impugned orders with costs. Notices were issued to respondents. They appeared through their respective representative/counsel, submitted replies, rebutting all the allegations of the appellant The appellant has also submitted his re-joinder. After that detailed arguments of Mr. Adam Khan, Advocate for appellant, Mr. Sikandar Sahibzada, Advocate (Government Pleader) for respondents 1 to 3 and Shahzada Shahpur Jan, Advocate for respondent No. 4 have been heard and record perused. As far as the preliminary/legal objections are concerned, the appellant has got every cause of action being aggrieved by the impugned order. Moreover, being a service matter, this court has got perfect jurisdiction in the instant matter. The appeal is perfectly competent in its present form and there is no evidence to prove any estoppel on the part of the appellant On factual side, the case is quite dear. Both the appellant and respondent No. 4 were selected in the same batch by Public Service Commission and appointed as Medical Officers (BPS-17) vide notification dated 16.4.1986. In the case of selection by Public Service Commission, the adhoc service rendered by the candidates does not count towards their seniority. The inter se seniority of the selectees of the Public Service Commission in one and the same batch is determined by the merit assigned to them by the Commission. According to the combined merit list of the Public Service Commission respondent No. 4 is senior to the appellant, respondent No. 4 appears in order of merit at S. No. 62 whereas the appellant is placed at S. No. 209. As such in the seniority list prepared by the Health Department, the appellant has been shown junior to respondent No. 4. Moreover, according to the rules, the Senior Medical Officer will be the incharge of the institution and as is clear from the record, respondent No. 4 is senior to the appellant So he has been placed as Senior Medical Officer Incharge of Rural Health Centre, Takht Bhai. Moreover, there is no monetary loss to the appellant as he is drawing his pay against a BPS-18 post Le. Women Medical Officer. According to the available record the impugned order does not suffer from any illegality and thus the appeal lacks legal force and the same is hereby dismissed, leaving the parties to bear their own costs. File be consigned to the record. (ILA.B.) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 360 [Punjab Labour Appellate Tribunal, Lahore ] Present: MR. JUSTICE (RTD.) mian GHULAM AHMAD, CHAIRMAN PUNJAB ROAD TRANSPORT CORPORATION, through its Managing Director, Lahore and three others-Appellant's versus MUHAMMAD HANIF-Respondent Appeal No. 403/1994, dismissed on 10.12.1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A-Grievance petition-Acceptance of--Appeal against--Limitation- Question of~If departmental appeal of employ remains undecided or its decision is delayed, objection about grievance notice and grievance petition being time-barred would not be valid and limitation would run from date of communication of decision on appeal, rather than from date of awareness of employee about an adverse entry against him. [Pp. 362 & 363] A & B Muhammad Iqbal Khokhar, Advocate for Appellants. Ch, Shabbir Ahmed, Advocate for Respondent. Date of hearing: 27.11.1996. judgment The appeal is directed against the judgment dated 21.7.1994, rendered by the learned Labour Court No. 1, Lahore, presided over then by Ch. Masood Akhtar Khan, following being the relevant facts : 2. Muhammad Hanif joined service with the Punjab Road Transport Corporation on 6.5.1964 as Driver and was in the year 1974 promoted as Driver Instructor. At the time of filling in the proforma for his first entry into government service, Ex. R-l, he gave his date of birth as 12.10.1931 and was accordingly retired on 12.10.1991, vide letter Exh. P-4/R-2, having been issued on 18.5.91. The actual retirement order, Exh. R-3, by which he was struck off the strength of PRTC was passed on 9.10.1991, by virtue of which he stood relieved on 12.10.1991. He maintains that a few months before the actual date of his retirement he became aware of the error in his date of birth and the correct date of birth carried in the military discharge certificate, being 10.8.1934, on the strength of which he was to retire on attaining the age of superannuation on 10.8.1994. He wanted a clarification in that behalf from the Army Authorities and moved an application on 21:3.1990 to the Army Core Centre, Naushehra. The Army people made a verification vide letter Ex. P-2 that his date of birth was 10.8.1934. The PRTC people wanted to satisfy themselves in regard to the actual date of birth of Muhammad Hanif and a letter, Exh. P-8 was addressed by them on 25.8.1991 to the Army Core Centre, Naushehra, which Centre, on 2.9.1991, Exh. P-9, verified the petitioner's version, which however, was not believed by the PRTC people, who proceeded to retire the petitioner with effect from 12.10.1991, as already said. 3. The Director Operations, PRTC, Egerton Road, Lahore was approached by the petitioner, through appeal dated 24.5.1991, Exh. P-5, which was not decided and the decision Exh. P-6 was communicated to Muhammad Hanif, on 19.10.1991, subsequent to the grievance petition having been filed on 15.10.1991, the grievance notice Exh. P-7, having been served on the employer about two months there before, on 25.8.1991. 4. Muhammad Hanifs grievance petition as resisted by the respondents before the Labour Court, appellants herein, on a number of grounds, which have all been dealt with by the learned Labour Court ably and properly, I must say. It has been held that despite Muhammad Hanif having been serving the Corporation as Driver Instructor, and having been delivering lectures to the concerned people, he did not cease to be a workman, and as such the Labour Court was not divested of its jurisdiction in the matter. Relying on 1994 PLC 1 (Labour Appellate Tribunal Punjab) and 1991 PLC 801 (Lahore High Court), it was held that premature retirement having adversely effected the vested right of the employee, he was entitled to an opportunity of hearing, and rules of justice and equity required that benefit of doubt in the matter of age be given to the employee and contradictory record of age be ignored, particularly if the principle of 'audi alterant partem" has been violated Employer's objections against the employee's locus standi and subsistence of his guaranteed right were held to have no force, and the grievance noticed, followed by the grievance petition, were found by the court below not to be barred by the law off limitation. 5. It cannot be denied that the employee had been taking steps for correction of his date of birth, although apparently he had done it towards the fag end of his service. Not only he addressed his previous employer in the Army, his subsequent employer, namely, the PRTC, also sought clarification from the Army Authorities about his actual date of birth as borne by the record maintained by the Army people. Documents Exhs. P-l to P-ll would be relevant for scrutiny of claim of the employee about having made frantic efforts for correction of his date of birth. This included his departmental appeal, Exh. P-5, and rejection thereof, Exh. P-6, having been conveyed to the employee after he had approached the Labour Court of redressal of his grievance. This was in addition to his passport, Exh. P-12 and the particulars supplied by him to the State Life Insurance Company, Exhs. P. 13 and P. 14. The retirement orders were passed on J8.5.1991 and were received by the employee on 20.5.1991. He served a grievance notice upon the employer on 25.8.1991, that is with a negligible delay of a few days. He stood practically retired from service on 12.10.1991 and on 15.10.91 he filed the grievance petition, the relieving order (Ex. P4) having been passed on 18.5.1991. It cannot be said that the grievance notice was either premature or timebarred, keeping in view the circumstances of the case. It is urged by the PRTC people that the proper time for correction of date of birth for the employee was within two years of his entry into service and he should have gone to the Civil Court under section 9, C.P.C. It is also maintained that he could not possibly remain ignorant of his actual date of birth, having been entered in the record, when he was taken into service of PRTC and that he was bound by the certificate, according to which, he had himself given his date of birth as 12.10.1931, which made him superannuated on 11.10.1991 and he could not possibly wriggle out of his commitment in the matter. It, however, appears that he had, without application of mind, given to the PRTC Authorities, his date of birth as 12.10.31, which might have been entered as such by the concerned clerk, either through inadvertence, or in a tnalafide manner. This could well have been done by guess work and the employee signed the proforma in a manner of excitement, without verification of his necessary particulars. It has been held in 1989 PLC 605 (Labour Appellate Tribunal Punjab), as also in 1988 PLC 323 and 1983 PLC 437 (Labour Appellate Tribunal Sindh) that if the departmental appeal of .A the emplbyee remains undecided or its decision is delayed, the objection about the grievance notice and the grievance petition being time-barred would not be valid and the limitation would run from the date of communication of decision on appeal, rather than from the date of awareness of the employee about an adverse entry against him. In 1984 PLC 9 56 (Labour Appellate Tribunal Punjab) it was pronounced that if there was available no better and concrete evidence, presence of army discharge certificate should be given preference, and the plea of an employee about his actual age or date of birth should not be repelled in a superficial or rudimentary manner. In response to Muhammad Hanif s letter, Exh. P-8, the Army Authorities had informed him vide letter Exh. P-9 that his date of birth, as occurring in the army record, was 10.8.1934. The PRTC people themselves made a reference in that behalf to the Army Authorities. They were told in dear terms that Muhammad Hanifs date of birth was 10.8.1934. It was then indeed intriguing as to why was his plea about his actual date of birth not believed by the PRTC people and as to why they stuck to their version that his date of birth, as given by him on his entry into PRTC's service being 12.10.1931, was a genuine claim, which admitted of no variation. Muhammad Hanif having been making applications/ representa tions/appeals to the higher officers of the PRTC, for correction of his date of birth, it could, in no manner, be assumed that he had made a move in the matter rather late in the day and was prevented from reiterating his stand that he was actually born on 10.8.1934 and not on 12.10.1931, and his date of superannuation fell on 9.8.1994 instead of 11.10.1991. This being the factual and legal position, supported in clear and concrete terms by Muhammad Hanifs passport and insurance documents Exhs. P-12 to P-14, the order of the learned Labour Court made to the effect that Muhammad Hanif would stand retired on 9.8.1994, instead of llth or 12th of October, 1991, must be taken to be sound and must be endorsed by this Tribunal. The appeal filed by the Punjab Road Transport Corporation is devoid of merit and is hereby dismissed, with no order as to costs. (K.A.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 363 [Federal Service Tribunal, Islamabad ] Present: abdul razzaq A. thahim, chairman & aftab ahmad, member. HIDAYAT ULLAH and 4 others-Appellants versus SECRETARY HOUSING & WORKS, GOVT. OF PAKISTAN , ISLAMABAD and others-Respondents Appeals Nos. 3 (P), 35(R), 36(R), 50(R) and 12(K) of 1995, decided on 16.12.1996. (i) Promotion- Promotion of 23 Assistant Executive Engineers who passed departmental examination in five chances-Challenged by appellants who passed departmental examination in nine chances although in their appointment letters it was specifically mentioned that their failure to pass departmental examination shall render them ineligible for holding post in service-Whether they can claim promotion under circumstances- Question ofIt is well settled law that rules of service can be changed for better administration and efficiency and no person has right to challenge vire of rules in this respect-Besides that in letters of appointment of two appellants it was made incumbent upon them to pass departmental examination in five chances-Though no specific provision was made I rules that persons who had not passed examination in five chances would render themselves ineligible to remain in service, omission was rectified in appointment letters and then subsequently by 1984 Rules in Paragraph 7--In these circumstances, appellants cannot claim to remain in service having become ineligible for failing to pass examination in five chances and subsequently they had no right to promotion-No doubt appellants and similarly placed Executive engineers had been given increments contrary to 1951 Rules and were not ousted as result of failing to pass departmental examination within five chances-Held: This inaction on part of Govt. should hot be allowed to affect right of persons who had passed departmental examination in requisite number of chances and had preferential right of promotion over those who did not satisfy requirement [P. 370 & 371] A (ii) Promotion- Appeal against promotion of 18 Assistant Executive Engineers in five chances-Whether appellants were treated discriminatedQuestion of~ Promotion of those eighteen Assistant Executive Engineers who were promoted was throughout under challenge and High Powered Committee had taken decision that orders of Prime Minister may be obtained for their retention in service and further that they should be placed junior to all those who had passed examination in five chances-It was brought to our notice that Govt. intends to promote all Assistant Executive Engineers who had passed departmental examination in five chances and on promotion they shall stand senior to those who had not so passed examination. [P. 371] B (Hi) Promotion- Appellant failed to pass departmental examination within requisite number of chances which is condition precedent for promotion-Whether they could be deprived from promotion for ever-Deprivation of two appellants from promotion for ever for not having passed departmental examination- within requisite number of chances would be too severe unannounced penalty-Therefore in interest of justice and fairplay we direct that these two appellants and others who have since passed departmental examination though in more than five chances may be considered for promotion from date of passing their examination without prejudice to those who have passed departmental examination with requisite number of five chances and those who have already been passed. [P. 372] E (iv) Seniority- Appellants shown senior to 23 Assistant Executive Engineer promoted- Whether seniority could be changed and appellants had prior right for consideration for promotion-Question of--Senioirty list lost its affect when on proper examination of legal position decision was taken by High Powered Committee that Assistant Executive Engineers who had passed departmental examination in five chances or less will rank senior in seniority over those who had qualified said examination in more than five chances-Held: Two appellants are not entitled to promotion in preference to 23 respondents or in preference to those Asstt. Executive Engineers who have passed departmental examination in five chances but have not yet been promoted. [P. 371 & 372] C & D (v) Termination- -Appellants did not pass departmental examination within five chances- Whether they could be terminated from service-Question of-Persons who did not pass examination within five chances had continued to remain in serviceHeld: It will now be too harsh to cease them for becoming ineligible they may be retained in service. [P. 373] F Syed AsifSkah, Advocate for Appellant Mr. Javid Aziz Sandhu, Standing Counsel alongwith Mr. Liaqat All, Section Officer. Mr. Shah Abdur Rashid, Advocate for Private Respondents and Mr". Fazal H. Chaudhry, Advocate for Respondent No. 21 in Appeal No. 3 (P)/95. Shah Abdur Rashid, Advocate for the Appellant. Mr. M. Javed Aziz Sandhu, Standing Counsel alongwith Mr. Liaqat Ali, Section Officer, Works Division. Mr. Fazal H. Chaudhry, Advocate for Respondent No. 21. Private Respondents in person in Appeal No. 35 and 36(R)/95. Mr. Fazal ElahiSiddiqi, Advocate for the Appellants. Mr. Javid Aziz Sandhu, Standing Counsel alongwith Mr. Liaqat Ali, Section Officer, Shah Abdur Rashid, Advocate for Private Respondents and Mr. Fazal H. Chaudhry, Advocate for Respondent No. 21 in 50(R)/93. ~Mr. ManzoorAli Khan, Advocate for Appellant. Mr. Javed Aziz Sandhu, Standing Counsel, Shah Abdur Rashid, Advocate for Respondent No. 21, Mr. Fazal Elahi Siddiqi Respondent No 1 Mr. Aminur Rehman, Advocate for Respondent No. 25. Respondent 15 in person Mr. Liaq All, SO. M/o Housing & Works & Mr. A. Hakim, Steno, Estb. Division D.R. in Appeal 12(K) 1995. Dates of hearing: 28.5.1995 and 1.8.1995. judgment Aftab Ahmad, Member.-Since the facts and law applicable to all the five Appeal Nos. 3 (P)/95, 35(R)/95, 36(R)/95, 50(R)/95 & 12(K)/95 are the same, it is proposed to dispose of them by this consolidated order. 2. The terms and conditions of the service of the members of the Central Engineering Service, Class-I, were regulated initially by the Central Engineering Service, Class-I, Recruitment Rules, published with Government Notification No. 724/186 dated the 13th August, 1951. Initial recruitment under these Rules were to be made by the Competitive Examination to the post of Assistant Executive Engineer (now BPS-17). Paragraph 1 of Appendix-VI of these Rules provides as follows:- "1. Persons recruited to the Central Engineering Service, Class-I, by competitive examination shall be appointed as Assistant Executive Engineers on a scale of Rs. 350-25-500-530-EB-560-30-770-40-850 and shall be on probation for a period of at least two years. They pay admissible during the first and second years of probation will be Rs. 350/- and Rs. 375/- respectively in the above scale of pay. The stage of Rs. 400/- will be allowed only after they have successfully completed the probationary period and have passed the prescribed departmental examination. Thereafter, further increments in the above scale of pay will, subject to the operation of the rules, be allowed on the anniversary of the date of appointment on probation." 3. The aforesaid Appendix did not specifically provide as to what would be the effect if the incumbent of the post of an Assistant Executive Engineer could not pass the prescribed departmental examination. However, in the letter of appointment of each Assistant Executive Engineer, including the appellant, it was specifically stated as unden- "He will be required to pass the prescribed departmental examination within period of 3 years and with maximum five chances." 4. The aforesaid Rules of 1951 were subsequently repealed and replaced by'Notification No. SRO 897(I)/84 dated 11.10.1984. The new Rules under the heading "Conditions for Promotion" provided that a person shall be eligible for promotion to the post of Executive Engineer (B-18) if he had put in five years service in B-17 and has passed the prescribed departmental examination. With respect to the persons failing in the departmental examination the following provision in paragraph 7 was made:- Tersons recruited direct, shall be required to pass the prescribed departmental examination within a maximum period of four years of their joining the service with maximum of five chances. Failure to do so shall render the person concerned ineligible for holding the post in the service." 5. By Notification No. SRO-758(I)/89 dated 12.7.1989, paragraph 7, referred to above, was deleted from the 1984 Rules but the condition for passing the departmental examination for promotion to the post of Executive Engineer was kept in tact 6. On the deletion of paragraph 7 from the 1984 Rules, eighteen Assistant Executive Engineers, who passed the examination in more than five chances, were promoted to the post of Executive Engineer. These promotions were challenged by the three Assistant Executive Engineers in three different appeals inter alia on the ground that 18 Assistant Executive Engineers who had not passed the examination within four years and five chances had become ineligible to remain in service and that the then appellants having duly qualified the examination within four years and in less than five chances, were entitled to be promoted in preference to the said 18 Assistant Executive Engineers. During the pendency of appeals, the department came up with the objection that a High Powered Committee had been constituted to examine the entire issue. Resultantly the Tribunal disposed of the appeal with the direction that let the High Powered Committee and the Government take a decision and thereafter who-ever is aggrieved by that decision, may approach the Tribunal. The High Powered Committee gave the decision to the effect that the Assistant Executive Engineers who had passed the departmental examination in five chances or less (irrespective of the time taken) should have been promoted to B-18 in preference to those who had passed the said examination in more than five chances. It was further decided that on promotion to B-18 all the Assistant Executive Engineers who had passed the departmental examination in five chances or less will rank senior in seniority over those who had qualified the said examination in more than five chances and will stand relegated in seniority accordingly including those already promoted to B-18. The Committee also recommended that a summary may be moved for seeking approval of the Prime Minister for retention in service of the directly recruited Assistant Executive Engineers who had passed the departmental examination in more than five chances. The summary was also to include the names of those Assistant Executive Engineers who had already been promoted as Executive Engineers (B-18). In substance it was recommended that out of Executive Engineers and Assistant Executive Engineers those who had passed the departmental examination within five chances should be promoted in preference to those who had passed the examination in more than five chances and that the unqualified Executive Engineers and Assistant Executive Engineers should be placed junior to all those who had duly qualified. The recommendations of the Committee were accepted by the Government and resultantly 23 Assistant Executive Engineers who had passed the departmental examination in five chances were promoted to the post of Executive Engineers (B-18). Nevertheless the 18 Executive Engineers who had been promoted on deletion of paragraph 7 despite their failure to pass the examination in five chances were retained as Executive Engineer. The decision of the Committee is reproduced hereunder for reference:- "6. After detailed deliberations as above, the Committee decided to recommend as under:- (i) The existing AEEs, who have passed the departmental examination in five chances or less (irrespective of the time taken) should have been and be considered for promotion in BPS-18 in preference to those who have passed the said examination in more than five chances. (ii) In view of (i) above, the Works Division will undertake an immediate exercise for possible adjustment as Executive Engineers (BPS-18) of all those persons who were recruited as AEE (Civil) under the Recruitment Rules of 1951 and had passed the departmental examination in five chances or less. - (iii) The Works Division will attempt to complete the exercise at (ii) above within a period of one month at the latest from the date of receipt of this report. (iv) A meeting of the D.P.C. thereafter will be held to consider the promotion in BPS-18 of the AEEs mentioned at (ii) above. The approval of the appointing authority will then be obtained by the Division concerned. (y) On promotion in BPS-18 all the AEEs who had passed the departmental examination in five chances or less will rank senior in seniority over those who had qualified the said examination in more than five chances who will stand relegated in seniority according including those already promoted to B-18. (vi) After the promotion of the persons mentioned at (iv) above in BPS-18, a Summary for the Prime Minister will be moved by the Works Division through the Establishment Division seeking his approval for retention in service of the directly recruited AEEs who had passed the departmental examination in more than five chances as a special case and in the context of extenuating circumstances. This will also include the names of those AEEs who have already been promoted as XEN (BPS-18). 7. In case the Works Division fails in making sufficient vacancies available for the adjustment in BPS-18 of the AEEs (Civil) as mentioned at (ii) above, there will be no other course available with that Division except to act upon the decision contained in para l(ii) of the Establishment Division's O.M. No. 44/1/83. R. 5, dated 17th Nqvember, 1992 which calls for the reversion to BPS-17 of those Executive Engineers who had passed the departmental examination in more than five chances. The most junior in the category will be reverted first." 7. Hidayatullah, appellant in Appeal No. 3(P)/1995 and Khalid Qureshi, appellant in Appeal No. 12 (K)/95, who were senior to the aforesaid 23 Assistant Executive Engineers (B-17) having joined earlier have challenged these.promotions and have filed the present appeal before the Tribunal with the following prayer: "After hearing the parties set aside Works Division, Govt of Pakistan's Notification dated 30.8.1994 as reproduced in para 9 supra (and as contained in Annex. G hereto) on which, is based the impugned original final order dated 30.8.1994 of the Works Division and direct Respondents No. 1 and 2 to consider the appellant for his promotion to the post of Executive Engineer (BPS-18) according to appellant's already determined seniority as on 30.6.1991 in the cadre of Assistant Executive Engineers (Civil) BPS-17) with all the consequential and back benefits. Grant to the appellant any ther/further relief which the Honourable Tribunal deems fit and appropriate in the circumstances of the case." 8. On examining of the record of the case, it has transpired that both the appellants, namely, Hidayatullah and Khalid Qureshi were provided, after their joining the service with nine chances for passing the departmental examination and both of them passed the examination in the ninth chance after rule 7 had been deleted from the 1984 Rules. The Government's view and the view of the contesting respondents is that the two officers having not passed the departmental examination within five chances, had become ineligible to remain in service and that they could not be promoted as Assistant Executive Engineers (BPS-18) in preference to 23 Assistant Executive Engineers who duly passed the examination in accordance with the Rules and were thus promoted rightly. 9. Different counsel appeared for the appellants in the two cases on two different dates. However, the arguments advanced on their behalf are the same and we shall discuss them hereinafter. 10. It has been urged that both the appellants were appointed as Assistant Executive Engineers when Rules of 1951 were in force and that in those rules there was no provision that a person failing to pass the examination in five chances shall render himself ineligible to remain in service. It was further argued that the 1984 Rules and for that matter rule 7 thereof could not operate retrospectively. In our opinion, there is no substance in the arguments of the learned counsel for the appellants. It is well settled law that rules of service can be changed for better administration and efficiency and no person has a right to challenge the vires of the rules in this respect. Besides, under 1951 Rules a person could not go beyond Rs. 375/- in the time scale which shows that he could not be promoted as Executive Engineer (PBS-18) whose initial pay was far in excess of Rs. 375/-. Besides that in the letters of appointment of the two appellants it was made incumbent upon them to pass the departmental examination in five chances. Though 110 specific provision was made in the rules that persons who had not passed the examination in five chances would render themselves A ineligible to remain in service, the omission was rectified in the appointment letters and then subsequently by 1984 Rules in paragraph 7. In these i circumstances the appellants cannot claim to remain in service having become ineligible for failing to pass the examination in five chances and consequently they had no right of promotion. No doubt the appellants and similarly placed Executive Engineers had been given increments contrary to 1051 Rules and were not ousted as a result of failing to pass the departmental examination within five chances nevertheless this inaction on the part of. the Government should not be allowed to affect the right of persons who had passed the departmental examination in requisite number of chances and had a preferential right of promotion over those who did not satisfy the requirement. 11. The learned counsel have further argued that eighteen Assistant Executive Engineers who had similarly not qualified that examination in five chances, had been promoted earlier and, therefore, the appellants were treated discriminately. This contention has also no substance because the promotion of those eighteen Assisstant Executive Engineers who were promoted was throughout under challenge and the High Powered Committee had taken a decision that orders of the Prime Minister may be obtained for their retention in service and further that they should be placed junior to all those who had passed the examination in five chances. It was brought to our notice that the Government intends to promote all the Assistant Executive Engineers who had passed the departmental examination in five chances and on promotion they shall stand senior to those who had not so passed the examination. 12. The learned counsel then argued that a seniority list had been prepared in which the two appellants were shown senior to the 23 Assistant Executive Engineers who had been promoted and, therefore, they had a prior right for consideration for promotion. In this argument also there is no force because the seniority list lost its affect when on proper examination of the legal position a decision was taken by the High Powered Committee that the Assistant Executive Engineers who had passed the departmental examination in five chances or less will rank senior in seniority over those who had qualified the said examination in more than five chances. 13. The specific question had earlier come up in Appeal No. 19(R) 1994 (Mushtaq Ali Zaka vs. The Secretary, Establishment Division, Islamabad and another) and this Tribunal dismissed the appeal on two grounds^ Firstly, that the appeal had been filed against the decision of the High Powered Committee which was not a Departmental Authority and consequently the appeal was incompetent Secondly, on merits also, it was held that since Mushtaq Ali Zaka, the appellant in that case, had not passed the departmental examination in five chances he was not entitled to be considered for promotion. The matter was taken in appeal before the HonTale Supreme Court The said Court upheld the orders of the Service Tribunal on the point of incompetency of the appeal. However, on merits it was observed that the Tribunal having dismissed the appeal on the ground of incompetency, should not have gone into the merits of the case and that if the matter again comes up before the Tribunal in a properly instituted appeal that would require re-examination. However, we have considered the merits of the case and we find that the previous decisions was in accordance with the present decision which is being given in these appeals on the merits of the case on the same ground which had been discussed by this Tribunal in the said appeal of Mushtaq Ali Zaka. The learned counsel for the appellant has hot been able to convince us that on merits the appellant has any case. Resultantly we are of the opinion that the two appellants are not entitled to promotion in preference to 23 respondents or in preference to those ^ Assistant Executive Engineers who have passed the departmental examination in five chances but have not yet been promoted. At the conclusion of the arguments Mr. Manzoor Ali Khan, learned counsel for the appellant in Appeal No. 12(K)/95 submitted that the appellant could not be deprived from promotion for ever simply because he had not qualified the departmental examination within the requisite number of chances. It was pleaded that this would be too harsh and unnatural. The learned counsel requested that the respondents may be directed to consider the appellant for promotion from the date of his having passed/cleared the examination. The contention of Mr. Manzoor Ali Khan was supported by Mr. F.E. Siddiqi and Mr. Shah Abdur Rashid, Advocates appearing on behalf of private respondents in all the appeals. We also feel that deprivation of the two appellants from promotion for ever for not having passed the departmental examination within the requisite number of chances would be too severed an unannounced penalty. Therefore in the interest of justice and fairplay we direct that these two appellants and others who have since passed the departmental examination though in more than five chances may be considered for promotion from the date of passing their examination without prejudice to those who have passed the departmental examination within the requisite number of five chances and those who have already been promoted. 14. Mr. Manzoor Ali Khan, Advocate also urged fur the settlement of seniority in the cadre of Executive Engineers. We are sorry this question cannot be settled at this stage as some of the appellants have yet to be considered for promotion and if cleared by the competent authority, their seniority in the cadre shall be determined by the appointing authority in accordance with the seniority rules read with Section 8 of the Civil Servants Act, 1973. 15. Apart from the above two appeals, three other appeals have been filed. They are Appeal Nos. 50(R)/95 (Muhammad Mushtaq vs. Secretary, M/o Housing & Works) 35(R)/95 (Nazir Ahmad vs. Secretary, M/o Housirtg and Works) and 36(R)/95 (Shahid Hussain vs. Secretary, M/o Housing & Works). In all these three appeals the appellant's grievance is that since eighteen Executive Engineers who had not passed the departmental examination in requisite number of chances had ceased to be in service and that even otherwise there were sufficient number of vacancies of Assistant Executive Engineers, they having passed the examination within four years and five chances should have been promoted alongwith the 23 Assistant Executive Engineers in preference to the eighteen Executive Engineers and against other vacancies available. These appellants contend that since Rule 7 provided that the examination should be passed within four years in five chances. A number of Assistant Executive Engineers though they had passed the examinations in five chances but not within four years and, therefore, these appellants have a preferential right for promotion over them also. 16. Taking the second question first we have been informed and it is also evident from the minutes of the High Powered Committee that the Department did not provide them five chances within four years and, therefore, the condition of four years stood waived. There is substance in the decision of the High Powered Committee because when certain thing is impossible to do, the doing of that is exempted. We are, therefore, not inclined to accept the contention of these three appellants that they have a preferential right over those Assistant Executive Engineers who passed the examination though in five chances but not within four years. 17. As far as the claim of these three appellants for promotion in preference to the eighteen Executive Engineers and against the vacant post is concerned, on the principles discussed by us hereinabove in the appeals of Hidayatullah and Khalid Qureshi we have no hesitation in holding that these three appellants are entitled to be considered for promotion in preference to the eighteen Executive Engineers and also in reference to the other Executive ngineers who had not passed the departmental examination within five chances. We, therefore, partly accept these appeals and direct that these Assistant Executive Engineers, if not already promoted, be considered for promotion as Executive Engineers (BPS-18) in preference to the eighteen Executive Engineers who were previously promoted and against other available vacancies. It may be added that after the conclusion of the arguments when the appeals wee reserved for judgment, the three appellants namely Muhammad Mushtaq, Nazir Ahmad and Shahid Hessian filed applications on 7.8.1995 separately alongwith photo copy of Notification No. F. 3(12)/93-Admn-III, dated 26.6.1995 showing that they had since been promoted by the Government to the post of Executive Engineers (B-18). The promotion being in accordance with the recruitment rules of 1984, we endorse the decision of the Government. 18. Before we part with these appeals we may observe that since the persons who had not passed the examination within five chances had continued to remain in service, it will now be too harsh to cease them for becoming ineligible. We, therefore, direct that they may be retained in . service but placed junior to all those who had passed the departmental examination in the requisite number of chances. 19. All the five appeals are disposed of as indicated above. There shall be no order as to costs. Parties be informed. Justice (R) Abdul Razzaq A. Thahim, Cb.airman.--I have gone through the proposed judgment of Mr. Aftab Ahmed, learned Member. He has given the relevant facts of these appeals in detail. The entire confusion in the promotion rests on the passing of the departmental examination within the prescribed time limit or beyond limit. My bother has given the details about the Rules of 1951, 1984 and 1989 and it has been stated in the judgment that without passing the examination within the prescribed time, the Assistant Executive Engineers were not entitled to increments and other benefits and their continuance in the job was also doubtful but we have a little concern with those facts as it is the prerogative of the Government that such persons were allowed to continue and allowed increment and I would not like to consider this aspect of the case. They were denied the benefits of promotion retrospectively as they had not passed the departmental examination. The rules were amended from time to time, as discussed above, and it is an admitted fact that those who qualified the examination within the prescribed time or beyond time were considered for promotion and out of those persons, there is another category of 23 officers who had passed the departmental examination within the prescribed period of five chances. The second category is of 18 officers who qualified the examination in more than five chances and were promoted. Appellants M/s Hidayatullah and Khalid Qureshi qualified the departmental examination in ninth attempt and inspite of the fact that they were not qualified, the department allowed them to appear in the examination. From admitting them in the examination, I at least feel that there should be no discrimination in the same category as to five or 9 chances and on this I am of the view that those who qualified the examination even beyond the limit should not be discriminated. In view of the recommendations of the Committee and fairplay, the justice demands that there should be no discrimination between the Assistant Executive Engineers of both the categories who failed to qualify beyond limit The appellants Hidatullah and Khalid Qureshi, falling in the same line of not qualifying the examination within the prescribed limit and their cases could be considered for promotion according to the rules on account of their having qualified the examination. With regard to seniority of the Assistant Executive Engineers, it is too early to take a decision before making promotions. The department after considering the cases for promotion of all the Engineers should issue a provisional seniority list, invite objections, hear the aggrieved parties and then finalise the question of seniority and then it would be open to all to challenge their seniority position according to law for redressal of their grievances, if so advised. It is premature to determine the seniority at this stage, which could only be considered when all are promoted and their seniority could be determined in the light of the provisions of Section 8 of the Civil Servants Act, 1973. However, I agree with my brother that the cases of Hidayatullah and Khalid Qureshi be processed for promotion immediately as they had also qualified the examination and there was no reason to make distinction when the other 18 officers who did not qualify the examination within the specified time limit were promoted. (B.T.) Appeal disposed of.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 375 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (Km) mian ghulam ahmad, chairman. G.M. PAKISTAN RAILWAYS-Appellant versus FAZAL ELAHI-Respondent Appeal No. 542/93, allowed on 4.4.1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- Ss. 38 and 25-A-Railway employee-Removal form service-ReinstatementAppeal against-Respondent was removed from service on 9.4.1978 whereas he served grievance notice on 28.1.1988 which is palpably time barred--0n 18.7.1978, he was intimated that his punishment of removal from service had been reduced and he was asked to report for duty immediately, but he failed to assume duty~His continuance in service had already been closed in 1978~He purposely absented himself from duty for long period-Held: Lower Court erred in holding that grievance notice and grievance petition were not time barred-Impugned decision of Labour Court set aside and appeal allowed. [P. 376, 377 & 378] A to E Ch. Bashir Ahmed, Advocate for Railways. Syed Anwar-ul-Hasan Gilani, Advocate for Respondent. Date of hearing: 4.4.1997. judgment By this single judgment, I shall be disposing of General Manager, Pakistan Railways, Lahore's appeal filed against Fazal Elahi (Appeal No. 542/93), and the other appeal with the reverse title (Appeal No. 604/93), the matter being the same. In the course of the judgment, the Railway Department shall be referred to as the appellant and Fazal Elahi as the respondent, as the main judgment is being rendered in Appeal No. 542/93. 2. Learned Labour Court No. 2, presided over then by Haji Muhammad Akram Baitu, had, vide judgment dated 24.10.1993, accepted the grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, by Fazal Elahi, the respondent before him being the General Manager, Pakistan Railways, Lahore. Fazal Elahi's reinstatement in service was ordered, but without back benefits. He lays claim to the same, as, according to him, the back benefits have been with-held, without any justification, by the learned Labour Court . On the contrary, the Pakistan Railway has brought under challenge the validity/soundness of the decision of the Labour Court, reinstating Fazal Eluhi in service. 3. Fazal Elahi was working as Assistant Station Master Grade-II, at Sahiwal, and was suspended, the allegation being that he did not wear his uniform on 20.2.1978. His plea is that it was a gazetted holiday, being Eid Melad-un-Nabi, and further that the uniform had not been provided to him ever years. He submitted an appeal against that order before the Divisional Superintendent, Railways, Multan . He states to have never been intimated about the fate of his appeal, and it was for the first time, in the year 1985, that he came to know that the D.S. Multan had passed a favourable order and reinstated him in service, vide order dated 18.7.1978, Exh. R-6. He, however, could not report for duty, by reason of his ignorance about the aforesaid order. After about two months, an order about Fazal Elahi's removal from service, Exh. R-4, was passed by the competent authority, as he had not resumed duty and had remained absent over a long time. He states to have been representing to the Authorities, and on failure to get a favourable response, he served upon his employer a grievance notice Exh. P- 4 on 28.1.1988, although the impugned order of his removal from service had been passed on as back as 9.4.1978. The notice was thus palpably timebarred, and there is no force whatever in the employee's contention that no limitation runs against a void order, adding that the aforesaid order was void ab-initio, as it had been rendered, without issuing any show-cause notice to the employee, serving him with a charge-sheet and making him to face a regular inquiry. The plea taken up by he Railways Department is that earlier a minor punishment, namely, his revertion from the post of Assistant Station Master to that of Signaller for a period of two years had been imposed on him and he had been required to report for duty forthwith. Letters were sent to him at his home address, but the same came back un delivered, in July and September, 1978, and the report was that he had left Pakistan and was living or doing some service in a foreign countiy. The Department, in these circumstances, was helpless. 4. Under F.R. 18, and employee, remaining absent from duty for a period of five years, would automatically lose service. Exh. R-6 is the Registered letter dated 18.7.1978, addressed to Fazal Elahi, intimating him that his punishment of removal from service had been reduced and a lesser penalty of his revertion to the post of signaller for a period of two years had been imposed on him. He was asked to report for duty immediately, as already said. Such an intimation was again sent to him as per Exh. R-7, on 30.7.1978; but he failed to assume duty and had most probably dis-appeared, with a view o obviate the incidence of serving in down-graded capacity. I have come across a document dated 10.4.1978, Exh. R-5, which is in the nature of a departmental appeal, addressed by Fazal Elahi to D.S. Multan, against the DTO's order dated 9.4.1978. It shows that he had become aware of the incidence of his removal from service, and he had made grievance of the fact that he had not been sewed with a charge-sheet, prior to such action by his superiors. Vide order dated 9.4.1978, Exh. R-4, he had been removed from service, as previously stated. Exh. R-2 reveals that he had received a show-cause notice dated 30.1.1978 alright, but it pertained to his suspension from service. Show-cause notice dated 30.1.1978, Exh. R-l, had been issued to him, intimating him that he had been absent from duty since 8.6.1977, without sufficient cause, and was proposed to be proceeded against, under the Railways Rules, 1975. As he did not participate in the "departmental inquiry, by submitting reply to the charge-sheet, the proceedings were taken exparte against him, but F.R. 18 fully justified the action against him. Learned counsel for the respondent has referred to rule 703(b), Pakistan Railways Personnel Manual, stipulating that punishments contemplated by F.R. 18 cannot be imposed without calling upon the employee to explain his position after serving him with a show-cause notice. It is to be borne in mind in this regard that it had become practically impossible for the Railways to serve upon the employee or convey to him personally a show-cause notice or a charge-sheet, although the same had been despatched to him at the stated address. The reports came, as already said, that he was no longer available in the country. After return to the home-land, he started making petitions/representations to different Authorities, right up to the President of Pakistan. 5. By referring to the document Ex. P.5, it has been urged by the learned counsel representing the employee that his case was being processed, having been referred to the Railway Board, the decision was awaited, and he was informed that he would be communicated the same, on receipt. It is to be noted that the chapter of Fazal Elahi's continuance in service had already been closed in the year 1978, and when he started reagitating his rights, on return to the country in the year 1988, he was told that his representations and requests would be considered in due course. It id not mean that he should expect a favourable reply. Thus, the contention that, as shown by he document Exh. P-5, his case for reinstatement was still under consideration, cannot be endorsed. Where is any correspondence between Fazal Elahi and the Authorities, having taken place, in that behalf, after his removal from service in April, 1978, over several years, 1982 onwards? Where had he remained during the period in between? After coming back to Pakistan, and realizing that he had lost his service, he started making pathetic appeals and sentimental petitions, addressed to the higher Authorities of the Railways, the Minister for Railways, the Prime Minister of Pakistan and the President of Pakistan, but this was all in vain, as his services had already been terminated, as required or commanded by the rules. It is highly unplausible and indeed improbable that the employee, as the states, has been paying visits to different offices of the Railways and yet remained un-aware about the order of his reinstatement in service, followed by another order of his removal from service, in consequence of his failure to resume duty as signaller. He is endeavouring to make out a case of his complete un-awareness about all these developments; but he cannot be believed and heard saying so. One is impelled to arrive at an in-escapable inference that Fazal Elahi had purposely absented himself from duty for that long period. The learned lower court has erred in holding that the grievance notice, as also the grievance petition, were not time-barred and that Fazal Elahi had not competently and lawfully been removed from service. Actually, even the jurisdiction of the Labour Court and the one functioning at Lahore was also open to serious exception. The mere fact that this Tribunal had remanded the case for final decision by the Labour Court did not necessarily imply that competence of the Labour Court and of the one at Lahore had been endorsed. I would set aside the impugned decision dated 24.10.1993 being based on surmises, conjectures, as also erroneous interpretation of law, coupled with incorrect appreciation of the relevant facts. The appeal is not without force and is allowed, although with no order as to costs. 6. Natural corollary would be that Fazal Elahi's claim to back benefits is also liable to rejection. His appeal filed for the purpose is, therefore, also dismissed. (MYFK) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 378 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (Km) mian ghulam ahmed, chairman. GHAZANFAR ALJ FARIDI--Appellant Versus -Respondent Appeal No. JG-265/92 Punjab, dismissed on 1.10.1996. Industrial Relations Ordinance, 1969 (XXXIII of 1969)- Ss. 38 read with 25-A--A typist in a mill-Dismissal from service-Petition against-Dismissal of-Appeal against-Appellant was an obstinate, ill mannered and headstrong employee, who was fond of conducting himself like a leader, in true fashion~An office bearer of a trade union is subject to office discipline and control of management and he is expected to conduct himself in a more responsible mannerIt was open to him to have made appearance before Enquiry Officer in course of inquiry, but he opted to remain absent ever and did not contest allegation levelled against him-Neglect of duty even for a short duration is a misconduct- He was interested least in his service and was more mindful of his leadership"~Held: His dismissal from service had not been found wrongful-Appeal dismissed. [Pp. 381, 382 & 383] A to E If 84 PLC 761/1119/1213 ref. Appellant in Peison. Mr. M.A. Javed, Advocate for Respondent. Date of hearing: 1.10.1996. judgment Ghazanfar All got employment in the Shakarganj Mills Limited, Jhang, as Typist on 22.10.1985 and was later (on 21.10.1986) promoted as Office Assistant He was dismissed from service on 26.6.1989 (Exh. P-31/R-5). He assailed the soundness/propriety of the said order by filing on 18.11.1989 grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in the Labour Court Sargodha/Faisalabad. Mehr Ahmad Yar Lali, Presiding Officer, Punjab Labour Court No. 5, Sargodha (camping at Faisalabad ) dismissed the grievance petition on 7.6.1992; and he preferred the present appeal on 26.7.1992. 2. The main grievance of the appellant was that he had been victimized for his trade union activities, as he was very active in the field, as Senior Vic« President of the Worker Union (CBA), Th worker on 12.11.1988 served the management with a demand notice, followed by a Strike notice, in consequence of which conciliation proceedings were held. Another demand notice on 1.3.1989 was also served on the management, upon which the Conciliator once again acted in the matter. The management, however, challenged the validity of the demand notice dated 1.3.1989, by filing a petition under section 34 of the Industrial Relations Ordinance, 1969. The learned Labour Court upheld the plea of the management and decreed the demand notice to be wrongful. The CBA went up in appeal; and this Tribunal found the 'demand notice' to be lawful, which could validly be negotiated. The management filed a writ petition (No. 4262 of 1989), assailing the order dated 27.6.1989 of this Tribunal. The writ petition was accepted. 3. A charge-sheet Exh. P-6 was on 25.2.1989 served upon Ghazanfar Ali and two other office-bearers of the union, who filed a petition before the National Industrial Relations Commission and got a stay order. According to the appellant, the case before the N.I.R.C. was pending at the time, the Labour Court was required to dispose of the grievance petition. Nothing, in the course of arguments, has, however, been said about the final fate of the petition before the N.I.R.C. 4. Enquiry notices were issued to the appellant and an enquiry was initiated against him. He, however, made an application requesting that the enquiry be postponed. He made his alleged indisposition a basis therefore The management did not accede to his request and the enquiry was held exparte against him. Ghazanfar Ali was dismissed from service on 26.6.1989. 5. He maintained that as he liad been proceeded against ex-parte, he had actually been condemned unheard. He also submitted that the final order passed against him was violative of section 47 of the Industrial Relations Ordinance, 1969 and section 72 of the Social Security Ordinance, 1965. Ghazanfar Ali appeared before the Labour Court as PW-2 and examined one Mahmood Arif as PW-1. According to Mahmood Arif, Ghazanfar Ali was sick and was also on leave, when he was ousted from service. He, however, did not deny that he belonged to the same panel of the Workers Union and was an ally and old friend of Ghazanfar Ali. It was conceded by PW-1 that Ghazanfar Ali had ceased to be office-bearer of the Workers Union, which body had lost the election. Routine, according to PW- 1, was that if an official was to leave the premises he would do so on getting permission of his Incharge, adding that Mr. Khalid Mahmood Malik RW-1 was the Officer, under whom Ghazanfar Ali had been working as Office Assistant Ghazanfar Ali appearing as PW-2 deposed that the management had got beaten up the General Secretary of the Union, although he himself had managed to escape. The General Secretary was injured, whereupon the workers went on strike. The management filed case against 25 workers, who were summoned, but the Union approached the N.I.R.C. and obtained a story order. In so far as management's torture perpetrated upon the workers was concerned, it was conceded by Ghazanfar Ali that no criminal case or complaint was lodged against any member of the staff or the management. Ghazanfar Ali, as he deposes, was, however, prevented from making appearance before the enquiry officer by reason of his illness, which was in the nature of renal colic. It is to be remarked that this is a common disease, which the doctors describe, while issuing illness certificates to people. He said that he would participate in the proceedings of enquiry, on getting alright. His stated illness, however, seemed to be only a false pretext, invented for justifying his absence from the proceedings of the enquiry, as it was conceded by him that he had never been admitted as indoor patient in any hospital and further that he had been travelling duiing that period, between Jhang, Faisalabad and Lahore, and had even been appearing in Law Courts. The learned lower court has deduced, and rightly so, that he was only avoiding to appear before the enquiry officer and had taken the enquiry too lightly. Rather he, was playing joke with the enquiry officer, as also with his superiors and the managerial staff, and was caring a fig for all of them. In the circumstances, the enquiry officer was wholly justified to proceed against him exparte. In so far as the conclusions arrived at by the enquiry officer are concerned, the same also had proceeded on wholly valid premises. 6. The learned lower court has endeavoured to draw a distinction between absence from duty and slipping away from place of duty without permission, observing that if a person does not assume duty for a particular duration and remains absent, the employer may detain some other person and pay over-time charges, and in that even the work will not suffer, but if a person after coming on duty slips away or adopts an attitude of neglect, arrangements for his replacement, it may not be possible, to make and the work will very badly suffer. Neglect of duty, even for a short time, therefore, must be taken to be an incidence of misconduct, within the meaning of the phrase, as occurring in Standing Order 15(3X1) of the West Pakistan Industrial
& Commercial Employment (Standing Orders) Ordinance, 1968. The Karachi High Court, in a case reported as reported 1995 PLC 544, and this Tribunal, in 19S4 PLC 1213, had pronounced that habitual and casual neglect of duty/work had been used in legal parlance in a disinjunctive manner, but the same cannot be interpreted as an act not bordering on misconduct In 1996 PLC 136' (Labour Appellate Tribunal Sind), the kind of conduct, as has been displayed by Ghazanfar Ali, in this case, was taken to be insubordination to boss and black-mailing of the employer, it was held that such an employee did justify his removal from service. 7. Ghazanfar Ali says that he has been sending applications for leave to his superiors and he has made mention of Ex. P-16 to P-27 in that behalf. In evidence, led" by the concern, however, it has been stated that no such application, nor any medical certificates, had been received by the mill management, although as an after-though it might have been conceived by the employee, who could well have fabricated or manufactured these applications and certificates afterwards. There was no reason why the management should have particularly been poised or pitted against this person, and was out to oust him, if he had, as is averred, been behaving or was actually suffering from ill-health. It, however, appears that he was an obstinate, ill-mannered, and headstrong employee, who was fond of conducting himself like a leader, in true fashion. The management might have been tired of contumacious attitude of his insubordination and insolence, but he made no visible effort to appease or convince them that he was a person who believed in scruples and values of the normal order. 8. Actually what was contained in the charge-sheet, Exh, P-6, was not refuted but was almost admitted by Ghazanfar Ali, vide documents Exh. R-l and P-7, put to him in cross-examination. Even an office-bearer of a trade union is subject to office discipline and control of the management and, in fact, he is expected to conduct himself in a more responsible manner. Exh. P-23 is the application which he states to have submitted to his superiors on 26.6.1989. This was apparently subsequent to his ouster from service, ordered on 26.6.1989 and could not possibly be availed of by him as a development conducive to postponement of the enquiiy on a plausible pretext The enquiiy proceedings and the enquiry report have been placed on record as Exh. R-3 and R-4 respectively. The submissions made by the employee and the contentions raised by him seem to be all without force, in the light of what has been observed by the enquiry officer, on the strength of the evidentiary material placed before him. 9. Medical certificate, Exh. P-25, issued by the Medical Officer, Punjab Employees Social Security, Faisalabad talks of ill-health of Ghazanfar AM for two days (24th & 25th of June, 1989), and the leave application for two days is Exh. P-24. The respondent denies having been in timely receipt of the same. Similarly, Exh. P-26/27 makes mention of sickness of Ghazanfar Ali on 26th and 27th of June. The same are stated to have, as per postal receipts, Exh. P. 28 to 30, been despatched to the management before 26th. It was open to Ghazanfar Ali to have made appearance before his Incharge, Mr. Khalid Mahmood Malik, or the Enquiry Officer, in the course of enquiry, but he opted to remain absent ever, and did not contest the allegation levelled against him. The same, therefore, must be taken to have been established against him. Neglect of duty, even for a short duration, was held to be misconduct, vide pronouncements made in 1984 PLC 761/1119/1213. Ghazanfar's conduct has also been interpreted by the learned lower court to be subversive of discipline; and it has also been high lighted, as was stated by the RWs, that the factory had suffered a loss of 44 lac rupees and the Government had been subjected to a drain of about 50 lac rupees, by reason of non-payment of excise duty. 10. The learned Labour Court has taken up together the contentions raised by the petitioner before it the same being that the dismissal order was passed during pendency of an industrial dispute, in violation of section 47 of the Industrial Relations Ordinance, 1969, and he had been made a victim vindictiveness, by the management. It was correctly and brilliantly been dealt with by the court below, in paras 10 and 11 of the judgment. It has been held that there was no 'industrial dispute', pending between the parties, at the time, when the demand notice, followed by the strike notice, issued by the workers, was held by the Labour Court to be illegal. The Labour Court's order was endorsed by the Hon'ble High Court, and the action taken against the workers by the management of the mill thus must be taken to be justified and the stand of the working class to be wrongful. The Labour Court is of the view that Ghazanfar Ali cannot possibly take shelter behind the provisions of section 72 of the Social Security Ordinance, 1965, as he could furnish certificates issued by Social Security Hospital/Dispensary during enquiry and not afterwards. The section makes mention of rest leave, sickness leave, maternity benefit, injury benefit, medical care, etc., and, by joining the enquiry Ghazanfar Ali could very well establish any one of these ingredients and claim protection of the said provision of law. The mere fact that he preferred to stay away and cared little for the process of enquiry against him would demonstrate that he was interested least in his service with the mill and was more mindful of his leadership". Well, even an office-bearer of a trade union cannot be allowed that much indulgence and permitted to remain absent from duty, when ever he wishes to do so. It is high time, the workers realize their duties, similarly as the members of the managerial staff are expected not to be oblivious of the rights and privileges of the working class. 11. At certain stage of the proceedings, Ghazanfar Ali had made a request in writing from permission to lead additional evidence. The grievance petition having remained pending over a long time, ever since 18.11.1989, and the aforesaid request having been made quite recently, on 1.2.1995, and that too at the appellate stage, could obviously not be acceded to and was, therefore, rcyected. It may be mentioned that the application submitted by Ghazanfar Ali on 1.2.1995 stretched over 17 pages; and it appears that he was in no mood to permit the matter to come to conclusion, at the appellate level. No indulgence, therefore, could be allowed to Ghazanfar Ali, on that count, and his prayer was turned down. 12. It was also alleged by Ghazanfar Ali that stenographer of the Labour Court had not taken down the evidence faithfully and truthfully. Such lapses, on the part of the stenographer or the Presiding Officer of the Court, he pointed out in an application. It is to be noted that it was open for a parly to the litigation to have brought it to the notice of the court such 'inaccuracies' when the statements were being recorded; and one would be justified to assume that Ghazanfar All is dow endeavouring to do so, with a view only to prolong the proceedings. His objections raised in that regard were, therefore, not 'honoured,' and he was asked to argue his case on the strength of the evidenciaiy material available ca record. 13. Ghazanfar Ali has been out of service so far. About 7% years have passed by. He says that he has been jobless throughout. Learned counsel for the respondent relies on 1962 PLC 362 (Supreme Court of Pakistan), PLD 1966 SC 765, and PLD 1990 SC 787, in maintaining that Ghazanfar Ali, in no manner, has entitlement to get from his employer benefits for this period, the reason being that his conduct has largely been responsible for his removal from service, and it has substantially contributed to colossal loss to the concern, as also to the Government His dismissal from service has not been found to be wronguful and he has been adjudged to be himself a wrong-doer, at least not a blameless person. His grievance petition has been dismissed by the Labour Court , as also by this Tribunal; but even otherwise his claim to back benefits does not at all merit consideration, as discussed above. 14. I would, therefore, treat his grievance petition, including his claim to back benefits, to be liable to dismissal, in toto. The impugned decision rendered by the learned lower court is found to be wholly in order, and the appeal to be devoid of all merit It is hereby dismissed with costs. (MYFK) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 383 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (Km) mian ghulam ahmed, chaibman. KARAMAT ALI-Petitioner Versus NASIR-UD-DIN SHEIKH, POST MASTER GENERAL etc.»Respondents Petition No. 503/1995, dismissed on 29.1.1997. Industrial Relations Ordinance, 1969 (XXXIII) of 1969-- S. 38(5) -Dismissal fro service-Reinstatement with back benefitsAppeal against-Back benefits reduced to 50%--Both sides filed writ petitions which dismissed-Dismissal of-Petitioner filed-contempt petition for non payment of 50% back benefits-While rejecting application of petition for extension of ex-Pakistan leave he was dearly told to come back and join duty, but he did not do so-It was duty of employee to find out from his sources as to whether or not his prayer for extension of ex-Pakistan leave had been granted-His absence from duty was certainly an actionable incidence-Although he was a diffident, dis-obedient and insubordinate official, still on strength of Labour Court's decision and pronouncement of Tribunal, he was able to have his re-instatement and earn 50% back benefits-He is not entitled to any further benefits-Petition dismissed. [P. 386] A & B Ch. Shabbir Ahmed, Advocate for Petitioner. Mr. Aziz Ahmed Chughtai, Advocate for Respondents. Date of hearing: 29.1.1997. judgment Punjab Labour Court No. 1, Lahore had, by a decision dated 27.11.1990, accepted the grievance petition of Karamat Ali, filed under section 25-A, Industrial Relations Ordinance, 1969. He was ordered to be reinstated in service with full back benefits. Authorities of the Postal Department filed an appeal; and by a judgment announced on 27.3.1991 this Tribunal partly accepted the appeal by reducing the back benefits to 50%. Both sides filed writ petitions in the High Court; and Mr. Justice Muhammad Aqil Mirza, on 12.10.1994, dismissed both the petitions, leaving the parties to bear their respective costs. Karamat Ali has submitted this contempt petition against the Authorities of the Department, under section 38(5) ibid, alleging that they have, in a deliberate manner, displayed disrespect for the judgment dated 27.3.1991 of this Tribunal. 2. Karamat Ali lays claim to monthly wages, as also annual increments, for the period 11.4.1981 to 31.12.1984, and Selection Grade (No. 9) from the month of May, 1988, onwards. In so far as the Scale of Karamat Ali or his seniority is concerned, the same, I do not think, was in issue earlier in the litigation between the parties, and Karamat Ali may have to have recourse to the Labour Court for enforcement of his entitlement to the same. Judgment of the Labour Court is not available on record and the records of the Labour Court had not been requisitioned for disposal of this petition; but a perusal of this Tribunal's judgment dated 27.3.1991 and the High Court's judgment dated 12,10.1994 gives the impression that Karamat Ali had been granted ex-Pakistan leave for going to Saudi Arabia, initially from 3.4.1990 to 1.7.1980, and it was then extended for a further period of sixty days or two months. Karamat All's application for leave for another period of two years, with^ effect from 31.8.1980, was, however, rejected; and he was charge-sheeted on 10.12.1980. He was dismissed from service vide order dated 11.4.1981; and this was done without holding any inquiry, according to the employee, whose departmental appeal was also dis-allowed on 19.11.1985. Afterwards, he filed a grievance petition under section 25-A, Industrial Relations Ordinance, 1969, which entailed his reinstatement in service, ordered by the Labour Court on 15.4.1989, without making any order as regards the back benefits, By consent, the case was remanded by this Tribunal on 4.3.1990 to the Labour Court, which court, on 27.11.1990, once again ordered Karamat All's reinstatement in service, this time with full back benefits, with effect from 11.4.1981, the date of his removal from service. 3. The Postmaster General did not make any grievance before the honourable High Court, as regards Karamat Ali's reinstatement in service, and limited his grievance to the grant of back benefits alone. From Saudi Arabia, Karamat Ali had sent an application for extension of ex-Pakistan leave, stating that he had lost his travelling documents and would require a period of two years for searching the same. It was obviously an absurd plea, as Karamat Ali was evidently not telling the truth and was interested in only extending his stay abroad. In all probability he was doing some job in Saudi Arabia. What else for had he gone there and why was he interested in staying there for that long? Oral assertion made to the effect that he had lost his documents was not to be believed. Similarly, as already said, the plea that he will take a period of two years to find out the missing documents was equally un-acceptable. He said in his aforesaid application that as it had become difficult and rather impossible for him to survive, he had tried to do something in Saudia for passing his days.' It has been observed by both the courts, my learned predecessor, as also the honourable High Court, that Karamat Ali had not remained absolutely without earnings there, although he had not disclosed his object of going to Saudi Arabia . Usually people go there for doing service or some business, and it cannot be believed that he was wholly jobless or resourceless during his stay in Saudia. The Departmental Authorities had no source to become aware of the means of Karamat Ali's income in Saudia; and the burden lay upon him to clearly state and establish as to what for he had gone to Saudia, why was he staying there, and what was he doing there? The honourable High Court has substantially endorsed the reasoning and the findings recorded by this Tribunal, vide judgment dated 27.3.91, and has described the verdict to be reasonable. Karamat Ali would not have stayed in Saudi Arabia for that long without work. He came back in 1985 and applied for his reinstatement; but in actual practice he was reinstated in 1991, From 1985 to 1991 he might again have been doing something while in Pakistan; but the same has not been established by the Authorities of the Department, and Karamat Ali's assertion made to the effect that he had been absolutely jobless during that period has not effectively been controverted. From a perusal of the last page of the High Court's judgment dated 12.10.1994 it transpires that Karamat Ali had been held entitled to 50% back benefits for the period 1985 to 1991, after bis return to Pakistan, and till the date of his joining service. The High Court, in exercise of its Constitutional jurisdiction, had opted not to disturb this Tribunal's order, which was described as equitable. The Department's writ petition (No. 272 of 1993), which was filed nearly two years after the impugned decision, was considered to be suffering from laches and was dismissed. But Karamat Ali's writ petition (No. 5697 of 1991) was also dis allowed by the High Court. 4. The Departmental representative and counsel before me have stated at the Bar that they are prepared to concede to the employee the monetary benefits for the aforesaid period 1985 to 1991 (50% of the same), and that they have also paid to him 50% of the emoluments for the period he spent in Saudi Arabia. Karamat AM did not preform any duty till end of March, 1991, although his reinstatement from the back date was ordered. For this period also, he would be entitled to claim 50% back benefits. While rejecting his application for extension of ex-Pakistan leave, submitted towards and of 1980, Karamat All had been clearly told to come back and join duty, but he did not do so and deferred this departure to the home-land over several years. This Tribunal has observed, in the course of its judgment dated 27.3.1991, that cogent evidence has not been led by the Department to establish that service upon Karamat All had been effected, as regards rejection of his leave application, as also the direction made by the Department. It is, however, to be noted that it was the duty of the employee, as well, to find out from his own sources as to whether or not his prayer for extension of ex-Pakistan leave had been granted. He was on leave duly sanctioned till 30.8.1980 and was charge-sheeted on iO.12.1980, and his absence from duty afterwards was certainly an actionable incidence. The Department could at least take notice of it. He had not led evidence before the Labour Court , although he was allowed opportunities for the purpose. There was little room for accommodating such a diffident, dis-obedient and in-subordinate official. Still, on the strength of the Labour Court 's decision, as also the pronouncement made by this Tribunal, he was bale to have his reinstatement and earn 50% back benefits. Beyond that, obviously, he is not entitled to any further 'accommodation' and benefits. Finding the honourable High Court's pronouncement not entirely in his favour, Karamat Ali has sought enforcement and execution of this Tribunal's judgment dated 27.3.1991, which decision, however, had merged in the honourable High Court's decision dated 12.10.1994, proclaimed afterwards. Finding no substance in the contempt petition, I proceed to dismiss it. (MYFK) Petition dismissed
PLJ 1997 Tr PLJ 1997 Tr.C . ( Labour ) 386 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (rtd.) mian ghulam ahmed, chairman. MANAGING DIRECTOR PUNJAB SEED CORPORATION etc.-Appellants Versus MUHAMMAD KHALIL and another-Respondents Appeal No. MN-516/93, dismissed on 13.1.1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -Ss. 38 and 25-A--Promotion of junior employee-Petition against- Acceptance ofAppeal againstRespondent Muhammad Khalil having bis appointment date prior to that of Tariq Ahmed, had prior right to promotion and could not be ignored by "Authorities" in manner it was done-Even if promotion of a subordinate is discretion of employer, a Court of law has to see to it, if discretion has been exercised properly and equitably and it is not attended by ill-will or malafide -Order dated 10.2.1988 making appointment of Tariq Ahmed as Foreman was rightly struck down by court below-Appeal dismissed. [P. 388 & 389] A & B Malik Muhammad Asghar , Advocate for Appellant. Ch. Shabbir Ahmed, Advocate for Respondents Syed Anwar-ul-Hasan Gilani , Advocate for Appellant Date of hearing: 13.1.1997. judgment By the present judgment I shall be disposing of the two appeals captioned above, all questions involved being common. 2. Muhammad Khalil was on 3.7.1981 appointed as Assistant Mechanic and Tariq Ahmad was appointed as Assistant Mechanic in the year 1987. Whereas Muhammad Khalil , as pleaded by him, had got the appointment against a regular post or a permanent vacancy. The appointment of Tariq Ahmad had been made on a work-charged post and for a specific period and the appointment had not even been regularized. No place in the seniority list was assigned for Taiiq Ahmed, according to Muhammad Khalil , who asserted that any vacancy occurring at higher level was to be filled in any promotion and not by direct recruitment. Although Muhammad KhaliFs name was recommended by the Plant Manager, the 'Authorities' of the Seed Corporation ignored him and promoted Tariq Ahmad instead, as Foreman, on 10.2.1988; and this caused to Muhammad Khalil a positive grouse, being infringement of his service rights. 3. The 'Authorities' maintain that Muhammad Khalil had been appointed as probationer for a period of six months with effect from 1.7.1982 and had never been regularized. On the contrary, Tariq Ahmad was appointed as Mechanical Foreman with effect from 3.9.1983, when Khalil was not considered fit for promotion, on seniority-cum-fitness basis. Tariq Ahmad had actually been holding the post of Foreman since 1983, although on work-charged basis, according to the Corporation people, who also plead that promotion could not be claimed as a matter of right, and Muhammad Khalil also could not have recourse to a Labour Court by treating him as a workman. 4. I have minutely and cautiously scrutinized the reasoning recorded and the findings given by the learned Labour Court in the impugned decision dated 4.10.1993. I must say that I find it hardly/possible to differ with the same. Muhammad Khalil had been in service prior to Tariq Ahmad's induction in service. The stand-point of the 'Authorities' about Tariq's entitlement to the post is wholly inconsistent One cannot make any head or tail of the assertion whether Tariq Ahmad had been appointed as Assistant Mechanic or as a Foreman. Muhammad Khalil having been appointed on 3.2.1982 and Tariq having been employed on 3.9.1983, the former must be treated as senior. In January, 1986, Tariq Ahmad, according to RW-1 was an Assistant Mechanic, but the testimony is contradicted by the Exh . P-16. A criminal case was registered against Tariq Ahmad for having produced a forged matriculation certificate As RW-3 he admits that he is under matric . How could then the deposition of Muhammad Rashid RW-1, that Tariq Ahmad was an Intermediate pass, be given by credence. The very conduct of Tariq Ahmad having presented a fictitious or a forged certificate would render his credentials absolutely doubtful. Even Muhammad Khalil , however, had allegedly got the employment on the basis of a forged matriculation certificate, but no proof in that regard has been tendered by the establishment. Muhammad Khalil did not appear as his own witness, but, it has rightly been observed by the learned lower court that, it is a case primarily of record and oral testimony would have led the court no where. It cannot be denied that the post of Foreman is higher as compared with that of Assistant Mechanic, and if Tariq Ahmad had been working as Foreman eversince 1983, there was not point in his appointment as Assistant Mechanic on 1.9.1986. If Tariq , Ahmad, as is claimed by him, was a Foreman since 1983, his description as Assistant Mechanic in the subsequent list of 1987, Exh . P-6 and P-9, was not understandable. In Exh . P-3, Tariq Ahmad has been shown as Assistant Mechanic in the year 1988. A criminal case had been lodged against him for having tendered a forged matriculation certificate, but the same was not true of Muhammad Khalil , as no proof in writing as regards this fact has been brought on record, although RW-2 has orally deposed in that behalf. 5. It has very rightly been observed by the learned lower court that even if promotion of a subordinate is the discretion of the employer, a court of law has to see to it, if the discretion has been exercised properly and equitably, and it is not attended by ill-will or mala fides. Muhammad Khalil Ahaving his appointment date prior to that of Tariq Ahmad, and there being no difference respecting their educational qualifications and experience, Muhammad Khalil had the prior right to promotion and could not be ignored by the 'Authorities', in the maimer it was done. This should be read with the two documents Exh . P-16 and IV, P-16 being subsequent to P-17, It had been requested by Tariq Ahmad, vide Ex. P-16, that he had been working as Assistant Mechanic and the period of posting having expired, the same be extended with effect from. 1.9.1986. This runs counter to the claim, made vide Ex. P-17, whereby it was stated by Tariq Ahmad that he had been working as Foreman, although period of his posting in that capacity had expired on 28.2.1986. There is a clear contradiction between the two claims; and the learned - Labour Court has correctly deduced conclusions from these documents, as also assertions of Tariq Ahmad as against Muhammad Khalil ; and this Tribunal would find it difficult to make any departure and to interpret the documents available on record differently. The order dated
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Tvn 3oa 10.2.1988, making appointment of Tariq Ahmad as Foreman, was rightly struck down by the court below. The decision dated 4.10.1993 is endorsed; and both the appeals, one preferred by the 'Authorities' of the Punjab Seed Corporation, and the other by Tariq Ahmad, being devoid of merit, are hereby dismissed, with of course no order as to costs. (MYFK) . Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 389 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RTDj mian ghulam ahmed, chairman ZAFAR IQBAL KHAN--Appellant versus G.M. ADAM SUGAR MILLS-Respondent App. No. BR-7/95, Punjab dismissed on 7.10.1996. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 38 read with S. 25-A-Junior clerk in seasonal Factory-mill people did not allow him to join duty-Challenge toPerusal of evidence led by appellant gives impression that he had himself on look-out or had been inventing excuses for his absence from duty during season in question- Reason for lack of interest in job was that he had got a Yellow Cab and same continued to be in his possession and useHe must be assumed to have been earning hand-somely by running vehicle and could not, therefore, be held to have entitlement to back benefits-So far his reinstatement in service was concerned, lie had already succeeded in securing it-Appeal dismissed with costs. [Pp. 390 & 391] A & B 1984 PLC 919 (PLATj, 19S6 PLC 11C3. 1993 PLC 537 rel. Mr. Shabbir Ahmed Bhutta, Advocate for Appellant. Ch. Altaf Hussain, Advocate for Respondent. Date of hearing: 7.10.1996. judgment The appeal is directed against the judgment dated 7.12.1994, pronounced by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, disposing of the grievance petition, filed on 12.12.1993 under section 25-A of the Industrial Relations Ordinance, 1969, by Zafar Iqbal Khan. 2. Claiming that he had been appointed as a Junior Clerk in the Adam Sugar Mills, Chistian, for the season 1979-80, Zafar Iqbal Khan alleged that the mill people did not allow him to join duty during the season 1993-94, and the reason was that he was an active trade unionist and a member of the Executive of the CBA. His services, according to him, were dispensed with, without observance of the formalities, prescribed by the Labour Laws, as issuance of show cause notice and charge-sheet, followed by a domestic enquiry. The petition was contested by the respondent concern, as according to him, the petitioner was not a workman and no guaranteed or secured right of the employee had been violated. In this regard, the learned lower court has rightly referred to an admission made by the respondent in the reply, stating that the petitioner was a seasonal worker. It was, however, maintained that he had not been ousted from service but he had himself abstained for reporting for duty, on the commencement of the season. The petitioner presented an application for assuming duty on 10.4.1994 and he was allowed to do. so . Petition Ex. R-l produced by the petitioner bears this order; and it is thus clear that before the expiry or conclusion of the season 1993-94, Zafar Iqbal had joined duty. 3. In so far as the question of Zafar Iqbal's entitlement to back benefits is concerned, it has been concluded by the learned lower court, by referring to proviso II to Order 14 of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, that it was certainly not mandatory for the establishment to have addressed communication to the employee by registered post and it was enough if he got the information even otherwise, say, through ordinary post. The learned Labour Court is of the view that the incidence that Zafar Iqbal Khan, as he claims, had been going to mill premises prior to 13.10.1993, for joining duty, would demonstrate that he was aware of the fact of the mill being open and his post being available for assumption of duty. The perusal of the evidence led by Zafar Iqbal in the lower court gives the impression that he had himself been on the look-out or had been inventing excuses for his absence from duty during the season in question, and has only endeavoured to assail the communication as irregular, although the same was sent to him; and it is not denied. The reason for lack of interest in the job on his part probably was that he had got a Yellow Cab, under the Prime Minister's Self Employment Scheme, about a year ago, and the same continued to be in his possession and use. The statement made to the effect that he had however not been operating it, as it had gone out of order, is not to be believed. He must be assumed to have been earning handsomely by running the vehicle and could not, therefore, be held to have entitlement to back benefits. Reliance by the respondent has right been placed in this regard on 1984 PLC 919 (PLAT), 1986 PLC 1166 (Lahore High Court) and 1993 PLC 537 (Labour Appellate^ Tribunal Sindhj. 4. So far as this reinstatement in service was concerned, he had already succeeded in securing it, as the establishment had not opposed it, and had rather invited him to come and joined duty, which he did on 11,4.94. The findings arrived at by the learned lower court thus were not in no way lacunic or faulty. I would endorse the decision. The appeal has no force and is hereby dismissed with costs. (MYFK) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 391 [Federal Service Tribunal, Islamabad ] Present: justice (R) abdul razzaq a. thahim, chairman and ajtab ahmed, M -Appellants versus SECRETARY, MINISTRY OF EDUCATION etc.Respondents Appeal Nos. 329 (R)/96 to 351 (R)96, dismissed on 14.12.1996. Service Tribunals Act, 1973 (XXIII of 1973)-- S. 4~Trained Graduate Teachers-Selection grade-Grant of-Whether grant of selection grade is a regular promotionQuestion of-Appellants were granted selection grade but their, cadre has not been changed and it was not a promotion from one post to another-They uptill now continue to be TGT, could not be designated as Head Masters/Head Mistress and are not eligible for promotion to B-18 as granting of selection grade is not a regular promotion. [P. 393 & 394] A to C Mr. Hafiz S.A. Rehman, Advocate for Appellants. Date of hearing: 14.12.1996. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.--In these 23 appeals, common questions of law and facts are involved, therefore, we propose to dispose of these appeals by this single judgment. 2. Briefly the facts are that the appellants are Trained Graduate Teachers, working under the Federal Directorate of Education, Islamabad, and their original scale is B-15. They were granted selection grade B-17, by notification dated 13th August, 1985, with retrospective effect from July/October, 1983 and still they are in selection grade B-17. In the year 1991, the Government introduced 4-tier service structure in the Federal Government Schools, Islamabad. A proposal was initiated and the Establishment Division, vide its O.M, No. 8/43/91-R. I, dated 3.2.1992, agreed and the Ministry of Education was asked to move a Summary for approval of the Prime Minister, through the Establishment Division. Accordingly, a Summary was moved on 22.3.1992 and the Prime Minister approved the Summary on 2.11.1993 for upgradation of 101 and 119 posts of School Teachers, male and Female respectively. Finally when the scheme was introduced, the ratio of the posts were reduced as under- Male 42 Female 37 This gave cause of grievance to appellants and they made representations that since they are already working in B-17 since 1983, their cases are covered and therefore, their posts for upgradation were also included. The matter was examined by the Finance Division but rejected on he grounds, that selection grade is not a promotion for the purpose of Cadre and post. Being aggrieved, the appellants filed departmental appeals, which remained unresponsed and now have come before this Tribunal under Section 4 of the Service Tribunals Act, 1973. 3. We have heard Mr. Hafiz S.A. Rehman, the learned counsel for the appellants at length. The contention of the learned counsel is that the appellants were granted selection grade B-17 since 1983, their cases are covered under the Summary for upgradation and promotion to the post of Deputy Headmasters and Deputy Headmistresses in B-18, as selection grade is a regular promotion. He has referred to the cases reported in 1991 SCMR 696; 1994 SCMR 1626 and judgments of this Tribunal. It is argued that move-over is not a promotion but selection grade for all purposes and benefits is a promotion. Therefore, Summary on the analogy of these considerations was submitted to the Prime Minister and after the approval of the Prime Minister, the appellants cannot be denied right of promotion to the upgraded posts of Deputy Headmasters and Deputy Headmistresses. 4. The comments have been filed by the Federal Directorate of Education and we have heard Mr. Z.A. Javed Raja, Assistant Director. The case of the respondent department is that by way of granting selection grade though the appellants have been allowed financial benefits of B-17, but they do not come under the cadre of Deputy Headmasters or Deputy Headmistresses and they continue to be Trained Graduate Teachers B-15 of their own cadre, and therefore, they cannot be equated with the persons regularly promoted to B-17. The representative of the Finance Division has also supported this contention and submitted that regular promotion and grant of selection grade are two different things and by way of selection grade and move-over any officer can go to the BPS-18, 19 and 20 even, but that does not mean that they are promoted on regular basis in a particular cadre or post. Therefore, looking to this legal position, Finance Division has not agreed for the upgradation of the category of TGT selection grade B-17. 5. The appellants admittedly are Trained Graduate Teachers of which basis pay scale is 15. There was 33% ratio for grant of selection grade B-17, under the prescribed procedure wherein the cases are scrutinised by the DPC and thereafter selection grade is granted, but it is not a regular promotion. The authorities relied by Mr. Hafiz SA Rehman are to that extent. There is a little confusion that by adopting the procedure of regular promotion whether they could be considered to have been regularly promoted to higher grade/post of Deputy Headmasters/Headmistresses or to continue to be Trained Graduate Teachers. There are a number of instances e.g, the Medical Officers (B-17), are also granted selection grade B- 18, but they continue to be called as Medical Officers and not as Registrar or Assistant Professors etc. and all these authorities refer to this proposition and we have not been able to lay hands on any authority to the effect that selection grade is a promotion for the purpose of promotion to other posts, cadre etc. for which separate recruitment rules exist. Without hesitation, we hold that the appellants were granted selection grade but their cadre has not been changed and it was not a promotion from one post to another, though they were entitled to the benefits of B-17, as in the case of move-over. We have made inquiries from the appellants and their counsel whether the appellants were assigned by work of Deputy Headmaster/Headmistresses as well, while working as TG Teachers. The reply is negative but it was stated that in some Primary Schools, the TGTs were put to work as Headmaster as these posts were equated with their cadre not of Headmasters or Headmistresses of High Schools. If we hold that grant of selection grade B-17 to the TGTs is a regular promotion from one grade to another, then we will be considering to designate them as Deputy Headmasters or Headmistresses for which another ladder is provided e.g. recruitment rules etc. and the departmental representative stated that for promotion to B-18, only eligible persons are Deputy Headmasters/Mistresses and Senior Teachers who are working in B-17. In these circumstances, we cannot consider that the appellants could be designated as Senior Teachers B-17, Deputy Headmasters/Headmistresses as regular promoted. It has also been pointed out that for promotion to these posts, the TGT of selection grade-17 are only eligible and the first ladder for the appellant is to cross that they are eligible for promotion to three categories, i.e. Deputy Headmasters/Mistresses (B-18). In these circumstances, the appellant uptil now continue to be TGT and their cadre has not been changed by granting them selection grade-17. 6. Now we come to the other submission of Mr. Hafiz S.A. Rehman that in the Summary for upgradation of Male Headmasters and Headmistresses was worked out as 101 and 119. The respondents have clarified the position and stated that at that time the matter was not clear and department wanted to give benefit to all the persons who were working in selection grade 17, but on review it was found that the cases of all selection grade TGT, do not fall under the category of that position. Therefore, on the ratio of 42: 37 the posts were filled in. All these points were neither involved no discussed in the judgments quoted by the learned counsel for the appellant The approval of the Prime Minister conveyed vide Establishment Division u.o. dated 12.3.1992 reads as under:- "Reference Ministry of Education's summary for the Prime Minister bearing U.O. No. F. 4-33/90-CEI,, dated the llth February, 1992, on the subject mentioned above. 2. The Prime Minister has been pleased to approve the four tier system/ structure for the Federal Govt School teachers of Islamabad and the upgradation of the posts set out in para 1 of the summary under reference w.e.f. the date the upgraded posts are actually filled in by the eligible persons in the higher pay scales. 3. Ministry of Education is advised to upgrade the posts in the manner and style as contained in the Establishment Division's O.M. No. 8/10/83-R.I., dated the 6th March, 1983. In pursuance of the Establishment Division u.o. the Ministry of Education gave the details which is not being confronted. The case is to be decided on the merits, if there was any ambiguity. It does not mean that ineligible persons could be upgraded and Mr. Hafiz S.A. Rehman, the learned counsel for the appellants has not been able to convince us whether the appellants who were TGTs could be designated as Headmasters/Headmistresses and thereafter they could be eligible for promotion to B-18. In case we hold that all selection grade holders automatically become eligible for advancement to other cadres and promotion to next higher grade, this will be unjust and beyond our scope. 7. For the foregoing reasons, we dismiss all these 23 appeals, with no order as to costs. (MYFK) Appeals dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 394 [Federal Service Tribunal, Islamabad ] Present: nodr muhammad mangi, aftab ahmed and roshan ali mangi, members. NASEER-UD-DIN HUMAYUN BUTT-Appellant versus SECRETARY ESTABLISHMENT DIVISION etc.-Respondents Appeal No. 571(R) of 1996, dismissed on 8.1.1997. Service Tribunals Act, 1973 (LXX of 1973)- S. 4 read with S. 22 of Civil Servants Act, 1973-Promotion as Assistant Professor W.E.F. 28.11.1992--Departmental appeal for promotion W.E.F. 30.12.1987--Rejection of--Challenge to-Appellant earned adverse entries in his ACR for 1984--He was also imposed penalty of stoppage of increment in 1985--These facts have been concealed by himSome lecturers, although juniors to him were promoted except him due to fact that some disciplinary proceedings against him were in progress- Ultimately he was removed from service and was re-instated on indulgence of Tribunal on grounds of natural justiceHis case of promotion again came before DPC in 1991, but he as superseded on account of his indifferent service record-Although at that time also his juniors were promoted, but he did not agitate on the plea that he came to know about promotion of his colleagues only in 1994-This has caused delay to come up before Tribunal in time-Held: He sat back and did not re-act in time-Having no knowledge about promotion of his juniors is neither justified nor would extend time limitation-Appeal time-barred-- Held Further: In fact it was his supersession in 1991 which appears to have been hinderance in his way to antidation of his promotion Moreover in view of bar under sub-section (b) of Section 4 of Service Tribunals Act read with proviso of section 22 of Civil Servants Act, 1973, appeal against promotion is also not maintainable-Appeal dismissed. [P. 398 & 399] A to D Raja Muhammad Asghar Khan, Advocate for Appellant. Date of hearing: 8.1.1997. judgment Roshan Ali Mangi, Member.-The appellant's grievance is that although he was promoted as Assistant Professor (B-18), vide order dated 6.12.1992, alongwith others, w.e.f. 28.11.1992, nevertheless, he was not promoted to the said grade w.e.f. 30.12.1987, i.e. the date of promotion of his immediate juniors. He made a departmental appeal to the Prime Minister of Pakistan on 20.8.94, through proper channel. To which the Establishment Division, responded to through an O.M. dated 28.5.1995, i.e. after a period of 9 months, advised the M/o Defence to submit the appellant's case to the competent authority. 2. He filed another application to the M/o Defence, through proper channel, which was forwarded on 5.7.1995. In that application, he requested to take an action on the appellant's promotion in the light of the said Establishment Division's O.M. i.e. the one dated 28.5.1995. But no response . was made to his application. 3. Wherefor, after waiting for 90 days, the appellant filed present appeal No. 414(R)/95, before the Tribunal on 31.10.1995, which was later on withdraw on 28.01.1996, on the assurance by the representative of the Directorate and the Establishment Division, vide Judgment dated 28.1.96, to consider his case. 4. His departmental appeal, ultimately, was rejected by the M/o Defence on 10.7.1996, with the remarks that no antidation of his promotion could be approved, on his service record. A copy was received by the appellant on 24.9.96. 5. Hence this appeal, and filed on 27.10.1996, But due to some observation it was returned. It was ultimately resubmitted on 10.11.1996. 6. The brief facts of the appeal are that the appellant being M.Sc. Physics was appointed as Lecturer (B-17) w.e.f. 1.11.1969. He was promoted in B-18 w.e.f. 28.11.1992, vide Notification dated 6.12.1992. 7. It was in August, 1994, that the appellant came to know, that his junior respondents No. 5 to 37 were promoted to B-1S over and above him. 8. The appellant, was considered for promotion in 1987, however, due to adverse ACRs given to him in the year 1985 and 1986, respectively, which were not communicated to him, but were also included in his ACRs, he could not be promoted. 9. The DPC's meeting was also held in 1989 but because the appellant was thrown out of the employment, therefore, he could not be promoted. 10. Once, again the D.P.C. when held its meeting in 1991, did not consider his case of promotion, on the plea that some disciplinary proceedings were pending against him. He was ultimately promoted as an Assistant Professor w.e.f. 28.11.1992, vide Notification 6.12.1992. His contention is that he should have been promoted w.e.f. 30.12.1987, the date of promotion of his juniors. 11. Learned counsel, Raja Asghar, appearing for the appellant took the ground, that the Establishment Division had issued O.M., dated 28.5.95 with the direction to respondent department to send his case of proforma promotion for the approval of the competent authority. In view of that position, he argued, that since, the appellant was already promoted as Assistant Professor (B-18) his case, therefore, should have been placed before the competent authority for the orders for his proforma promotion, rather than holding a fresh meeting of the DPC. The exercise undertaken by the" authority, after the issuance of Establishment Division's O.M. dated 28.5.95, was an exercise in futility, hence null and void. 12. It was argued that the Estt. Division's said O.M. was passed after taking into consideration the grounds of his departmental appeal. Therefore, Esstt Division could not itself go against its own decision which was duly issued, and conveyed to the respondents No. 2 to 4, and also to the appellant 13. More-over, the learned counsel pointed out at the bar that respondent Nos. 1 to 4 had committed before the Tribunal that the case of the appellant was being processed in accordance with the order of the Estt Division, and an appropriate order would be passed accordingly. But the impugned refusal to antidate the appellant's promotion could not be said as an appropriate order. It was, he observed, at the bar, in flagrant disregard of the earlier order of the Establishment Division's said O.M. as such was liable to be set aside. 14. The learned counsel was of the opinion that the said Establishment Division's O.M. had a legal force and also effect of rule as held by the Supreme Court of Pakistan in PLD 1988 S.C. 131. 15 It was also pleaded that the appellant was ignored in 1981, on the grounds of the uncommunicated ACRs, for the years 1985 and 1986, which could not justify his non-consideration. 16. The comments, have also been filed on behalf of the respondents. At the very outset, the maintainability of the appeal has been questioned under sub-section (b) of Section 4 of the Service Tribunals Act, 1973, whereby "no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining or otherwise of a person to be appointed or hold post to be promoted to a higher grade. To enforce their, stand, proviso of Section 22 of the Civil Servants Act, 1973, has also been quoted, whereby "no appeal/representation shall lie on matter relating to the determination of fitness of a person to hold particular post or to be promoted to a higher post or grade." The objection of time limitation has also been raised. 17. As regards, non-consideration of the promotion of the appellant in the meetings of the DPC held in 1987 and 1991, respectively, it has been admitted that the case of the appellant for promotion was considered, but he could not be promoted to B-18, as at that time disciplinary action against him was in progress. More-over, he earned adverse entries in his ACRs for the year 1984 which were communicated to him, and he also had represented against those adverse entires and were not expunged. He was _ also awarded minor penalty of stoppage of annual increment in 1985. Subsequently as a result of the disciplinary proceedings, he was removed from service. However, he was reinstated into the service under the orders of the Tribunal. His case of promotion again was placed before the DPC, in its meeting held in 1991. But he was superseded on account of his indifferent service record. 18. The claim of the appellant, that the disciplinary proceedings , were no doubt conduct against him, but he was exonerated from them, has been refuted. On the contrary it has been brought to knowledge of the Bench that "the disciplinary proceedings were in progress against him, but the Hon'ble Tribunal had not exonerated the appellant from the charges, and he was re-instated on the basis of natural justice." However, he was promoted to the post of Assistant Professor (B-18) w.e.f. 21.10.1992. 19. It has been admitted, that his appeal dated 20.8.1994, addressed to the Prime Minister was processed with the competent authority, but all on purely human grounds, and at the request of the appellant. It has been admitted that the Establishment Division vide O.M. dated 25.8.1995 had directed the respondents to submit his case for approval of the competent authority. But it has been clarified that the respondent department complied with the said direction and considered the case of the appellant in accordance with the rules, but due to his indifferent service record, he could not be recommended for antidating his date of promotion. 20. In response to the complaint of the appellant that he withdrew bis appeal No. 414(R)/95 filed before the Tribunal on the assurance that his case was being considered, but later on his antedation was rejected. And that, in the opinion of the learned counsel for the appellant, such a rejection was justified. It has been maintained that, DPC was held and the case of the appellant was considered in accordance with the law. But D.P.C. decided otherwise. Even otherwise, the appellant did not object at the time of withdrawing his said appeal, the re-consideration of the case by the DPC. He therefore, cannot take the plea, that his case was not required to have been placed before the DPC. 21. As regards the Establishment Division's O.M. dated 28.5.1995, on which the learned counsel for the appellant has heavily relied in the original appeal, as well as during the oral arguments, it was countered that the said letter was merely an instruction to the M/o Defence and not prospective order under Section 5 of the Service Tribunals Act, 1973. With these submissions it has been prayed to dismiss the appeal. 22. We have heard the parties and also perused the record before us. 23. The main issue in our opinion, in this case, is whether or not, the appellant is entitled to antidation of his promotion under the law. 24. The appellant earned adverse entries, in his ACR for the year 1984, these were communicated to him. He was also imposed penalty of stoppage of increment in 1985. These facts have been concealed by the appellant The record shows that the adverse entries communicated to him, were not expunged although they had been represented against by the appellant. This means they stiil hold ground. 25. The cases of the Lecturers including that of the appellant for promotion came up in the meeting of DPC in 1987. Some Lecturers, although juniors to him were promoted, except the appellant This was due to the fact, that some disciplinary proceedings against the appellant, were in progress. Ultimately the appellant was removed from service. He was reinstated on the indulgence of the Tribunal, and on grounds of natural justice. 26. His ease of promotion again came before the DPC in 1991, but he was superseded on account of his indifferent service record. Although at that time also his juniors were promoted, but he did not agitate on the plea that he came to know about the promotion of his colleagues only in 1994. But this has caused delay to come up before the Tribunal in time. And therefore, we support, the objection of the respondents, that the instant appeal is time barred, since he sat back, and did not re-act in time. Having no knowledge about the promotion of his juniors, is neither justified not would extend the time limitation. 27. As regards, the Establishment Division's O.M. dated 25.8.1995, on which the learned counsel, has heavily relied upon, definitely reveals, that the respondent Defence Ministry was instructed to place the case of the appellant for promotion before the competent authority. But the letter dated 13.3.1996 shows, that in compliance with the above instructions of the Establishment Division, the appellant's case was considered in the meeting of the special DPC held on 24th January, 1996, for his antidation of the date of promotion. In the meeting of DPC, besides other factor, the following factors also were recorded; in the minutes:- 1. He earned adverse entry in 1984 which were not expunged. In this ACRs for 1986 and 1987 he was considered "not yet fit for promotion." 2. In its meeting held in June, 1991, the DPCC superseded him due to indifferent record. 28. The special DPC, therefore, decided that since the appellant was superseded in 1991 and he was appropriately reconsidered for promotion 1992, on the basis of report earned in 1991, therefore no antidation was possible, to which we also agree. 29. It is although true that un-communicated ACRs should not have been used against the appellant, as also highlighted in the memo of appeal, as well as, also brought out by the learned counsel for the appellant, during the regular hearing of the case. But in fact, it was his supersession in 1991 which appears to have been the hinderence in his way to antidation of his promotion, against which he did not act, nor he approached the proper forum in time. This supersession has forfeited his original seniority for the purpose of antidated promotion alongwith his junior colleagues. Moreover, in view of bar, as pointed out by the respondents, vide their comments to which we also agree, under sub section (b) of Section 4 of the Service Tribunals Act, read with proviso of Section 22 of the Civil Servants Act, 1973, the appeal against promotion is also not maintainable. 30. For the reasons, recorded above, the appeal having no merit, is dismissed with no order as to costs. ' 31. Parties be informed. (MYFK) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 400 [Federal Service Tribunal, Islamabad ] Present: JUSTICE (R) ABDUL RAZZAQ A. THAHM, CHAIRMAN A muhammad raza khan, member ZAFAR HUSSAIN-Appellant Versus SECRETARY ESTABLISHMENT DIVISION etc.-Respondents Service Appeal No. 442(R)/96, allowed on 19.12.1996. Service Tribunals Act, 1973- S. 4--Promotion of Assistant Drafts man to Deputy Draftsman- Supersession of--Challenge toIn case of promotion to technical posts qualification formula not be strictly applicable and criteria in these cases would be technical qualifications, experience and accomplishments relevant to their specialism-Appellant is working as Assistant Draftsman (B-18) since 1976 while respondent No. 4 had put in about 7 years service in B-18, and it is clear that appellant was senior to him--In part VI of ACR dossier of appellant, it has been unanimous observation that officer was fit for promotion in his turn-There were no adverse remarks nor was he found unfit for promotion, but he has' been condemned- Therefore, it was not fair on the part of Central Selection Board to have reiterated its earlier view as wrong done can always be undone-Service Tribunal can set aside any order of promotion of supersession made contrary to provisions of law-Board is a recommendatory body and its recommendations are not binding as discretion lay with competent authority to accept or reject same-Appeal allowed. [Pp. 404, 405 & 406] A to F Appellant in Person. Private Respondent No. 4 in person. Date of hearing: 19.12.1996. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-Briefly the facts of this appeal are that the appellant, Mr. Zafar Hussain and Mr. Zaffar Ali Khan, earlier filed appeals No. 284(R)/94 and 278(R)/94 respectively, against the order whereby the were superseded and respondent, Mr. Humayun Ahmed was promoted as Deputy Draftsman (B-19). The main point in these appeals were that since the post of Deputy Draftsman was a technical post falling ia the Specialists Cadre whether the quantification formula was strictly applicable to the technical post or not This position was visualised by the Tribunal in both appeals and the Law and Justice Division clearly admitted in their comments that the post of Deputy Draftsman was a technical post. Looking to this legal position and view of Ministiy of law and Justice, we remanded the case to the Secretary, Law and Justice Division by judgment dated 6.10.1994, to review the position for consideration of promotion of appellants. Respondent, Mr. Humayun Ahmad was not satisfied with this judgment and he filed Civil Appeal No. 542 and 543 of 1994 in the Supreme Court but leave to appeal was not granted and the petitions were dismissed vide judgment dated 12.2.1995. Finally, the Law and Justice Division made a reference to he Establishment Division to place the case of the appellant, Zafar Hussain, only before the CSB-II for reconsideration. Perhaps Mr. Zafar Ali was promoted as he is no before us. The Board in its meeting held on 21.11.1995 considered the case and observed that minimum thresholds are one of the vital conditions for consideration of promotion cases and is consistently applied in all such cases and further observed that since the promotions of the officers already stood actualised with effect from 8.3.1994 and there being no other vacancy of Deputy Draftsman (B-19), there was no cogent reason to review the earlier decision which already stood implemented. The recommendations of the Board were accepted by the Establishment Division and the appellant was informed. The appellant filed departmental appeal which was not responded and ultimately he has once again filed this appeal before the Tribunal on 7.8.1996. 2. We have heard the appellant, who appeared in persons. His case is that the Tribunal in its judgment in Appeal No. 284(R)/94 decided that the post of Deputy Draftsman was a technical post and the quantification formula was not strictly applicable in the case while considering the case for promotion. It is argued that the judgment of the Tribunal was maintained by the Supreme Court but in spite of that on the same formula, on the basis of which he was earlier superseded, has been again followed. Therefore, the recommendation of the CSB is clearly violation of the judgment of the Tribunal as well as the Supreme Court, because the case was remanded by the Tribunal holding that it was a technical post and it was incumbent upon the CSB to have reconsidered the case in the light of judgment of the Tribunal which was maintained by the Supreme Court. It is submitted that injustice has been done to him as .a far junior person who was a favourite/relative of-some-one, was illegally promoted, having hardly sendee of 5/6 years, to the post of Deputy Draftsman, in spite of the fact that the appellant had rich experience and being senior, having more than 20 years service, had been ignored. It is submitted that he was granted move over in B-19 and there is nothing adverse in his ACRs. 3. The Section Officer, Law and Justice Division has placed real facts on the record and submitted that the case, in pursuance of the judgment of the Tribunal, was processed through the Establishment Division,, therefore, compliance of the judgment has been made but the Board did not recommend the appellant for promotion. He stated that the Law and Justice Division have already stated in their comments that the post of Deputy Draftsman is a technical post. The departmental representstive of the Establishment Division submitted that the case was placed before the CSB and it was observed that since promotion of Mr. Humayun Ahmed had already been actualised, therefore, no action is required. 4. Humayun Ahmed, private respondent argued at length. He has challenged the jurisdiction of the Tribunal and submitted that the Tribunal cannot entertain this appeal. He argued that the appellant has made an application for contempt of court proceedings in the Supreme Court which is pending and as such the Tribunal has no jurisdiction to hear the appeal. On merits, he argued that looking to the quantification formula the CSB has rightly recommended that quantification formula is applicable in case of promotion of selection posts and after reconsideration of the case of the appellants, has rejected the stand of the appellant 5. This is a second round of litigation of Mr. Zafar Hussain who is working as Assistant Draftsman in the Law and Justice Division. In the earlier appeal, he alongwith another colleagues Mr. Zafar All Khan, had challenged ihe order of his supersession due to less threshold while his junior Mr. Humayun Ahmad had been promoted as Deputy Draftsman (B- 19) by the CSB on the basis of quantification formula, although it was a technical post falling under the Specialist Cadre. The Tribunal by its judgment dated 6.10.1994 remanded the case to the Law and Justice Division to place the case of the appellant before the CSB for reconsideration in terms of judgment of the Tribunal that quantification formula was not strictly applicable to the technical posts. Respondent No. 4, Mr. Humayun Ahmad challenged the judgment of the Tribunal in Supreme Court by filing Civil Appeals No. 542 and 543 of 1994 but the petitions were dismissed and the concluding paragraph of the judgment reads as under :- 5. It may be observed that the Service Tribunal in its impugned judgment has not disturbed the promotion of petitioner Mr. Humayun Ahmad or Muhammad Azam Warriach. The Tribunal observed that there being controversy as to the applicability of quantification formula in Zafar Ali Khan, Zafar Hussain and petitioner Humayun Ahmad and Muhammad Azam Warriach, it was in the interest to remand the case to the Secretary, Law and Justice Division to review their cases. We feel that the above observations passed by the Service Tribunal are not improper. Besides, the Service Tribunal has not altered the promotion of the petitioner, Humayun Ahmad. We, therefore, see no reason to interfere with the impugned judgment. Leave to appeal in both the petitioners is refused and the same are dismissed accordingly." Thus the judgment of the Tribunal was maintained, and on remand, the Ministry of Law and Justice referred the case to Establishment Division for p'iaang before CSB. The case had to be reconsidered by the CSB in the light of the judgment of Supreme Court and Tribunal, but the Board reiterated its earlier view and did not adhere to the verdict pronounced in this case. Therefore, we have to examine the case in its entirety. No doubt, the posts in B-19 are selection posts, and under the Promotion Policy, following are the instruction for considering such cases for promotion: "HI. Promotion to Selection Posts 1. Posts in basic pay scale 19 or higher are selection posts. Promotions to these posts are to be processed through the Central Selection Boards. 2. In order to ensure that selection by these Boards does not amount to a mere elimination of the unfit the Establishment Division shall place a larger panel of eligible officers before the Boards. Depending on the availability of eligible officers in a cadre, the number of officers to be included in the panel shall be as follows:- (a)for promotion to supervisory A minimum of 2 posts officers for every vacancy. (b) For promotion to middle and A minimum of 3 senior management posts officers for every vacancy. 3. For selection posts, entries under "quality and output of work" and "integrity" in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum. These Marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts. 4. Posts carrying basic pay scale 19 are generally supervisor posts. Supervision can be effective only if the supervisory has the relevant experience. These officers are also required to make contribution to policy-making at the lowest rung of the policy-Eaaking hierarchy. For promotion to these posts, therefore, a civil servant much fulfil the following requirements: (a) Qualifying service : possess 12 years service as an officer subject to the provisions contained in Establishment Division O.M. No. 1/9/80-R-IKA), dated 2.6.1983. (b) Eligibility threshold : attain a minimum score of 60 marks in the CRs in accordance with the formula given in the addendum. (c) Qualifications : as prescribed by the relevant recruitment rules. (d) Relevance of Experience : possess experience relevant to the functions of the post to which promotion is being made. (e) "Quality and Output of Work" and "Integrity" marks calculated in accordance with the formula in the Addendum shall be important factors in determining the comparative merit of an officer." Following the above-quoted formula, the case of the appellant was examined and considered for promotion to the post of Deputy Draftsman (B-19) and on he basis of threshold, he was superseded. On the other hand, the contention of the appellant is that since it was a technical post, as conceded by the Law & Justice Division, these conditions/criteria was not to be applied in his case and his case fell under the "Specialist Cadre". The provisions laid down for Specialists Cadre are reproduced herein-below:- "IV. Specialist Cadres Part II and III of the guidelines will not be strictly applicable to civil servants who are in specialist cadres such as doctors, teachers and professors, research scientists and incumbents of purely technical posts for promotion within their own line of specialism. The criteria for promotion in their case would continue to be the technical qualifications, experience and accomplishments (research, publications, etc.), relevant to their specialism." B These provisions of law clearly indicate that in case of technical posts the quantification formula will not be strictly applicable and the criteria in these ^j cases wpuld be the technical qualification, experience and accomplishments j relevant to their specialism, meaning thereby that quantification of ACRs ! doss not play a major role in consideration of promotion cases for technical posts but the experience and specialism in the relevant field has got the edge. Admittedly, the appellant is working as Assistant Draftsman (B-18) since 1976 while respondent Mr. Humayun Ahmed had put in about 7 years service in B-18, and it is clear that the appellant was senior having much [long experience as compared to respondent Mr. Humayun Ahmed. We have also gone through the ACR dossier of the appellant produced by the Law and Justice Division. The analysis of Ads for the years 1990 to 1994 nows that the appellants has been graded as "Good" in Overall grading of each part of each ACR. Part V (pen Picture) has also reported the officer to be "friendly", "good human" and "fine gentleman" with "pleasant" personality. In Part VI, it has been unanimous observation that officer was "fit for promotion in his turn". So there was no adverse remarks nor was he found unfit for promotion. The grading in certain columns is "average" but, as finally laid down by the Supreme Court, the average report cannot be treated as adverse, whereas in the instant case the officer has been graded as good and fit for promotion, but he has been condemned. So the "good" grading has , become worse than "adverse". The reflection of evaluation and assessment of the above-mentioned reports clearly speak of the fact that the appellant has been found "fit for promotion" by all the reporting and the countersigning officers and has been recommended for encouragement due to his long service and rich experience in the field. Therefore, it was not fair on the part of the Central Selection Board to have reiterated its earlier view when the Tribunal as well as the Ministry of Law and Justice, in clear terms, had held that the post of Deputy Draftsman being a technical post, the normal j quantification formula was not applicable and his case was to be considered in the light of the provisions relating to "Specialist Cadre". While considering the case of the appellant, the Board observed as under:- "5. The Board discussed the issue at length and observed f that the laid down minimum thresholds are one of the vital conditions for consideration of promotion cases and is consistently applied in all such cases. The Board further observed that promotions of the recommended officers already stood actualized with effect form 8.3.1994 and there is no other vacancy of Deputy Draftsman (B-19) available in that Division. 6. In view of the above, the Board opined that there was no cogent reason to review the earlier decision which already stands implemented." The ground which prevailed with the Board was that the minimum , threshold was a vital condition for consideration for promotion in such cases; and that since the promotion of respondent Mr. Humayun Ahmed had been actualized with effect from 8.3.1994 and there being no other vacancy, there was no cogent reason to review its earlier decision. We respectfully do not subscribe to such kind of argument as a wrong done can always be undone, -and it is a settled law that the Tribunal can set aside any order of promotion or supersession made contrary to the provisions of law. The Board is a recommendatory body and its recommendations are not binding as the discretion lay with the competent authority to accept or reject the same. After the judgment of the Supreme Court, on remand of the case to the Central Selection Board, there was limited scope for them to have examined the case in terms of judgment of the Tribunal and the Supreme Court, which the Board failed to observe. It is also regretted that the Establishment Division did not take note of the judgment of the Supreme Court and agreed to the recommendations of the Board. In these circumstances, we are not satisfied that case on remand has been processed in accordance with law and the appellant could not be deprived of his legitimate right of promotion against a technical post of Deputy Draftsman by applying a wrong criteria and by misconstruing the provisions of rules, when the appellant was fit for promotion and had longer service and experience in the relevant field as compared to respondent Mr. Humayun Ahmed. 6. Respondent No. 4, Mr. Humayun Ahmed raised legal objection that the Tribunal has no jurisdiction to go into the question of fitness for promotion. This objection was also raised in earlier round of litigation in Appeals No. 278 and 284(R)/1994 and was dealt exhaustively on the strength of Supreme Court judgments, and we reiterate our earlier view, and repell the objection. 7. For the foregoing reasons, we allow this appeal, set aside the impugned order dated 5.3.1996 and the findings of the Central election Board dated 21.11.1995 and direct the respondent No. 1 to place the case of the appellant before the Central Selection Board for consideration othtrwise than the quantification formula, in the light of the above observations. Compliance be reported within two months. (MFYK) Appeal allowed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 406 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RTD.) mian ghulam ahmed, chairman. GULZAR AHMED-Appellant versus AGRICULTURE ENGINEER, CHAKWAL etc.--Respondents Appeal No. RI-21/94- Punjab , allowed on 2.4.1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A--Buldozer operator-Retirement on attainment of age of superannuation-Challenge to in the light of birth entry-It is matter of common knowledge that illiterate employees seldom care to check as ta what age or date of birth has actually been scribed or entered in the service record-It will always be prudent on the party of "Authorities" to make employees, especially low paid and illiterate, occasionally aware of their date of birth, as entered in their service recordAppellant has been in possession of a clear and correct proof about his actual age in shape of birth entry which cannot be discarded on any valid premises~His date of superannuation as per authentic entry of his birth will fall on 29.1.1999, before which he would not be liable to retirement-Appeal allowed. [Pp. 407 & 408] A to D Appellant in Person. Nemo for Respondents. Date of hearing: 2.4.1997. judgment Gulzar Ahmad was retired from service purportedly on attainment of age of superannuation on 12.12.1992; and he filed a grievance petition on 14.4.1993, under section 25-A of the Industrial Relations Ordinance, 1969. His petition was on 16.12.1993 dismissed by the learned Labour Court ; and he has come up in appeal to this Tribunal. 2. Gulzdr Ahmad had been appointed as Greaser by the Director Soil Conservation, Murree Road , Rawalpindi , on 13.9.1975 (Ex. P-l). The document Exh. P-2 indicates that he could not get his pay for the months of December, 1992 and January, 1993, when he was working as Buldozer Operator. He represented to the Agriculture Engineer, Jehlum, for his continuance in service, stating that he had not yet completed 60 years of age. He appended with the application dated 2.2.1993 (Exh. P-2) his birth entry (Exh. P-3), giving his date of birth as 30.1.1939. His representation/appeal was, however, rejected, vide order dated 28.2.1993, passed by the Agriculture Engineer, Jhelum (Exh. P-4). An intimation in that behalf was given to Gulzar Ahmad on 29.3.1993, as per Exh. P-5. Gulzar Ahmad, however, again on 13.4.1993 told the Agriculture Engineer, Jehlum, that he could not be retired before 30.1.1999 and also asked for payment of arrears of salary to him. (Ex. P-6). 3. Service Record of Gulzar Ahmad Exh. R-l states his date of Mrth as 13.12.1932. The entry, on the face of it, however, appears to be of recent origin, the original entry indicating that his age was 42 years, at the time of his employment as per medical certificate. Now it is so well known that on anybody's induction into government service, he is asked to produce a medical fitness certificate, and for the purpose he appears before the Medical Superintendent, of the District, or any other Medical Officer deputed by him, and the primary purpose of issuance of such a certificate is an expert's statement about his medical fitness and mention of date of birth or age, in such certificate is only casual or collateral. It is generally based on guess work, if at the relevant time civil servant or the employee does not ave in his possession any authentic proof about his age, say, matriculation certificate, or his birth entry. It is also a matter of common knowledge and experience that illiterate or semi-literate employees of the Government seldom care to check as to what age or date of birth has actually been scribed or entered in their service record. Their ignorance, in that regard, therefore, would he having no material significance. 4. When payment of salary of Gulzar Ahmad was, however, discontinued, he came to know, as a matter of certainty, that he was going to be retired, or had actually been retired, from service. This was done, in the instant case, with effect from 12.12.1992. It has not been shown or established on record as to why have the "Authorities" or, for that matter, the learned Labour Court refused to accord any recognition to the birth entry, Ex. P-3, which otherwise must have been treated as authentic, as also conclusive proof of the age of Gulzar Ahmad. He was born on 30.1.1939, and the important even was reported to the custodian of the Register, or the chowkidar of the Village, on 5.2.1939.1 do not think, the entry suffered from any suspician. It has been held by superior courts, in a number of reported cases, that if there is any doubt about the factum of age of an employee, the entry beneficial to the employee or the worker ought to be given preference. It has also been opined that statement about age of a civil servant, or an employee of a corporate body, made at the time of initial recruitment, or his medical examination, must not be given conclusive importance. 5. True, as was circulated by the Government on 4.9.1975 (Exh. R- 3), two years time has been given to a government servant for making a move for correction of his date of birth. In the impugned judgment, there is also mention of another policy letter dated 13.11.1984, having been circulated, on the subject, by the Government. I would, however, be least overwhelmed by these circulars/letters of the Government the reason being that in the present case Gulzar Ahmad has been in possession of a clear and correct proof about his actual age in the shape of birth entry. (Exh. P-3), which cannot be discarded on any valid premises. I have given due recognition to the fact that Gulzar Ahmad was an illiterate person, who only know how to drive a Bulldozer, and was not expected to be aware of the policy letters of the Government, reference to which has been made above. It will always be produent on the part of the "Authorities" to make the employees of the Government, especially low-paid and illiterate, occasionally are of heir date of birth, as entered in their service record. As a matter of policy the employees should be kept informed of their respective ages or dates of birth after every 2/3 years. Gulzar Ahmad is a poor and simple villager and must not be prevented form completing his 60 years of age. His D date of superannuation as per Exh. P-3, the authentic entiy of his birth will fall on 29.1.1999, before which he would not be liable to retirement. He must therefore be enabled to complete his retirement age of 60 years and must also not be divested of his dues. 6. Consequent upon the above discussion I would allow his appeal and would set aside the impugned judgment dated 16.12.1993, rendered by the Punjab Labour Court No. 6, Rawalpindi. As the respondents were not wholly at fault for ordering his retirement on 12.12.1992, I will leave the parties to bear their respective costs of the litigation. (MYFK) ' Appeal allowed
PLJ 1997 Tr PLJ 1997 Tr.C. (Labour) 409 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (Rm) mian ghulam ahmed, chairman AGRICULTURE DEVELOPMENT BANK OF PAKISTAN etc.--Appellants versus MUHAMMAD AKTHAR-Respondent Appeal No. 179/1995 dismissed on 8.4.1997 Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -Ss. 38 and 25-A~Chowkidar on terminable basis-Termination of Grievance petition against-Acceptance of--Appeal against-Stand taken up by appellants before Labour Court was found to be inconsistant- Respondent was in service since 14.11.1990-He was entitled to claim ermanence-Regularization of service and attainment of permanent status as a worker is secured right of respondent and he cannot be deprived of it-Having been in service for a period exceeding nine months he was entitled to remain in service-If at all he was found to be guilty of misconduct, he was to be served with a show cause notice and made to face an inquiry, without which he could not be ousted from service- Appeal without merit, hence, dismissed with costs. [P. 410] A to E PLJ 1994 Tr.C. (Labour) 125 ref. Mian Muhammad Iqbal, Advocate for Appellants. Mr. M.A. Javed, Advocate for Respondent. Date of hearing: 8.4.1997. judgment Muhammad Akhtar's grievance petition, filed under section 25-A, Industrial Relations Ordinance, 1969, was accepted on 21.6.1995 by Punjab Labour Court No. 4, Faisalabad; and the Authorities of the Agricultural Development Bank of Pakistan have come up in appeal to this Tribunal, filed under section 37(3), ibid.. 2. Muhammad Akhtar was, on 14.11.1990, appointed as chowkidar to work at the ADBP Hostel, Faisalabad. He applied for regularization of his service, as a permanent employee. According to the appellants, Muhammad Akhtar had got employment on purely and terminable basis, and as his performance had not been up to the mark, he was never made permanent, and additionally the hostel at Faisalabad was also shifted to Islamabad and the post of chowkidar became non-existent On entertaining the grievance petition, it was ordered by the Labour Court that services of Muhammad Akhtar would not be terminated. Muhammad Akhtar was transferred to Islamabad and placed at the disposal of the Director, Staff College , ADBP, Islamabad . He continued to be in service on the strength of the ad-interim injunction issued in his favour. 3. Services of Muhammad Akhtar were terminable without notice, and had actually been terminated, according to the appellants. The stand taken up by he appellants, respondents before the Labour Court , was however, found to be in-consistent, as in the written statement it had been averred that the services had been terminated, whereas vide Office Memorandum dated 30.11.1992, Exh. P-13, he stood transferred to the ADBP Staff College , Islamabad , the post of chowkidar of the hostel at Faisalabad having become defunct or surplus. This incongruity has been taken notice of by the learned lower court The Labour Court is of the view that Muhammad Akhtar is still in service and there has never been any interruption in the continuity of service. 4. Undoubtedly, he would be treated to be a workman, being a chowkidar. He has been ib service since 14.11.1990, and under the provisions of the West Pakittan Industrial it Commercial Employment n (Standing Orders) Ordinance, 1968, he was entitled to claim permanence. The learned lower court has referred in this regard to PLJ 1994 Tr.C. (Labour) 125 (Punjab Labour Appellate Tribunal). Regularization of service and attainment of permanent status as a worker, in the opinion of the court below, is secured or guaranteed right of the respondent, and he cannot be deprived of it, in an arbitrary manner, and except by following the formalities envisaged by the Labour Laws. The establishment has taken up the plea that the petitioner, having accepted a contractual post, was estopped by reason of his conduct from invoking the jurisdiction of the Labour Court , in an endeavour to protect his services and to claim permanent status as a workman. Even if, however, it was initially a temporary assignment, having for its basis a contract, the incumbent was entitled to remain in service, Bunder the provisions of the West Pakistan Industrial & Commercial " Employment (Standing Orders) Ordinance, 1968, having been in service for a period exceeding nine month and having completed probationary period of three months. The plea of the employer that the performance of the employee had never been satisfactory cannot be accepted, as being truthful, the reason being that it was open to the employer to have dispensed with the services of Muhammad Akhtar, in the event of mal-performance of duties on his part 5. The learned Labour Court , ai such, has come to the right conclusion that Muhammad Akhtar'e service were not liable to termination, and on the contrary, he was entitled to regularization of his services and to confirmation. If, at all, he was found to be guilty of misconduct, he was to be served with a show-cause notice/charge-sheet and made to face an inquiry, without which he could not be ousted from service. Obviously, if he remains in service, he will have a right to claim his emoluments as a permanent employee. I would endorse the decision of the learned Labour Court , and finding the appeal to be without merit I would dismiss it, with costs. (MYFK) . Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 411 [Federal Service Tribunal, Islamabad ] Present: mr. justice (retd.) abdul razzaq A. thahim, chairman, aftab ahmad and muhammad raza khan, members MUHAMMAD YAQOOB-Appellant versus SECRETARY MINISTRY OF FINANCE, ISLAMABAD and 4 others-Respondents Appeal No. 27(R)/97, accepted on 27.3.1997. Civil Servants Act, 1973 (LXXI of 1973)-- S. 19--Pensionary benefits disallowed to appellant, employee of "Lok y/rsa"--Challenge to-Whether employees of "Lok Virsa" are civil servants and entitled to pension, gratuity etc-Question of--Institute has been established under Resolution; it is working in connection with affairs of Federation and is funded by Federal Government and according to comments filed by Lok Virsa, its employees are civil servants guaranteed under Constitution have been defined in Civil Servants Act, 1973, which, inter alia, contains, pension and gratuity as one of terms and conditions- Institute of Lok Virsa having been set up under Resolution, is permanent organization funded by Federal Govt. and its employees are civil servants-Held: Employees of Lok Virsa are entitled to pensionary benefits-Appeal accepted. [Pp. 414, 416 & 419] A, B, C & D PLD 1990 SC 612, PLD 1994 SC 123 and 1991 SCMR 1041. Aminur Rehman Khan, Advocate for Appellant. Mr. Khalid Abbas Khan, Federal Counsel for Respondents Department alongwith M/s M. Munir Awan, Section Officer, Finance Division. Iqbal Jatoi, Director Lok Virsa. Date of hearing: 8.3.1997. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman-The facts in the background of this appeal are that the appellant, Mr. Muhammad Yaqub started his career as LDC/Typist on 1.10.1964 in the Pakistan Council for National Integration (now Pakistan National Centre), where he was promoted as Stenotypist and then as Stenographer. Later on, in the year 1985, he Joined National Institute of Folk & Traditional Heritage, (re-named as Lok Virsa), where he got move over in BPS-17 in the year 1991. Finally, he retired from service with effect from 9.12.1996 on attaining the age of superannuation. Meanwhile, the appellant made a representation on 4.12.1996 with the request that his pension papers may be prepared and he may be granted anticipatory pension in terms of Section 19 of the Civil Servants Act, 1973. In reply, he was informed on 7.12.1996 that the Rules applicable to Lok Virsa employees do not allow pensionaiy benefits to its employees. Being aggrieved, he filed departmental appeal on 8.12.1996 to the Secretary, Ministry of Culture but his request was declined vide letter dated 21.12.1996 on the ground that the pension scheme not having been approved by the Finance Division, could not be allowed. Hence this appeal filed by the appellant on 12.1.1997 with the prayer that pensionaiy benefits as admissible to the civil servants may also be allowed to the employees of Lok Virsa. 2. Notices were issued to respondents for comments and we have heard the learned counsel for the parties and the departmental representatives. Mr. Aminur Rehman Khan, the learned counsel for the appellant argued that the department of Lok Virsa having been established under the Resolution, its employees are civil servants in view of the law laid down by the Supreme Court reported in PLD 1990 SC 612 (Mrs. M.N. Arshad vs. Miss Naeema Khan) and their terms and conditions of service are to be regulated under the provisions of the Civil Servants Act, 1973 and C3R-371-A and the appellant and the employees of Lok Virsa are entitled to pensionaiy benefits. The learned counsel for the appellant made particular reference to a decision of the Supreme Court in Civil Appeal No. 574/1992, decided on 7.2.1994 (Mz'r Ahmad Khan vs. Secretary to Government and others), whereby even the temporary employees of Afghan Refugees Organisation who had put in ten years sen-ice, on termination of their sen-ices, were entitled to pensionaiy benefits under CSR-371. 3. Comments have been filed on behalf of Lok Virsa while the other respondents did not file comments. There is no appearance on behalf of Secretary, Ministiy of Culture, Sports & Tourism and the Accountant General, Pakistan Revenue, Islamabad , therefore, they are declared exparte. However, Mr. M. Munir Awan, Section Officer, appeared on behalf of Secretary, Finance Division and submitted that he will send comments within a day or two but on 11.3.1997, he sent a letter stating therein that this Division is not in a position to file parawise comments without consultant of the law and Justice Division and the Establishment Division and the case is being taken up with them for which three weeks time for filing parawise comments may be granted. This is not a satisfactoiy reply. He should have assisted the Tribunal on the law point as to why they had rejected the claim of the appellant. There is no provision that we may wait for the comments for months and months. On the contrary under Service Tribunals (Procedure) Rules, 1974, comments are to be filed 7 days before ;he date of regular hearing and the Tribunal has undertaken to decide the ippeals of the aggrieved civil servants within a period of 60 to 90 days. We, ;herefore, propose to decide this appeal according to law and merits. 4. In the comments filed by Lok Virsa, it is stated that the Board of Governors of Lok Virsa approved the pension scheme for its employees; and for that matter, a Finance Sub-Committee headed by Addl. Secretary Finance was formed. The Committee in its meeting held on 8.2.1990, which was attended by two Joint Secretaries of Finance Division recommended that pension should be allowed to Lok Virsa employees, but finally the Finance Division did not approve the proposal. It has also been stated that the matter was also referred to the Law and Justice Division and that Division opined that Lok Virsa having been established under the Resolution, its employees hold a civil post in connection with the affairs of the Federation and are civil servants on the authority of PLD 1990 SC 612. 5. The histoiy of Lok Virsa reveals that a National Institute of Folk and Traditional Heritage was established under the Resolution published in the gazette of Pakistan vide No. 3-1/74-CA dated 12th November, 1974. This Institute was under the administrative control of the Ministry of Education, being an autonomous organization, run by a Board of Governors. The Chairman of the Board of Governors was the Minister for Education and Culture and the Vice-Chairman was the Secretary Education. The objectives of the Institute were:- "(a) The Project concerns primarily with research, systematic collection, documentation, scientific preservation, projection, and dissemination of oral traditions, folk-lore, and other aspects of indigenous cultural heritage. (b) The Institute aims at strengthening and nurturing the roots of Pakistani culture and to achieve fundamental objectives namely rediscovery, and re-interpretation of our cultural heritage to enable us to project the true identity of Pakistan. The funds of the Institute were to be met from grant-in-aid from the Central Government and other resource. In the year 1981 by Resolution No. F. 3-1/74-SP, dated 5th Feb' 1981, in supersession of earlier notification dated 12.11.1974, the National Institute of Folk and Traditional Heritage, an autonomous body was brought under the Ministiy of Culture £ Tourism. The Institute was to be administered by a Board of Governors and the Chairman of the Board was the Secretary, Culture and Tourism, under Article 4 of the Resolution. 6. Under Article 12 ibid recruitment/appointment in BPS-17 and above were to be made by a Selection Committee comprising the Secretary as its Chairman and the concerned Joint Secretary and the Executive Director of the Institute as Members of the Committee, whereas appointments to all posts in BPS-16 and below by a Selection Committee comprising the Executive Director, Deputy Secretary of the Ministry and a Director of the Institute as members. Under Article 16, rules were to be framed by the Federal Government to carry out the purposes of this Resolution. Under Article 22 the funds of the Institute were to be met from the grants from the Federal/Provincial Governments and the resources of the Institute. In the year 1983, the Resolution dated 5th February, 1981 was repealed by a Resolution No. F. 10-11/82-Admn. dated 19th June, 1983 issued by the Ministry of Culture & Tourism with the following aims and objectives:- "(a) to engage in research, systematic collection, documentation, scientific preservation, projection and dissemination of oral traditions, folklore, and other aspects of indigenous cultural heritage; (b) to aim at strengthening and nuturing the roots of : Pakistani Culture and to achieve fundamental objectives, i namely, its re-discovery and re-interpretation to project the true identity of Pakistan ; i (c) to hold seminars/workshops/symposium at international, 1 national, regional and sub-regional level.-" The Institute is run by a Board of Governors and the Chairman of the Board is Secretary, Ministiy of Culture, Sports & Tourism. Under Article 4, Government means the Federal Government and "Rules" is defined as the Rules framed by the Government to cany out the provisions of the . Resolution. Under Article 9, Rules are to be framed by the Government to regulate the services of the employees of the Institute. From the above mentioned facts, it thus follows that the Institute has been established under the Resolution; it is working in connection with the affairs of the Federation and is funded by the Federal Government, and according" to the comments filed by Lok Virsa, its employees are civil servants. Similar question had ( been the subject matter of adjudication before the Hon'ble Supreme Court in I the case of Mrs. M.N. Arshad and others vs. Miss Naeem Khan and others c (PLD 1990 SC 612) and it was held that the autonomous bodies created by v the Resolution, and their employees working in the Islamabad Model t Colleges were working in connection with the affairs of the Federation and c were civil servants, and amendable the jurisdiction of this Tribunal. This a view was subsequently followed in Saeed Rabbani vs. D.G. Leather Industry fj Development Organization (LIDO), reported in PLD 1994 SC 123. There is 3 no dispute about the status of the appellant and the employees of Lok Virsa p that they are civil servants and their terms and conditions of service are to ? ( be regulated under the provisions of Civil Servants Act, 1973. The attention f of the learned Federal counsel was drawn to the minutes of the Finance Sub-.j Committee meeting held on 8.2.1990 under the Chairmanship of Additional v Secretary Finance and attended by two Joint Secretaries and others which j considered several matters including pension case and it was unanimously recommended that pension should be granted to the employees of Lok Virsa, the extract of the same and letter dated 15.4.1996 issued by Ministry of Culture are reproduced as under: "Extracts of meeting held on 8.2.1990. 3. Mian Tayyab Hassan as Chairman of the Finance Sub- Committee (Lok Virsa) explained that the basic pay scales have been adopted by Lok Virsa in-to-to and as such its employees desire to get the entire benefits including pension schemes and medical facilities on the pattern of the Govt. servants. He also quoted a number of Educational Institutions of Islamabad who have been allowed the pension scheme on the basis of applicability of basic pay scales in such organisations. The Chairman, therefore, considered that the pension scheme should be allowed to the employees of Lok Virsa as a uniform policy for all autonomous bodies which are fully financed by the Govt. and its functions are not commercial. 5. On detailed discussions, the following decisions were taken in consultation with the Joint Secretaries (Regulations Wing-I & II) of the Finance Division:- (a) Pension Scheme shall be reconsidered by Finance Division in replacement of G.P. Fund." Letter dated 15.4.96:- "2. As desired the case was referred to Law & Justice Divn. to clarify the extent of powers of Board of Governors. According to Law Divn. the corporate or autonomous status can be conferred on a body either by a statute or by an executive order under the authority delegated by an Act of the Parliament. In this case the admitted position is that institution has been created by Resolution and Resolution has not been passed in pursuance of any delegated statutory power. It may be pointed out that Resolution is mere mode of communication of Government decisions and corporate or autonomous status cannot be conferred except through statute or under the delegated authority 'by an Act of the Parliament as aforesaid. In this view of the matter the Board of Governors is neither a corporate body nor a juristic person. The institute has been established for the Federal Government and its employees hold a civil post in connection with the affairs of Federation. If some authority is needed then PLD 1990 Supreme Court 612 is a authority on the point." However, the Finance Division, without any cogent reasons, did not agree on the ground that employees of the autonomous bodies cannot be granted pensionary benefits. To this, the learned Standing counsel could not give any satisfactoiy explanation for rejection of the claim. 7. The terms and conditions of service of the civil servants guaranteed under the Constitution have been defined in the Civil Servants Act, 1973, which, inter alia, contains "Pension and Gratuity" as one of the terms and conditions, as contemplated under Section 19 of the Civil Servants Act, 1973. The provisions of Section 19 of the Civil Servants Act, 1973 had been adjudicated by the Hon'ble Supreme Court in the case reported in 1991 SCMR 1041 (LA. Sharwani & others vs. Government of Pakistan) and after examining the various provisions of law, it was held as under:- "However, the right to claim pension has now been made subject to a statutory provision contained in section 19 of the Civil Servants Act, 1973, which reads as follows:- "19. Pension and gratuity.--(1) On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed. (2) In the event of the death of a civil servant, whether before or after retirement, his family shall be entitled to receive such pension, or gratuity, or both, as may be prescribed. (3) No pension shall'be admissible to a civil servant who is dismissed or removed from service for reasons of discipline, but Government may sanction compassionate allowance to such a civil servant, not exceeding two-thirds of the pension or gratuity which would have been admissible to him had he been invalidated from service on the date of such ; dismissal or removal. ' (4) If the determination of the amount of pension or gratuity admissible to a civil servant is delayed beyond one month of the date of his retirement or 1 death, he or his family, as the case may be, shall be ! paid provisionally such anticipatory pension or 1 gratuity as may be determined by the prescribed : authority, according to the length of service of the 1 civil servant which qualifies for pension or gratuity; and overpayment consequent on such provisional payment shall be adjusted against the amount of - pension or gratuity finally determined as payable to such civil servant or his family." 18. Prom the above-quoted section 19 of the Civil Servants Act, 1973, it is evident that upon retirement from service, a civil servant is entitled to receive such pension or gratuity as may be prescribed." In the same judgment, the Hon'ble Supreme Court also held the view, while -f interpreting Article 25 of the Constitution, that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike. Thus, there should be no discrimination amongst the civil . servants. 8. Similar question was examined by this Tribunal in Appeal No. 270(P)/1991 filed by Mir Ahmad Khan vs. Commissioner, Afghan Refugees, wherein the services of the appellant had been terminated due to retrenchment of staff on the abolition of the posts, and his prayer was that he may be reinstated or he may be allowed pensionary benefits. The Tribunal held the view that under Section 11(2) of the Civil Servants Act, 1973, his services were rightly terminated; and that there was no justification to make him entitled to pensionary benefits on termination of his services, and accordingly dismissed the appeal vide judgment dated 13.11.1991. The appellant went to the Supreme Court and filed Civil Appeal No. 574/1992. The Hon'ble Supreme Court extensively examined the various provisions of law and CSR-371-A and it was held that even a temporary employee having put in ten years is entitled to pensionaiy benefits, and allowed the appeal by its judgment dated 7.2.1994. The ' relevant paragraphs of the judgment are reproduced in extenso:- Precisely the same objection was raised in Civil Appeal No. 22(P) of 1988, Commissioner, Afghan Refugees NWFP and others vs. Fazli Hakim, and this court vide judgment dated 3.12.1990, held as under:- "Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employee and had to be dealt with under the Provincial Law being for all purposes governed by the Civil Servants'Act of the Province of N.W.F.P. We find at page 21 of the Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affairs of the Federation and were to be paid from the Federal Budget and the employees were to be "Federal Government employees, and governed by rules applicable to the Federal Government employees." The Federal Service Tribunal itself in Appeal No. 123 (Po of 1991 M/s. Muhammad Iqbal and Mr. Minollch, held, the employees of the Afghan Refugees Organisation as Civil Servants within the meaning of Civil Servants Act, 1973. - In This view of the matter, the appellant and other employees of. the Afghan Refugees Organisation are government servants and they are entitled to pensionary benefits if their cases are covered by Regulation No. 371-A of the Civil Services Regulation which rcads:- "371-A. Not withstanding anything contained in Articles 355. (b), (361), 363 and 371 of these Regulations, temporary and offtLiating sen-ice, in the case of Government servants who retired on or after the 1st January, 1949, or who joined service thereafter, shall count for pension according to the following rule:- (i) Government servants borne on temporary establishments who have rendered more than 5 years continuous temporary service shall count such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and (ii) temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating service, if any. Note : The pension of Government servants who have already re-tired after the 1st January, 1949, shall be revised under this Article but the increased pension shall have effect from the 17th August, 1952, or from the date as determined under Article 930, which ever is later. "Government orders see serial Nos. 2, 8 and 10 Chapter II and S. Nos. 1, 10 of Chapter III in Section VI." Learned counsel for the appellant also referred to parawise comments and summary of the case, filed by the Government, in the Appeal No. 318 (P) of 1992, Roohullah Jan vs. Federal of Pakistan, available on pages 28/29 of the file wherein it was conceded by the Government that the claim of the appellant in that case for pensionary benefits under Rules 371-A was justified. Admittedly the appellant put in more than ten years temporary service before his services were terminated he was therefore, entitled to pensionaiy benefits under 371-A(i) of Civil Service Regulation. It appears that this provision of the Civil Service Regulation was not cited before the Tribunal otherwise the observation to the contrary could not have been made in the impugned judgment. Resultantly, the appellant and similarly placed other employees of the Afghan Refugees Organisation, being Government Civil Servants, are held entitled to pensionary benefits if their cases are covered by Regulation No. 371-A of Civil Sendee Regulation. We allow this appeal set aside the impugned judgement of the Federal Service Tribunal with no order as to costs." Thus, following the law laid down by the Supreme Court, we hold that the Institute of Lok Virsa having been set up under the Resolution, is a permanent organization funded by Federal Government, and its employees are civil servants and are entitled to pensionaiy benefits. 9. For the foregoing reasons, we allow the appeal, and hold that employees of Lok Virsa are entitled to pensionaiy benefits and set aside the impugned order with the direction that the appellant be paid pensionary benefits as admissible to civil servants. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 419 [Federal Service Tribunal, Islamabad ] Present: abdul razzaq A. thahim, chairman aftab ahmed, roshan ali mangi and muhammad raza khan, members MASOOD AHMAD CHANGWANI-Appellant versus SECRETARY, ESTABLISHMENT DIVISION ISLAMABAD and others- Respondents Misc. Petition No. 12/97 in Appeal No. 395(R)/95, accepted on 26.4.1997. Judgment-Implementation of -Civil Servant-Case of-Service Tribunal entitled appellant for promotion- " Non Compliance of orders of promotion on analogy of stay from upreme Court "by Establishment Division-Challenge to-Hon,ble Supreme Court on 29.9.1996 ordered 'status quo to be maintained until hearing of leave petition and that order was subject to grant of leave-Subsequently, Hon'ble Supreme Court by order dated 27th November, 1996 granted leave to appeal only, but did not suspend operation of judgment passed by Tribunal, inapito of fact that in civil Misc. application No. 558/96 in C.P. No. 465 of !Hi> there was specific prayer for this effect and it appears that perhaps r»quest for continuance of status quo was either not passed or for order granting leave is clear that order of Tribunal was not suspended-stefM quo was for limited extent whereof leave to appeal was granted and at the moment there is no stay order in field, because while granting to appeal, operation of judgment of Tribunal was not suspended and mere leave to appeal cannot defeat implementation/process-Held: View of Establishment Division to hold recommendation of Man Power Division and keep case pending without any justification cannot be subscribed-Establishment Division directed to decide case within month and report compliance. [Pp. 421, 422 & 423] A, B & C 1982 Law Notes ( Lahore ) 437,1989 PLC (CS) 398. Appellant in Person. Mr. Khalid Abbas Khan, Standing Counsel for Respondents alongwith Mr. Abdul Khaliq, Dy. Director and Mr. Muhammad Hafcez, S.O. D.Rs. Mr. Fazal Elahi Siddiqi, Advocate for Private Respondents. Date of hearing: 5.4.1997. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-This is an application of Mr. Masood Ahmed Changwani, for implementation of judgment in Appeal No. 395(R)/95 whereby this Tribunal decided that the appellant was entitled to be promoted to a post of Assistant Director, B-17 and we ordered accordingly. The respondents, i.e. Director General, Bureau of Emigration and Secretary, Labour Division in pursuance of the judgment of this Tribunal forwarded the case of the appellant for promotion to grade- 17 to the Secretary, Establishment Division. The Establishment Division has declined to pass any order on the ground that the matter is pending in the Supreme Court, therefore, no action could be taken. In this situation, we heard the learned counsel for the parties and also the appellant. Mr. Fazal Elahi Siddiqi, Advocate appeared on behalf of those respondents who were declared ineligible for promotion in the impugned judgment, and argued that there is stay from Supreme Court, therefore, judgment cannot be implemented. On the other hand, the appellant argued that before grant of Leave, the Hon'ble Judge of Supreme Court in chamber ordered that status quo be" maintained till Leave is granted. It is contended that when leave was granted the application for stay was there but Supreme Court did not grant stay ; and according to the appellant status quo was for limited period upto grant of Leave to Appeal. He argued that EsttWatenent Division without justification is delaying the matter. 2. In view of the submission of the parties, we have perused the record. 3. This Tribunal in Appeal No. 395(R)/95 vide judgment dated 20.6.1996 in para 18 directed as under:- "18. As a result of above discussion, we hold that respondents 4 to 8 were not qualified and eligible for promotion to the post of Assistant Director (B-17) in preference to the appellant as they wert DM holding the post of B-16 on regular basis. Since the tfkpwllant alone was holding (B-16) or regular basis, he wi entitled to be promoted to the post of Assistant Director (B-17) and we order accordingly." Civil Petition No. 465/96 alongwith Civil Misc. Application No. 558/1996 was placed before Hon'ble Judge when Mr. Fazal Elahi Siddiqi, Advocate as Respondent No. 4, appeared and following order was passed on Misc. Application No. 558/1996: "ORDER Mr. Fazal Elahi Siddiqi, ASC, Respondent No. 4 in person. Status quo to be maintained untill hearing of the leave petition. Dated: 29.9.1996. Thereafter CPLA No. 465/96 and CPLA No. 476/96 wa§ heard by Supreme Court and in both CPLAs M/s Fazal Elahi Siddiqi and Raja Muhammad Bashir, DAG, appeared for petitioners whereas Respondent No. 4, Mr. Maxood Ahmed Changwani was also present. The ftttvwing order was pUMd by Division Bench of Supreme Court: "4. Leave to appeal is granted to HHrider the above propositions of public importance." Dated: 27.11.1996." 3. The point for determination before us is whether there is any stay in field which could prevent the respondent department not to implement the judgment of the Tribunal. As stated above, the Hon'ble Supreme Court on 29.9.1996 ordered status quo to be maintained until the hearing of leave petition, and that order was subject to grant of leave. Subsequently, the Hon'ble Supreme Court by order dated 27th November, 1996 granted leave to appeal only, but did not suspend the operation of the judgment passed by the Tribunal, inspite of the fact that in Civil Misc. Application No. 558/96 in C.P.. No. 465 of 1996, there was a specific prayer to this effect, and it appears that, perhaps, request for continuance of status quo was either not pressed or for order granting leave is clear that order of Tribunal was not suspended. It may also be pertinent to mention here that in another C.M.A. No. 124/97 in C.A. No. 1753 of 1996 filed by Mr. S. Masood All & others "captioncd as Application for suspension of the operation of the impugned orders in CPLA No. 465 of 1996", in paragraph 7 thereof, it has clearly been stated .... "That when the leave was finally granted on 27.11.1996, it appears that the petitioner Mr. S. Masood Ali, etc. failed to make a request that the order directing maintenance of status quo be extended till the determination of issues in the Supreme Court ". The above mentioned facts clearly bear out that status quo was for a limited extent whereafter leave to appeal was granted, and at the moment there is no stay order in the field, because while granting to appeal, the operation of judgment of the Tribunal was not suspended and mere- leave- to appeal cannot defeat the implSnientation/process. On this we rely a judgment of Lahore High Court (1982 Law Notes ( Lahore ) (437) (S. In amid Haq vs. Secretary, Establishment Division & others) and 1989 PLC (CS) 398 (Ahmad Nawaz Khan. vs. Senior Accounts Officer, Pakistan Railways). The relevant para of judgment of Lahore High Court is as follows:- "It is an admitted position that the Supreme Court of Pakistan has not suspended the operation of order impugned before them. The mere fact that the appeal is subjudice provides no justification for not implementing the order of the Federal Service Tribunal. In this connection the rules of the Supreme Court are clear. Reference can be made to Order XX rule I. It reads thus:- "The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or a stay of proceedings, in any case under appeal to this Court."Order XLI, rule 5 of the Code of Civil Procedure is also relevant. It lays down as under:- "Stay by Appellate Count (1) An appeal shall not operate any stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree by stay or reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree." The aforesaid two provisions especially the Supreme Court rule demolish the stand taken by the respondent. We still expect the respondent to act gracefully so as to honour the order passed by one of their own Tribunals." In these circumstances, we are unable to subscribe to the view of the Establishment Division to with-hold the recommendations of the Manpower Division and keep the case pending without any justification. We, therefore, direct the Establishment Division to decide the case of the appellant within a period of one month, and repot compliance. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 423 [Federal Service Tribunal, Islamabad ] Present: mr. justice (retd.) abdul razzaq A. tiiahim, chairman and roshax A CH. IRSHAD AHMAD-AppclIant Versus GOVT. OF PAKISTAN , FINANCE DIVISION, ISLAMABAD-Respondent Appeal No. 25S(R) of 1997, dismissed on 21.5.1997. Civil Servants Act, 1973-- -S. 10-- Appellant originally Member Judicial, Income Tax Appellate Tribunal posted as Additional Secretary, Ministry of Law and Justice- His claim for deputation allowance on analogy of posting in foreign service already rejected by Sen-ice Tribunal-Whether appeal is hit on principle cfrcs-judicata and his transfer can be construed as deputation- Question cf-Appeal is hit on two counts-Firstly, merits of case were examined in earlier appeal and on limited scope Finance Department was asked to examine case-Secondly on principle of res judicata as same -ncvance has again been brought before this tribunal after case was examined by Finance Department, and it was decided that it was transfer s:::r/.::::cr and appellant was not on deputation-Appellant was selectee ::F I Public Service Commission and appointed as Member Judicial in l::c::ne Tax Appellate Tribunal and that Tribunal is also aair.iiiiscraiively under Ministry of law and Justice and officers of Ministry ure all Federal employees and under section 10 of Civil Servants A::, 1&73, every civil servant is liable to serve any where in Pakistan- Held: Transfer of appellant to Ministry of Law and Justice is not posting til f;rcign service-Appeal dismissed in limirie. [P. 425] A Sycd Asghar Ilussain Sabzit'ari, Advocate for Appellant. Date of hearing; 14.5.1997. judgment Justice (R) Abdul Razzaq A. Thahira, Chairman.-Appellant Cli. Irshad Ahmed, Member Judicial, Income Tax Appellate Tribunal, was transferred under Section 10 of the Civil Servants Act, 1973 by notification No. 19/1/93-E I, dated 25th May, 1993 and posted as Additional Secretary, Ministry of Law and Justice. He continued there till he was re-transferred vide notification, dated 10th July, 1994 and his services were placed at the disposal of his parent department, viz. the Income Tax Appellate Tribunal, as Member Judicial. His case is that he was on deputation with the Ministiy and entitled to 20% deputation allowance. The Ministiy of Finance did not agree and his request was turned down by Memorandum dated 15th April, 1997, and, therefore, he has come in appeal before this Tribunal with the prayer that respondents be directed to authorise the appellant to draw deputation allowance @ 20% for the period he remained posted in the Law and Justice Division. 2. We have heard the learned counsel for the appellant. He argued that the appellant was on deputation with the Ministiy and it was not a transfer, therefore, he is entitled to the deputation allowance. He also argued that earlier the appellant filed Appeal No. 416(R)/93 and this tribunal by its judgment dated 8.6.1994 referred the case to the Finance Division. It is contended that other officers of Law Departments in such circumstances were allowed deputation allowance and there is discrimination and the appellant may be allowed the same benefit. He has referred to PLD 1996 SC 771 and SI. No. 29, Page 334 of ESTACODE, 1989 edition. 3. Appellant, Mr. Ch. Irshad Ahmed, in Appeal No. 416(R)/93 prayed that his transfer from the post of Judicial Member, Income Tax Appellate Tribunal and appointment to the post of Additional Secretary in the Ministiy of Law and Justice was on deputation and is to be treated as 'Foreign Service'. That appeal was heard by a Bench of the tribunal consisting of Mr. S.M. Ishaq and Mr. M. Ilyas Lodhi, and the contention of the respondents in that appeal was that the appellant was not sent on deputation but was transferred under Section 10 of the Civil Servants Act, 1973 and was not entitled to deputation allowance. The appellant in that appeal submitted that deputation allowance was allowed to five other officers of the Ministiy of Law and Justice and, therefore, there is clear discrimination by not allowing him such allowance. The contention of the Ministiy was that deputation allowance to those five officers was erroneously allowed and the Finance Division had directed to revise those orders. The judgment of the Tribunal dated 8.6.1994 is clear on this point wherein it has been obsen'ed that even othenvise the notification dated 19.11.1991 clearly showed that the appellant was transferred as Member, Income Tax Appellate Tribunal when he was Additional Secretary in the Law Division. However, the case was remanded with the following observations:- ".... We, therefore, remit the case to the Finance Division with the direction that, after obtaining final reply from the Law and Justice Division, regarding the cases, referred to by the appellant, the dispute may be settled according to law, keeping in view whether or not his present posting can be regarded as "Foreign Service". 3. The appeal is disposed of as indicated above with no order as to costs." The appellant has again brought the same grievance before this Tribunal and made the basis of the Finance Division Office Memorandum dated 15th April, 1997, which reads as unden- "Subject: GRANT OF DEPUTATION ALLOWANCE: The undersigned is directed to refer to Ministiy of Law, Justice and Parliamentary Affairs' d.o.. letter No. F. 10/97-Dtg (PA), dated 3rd April, 1997, on the above subject, and to say that the case has been re-examined in this Division. It has been held that, since the services of Ch. Irshad Ahmed were placed at the disposal of the Ministiy under Section-10 of Civil Servants Act, 1973, he is not entitled to deputation allowance. 2. Attention is also drawn to Instruction No. 13 of the Secretariat Instructions, 1986, which reads as follows:- "No officer shall deal with a case relating to his own promotion, transfer, pay or allowances or with a case dealing with his own official conduct." From all these facts an circumstances, the appeal is hit on two counts-firstly merits of the case were examined in earlier appeal and on limited scope the Finance Division was asked to examine the case-secondly on the principle of res judicata as the same grievance has again 'been brought before this Tribunal after the case was examined by the Finance Division, and it was decided that it was a transfer simplicitor and appellant was not on deputation. He claims discrimination but he has not arrayed the Ministiy of Law and Justice; the Establishment Division and those who were allowed such benefit. Any how, it is admitted that those officers were given deputation allowance erroneously and orders are being revised, therefore, there is no discrimination. The appellant was a selectee of Federal Public Sendee Commission and appointed as Member Judicial in the Income Tax Appellate Tribunal and that Tribunal is also administratively under the Ministiy of Law and Justice and the officers of the Ministry are all Federal employees and under Section 10 of the Civil Servants Act, 1973, eveiy civil servant is liable to serve any where in Pakistan. Section 10 reads as under:- "10. Posting and frans/ers.--Every civil servant shall be , liable to serve any where within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve." We are of the view that transfer of appellant to Ministry of Law and Justice is not posting in foreign service. Moreover, it was clearly mentioned in his ||Notification No. 19/1/93-E.L, dated the 25th May, 1993 that he was transferred under Section 10 of the Civil Servants Act, 1973. The Notification reads as follows:- "A T o. 19/1/93-E. I: Ch. Irshad Ahmed a BPS-21 officer presently working as Judicial Member, Income Tax Appellate Tribunal, Islamabad , is transferred and posted as Additional Secretary, Law and Justice Division under Section 10 of the Civil Servants Act, 1973 with immediate effect and until further orders." 4. For the foregoing reasons, we find no merit in appeal and it is dismissed in limine. (B.T.) Appeal dismissed in limine.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 426 [Federal Service Tribunal, Islamabad] Present: aftab ahmad and muhammad raza khan, members. MUHAMMAD NAZAR SHAKAR-Appellant versus WAPDA, THROUGH THE GENERAL MANAGER, FINANCE (WAPDA), LAHORE-Respondent Appeal No. 646(R) of 1996, dismissed on 21.3.1997. Pakistan WAPDA Employees (Leave) Rules, 1982-- Rule 12 A.A.--Voluntary retirement from service-Whether completion of 30 years qualifying service is condition precedent for grant of encashment of L.P.RQuestion of-All rules provide that on completion of 30 years qualifying service a person is entitled to proceed on L.P.R. or to proceed on retirement without availing L.P.R. and in such case balance of available leave stands forfeited-Appellant had served for less than two months in 31st year of service-He had neither undertaken to perform service for next one year nor he had completed 31st year of service required essential for entitlement to encashment of L.P.R.--Hclcl: After completion of 30 years qualifying service, civil servant will be entitled to encashment of L.P.R only if he undertakes to perform service for 31st year-Appeal dismissed. [Pp. 430 £ 431] A, B & C Mr. M. Kowkab Iqbal, Advocate for Appellant. Sh. Riazul Haq, Advocate for Respondents with Mr. Nacem Akhtar, B&AO. Date of hearing: 5.3.1997. judgment Muhammad Raza Khan, Momber.--The case of the appellant is that he proceeded on voluntary retirement after sen-ing WAPDA for 30 years 1 month and 26 days. He made a request for the said voluntary retirement and his request was accepted and he was allowed to retire with effect from 26-12-1995, Admittedly, at the time of his retirement consider able period of unavailed leave stood at his credit and he requested for the encashment of unavailed LPR for 130 days under rule 12.AA of the Pakistan WAPDA Leave Rules, 19S2, as amended from time to time. The request for encashment was considered hut vide letter dated 30.11.1996 it was regretted on the ground that encashment cf LPR could not be allowed under the relevant'Rules. He filed the present service appeal on 29.12.1996 against the said final order dated 30.11.96 passed by the competent authority on his departmental appeal dated 29.10.1996. The Respondent-Authority contested the appeal by stating that the appellant had not completed 31 years of service and, therefore, he was not entitled to the facility of encashment of LPR. 2. The perusal of the relevant rules and the clarification shows that:- (i) Legally a civil servant was entitled to Leave Preparatory to Retirement (LPR) either one year prior to the date of superannuation or after the completion of 30 years qualifying service. (ii) Those civil servants who did not opt to avail the leave were initially required to make written requests for the encashment of LPR almost six months prior thereto and with the permission of the Authority they could be allowed to perform the duties during the period when they were ie otherwise entitled to LPR and in compensation thereof, the person was held entitled to leave encashment upto a maximum period of 180 days against the Earned Leave available in his account. This encashment was over and above the normal salary that a civil servant was entitled to receive for the performance of his normal functions. (iii) The said period of six months was later on reduced to three months and it was further liberalized to extend the benefits to every civil servant who did not opt expressly for the grant of LPR. Thus it was provided in the instructions that a person who does not request for availing the LPR, would be deemed to have opted for the encashment and thus on a request made at any time the competent authority will pass orders for the encashment of the said LPR. 3. The appellant admittedly retired after having more than 30 years service at his credit. He relies on the provisions contained in rule 12AA(1) of the Pakistan WAPDA Employees (Leave) Rules, 1982, which reads as undcn- "In case of retirement on superannuation or 30 years (Thirty years) qualifying service (on or after 1.7.1983) unless a WAPDA employee opts to proceed on leave preparatory to retirement, he shall be deemed to have opted for the encashment of LPR. On receipt of a request from a WAPDA employee deemed to have opted for encashment of LPR, the Authority competent to sanction LPR will issue formal sanction for the payment of Cash Compensation, if he undertakes in writing to perform duty in lieu of the whole period of three hundred and sixty five days or lesser period which is clue a.nd admissible." This rule was further clarified by the relevant authorities of WAPDA vide OM dated 14.2.1991 in these words: "A question has arisen as to whether an employee can make a request for encashment of leave even after his retirement. 2. It is hereby clarified that an employee, who does not apply for LPR before proceeding on voluntary retirement after 30 years qualifying sendee is deemed to have opted for encashment of LPR. On request even after retirement from the employee concerned, the competent authority will issue formal orders for payment of Cash Compensation." A further clarification was admittedly issued on 2.6.1991 which is as follows:- "The undersigned^n directed to state the matter of Allowing of encashment of LPR on premature retirement on completion of 31 years qualifying service, has been under consideration of the Finance Division. It is clarified that the encashment of LPR upto 180 days Will also be admissible to a civil servant who renders 31 years or more qualifying service and who seeks voluntary retirement on three months notice in terms of Finance division Office Memorandum No. 591-R4/83 dated 4.9.1983 treating the last year of his sen-ice (including the notice period) as duty performed during LPR. This O.M. further provides that encashment of LPR to such retiring employees will also be subject to the same terms and conditions as laid down in Rule 18-A of the Revised Leave Rules, 1980, amended from time to time in Government and Rule 12.AA in WAPDA." 4. Despite the clear positions of the rules having been further clarified by the clarifications, there had still been confusion with the appellant as he demanded the encashment of his balance leave as the encashment of LPR and constantly made efforts to various authorities for the redressal of his grievance. The matter was ultimately referred by the WAPDA to the Finance Division and the Ministry of Finance has finally clarified the matter in these words:- "It is clarified that encashment of LPR can be allowed on completion of 31 years' qualifying service, which includes the period of (encashed) LPR. It is further clarified that 30th year of service cannot be counted for encashment of LPR. If an employee proceeds on LPR after rendering 229 years of service, he may not be entitled to the encashment of LPR." 5. We have also consulted the relevant file of the Finance Division and position that has emerged is that the Regulation Wing of the Finance Division is of the conclusive opinion that:- " ... encashment of LPR upto 180 days will also be admissible to a civil servant who renders 31 years or more qualifying service and who seeks voluntary retirement on three months' notice treating the last year of his service (including the notice period) as duty performed during LPR has been examined. It is clarified that such a Govt. servant would also be entitled to encash his LPR upto maximum for 180 days subject to the same terms and conditions as laid down in rule 18-A of the Revised Leave Rules, 1980 as amended from time to time read with Finance Division's OM No. F. 1(19)-R3/81 dated 11.7.1984 and F. l(73)-R4/84 dated 10.12.1989 respectively." 6. The above clarifications sufficiently demonstrate that encashment of LPR is admissible in case of voluntary retirement only if the civil servant concerned has rendered service upto 31 years or more. The period served beyond 30 years can be deemed to be the period served in lieu of LPR and thus the encashment would be justified. The 31st year of service or the 60 th year of age can be considered to be the period of the LPR and any person is entitled either to avail the '60th' year of age or the '31st' year of service as LPR or in the alternative he can perform functions during the "60th" year of age or '31st' } r ear of service and ask for the encashment of 'six months' available leave in lieu of the LPR. The confusion with the appellant is primarily based on Para-12-AA(l) of the WAPDA Employees (leave) Rules wherein the figures of '60th years' and '30th years' are mentioned in such a manner that the plain reading of the said rules leads one to the conclusion that during the 30th year of service a civil servant will be entitled to encashment of LPR in the same manner as the one completing the 60th year. On the analogy of superannuation, the appellant believes that if a person has completed 60th years of age and retired thereafter on superannuation, he becomes entitled to the encashment of LPR. Similarly the person who has not attained '60th' years of age but was served the Department for '30 years' should be entitled to the encashment of LPR on the completion of 30th years. The initial reading of the said rule certainly creates this impression and, therefore, the clarifications by the WAPDA as well as the Finance Division appear to be violative of the Rules. However, the detailed analysis of the said rules, as quoted in Para-3 hereinabove, shows that there is a stipulation that the retiring civil servant shall be deemed to have opted for the encashment of LPR and he will be entitled to the Cash Compensation only "if he undertakes in writing to perform duty in lieu of the whole period of three hundred and sixty five days or lesser period which is due and admissible." 7. The underlined portion of the said rules practically draws aline of demarcation between those employees who retired on superannuation and those who retire after 30 years qualifying service. This condition cannot be applicable to the first case and, therefore, the said underlined prerequisite will mean that after completion of "30 years" qualifying sendee, a civil servant will be entitled to ask for retirement but he will be entitled to the encashment of LPR only if he undertakes to perform the services for 31 st year. In such a case his request for encashment of LPR shall be justified in lieu of the balance unavailed leave. However, the present appellant had served for less than two months in the 31st year of service and stood retired with effect from 26.12.1995 at his own request. He had neither undertaken to perform sendee for the next one year nor he had completed the 31st year of service required essential for entitlement to the encashment of LPR. Hence there is no merit in his case. 8. Looking to the proposition from .another angle, it is very convenient to conclude that the encashment of LPR is allowed only when a person performs duty for the period in which he was entitled otherwise to avail the LPR. There are clear rules that the last year before superannuation can be availed as LPR but there are no rules to the effect that 30th year of service can be availed as such. On the contrary all the rules in this context provide that on completion of '30 years' qualifying service a person is entitled to proceed on LPR or-to proceed on retirement without availing LPR and in such a case the balance of available leave stands forfeited. However, if he performs duty during the next year after completion of the minimum qualifying service, that period will be counted as performance of duty during the period of LPR and in such a case the LPR can be encashed. 9. For the foregoing discussion, we are of the opinion that there is no force in this appeal which is hereby dismissed with no order as to costs. 10. Parties to be informed accordingly. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 431 [Federal Service Tribunal, Islamabad] Present: aftab ahmad and muhammad raza khan, members. ROSHAN ALI MANGI-Appellant versus SECRETARY FINANCE DIVISION, GOVT. OF PAKISTAN, ISLAMABAD and another-Respondents Appeal No. 650(R) of 1996, dismissed on 10.5.1997. Service Matter- Rule 5(ii) of Staff Car Rules, 1980-Re-imbursement of costs of Petrol- Whether admissible in case of use of personal car instead of staff car- Question of-Law provides for entitlement of entitled officer to use staff car, if available^-There is no provision nor it can be interpreted that if staff car is not available, personal car will be deemed to be staff car- Private car can neither be presumed to be staff car nor it can be used as staff car at public expenses-Held : Entitlement of appellant for re imbursement of petrol consumed as private car since 1991 is not supported by any provisions of Law, Rules or instructions-Held further: Cost of petrol could not be reimbursed to appellant-Appeal is misconceived and dismissed. [Pp. 433 & 435] A & B Appellant in Person. Mr. Muhammad Munir Awan, S.O. Finance Division and Mr. Ghayyur Abbas, Asstt. Establishment Division, D.Rs. Date of hearing: 28.3.1997. judgment Muhammad Raza Khan, Member.-The present appeal is directed against an order dated 15.7.1996, whereby the 'request for reimbursement of the cost of petrol, used by the appellant in his own car, for the period'when he was entitled to the use of an official care, was rejected by respondent No. 1. The back ground of the case is that in 1992 the appellant had filed a service appeal No. 382(R)/92 for the determination of his seniority and right of consideration for promotion with effect from the date of promotion of his junior. Vide the judgment of 9.2.1993 the said appeal was accepted. The Federation filed civil petition for leave to appeal which was dismissed on 22.6.1993. Consequently the appellant was allowed seniority as demanded by him and he was promoted to (B-21) retrospectively with effect from 17.8.1991. Vide a notification dated 23.5.1996 the appellant was also allowed the difference of the emoluments received by him and that to which he would have been entitled due to his promotion with effect from August, 1991. The appellant feels that on his promotion to B-21 he becomes entitled to the free use of car for official and private purpose and since he had been utilising his personal car at his own expenses, therefore, he was entitled to the reimbursement of the cost of the petrol so used. Accordingly he filed a representation on 16.4.1996 for the said purpose which was rejected vide the impugned order dated 15.7.1996 on the ground that the reimbursement of petrol ceiling is not covered under the prevailing rules. Hence this appeal. 2. The respondent No. 1 contested the case on the ground that firstly the appellant had already received car maintenance allowance at the prescribed rate, therefore, he was not entitled to the cost of petrol and secondly that the cost of petrol is not reimbursable under the Rules. 3. We have listened the arguments of the appellant in person and the representative of the respondent No. 1, We have also perused the record of this case as well as of the previous cases and.examined the relevant precedents. The main issues on which the fate of this appeal hinges are two. Firstly whether a person who has already received the car maintenance allowance was dis-entitled to demand the reimbursement of the cost of the petrol and secondly whether the cost of petrol can be reimbursed in case of promotion to higher scale with retrospective effect. So far as the first point is concerned, we are of the opinion that if a Civil Servant was entitled to a particular facility and, instead thereof, he was given in lesser facility, he was definitely entitled to the better facility on refund of the benefit of lesser one. Thus, subject to our discussion in the succeeding paragraphs, we hold that if the appellant was legally entitled to the cost of Petrol, he cannot be denied the facility merely on the ground that he had already received the car maintenance allowance. If he can legally get the reimbursement of the aforesaid claim the same will be permissible subject to the refund of car maintenance allowance. 4. The second point needs detailed elaborations. Under Rule 5(11) of the Staff Car Rules, 1980 the entitled officers of BPS-21, 22 (appearing on the sanctioned strength of the Division) are entitled to the free use of staff car for official and private purpose subject to certain conditions. The main rule consists of the following ingredients that:- (i) The Civil Servant must be an entitled officer, (ii) He must be on the sanctioned strength of the Division, (iii) The staff car may be available with the Division concerned, (iv) He may forego the car maintenance allowance, (v) He shall then be permitted the free use of staff car for official and private purpose. 5. The above analysis presuppose that the civil servant concerned, falling within the definition of entitled officer, must be on the sanctioned strength of a Division and that a staff car was available and that the staff car is used by the oiiicer concerned for his public and private purpose. 6. The purpose of the provision regarding the sanctioned strength, is that, for each officer of the entitled class appearing on the sanctioned strength of the Division, a staff car is always made available. This would mean that if an officer was not on the sanctioned strength of the Division as an entitled officer, but he had worked in a junior capacity and was declared to the benefit of senior post, or was allowed the financial benefits only against a supernumerary post, such a post cannot be considered to be on the sanctioned- strength of a Division, The second requirement about the availability of the staff car denotes that the facility will be allowed only if a staff car was available, otherwise the officer will be entitled to the car maintenance allowance. Reference in this contest can be made of the judgment of the Supreme Court in Civil Appeals No. 13 and 14 of 1996 annexed to the appeal and relied upon by the appellant himself. Thus the law provides for the entitlement of an entitled officer to use the staff car, if available. There is no provision nor it can be interpreted that if a staff car is not so available, the personnel car will be deemed to be a staff car. The third requirement of the relevant rules is the free use of staff car for public and private purpose which means that the staff car can be used at the cost of the Federation. As stated earlier a private car can neither be presumed to be a staff car not it can be used as a staff car at public expenses. Thxis we have to hold that the entitlement of the appellant for reimbursement of petrol consumed as a private car since 1991 is not supported by any provisions of Law, Rules or instructions. 7. The appellant, being Concious of the provision of the rules as aforesaid, has based his claim of two precedents. Firstly he has alleged in para 16 of memorandum of appeal that reimbursement of petrol was allowed by the Finance Division to Justices Ali Madad Shah. The office memo, dated 15.8.1993 relating to the said precedent is reproduced hereinbelow:- "Subject: MAINTENANCE FULL CHARGES INSTEAD OF OFFICIAL TRANSPORT. The undersigned is directed to refer the Law and Justice Division's u.o. No. F. 49(6)/91. All, dated 7.7.1993 on the above subject and to say that the case has been examined in this Division at appropriate level. The Finance Division is of the view that the actual costs of petrol, equal to his entitlement, may be refunded to Mr. Justice (Retd.) Ally Madad Shah for the period in question; subject to the production of vouchers. It is, however, requested that it may not be quoted as precedent in future cases, if any." The perusal of the above O.M. shows that the reimbursement was not approved for the entire consumption upto the ceiling of the entitled officer but two conditions were imposed therewith. Firstly that the actual cost of petrol may be refunded to the said officer on production of vouchers, and secondly that it may not be quoted as a precedent. The appellant has not stated how much petrol was consumed by him during the period in question nor the exact quantity has been specified. Even the exact claim for reimbursement has not been mentioned specifically, as required under Order 7 of the Code of Civil Procedure. Since the said precedent as within the knowledge of the appellant, he should have furnished the copies of vouchers alongwith the departmental appeal as well as with the service appeal and should have prayed for the recovery of specific amount so spent. In the absence of any specific amount claimed for reimbursement the said precedent cannot be applied to the case of the appellant. It may also be mentioned that the said Office Memo has stated that it was a case of special nature and was not to be quoted in future cases. One irregularity does not become a precedent for another one, similarly one instance of relaxation of Rules can not be demanded as a precedent for another one. 8. The appellant also relies in para 17 of the memorandum of appeal on the case of Nazir Ahmed Chaudhry as decided by the Supreme Court in Civil Appeals No. 13 and 14 of 1996. The appellant has annexed a copy of the judgment in the said appeals with his memo of appeal. In the said appeal the appellant had asked for the reimbursement of the cost of petrol and this Tribunal had accepted his appeal but in the said Civil Appeal No. 13 in 1986 the Honourable Supreme Court set aside the order of this Tribunal and dismissed the appeal of the said appellant by accepting the appeal filed by Government. The relevant extract appeal's in para 10 of the judgment is reproduced here-in-below:- It was not case of the respondent nor the learned Tribunal has recorded any finding to the effect that a spare car was available in the Establishment Division but the same was not given to him for private use. In the circumstances all that he was entitled to was the car maintenance allowance. This lie has already drawn. Consequently, the direction given by the learned Tribunal that he should be paid the cost of POL is without any legal basis. This being the legal .position, it is unnecessaiy to consider whether the respondent was or not an "entitled officer" within the meaning of Rule 2(x), ibid. 9. Relying upon the said judgment of the Honourable Supreme Court (presented by the appellant himself) we are of the opinion that the cost of petrol could not be reimbursed to the appellant. As such the appeal is misconceived which is hereby dismissed. 10. No order as to cost. 11. Parties be informed. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 435 [Federal Service Tribunal, Islamabad ] Present: justice (RED.) abdul razzaq A. thahim, chairman AND ' aftab ahmad, member MUHAMMAD AZIM BHATTI-Petitioner Versus SECRETARY, MINISTRY OF EDUCATION and others-Respondents Misc. Petition No. 44/97 in Appeal No. 528(R) of 1996, dismissed on 30.4.1997. Civil Procedure Code, 1908 (V of 1908)" O.XLI, R. 30, Service Tribunals (Procedure) Rules, 1974, Rule 21 & 22- Review petition against dismissal of appeal on ground of limitation- Whether dismissal of appeal was contrary to law laid down by Supreme Court in case reported as 1996 SCMR 669 and whether review petition was competent-Question of-Rule 2-1 of Service Tribunal (Procedure) Rules, 1974, provides specific procedure and this rule is being followed continuously and judgments are being sent under registered cover to parties concerned as also to Establishment Division, therefore, there is no illegality in procedure and said provisions of C.P.C. re not strictly applicable-Even otherwise procedural infirmity cannot converse judgment as void-Held: If petitioner was aggrieved by judgment of Tribtmal then it was open to him to have gone In appeal before Supreme Court-Revision Petition not competent and accordingly dismissed. [P. 438] A, B & C Mr. Sheikh Riazul Haq, Advocate for Petitioner. Mr. Khalid Abbas Khah, Federal Counsel for Respondents. Date of heaving: 28.4.1997. judgment Mr. Justice (R) Abdul Razzaq A. Thahim, Chairman.-This Review Petition under Order 41, CPC, read with Rule 22 of the Service Tribunals (Procedure) Rules, 1974, has been filed by Mr. Riazul Haq, Advocate, in Appeal No. 528(R) of 1996. 2. The relevant facts are that Mr. Muhammad Azim Bhatti, filed Appeal No. 628(R) of 1996 in this Tribunal on 16.10.1996. The same was heard by a Bench of Mr. Muhammad Ismail, now retired, and Mr. Aftab Ahmed, Members. The appeal was dismissed as being time barred vide judgment dated 30.1.1997. On getting the judgment, the petitioner has filed this Review Petition on the ground that the judgment was announced after 49 days of the regular hearing of the appeal which is violative of the provisions as contained in Order XLI, Rule 30, CPC and the law laid down by the Supreme Court in the case reported as 1996 SCMR 669. 3. It was argued mat the representation of the petitioner was rejected by the Department on merits and not on the ground of limitation and, therefore, the dismissal of the appeal by the Tribunal, on limitation, was contrary to the law laid down by the Supreme Court. It has, however, been prayed that the judgment dated 30.1.1997 may be reviewed and the appeal be decided on merits after rehearing, in the interest of justice. This Review Petition was heard by a Bench of Chairman and Mr. Aftab Ahmed, Member, who was the author of the judgment. Since Mr. Muhammad Ismail has retired, therefore, he could not sit on the Bench. 4. The contentions of Sheikh Riazul Haq, Advocate, are that the very order is void and contrary to the provisions of Order 41, Rule 30, CPC, and argued that the judgment is to be announced in the open Court. Therefore, this judgment is not a judgment in the eye of law. He has referred us to the case reported as 1996 SCM 669. 5. Mr. Khalid Abbas, Federal Counsel, has resisted this application and submitted that this Tribunal cannot review its own judgment except the correction of clerical errors and all these points, which are now being argued, the petitioner could challenge them before the Supreme Court. He further argued that in rule 21 of the Service Tribunals (Procedure) Rules, 1974, it has been laid down that a soon as the judgment is signed by the Members, certified copies thereof be sent'to the parties concerned under registered cover, which has been complied with. 6. The petitioner seeks review of the judgment dated 30.1.1997 under rule 22 of the Service Tribunals (Procedure) Rules, 1974, which is as follows: - "22. Clerical or arithmetical mistakes arising in an order of final adjudication from any accidental slip or omission may at any time, be corrected by a Tribunal either on its own motion or on an application made by any of the parties:" This review, in view of rule 22, is not competent and the Supreme Court has also held in several cases that the Tribunal has no power to review its own order. 7. Now we come to the other grievance of the petitioner that the,, judgment has been issued after 49 days of the hearing of the appeal. We are constrained to say that the appeals were used to be decided after years and years where the grievances were not brought explicitly and recently this Tribunal has been bale to take the responsibility to dispose of the appeals in a regular manner within a span of 60 to 90 days, but in spite of that sometimes delay is occurred beyond the circumstances of the Members. Therefore, this cannot be a ground to rehear the appeal specially when it was open to the petitioner to have challenged the judgment in the Supreme Court. The learned counsel has relied on a case of Syed Iftikhar-ud-Din Haider Gardezi and others vs. Central Bank of India Ltd. and reported in 1996 SCMR 669. In this case Their Lordships have said that the delay of over eight months was considered to be objectionable. In the instant case, the delay, as clearly specified in the Review Petition, is 49 days which, in our view, is very reasonable. The observations made by Their Lordships in Muhammad Bakhsh's case and reproduced at page 675 of 1996 SCMR are as under:- "No doubt the judgment was announced one year after it had been reserved but we find that the learned Judge adverted to all the points as mentioned above. Nevertheless it is proper that once the arguments concluded and the judgment reserved, it has to be announced within reasonable period. We are sure that in future no unnecessary delay will take place in announcement of judgments." ~ 8. The learned counsel has mainly relied on Order XLJ, Rule 30, CPC, whereby the mode of announcement of judgment is stated but the Tribunal, irrespective of having been considered as a Civil Court, has also its own rules for disposal of the appeals and the mode of entertainment of appeals. In this context we refer to rule 21 of the Service Tribunals (Procedure) Rules, 1974, which is as follows:- "21. (1) The Tribunal shall, after the order is signed cause certified copies thereof to be sent under registered cover to the parties concerned and shall deliver a copy to the Secretary, Establishment Division, and the Solicitor, Law Division. (2) Any party to the appeal may obtain additional copies of the order on payment of such legal fees as the Tribunal may from time to time fix." 9. In our view, when there is no provision in the rules then the procedure as laid down in the CPC is to be followed. Rule 21 of the Service Tribunals (Procedure) Rules, 1974, provides a specific procedure and this rule is being followed continuously and the judgments are being sent under registered cover to the parties concerned as also to the Establishment A Division, therefore, we feel that there is no illegality in the procedure and the said provisions of CPC are not strictly applicable. Even otherwise a procedural infirmity cannot converse the judgment as void. 10. The learned counsel has also referred us to the judgment of the Supreme Court with regard to the point of limitation. There is no second thought and it is clear that, under the Constitution, all the judgments of the Supreme Court are binding upon the Courts and the Tribunal, nevertheless, ( in the instant case no deviation has been made when the appeal was 3 dismissed on the ground of limitation. There is a unanimous view of the learned Bench that the appeal was time barred and if the petitioner was aggrieved by the judgment of the Tribunal then it was open to him to have gone in appeal before the Supreme Court which he perhaps evaded just to avoid from the limitation. 11. For the reasons stated hereinabove we are of the view that this Review Petition is not competent and as such it is dismissed. (B.T) Petition dismissed,
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 441 [Federal Service Tribunal, Islamabad ] Present: MR. JUSTICE (RETD.) ABDUL RAZZAQ A. THAHIM, CHAIRMAN AND muhammad ismail, member NAJABAT HUSSAIN and 97 others-Appellants versus SECRETARY ESTABLISHMENT DIVISION ISLAMABAD and 2 others-Respondents Appeal No. 192(R)/95, dismissed on 26.11.1995 . Service Matter- Civil Servant-Case of-Secretariat Allowance-Claim of-Joint appeal of employees of Secretariat Training Institute against order of departmental Authority whereby their claim for grant of Secretariat Allowance was disallowed-Whether their appeal after lapse of considerable time was competent-Question of-Scheme for Secretariat Allowance was introduced in 1988 and appellants remained silent since then and come to Tribunal on 8.5.1995 when entire situation has changed and Govt. while passing budget in 1994, had changed structure of Secretariat Allowance and merged it into personal allowance, allowing benefits only to those who were drawing this allowance previously-Held: If appellants felt aggrieved and wanted to get relief, then they ought to have approached this Tribunal well in time-Held further: Only aggrieved Civil Servant is entitled to file appeal to Tribunal, there is no scope of joint appeal in Service Tribunal Act, 1973 and Service Tribunal Procedure Rules- Appeal dismissed. [Pp. 442 & 443] A, B & C Raja Muhammad Ibrhaim Satti, Advocate for Appellants. Mr. Jaivd Aziz Sindhu, Counsel for Respondents alongwith M/s. Muhammad Tariq, S.O. Finance and Mr. Ghyoor Abbas, Establishment Division, D.Rs. Date of hearing: 29,9.1995. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-This joint appeal has been filed by the above named 109 employees, who are working in different capacities in BPS-1 to BPS-16, in the Secretariat Training Institute which is stated to be an attached department of the Establishment Division, claiming for the Secretariat Allowance. The appellants did not succeed departmentally as the objection of the Finance Division is that the Secretariat Allowance has been abolished with effect from 1.6.1994. 2. The appellant's main case is that the Secretariat Training Institute is an attached department of the Establishment Division, as such its employees are also entitled to the benefit of Secretariat Allowance. The learned counsel for the appellants, emphasised that initially, the Secretariat Allowance was granted to the employees of the Pak Secretariat with effect from 1.7.1988 but subsequently this benefit was extended to the employees of the other institutions, when they approached the different forums of the countiy for getting redress and finally the matter was set at rest by the Honourable Supreme Court. He maintained that this allowance was even granted to the employees of the Service Tribunals, High Courts, Supreme Court, etc. therefore, the employees of the Secretariat Training Institute, which is an attached department, cannot be deprived of this concession. The learned counsel then laid much emphasis that like the Federal Service Tribunal, the Secretariat Training Institute is also an attached department of the Establishment Division and as such its employees too are entitled to the benefit of Secretariat Allowance with effect from 1.7.1988, the date when it was initially granted to the employees of the Pak Secretariat. 3. The Respondents did not file comments but despite that, the appeal was resided by Mr. Javid Aziz Sindhu, Standing Counsel, who appeared alongwith M/s Muhammad Tariq, Section Officer, Finance Division, and Ghayyur Abbas. Assistant, Establishment Division. They opposed the appeal on the ground, that the Secretariat Allowance was introduced with effect from 1.7.88 and none of the appellants has agitated his grievance at the appropriate time, nor they filed any departmental appeal within the prescribed period of limitation and the request for the said Allowance has been made, when it had been abolished, therefore, they have no cause of action to claim the benefit at this belated stage. 4. Irrespective of the objection of the respondent Department, regarding the limitation, we are sorry to observe that the cases cited at the bar are not identical to the present case: The employees of the Tribunal, as well as the other Courts are performing duties different irom the employees of the training institute, and the Tribunal, being a quasi-judicial forum, its employees cannot be equated at par wiiu the employees of other Attached Deptt of the Estt. Division. The same is the case with the employees of the High Courts, Federal Shariat Court and the Supreme Court. 5. Apart from the above, the scheme of the Secretariat Allowance was introduced in 1988 and the appellants remained silent since then and have come to the Tribunal on 8.5.1995, when the entire situation has changed and the Government, while passing the Budget in 1994, had changed the structure of the Secretariat Allowance and merged it into Personal Allowance, allowing the benefits only to those who were drawing this allowance previously. It has rightly been argued by the representative of the Finance Division, that after its merge into Personal Allowance, no employee has been allowed the Secretariat Allowance even on his fresh appointment and it was for this reason that the request of the appellants was not acceded to, by the Finance Division. It was rightly maintained that since the scheme/structure has been changed and the appellants have come to the Tribunal, when the Secretariat Allowance does not exist, it will not be pro per for the Tribunal to allow this benefit at this stage. However, for the to sake of arguments, if we allow this relief to the appellants, it would amount reviving the old policy which has undergone a change and the said allowance stands already merged into the personal allowance for which matters are pending in Supreme Court. In our view, if the appellants felt aggrieved and wanted to get relief, then they ought to have approached this Tribunal, well in time which they failed to do, §. The present appeal is also hit by section 4 of the Service Tribunals Act, 1973, which provides that only an aggrieved civil servant is entitled to file appeal to the Tribunal, there i$ no scope of joint appeal in Service Tribunal Act, 1973 and the Service Tribunal Procedure Rules. The learned counsel for the appellants has vehemently argued, that since CPC is applicable to the Tribunal, therefore, under the relevant provisions of the GPC, joint appeal is competent. There is no doubt that this Tribunal is vested with the powers of a Civil Court under section 5 of the Service Tribunals Act, 1973, nevertheless it is specifically provided in the said Act that only an aggrieved civil servant could come to the Tribunal. In our humble view, therefore, if the provisions of the CPC are invoked, by-passing the Service Tribunal Act or Rules, then the provisions of the Service Tribunals Act, 1973, will become redundant, and the law is clear that when there is specific provision in the Act, and this being a special law, the applicability of the CPC is not strictly attracted, and if we ignore all the provisions of the Act and the rules made thereunder, and base our practice on the analogy of the CPC, then it will not be possible for us to decide and entertain the appeals including the question of limitation etc. in accordance with the Act, We are, therefore, of the considered view that when there are specific provisions for disposal of the appeals then admittedly the procedure and rules specified therefore are to be followed. On this point, we asked the learned counsel for the appellants to quote any case law, but he could not. Therefore, on this score also, the appeal fails. 7. For the foregoing reasons, the appeal is dismissed with costs. (B.T.) Appeal dismissed
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 443 [Federal Service Tribunal, Islamabad ] Present: mr. justice (retd.) abdul razzaq A. thahim, chairman and muhammad ismail, member. KHUSHI MUHAMMAD-Appellant Versus CHAIRMAN WAPDA, LAHORE and another-Respondents Appeal No. 38(L)/92, accepted on 25.2.1993. Service Matter- -Civil Servant-Case of-Promotion--Question of-Appellant ignored for promotion as Sub-Engineer by Department for not having diploma or certificate of overseer from any recognized institution although he was placed at S. No. 25 in the seniority list of Sub-Engineers--Challenge to-- Whether Diploma of Drafting and Designing which appellant \vas holding debarred him from Promotion and it was mandatory that he should have Diploma or Certificate of overseer-Question of--Appcllant has all along been working as Sub-Engineer-Department, in comments has failed to substantiate point that what sort of work was assigned to appellant on basis of Diploma he was holding-In certificate it is clearly mentioned that in recognition, he has been awarded Diploma of Associate Engineer Appellant was granted promotion as Sub-Engineer on basis of his field and Diploma he had, but it seems unjust and unreasonable to raise objection of Technology at such belated stage when his case was ripe for promotion to B-17, for which respondents have not produced any specific rules with regard to appointment of Sub-Engineers about their Technology, and how case of appellant could he singled out while others have been treated differently-Held : Case of appellant shall be Considered for promotion in B-17 on basis of Diploma of Associate Engineer he holds-Appeal accepted. [P. 447] A & B Hafiz Tariq Naseem, Advocate for Appellant. Hafiz Muhammad Yousaf, Advocate for WAPDA. Date of hearing: 25.2.1993. judgment Justice (Retd) Abdul Razzaq A. Thahim, Chairman.--The facts, in brief, are that the appellant joined WAPDA as Field Attendant in August, 1975 in B-5 and after-wards he was appointed as Overseer in May, 1976. He passed the promotional examination in 1985 and he was promoted in B-16 in May, 1986. He filed representation for fixing his seniority in the list of Sub Engineers Civil on 17.9.1987. His request was acceded to vide letter dated 26.11.1988 and the name of the appellant was included in the seniority list of Sub-Engineers (Civil) (Grade-16) and was placed at S.No. 25. 2. The cases for promotion of Sub-Engineers to B-17 were considered and by order dated 20.8:1991, several persons were promoted to B-17 but the name of the appellant did not appear in that order. He made representation on 16.9.1991. The same was rejected by order dated 14.12.1991. Being aggrieved with this order, the appellant has filed this appeal with the prayer that the respondents may be directed to consider the appellant for promotion to B-17 on seniority-cwm-fitness basis. 3. We" have heard Mr. Hafiz Tariq Naseem, Advocate appearing for the appellant. It is argued that the appellant had passed departmental examination, having put in 10 years satisfactory sendee and being holder of Diploma, he was eligible for promotion to B-17. It is also argued that the appellant was appointed Overseer directly on the basis of the Diploma and at the time of his promotion to B-16 the department never raised any objection about the requirement of technology of Diploma for such promotion. He has referred to the case reported in 1990 SCMR 1414 and PLD 1988 SC 155 and judgment in Civil Appeal No. 42 of 1990 of the Supreme Court. He has also relied on the decision of this Tribunal in Appeal No. 269 (L)/91. 4. Mr. Hafiz Muhammad Yousuf, Advocate for respondent WAPDA has not controverted these facts but submitted that the appellant was possessing Diploma of Draftsman, in Drafting and Designing. Therefore, he is not qualified for promotion as he does not possess the Diploma or a Certificate of Overseer from any recognised Institution. 5. The point for determination in this case is whether Diploma of Drafting and Designing debars the appellant from promotion and it is mandatory that he should have Diploma or a Certificate of Overseer from a recognised Institution. Mr. Hafiz Tariq Naseem, learned counsel for the appellant submitted that persons who were holding Diploma in Mining and Automobiles were also promoted to B-17 and the Department has unnecessarily made discrimination in his case. 6. The objection of the respondent on the representation of the appellant is reproduced below in extent so :-- "The representation made by Mr. Khushi Muhammad Sub- Engineer for promotion as a Junior Engineer, in the light of rules quoted by him has been examined in detail. The position is as under:- (i) Rule 6(c) of the Pakistan WAPDA Water Wing and Building Circle, under Common Services Technical Stores and Drawing Staff Service Rules, 1985 quoted by Mr. Khushi Muhammad Sub Engineer reads:- "For purpose of promotion to BPS-17 Civil, Mechanical and Electrical Sub Engineers shall form separate cadres and a separate seniority list shall be maintained for each cadre. Promotion to the post of either cadre shall be made from amongst the Sub Engineers on the seniority list of that cadre. (iij Rule 2(e)(ii) of Pakistan WAPDA (Water Wing) Service of Engineers Rules, 1968 which has also been quoted by the Sub Engineer reads as under:- "209& vacancies be filled by promotion on the basis of seniority-CMJn-fitness from amongst the 1 Sub-Engineers possessing Diploma or a Certificate of Overseer from any recogriised Institute provided they are in BPS-16 having minimum service of 10 years, and have passed the Water Wing Professional Examination. 2. The criteria mentioned by the Sub-Engineer approved by the Authority in 282nd meeting for the purpose of placement in BPS-16 and promotion as Junior Engineer (Civil) is as under: - (a) Three years post matric diploma (two years from Rasul) from the Recognised Institute affiliated with the Board of Technical Education. (b) 10 years service as Sub Engineer. (c) Have passed departmental Professional Examination. (d) Are covered under the prescribed quota and under clause (iv). Clause (iv): "Sub Engineers who do not hold 3 years post matric Diploma (or 2 years course from Rasul) will not be eligible for promotion as Junior Engineer against 20% quota. 3. As clarified in para l(i) & (ii) above, promotion to the rank of Junior Engineer is to be made on basis of senioritycum -fitness from amongst the Sub Engineers possessing Diploma or a certificate of Overseer from any recognized institute. Mr. Khushi Muhammad -does not possess the Diploma or a certificate of Overseer. He is possessing the Diploma of Draftsman (Drafting and Designing). There is no mention in any of the rules quoted by him (as reproduced above) that a diploma holder in Drafting and Design can be promoted to the rank of Junior Engineer (Civil). 4. In view of the position clarified above, the representation made by Mr. Khushi Muhammad Sub-Engineer cannot be considered under the rules. He may please be informed accordingly. Sd/- MUHAMMAD MODIAR RAB Chief Engineer (Admn) Water". The appellant holds Diploma of Associate Engineer issued by the West Pakistan Board of Technical Education, Lahore, and the contents of it are as under:- "No. (not legible) Roll No. 8250 WEST PAKISTAN BOARD OF TECHNICAL EDUCATION LAHORE SESSION 1971 (ANNUAL) This is to certify that Mr. Khushi Muhammad son of Mr. Farzand Ali, Registered No. PIL/68-3227 of Government Polytechnic Institute, Lahore has satisfactorily completed the Three years Programme of Instructions, in Drafting & Designing Technology, in the month of August, 1971, securing 2065/3550 marks in Second .Division. In recognition thereof this DIPLOMA OF ASSOCIATE ENGINEER is awarded at Lahore on the 1st day of the month of January, 1972. Sd/- illegible". The appellant was pointed as Overseer directly in 1976. At that time, he was holder of Diploma of Drafting and Designing. He passed the departmental professional examination while he was working as Sub Engineer at Kot Addu and was placed in B-16 with effect from 4.5.1986 by order dated 3.12.1986 on the basis of his having 10 years service and other conditions. The department while placing him in B-16 did not disqualify him for the promotion. Thereafter, his seniority was fixed and he was placed at S.No. 25, but at the time of his promotion to B-17, an objection has been taken that he should have Diploma or a Certificate of Overseer. 7. The appellant has all along been working as Sub Engineer. The department in the comments has failed to substantiate the point that what sort of work was assigned to the appellant on the basis of the Diploma he was holding. In the Certificate it is clearly mentioned that in recognition, he has been awarded the Diploma of Associate Engineer. The appellant was "granted promotion as Sub Engineer on the basis of his field and the Diploma he had, but it seems unjust and unreasonable to raise objection of Technology at such a belated stage when his case was ripe for promotion to B-17, for which the respondents have not produced any specific rales with regard to appointment of Sub-Engineers about their technology, and how the case of the appellant could be singled out while others have been treated differently. 8. For the foregoing reasons, we accept the Appeal to the extent that the case of the appellant shall be considered for promotion in B-17 on the basis of Diploma of Associate Engineer he holds. No order is made for costs. Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 448 [Federal Service Tribunal, Islamabad ] Present: mr. justice (retd.) abdul razzaq A. thahim, chairman, and aftab ahmad, roshan ali mangi and muhammad raza khan, members Dr. M. ASLAM KHAN NIAZI-Appellant versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others-Respondents Appeal No. 423(R)/96, accepted on 5.4.1997. Service Matter-- -Doctor-Case of~Seniority--Question of-Appellant, a doctor under Ministry of Health challenging seniority and Notification whereby respondent No. 3 had been given seniority as Physician (Medieine)- Contention of having been condemned unheard specifically invoked-- Whether proverbial concept of "audi alteram partem" (No one should be condemned unheard) was to follow or it was a mere formalityQuestion of-Appellant has been condemned unheard as respondent No. 3 was given ante-dation over appellant without affording him opportunity of being heard on presumption that there was order to this effect by Tribunal or Supreme Court whereas neither there was any such prayer not was there any adjudication-Held: Impugned Notification was based on misconception-Case remanded for decision of departmental appeal in accordance with law. . [P. 452] A Mr. Abdul Karim Kundi, Advocate for Appellant. Mr. Khalid Abbas Khan, Federal Counsel for Respondent Department, alongwith M/s Nisar Ahmad Khan, Section Officer, Health Division and Ghayyar Abbas, Asstt. Establishment Division. Mr. Rqja Muhammad Asghar Khan, Advocate for Private Respondent No. 3. Date of hearing: 29.3.1997. judgment Justice (R) Abdul Razzaq A. Thahim, Chairman.-This appeal has been filed by Dr. M. Aslam Khan Niazi, against the notification dated 27th March, 1996 whereby respondent No. 3, Dr. M. Najamul Ghani Khan has been given seniority as Physician (Medicine) in BPS-19 from the date his junior was promoted Le. from 8.10.1991. This notification was firstly challenged by the appellant through departmental appeal filed on 25.4.1996 to the Secretary^ Ministry of Health, and in reply thereto the appellant was informed vide letter dated 3rd June, 1996 that the said notification had been issued consequent to converting supersession of Dr. Najamul Ghani Khan into deferment in 1991 with the approval of the competent authority in compliance with the FST judgment as upheld by the Supreme Court. He " then filed this appeal before the Tribunal with the prayer that the impugned | notification may be set aside. 2. Notices were issued to the respondents. The comments have been filed by respondent No. 2, Ministiy of Health, through Section Officer; and respondent No. 3, Dr. M. Najamul Ghani Khan, and we have heard the learned counsel for the parties. 3. Mr. Abdul Karim Kundi, the learned counsel for the appellant has given the history of the case and submitted that the appellant was promoted to BPS-19 with effect from 8.10.1991 whereas Dr. Najamul Ghani Khan was promoted in B-19 in 1993, but he did not challenge the promotion of the appellant. It is argued that on 24.9.1995 the appellant was promoted to BPS-20 and that promotion was challenged by respondent for the first time before the Tribunal. It is argued that when the litigation was going on and the matter is also pending before the Supreme Court, the impugned , notification has been issued by the Ministiy of Health on the mere application made by Dr. Najamul Ghani Khan and adverse order has been passed without affording the appellant pportunity of being heard in utter disregard of the principle of natural justice. It is argued that if the notification is allowed to be maintained, then there will be adverse inference against the appellant in the seniority and promotion to B-20 which will certainly affect the terms and conditions of the appellant. It is argued that the appellant had acquired a vested right of being senior in 1991 and also on the basis of seniority he was promoted to B-20 and the litigation is still going on, therefore, without hearing the appellant by the competent authority, this impugned notification is not in accordance with law. He referred to 1995 MLD 41 and submitted that principle of "audi alteram partem" is to be followed in all respects, therefore, the case may be remanded to the competent authority to hear the appellant and then pass appropriate order or in alternate notification be set aside. It was further argued that there was nothing in the judgment of the Tribunal about seniority in Appeal No. - 73(R)/93 which related to expunction of adverse remarks in his ACRs and so far as the.judgment of the Supreme Court is concerned it is argued that appeal against the judgment of the Tribunal in Appeal No. 73(R)/93 with regard to ACRs was upheld, but subsequently respondent filed Appeal No. 148(R)/199G before the Tribunal against promotion of appellant to BPS-20, which was partially accepted, and against that judgment appeal filed by the appellant in the Supreme Court is pending. Therefore, on misconception, , reference has been given in the notification of the judgments of the Tribunal and the Supreme Court. In these circumstances, it was vehemently argued that notification is contrary to law and facts. . , 4. Mr. Raja Muhammad Asghar Khan, learned counsel for Dr. Najamul Ghani Khan, respondent No. 3, has oppo_sed the remand of the. case and it is submitted that since ACRs were-recorded and on the upgradation of quantification antedation was to be made which has rightly been done; and so was the view of Mr. Khalid Abbas Khan, learned Federal counsel for the respondent department that notification is just and proper. 5. This case has a long history. The appellant was admittedly promoted in BPS-19 in the year 1991. On the other hand, respondent No. 3 was promoted in 1993. After his promotion in 1993, respondent No. 3 made a grievance that his ACRs were not properly recorded and, therefore, filed Appeal No. 73(R)/93 before the Tribunal, which was allowed. The judgment of the Tribunal in Appeal No. 73(R)/93 was challenged in Supreme Court but Supreme Cburt maintained the decision of the Tribunal and dismissed the appeal of Federation of Pakistan. Meanwhile, another development took place that the appellant was promoted in B-20 on 24.9.1995, against which respondent No. 3 filed Appeal No. 148(R)/96, which has been accepted vide judgment dated 1.8.1996 and against the said judgment, the present appellant went in appeal before the Supreme Court and the matter is pending there. As stated at the bar by the departmental representative, on the representation made by the respondent No. 3 his case was placed before the CSB whereafter his supersession was converted into deferment and he was given seniority in B-19 with effect from 8.10.1991, the date when the appellant was promoted as Physician (Medicine) in B-19. The appellant made departmental appeal which could not succeed. The point which requires consideration to determine is, who is the appellate authority in the matters of BPS-20 officers. We feel that the Prime Minister is the authority to decide appeals. It is not clear whether the appeal of Dr. Aslam Niazi against notification was placed before the Prime Minister. This factor appears to be missing as appeal was addressed to Secretary Health and he replied the same. The competent authority upto BPS-19 is Establishment Secretary and as such the Health Secretary could not be the appellate authority. As soon as the appeal was received, he should have forwarded it to Establishment Division for onward submission to Prime Minister. These points need clarification. It is a settled law that no order to the detriment of a civil servant could be passed without affording him opportunity of showing cause or hearing in person and on this proposition there are a number of authorities of the superior courts. Reference is made to the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan in the case Pakistan vs. Public at Large (PLD 1987 SC 304) wherein the provisions of various laws/Acts of the Federal Government as well as of the Provincial Governments were examined to the extent whether those Acts are repugnant to the Injunctions of Islam or not. The subject matter of Sections 13(i) and }3(ii) of the Civil Servants Act and the corresponding provisions of the Provincial Acts on the same subject, in so far as they did not provide for due opportunity of show cause, were held to be repugnant to the Injunctions of Islam and Sunnah, and the Hon'ble Supreme Court allowed a period of six months from the date of decision, i.e. 11.3.1987 to amend the law so as to bring it in conformity with the Injunctions of Islam, failing Which specific provisions shall cease to have legal effect in accordance with the Article 203D and 203F of the Constitution. Pursuant to the aforesaid judgment, necessary amendment was made in the Civil Seivants Act, and so also in Section 17(1A) of the WAPDA Act, 1958. Reference is also made to 1994 SCMR 2232 (Mrs. Anisa Rehman vs. PIAC and another), wherein heir ' Lordships have held as under:- " ... In the present case respondent No. 1 in its comments to the writ petition (at page 41 of the paper book) admitted the act that no show cause notice was issued to the appellant nor she was heard before the impugned order dated 6 th August, 1991 reverting her to Grade VI from Grade VII was passed. In this view of the matter there has been violation of the principles of natural justice. The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise. The fact that there are no statutory service rules in respondent No. 1, Corporation and its relationship with its employees is of that Master and Servant will not negate the application of the above Maxim audi alterant partem. ' The above view, which we are inclined to take is in consonance with the Islamic Injunctions as highlighted in the case of Pakistan and others v. Public at Large (supra), wherein it has been held that before an order of retirement in respect of a civil servant or an employee of a statutory Corporation can be passed, he is entitled to be heard." In the case of Ghulam Ally Memon vs. Government of Sindh reported in 1995 _, SCMR 26, the Hon'ble Supreme Court had in similar ircumstances, remanded the case to the competent authority to resolve the controversy. The relevant paragraph of the judgment reads as under:- "7. Apparently there is anomaly in the disposal of departmental appeals as appeals of petitioners have been allowed vide notification dated 13.6.1990, in which it is mentioned that the said officers shall rank senior to Ghulam Nabi Mughal. By Notification dated 16.5.1991, appeal of Ghulam Nabi Mughal is allowed, and it is mentioned therein that he would rank senior to petitioners. It appears that both sets of these appeals are disposed of by the same competent form of Chief Secretary. In such circumstances we consider it appropriate to resolve this anomaly by directing that the Chief Secretary to the Government of Sindh should hear appeal of respondent No. 3 Ghulam Nabi Mughal again by giving a fresh hearing after giving notice to the petitioners and hearing them so that question of determination of seniority inter se be decided finally in presence of all the parties. If decision goes in favour of the petitioners as held earlier, then respondent No. 3 Ghulam Nabi Mughal can file appeal before Service Tribunal." Analysing the impugned notification in the light of the aforementioned precedents, we are of the opinion that the appellant has been condemned unheard as the respondent No. 3 was given ante-datum over the appellant without affording him any opportunity of being heard on the-presumption that there was on order to this effect by this Tribunal or the Supreme Court whereas neither there was any such prayer nor was there any adjudication. Hence the impugned notification was based on misconception and cannot be upheld. In these circumstances, we set aside the impugned notification and remand the case to the appellate authority to hear the parties after giving notice to both the parties and to decide the departmental appeal hi accordance with law in the light of the above observations. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 452 [Federal Service Tribunal, Islamabad ] Present: muhammad raza kiiand and nook muhammad magsi, members, SHAHJEHAN KHAN-Appellant versus SECRETARY, ESTABLISHMENT DIVISION and 2 others-Respondents Appeal No. 520(R) of 1996, dismissed on 6.5,1997. (i) Promotion- Appellant is stenographer in Federal Service Tribunal-Eligibility for consideration to be promoted as Reader-Determination of-Appellant was not eligible for consideration to be promoted as Reader for reasons that, firstly he was not non-graduate; secondly he was stenographer falling within line of promotion as Private Secretary and not in Cadre of ministerial staff of clerical cadre & thirdly, appellant was not eligible on ground that in past no such practice had been established-Held : Appellant was not eligible for promotion to the post of Reader-Appeal is misconceived and dismissed. [Pp. 457 & 458] B & C (i!) Words & Phrases- Undergraduate or non-graduate-- Meaning ofOne who qualifies examination of 10th class is considered to be matriculate but he cannot be termed as Non-Graduate-Even one who has qualified his intermediate examination is not considered to be under-graduate or non-graduate-one who studies for graduation is called under-graduate student and those who qualify their examination are called non-graduates, person who has studied upto graduation but those who failed to qualify examination will be termed as non-graduate and not one who has not attempted to acquire education for graduation in college-Matriculates will not be considered to be non-graduate. [Pp. 456 & 457] A Mr. Riazul Hag, Advocate for Appellant. Shah Abdur Rashid, Advocate Counsel for Private Respondent, Mr, Noor Muhammad, Mr. Khalid Abbas Khan, Standing Counsel alongwith Mr. Mehboob, Superintendent, Service Tribunal and Mr. Ghyyur Abbas, Assistant, Establishment Division, Departmental Representatives. Date of hearing: 30.4.1997, judgment Muhammad Raza Khan, Member.-The appellant was working as Steno-typist in the Federal Service Tribunal since 1984 and was promoted as Stenographer (BPS-15) on 28.6.1986. He is aggrieved by an order dated 21.5.96 whereby the Respondent No. 3, Mr. Noor Muhammad, has been promoted as Reader (BPS-16). This order was challenged by a departmental appeal filed on 18.6.1996 which was not responded and consequently after waiting for the statutory period of 90 days, the present appeal has been filed on 10.10.1996 primarily on the ground that the appellant was eligible to be considered for the post of Reader (BPS-16) and being senior in the grant of BPS-15 as compared to Respondent No. 3, he had a preferential right to be promoted as Reader (BP-16). 2. The appeal was contested by the private respondent and the official respondents. We have listened to the arguments and perused the record. 3. The appellant basis his entire claim on an Office Memorandum dated 24.11.1985 whereby the post of Reader was upgraded from BPS-11 to BPS-16. It was argued on behalf of the appellant that this Office Memorandum amounts to the statutory rules prescribing the qualification, experience and length of service required for the filling up of the post of Reader. The said Office Memorandum is reproduced hereinbelow in extensor for ready reference:- "The undersigned is directed to refer to the Federal Service Tribunal u.o. No. KD/84-FST, dated 17.5.1984 on the above subject and to say that the competent authority has approved upgradation of all the three posts of readers in' the Federal Service Tribunal subject to prescribing minimum qualifications/experience for the said post as under:- Qualifications Experience B.-A 5 years service in pay scale of Rs. 700-35-1400 and above (B-ll) Non-Graduate 8 years sendee in pay scale of Rs. 700-35-1400 and above (B-ll) 2. Upgradation of the post may please made in the light of this Division O.M. No. 8/10/S3-R.I, dated 6.3.1983." 4. The said Office Memorandum provides that the minimum qualification and experience for the post of Reader should be five years service in BPS-11 for Graduates and eight years service in BPS-11 for Non- Graduates. The appellant considers himself qualified for the said post as he was Non-Graduate and fulfills the required experience of more than eight years service in BPS-11 and above whereas the respondents argued that Respondent No. 3 was a Graduate and was working as Assistant incharge having more than the required length of service and as a matter of practice the post of Reader is normally filled from amongst the Assistants and, therefore, he was the appropriate choice. The appellant was not eligible for appointment against the said post but, on his own request, his name was also considered by the Departmental Promotion Committee for the said post but he was not found to be the appropriate choice. 5. The issue can be analysed from various aspects. The O.M. dated 24.11.1985 is simply a communication of the approval by the competent authority regarding the upgradation of the posts of Readers. Thus it does not amount to the rules for initial appointment or for promotion of the employees under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Since the posts of Readers were already available in the Tribunal and were occupied by the incumbents, therefore, the upgradation from BPS-11 to BPS-16 was allowed by the said O.M., therefore, any addition off qualification and experience was merely a surplusage by the Establishment Division as it was not required to have been mentioned in such a communication. The upgradation of a post is entirely different than the framing of rules for direct recruitment or for promotion. We term the prescription of qualification and experience as a condition precedent a superfluous because had an incumbent already occupying the post of Reader on 24.11.1985 being deficient in qualification or experience, he could not have been removed from the said position or placed in a downgraded scale merely on the basis of insufficient qualification or experience. Secondly, the O.M. does not prescribe whether the qualification and experience was required for initial appointment or for promotion because the qualification can be prescribed for initial recruitment but for promotion purposes it has to be mentioned as to what was the percentage of promotion and who were the persons eligible for promotion. Thirdly, the : terms "Non-Graduate" has not been defined thereby causing an ambiguity as to whether the one who fails to qualify the Graduation Examination will be deemed to be a Non-Graduate or the one who was a matriculate only (or a lesser educational qualification) could also be considered to be a Non-Graduate. Statutoiy provisions have to be specific and unambiguous. Fourthly, if the said O.M. is considered to be amounting to rules for direct recruitment, there v/as further ambiguity whether any person serving in BPS-11 and above anywhere against any ministerial, technical or field post would be competent to participate and compete for the post. If it was presumed to he the requirement for promotion, there is an ambiguity about the officials in BPS-11 and above who would be eligible to be appointed against the said post. Thus the phrase beginning with "subject to prescribing " and the columns laying down the qualifications and experience were redundant and superfluous creating an ambiguity, confusion and cause for litigation. 6. The posts of Readers were already in existence in the Tribunal prior to 24.11.1985 and they were simply upgraded by the said O.M. to BPS- 16. The posts have been filed previously and were to be filled in future by the same practice. The posts of Readers exist in other judicial institutions as well. These posts are also filled by certain established practices or by proper rules framed and approved in this behalf. The post of Reader is a technical one and requires certain qualifications and experience of legal nature. So a technical person working as Electrical Supervisor, Mechanical Supervisor, Sub-Engineer etc. etc. having experience of more than eight years in BPS-11 and above cannot at all be considered to be eligible for appointment against the said post of Reader. In certain courts the degree in law is prescribed as the minimum qualification and in certain other judicial institutions the experience in legal matters is considered obligatory. However, Non- Graduates in a particular scale with a particular length of service cannot be held eligible as a rule to qualify for the post of Reader. 7. In addition to the above-observations, the post of a Reader is undoubtedly a distinct class. It is not a post in the regular hierarchy of a particular cadre. It has no connected posts junior or senior in rank in the line of promotion. The ministerial staff of the clerical cadre commencing with a LDC moves upto the post of Superintendent. The other ministerial staff commencing with the post of Steno-typist is promoted to the post of Private Secretary upto the BPS-18/19. In Civil and Criminal Courts the posts of Readers fall within the cadre of Muharrirs and the Clerk of Courts'but no such posts exist in the Tribunal and thus the post of the Reader is an isolated one with no right of promotion to or from this post. In such a situation it will be advisable to have proper rules framed for the filling up of such posts and till the framing of the rules, the prevailing practice has to be followed. 8. In the past the post of Reader has been filled upon by promotion from amongst the Assistants on Seniority-cwm-Fitness basis and the same practice is followed while promoting the Respondent No. 3 vide the impugned order. 9. The appellant feels himself eligible for consideration to be promoted as Reader on the ground that although he was not a Non- Graduate yet he was having more than eight years service in BPS-12 and above. He places preference to his right on the ground that he was placed in BPS-15 on 28.6.1986 whereas Respondent No. 3 was allowed BPS-15 on 26.12.1989 and, therefore, he claims to be senior to Respondent No.-3 and demands preferential consideration. Seniority is never considered on the basis of scales of pay. It is considered on the basis of posts and cadres. The appellant and Respondent no. 3 belong to two distinct cadres and, therefore, there was no concept of seniority inter se in two different cadres. Hence the claim on the basis of grant of BPS-15 earlier fails. Moreover, there is neither any rule nor any practice to calculate inter se seniority of two different cadres on the basis of grant of BPS-15 for promotion to BPS-16. Thus appellant himself relies on the O.M. dated 24.11.1985 whereby the length of service and educational qualification is mentioned without any reference to the inter se seniority on the basis of joining the service earlier or promotion to a particular scale earlier. If the said O.M. is deemed to have attained the value of the rules then all Graduates with more than five years of service and all the Non-Graduates with more than eight years of service will be eligible for promotion to the post of Readers and consequently no preference could be given to the one over the other except the past practice and determination of suitability by the Departmental Promotion Gommittee. Thus the preferential claim based on the length of sendee, the date of joining or the date of promotion cannot succeed, in such a situation, without prejudice to our observations on other grounds, both the appellant and the Respondent No. 3 and several others can be said to be equally eligible for consideration and the Departmental Promotion Committee was competent to determine ; the suitability of anyone amongst them on the basis of past practice. Hence we do not find any defect in the impugned order on this ground. 10. The appellant was admittedly a Matriculate. The OM, referred to above, requires the qualifications as Graduate or Non-Graduate. It cannot be interpreted that any person who has not qualified Graduation will be considered to be Non-Graduate. If this interpretation is given to the term "Non-Graduate" then even the High School students will qualify to be called "Non-Graduates" and even the illiterates will have a right to be called as "Non-Graduates". The term "Non-Graduation" is an ambiguous one but it can be interpreted in view of local terminology. A student who qualifies middle standard examination but fails to qualify matriculation examination is called "Non-Matriculate" or "Under Matriculate". The one who qualifies the examination of 10th Class is considered to be a Matriculate but he cannot be termed as a Non-Graduate. Even the one who has qualified his Intermediate Examination is not considered to be under graduate or Non-Graduate. The one who studies for Graduation is called an Under Graduate student and those who qualify their examination are called Graduates but those who fail to qualify their examination are called Non-Graduate and not the one who has not attempted to acquire the education for Graduation in a College. Hence we hold that a Matriculate will not be considered to be a Non- Graduate and in view of this interpretation we further hold that the appellant did not possess the required minimum qualification as per the O.M. dated 24.11.1985. 11. The learned counsel for the appellant stressed the confusion created by the written objections and he pointed out that there was a conflict in the statement. It was argued that, in one sentence, the respondents have stated that the appellant was not eligible to be considered for promotion while in another sentence a conflicting statement was given that the appellant was considered for promotion but was not found fit. The learned counsel argued that in these two contradictory stands the earlier one falls within the jurisdiction of this Tribunal whereas the latter one does not fall within its jurisdiction as the determination of witness was the discretion of the Authority and not a vested right of a civil servant concerned. 12. We have examined the record and there appears on conflict in the statements and no contradiction in the decision. As stated hereinbefore, the appellant was not eligible for consideration to be promoted as Reader for the reasons that, firstly he was not a Non-Graduate; secondly he was a Stenographer falling within the line of promotion as Private Secretary and not in the cadre of ministerial staff of the clerical cadre & thirdly, the appellant was not eligible on the ground that in the past no such practice had been established. Thus the Respondent-Department is justified to say that the appellant was not eligible to be considered for promotion. Since the eligibility was a question which falls within the jurisdiction of this Tribunal, therefore, this appeal was admitted for regular hearing and it is being adjudicated upon by exercising the said jurisdiction. However, the Respondent-Department is not incorrect to say that the appellant was considered and not found fit. This happened because the appellant, though not eligible, had filed an application to the competent authority for his consideration and the application was forwarded to the Departmental Promotion Committee for consideration and thus, to honour the directive of the competent authority, the appellant was considered but was not found fit. Although the Tribunal cannot go into the question of suitability yet we may comment that even if, for the sake of arguments, the appellant was considered to be eligible for consideration for promotion to the post of Reader, he was not the senior most in his own categoiy nor senior to other persons who were being considered as per discussion hereinabove and the appellant was also less qualified as compared to Respondent No. 3. Therefore he was not considered suitable for the said job, although h,e was considered uneligible, yet only at his own request and on the orders of the higher authority. l ' 13. There is yet another technical defect in this case. The appellant was a Stenographer and there were admittedly several other Stenographers senior to' him who have not been impleaded as parties to this appeal. If the appeal succeeds, the appellant would become entitled to be considered for promotion against a higher post of BPS-16 and thereby he will supersede the said seniority Stenographers. In such a situation they are the people who are likely to be affected and they are necessary parties to these proceedings. Even otherwise they were the appropriate parties if not necessary parties. Their non-joinder is a fatal defect in the appeal. Although under the CPC the non-joinder of parties is not considered to be fatal and parties can be added at any stage of hearing yet that principle of the CPC is not applicable to the service cases because the statutes relating to the service appeals prescribe a strict schedule of limitation and the impleading of parties at a later stage will not give any added benefit to the appellant due to the efflux of time and the amended appeal would be barred by time against such added respondents as well as against those who are already parties to the appeal. 14. In any case, we are of the opinion that the appellant was not eligible for promotion to the post of Reader and thus the present appeal is misconceived, which is hereby dismissed, with no order as to costs. 15. Parties to be informed accordingly. (B.T.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 458 [Federal Service Tribunal, Islamabad ] Present: mr. justice (RETD.) abdul razzaq A. thahim, chairman, muhammad ismail and noor muhammad magsi, members MUHAMMAD WASI ALAM-Appellant versus SECRETARY, MINISTRY OF COMMUNICATION, ISLAMABAD and 4 others-Respondents Appeal No. 70(K) of 1996, accepted on 21.12.1996. (i) Promotion- Appellant qualified T & T Accounts Service Examination under old Service Rules and promoted as Accountant (B-16)--Whether passing of departmental examination was compulsory for him on introduction of new rules for promotion of Accountants as Accounts Officers (B-17) or his terms and conditions of sendee were protected under old service rules-Question of-Appellant had qualified T & T Accounts Service Examination Part I and Part II in the year 1988 and 1989 respectively and was promoted as Accountant (B-16)--He was granted selection grade BPS-17 wjth effect from 3.3.1992-Held ; In case of old employees of T & T Department who had already qualified departmental examination are not required to appear again in examination-Appeal accepted. [P. 463] B (ii) Qanoon-e-Shahadat- S. 114--Passing of departmental examination for promotion as Account Officer-Protection of terms and conditions of service under old rules disallowed to appellant-Challenge to-Whether appeal in Service Tribunal is barred under Qanoon-e-Shahadat--Question of-It would suffice to say that wherever aggrieved civil servant has got legal remedy and cannot succeed in legal forum, he can invoke jurisdiction of another legal forum for redressal of his legitimate grievance because interpretation of law is to be made independently-Held: Question of terms and conditions of appellant is immaterial and cannot make this appeal incompetent. [P. 460] A Mr. Niaz Ahmad Khan, Advocate for Appellant. Mr. M. Umar Qureshi, Advocate for PTCL alongwith Mr. Iqbal Ahmad, Assistant Director. Date of hearing: 4.12.1996. judgment Justice (R) Abdul Razzaq A. Tkahim, Chairman.-- Appellant Mr. Muhammad Wasi Alam joined the T&T Department as UDC on 14.6.1971. He was promoted as Accountant (B-16) with effect from 20.12.1989 after qualifying the T&T Accounts Service Examination Part I & Part II in the year 1988 and 1989 respectively. Presently, he is working in Selection Grade-17. In the meantime, Pakistan Telecommunication Corporation was established under Ordinance No. XVI of 1990, known as Pakistan Telecommunication Corporation Ordinance, 1990, which became an Act. The competent authority framed rules for the promotion of Accountants as Accounts Officer (B-17) for which passing of departmental examination had been made compulsory. The case of the appellant is that since he is governed by old rules applicable to T&T employees and on bloc transfer of all employees to PTC, under Section 9 of the Ordinance, their terms and conditions of service were protected. His contention is that he is not supposed to qualify the departmental examination for promotion as Accounts Officer (B-17) which he has already cleared in 1988 and 1989, and his case was to be considered for promotion against 100% promotion quota as per Recruitment Rules. 2. Mr. Niaz Ahmed Khan, learned Advocate appearing on behalf of the appellant argued that the appellant was civil servant being an old employee of T&T Department and on transfer to PTC carried his terms and conditions guaranteed under Section 9 of the Ordinance and, therefore, was to be governed under the old rules. It is contended that since the appellant had qualified the Accounts departmental examination in 1988 and 1989, he was not supposed to appear in the departmental examination again for promotion to the post of Accounts Officer (B-17) and his case may be considered. It is submitted that one of the colleagues of the appellant filed Constitutional Petition No. 12777/95 in Lahore High Court, Lahore and the respondent department filed comments wherein it has been stated that no .qualifying examination for promotion of Accountants (B-16) to Accounts Officer (B-17) against departmental quota will be held. He has placed on record copy of the Obj ections. 3. The comments have been filed by respondent PTC and it has been averred that the appeal is barred under Section 114 of Qanoon-e-Shahadat on the ground that the appellant had himself applied for the post by participating in the departmental examination. The second legal objection is that the matter is subjudice before the Lahore High Court in Constitutional Petition No. 12777/95, therefore, this appeal is not maintainable. Mr. M. Umar Quraishi, learned counsel appearing for the respondent PTCL submitted that the PTC Board had framed rules for the Accounts Officer (B- 17) vide letter dated 24th November, 1992 whereunder the departmental Accountants who are Graduates after qualifying the written examination, were eligible for promotion to the post of Accounts Officer (B-17) against 25% promotion quota. 4. Adverting to legal objections raised by the respondents in their comments that the appeal is barred under Section 114 of Qanoon-e- Shahadat, it would suffice to say that whenever an aggrieved civil servant has got legal remedy and cannot succeed in a legal forum, he can invoke the jurisdiction of another legal fourm for redressal of his legitimate grievance because interpretation of law is to be made independent land in this case since the question of terms and conditions of the appellant are involved therefore, his willingness to appear in the examination is immaterial and cannot make this appeal incompetent. As regards filing of Constitutional Petition in the High Court, we have only to say that under Article 212 of the Constitution, this Tribunal has got exclusive jurisdiction in the matters of terms and conditions of the civil servants and without prejudice to their case in the High Court, we are of the view that the Service Tribunal has got the jurisdiction, to entertain this appeal. Moreover, the respondent department before the High Court has conceded to the jurisdiction of this Tribunal, and this objection is also repelled. 5. Undoubtedly, the appellant is an old employee of T&T Department and was civil servant, as with the transfer of T&T employees to the PTC on its establishment under Section 9 of the PTC Act, 1991, his status as civil seivant remained intact and so also the terms and conditions of service which were available to him in the T&T Department. This Tribunal in Appeal No. 90(K)/1991 filed by Shabbir Ahmed, decided on 15.4.1993, that the persons employed in the former T&T Department transferred enbloc to the newly created Pakistan Telecommunication Corporation were civil servants and their terms and conditions of service could not be changed. The appeal against the decision of the Tribunal has, perhaps, not been filed in the Supreme Court and as such this judgment attained finality. In the present appeal, legal objection about maintainability has not been taken. It may be pointed out that both the learned counsel for the appellant and the respondent filed copies of Objections filed by PTC in Const. Petition No. 12777/95 (Samiullah vs. PTCL) in the Lahore High court, Lahore, and their stand with regard to jurisdiction of this Tribunal and the terms and conditions of PTC employees has been" amplified in the following words: - "PRELIMINARY LEGAL OBJECTION: 1. XX XX XX 2. The Honourable Supreme Court of Pakistan in its judgment in PTC in Riaz Ahmed PLJ 1996 SC 349 (PLJ 1996 SC 222) has barred the Honourable High Court under Article 212 of Constitution of Pakistan to entertain Promotions, Appointments and Service Matters of civil servants in Pakistan Telecommuni cation Company Limited and these aspects should be dealt within the jurisdiction of the Service Tribunal, thus making this Petition non-maintainable and lacking jurisdiction of this Honourable High Court." The Hon'ble Supreme Court in the case reported in PLD 1996 SC 222 has thoroughly examined the vires of Section 9 of the Pakistan Telecommunication Corporation Ordinance (XVI of 1990) and Section 12 of the Pakistan Broadcasting Corporation Act, 1973, and has concluded that the PTC employees are civil servants and their terms and conditions of service could not be changed. The relevant paragraphs read as under- ".... In so far the status of respondents 1 to 5 as civil servant is concerned, the learned counsel for the appellants has cited an unreported decision of this Court passed in Civil Petition No. 334/93, dated 10.11.1993. The contention whether the employees of Pakistan Telecommunication Corporation are civil servants or not was disposed of as follows:- "3. Aggrieved against the order of the departmental authority showing junior officers as seniors in the seniority list he filed Appeal No. 46(K)/90 before the Tribunal, for restoration of his inter se seniority to the higher post of Director. The petitioner raised preliminary objection to the effect, that the respondent No. 1 being an employee of the Pakistan Telecommunication Corporation established under the Pakistan Telecommunication Corporation Ordinance (No. XVI of 1990), is not a civil servant so as to approach the Tribunal for the relief prayed for. The learned Tribunal repelled the objection and relying on the law laid down by this Court in Abdul Rahim v. Pakistan Broadcasting Corporation an others (1992 SCMR 2113), held the respondent a civil servant amenable to jurisdiction of the Tribunal, nevertheless, dismissed his appeal on merits. Hence this petition. Learned counsel for petitioner mainly tried to distinguish the present case with Abdul Rahim's case relied by the Service Tribunal in the impugned judgment. 4. The provisions of section 9 of the Pakistan Telecommunication Ordinance (XVI of 1990) and section 12 of the Pakistan Broadcasting Corporation Act, 1973, are almost identical. The observations of this court in the aforesaid case on the en bloc transfer of the employees to the Corporation did not change their status as civil servants fully cover the jurisdiction of the Tribunal to entertain their appeals and adjudicate the same on merits.In view of the above stated legal position, we agree with the contention of the learned counsel for the appellants that respondents Nos. 1 to 5 are civil servants within the meaning of Civil Servants Act, 1973." For the sake of convenience, Section 9 of the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991) is reproduced herein-below:- "9. Transfer of departmental emloyees to the Corporation.-- (1) Notwithstanding anything contained in any law, contract or agreement or in the conditions of sendee, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee. (2) The terms and conditions of service of any such persons as is referred to in sub-section (1) shall not be varied by the Corporation to his disadvantage." Similar provision has been incorporated in Section 36(2) of the Pakistan Telecommunication Company Limited Ordinance (CXV of 1995). From the provisions of law and in view of the above-referred judgment of the Supreme Court, it is clear that the appellant on his transfer to PTCL, carried the terms and conditions of service which he was enjoying in the T&T Department and could not be changed or varied to his disadvantage. The respondent PTCL in the Objections filed in Const. Petition No. 12777/95 before the Lahore High Court made the following categorical statement- "4(c). That no qualifying examinations for promotion of Accountants (BPS-16) to Accounts Officer (B-17) against departmental quota, will be held." Therefore, the PTC cannot deviate from its stand taken before the Lahore High Court in the identical case. The appellant had qualified the T&T Accounts Service Examination Part I and Part II in the year 1988 and 1989 respectively and was promoted as Accountant (B-16). He was granted selection grade BPS-17 with effect from 3.3.1992. According to the appellant, he is fully qualified and eligible for promotion as Accounts Officer but the only hurdle in his way is the passing of departmental examination for which we are of the view that in case of old employees of T&T Department who had already qualified the departmental Examination, they are not required to appear again in the Examination. Since the respondent PTC in their objections filed in the Lahore High Court, have done away the passing of departmental examination for Accounts Officers, and there is nothing else ; against him, we direct the department to place the case of the appellant before DPC for consideration for promotion as Accounts Officer (BPS-17) according to seniority-cwm-fitness within a period of two months. With these observations, the appeal stands disposed of in the above terms. (B.T.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr.C. (Services) 464 [NWFP Service Tribunal, Peshawar ] Present: muhammad qaim jan, chairman and arbab azizullah khan, member Miss SHAHNAZ BEGUM-AppeUant Versus DIVISIONAL DIRECTOR OF EDUCATION and anothcr-Repsondents Appeal No. 99/1996 accepted on 16.7.1996. Service Tribunals Act, 1973 (LXX of 1973)-- -S. 4--Qaulified teacher for post of S.E.T.-Graded pay-Denial of- Challenge to-Appellant is perfectly qualified for post of S.E.T.-She has got spotless service record and sufficient teaching experience at her credit-So there can be no hurdle for grant of grade pay to her-Held: If a person is-working on a post is fully qualified, he is perfectly entitled to pay and other monetary benefits attached to that post-Appeal accepted. [P. 465] A Mr. Adam Khan and Muhammad Aslam, Advocates for Appellant. Mr. Sikandar Sahibzada, Advocate (Govt. Pleader). Date of hearing: 16.7.1996. judgment Muhammad Qaim Jan Khan, Chairman.--This is a service appeal filed by Miss Shah Naz Begum under section 4 of the Service Tribunals Act, 1974 for the grant of graded pay. Brief facts giving rise to the present appeal are that the appellant has successfully undergone B. Ed course during the year 1990. Copy of degree is Annexure-A. That the appellant enlisted herself with the respondents as B. Ed on 25.11.90 (Annexure-B). That the appellant was appointed as SET in BPS-15 Rs. 1,165/- per month (fixed) vide order No. 5548/Gen/PF.PF. M. List/SET/DA-III dated 4.5.91 (Annexure-C). That the SETs were granted pay in BPS-16 vide Notification, dated 7.8.91 and 19.12.91. Consequently the pay scale of the appellant was also revised to BPS-16 and now the appellant is serving in BPS-16 on fixed pay. That the appellant is fully qualified and is perfectly entitled to graded pay scale. She submitted a representation to respondent No. 2 on 4.1.96 forwarded by the Head Mistress concerned vide letter No. 10 dated 9.1.96. Respondent No. 2 rejected the said representation on 15.2.96, hence the present appeal. The grounds of appeal are that grant of fixed pay to the appellant is illegal, void, against the prevailing law and natural justice. The appellant has acquired the requisite qualifications i.e. B.Se, B-Ed and also M.Ed, so she is perfectly qualified for the post of SET. That a number of teachers/teacheresses appointed in fixed pay have been granted graded pay. That the salary is running cause of action and can be challenged without any objection of limitation. Moreover, respondent No. 2 has disposed of departmental appeal without any objection of limitation which amounts to condonation of delay. In the prayer the appellant has asked for the grant of graded pay with back benefits and costs. Notices were issued to the respondents. They appeared through their respective representative/counsel, submitted reply to which the appellant has also submitted her rejoinder and after that detailed arguments Mr. Adam Khan, Advocate for appellant and Mr. Sikandar Sahibzada, Advocate (Govt. Pleader) for respondents have been heard and record perused. As far as the preliminary/legal objections are concerned, the appellant has got eveiy cause of action as according to her she is perfectly qualified but denied graded pay. The appeal is perfectly maintainable in its present form and there is nothing on the record worth same regarding estoppel by conduct on the part of the appellant. Moreover, from the rejection of the departmental appeal the present appeal is perfectly within time. On factual side the appellant is presently serving in BPS-16 (fixed). She is perfectly qualified for the post of S.E.T. as she is B.Sc., B. Ed which is a pre-requisite qualification for the post. She has got a spotless service record and sufficient teaching experience at her credit. The contention of the respondent department that she has been granted pay on her turn on merit holds no ground as according to the Hon'ble Supreme Court of Pakistan if a person is working on a post, is fully qualified, so he is perfectly entitled to get the pay and other monetary benefits attached to that post. As far as the delay is concerned, this is a monetary cause which can come in the term of recurring cause, so the appeal cannot be thrown away on the ground of limitation. The appellant is fully qualified and she is B.Sc., B.Ed, and has also passed M. Ed, so her educational qualifications are much more than the required qualifications. She has got a spotless service record and gained sufficient teaching experience at her credit, so there can be no hurdle for the gra'nt of graded pay to the appellant. So in this back-ground of the case we accept the appeal of the appellant. She is perfectly entitled to the grant of graded pay from the date of acquiring the requisite qualification, leaving the parties to bear their own costs. File be consigned to the record. (MYFK) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 466 [Punjab Labour Appellate Tribunal, Lahore ] Present: mr. justice (RTD.)MiAN ghulam ahmad, chairman . NASIR MAHMOOD MUGHAL-Appellant versus ATTOCK REFINERY LIMITED etc.--Respondents Appeal No. RI-267/93 dismissed on 8-4-1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Misconduct-Dismissal 6f-Challenge to-Manner in which management proceeded against appellant and action taken against him was entirely bona-fide and smacked of no antagonism against accused and favouritism for rest-Only those persons were punished who were actually at fault-Mere fact that enquiries were held in room of personnal manager, could not be taken exception to and it could not be gathered that he had endeavoured to influence course and result of enquiries- Appeal dismissed. [P. 468] A & B Appellant in person. Mr. Tariq Mahmood, Labour Officer, for the Respondents. Date of hearing : 22.3.1997. judgment By the present judgment, I shall be disposing of the two appeals captioned above, facts and legal propositions being common. 2. Nasir Mahmood Mughal and Muhammad Zahoor, employees of the Attack Refinery Limited, were involved in tw 0 unfortunate incidents; one dated 11.3.1989 and the other dated 10.4.1989. On 11.3.1989 office bearers and members of the Workers Union were to hold a public meeting and arrangements therefore were finalized. The Assistant Commissioner, Sadar, and ASP Contonment, with police contingent, reached the premises of the Refinery. The Workers Union people had a confrontation with the members of the rival union, the Employees Union, in the afternoon at about 3.45 P.M. These two persons and a few others led a mob and with crowd they came to the main gate. They were stopped at the gate, by the Security Staff, but they forcibly effected their entry into the interior, and allegedly indulged in riotous and un-ruly behaviour. Nasir Mughal and Muhammad Zahoor addressed the gathering, by using absolutely abusive language. Provocative slogans were raised, and there came to be created a law and order situation, ugliness of which was averted with the intervention of the police. Such words " " were used in abusing the senior officers of the company, members of the management, as also the rival union Workers. Allegedly both Nasir Mughal and Muhammad Zahoor were off duty, and they had no business to be present inside, but they were very much present in the interior and they indulged in truly disorderly behaviour. 3. Show-cause notices were issued to ten persons, including Nasir Mughal and Muhammad Zahoor. These persons, however, became desperate and decided to pressurize the management, so that the show-cause notices or the charge sheets could be withdrawn. A procession was even .taken out. The participants were carrying placards, inscribed where-upon were different slogans with words The demonstration continued for about 20 to 30 minutes, attracting many outsiders to the spot. This constituted another act of misconduct and show- cause notices/charge-sheets were again served on those responsible for the disorderliness. The second incident occurred on 10.4.1989. 'Finding the replies to be unsatisfactory, it was decided that enquiries be held against the delinquents. 4. Mr. A.M. Siddiqui, the then Factory Manager, appointed Mr. Adil Khattak and Mr. Zahid Iqbal, as the Enquiry Officers. Nasir Mughal and Muhammad Zahoor both nominated, as associate or assistant, a co-worker, Malik Muhammad Yousaf, General Secretary of the Union. The management produced three witnesses in evidence, they being the complainant, who was the Chief Security Officer, Col. (Rtd.) A.H. Yasin, Subedar Munir Hussain, Security Officer Mr. M.A. Zaka, Senior Executive," Labour Relations, who all were cross-examined and were put several questions. They all were eye-witnesses of the two incidents. Nasir Mughal produced three witnesses in defence, Haji Muhammad Rafique, Raja Karim Dad and Amjad Ali. Muhammad Zahoor declined to adduce any evidence in defence and sufficed to say that he was innocent and said that he had nothing to add. In the enquiry, relating to the incident of 10.4.1989, Muhammad Zahoor also examined two witnesses, Muhammad Riaz and Allah Dad, who were cross-examined by the complainant. On conclusion of the enquiries, second show-cause notices were issued to those persons separately, and the copies of the enquiry reports were also enclosed. It will be incorrect to maintain that the reports of enquiry were not supplied to the accused officials. They submitted replies to the notices and were afforded opportunity for personal hearing, which was provided to them by Mr. M. A. Chaudhry, Factory Manager. Both these persons were dismissed from service, as the charges of misconduct stood proved against them. In the Labour Court, Mr. Adil Khatak and Mr. Muhammad Zahid Iqbal, Enquiry Officers appeared as witnesses, to prove the enquiry proceedings and the enquiry reports, Exhs. R-2 and 5 and Exhs. R-l & R-6, respectively. It is to be borne in mind that charges of misconduct are belied by the employees, stlthough they do not deny the occurrences and their participation therein, aiyj there appears to be no earthly reason why the witnesses should not be believed. They no doubt belong to the staff, but must be regarded as natural witnesses, as they were present at the site, and the appellants have notbeen able to bring home any partiality or prejudice on the part of these witnesses 468 Tr.C. , NASiR MAHMooD mughal v. attock refinery ltd. PLJ [Punjab Labour Appellate Tribunal, Lahore] against them. Even the Enquiry Officers were to inimically disposed towards Nasir Mahmud and Muhammad Zahoor, who themselves have pointed out that although the incidents did occur on 11.3.1989 and 10.4.1989, a number of other persons were exonerated, and the final action against these two persons took place, about two years after these incidents, which fact actually demonstrated that the management was in no hurry to proceed against them and had not become unnecessarily biased against them. No special circumstances have been shown by these persons to be in existence, which had induced the management to partially proceed against them or had established that the management was particularly anrioyed or pitted against these persons. If they were members of the trade union or were office bearers, they were in no way free to act, in any manner, they liked, but were expected to be all the more law-abiding and disciplined. They, however, displayed scant regard for law and peace, as also for legitimate interests of the establishment. It would be incorrect on the part of anyone of these two employees to say that he had been disallowed to cross-examine the witnesses of the prosecution or the management. A number of question were put to them in cross-examination, with a view to elicit truth. 5. One Naimatullah, Supervisor had appeared as PW in the enquiry held by Mr. Muhammad Adil Khatak, with regard to the second incident dated 10.4.1989, but even he had been cross-examined. Honorary Captain Maqsood Hussain Shah was the complainant, as also an eye-witness of the second incident, and had been fully cross-examined by the employees, who were charge-sheeted. Nasir Mughal examined, in defence, Faiz Muhammad Faizi, Muhammad Zahoor and Mahmood Hussain, and they were all crossexamined by the complainant. Personal hearing was afforded by the Factory Manager, Mr. M.A. Chaudhry, after due notice to the accused. Exh. R-l and 2 are the copies of the enquiry proceedings and Exh. R-3 is the notice for personal hearing issued to Nasir Mughal. The enquiry reports are Exh. R-5 and 6, and all these have duly been proved by the enquiry officer by appearing as a witness. I find no reason to disbelieve or discredit the PWs and similarly have not come across any circumstances, showing that these persons had un-necessarily or untruly been arraigned as accused. The manner in which the management proceeded against them and the action taken against them were entirely bona-fide and smacked of no antagonism against the accused and favouritism for the rest. Those who were left off were also members of the union of these persons. Only those persons were punished, who were actually at fault. 8. The mere fact that enquiries were held in the room of Mr. Samad, Personnel Manager, could not be taken exception to and it could not be gathered that he had endeavoured to influence the course and result of the enquiries. Mr". Zahid Iqbal's room was considered to be small, and the room of Mr. Samad, therefore, was selected for the purpose. He was in no way inimical to these persons, and like the witnesses, he too was supposed to be independent. The enquiry officers were appointed by the competent authority, and the enquiries were held properly, so that no rights or safeguards guaranteed by law were infringed or trampled. Had the management taken these incidents lightly and taken no action against the wrong-doers, the discipline, as also the law and order position in the factory premises, would have gone to the lowest ebb, and it would have become practically impossible for the other members, as also the workers, to pull on, and carry out their obligations and perform their duties in a normal and peaceful atmosphere. 9. The filthy language used and the disorderly attitude displayed by these persons could in no manner be excused or tolerated. The rival union was functioning, and the members of the management were operating, in exercise of their lawful rights, and they had also certain amount of selfrespect, which must not have been permitted to be invaded or violated, in the manner it was being done, by these hooligans. On a dispassionate and critical appreciation of the evidence on record and the proceedings of the enquiries I have been driven to the conclusion that the findings of the enquiry officers against the accused employees, and the final action taken against them by the higher officers, were in no way conjectural, motivated or ill-conceived. The whole exercise was truly transparent, as also honest, and attended by bona-fides, on the part of the management. I would uphold the impugned decision, rendered by the learned lower court, on 11.5.1993, and would dismiss both the appeals, although I will leave the parties to bear their respective costs of the litigation. (K.A.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 472 [Punjab Labour Appellate Tribunal, Lahore ] Present : JUSTICE (RTD.) MlAN GHULAM AHMAD, CHAIRMAN CHAIRMAN AREA ELECTRICITY BOARD etc.-Appellants versus QAZI MUHAMMAD ILYAS-Respondent Appeal No. GA-25/93 dismissed on 3-4-1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- S. 25-A--Wrong entries as regards date of birth existing in service book- Grievance petition-Acceptance of-Appeal against-Justice cannot be denied to employee for the reason that an entry by department has been made, in its own, and it really runs against service interests of employee- Both entries, 1.12.1932 and 19-10-1944, were rightly observed by the learned lower court as incorrect, having been made at random-By all means, a conclusive reliance could be placed on the third entry, i.e. 19-1- 1940, which had existence in more authentic and dependable document namely school leaving certificate-Appeal dismissed. [Pp. 474 & 475] A & B Mr. Muhammad Iqbal Khokhar, Advocate for Appellants. Mr. Abdul Hakim Awan, Advocate for Respondent. Date of hearing : 3-4-1997. judgment By an order dated 5.12.1992, the learned Punjab Labour Court No. 7, at Gujranwala, accepted the grievance petition of Qazi Muhammad flyas, filed under section 25-A of the Industrial Relations Ordinance, 1969, set aside the entries as regards date of birth existing in his service book and directed the appellants, respondents before the Labour Court, to correct the entires and determine his date of retirement accordingly. 2. Qazi Muhammad Ilyas joined service of WAPDA, on workcharged basis, as helper, in the year 1964. His service was regularized in the year 1965. Later he became and is presently also working as Test Assistant, at Gujranwala. His date of birth in the serviee record was entered as 1.12.1932. He obtained a medical certificate and the date was changed as 19.10.1944. Both these entries are available in his service book; and he pleads that there is good deal of ambiguity and it would not be wrong to say that the record has not correctly been maintained. He had un-successfully applied for correction of the record. 3. The 'Authorities' are of the view that 1.12.1932 is the date of birth, that had been recorded on initial employment of Qazi Muhammad Ilyas, on the basis of the information furnished by him. There is, however, no proof available in that behalf. The Clerk making the entries and preparing the service record might have done it, suo moto. It was similarly incorrect, as was the subsequent entry, 19. ip. 1944, that was made in accordance with the age given in the medical certificate. 4. It is so well known that on one's recruitment in Government Service one is required to obtain a medical fitness certificate by paying visit to the Medical Superintendent, who may examine him personally or through a subordinate. The main object of the medical certificate is the verification a'bout physical fitness of the new recruit/employee and the date of birth or age is stated in the said certificate .only casually or as a corollary. To say that the age described on medical examination of a civil servant or an employee of a corporate body by the doctor is something final and conclusive would be an absurd thing, close to fiction and divorced from reality. Authentic entry about age or date of birth emanates from the "Janam Patari", or schoolleaving certificate. Entry about age, for the first time, is generally made in matriculation certificate and it is relied upon by every body. One may not have his education upto matriculation, and may leave school earlier. The school-leaving certificate, in that event, will carry the date of birth, that may however have been entered in the school record at random. But at the same time, such an entry may also be authentic, as the elder who accompanies a lad and gets him admitted in school is supposed to know the age or date of birth of the new entrant in school, or he may state the same by guess work; but such entry is generally given credence and considered to be authentic. At pages 101, 107 and 109 of the file of the lower court, there are available the school-leaving certificate, the character certificate, and extract from the admission and withdrawal register of the school students. The date of birth has been described as 19.1.1940, every where. It is not understandable as to why this entry should not be placed implicit, reliance upon. The entry in the service book had not been signed by the employee and there is no proof to the effect that he had himself given his date of birth as 1.12.1932. Qazi was employed on work charged basis on 27.11.1964 and he was made regular on 26.12.1966. His^ service book was prepared on 19.5.1965 and his date of birth was incorporated therein; but it was obviously a fictitious entry, which could also be described as fake. He was medically examined on 4.8.1967, when his date of birth was entered as 19.10.1944, again fictitiously. The committee constituted for verification of his age again acted in routine, with no objective approach or application of mind, although their proceedings are spread' over the documents Exh. P-6, P-7 and P-8. Exh. P-2 is the school leaving certificate and Exh. P-l is its attested copy. 19.1.1940 has been stated as the date of birth of Muhammad Ilyas. Pages of Service Book Exh. P-3 and P-4 and the medical certificate Exh. P-5 all state the date of birth as 19.10.1944, which for obvious reasons has to be accorded no recognition. 5. It is also well known that superior courts have always treated low-paid employees of WAPDA even, to be workmen, entitled to the aid of the Labour Laws and to have recourse to the Labour Courts. They must not necessarily be considered as civil servants, amenable to the jurisdiction of the Service Tribunal. NLR 1991 Labour 84 may be referred to, in this regard. The Labour Court has the jurisdiction in the matter. 6. The learned Labour Court has referred to two conflicting entries about date of birth of Qazi Muhammad Ilyas existing in his service record, one made on his initial induction into service and the other on the basis of his medical examination. Initial entry, .1.12.1932, was recorded when Qazi was working on work charged basis and^the second entry was made on the basis of his medical certificate. The learned court below has rightly observed th'at both these entries might have been made by the concerned official either suo moto or on the basis of the information asked for and furnished by him and he might not have really been aware of his correct date of birth, at that time. It has also correctly been pronounced that justice cannot be denied to" the employee for the reason that an entry by the Department has been made, on its own, and it really runs against the service interests of tl employee. Both the entries, 1.12.1932 and 19.10.1944, were rightly observed by the learned lower court as incorrect, having been made at random. It is to be noted that there is a difference of about 12 years in the two' dates of birth, which could not be explained on any valid premises. He was made to retire prematurely on the basis of the first entry i.e. 1.12.1932, through he could very well say that the other entry, viz 19.10.1944, be accorded recognition in ultimate analysis. By all means, a conclusive reliance could be placed on the third entry, ^i.e. 19.1.1940, which had existence in more authentic and dependable document namely, the school leaving certificate. Following the rule of prudence, as also the rule of justice, the learned lower court, in my considered view, has given rightful recognition to the 3rd entry, as regards the date of birth of Qazi Muhammad Ilyas, the employee, the same being 19.1.1940. An important witness, who is'the Incharge of the record, Muhammad Ashfaq S.S.T., has also deposed in that behalf. When, therefore, the learned Labour Court says that the only correct and authentic entry as regards Qazi Muhammad Ilyas date of birth is 19.1.1940, it cannot be taken exception to. I would endorse the findings of the lower court and would dismiss the appeal, being without any merit. There shall be no order as to costs. 7. In all matters, respecting service of Qazi Muhammad Ilyas, including his retirement, 19.1.1940 is the date of birth that shall be accorded due recognition. (K.A.B.) Appeal dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 475 [Punjab Labour Appellate Tribunal, Lahore ] Present : justice (Km) mian ghulam ahmed, chairman THREE STAR HOSIERY MILLS-Appellant versus NAZIR AHMAD-RespQndent Appeal No. 130/1996 accepted on 24-5-1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A--Dismissal from service-Grievance. petition-Acceptance of- Appeal against-Oral as well as documentary evidence led by parties in lower court leads to an in-escapable inference that respondent had remained with Hosiery for a period of less than two months everi from 8- 1-1991 to 18-2-1991 and could not be regarded as a permanent workman, entitled to the safeguards provided by the Labour Laws-Appeal accepted. [P. 478] A Mr. Abdul Rashid Rndhawa, Advocate for Appellant. Mr. Ch. Muhammad Bashir, Advocate for Respondent. Date of hearing : 24-5-1997. judgment By the present judgment, I propose to dispose of the appeal, as also the revision petition, captioned above, the facts of the two cases being common. 2. Nazir Ahmad filed a grievance petition under section 25-A, Industrial Relations Ordinance, 1969, before the Labour Court at Multan , and the same was decided in his favour on 2.5.1996. According to him, he was employed by the Three Star Hosiery Mills, Industrial Estate, Multan , as helper, on 8.11.1990, but without any appointment order in writing. On 19.2.1991, all of a sudden, he was stopped at the gate and his entry into the interior was blocked. The management had allegedly turned hostile towards him, as he had engaged himself in trade union activities and had also acted in unison or in collusion with Islam-ud-Din and Murid Hussain, having instituted cases against the establishment. He reported the matter to the Labour Department; and by reason of the good gesture made by the department, two officers of the establishment, Mr. Jamil Shah and Mr. Jamil Chohan, were asked to take him back on duty, but the aforesaid desire to direction was not fulfilled, with the result that he did not succeed in having his reinstatement in service. 3. According to the Mill Manager, Nazir Ahmad had been recruited as godown worker, temporarily, and on account his absence from duty, on 18.2.1991, his services were dispensed with, as he had not completed the probationary period, as also the minimum stay in service, envisaged by the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. No disciplinary proceedings formally were initiated against him. It was denied that he had been made to sign two blank papers, at the time of his entry into service. To that effect an allegation had been made by the employee. 4. Ex-parte proceedings were taken against the establishment by the Labour Court ; and the evidence led by Nazir Ahmad remained un-rebutted. Grievance notice, as also" the grievance petition, according to the establishment, were barred by the law of limitation. 5. In his familiar way, the learned Presiding Officer of the Labour Court , Mr. Ghulam Abbas Khan, observed, 'An assessment of the facts of the case takes me to the conclusion that the petitioner's contention is sound". On saying so, as was usual with the learned Judge, he started advancing arguments himself in favour of the employee and picked up as many points as possible to favour him. Copies of the application made by Nazir Ahmad to the Labour Department locally were tendered as Exhs. P-l to P-3. Messrs Jamil Shah and Jamil Chohan of the Establishment or the Officers of the Labour Department, Multan, who had figured in the picture, have not been examined as witnesses by Nazir Ahmad and the plea taken up by Nazir Ahmad to the effect that even the Labour Department had desired and directed his reinstatement in service remains only an oral assertion and the applications Exhs. P-l to P-3 have to be taken to be a one-sided affair. 6. Learned lower court has jumped to the conclusion that no order of appointment or one of termination of services of Nazir Ahmad having been rendered in writing, provisions of Standing Order 2-A of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 have been violated and malafides on the part of the establishment have become manifest. One Mr. Sardar Muhammad, Godown Incharge, has appeared as a witness for the establishment, but the learned court below has accorded no importance to his testimony, saying that the same cannot safely be relied upon, as he has not pin-pointed exact date of appointment of the employee and has generally said that he had been recruited in the beginning of 1991. Attention of the court has, however, been drawn by the appellant, respondent before the Labour Court, to the entries in the attendance register, Exhs. R-1 to R-3, for the months of February and January, 1991, and December, 1990, according to which, Nazir Ahmad had, beyond any manner of doubt, started doing his duty on 8.1.1991 and this was stopped on 18.2.1991. Nazir Ahmad got payment as daily-wager, for the month of January, as per Exhs. R-5 and R-6, in the amount of Rs. 224.25. and Rs. 493.20 and from 1.2.1991 to 15.2.1991 in the sum of Rs. 458.35, as per Exh. R-7, besides Rs. 79/- for 16th to 18th of February, 1991 (two days), as per Exh. R-4. The documents aforesaid will leave little doubt, as already said, about Nazir Ahmad having remained in service of the establishment from 8.1.1991 to 18.2.1991. Thus, he had not stayed there for the minimum period of three months even; and it was not incumbent upon the establishment to have served him with a show-cause notice/charge-sheet, or to have made him face an inquiry and to have terminated his services by an order in writing. This is what is maintained by the establishment, as appellant before this forum, and as respondent before the learned Labour Court. 7. The grievance notice Exh. P-4 was issued on 2.5.1991, and was stated, as per Exh. P-6, to have been delivered to the addressee on 7.5.1991: , It was averred by the establishment that he had been appointed (on 8.1.1991) as godown-keeper and not as helper. The establishment, as stated in the reply, Exh. P-6, to the grievance notice, could dispense with the services of the employee without giving any reasons; but Nazir Ahmad, as employee, along with another companion, Ghulam Hussain, left the service suo moto on }8.2.1991. Performance of Nazir Ahmad was described to be unsatisfactory, in the reply dated 20.5.1991, Exh. P-6. The allegation of Nazir Ahmad, having been made to sign certain blank paper, was given a lie to by the establishment in the reply Exh. P-6. Nazir Ahmad having stopped doing his duty or his services having been dispensed with, on 18.2.1991, the grievance notice Exh. P-4, having been issued on 2.5.1991, was within time. Similarly, the grievance petition filed by him on 30.6.1991 must also be taken to be within time. Objections raised in that behalf by the establishment are without force and are turned down. 8. The finding recorded fey the learned lower court, to the effect that it was a permanent post, against which Nazir Ahmad had been employed and he had attained the status of a permanent workman, under the provisions of the Standing Orders Ordinance, 1968, cannot possibly be endorsed, being based on no evidentiary material available on record. The oral as well as documentary evidence led by the parties in the lower court leads to an in-escapable inference that Nazir Ahmad had remained with the Hosiery for a period of less than two months even, from 8.1.1991 to 18.2.1991, and could not be regarded as a permanent workman, entitled to A the safeguards provided by the Labour Laws. I have, therefore, no option but to set aside the impugned judgment rendered by the Labour Court on 2.5.1996 and to accept the appeal filed by the establishment on 22.5.1996. 9. A few weeks after the appeal was filed by the establishment, the Manager of the Three Star Hosiery Mills, Industrial Estate, Multan, its officers, Mian Rashid Ahmad and Mr. Taskeen Javed, Managing Director and Personnel Manager, respectively, preferred a revision petition, with a request that the proceedings entertained by the Labour Court, Multan, under section 25-A (8) and (9), Industrial Relations Ordinance, 1969, summoning the revision-petitioners, be set aside, and during the pendency of the revision petition, be stayed. Nazir Ahmad had submitted a complaint in the Labour Court, with a request that Mian Rashid Ahmad and Mr. Taskeen Javed be summoned in the court and dealt with and punished in accordance with law, as they had deliberately flouted the. orders of the court and brought into ridicule the authority of the court. The Labour Court, Multan had delivered a decision against the establishment and in favour of Nazir Ahmad on 2.5.1996 and had ordered his reinstatement in service and also payment of back benefits in entirety. Nazir Ahmad claims to have approached the management, with a prayer that the aforesaid decision dated 2.5.1996 of the Labour Court be acted upon. Application in that behalf was made to the General Manager on 6.5.1996, and twice had Nazir Ahmad, as he claims, met Mr. Taskeeji Javed, Factory Manager as well, but with no favourable response. Petitioner Not 2 had allegedly induced petitioner No. 1 to dis-obey the direction of the Labour Court. Nazir Ahmad, once again, on 26.5.1996, despatched an application to the Managing Director, in an effort to resume duty, but the management cared a fig for the same. Nazir Ahmad alleges that he was not permitted to cross the main gate of the mill for assuming duty. 10. It is to be noted that while announcing the decision dated -2.5.1996, the learned Presiding Officer of the Labour Court, Multan had 1 ordered the establishment to make payment of all the back benefits, within thirty days. Learned counsel for the establishment urges that it was an absolutely un-lawful direction. The establishment had a right to come up in appeal, within thirty days, to the higher forum. It is a matter of common experience that it takes time for a party to the litigation to get certified copy of the judgment, and within thirty days further, if application for obtaining the copy has been made on the day of announcement of the decision, the aggrieved party has a right to file an appeal before this Tribunal. By binding down the establishment to make payment of the back benefits within thirty days, the Labour Court had made a bid to impose a restriction upon the aforesaid entitlement of the aggrieved party, available under section 37(3), Industrial Relations Ordinance, 1969. 11. The learned Labour Court, on entertaining the complaint, on 4.6.1996, had issued pre-admission notice to the persons arrayed as accused or respondents there. It' is maintained by the learned counsel for the revision-petitioners that provisions of section 200, Cr.P.C. have not been kept in view by the Labour Court. Submission is that preliminary evidence of the complainant has not been recorded and no speaking order has been passed by the court below in coming to the conclusion that there was prima facie substance in the allegations made and in the complaint to be entertained. This contention has been repelled by the learned counsel for the employee, respondent before this Tribunal, and it has been submitted that procedure contemplated by the Criminal Procedure Code would not strictly apply to the proceedings before Labour Forums, and it is a matter of common knowledge and experience that Labour Courts and Labour Tribunal would enter upon these proceedings of quasi-criminal nature, without observing any formality, and show-cause notices to those arrayed as respondents in the contempt matters are issued in routine. 12 In any case, as the Labour Court's decision dated 2.5:1996 has been rescinded by this court, and earlier, on entertaining the appeal, preferred by the establishment, operation of this decision had been suspended, on 22.5.1996, there would arise no occasion for ^proceeding against the nominated contemners and punishing them for the alleged violation of the Labour Court's orders, on their part. In summoning the revision-petitioners, respondents before the Labour Court, as contemners, the learned lower court appears to have committed a material irregularity, calling for interference by this court, in exercise of its revisional jurisdiction. I would accept the revision petition, although with no order as to costs. (K.A.B.) Appeal accepted
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 479 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RTD.) mian ghulam ahmed, chairman TOWN COMMITTEE KHEWRA-Petitioner versus Mst. SALEH BIBI-Respondent Revision Petition No. 476/1992, decided on 22-3-1997. Payment of Wages Act, 1936 (IV of 1936)-- -S. 15(2)-Salary, gratuity etc. as also additional remuneration-Grant of-Review application-Dismissal of-Challenge to-Final order passed by 'Authority' was passed on 19-5-1991 and review petition was dismissed on 7-7-1991 and appeal was preferred on 29-7-1991.-Petitioner had not displaced much of slackness in the matter on being aware of order dated 7-7-1991 petitioner had hastened to file an appeal before labour court at on 29-7-1991, under S. (17)-In appeal both orders having been passed by 'Authority' have been assailed, and appeal could not be checked out in summary manner it was done-Authority as well as Labour Court had remained oblivious of petitioner's cause and had shown undue indulgence to respondent, who must, however, get relief, if indeed it is due; but town committee, which too is not an affluent body, also ought to be afforded an opportunity of hearing-Case is remanded Back. [P. 472] A Muhammad Abdul Wahid, Advocate, for the Petitioner. Mr. N. Naz, representative of the respondent. Date of hearing : 4.12.1996. judgment Judgment delivered on 19.7.1992 by Punjab Labour Court No. 6. Rawalpindi, having gone against the Town Committee, Khewra, the presenl revision petition was preferred on 12.8.92 before this Tribunal by the Town Committee. 2. As retired mid-wife of the Town Committee, Mst. Saleh Bibi had on 2.2.1991, approached the Authority under the Payment of Wages Act Jhelum/Chakwal, laying claim to salary, gratuity, etc., as also additiona remuneration, for the period 1.6.1976 to 12.8.1989, in the amount of Rs 83,300/-, under section 15(2), Payment of Wages Act. A decree in tht amount of Rs. 85,000/- was passed in her favour by the Commissioner Workmen's Compensation/Authority under the Payment of Wages Act, on 19.5.1991. Actually, the evidence of the Town Committee, Khewra, respondent before the 'Authority, had been closed on 28.4.1991, and on the strength of the evidence led by Mst. Saleh Bibi, her claim had been decreed finally on 19.5.1991. The Town Committee sought review of the aforesaid order, but the 'Authority' dismissed the review application on 7.7.1991. Thereafter, on 29.7.1991, the Town Committee filed an appeal before the Labour Court at Rawalpindi. The appeal was dismissed by the Labour Court on 19.7.1992, as being barred by the law of limitation. 3. I find, on a perusal of the record, that Mst. Saleh Bibi's evidence had been recorded by the 'Authority' on 28.3.91, the day when the issues had been transacted. The Town Committee had been asked to lead its evidence on 4.4.1991, when the evidence by the Town Committee could not be produced and the matter was adjourned to 28.4.1991, when again the Town Committee, as respondent before the 'Authority' had no evidence to adduce, and the same,was closed. Thus, only two dates were given to the Town Committee for production of its evidence and, as such, it would not be correct to say, as has been stated in the impugned judgment by. the learned Labour Court, that many opportunities had been afforded to the Town Committee to lead its evidence, and by reason of its failure to do so, Saleh Bibi's claim was decreed, on the strength of the evidence she had led. She had, on 4.4.1991, made her own statement and she had not even been cross-examined. The 'Authority' had probably not allowed the Town Committee's representative to subject Saleh Bibi to cross-examination, as it has been written under'Saleh Bibi's statement dated 4.4.1991 that she has not been cross-examined, although an opportunity, in that regard has been given. It appeared that the 'Authority' had proceeded against the Town Committee, and in favour of Saleh Bibi, in undue and indecent haste. This was certainly not fair. The reasons given in his order dated 19.5.1991 by the Authority/Workmen's Compensation Commissioner are also inadequate, as it has merely been said that Saleh Bibi's statement and evidence having remained unrebutted, she has succeeded in establishing her claim, which in fact was not scrutinized by the 'Authority', by application of its independent mind. 4. As the Town Committee had the feeling that its evidence had been closed unjustifiably, in rather un-usual hurry, by the 'Authority', a review application was submitted on 30.5.1991, with a request that the final order rendered by the 'Authority' on 19.5.1991 be set aside on review. It was submitted that the representative of the Town Committee had reached the office of the 'Authority' late, as the vagon, in which he was travelling, had developed some dis-order and further that services of an Advocate could $so not be utilized and the Town Committee could not place before the 'Authority' its view-point in legal and proper form. The 'Authority' rejected the review petition on 7.7.1991, on obtaining reply to it from Mst. Saleh Bibi (on 13.6.1991), and by observing that the 'Authority' had no powers to review its own orders. Then, as already said, on 29.7.1991, the Town Committee filed an appeal in the Labour Court at Rawalpindi, assailing both the orders rendered by the 'Authority' on 19.5.1991 and 7.7.1991. 5. The learned Labour Court has referred to the contention raised before it by the learned counsel for the petitioner (Town Committee Khewra) that every 'Authority' and Court has an inherent power of review. In the opinion of the learned court below, the appeal, review and revision are all creation of statute and such powers cannot be "exercised, unless the same have specifically been conferred by the relevant enactment. I find that in the course of its'judgment, the learned Labour Court has also said, in the beginning of para No. 2, that the 'decretal amount' had been received on 29.7.1991. This important development remains to be ascertained. It has to be made sure if Saleh Bibi has got the amount or the same has been deposited with the 'Authority by the Town Committee. On having found the appeal to be barred by the law of limitation, the same has been dismissed by the learned lower court (on 19.7.1992). It has to be borne in mind that before coming'up in appeal to the Labour Court , the Town Committee had, as already said, oh 30.5.1991, filed a review petition before the same Authority, and thus it had been prevented by a genuine cause and a legal development from coming to the competent court ( Labour Court ) in appeal. The Town Committee thus had an entitlement to ask for condonation of delay that had been caused in pursuing the matter either in a wrong forum or by way of a wrong remedy. Final order by the 'Authority' was passed on 19.5.1991 and the review petition was dismissed on 7.7.1991, and the present appeal was preferred on 29.7.1991. I do not think that the Town Committee had displayed much of slackness in the matter. On becoming aware of the order dated 7.7.1991, the Town Committee had hastened to file an appeal before the Labour Court at Rawalpindi on 29.7.1991, under section 17, Payment of Wages Act, 1936. In appeal, both the orders, having been passed by the 'Authority,' pn 19.5.1991 and 7.7.1991, have been assailed; and I am of the view that the appeal could not be chucked out in the summary manner it was done. I have the feeling that the Authority as well as the Labour Court had remained oblivious of the Town Committee's cause and had shown undue indulgence to Saleh Bibi, who must, however, get the relief, if indeed it is due; but the Town Committee, which too is not an affluent body, also ought to be afforded an opportunity of hearing. I would, therefore, set aside the impugned decision dated 19.7.1992 delivered by the learned Labour Court . The revision petition is allowed, although with no order as to costs. 6. The matter is remanded to the Commissioner, Workmen's Compensation/Authority under the Payment of Wages Act, Jhelum , for its decision afresh, in the light of the evidence, which the Town Committee, Khewra may choose to lead. Mst. Saleh Bibi made her sole statement and may also be enabled to corroborate her claim by leading more evidence, if she wishes or is advised to do so. The Assistant Director Labour, exercising powers of Commissioner Workmen's Compensation/Authority under the Payment of Wages Act, Jhelum shall summon the parties and ask them to adduce evidence before him afresh, on a date convenient to him. (K.A.B.) Case remanded back.
PLJ 1997 Tr PLJ 1997 Tr. C. (NIRC) 480 [National Industrial Relations Commission, Islamabad ] Present : MUHAMMAD SHAFT MALIK, CHAIRMAN, SYED IJAZ HUSSAIN GlLLANI, and anwar-ul-hassan, members. M/s. PAKISTAN PETROLEUM LIMITED-Appellant versus MATLOOB HUSSAIN etc.-Respondents Appeal No. 12(47)/96 accepted on 4-3-1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 22(D) read with S. 15-Unfair labour practice-Case of-Grievance petition-Acceptance of-Appeal against-Show cause notice was served sn respondent and independent inquiiy was conducted and opportunity was given to respondent to cross examine witness but respondent miserably failed.to establish a good case in his favour on point of victimization by act of unfair labour practice under S. 15-Though it is an admitted fact that respondent is vice president of Pakistan petroleum workers union but if guilt is proved against office bearers of a trade union he must be punished for it because office bearers of a trade union is not immune of law-Appeal accepted. [P. 481] A Muhammad Hamayun, Advocate for Appellant. Mr. Malik Mehrban, Representative for the Respondent. Date of hearing : 4-3-1997. order Anwar-ul-Hassan, Member.-This is an appeal under section 22D of the IRO, 1969 against the order dated 11.3.1996 passed by the Ex-learned Member of this Commission Mr. Gohar Yaqoob Yousaf Zai whereby the petition of the petitioner/Respondent No. 1 was accepted and the appellants were restrained to terminate, dismiss or remove the petitioner/respondent No. 1 from his service and show cause notice dated 25.10.1994 and inquiry proceedings setaside by the learned Single Bench. Being aggrieved by this decision the appellant preferred this appeal. 2. The brief-facts of this case are that the petitioner/Respondent No. 1 being an employee of Pakistan Petroleum Limited as Helper at Adhi Oil Field, Gujar Khan, District Rawalpindi who is also Vice President of PPL Workers Union Adhi Field and is enjoying the status of CBA in the Establishment. 3. The petitioner/respondent No. 1 being Vice President of the Pakistan Petroleum Workers Union put their demands before the Establishment which annoyed the establishment and the establishment started victimization against the petitioner/Respondent No. 1 by way of inquiry on the basis of show cause notice dated 25.10.1994. Consequently, the petitioner/respondent No. 1 approached the Commission by filing the petition bearing No. 4A(218)/95 alongwith stay application No. 24(306)/95. The petitioner got the interim injunction on 20.11.1994 against the appellant which was later on confirmed in his favour and the parties were directed to produce their evidence. 4. We heard both the learned counsel for the parties at length. While admitting this appeal the learned Full Bench of this Commission has suspended the impugned order and on 5.5.1996 it was also brought into thenotice of the Full Bench that suspension of the impugned order is defeated by filing another petition No. 4A(143)/96-K/24(296)/96-K in which the petitioner/respondent No. 1 succeeded to get stay order which resulting miscarriage of justice by infructuing the stay order granted by the Full Bench. The stay order dated 2.5.1996 granted in favour of the petitioner/respondent No. 1 was also suspended and the learned Member was called for comments. By getting both the stay orders suspended, during the intervening period, the appellant dismissed the petitioner/respondent No. 1 from his service. 5. Perusal of the file and statement of the parties reveals that the show cause notice was served on the petitioner/respondent No. 1 and independent inquiiy was conducted and opportunity was given to the petitioner/Respondent No. 1 to cross examine the witnesses but the petitioner/respondent No. 1 miserably failed to establish good case in his favour on the point of victimization by act of unfair labour practice under section 15 of the IRQ, 1969. Though it is an admitted fact that the petitioner/Respondent No. 1 is the Vice President of the Pakistan Petroleum Workers Union but if guilt is proved against the office bearers of a trade union he must be punished for it because the office bearers of a trade union is not immune of law. ' 6. After our above discussion we are inclined to accept this appeal setting aside the order dated 11.3.1996 and dismiss the petition No. 4A (218)/96 alongwith application No. 24(306)/95. We also dismiss the application dated 5.5.1996 for suspending the order dated 2.5.1996 being illegal and not maintainable without filing any appeal in the matter. We leave the parties to bear their own costs. (K.A.B.) Appeal accepted.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 482 [Punjab Labour Appellate Tribunal, Lahore ! Present -. mr. justice (RTD.'i mian ghulam ahmad. chairman FEDERATION OF PAKISTAN and two others-Petitioners versus RASHID AKHTAR-Respondent Revision Petition No. 364/1993, decided on 5-4-1997. Payment of Wages Act, 1936 <IV of 1936)-- -S. 7 read with Incentive Scheme, 1862-Improvement in qualification- Four advance increments-Grant of-Prayer for-Acceptance of-Challenge to-President of Pakistan having introduced scheme and subsequent instructions having been issued and variations having been made by Railway Administration, with no statutory recognition, could not override stipulations contained in Incentive Scheme, promulgated by presidentRules framed by lower authority could not replace those enacted by principal authority--Right that had accrued to employee under a particular enactment or scheme could, in no manner be taken away Act of Railway Administration in refusing to claimant, increments, in question, mush against his entitlement, would amount to unauthorized deduction on part of former or at least, with holding amount due, has to , be treated as 'delayed wages'Revision dismissed. [P. 484] A & B Ch. Khalil-ur-Rehman, Advocate for the Petitioner. Ch. Abdul Hafcez, Advocate for Respondent. Date of hearing : 5-4-1997. judgment A judgment announced on 21.3.1992 by Haji Muhmmad Akram Baitu, Presiding Officer, Punjab Labour Court No. 2, Lahore has been brought under challenge before this Tribunal by the Federation of Pakistan, through Chairman. Pakistan Railways, and other Authorities of the Department. 2. Actually, Rashid Akhtar's petition had favourably been disposed of on 31.10.1989 by the Authority under the Payment of Wages Act for the Railways, Lahore. Haji Muhammad Akram Baitu, learned Presiding Officer of Labour Court No. 2, had up-held the same by a judgment pronounced on 20.1.1991.'When, however, the Federation of Pakistan had recourse to this forum, by way of a revision petition, the same was allowed, Labour Court's decision dated 20.1.1991 was set aside and the case was remanded for redecision. It was observed that the question of lack of jurisdiction of the 'Authority' had not been adverted to by the learned Labour Court and it could be raised at any time, even though such an objection had not regularly been taken up earlier. In the opinion of my learned predecessor, it was actually the duty of the court to see to it, while dealing with a matter, whether it had jurisdiction or not. The learned Labour Court, I must say, has dealt with the issue in a rather perfunctory manner, inasmuch as it has been observed that the contention of the learned counsel for the Railways to the effect that the 'Authority' had no jurisdiction in the matter was without substance and the 'Authority' was well within its rights to adjudicate upon the issue between the parties about entitlement of the employee to advance increments. A reference has, however, been made to PLD 1978 S.C. 589, in which reported case, it has been pronounced that, if the Railway Administration refuses payment of arrears to an employee, or makes only fractional payment, purporting to be acting under the Railway Code, the Commissioner, on an application under the Payment of Wages Act, will be authorized to deal with the issue. Wages do not necessarily mean earned wages. An employee is entitled to full wages, unless a deduction is permissible under the Act. Language of section 7. Payment of Wages Act, is both exacting and pre-emptors. which makes the legislative intendment clear beyond any doubt. Law will not countenance any deduction in wages, unless the same is squarely covered by any provisions of the Act. The statute is remedial in its object and it is well established that a remedial statute should be construed in a manner, so as to advance the remedy and suppress the mischief, for other-wise it will frustrate the legislative intendment, 3. As discussed by the Authority under the Payment of Wages Act, in the course of the judgment dated 31.10.1989, Rashid Akhtar, having improved his qualification and obtained B.A. Degree, in the year 1983, he was entitled to grant of four advance increments under the Incentive Scheme. 1962, He did make a move for the same, but met. failure, as his application was rejected in May. 1984 (Exh. P-2). He further made a review petition in August, 1987, which t.oo was rejected on 16.9.1987. Basis for rejection of his claim was that fie had passed his B.A. Examination in 3 rd Division. 4. To say that he had preferred his chum belatedly would he giving a lie to a reality, the reason being that he had constantly remained in touch with the Authorities and had throughout been making efforts for getting advance increments and the arrears on that count. He had even approached the Wafaqi Mohtasib in the matter, vide Exhs. P-3 and 4. PW-1 did not deny that Rashid Akhtar had made applications about, award of advance increments on 24,4.1987 and 12.9.1987 iExhs. P-l and 5i, The delay, which ostensibly was caused in Rashid Akhrar's having recourse to the 'Authority' was obviously condonable and excusable. 5. When originally the Incentive Scheme was introduced, by an order of the President of Pakistan in 1962, it did not make any distinction as to whether an incumbent of a post has cloiu- his graduation in 1st, 2nd or 3 rd Division. Rashid Akthar graduated in the year 1982, and was entitled under the Scheme, then in force, to the advance increments; and an amendment in the relevant provision was subsequently made. Earlier qualification for a Class-I or Class-II officer was simple graduation. An employee, entitled to get promotion in Class-II or Class-I cadre, could only lay claim to the advance increments. 6. It has rightly been opined by the Authority that the President of Pakistan having introduced the Scheme and subsequent instructions having been issued and variations having been made by the Railway Administration, with no statutory recognition, could not over-ride the stipulations contained in the Incentive Scheme, promulgated by the President. It has been said that the rules framed by the lower authority could not replace those enacted by the principal authority. The right that had accrued to the employee under a particular enactment or scheme could, in no manner, be taken away. The Authority under the Payment of Wages Act, was, as such, not bound by the 'internal instructions' of the Railway Administration and was required to accord recognition to the President's directives. 7. The act of the Railway Administration in refusing to the claimant, the increments, in question, much against this entitlement, would fj amount to un-authorized deduction on the part of the former, or at least withholding the amount due, has to be treated as 'delayed wages. Rashid Akhtar was entitled to the four advance increments from 1.5.1982 onwards. The Authority calculated the amount, uptil beginning of September, 1987, to Rs. 4,316/-, and also awarded three times compensation to him, observing that he had faced enormous mental and physical torture, besides drain on funds, as also time, by reason of willful refusal on the part of the Authorities of the Railways to part with the dues in question. Rashid Akhtar had to resort to long-drawn litigation, over a good length of period, after the Authorities had rejected his claim and even his review petition; and the same had brought in wake lot of embarrassment and agony for the gentleman. I, however, have the feeling that the Railway Administration was not declining the benefits to the employee in a wholly wrongful or fanciful manner. Involved in the issue was question of entitlement of the employee to the advance increments, as he happened to be a 3rd divisioner graduate. Interpretation of the relevant rule, in the opinion of the Railway Authorities, was different from the one being adopted and advanced by Rashid Akhtar, but, it cannot be said, at the same time, that in an absolutely innocent manner he was deprived of the dues. I would, therefore, hold him entitled to get double the amount (multiplied by two), as compensation, (besides the actual amount payable). 8. The orders rendered by the Authority, and in appeal by the learned Labour Court, do not call for interference by this Tribunal, except to the extent indicated above, I would, therefore, maintain the Labour Court's order, affirming that of the 'Authority' and would , dismiss the revision petition, with the minor variation indicated above. There shall be no order as to costs. (K.A.B.) Revision dismissed.
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 485 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (R.TD.) mian ghulam ahmad, chairman MUHAMMAD KHALIL-Petitioner versus THE P.R.T.C., SAHIWAL-Respondent Appeal No. SL-269/96 accepted on 8-5-1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A-Conductor--Mis-appropriation-Charge of-Ouster from service-Grievance petition-Acceptance of-Challenge to-Even if, however, as a matter of fact, it was found that conductor had made up his mind to indulge in defalcation of government money, amount being less than Rs. 50/- it would not have constituted a very serious charge, or an instance of gross misconducted on the part of conductor on having found him, for first time, to have displayed slackness or dishonesty in performance of his duty, he could well be reprimanded or censured, and extreme penalty of his ouster from service was certainly not warranted. [P. 488] A Mr. Farooq Zaman Qureshi, Advocate for Appellant. Ch. Saeed Ahmad, Advocate for Respondent. Date of hearing : 8-5-1997. judgment By this judgment I shall be disposing of Muhammad Khalil's appeal, as well as the contempt petition, captioned above, the respondent being the District Manager, P.R.T.C. Sahiwal. 2. Muhammad Khalil was working as Conductor with the P.R.T.C. and was dismissed from service on 26.5.1986. Under section 25-A of the Industrial Relations Ordinance, 1969, he filed a grievance petition on 23.6.1986, which was accepted on 25.2.1987, and the decision was confirmed by this Tribunal, by a judgment announced on 16.5.1987. The P.R.T.C. approached the Hon'ble High Court, by way of Writ Petition No. 266/88. The petition was allowed and the aforesaid judgments rendered by the Labour Court and this Tribunal were declared by Hon'ble Justice Karamat Nazeer Bhaudari of Lahore High Court to have been passed without any lawful authority. It was directed that, the case would be decided afresh by the learned Labour Cowl, in the light, of the rules of evidence enunciated in the L.H.C. judgment repotted as PLD 1976 Lahore 1414. The learned lower court has quoted the Fame in the last para of its judgment dated 29.10.1996. Factual part of a domestic enquiiy by the employer has beeu held to be open to scrutiny by Labour Courts, only to a limited extent, and if at ail the courts undertake such a re-appraisal, they have to keep themselves abreast of the rules, instructions and the working methods of the establishment, with a view to full understand the implications and the background, in which findings of fact have been recorded. Applying abstract principles or standards of criminal proceedings and even civil litigation to the proceedings before Labour Courts, in absence of such knowledge, would amount to doing violence to the whole infra-structure of the Labour Laws. Strict application of rigid rules of evidence to domestic proceedings conducted by the enquiiy officers has been discouraged. The Hon'ble High Court expressed the view that both the Labour Court , and the Labour Appellate Tribunal seemed to have proceeded on misconceived appreciation or interpretation of law, in rendering orders in favour of the employee. 3. When the matter, which was deemed to be pending before the Labour Court , was again attended to. the employee's request for issuance of a stay order in his favour was ultimately rejected by the learned Lower Court on 24.4.1996; but this Tribunal on 30.6.1996 accepted the revision petition (No. SL-220/96) preferred by Muhammad Khalil. According to him, he had been dismissed from service, again on 12.4.1995. but the Labour Court had temporarily suspended the said order. The order however eventually held the field, when his application for ad-interim injunction was rejected. It was directed by this Tribunal that he would continue in service till such time his case was not finally decided. Expeditious disposal of the matter was however insisted upon. Mr. Justice Muhammad Aqil Mirza of the Lahore High Court, on 13.10.1996, passed an order that the employee might not be reinstated in service, but the Labour Court would decide the case by 15.11.1996. and if. for any valid reasons, it became impossible to take a decision by the fixed date, the employee would be taken back in service, in pursuance of the order passed by this Tribunal. 4. The learned Labour Court Multan has finally decided the grievance petition on 29.10.1996, soundness of which judgment has been impugned by Muhammad Khalil by way of the instant appeal, the result having gone against him. It is urged that the learned lower court has failed to appreciate that the enquiiy by the Ticket Checkers had not been conducted in a fool-proof manner and the conductor had not been provided a fair and full opportunity to defend himself. Decision delivered by the Hon'ble Lahore High Court is said to have also not properly been appreciated. The employee has harped on the tune, which he has been doing throughout, namely, Abdul Latif, Ticket Examiner, and other members of his team, Salah-ud-Din and Muhammad Iqbal S.T.Es. had not taken the trouble to examine the passengers and even the driver of the bus, which was coming from Lahore to Sahiwal on 19.3.1986, when at 17.45 the team afore-said had ] undertaken checking. They had found that Conductor Muhammad Khalil had charged fare, worth Rs. 31.50. from certain passengers, without issuing them tickets, and he had left, three passengers absolutely un-charged. This had all been done, according to the checking them, for causing loss to the public exchequer, and in doing so. the conductor had failed to perform his part of the duty. The enquiry ensued and it resulted in conductor's dismissal from service. The learned Labour Court, which initially disposed of the grievance petition on 25,2.1987, was of the view that the evidence against the conductor was hear-say in nature, in as much as the whole lot of passengers travelling in the bus. or at, least some of them, were not examined and statement of even the driver of the bus was not taken down. It appeared that - the checking team had assumed that examination of the driver would have yielded no fruitful result, as both the driver and the conductor might have been acting in collusion vvith each other, and both of them might have been beneficiaries of the amount, that was not charged, or against which tickets were not, issued to the passengers. The Hon'ble High Court has expressed the view that the argument that a charge of mis-appropriation could validly be founded only on the evidence of the passengers and not otherwise could not be endorsed. It is, however, to be borne in mind that a member of the checking team might well be acting in a prejudicial or partisan manner, as in the instant case the accused official had levelled an allegation against Mr. Muhammad Iqbal Khan, S.T.E. that, he had been immically disposed towards him, as the accused had refused to illegally gratify him. This may be against facts, but it may be well-founded, all the same. According to the accused, he had yet to issue the tickets to Those, from whom he had received the fare money, and they had not made grievance of the fact that despite their demand the conductor had kept mum and was not issuing them tickets. If three other passengers were travelling in the bus, without being charged, this also did not make any material difference, as, in the course of the journey, the conductor could not have checked every passenger, charged from this the fare and issued him the ticket, It is only when the bus stops at a particular place, and a passenger alights, that abrupt checking will yield positive results, and one can say with certainty that a person coming out has been left un-attended and has not been charged, although he boarded the bus and travelled in it over a few miles. In any case, those travelling in the bus could only testify about the conduct of the conductor, whether he had allowed a few out of them to travel free, or had charged every one of them. Normally, every passenger, who pays his fare, expresses keenness to get the ticket. The passengers, on examination by the team, might have come out with complaints or grievances that the conductor was not issuing them tickets and the object was to appropriate the money to himself. 5. Khalil says that he joined service in 1976. The mishap occurred on 19.3.1986, and never before any complaint had been lodged against him. His grievance petition was accepted on 25.2.1987, earlier, by the Labour Court, and from March, 1987 to April, 1995, he again did his duty, and without any complaint against his performance or integrity. It is submitted by him that the checking team had fallen prey to some confusion or misunderstanding, on the occasion, and had he been afforded adequate opportunity to explain his position he would have been able to do so, but the team acted in indecent haste and in a biased and antagnoistic manner and jumped to an adverse inference against his honesty. In 1952 Industrial Laws were enforced and the employees were held entitled to show-cause notices before any adverse action could to be taken against them. Labour Laws were enacted in 1968-69 and opportunity of personal hearing was afforded to aggrieved employees. It was even the dictate of natural justice that Muhammad Khalil should not have been condemned unheard, but ought to have been enabled to state the circumstances available in his favour. Deposition of the driver and statements of the passengers would have constituted very material evidence for and against the allegation against the conductor. 6. Even if, however, as a matter of fact, it was found that the conductor had made up his mind to indulge in defalcation of government money, the amount being less than Rs. 50/-, it would not have constituted a very serious charge, or an instance of gross misconduct on the part of the conductor. On having found him, for the first time, to have displayed slackness or dishonesty in performance of his duty, he could well be reprimanded or censured, and extreme penalty of his ouster from service was certainly not warranted. I would, in the circumstances, set aside the order of Muhammad Khalil's dismissal form service, as also the Labour Court order dated 29.10.1996, upholding the appellant's removal from service. 7. In so far as justification for initiation of contempt of court proceedings against the District Manager, P.R.T.C., Sahiwal is concerned, I must say that nobody in this case appears to have intentionally shown disrespect to the orders of any forum. History of the 'itigation has been described above. The Department had gone upto the High Court and twice has the matter been dealt with by the Labour Court, by this Tribunal, as also by the Hon'ble High Court. It has been stated by the respondent, in the reply submitted on 8.5.1997, that Muhammad Khalil had even remained in service from 25.4.1995 to 24.4.1996. On 24.4.1996 the Labour Court had refused to accede to the request of the official for grant of a stay order, and he was as such made, to discontinue his duty. This Tribunal passed a favourable order on 30.6.1996, but the High Court reversed the order on 13.10.1996, and final order by the Labour Court was rendered on 27.10.1996, by which by the grievance petition "of Muhammad Khalil was dismissed, and the order of his dismissal from service was upheld. Thus the 'Authorities' had never hesitated to take him in service, during the periods, when he was in enjoyment of injunction orders in his favour; and I do not think that there has been any contumacious or wnful default on the part of the respondent, in the matter of the accused official's reinstatement in service, coupled with payment of salary to him. The contempt petition is, therefore, dismissed. . 8. The order of Muhammad Khalil's dismissal from service has been held not to be sustainable in law, and he would, therefore, be deemed to have been in service of the Corporation throughout. He will be entitled to increments etc., as also to payment of his monthly emoluments, over the years. Back benefits shall be calculated and paid to him without delay. There shall, however, be no order as to costs of the litigation throughout. (K.A.B.) . Appeal accepted
PLJ 1997 Tr PLJ 1997 Tr. C. (Labour) 489 [Punjab Labour Appellate Tribunal, Lahore ] Present: JUSTICE (RTD.) MIAN GHULAM AHMAD, CHAIRMAN CRESCENT GHEE MILLS-Petitioner versus REHAMT ALI and others-Respondents Revision No. 185/1994, accepted on 15-5-1997. Payment of Wages Act, 1936 (IV of 1936)-- S. 15(2)-Golden hand shake scheme-After resignation workers whether can claim their dues or not-Question of-Without any outside pressure, and of their own volition, employees had tendered their resignation, after having signed 'settlement certificates' and they could not, as such, approach the Authority under payment of Wages Act, for recovery of any dues-It was a sort of 'special grant' which employees were to be in enjoyment of, under golden had shake scheme, or the agreement dated 20-2-1993, and claims could, in no manner be treated as delayed or deducted wages of workers-'Authority' could not, therefore, take cognizance of same-Revision accepted. [P. 491] A Mr. Asadullah Siddiqui, Advocate for petitioner. Nemo, for the respondents. Date of hearing : 22.4.1997. judgment By the present judgment, I propose to dispose of as many as twenty revision petitions (No. 185 to 204 of 1994) having been preferred by the S.J. Industries, Chichawantni (through its General Manager), against Rehmat Ali, etc., as also the Workers Union of the concern (through its General Secretary). The workers had made an application under section 15(2), Payment of Wages Act, 1936, before the Authority under the Payment of Wages Act, Sahiwal, laving claim to certain dues, while making grievance of the fact that payment of the entire dues had not been made to them, in accordance with the Golden Hand Shake Scheme. The claims were controverted and the concern took up the stand that all the dues having been paid, nothing was outstanding, and further that the claimants were also estopped by reason of their conduct to approach the Authority, as they had signed receipts in favour of the concern in proof of being in receipt of all the dues 'in manner of final and full payment,'. The Authority, in the decision dated 3.10.1993, held the view that it was not a case of delayed or deducted wages, and the application, as such, was not maintainable. The petitions were accordingly dismissed (on 3.10.1993). 2. The learned Labour Court No. 9. Multan, camping at Sahiwal, however, came to a different conclusion. The appeals filed by the employees were accepted and the Authority was asked to take decision on the rest of the issues (besides the issue, involving the question of jurisdiction >. Reliance by the learned lower court was placed on NLR 1980 < Labour) Lahore 137 (159) and 1992 PLC 520 (Labour Appellate Tribunal Sindh). 3. The Crescent Ghee Mills, presently S..J. Industries, Chichawanti have come up to this court, by way of these revision petitions, bringing under challenge the soundness of the judgment dated 29,3.1994 of the learned Labour Court, It is to be noted that Mr. Ghulam Sabir Kaifi, Advocate, used to represent the respondents in the revision petitions and had been coming to the court personally or through other advocates, ever since 20.10.1994, but he did not do so, on the last; three dates of hearing, i.e. 22.4.1997, 6.5.1997 and 15.5.1997: and his absolute absence gives an impression that. the employees as respondents have probably lost interest in the matter. Anyway, I proceed to discuss the factual and legal propositions involved. 4. It was a nationalized vegetable ghee factory and was privatized by the Government. S.J. Industries is the concern, which purchased the factory, on 5.1.1993. The Privatization Commission obtained an undertaking from the purchaser that ail the employees of the factory would remain on the rolls of the establishment for a minimum period of twelve months. This was the first agreement. There was a general agreement having earlier been aVrived at on 15.10.1991, between the State owned Enterprises Employees Association, on the one hand, and the Government of Pakistan, through its Ministerial Committee and the Privatization Commission, on the other, broad features or important conditions of which have been enumerated in para No. 3 of,the revision petitions. There were 368 employees in all, and in accordance with the said agreement dated 15.10.1991, the list was provided to the purchaser of the factory or the new management by the C.B.A. As the employees were confronted with certain amount of frustration, they evolved a fresh formula, which was offered to the new management. It was discussed and adopted in its meeting by the C.B.A. Union. A third agreement, as such, was entered into, on 20.2.1993, in accordance with which the amount of golden hand shake scheme was to be paid, for the length of service or the remaining service, whichever was less, so that all the workers wouid be benefi tted. 5. As per terms of this agreement, ail the 368 employees are stated to have exercised their options in writing and submitted their resignations, on obtaining total amount of their dues, in token whereof, they are said to have also executed receipts as full and final payment of the dues in favour of the management. There was no legal warrant for having afterwards approached the Authority under the Payment of Wages Act laying claim to 'any amount as outstanding dues; but 20 out of 368 employees are on record having done so, on having been induced by the 'labour leaders', it is so maintained by the concerned. 6. The respondents, as already said, have neither appeared in person, nor through their learned counsel, for canvassing their view-point, at the time of final arguments; and it has not been shown to this court as to how can this be treated as a case of delayed or deducted wages? The 'Authority' could entertain an application for payment of only 'admitted wages' and cannot possibly enter upon discussion of terms and conditions of an agreement, in an attempt to interpret and enforce the same. The erstwhile employees, in the present case, were evidently required to seek a declaration about their entitlement to seek a declaration about their entitlement to the dues from a competent forum and then proceed further. An offer was also made to the- Employees by the new management that they could rejoin service, on refunding the benefits, they had received, if the golden hand shake scheme was not acceptable to them. There has been no response, in respect of the said offer. It has been urged by the learned counsel for the revision-petitioners, and not without force, that the respondents having resigned from their service have ceased to be workers or employees, within the meaning of the Payment of Wages Act. It has also been submitted that monthly wages of these employees having exceeded Rs. 3,000/- per month, their claims were also beyond the pecuniary jurisdiction of the Authority. If the agreement dated 20.2.1993 between the new management and the C.B.A. was to be declared as not binding on the employees, or a section of old employees, the Authority obviously could not declare the agreement to be null or void or un-enforceable, in all or certain respects. The employees having executed 'settlement certificates' were obviously estopped from filing further claims, and when the aforesaid agreement had been acted upon by the parties, and the employees had opted to accept the offer, and resigned from their jobs, they could not make any grievance in that regard before the Authority. It has been reiterated by the revision-petitioner that without any outside pressure, and of their own volition, the employees had tendered their resignations, after having signed the 'settlement certificates', and they could not, as such, approach the Authority under the Payment of Wages Act for recovery of any dues. It, was a sort of 'special grant', which the employees were to be. in enjoyment of, under the golden hand shake scheme, or the agreement dated 20.2.1993, and the claims could, in no manner, be treated as delayed or deducted wages of workers. The 'Authority' could not, therefore, take cognizance of the same. In turning down their claims, for lack of jurisdiction, the Authority did not appear to have fallen in error, and the judgment rendered by the Labour Court suffered from a material irregularity, entailing, in turn, miscarriage of justice, and it was liable to interference by this court, in exercise of its revisional jurisdiction. I would set aside the Labour Court 's judgment dated 29.3.1994, by accepting the revision petitions, although with no orders as to costs. (K.A.B.) Revision accepted.
1997 Tr 1997 Tr. C. (Labour) 492 [Punjab Labour Appellate Tribunal, Lahore ] Present: justice (RTD.) mian ghulam ahmad, chairman PAKISTAN PETROLEUM LIMITED etc.-Appellants versus JAVED IQBAL-Respondent
Appeal No. 222/1992, dismissed on 16-11-1996. (i) Industrial Relations Ordinance, 1969 (XXIII of 1969)-- -S. 25-A read with standing order 12(3), Industrial and Commercial Employment (standing orders) Ordinance, 1968--A person to whose case provisions of I.R.O. 1969 do not apply, could still have access to Labour Court under standing order 12(3), and it covers, within its fold, spirit and intent of S. 25-A I.R.O. 1969, as well--S. O. 12(3) interjects itself into I.R.O. 1969, and provisions of said ordinance are attracted to case of a workman, to whom provisions of S.O. 12(3) apply. [P. 495] A (ii) Industrial Relations Ordinance, 1969 (XXIII of 1969)- -S. 25-A--Dismissal from service-Grievance petition-Acceptance of- Appeal against-Only wilful and habitual absence without leave may be treated as misconduct and simple absence not attended by any habit of this kind,, or any conduct betraying obstinacy or deliberateness on the part of employee, could not be construed as misconduct-Respondent's application for leave was supported by medical certificafes and bonafides or qualification of doctor, who issued the certificates could not be challenged-Appeal dismissed. [P. 496] B Mr. Khalid Saleem, Adv. for Appellants. \r, Ch. Shabbir Ahmad, Adv. for Respondent. Date of hearing : 20-10-1996. judgment By a judgment announced on 4.6.1992, Punjab Labour Court No. 6, Rawalpindi accepted Javed Iqbal's grievance petition, filed under section 25- A, Industrial Relations Ordinance, 1969 and ordered his reinstatement in service, with full back benefits. Pakistan Petroleum Limited, which concern Javed Iqbal was an employee of, has come up in appeal to this forum. Following briefly is the back-ground of the case :-- 2. Javed Iqbal was dismissed from service on 27.7.1991, for having committed an act of misconduct, by remaining absent from duty without leave, allegedly from 18.1.1991 to 20.2.1991. The employee's assertion, however, is that he had obtained leave and was to resume duty on 18.1.1991, but he met a motor cycle accident, and his ankle was fractured, and the same was supported by a medical certificate. According to the employer, he had sent a telegram on 28.1.1991, stating that he would be coming with a medical certificate. After waiting for a few days, the appellant concern addressed to the employee a telegram on 10.2.1991, requiring him to report to the Company Medical Officer at Sui. He failed to do so and submitted medical certificate, issued by one Dr. Amir Muhammad Bugti, Incharge, Civil Dispensary, Sui. He was stated to be suffering from hepatitis, and rest from 18.1.1991 to 16.2.1991 was recommended. As per policy of the Company, according to the appellants, medical leave to an employee could only be granted on the recommendation of the Company Medical Officer. This rule/practice was violated by Javed Iqbal. Still the Company arranged for his medical check-up, as also laboratory test. I was revealed that he was healthy and was not suffering from any disease, nor had his ankle been fractured, and actually his feet did not bear any marks of violence/injury. Javed Iqbal, however, again, on 17.2.1991, obtained a medical certificate from the same doctor (Dr. Bugti), who advised him complete bed rest for further five days (17th to 21st February, 1991). Javed Iqbal resumed duty on 21.2.1991; and was served with a show-cause notice/charge-sheet on 19.3.1991. He submitted a reply to it, on the following day. His reply was found to be unsatisfactory; and one Mr. Farrukh Mirza was appointed as the Inquiry Officer. He held the inquiry on 10.4.1991 and the same was concluded within half a hour or a maximum period of an hour. It was held at Adhi, although Javed Iqbal claims having made a request that the inquiry be held at Sui. Mr. Farrukh Mirza appeared as RW-1, before the Labour Court, and Mr. Rafiq Hassan Khan, acting Production Engineer, Incharge Adhi Field, was examined as RW-2. The latter, on receipt of the inquiry proceedings and the inquiry report, Exhs. R-2 and 3, respectively, issued a second show-cause notice to Javed Iqbal, who was also heard in person. Then he submitted the whole record, with his recommendation to the Manager, Human Resources, Head Officer, at Karachi . 3. First objection raised by the establishment is as regards the status of the employee and the maintainability of the grievance petition. He was a Security Inspector, but as his job was to check the work of chowkidars, as many as 18, under him, and he used to do so by walking on foot, the nature of the job was manual, and he could not be taken as working in any managerial or supervisory capacity. Even the contents of the show-cause notice/charge-sheet would furnish an indication that the action against the delinquent was proposed to be initiated under Standing Orders 12 and 15 of the Standing Orders Ordinance, 1968, and these provisions were meant for workers only and not tor other categories of the staff. In his statement on oath, made in the Labour Court, Javed Iqbal. has described his duties; and the same also leave little doubt about the fact that he was only a workman. It may be noted that the establishment has led no evidence in rebuttal. Reliance in this behalf has rightly been placed on 1992 SCMR 505 and 1977 SCMR 103. Assertion of the employee about being a worker has gone un challenged; and as pronounced in 1991 PLC 494 (Lahore High Court) and 1991 PLC 348 (Labour Appellate Tribunal Sind), the onus to establish that the employee was not a worker would shift to the employer, who has failed to discharge it. 4. A security guard and a member of Watch and Ward may legitimately maintain a grievance petition under section 25-A, Industrial Relations Ordinance. 1969. It has been so held in 1994 PLC 497 (Punjab Labour Appellate Tribunal). The employee had been called upon as to why disciplinary or final action should not be taken against him. under the provisions of the Standing Orders Ordinance, 1968, and the final show-cause notice, followed by the dismissal order, had also been issued under the said Ordinance, Standing Order 15 of which, enumerates punishments, which may be awarded to a worker. Jurisdiction of the Labour Court to take cognizance of such a case and decide it factually and legally cannot possibly be challenged (1989 PLC 947i. In so many matters, and to several organizations and departments, the Pakistan Essential Services (Maintenance) Act, 1952 has been made applicable. The Labour Laws, however, were subsequently enacted in the year 1968-69 and good many classes of low-paid employees were subjected to jurisdiction of Labour Courts and were made eligible to invoke the aid of Labour Laws in their favour. There is hardly and doubt about non-applicability of the afore-said Act of 1952, to the case in question. 5. Pakistan Petroleum Limited had expressed the desire and made an applicatioirto amend the written statement (reply), submitted in the Labour Court ,, with a view to plead that Javed Iqbal. being a member of the Security Staff, could not be treated as a worker and could not have access to the Labour Court , Applicability of Pakistan Essential Services (Maintenance) Act, 1952 was also intended to be introduced Such legal objections, however, could be raised by the respondent before the Labour Court , at the earliest, and normally at the appellate stage a new case is not allowed to be set up and such amendments in pleadings are declined. It cannot, however, be disputed that it is the duty of a court to determine it, first of all, if it, has jurisdiction in a matter, and without even such an objection having been raised, in the written statement, it is always open to a party to the litigation to convass such a legal proposition, and a court of law cannot refuse to deal with such an issue whether it is placed before it initially or subsequently at higher level It is to be noted that without an objection taken to that effect in the reply, this court, has accorded it due importance atsd has proceeded to determine it. Similarly, there was no need to allow the appellant to lead additional evidence, as according to the respondent, it would have amounted to enabling the appellant to ill! lacunae in its case. No notification was placed before the Labour Court by the respondent there, in order to oust the jurisdiction of the court in the matter, or to establish that the employee could not be treated as a workman. 6. In the case 'Attack Refinery Limited versus Lai Khan' (Appeal No. RI-246 93'. this Tribunal held on 30.3.1994 that a person, to whose case provisions of the Industrial Relations Ordinance, 1969 do not apply, could still have access to the Labour Court, under Standing Order 12(3), Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and that Standing Order 12(3) covers, within its fold, the spirit and intent of section 25-A. Industrial Relations Ordinance, 1969, as well. S.O. 12(3) interjects itself into the Industrial Relations Ordinance, 1969 and the provisions of the said Ordinance are attracted to the case of a workman, to whom provisions of S.O. 12(3) apply. It was so held in 'K.A.K. Afridi versus Pakistan Internationa! Airlines Corporation' i!992 SCMR 1379), 'Syed Matloob Hussain versus Brooke Bond Pakistan Limited' (1992 SCMR 227) and 'Security Paper Limited versus Sind Labour Appellate Tribunal & another' (PLD 1988 SC 180). If a workman is removed from service, in violation of provisions of S.O. 12 of Ordinance VI of 1968, he may get his grievance redressed by approaching the Labour Court under section 25-A, Industrial Relations Ordinance. 1969. i In so far as the right of appeal is concerned, any party aggrieved by an order of the Labour Court may prefer an appeal before the Labour Appellate Tribunal. It was so pronounced in 1991 PLC 32 'Lahore High Courti and 1988 PLC 595 (Labour Appellate Tribunal Punjab). On the strength of an authority letter, available on the file of this court the appeal appears to have competently been filed by the learned counsel, on getting the memorandum of appeaJ signed by the Chief Industrial Relations Officer of the concern. This officer was not a party before the learned Labour Court, but the interests of the Pakistan Petroleum Limited, respondent before the Labour Court, against which body the Labour Court, had returned the verdict, had evidently been injured, and under section 37(3), Industrial Relations Ordinance, 1969, it was open to the aggrieved party to file an appeal within the stipulated period (thirty days) against the decision of the Labour Court . Provisions of section 37(31 were compared with those of Order XLI, rule 1, C.P.C. by this Tribunal, as also by the Lahore High Court, and the observations made do not render the appeal to be incompetent in any manner. 8. Only willful and habitual absence without leave may be treated as misconduct, and simple absence, not attended by any hat:: :f this kind, or any conduct betraying obstinacy or deliberateness cr. r r.- part of the employee, could not be construed as misconduct. Javed Iqbal's application for leave was supported by medical certificates; ar.i bonafides or qualification of the doctor, who issued the certificate;, could not be challenged. This Tribunal had pronounced like that in 19So PLC 822 and 1985 PLC 618. It is to be borne in mind, in particular, that even after this incident, Javed Iqbal was awarded double increment, in recognition or appreciation of his meritorious services. It would follow that the management had not taken that seriously his absence from duty on medical ground and had treated it as justified on wholly valid premises 9. In view of the discussion above, what flows are a natural corollary and consequence is that the cross objections filed by Javed Iqbal. respondent, do not have much offeree, and are liable to rejection. The appeal filed by the Pakistan Petroleum Limited, similarly, is devoid of merit, and deserves outright rejection. I proceed to dismiss the appeal of the Pakistan Petroleum Limited, as also the cross objections lodged by Javed Iqbal, but will make no order as to the costs of litigation. (K.A.B.) Appeal dismissed.